{"cached_at":"2026-11-07T11:47:28.238504+00:00","cl_docket_id":"4282952","docket":{"resource_uri":"https://www.courtlistener.com/api/rest/v4/dockets/4282952/","id":4282952,"court":"https://www.courtlistener.com/api/rest/v4/courts/mad/","court_id":"mad","original_court_info":null,"idb_data":{"resource_uri":"https://www.courtlistener.com/api/rest/v4/fjc-integrated-database/21498790/","date_created":"2018-11-21T03:57:22.823622-08:00","date_modified":"2022-01-27T13:55:18.294152-08:00","dataset_source":9,"office":"1","docket_number":"0511547","origin":1,"date_filed":"2005-07-21","jurisdiction":3,"nature_of_suit":440,"title":"","section":"1983","subsection":"","diversity_of_residence":null,"class_action":null,"monetary_demand":1,"county_of_residence":25019,"arbitration_at_filing":"","arbitration_at_termination":"","multidistrict_litigation_docket_number":"","plaintiff":"VARALLO","defendant":"TOWN OF NANTUCKET, MASSACHUSET","date_transfer":null,"transfer_office":"","transfer_docket_number":"","transfer_origin":"","date_terminated":"2007-08-22","termination_class_action_status":null,"procedural_progress":5,"disposition":13,"nature_of_judgement":null,"amount_received":0,"judgment":null,"pro_se":0,"year_of_tape":2007,"nature_of_offense":"","version":null,"circuit":"https://www.courtlistener.com/api/rest/v4/courts/ca1/","district":"https://www.courtlistener.com/api/rest/v4/courts/mad/"},"clusters":[],"audio_files":[],"assigned_to":"https://www.courtlistener.com/api/rest/v4/people/3601/","referred_to":null,"bankruptcy_information":null,"absolute_url":"/docket/4282952/varallo-v-town-of-nantucket-massachusetts/","date_created":"2016-08-21T00:27:10.737370-07:00","date_modified":"2022-02-04T14:22:53.037155-08:00","source":9,"appeal_from_str":"","assigned_to_str":"Rya W. Zobel","referred_to_str":"","panel_str":"","date_last_index":"2021-08-29T03:03:34.969310-07:00","date_cert_granted":null,"date_cert_denied":null,"date_argued":null,"date_reargued":null,"date_reargument_denied":null,"date_filed":"2005-07-21","date_terminated":"2007-08-22","date_last_filing":"2007-10-02","case_name_short":"Varallo","case_name":"Varallo v. Town of Nantucket, Massachusetts","case_name_full":"","slug":"varallo-v-town-of-nantucket-massachusetts","docket_number":"1:05-cv-11547","docket_number_core":"0511547","docket_number_raw":"1:05-cv-11547","docket_number_source":0,"federal_dn_office_code":"","federal_dn_case_type":"","federal_dn_judge_initials_assigned":"","federal_dn_judge_initials_referred":"","federal_defendant_number":null,"pacer_case_id":"99138","cause":"","nature_of_suit":"440 Civil rights other","jury_demand":"","jurisdiction_type":"Federal question","appellate_fee_status":"","appellate_case_type_information":"","mdl_status":"","filepath_ia":"https://www.archive.org/download/gov.uscourts.mad.99138/gov.uscourts.mad.99138.docket.xml","filepath_ia_json":"https://archive.org/download/gov.uscourts.mad.99138/gov.uscourts.mad.99138.docket.json","ia_upload_failure_count":null,"ia_needs_upload":true,"ia_date_first_change":"2018-09-30T00:00:00-07:00","date_blocked":null,"blocked":false,"appeal_from":null,"parent_docket":null,"tags":[],"panel":[]},"parties":[],"entries":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/7346445/","id":7346445,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/4282952/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/5554712/","id":5554712,"tags":[],"absolute_url":"/docket/4282952/46/varallo-v-town-of-nantucket-massachusetts/","date_created":"2016-08-21T00:27:11.347965-07:00","date_modified":"2018-12-14T22:59:15.967635-08:00","sha1":"ecf5ef89b6ef73fbe2c7a991cd7d7e726d6316a4","page_count":1,"file_size":8710,"filepath_local":"recap/gov.uscourts.mad.99138.46.0.pdf","filepath_ia":"https://www.archive.org/download/gov.uscourts.mad.99138/gov.uscourts.mad.99138.46.0.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":" Case 1:05-cv-11547-RWZ Document 46 Filed 10/01/2007 Page 1 of 1\n\n\n\n UNITED STATES DISTRICT COURT FOR\n THE DISTRICT OF MASSACHUSETTS\n\n LAUREN VARALLO,\n Plaintiff,\n v.\n CIVIL ACTION\n NO: 05-11547-RWZ\n TOWN OF NANTUCKET - POLICE\n DEPARTMENT and JAMES SAMSON,\n Defendants.\n\n\n JOINT MOTION TO EXTEND SETTLEMENT / RESOLUTION PERIOD\n The undersigned parties hereby move this Court to extend the time period for which they\nhave to consummate the settlement and resolution of the above-captioned action by an additional\nthirty (30) days to October 31, 2007. As grounds for this Motion, the parties state that various\nsettlement documents beyond the usual Release have been drafted and are being finalized, but are\nnot yet complete. The parties reasonably expect to complete the process in the additional time.\nPlaintiff LAUREN VARALLO, Defendant TOWN OF NANTUCKET,\nBy her attorneys, By its attorney,\n\n/s/ Bradley M. Henry /s/ Douglas I. Louison (by assent to BMH)\nBradley M. Henry, BBO # 559501 Douglas I. Louison, BBO # 545191\nMeehan, Boyle, Black & Bogdanow, P.C. Merrick, Louison & Costello\nTwo Center Plaza, Suite 600 67 Batterymarch Street\nBoston, MA 02108 Boston, MA 02110\n(617) 523-8300 (617) 439-0305\n\n Defendant JAMES SAMSON, By his attorney,\n\n /s/ Philip Slotnick\n Philip Slotnick, BBO # 466960\n Shocker & Dockser, LLP\n 6 Huron Drive, P.O. Box 2219\n Natick, MA 01760\n (508) 653-0160\n\n CERTIFICATE OF SERVICE\n\n I, Bradley M. Henry, certify that on October 1, 2007, I served the foregoing motion by electronic filing and by\nmailing an exa ct cop y thereo f, postage prepaid to all p arties of record: Douglas I. Louison, Merrick, Louison & Costello,\nLLP, 67 Batterymarch St., Boston, MA 02110 and Philip Slotnick, Shocket & Dockser, LLP, 6 Huron Dr., Natick, MA 01760.\n\n /s/ Bradley M. Henry\n Bradley M . Henry\n@PFDesktop\\::ODMA/M HODM A/IMANAGE;B OSLIB;1139 05;1\n\f","ocr_status":2,"date_upload":"2009-08-08T21:58:02-07:00","document_number":"46","attachment_number":null,"pacer_doc_id":"09502267178","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"Motion for Extension of Time","acms_document_guid":""}],"date_created":"2016-08-21T00:27:11.342378-07:00","date_modified":"2018-12-14T22:59:15.948302-08:00","date_filed":"2007-10-01","time_filed":null,"entry_number":46,"recap_sequence_number":"2007-10-01.001","pacer_sequence_number":null,"description":"Joint MOTION for Extension of Time to Oct. 31, 2007 to File Settlement / Resolution Documents by Lauren Varallo.(Henry, Bradley)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/7346444/","id":7346444,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/4282952/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/5554711/","id":5554711,"tags":[],"absolute_url":"/docket/4282952/45/varallo-v-town-of-nantucket-massachusetts/","date_created":"2016-08-21T00:27:11.335332-07:00","date_modified":"2018-12-14T22:59:15.935379-08:00","sha1":"43b72e666dd1c3872adba33538e5900e7deeebe0","page_count":1,"file_size":7285,"filepath_local":"recap/gov.uscourts.mad.99138.45.0.pdf","filepath_ia":"https://www.archive.org/download/gov.uscourts.mad.99138/gov.uscourts.mad.99138.45.0.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":" Case 1:05-cv-11547-RWZ Document 45 Filed 08/22/2007 Page 1 of 1\n\n\n\n\n UNITED STATES DISTRICT COURT\n DISTRICT OF MASSACHUSETTS\n\n\n\nLAUREN VARALLO\n Plaintiff\n\n V.\n CIVIL ACTION:05CV11547-RWZ\n\nTOWN OF NANTUCKET\n Defendant\n\n\n\n\n ORDER OF DISMISSAL\n\nZOBEL, D.J. AUGUST 22, 2007\n\n\n\n The Court having been advised by counsel for the parties that the above action has been\n\nsettled, it is ORDERED that this action is hereby dismissed without costs and without prejudice to\n\nthe right, upon good cause shown within 30 days, to reopen the action if settlement is not\n\nconsummated.