PASHMAN STEIN WALDER HAYDEN A Professional Corporation Court Plaza South 21 Main Street, Suite 200 Hackensack, NJ 07601 Ph: (201) 270-4930 F: (201) 488-5556 [email protected]CJ GRIFFIN (#031422009) Attorneys for Plaintiff, Digital First Media DIGITAL FIRST MEDIA, Plaintiff, v. CITY OF TRENTON and DWAYNE M. HARRIS, in his official capacity as Records Custodian for the City of Trenton, Defendants. : : : : : : : : : : : SUPERIOR COURT OF NEW JERSEY LAW DIVISION: MERCER COUNTY DOCKET NO.: Civil Action VERIFIED COMPLAINT Plaintiff Digital First Media, through its undersigned counsel, Pashman Stein Walder Hayden, A Professional Corporation, complains against Defendants City of Trenton and Dwayne M. Harris (collectively, “Defendants” or “Trenton”)) as follows: INTRODUCTION 1. This is an action alleging violation of the New Jersey Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, and the common law right of access. 2. The records at issue relate to the death of a man that occurred in early April 2020 after officers from the Trenton Police Department used force against him while attempting to arrest him. The man stopped breathing almost immediately after the encounter. It is not known whether the use of force was the cause of the death. MER-L-000856-20 05/01/2020 4:02:28 PM Pg 1 of 30 Trans ID: LCV2020808120
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PASHMAN STEIN WALDER HAYDEN A Professional Corporation Court Plaza South 21 Main Street, Suite 200 Hackensack, NJ 07601 Ph: (201) 270-4930 F: (201) 488-5556 [email protected] CJ GRIFFIN (#031422009) Attorneys for Plaintiff, Digital First Media DIGITAL FIRST MEDIA, Plaintiff, v. CITY OF TRENTON and DWAYNE M. HARRIS, in his official capacity as Records Custodian for the City of Trenton, Defendants.
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SUPERIOR COURT OF NEW JERSEY LAW DIVISION: MERCER COUNTY DOCKET NO.:
Civil Action
VERIFIED COMPLAINT
Plaintiff Digital First Media, through its undersigned counsel, Pashman Stein Walder
Hayden, A Professional Corporation, complains against Defendants City of Trenton and Dwayne
M. Harris (collectively, “Defendants” or “Trenton”)) as follows:
INTRODUCTION
1. This is an action alleging violation of the New Jersey Open Public Records Act
(OPRA), N.J.S.A. 47:1A-1 to -13, and the common law right of access.
2. The records at issue relate to the death of a man that occurred in early April 2020
after officers from the Trenton Police Department used force against him while attempting to
arrest him. The man stopped breathing almost immediately after the encounter. It is not known
whether the use of force was the cause of the death.
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3. Videos of the incident were posted on social media by a bystander, who believed
the police acted wrongly and encouraged people to share the video widely. The videos show
Trenton police officers chasing the man around a parking lot and then using force against him as
he tried to escape arrest. The police are then seen performing chest compressions on the man,
after he evidently stopped breathing.
4. Plaintiff files this lawsuit to gain access to records that would shed further light
about what occurred during the incident and reveal the identity of the officers involved,
including the use of force reports and body-worn camera videos.
PARTIES
5. Plaintiff Digital First Media is a media corporation which owns The Trentonian, a
newspaper with headquarters located at 600 Perry Street, Trenton, New Jersey 08618.
6. Defendant City of Trenton (“Trenton”) is a public agency formed under the laws
of New Jersey, with its primary place of business at 319 East State Street, Trenton, New Jersey
08608.
7. Defendant Dwayne M. Harris is the Municipal Clerk and Records Custodian for
Defendant Trenton. The Custodian maintains an office at 319 East State Street, Trenton, New
Jersey 08608. He is being sued in his professional capacity only.
8. Trenton is a “political subdivision of the State” and “ma[kes], maintain[s] or
ke[eps] on file,” or “receive[s] in the course of . . . its official business” government records, and
is thereby subject to OPRA.
VENUE & JURISDICTION
9. Venue is properly laid in Mercer County because Defendant Trenton is located in
Mercer County and because the cause of action arose in Mercer County. R. 4:3-2(a).
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10. This Court has subject matter jurisdiction pursuant to N.J.S.A. 47:1A-6.
FACTUAL ALLEGATIONS
A. Background Information
11. The Trentonian is an award-winning daily newspaper serving Trenton and the
surrounding Mercer County area. Founded in 1945, The Trentonian covers a broad array of
news, including reporting on area crime, motor vehicle accidents, the operations of State, county,
and local government, and the conduct of elected officials and police officers.
12. Isaac Avilucea is a reporter for The Trentonian who covers local news within
Trenton. Avilucea has won numerous awards and accolades, including twice winning the New
Jersey Society of Professional Journalists’ “Courage Under Fire” Award.
