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August 20, 1996

JUAN TORRES, et al., Plaintiffs,
W. KUZNIASZ, et al., Defendants.

The opinion of the court was delivered by: KUGLER


 Before the court are two motions on behalf of Defendants in the above-referenced case. The first motion is brought before the court by Defendants W. Kuzniasz, D. Vause, George D. Pugh, Edward Eldred, and the City of Camden ("the Camden defendants") for two forms of relief. First, the Camden defendants seek a modification of this court's order compelling Camden to produce its Internal Affairs investigations for the years 1988 through 1996. The defendants seek to reduce the time period of the order to two years prior to the incident involving Plaintiff Torres. Second, the Camden defendants seek a protective order for certain documents and information within these Internal Affairs investigation files. Plaintiffs seek their costs and attorneys' fees incurred in opposing this motion.

 The second motion is brought before the court by Defendant Glenn Poeppel, a New Jersey State Trooper, for a protective order for the New Jersey State Police internal investigation report compiled as a result of the assault complaint filed by Plaintiff Juan Torres.

 On July 29, 1996, the Camden Policemen's Benevolent Association Local No. 35 and Camden Organization of Police Superiors filed a motion to intervene in this motion in support of the Camden defendants' position. Because these entities did not explain under what authority they move for intervention on a motion for a protective order, nor did they submit argument in support of their position, but rather stated that they rely upon the answers and briefs submitted by Defendant City of Camden, their motion shall be DISMISSED.


 According to the Consolidated and Amended Class Action Complaint filed January 29, 1996, Plaintiffs Jose Clemente, Juan Torres, Kay Martinez, Prentice Rosario, Luis Arzola, and Edwin Luna, individually and on behalf of all others similarly situated, allege pursuant to 42 U.S.C. § 1983 that the City of Camden and its policy-making officials violated the plaintiffs' constitutional rights by failing to properly train their police officers in the use of force, failing to take adequate precaution in hiring and retention of their police officers, failing to establish adequate policies, training, and procedures regarding the acceptance and investigation of citizen complaints against police officers, and failing to establish policies and training regarding the treatment of emotional or overwrought citizens. (Compl., para. 72-92.) Plaintiffs also allege negligent supervision against the City of Camden, the Camden Police Department, and George D. Pugh, Chief of Police of the Camden Police Department. (Id., para. 93-97.) Individual Camden police officers also were named as defendants on allegations of assault, battery, and excessive use of force. (Id., para. 98-105.) Plaintiffs seek as relief compensatory, exemplary, and punitive damages, attorneys' fees and costs, a declaration that the defendants' policies violate the plaintiffs' constitutional rights, and an injunction requiring the defendants to establish written policies which provide a means for citizens to safely complain about police procedure. (Id., at 21.) The purported class consists of all persons who have attempted to file a police misconduct complaint against a member of the Camden City Police Department and all persons who attempt to do so in the future. (Id., para. 20.)


 A. Statute of Limitations

 Defendants argue that since the statute of limitations for civil rights actions is two years, the only relevant documents supporting the plaintiffs' claims are those spanning the two-year time frame prior to the incident on November 10, 1993 involving Juan Torres which gave rise to the filing of this lawsuit. *fn1" Thus, according to the defendants, the court's order directing the Camden defendants to produce their Internal Affairs investigation files for the years 1988 through the present is overbroad and outside the scope of relevant evidence.

 In order to prove municipal liability under § 1983, a plaintiff must prove that the alleged constitutional violation resulted from an official policy or an unofficial custom. Monell v. New York City Dept. of Social Services, 436 U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978). "Policy is made when a 'decisionmaker possessing final authority to establish municipal policy with respect to the action' issues an official proclamation, policy, or edict." Andrews v. City of Philadelphia, 895 F.2d 1469, 1480 (3d Cir. 1990) (citations omitted). "A course of conduct is considered to be a 'custom' when, though not authorized by law, 'such practices of state officials [are] so permanent and well-settled' as to virtually constitute law." Id. (citations omitted). Custom may also be established by "evidence of knowledge and acquiescence." Fletcher v. O'Donnell, 867 F.2d 791, 793 (3d Cir. 1989), cert. denied, 492 U.S. 919, 106 L. Ed. 2d 591, 109 S. Ct. 3244 (1989). Thus, to sustain a § 1983 claim for municipal liability, the plaintiff must "simply establish a municipal custom coupled with causation -- i.e., that policymakers were aware of similar unlawful conduct in the past, but failed to take precautions against future violations, and that this failure, at least in part, led to their injury." Bielevicz v. Dubinon, 915 F.2d 845, 851 (3d Cir. 1990).