\n\n\n\n By the Court,\n\n\n\n s/ Lisa A. Urso\n Deputy Clerk\n\f","ocr_status":2,"date_upload":"2009-08-08T22:00:39-07:00","document_number":"45","attachment_number":null,"pacer_doc_id":"09502254694","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"Order Dismissing Case","acms_document_guid":""}],"date_created":"2016-08-21T00:27:11.328238-07:00","date_modified":"2018-12-14T22:59:15.899541-08:00","date_filed":"2007-08-22","time_filed":null,"entry_number":45,"recap_sequence_number":"2007-08-22.001","pacer_sequence_number":null,"description":"Judge Rya W. Zobel : ORDER entered. 30 Day ORDER DISMISSING CASE as to Town of Nantucket(Urso, Lisa)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/7346443/","id":7346443,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/4282952/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/5554710/","id":5554710,"tags":[],"absolute_url":"/docket/4282952/44/varallo-v-town-of-nantucket-massachusetts/","date_created":"2016-08-21T00:27:11.320050-07:00","date_modified":"2018-12-14T22:59:15.886262-08:00","sha1":"e537a3336e99289fa78aa4a1b6568835ce9cab26","page_count":3,"file_size":13135,"filepath_local":"recap/gov.uscourts.mad.99138.44.0.pdf","filepath_ia":"https://www.archive.org/download/gov.uscourts.mad.99138/gov.uscourts.mad.99138.44.0.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":" Case 1:05-cv-11547-RWZ Document 44 Filed 08/21/2007 Page 1 of 3\n\n\n\n UNITED STATES DISTRICT COURT\n DISTRICT OF MASSACHUSETTS\n\n\n CIVIL ACTION NO. 05-11547-RWZ\n\n LAUREN VARALLO\n\n\n v.\n\n TOWN OF NANTUCKET, MASSACHUSETTS, Police Department,\n and\n JAMES SAMSON\n\n\n PRETRIAL ORDER\n August 21, 2007\n\nZOBEL, D.J.\n\n This matter having come before the court at a pretrial conference held pursuant\n\nto Rule 16, Fed. R. Civ. P., 28 U.S.C., and Bradley M. Henry, Esq., having appeared as\n\ncounsel for plaintiff, and Douglas I. Louison, Esq., Regina M. Ryan, Esq., and Philip\n\nSlotnick, Esq., having appeared as counsel for defendants, the following action was\n\ntaken:\n\n1. TRIAL\n\n Trial is scheduled to commence on August 27, 2007, at 9:00 a.m. and is\n\nestimated to last four days.\n\n2. JURY\n\n The court will impanel eight jurors. Counsel shall file any proposed questions to\n\nthe jury on voir dire by August 22, 2007. Each side will have four peremptory\n\nchallenges.\n\f Case 1:05-cv-11547-RWZ Document 44 Filed 08/21/2007 Page 2 of 3\n\n\n\n3. ISSUES\n\n The parties agree that the only issues to be tried are:\n\n A. With respect to the claims against the Town of Nantucket \u2013\n\n I) whether the Town was negligent by assigning James Samson to\n protective custody duty for which Samson had not been trained and for\n which he was not qualified, all in violation of its own procedures;\n\n ii) whether the Town\u2019s negligence caused plaintiff\u2019s injuries;\n\n iii) the amount of damages. Plaintiff claims for\n\n a) emotional distress;\n\n b) the assault and battery; and\n\n c) delay in completing school.\n\n B. With respect to the claims against James Samson \u2013\n\n I) whether he violated plaintiff\u2019s constitutional rights by sexually assaulting\n her;\n\n ii) whether he committed an assault and battery against plaintiff;\n\n iii) whether he intentionally inflicted emotional distress;\n\n iv) whether defendant\u2019s conduct caused plaintiff\u2019s injury; and\n\n v) the amount of damages.\n\n\n4. EXHIBITS\n\n Prior to the commencement of trial, counsel shall confer with each other\n\nconcerning any exhibits each intends to offer and note any objections each may have\n\nto the exhibits of the other. All exhibits to which opposing counsel do not object shall\n\nbe deemed to be admitted into evidence. Counsel shall mark these exhibits and\n\n\n 2\n\f Case 1:05-cv-11547-RWZ Document 44 Filed 08/21/2007 Page 3 of 3\n\n\n\nprepare a listing thereof, in duplicate. Objected to exhibits shall be marked for\n\nidentification and listed separately.\n\n5. WITNESSES\n\n On or before August 22, 2007, each party shall file a list of witnesses who will\n\ntestify at trial.\n\n6. REQUESTS AND QUESTIONS\n\n On the first day of trial, counsel shall file:\n\n (a) Requests for instructions; and\n\n (b) Proposed questions to the jury on special verdict.\n\n\n\n\n_______August 21, 2007__________ ________/s/Rya W. Zobel__________\n DATE RYA W. ZOBEL\n UNITED STATES DISTRICT JUDGE\n\n\n\n\n 3\n\f","ocr_status":2,"date_upload":"2009-08-08T22:00:00-07:00","document_number":"44","attachment_number":null,"pacer_doc_id":"09501079958","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"Procedural Order re pretrial/trial","acms_document_guid":""}],"date_created":"2016-08-21T00:27:11.312700-07:00","date_modified":"2018-12-14T22:59:15.867489-08:00","date_filed":"2007-08-21","time_filed":null,"entry_number":44,"recap_sequence_number":"2007-08-21.001","pacer_sequence_number":null,"description":"Judge Rya W. Zobel : ORDER entered. PROCEDURAL ORDER re pretrial/trialJury Trial set for 8/27/2007 09:00 AM in Courtroom 12 before Judge Rya W. Zobel.(Urso, Lisa)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/7346442/","id":7346442,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/4282952/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/5554709/","id":5554709,"tags":[],"absolute_url":"/docket/4282952/43/varallo-v-town-of-nantucket-massachusetts/","date_created":"2016-08-21T00:27:11.306106-07:00","date_modified":"2018-12-14T22:59:15.840941-08:00","sha1":"3e5273bf492befa380aeee1a8cd3db0de7ede8e1","page_count":10,"file_size":38828,"filepath_local":"recap/gov.uscourts.mad.99138.43.0.pdf","filepath_ia":"https://www.archive.org/download/gov.uscourts.mad.99138/gov.uscourts.mad.99138.43.0.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":" Case 1:05-cv-11547-RWZ Document 43 Filed 08/17/2007 Page 1 of 10\n\n\n\n UNITED STATES DISTRICT COURT FOR\n THE DISTRICT OF MASSACHUSETTS\n\n\n\n LAUREN VARALLO,\n Plaintiff,\n v.\n CIVIL ACTION\n NO: 05-11547-RWZ\n TOWN OF NANTUCKET - POLICE\n DEPARTMENT and JAMES SAMSON,\n\n Defendants.\n\n\n\n PLAINTIFF\u2019S OPPOSITION TO DEFENDANT TOWN OF\n NANTUCKET - POLICE DEPARTMENT\u2019S MOTION IN LIMINE\n\n The defendant Town of Nantucket Police Department has moved to preclude the\n\ntestimony of the plaintiff\u2019s expert witness, Paul J. Mackowski, on the grounds that Mr.\n\nMackowski is not qualified to testify and that such testimony is not admissible under the\n\nreliability principles of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 594\n\n(1993). As discussed below, Mr. Mackowski is well qualified to testify in this case, his testimony\n\nwill aid the jury in its understanding of the issues and is reliable and admissible under Daubert.\n\n ARGUMENT\n\n I. \u201cReliability\u201d And \u201cQualification\u201d Standards\n\n A. \u201cReliability\u201d Standards Under Daubert\n\n The consistent theme in Daubert and its progeny is that in determining the admissibility\n\nof an expert\u2019s opinion, there is no single test of \u201creliability\u201d that will apply to every situation, and\n\nthat the judicial inquiry is \u201ca flexible one.\u201d Daubert v. Merrell Dow Pharmaceuticals, Inc., 509\n\nU.S. 579, 594 (1993). Reliability can be established in a variety of ways, as much \u201cdepends upon\n\nthe particular circumstances of the particular case at issue.\u201d Kumho Tire Co., Ltd. v. Carmichael,\n\f Case 1:05-cv-11547-RWZ Document 43 Filed 08/17/2007 Page 2 of 10\n\n\n\n119 S.Ct. 1167, 1175 (1999); U.S. v. Shea, 957 F. Supp. 331 (D. N.H. 1997) aff\u2019d 159 F.3d 37\n\n(1st Cir. 1998) (\u201cNo single factor is necessarily dispositive in this analysis and other factors might\n\nalso warrant consideration in the appropriate case.