13. On April 3, 2020, officers from the Trenton Police Department responded to a call
reporting that there was a man with his shirt off outside St. Francis Hospital, allegedly shouting
and throwing objects at passing cars. See Exhibit A, a true and accurate copy of an April 3, 2020
news article published by The Trentonian.
14. According to the Trenton Police Department, the man took off running into the
hospital’s parking lot, where he passed out while being taken into custody. He was transported to
the hospital, but he had no pulse and doctors were unable to resuscitate him. See Exhibit A.
15. On April 4, 2020, The Trentonian published an article by Avilucea reporting that
a bystander had posted videos of the incident on social media. The videos, one of which The
Trentonian posted on its website and can be viewed at https://bit.ly/3bR1eaq, depict the man
being “pummeled in the face and sat on while he lay prone on the ground, his head in the dirt, as
officers restrained his hands behind his back.” The videos also “showed officers pumping the
man's chest while performing CPR on him in the parking lot of St. Francis Medical Center.” See
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Exhibit B, a true and accurate copy of the April 4, 2020 news article published by The
Trentonian.
16. The April 4, 2020 article described the incident in detail from the perspective of
the bystander’s camera:
In one of the videos, the man can be seen running through the parking lot before he's cornered by an officer near a fence. The officer ordered the man to the ground. The man showed his hands, like he was going to give himself up, before shouting for help and running around the officer, according to the video. Then the video, which appeared to be edited, cut to the man on all fours, as a cop placed his hand around the back of the man's neck and pushed down on his head. Another officer arrived and maced the man in the face while he was on his hands and knees screaming for help. The man bear-crawled away from the three officers, who quickly swarmed, smothered and wrestled him to the ground, the videos show. One of the officers repeatedly struck the man in the face while he was face-down on his belly on the ground as officers struggled with him. The man's arms appeared to be behind him when he was struck, and another cop leaned over his legs, according to the video. As officers huddled around the man, one cop continued pressing a knee on the man’s body while he was handcuffed and prone on the ground, his face resting in the dirt. [See Exhibit B.]
17. Few details have been released about the incident so all that is known are what is
seen on the bystander’s videos.
18. The name of the decedent and the police officers who were involved in the
incident have not been disclosed.
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B. Plaintiff’s OPRA Request
19. To further its reporting into this matter, Plaintiff, through Avilucea, submitted a
records request to Trenton on April 6, 2020 seeking the following records pursuant to OPRA and
the common law right of access:
All body camera footage from the April 3 encounter Trenton Police had with a man in crisis outside of St. Francis Medical Center. All use of force reports filled out by officers involved in the arrest CAD reports Incident[] [Reports] for same 911 call or another other call for the same Dash cam and police radio transmissions for the same Identity of the man who died for same [See Exhibit C, a true and accurate copy of Plaintiff’s April 6, 2020 OPRA request].
20. On April 8, 2020, Trenton’s custodian responded to Plaintiff’s OPRA request and
simply wrote “Denial.” See Exhibit D, a true and accurate copy of Trenton’s April 8, 2020
OPRA response email.
21. Shortly thereafter, Avilucea responded to the custodian and stated: “No reason
was given for the denial of my OPRA request for body camera footage and other relevant
materials as it relates to man who died in police custody outside of St. Francis. Can you please
provide clarity on that?” See Exhibit E, a true and accurate copy of Avilucea’s April 8, 2020
email.
22. On the evening of April 8, 2020, the custodian wrote back to Avilucea and stated:
“I apologize. I have to get Ms. Lee back into the swing of things after an extended absence. That
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incident is still being investigated by the Police and they are not yet able to release that footage.”
See Exhibit F, a true and accurate copy of the custodian’s April 8, 2020 email.
23. To date, Trenton has not released any records or information responsive to
Plaintiff’s records request.
24. Plaintiff files this lawsuit to gain access to the responsive records pursuant to
OPRA and the common law right of access so that it may continue its reporting.
FIRST COUNT (Violation of OPRA)
25. Plaintiff repeats and incorporates by reference the allegations set forth in the
preceding paragraphs as though fully set forth at length herein.
26. In this state, all government records must be “readily accessible” to the citizens of
this State unless exempted by law. N.J.S.A. 47:1A-1.
27. Plaintiff’s records request sought “government records” as that term is defined by
OPRA because they are documents, videos, and information “made, maintained or kept on file in
the course of [Trenton’s] official business.” N.J.S.A. 47:1A-1.1.
28. The responsive records are not subject to any exemption and should have been
released to Plaintiff within seven business days pursuant to N.J.S.A. 47:1A-5(i).
29. OPRA’s ongoing investigation exemption, N.J.S.A. 47:1A-3(a), exempts records
from access where 1) they were created after an investigation began; 2) there is an ongoing
investigation; and 3) release would be inimical to the public interest.