 In Beck v. City of Pittsburgh, 89 F.3d 966, 1996 WL 406776, No. 95-3328 (3d Cir. July 22, 1996), the Third Circuit found civilian complaints highly relevant to the plaintiff's burden of proving that the City of Pittsburgh had a custom of permitting its police officers to use excessive force in the performance of their duties, and, on appeal of a judgment as a matter of law under Fed. R. Civ. P. 50(a), the court considered as evidence a number of such complaints which spanned a time period longer than two years prior to the incident giving rise the plaintiff's complaint and complaints involving officers other than the officer who allegedly violated Plaintiff Beck's constitutional rights. Id. at *8-9. The complaints included incidents that occurred after Beck's experience, since such complaints "may have evidentiary value for a jury's consideration whether the City and policymakers had a pattern of tacitly approving the use of excessive force." Id. at *7.

 Accordingly, because documentation of civilian complaints and the police department's resultant investigations are relevant and necessary to the plaintiffs' burden of establishing the requisite policy or custom and causation required for municipal liability under § 1983, and because documents which span a number of years and involve many Camden police officers may be necessary to establish such a policy or custom, under the reasoning of Beck, the defendants' request to limit this court's order to a two-year time period shall be DENIED.

 In addition to their argument that the statute of limitations limits the scope of their production, the Camden defendants refused to turn over certain Internal Affairs documents on the basis of privilege. Plaintiffs' counsel, Charles N. Riley, Esq., has submitted a certification in which he explains what information the plaintiffs have received from the Camden defendants, and what information they have not received. According to Mr. Riley, the plaintiffs have received "non-internal affairs records relating to the arrest of the named plaintiffs, certain redacted internal affairs index sheets, and partial copies of the Attorney General's Police Guidelines and the Camden Police Manual." (Riley Certif., para. 2.) These documents, argue the plaintiffs, constitute the type of discovery that is routinely produced to defendants in municipal court cases, including police reports, medical records, and materials provided in plaintiffs' tort claim notices, and the only Internal Affairs information that was provided were redacted index sheets which contain only the dates on which civilian complaints were filed. What the plaintiffs have not received are documents within the following categories: "internal affairs files, internal affairs investigation reports, personnel files, Annual Reports to the Prosecutor, Internal Affairs File Cards, or any Memoranda or Communications of the Camden police regarding internal affairs investigations." (Id., para. 6.)

 In their brief in support of their motion for a protective order, the Camden defendants list ten privileges which they claim apply to protect the withheld documents from disclosure:

1. Self-critical analysis privilege;
2. Law enforcement privilege;
3. Executive/official information;
4. Privilege to Freedom of Information Act - 28 U.S.C. § 1343
5. Informant's Privilege
6. Hughes Executive Order # 48
7. Attorney General Guidelines for Internal Affairs Mandate of Confidentiality
8. "Officer's Privilege" pursuant to Garrity v. State of New Jersey, 385 U.S. 493, 17 L. Ed. 2d 562, 87 S. Ct. 616 (1967)
9. Fifth and Sixth Amendments to the United States Constitution as it pertains to the respective criminal actions against officers accused of criminal conduct; Brown v. Thompson, 430 F.2d 1214 (5th Cir. 1970); Logue v. Milwaukee Police Department, 428 F. Supp. 108 (E.D. Wis. 1977)
10. Camden Police Department Rules and Regulations Re: Confidentiality of Internal ...

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