\u201d). Although the Court must act as a\n\n\u201cgatekeeper\u201d of expert testimony, this role is \u201ctempered by the liberal thrust of the Federal Rules\n\nof Evidence and the \u2018presumption of admissibility.\u2019\u201d Bericochea-Cartagena v. Suzuki Motor Co,\n\n7 F. Supp.2d 109, 113 (D.P.R. 1998), citing Borawick v. Shay 68 F.3d 597, 610 (2d Cir. 1995);\n\nsee also Marmol v. Biro Mfg. Co., 1997 WL 88854, *4, 1997 U.S. Dist. LEXIS 21669, *10\n\n(E.D.N.Y. Feb. 24 1997) (Daubert Court \u201ccautioned against inflexible application of a definitive\n\nchecklist or test\u201d).\n\n In its motion, the defendant has improperly attempted to impose the specific Daubert\n\nfactors that were developed for scientific, technical and engineering experts onto a case involving\n\nissues of police invasion of civil rights. Bericochea-Cartagena, 7 F. Supp.2d at 112-13 (Daubert\n\nfactors are inapplicable where expert testimony based on experience and training in the field);\n\nLiriano v. Hobart Corp., 1996 U.S. Dist. LEXIS 864, 1996 WL 34147, * 3 (S.D.N.Y. Jan. 30,\n\n1996), subsequent opinion, 949 F. Supp. 171 (S.D.N.Y. 1996) (expert testimony admissible\n\nwithout applying Daubert factors because conclusions not predicated on untested scientific\n\nobservations, but rather on personal experience or training). As stated in Forbis v. City of\n\nPortland, 2003 U.S. Dist. LEXIS 8957, 5-6 (D. Me. 2003) quoting Kumho Tire Co., Ltd. v.\n\nCarmichael, supra:\n\n the specific analytic factors listed in Daubert \u201cneither necessarily\n nor exclusively apply to all experts or in every case.\u201d . . . Relevant\n reliability concerns may focus on personal knowledge or\n experience, not just scientific principles. . . .\u201cThe factors identified\n in Daubert may or may not be pertinent in assessing reliability,\n\n\n -2-\n\f Case 1:05-cv-11547-RWZ Document 43 Filed 08/17/2007 Page 3 of 10\n\n\n\n depending on the nature of the issue, the expert\u2019s particular\n expertise, and the subject of his testimony.\u201d . . . \u201cWhether\n Daubert\u2019s specific factors are, or are not, reasonable measures of\n reliability in a particular case is a matter that the law grants the trial\n judge broad latitude to determine.\u201d\n\n In light of the applicable standards, this Court\u2019s \u201cgate-keeping\u201d function should be\n\ntailored to the nature of Mr. Mackowski\u2019s proposed testimony about police practices and policies\n\ninvolving training and supervision, and should focus on whether such testimony will aid the\n\njury\u2019s understanding of the case and its fact-finding role. For the reasons discussed below, his\n\ntestimony fully satisfies Daubert and its principles of reliability.\n\n B. Standards as to the Necessary Qualifications of an Expert Witness\n\n The \u201cgatekeeping function\u201d contemplated by the expert-witness qualification rule\n\nessentially requires the trial judge to assess whether it is \u201creasonably likely that the expert\n\npossesses specialized knowledge which will assist the trier better to understand a fact in issue.\u201d\n\nUnited States v. Alzanki, 54 F.3d 994, 1005 (1st Cir. 1995), citing United States v. Sepulveda, 15\n\nF.3d 1161, 1183 (1st Cir. 1993). As discussed below, Mr. Mackowski\u2019s bachelors and masters\n\ndegrees in criminal justice, his extensive training, background and twenty-two years experience\n\nas a police officer in both small and large police departments, as a police sergeant, as an\n\ninstructor and trainer of police departments throughout the world on, among other things, the\n\nrights of detainees, render him particularly well-qualified to testify in this case, based on his\n\nextensive experience and education in the field. Byrne v. Liquid Asphalt Sys., 250 F. Supp. 2d 84,\n\n89 (D.N.Y. 2003) (\u201c\u2018extensive practical experience\u2019\u201d in the relevant fields is, alone, sufficient to\n\nqualify an expert to testify under Daubert and the Federal Rules of Evidence\u201d); Bericochea-\n\nCartagena, 7 F. Supp.2d at 112-13 (admissibility of expert testimony based on experience and\n\n\n -3-\n\f Case 1:05-cv-11547-RWZ Document 43 Filed 08/17/2007 Page 4 of 10\n\n\n\ntraining in the field); Liriano v. Hobart Corp., 1996 U.S. Dist. LEXIS 864, 1996 WL 34147 * 3\n\n(S.D.N.Y. Jan. 30, 1996), subsequent opinion, 949 F. Supp. 171 (S.D.N.Y. 1996) (expert\n\ntestimony admissible because conclusions not predicated on untested scientific observations, but\n\nrather on personal experience or training).\n\n The defendant relies on Berry v. City of Detroit, 25 F. 3d 1342 (6th Cir. 1994) to support\n\nits assertion that Mr. Mackowski should be precluded from testifying based on his qualifications.\n\nThe defendant\u2019s reliance is misplaced. Berry has been repeatedly distinguished from cases such\n\nas the present, for reasons equally applicable here. For example, the Berry decision was\n\naddressed in Forbis v. City of Portland, supra, 2003 U.S. Dist. LEXIS 8957, 5-6. As explained\n\ntherein, the expert witness in Berry was permitted to testify, but his testimony was ultimately\n\nviewed as insufficient to support the jury\u2019s particular verdict. The witness had \u201cserved as a\n\ndeputy sheriff for two years without any formal training ... served as sheriff for four years,\n\nalthough \u2018not one question was asked during trial to elicit what [the witness] did or learned\n\nduring his four years as sheriff, a job for which the only necessary qualification is the ability to\n\nget elected ....\u201d The Forbis court held that:\n\n Berry is distinguishable on its facts. There is significantly more evidence in the\n record here concerning Waller\u2019s education, training and experience. He worked as\n a police officer in departments both larger and smaller than the Portland police\n department, and his opinion applies to a department with 150-160 officers, Expert\n Motion at 5, a much smaller group than the 5,000 officers apparently employed in\n the city of Detroit ... Waller is qualified to testify as an expert in this case; his\n qualifications may well not be ideal, but that is a matter that goes to the weight\n rather than the admissibility of his opinions, a matter that the defendants may\n address on cross-examination.\n\nForbis v. City of Portland, 2003 U.S. Dist. LEXIS 8957 (D. Me. 2003)\n\n\n\n\n -4-\n\f Case 1:05-cv-11547-RWZ Document 43 Filed 08/17/2007 Page 5 of 10\n\n\n\n The Circuit Court that decided Berry has, subsequently, also greatly limited its holding.\n\nIn the much more recent case of Champion v. Outlook Nashville, Inc., 380 F.3d 893, 908 (6th\n\nCir. 2004), the Court rejected the defendants\u2019 use of Berry as grounds to disqualify the plaintiff\u2019s\n\nexpert on police practices, stating that \u201cthe chief reason for our decision in Berry was that the\n\nexpert\u2019s credentials demonstrated that he had no specific expertise about police activities. He\n\nhad limited experience, given that he was appointed as a deputy sheriff, a post that required\n\nalmost no qualifications, and he had been fired twice from the position. Furthermore, he lacked\n\nany formal training or experience on the subject of criminology or police actions. Compounding\n\nthe problem was his ungrounded and methodologically flawed testimony regarding what effect\n\nthe City of Detroit\u2019s procedural shortcomings would have upon the future conduct of 5,000\n\npolice officers who would be confronted with a diverse and unpredictable array of situations in\n\nwhich force would be used.