30. Any responsive 9-1-1 call or other audio that resulted in the police responding to
the scene cannot be subject to the ongoing investigation exemption because it would have been
made prior to the commencement of an investigation. Moreover, it would not be inimical to the
public interest to release the recordings of the call(s). Serrano v. S. Brunswick Twp., 358 N.J.
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Isaac Avilucea is The Trentonian’s main municipal scribe. A two-time prior restraint winner and testicular cancersurvivor, he relishes his reputation as the "Mean Girls" reporter that followed his 18-day stay at the now-defunctNorth Adams Transcript.
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MER-L-000856-20 05/01/2020 4:02:28 PM Pg 18 of 30 Trans ID: LCV2020808120
Isaac Avilucea is The Trentonian’s main municipal scribe. A two-time prior restraint winner and testicular cancersurvivor, he relishes his reputation as the "Mean Girls" reporter that followed his 18-day stay at the now-defunctNorth Adams Transcript.
TRENTON — A man died while being taken into police custody Friday afternoon, outside a city
hospital, authorities said.
The man became incapacitated and flat-lined while getting handcuffed around 12 p.m. after cops
were called because he reportedly took off his shirt and was shouted at and threw stuff at passing
vehicles, Trenton Police Lt. Jason Kmiec said.
The man took off running into a parking lot of St. Francis Medical Center, where he passed out
while being taken into crisis.
He was transported to the nearby hospital, but he didn't have a pulse, and doctors were unable to
save the man, the police spokesman said.
He hasn't been identified, and New Jersey State Police is investigating his death, Kmiec said.
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MER-L-000856-20 05/01/2020 4:02:28 PM Pg 22 of 30 Trans ID: LCV2020808120
Dear Mr. Harris: Please accept this request under the Open Public Records Act (OPRA), N.J.S.A 47-1A-1 et seq., and the common law right of access for copies, either in paper or electronic form, of the following: All body camera footage from the April 3 encounter Trenton Police had with a man in crisis outside of St. Francis Medical Center. All use of force reports filled out by officers involved in the arrest CAD reports Incidents for same 911 call or another other call for the same Dash cam and police radio transmissions for the same Identity of the man who died for same -- Isaac Avilucea Reporter The Trentonian Office: 267-797-4621 cell: 505-688-2129
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This email serves as receipt of closure of your request by the City of Trenton.
The request sought access to the following:
Please accept this request under the Open Public Records Act (OPRA), N.J.S.A 47-1A-1 et seq., and the common law right of access for copies, either in paper or electronic form, of the following: All body camera footage from the April 3 encounter Trenton Police had with a man in crisis outside of St. Francis Medical Center. All use of force reports filled out by officers involved in the arrest CAD reports Incidents for same 911 call or another other call for the same Dash cam and police radio transmissions for the same Identity of the man who died for same
Below is a summary of how your request was handled.
Department Assigned Status Police Denial
If your request for access to a government record has been denied or unfilled within the seven (7) business days required by law, you have a right to challenge the decision by the City of Trenton to deny access. At your option, you may either institute a proceeding in the Superior Court of New Jersey or file a complaint with the Government Records Council (GRC) by completing the Denial of Access Complaint Form. You may contact the GRC by toll-free telephone at 866-850-0511, by mail at P.O. Box 819, Trenton, NJ, 08625, by e-mail at [email protected], or at their web site at www.state.nj.us/grc. The GRC can also answer other questions about the law. All questions regarding complaints filed in Superior Court should be directed to the Court Clerk in your County.
Sincerely,
City of Trenton
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From: Isaac Avilucea <[email protected]> Sent: Wednesday, April 8, 2020 2:59 PM To: Dwayne M. Harris <[email protected]> Subject: reason for denail Hi Mr. Harris: No reason was given for the denial of my OPRA request for body camera footage and other relevant materials as it relates to man who died in police custody outside of St. Francis. Can you please provide clarity on that? -- Isaac Avilucea Reporter The Trentonian Office: 267-797-4621 cell: 505-688-2129
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EXHIBIT F
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From: Dwayne M. Harris <[email protected]> Date: Wed, Apr 8, 2020 at 6:48 PM Subject: Re: reason for denail To: Isaac Avilucea <[email protected]> Isaac, I apologize. I have to get Ms. Lee back into the swing of things after an extended absence. That incident is still being investigated by the Police and they are not yet able to release that footage. Dwayne M. Harris, RMC, CMR, QPA, RPPO Municipal Clerk City of Trenton 609-989-3187 [email protected] WARNING: This electronic transmission and any attachments hereto may be considered a public document and is subject to the NJ Open Public Records Act. If there is anything that you would not want the general public to see, I would suggest you utilize an alternate means of communication. This communication is for the intended recipient and disclosure of its content is unauthorized. If you have received this transmission or a copy thereof in error, you are instructed to immediately and permanently delete this transmission and any attachments.
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