\u201d There are no such shortcomings with the qualifications or proposed\n\ntestimony of Mr. Mackowski.1\n\n II. Mr. Mackowski Is Well-Qualified And Has Specialized Knowledge\n That Will Aid The Jury\u2019s Understanding Of This Issues In This Case.\n\n As was expressly stated in great detail in plaintiff\u2019s Supplemental Answers to\n\nInterrogatories and Liability Expert Disclosures (Docket No. 30), Mr. Mackowski graduated from\n\nNortheastern University in 1984 with a Bachelor of Science degree in Criminal Justice and\n\nreceived his Masters in Criminal Justice in May 2001. During his years as a police officer and\n\n\n 1\n The T own\u2019s reliance on West by & Through Norris v. Waymire, 114 F.3d 646 , 652 (7th C ir. 199 7) is\nequally misplaced. That case involved an \u201caffidavit of the plaintiff's expert, a professor of criminal justice\u201d which\nwas \u201cad missible to show that the To wn had been neg ligent in its supervision of W aymire\u201d and was only inadmissible\n\u201cto show that this negligence constituted a municipal policy of refusing to protect teenage girls from the sexual\ndepredations of the Town\u2019s police officers\u201d because it was not only a legal conclusion but also one \u201cthat exceeded\nthe expert\u2019s professional competence, which was limited to describing sound professional standards and identifying\ndep artures from them.\u201d\n\n -5-\n\f Case 1:05-cv-11547-RWZ Document 43 Filed 08/17/2007 Page 6 of 10\n\n\n\ndetective, he received additional, ongoing law enforcement training in numerous programs through\n\nsuch law enforcement agencies as: the Federal Bureau of Investigation; the U.S. Attorney\n\nGeneral\u2019s Office; the Massachusetts Attorney General\u2019s Office; the Middlesex County District\n\nAttorney\u2019s Office; the Massachusetts Criminal Justice Training Council; Suffolk University in\n\nBoston and Oxford University in England. He has considerable training in such matters as the\n\nproper training for, and conduct of, protective custodies and the investigation of sexual assaults.\n\n Mr. Mackowski has been a police officer with the Medford Massachusetts Police\n\nDepartment for 22 years and has been a detective for seven of those years. During his career, he\n\nhas personally trained numerous officers with respect to, among many other things, standard\n\npractices in the treatment of female detainees by male officers and the proper conduct of male-to-\n\nfemale custody, interview and transport scenarios. Also, early in his law enforcement career, he\n\nserved as a Special Police Officer in Brattleboro, Vermont, as a Temporary Summer Officer in\n\nScituate, Massachusetts and as a Boston Gardens security officer. He also has a consulting firm\n\nthat specializes in law enforcement training, program consulting and private investigation services.\n\n Mr. Mackowski served as a consultant in assessing the law enforcement needs of Russia in\n\ncoping with burgeoning criminal activity following the collapse of communism. He coordinated\n\nthe first U.S. / Russia Police exchange program. In 1996, he was assigned to the U.S. Department\n\nof Justice in Washington, DC where he assessed the policing needs and development of short-term\n\nand long-term police training for the countries of the former Soviet Union. He has rendered\n\nopinions and given briefings on the status of law enforcement training needs of such countries to:\n\nthe Central Intelligence Agency; the Federal Bureau of Investigation; the United States Senate's\n\nPermanent Subcommittee on Investigation; and the United States State Department. In other\n\n\n\n -6-\n\f Case 1:05-cv-11547-RWZ Document 43 Filed 08/17/2007 Page 7 of 10\n\n\n\ncountries, he coordinated a police human rights training program for the United States Naval\n\nJustice Center of Newport, Rhode Island, for police officers from Papua New Guinea and Fiji. He\n\nserved as a staff instructor at the Haitian National Police Academy in Port-au-Prince, Haiti.\n\n Clearly, Mr. Mackowski would appear to have sufficient qualifications to also render\n\nopinions and testify as an expert in this case as well.\n\n III. Mr. Mackowski\u2019s Testimony Is Of Sufficient Reliability To Aid The Jury\n\n As was expressly stated in great detail in plaintiff\u2019s interrogatory answers and expert\n\ndisclosures, the matters upon which Mr. Mackowski is expected to testify are directly within his\n\nareas of expertise and are not matters about which the typical juror is expected to have much, if\n\nany, knowledge or experience. Such matters include, among other things: the scope and meaning\n\nof various types of \u201cprotective custody\u201d in the field of law enforcement; the difference between\n\nprotective custody under Mass. Gen. L. c. 111B and other forms of protective custody; the training,\n\npolicies and standard practices used by police departments to protect the rights of females in\n\ncustody; the scope and obligations of police officers assigned by their superiors in performing their\n\nlaw enforcement duties as well as the nature, scope and performance of officers covering police\n\nwork paid in part by a third-party; the proper assignment of officers to protective custody duties\n\nand their training and supervision with respect to such duties.\n\n More specifically, Mr. Mackowski is expected to testify that it is standard practice during\n\nan officer\u2019s training with a department to be informed that every effort should be made to minimize\n\na male officer\u2019s unsupervised contact with females in custody. He is expected to testify that it is\n\nstandard practice for departments to, for example, insist that only female officers or matrons\n\n(women who are not officers of the department but who are hired and trained to perform such tasks\n\n\n\n -7-\n\f Case 1:05-cv-11547-RWZ Document 43 Filed 08/17/2007 Page 8 of 10\n\n\n\nwhen needed) search females in custody, that only female officers or matrons observe or guard\n\nfemales in custody in unsupervised settings, and that a male officer transporting a female in\n\ncustody must follow detailed procedures specifically to avoid the opportunity for sexual abuse and\n\nallegations thereof. He is expected to explain that the primary purpose for such steps is to avoid, or\n\nto closely supervise and monitor, any male officer who has a female detainee in custody in order to\n\nminimize the risk of and opportunity for a sexual assault upon a female detainee as well as\n\nallegations of any such assault against the officer.\n\n Mr. Mackowski is expected to testify regarding the Town\u2019s purported defense that Summer\n\nOfficer Samson was actually performing a private \u201cdetail\u201d for the hospital when he sexually\n\nassaulted Ms. Varallo and that, for this reason, the Town is somehow not liable. Mr. Mackowski is\n\nexpected to explain to the jury that a police \u201cdetail\u201d typically identifies the method by which\n\ncertain police services are paid, and that it does not define the relationship between an officer and a\n\nperson in custody during, or as a result of, police services performed on that detail. He is expected\n\nto explain that, unlike typical calls for police assistance, a department may decline a call to conduct\n\na detail if the department does not have the ability or personnel needed to perform the job properly\n\nor safely. He is expected to testify that in performing details, officers are still required to follow all\n\ndepartmental polices and practices. And, he is expected to testify that it would generally be\n\ncontrary to well-established law enforcement standards to ignore police policies and practices\n\nrelied upon during usual police operations simply because the officer was being paid by a third\n\nparty. He is expected to testify that an officer serving a detail remains a law enforcement officer\n\nsubject to department regulations, practices and procedures regardless of who or which community\n\norganization is paying for the police department\u2019s services.\n\n\n\n -8-\n\f Case 1:05-cv-11547-RWZ Document 43 Filed 08/17/2007 Page 9 of 10\n\n\n\n Mr. Mackowski is expected to testify about how the conduct, acts and omissions of the\n\nTown\u2019s police department failed to meet such standards. He is expected to testify that, under the\n\ncircumstances presented in this case, the department should not have assigned a male, Summer\n\nPolice Officer with the training and experience level of James Samson to unsupervised protective\n\ncustody duty of a female detainee at the hospital. Mr. Mackowski is expected to testify that the\n\ndepartment\u2019s failure to have in place clear policies and practices concerning the assignment of male\n\nofficers to supervision of women in protective custody was contrary to standard practices and that\n\nthe Town was negligent in its failures to consider and anticipate the possibility of police sexual\n\nmisconduct. Such acts and omissions on the part of the Town and Samson\u2019s supervisors were\n\ncontrary to well-established police practices and, depending upon which testimony from the Town\n\nis believed, contrary to the Town\u2019s own practices. These are just some of the topics upon which\n\nMr. Mackowski has been designated to testify and for which he is eminently qualified.\n\n CONCLUSION\n\n As stated in Daubert, the defendant \u201cseems ... overly pessimistic about the capabilities of\n\nthe jury and of the adversary system generally. Vigorous cross-examination, presentation of\n\ncontrary evidence, and careful instruction on the burden of proof are the traditional and\n\nappropriate means of attacking shaky but admissible evidence.\u201d Daubert, 509 U.S. at 596. The\n\ndefendant is free to challenge the weight to be accorded Mr. Mackowski\u2019s testimony at trial. See\n\nPacamor Bearings, Inc. v. Minebea Co., Ltd., 918 F. Supp. 491 (D.N.H. 1996) (denying motion\n\nin limine to preclude plaintiff\u2019s proposed expert testimony where defendant\u2019s contentions\n\naffected weight and credibility of expert rather than admissibility of opinion). However, the\n\n\n\n\n -9-\n\f Case 1:05-cv-11547-RWZ Document 43 Filed 08/17/2007 Page 10 of 10\n\n\n\nTown has not established that Mr. Mackowski is unqualified or that his testimony will not aid the\n\njury. Therefore, its motion should be denied.\n\n Respectfully submitted,\n PLAINTIFF LAUREN VARALLO,\n By her attorneys,\n\n /s/ Bradley M. Henry\n\n _________________________________\n Bradley M. Henry, BBO No. 559501\n MEEHAN, BOYLE, BLACK & BOGDANOW, P.C.\n Two Center Plaza - Suite 600\n Boston, MA 02108-1922\n PH: 617-523-8300\n\n\n\n CERTIFICATE OF SERVICE\n\n I, Bradley M. Henry, certify that on August 17, 2007, I served this Plaintiff\u2019s Opposition to Defendant Town of\nNantucket\u2019s Motion In Limine, by electronic filing and by mailing an exact copy thereof, postage prepaid to all parties of record:\nDouglas I. Louison, Esq., Merrick, Louison & Costello, LLP, 67 Batterymarch St., Boston, MA 02110; Philip Slotnick, Esq.,\nShocket & Dockser, LLP, P.O. Box 2219, Natick, MA 01760.\n\n\n /s/ Bradley M. Henry\n\n\n Bradley M. Henry\n\n\n\n\n@PFDesktop\\::ODMA/M HODM A/IMANAGE;B OSLIB;1135 83;1 -10-\n\f","ocr_status":2,"date_upload":"2009-08-08T21:58:47-07:00","document_number":"43","attachment_number":null,"pacer_doc_id":"09501099104","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"Opposition to Motion","acms_document_guid":""}],"date_created":"2016-08-21T00:27:11.300610-07:00","date_modified":"2018-12-14T22:59:15.818861-08:00","date_filed":"2007-08-17","time_filed":null,"entry_number":43,"recap_sequence_number":"2007-08-17.002","pacer_sequence_number":null,"description":"Opposition re [39] MOTION in Limine to Preclude Plaintiff's Expert Paul J. Mackowski filed by Lauren Varallo. (Henry, Bradley)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/7346441/","id":7346441,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/4282952/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/5554708/","id":5554708,"tags":[],"absolute_url":"/docket/4282952/42/varallo-v-town-of-nantucket-massachusetts/","date_created":"2016-08-21T00:27:11.294831-07:00","date_modified":"2018-12-14T22:59:15.805004-08:00","sha1":"f94340bb3eb1f63ed3babcfeafe1eac489d76455","page_count":3,"file_size":15111,"filepath_local":"recap/gov.uscourts.mad.99138.42.0.pdf","filepath_ia":"https://www.archive.org/download/gov.uscourts.mad.99138/gov.uscourts.mad.99138.42.0.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":" Case 1:05-cv-11547-RWZ Document 42 Filed 08/17/2007 Page 1 of 3\n\n\n\n UNITED STATES DISTRICT COURT FOR\n THE DISTRICT OF MASSACHUSETTS\n\n\n LAUREN VARALLO,\n Plaintiff,\n v.\n CIVIL ACTION\n NO: 05-11547-RWZ\n TOWN OF NANTUCKET - POLICE\n DEPARTMENT and JAMES SAMSON,\n\n Defendants.\n\n PLAINTIFF\u2019S MOTION FOR RECONSIDERATION OF ENTRY OF\n PARTIAL SUMMARY JUDGMENT AND REQUEST FOR HEARING\n\n In accordance with the Court\u2019s instruction at the August 16, 2007 Pre-Trial Conference\n\nand its willingness to entertain a motion for reconsideration of entry of partial summary judgment\n\non certain claims against defendant Town of Nantucket, plaintiff hereby moves for\n\nreconsideration and requests oral argument.1 Specifically, plaintiffs request that the Court\n\nreconsider its dismissal of Count III of the plaintiff\u2019s Complaint which asserts that, like its\n\nSummer Officer James Samson, the Town may also be held liable for constitutional violations.2\n\n In its motion, the Town could not claim that there were no genuine issues of material fact\n\nto be tried to a jury or that the factual or legal allegations of Count III were insufficient or\n\nunsupported. Rather, the Town argued that no reasonable jury could find it liable for\n\nconstitutional violations with respect to the sexual assault upon the plaintiff by the Summer\n\nPolice Officer assigned to protective custody over her.\n\n The Court\u2019s ruling on Count III provides that \u201cneither the facts alleged nor the law upon\n\nwhich these claims are premised support the claims.\u201d However, facts and legal claims alleged in\n\n 1\n The ruling on the Town\u2019s motion for partial summary judgment entered without oral argument, so if the\nCourt gran ts plaintiff\u2019s request for argum ent at this juncture, it will be the first hearing on these issues.\n\n 2\n By limiting argument here to the Court\u2019s ruling on Count III, plaintiff does not mean to concede or\nwaive her position or rights as to other issues addressed in the Court\u2019s ruling.\n\f Case 1:05-cv-11547-RWZ Document 42 Filed 08/17/2007 Page 2 of 3\n\n\n\na Complaint are required only to fairly meet the requirements of notice pleading and are broadly\n\nconstrued. See McLaughlin v. Boston Harbor Cruise Lines, Inc., 419 F.3d 47, 50 (1st Cir. 2005)\n\n(claim should not be dismissed based on allegations of Complaint \u201cunless it appears beyond\n\ndoubt that the plaintiff can prove no set of facts in support of [her] claim ...\")\n\n As appears in the original submissions, facts developed during discovery and the reports\n\nof the liability experts, all of which underlie the plaintiff\u2019s legal claims, are in serious dispute.\n\nTestimony from the Town\u2019s own personnel is in conflict even over whether the Department had\n\nany policy that governed male-to-female protective custodies. As set forth in plaintiff\u2019s\n\nOpposition, the Town may be liable if a jury finds that its failure to have a policy that prevented\n\n(except, perhaps, in exigent circumstances) a male officer from standing guard for several hours\n\nalone in a room over a female detainee showed a deliberate indifference to her constitutional\n\nright to bodily integrity. City of Canton v. Harris, 489 U.S. 378 (1989); Young v. City of\n\nProvidence, 404 F.3d 4 (1st Cir. 2005). The Town would likewise be liable if a jury finds that\n\nthere was such a policy, but that the Department was deliberately indifferent because that policy\n\nwas inadequate or no one received training relating to it. Gibson v. City of Chicago, 910 F.2d\n\n1510, 1521 (7th Cir. 1990); Doe v. Calumet City, 754 F. Supp. 1221, 1222 (N.D. Ill. 1990)\n\n(male strip searches of female detainees).\n\n A jury could find deliberate indifference because one clearly predictable consequence of\n\nthe Department\u2019s failure was that, without safeguards, an officer might sexually abuse a female\n\nin custody. This is the very reason police departments across the country call for matrons or\n\nfemale officers to conduct searches of female detainees, why male officers are generally not to be\n\nalone in a cell with a female detainee, why male officers are strictly limited in lone transport of\n\n\n\n -2-\n\f Case 1:05-cv-11547-RWZ Document 42 Filed 08/17/2007 Page 3 of 3\n\n\n\nfemale detainees. The jury need not find that such misconduct would, or did, happen often, but\n\nonly that the Department reasonably should have known it was a sufficiently obvious danger to\n\nguard against with proper policies and training. The facts that underlie plaintiff\u2019s legal claims are\n\nsufficiently disputed that a reasonable jury could find that the Town was deliberately indifferent\n\nto her constitutional rights in assigning an inadequately trained, unsupervised and unmonitored\n\nSummer Officer to sit at her bedside for several hours during a protective custody.\n\n CONCLUSION AND REQUEST FOR HEARING\n\n WHEREFORE, plaintiff respectfully requests that the Court reconsider its ruling on the\n\nTown\u2019s motion for partial summary judgment and schedule a hearing on the issues prior to the\n\ncommencement of trial. No delay in trial should result from such reconsideration or the\n\nreinstitution of plaintiffs\u2019 constitutional claims against the Town since the evidence expected to\n\nbe present ed the jury is essentially the same as to plaintiff\u2019s ongoing negligence claims.\n\n Respectfully submitted,\n PLAINTIFF LAUREN VARALLO, By her attorneys,\n\n /s/ Bradley M. Henry\n _________________________________\n Bradley M. Henry, BBO No. 559501\n Suleyken D. Walker, BBO No. 654933\n MEEHAN, BOYLE, BLACK & BOGDANOW, P.C.\n Two Center Plaza - Suite 600\n Boston, MA 02108-1922\n PH: 617-523-8300\n\n CERTIFICATE OF SERVICE\n\n I, Bradley M. Henry, certify that on August 17, 2007, I served the foregoing Plaintiff\u2019s Motion for\nReconsideration of Entry of Partial Summary Judgment and Plaintiff\u2019s Request For Hearing, by electronic filing and\nby ma iling an exact co py there of, po stage p repaid to all p arties of record: Douglas I. Louison, Esq., M errick,\nLouison & C ostello, LLP, 67 B atterymarch St., B oston, M A 021 10 and P hilip Slotnick, Esq., Shocket & Do ckser,\nLLP, PO Box 2219, Natick, MA 01760.\n /s/ Bradley M. Henry\n ________________________________\n Bradley M . Henry\n\n\n@PFDesktop\\::ODMA/M HODM A/IMANAGE;B OSLIB;1135 77;1 -3-\n\f","ocr_status":2,"date_upload":"2009-08-08T22:00:24-07:00","document_number":"42","attachment_number":null,"pacer_doc_id":"09502265293","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"Motion for Reconsideration","acms_document_guid":""}],"date_created":"2016-08-21T00:27:11.289216-07:00","date_modified":"2018-12-14T22:59:15.784248-08:00","date_filed":"2007-08-17","time_filed":null,"entry_number":42,"recap_sequence_number":"2007-08-17.001","pacer_sequence_number":null,"description":"MOTION for Reconsideration re [35] Order on Motion for Partial Summary Judgment, and Request for Oral Argument by Lauren Varallo.(Henry, Bradley)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/7346440/","id":7346440,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/4282952/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/5554707/","id":5554707,"tags":[],"absolute_url":"/docket/4282952/41/varallo-v-town-of-nantucket-massachusetts/","date_created":"2016-08-21T00:27:11.281665-07:00","date_modified":"2018-12-14T22:59:15.771608-08:00","sha1":"bf3ee87ffbbcc83285a6b0fee000da5343d6130f","page_count":8,"file_size":29818,"filepath_local":"recap/gov.uscourts.mad.99138.41.0.pdf","filepath_ia":"https://www.archive.org/download/gov.uscourts.mad.99138/gov.uscourts.mad.99138.41.0.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":" Case 1:05-cv-11547-RWZ Document 41 Filed 08/16/2007 Page 1 of 8\n\n\n\n UNITED STATES DISTRICT COURT FOR\n THE DISTRICT OF MASSACHUSETTS\n\n\n\n\n LAUREN VARALLO,\n Plaintiff,\n v.\n CIVIL ACTION\n NO: 05-11547-RWZ\n TOWN OF NANTUCKET - POLICE\n DEPARTMENT and JAMES SAMSON,\n\n Defendants.\n\n\n\n\n JOINT PRE-TRIAL MEMORANDUM\n\n The parties hereby submit the following as their final pre-trial memorandum.\n\n1. TRIAL COUNSEL:\n\nFor the Plaintiff: Leo V. Boyle and/or Bradley M. Henry\n and Suleyken D. Walker\n MEEHAN, BOYLE, BLACK & BOGDANOW, P.C.\n Two Center Plaza - Suite 600\n Boston, MA 02108-1922\n PH: 617-523-8300\n\nDefendant Town of Nantucket: Douglas I. Louison and Regina M. Ryan\n MERRICK, LOUISON & COSTELLO, LLC\n 67 Batterymarch Street\n Boston, MA 02110\n Boston, MA 02108\n\nDefendant James Samson: Philip Slotnick\n Shocket & Dockser, LLP\n 6 Huron Drive - PO Box 2219\n Natick, MA 01760\n\n\n2. THE CASE WILL BE TRIED TO A JURY\n\f Case 1:05-cv-11547-RWZ Document 41 Filed 08/16/2007 Page 2 of 8\n\n\n\n\n3. CONCISE SUMMARY OF THE EVIDENCE:\n\n The plaintiff, Lauren Varallo, expects the evidence at trial to show that, on July 21, 2002,\nshe had attended a beach party with friends. After returning home to change, she and her mother\nargued about whether she would be allowed to go out again that evening because, against her\nparents wishes, Lauren had been drinking with her friends. Frustrated, Lauren locked herself in\nthe bathroom and superficially cut herself with a safety razor. Lauren\u2019s sister found her and\nalerted her parents who dialed 911. Lauren was taken in an ambulance to Nantucket Cottage\nHospital. Her parents followed separately.\n\n Plaintiff expects the evidence to show that, at the emergency room, Lauren\u2019s wrist was\nbandaged and that, although her doctors told her parents that Lauren was not suicidal, they felt\nshe should stay at the hospital overnight in a special care unit. There was some discussion about\nwhether Mrs. Varallo could stay with her daughter overnight, but she was told that a protective\ndetail would be assigned to watch over Lauren for the night and that she should not stay.\n\n Plaintiff expects the evidence to show that, a Nantucket Police Officer later identified as\nSummer Officer James A. Samson, arrived at the hospital sometime after midnight to watch over\nLauren. After seeing him in her room, Lauren fell asleep but repeatedly woke up during the night,\nchilled, to find the covers off. Each time she woke up, the police officer was either sitting in a\nchair near her bed or walking in and out of the room. Early in the morning of the 22nd, Lauren\nagain woke up and found the police officer next to her bed. This time her covers were off of her\nlegs, her gown was pulled up, her underwear was pushed to the side and the police officer\u2019s\nfingers were inside her. When the police officer became aware that Lauren was awake, he\nquickly pulled his fingers out of her and pretended to be watching television. Lauren\nimmediately got up and reported the incident to a nurse. The officer was removed from her\nroom.\n\n Plaintiff expects the evidence to show that, later in the morning, representatives of the\nNantucket Police Department arrived and indicated to Lauren that they would give her a day to\n\u201creally think about this before she made any accusations.\u201d They did not take a written statement.\nA nurse was present during the conversation. Mrs. Varallo, Lauren\u2019s mother, and a counselor\narrived in this time frame.\n\n Plaintiff expects the evidence to show that she was eventually discharged and went home\nwith her mother. Lauren thought about trying to go in to work, but she felt dirty and took a long,\nhot shower after which she stayed in her bedroom for the remainder of the day. However, the\nnext day, Tuesday, July 23, 2002, Lauren and her mother went to the Rape Crisis Center, which\nthen arranged for a sexual assault examination. The doctor indicated to Lauren that she should\nnot have been allowed to clean up or take a shower until the sexual assault examination had been\nconducted. A counselor then accompanied Mrs. Varallo and Lauren to the Nantucket Police\nDepartment to report the incident.\n\n\n -2-\n\f Case 1:05-cv-11547-RWZ Document 41 Filed 08/16/2007 Page 3 of 8\n\n\n\n\n Plaintiff expects the evidence to show that the Massachusetts State Police did investigate\nthe incident and that Officer Samson was charged with rape and indecent assault and battery on a\nperson over 14. On August 26, 2005, Samson pled guilty to indecent assault and battery on a\nperson over 14.\n\n Plaintiff expects the evidence to show that, despite uncertainty about the existence of a\npolicy or practice within the department, the Nantucket Police Department in fact had no proper\npolicy or practice in place that prohibited a male officer from guarding a female in protective\ncustody in an unsupervised setting. Plaintiff expects the expert evidence to show that even if a\nlocal hospital paid for certain police services, the police department was responsible for applying\nthe same policies and practices that it applies when its officers are performing on-duty tasks.\nPlaintiff expects that expert evidence will show that the Nantucket Police Department\u2019s failure to\nhave policies and practices concerning the assignment of male officers to supervision of women\nin protective custody was contrary to standard practices and was negligent and reckless in its\nfailure to anticipate the possibility of police sexual misconduct.\n\n Plaintiff expects the evidence to show that in the immediate aftermath of the assault, she\nsuffered fear, confusion and shock as well as a sense of violation, humiliation and oppression.\nWhen police officials then told her that she should think twice about pursuing her complaint\nagainst their fellow officer, she suffered an increased sense of fear, frustration and powerlessness.\nWhen the summer was over and she returned to college, the plaintiff found it was difficult to\nconcentrate on her studies and that she was increasingly anxious and depressed. Eventually, after\nexperiencing both academic, social and emotional difficulties, she withdrew from college for the\nsemester and returned home. The evidence will show that as a result of her depression, plaintiff\u2019s\nweight fluctuated dramatically and, when sleeping, she experienced loss of bladder control several\ntimes. Plaintiff expects the expert evidence to show that she will likely continue to suffer varying\ndegrees of fear, alienation and distrust in her relationships with males and with persons in positions\nof authority such as police officers.\n\n DEFENDANT TOWN OF NANTUCKET:\n\n The defendant, Town of Nantucket, expects the evidence to show that on July 21, 2002,\nthe plaintiff, Lauren Varallo, was transported to the Nantucket Cottage Hospital by ambulance\nfollowing a 911 call by her parents. The plaintiff had inflicted wounds to herself while at home.\nThe 911 call was handled by the Town of Nantucket dispatch and the Fire Department\nambulance was dispatched to the plaintiff\u2019s residence.\n\n The plaintiff was admitted by hospital staff for observation for intoxication and for major\ndepression.. Admission time was approximately 12:30 a.m. Nursing personnel from Nantucket\nCottage Hospital contacted the Nantucket Police Department on two occasions to arrange for a\npolice detail to assist in the observation of the plaintiff at the hospital.\n\n\n\n -3-\n\f Case 1:05-cv-11547-RWZ Document 41 Filed 08/16/2007 Page 4 of 8\n\n\n\n Then summer police officer, James Samson, came into the station and volunteered to fill\nthe detail assignment at the hospital. He arrived at the hospital at about 2:30 a.m.\n\n The plaintiff was never placed in protective custody by the Nantucket Police Department\nbut, was a patient of the hospital. The defendant, James Samson was never informed that the\nplaintiff was in protective custody but rather, that she [plaintiff] was under a watch because she\ntried to harm herself.\n\n The defendant, James Samson had received greater training than was generally required\nto hold the position as a summer reserve police officer. Samson had attended the Massachusetts\nReserve Officer Criminal Justice Training Council Academy. Prior to hiring, candidates for\nsummer reserve positions are interviewed, submit an application and criminal history checks are\nconducted.\n\n The defendant, James Samson, was a productive officer during his tenure with no\ncriminal history and had completed the Reserve Officer Criminal Justice Training Council\nAcademy.\n\n\n4. STATEMENT OF STIPULATED FACTS:\n\n A. Submitted by the Plaintiff as Undisputed and Subject to Stipulation\n\n a. The plaintiff was transported to Nantucket Cottage Hospital on July 21,\n 2002, following a 911 call by her parents. She was held for overnight for\n observation.\n\n b. The Nantucket Cottage Hospital contacted the Nantucket Police\n Department to arrange for a police officer to come to the hospital.\n\n c. Special Police Officer James Samson arrived at the hospital some time\n after midnight on July 22, 2002 and sat watch in the plaintiff\u2019s room\n through the early morning hours.\n\n d. On July 22, 2002, plaintiff alleged that Officer Samson had sexually\n assaulted her while she was in bed at the hospital.\n\n e. The Massachusetts State Police investigated the plaintiff\u2019s allegations, and\n James Samson pled guilty to indecent assault and battery on a person over\n 14 on August 26, 2005.\n\n\n\n\n -4-\n\f Case 1:05-cv-11547-RWZ Document 41 Filed 08/16/2007 Page 5 of 8\n\n\n\n B. Submitted by the Defendant Town Undisputed and Subject to Stipulation\n\n a. The plaintiff was transported to Nantucket Hospital on July 21, 2002\n where she was held for observation.\n\n5. CONTESTED ISSUES OF FACT:\n\n A. Whether the Town of Nantucket was negligent on July 21, 2002. (submitted by\n Defendant Town - plaintiff disputes date limitation and characterization).\n\n\n B. Whether the Town of Nantucket Police Department was negligent with respect to\n the assignment of its Summer Officer James Samson to the protective custody of\n plaintiff Lauren Varallo. (Submitted by the plaintiff.)\n\n C. Whether the Town of Nantucket Police Department was negligent with respect to\n the failure to properly train, instruct or supervise its Summer Officer James\n Samson in the proper conduct of a protective custody prior to assigning him to the\n protection of plaintiff Lauren Varallo. (Submitted by the plaintiff.)\n\n D. Whether the Town of Nantucket Police Department was negligent in failing to\n have in place a practice or policy that prohibited, absent exigent circumstances, a\n male police officer from being assigned to watch a woman in police custody in an\n unsupervised setting such as that presented in July 2002 in this case. (Submitted\n by the plaintiff.)\n\n E. Whether the alleged negligence on behalf of the Town of Nantucket was the\n proximate cause of the plaintiff\u2019s injuries? (submitted by Defendant Town -\n plaintiff disputes date limitation and characterization).\n\n F. Whether there was a causal link between the Department\u2019s conduct, acts and/or\n omissions and the plaintiff\u2019s injuries. (Submitted by the plaintiff.)\n\n G. Whether Nantucket Police Department Summer Officer James Samson\u2019s indecent\n assault and battery violated the plaintiff Lauren Varallo\u2019s constitutional rights.\n (Submitted by the plaintiff.)\n\n H. Whether there was a causal link between defendant Samson\u2019s conduct and the\n plaintiff\u2019s injuries. (Submitted by the plaintiff.)\n\n6. JURISDICTIONAL QUESTIONS: None.\n\n\n\n\n -5-\n\f Case 1:05-cv-11547-RWZ Document 41 Filed 08/16/2007 Page 6 of 8\n\n\n\n7. ISSUES OF LAW:\n\n A. The defendant Town\u2019s motion for partial summary judgment having been recently\n allowed by the Court, the plaintiff\u2019s remaining claims for trial are those for\n constitutional violations on the part of the Town\u2019s Summer Officer James A.\n Samson, claims of negligence on the part of the Town and any damages to which\n the plaintiff is entitled.\n\n B. The Town argues that the defendant, Samson, who previously pled guilty to a\n criminal charge arising out of the underlying incident has subsequently, repudiated\n\n\n his plea, asserting at his deposition, that he in fact did not commit the underlying\n act. Plaintiff considers defendant Samson\u2019s guilt to have been established by his\n detailed guilty plea under oath in open Court, that is plea is res judicata and that\n his subsequent deposition testimony is collaterally estopped and underscores his\n complete lack of credibility.\n\n C. Whether the Town of Nantucket is immune from liability pursuant to G.L . 258,\n the Massachusetts Tort Claims Act.\n\n8. AMENDMENTS TO PLEADINGS: Defendant James Samson will seek leave to\n amend his Answer by dismissing the cross-claim against the Town of Nantucket Police\n Department.\n\n9. ADDITIONAL MATTERS The defendant, Town of Nantucket has filed a Motion\n to Preclude the Plaintiff\u2019s Expert from Testifying at Trial. Plaintiff contends that the\n motion is untimely and without merit and will oppose as provided for under the rules of\n civil procedure.\n\n10. PROBABLE LENGTH OF TRIAL: 5 days.\n\n11. TRIAL WITNESSES (factual and expert):\n\n PLAINTIFF:\n\na. Lauren Varallo\nb. Carol Varallo\nc. James Samson\nd. Christine Ladner\ne. Randolph Norris\nf. Charles Gibson\ng. John Welch\nh. Suzanne Gale\n\n -6-\n\f Case 1:05-cv-11547-RWZ Document 41 Filed 08/16/2007 Page 7 of 8\n\n\n\ni. William Burke\nj. Kimberly Squire\nk. Paul Mackowski (liability expert, report attached)\nl. Anne Burgess (damages expert, report attached)\nm. any witness listed by either of the defendants, whether or not actually called\n\n DEFENDANT: TOWN OF NANTUCKET\n\na. Kristie Stolgitis.\nb. Jerome Mack, Det,. Nantucket Police Department.\nc. Jerry Adams, Det, Nantucket Police Department.\nd. James Samson.\ne. Jane Bonvini.\nf. Christine Ladner, Sgt., Nantucket Police Department.\ng. Randolph Norris (Ret) Chief, Nantucket Police Department.\nh. Charles Gibson, Deputy Chief, Nantucket Police Department.\ni. C. Elizabeth Gibson, Town of Nantucket.\nj. John F. McGrady, Jr., Deputy Chief, Nantucket Police Department.\nk. Jill Kennedy.\nl. Martha Greenfield.\nm. Nancy Luchini.\nn. Melissa Mullen.\no. f/n/u Hinson, M.D.\np. Kimberly A. Squier, Trooper, Massachusetts State Police.\nq. William J. Burke, Sgt.,Massachusetts State Police.\nr. Charles A. Morano, Esquire.\ns. Philip A. Tracy, Jr., Esquire.\nt John Muhr, Nantucket Police Department.\nu. John Welch, Nantucket Police Department.\nv. Suzanne Gale, Nantucket Police Department.\n\n DEFENDANT: JAMES SAMSON\n\na. James Samson\nb. Lauren Varallo\nc. Jill Kennedy\nd. Melissa Mullen\n\n12. DEPOSITION / DISCOVERY EVIDENCE TO BE OFFERED AT TRIAL:\n\n Depending upon the actual date of expected testimony at trial, the parties anticipate all\n testimony to be presented live, rather than by deposition or by audio-visual means.\n Should that change, the parties will immediately inform the court.\n\n\n -7-\n\f Case 1:05-cv-11547-RWZ Document 41 Filed 08/16/2007 Page 8 of 8\n\n\n\n13. VOIR DIRE/JURY INSTRUCTIONS:\n\n Counsel for each party will file their respective voir dire and jury instructions under\n separate cover.\n\n14. MOTIONS IN LIMINE: Motion to Preclude Plaintiff\u2019s Expert Witness. Plaintiff\n contends that the motion is untimely and without merit and will oppose as provided for\n under the rules of civil procedure.\n\n\nPlaintiff LAUREN VARALLO, Defendant TOWN OF NANTUCKET,\nBy her attorneys, By its attorney,\n\n /s/ Regina M. Ryan (signed by assent\n/s/ Bradley M. Henry based on Town\u2019s submission, August\n 16, 2007)\n___________________________________ _______________________________\nPeter J. Black (BBO # 044407) Douglas I. Louison (BBO # 545191)\nBradley M. Henry (BBO # 559501) Regina M. Ryan\nMEEHAN, BOYLE, BLACK & BOGDANOW, P.C. MERRICK, LOUISON & COSTELLO\nTwo Center Plaza, Suite 600 67 Batterymarch Street\nBoston, MA 02108 Boston, MA 02110\n(617) 523-8300 (617) 439-0305\n\n Defendant JAMES SAMSON\n By his attorney,\n\n /s/ Philip Slotnick (signed by assent\n to BMH on August 16, 2007)\n _______________________________\n Philip Slotnick (BBO # 466960)\n SHOCKER & DOCKSER, LLP\n 6 Huron Drive, P.O. Box 2219\n Natick, MA 01760\n (508) 653-0160\n\n\n\n\n@PFDesktop\\::ODMA/M HODM A/IMANAGE;B OSLIB;1128 63;1 -8-\n\f","ocr_status":2,"date_upload":"2009-08-08T21:59:13-07:00","document_number":"41","attachment_number":null,"pacer_doc_id":"09502263957","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"Pretrial Memorandum","acms_document_guid":""}],"date_created":"2016-08-21T00:27:11.274528-07:00","date_modified":"2018-12-14T22:59:15.750842-08:00","date_filed":"2007-08-16","time_filed":null,"entry_number":41,"recap_sequence_number":"2007-08-16.001","pacer_sequence_number":null,"description":"PRETRIAL MEMORANDUM by Lauren Varallo. (Henry, Bradley)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/7346439/","id":7346439,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/4282952/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/5554706/","id":5554706,"tags":[],"absolute_url":"/docket/4282952/40/varallo-v-town-of-nantucket-massachusetts/","date_created":"2016-08-21T00:27:11.267001-07:00","date_modified":"2018-12-14T22:59:15.737267-08:00","sha1":"b6435ce86f4385f3afdf965079995e8f5e5dc578","page_count":7,"file_size":23751,"filepath_local":"recap/gov.uscourts.mad.99138.40.0.pdf","filepath_ia":"https://www.archive.org/download/gov.uscourts.mad.99138/gov.uscourts.mad.99138.40.0.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":" Case 1:05-cv-11547-RWZ Document 40 Filed 08/14/2007 Page 1 of 7\n\n\n\n UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF MASSACHUSETTS\n\n DOCKET NO. 05-111547RWZ\n\nLAUREN VARALLO\n Plaintiff,\n\nv.\n\nTOWN OF NANTUCKET POLICE\nDEPARTMENT and JAMES SAMSON,\n Defendant,\n\n\n DEFENDANTS MEMORANDUM OF LAW IN SUPPORT OF IT\u2019S MOTION IN\n LIMINE TO PRECLUDE PLAINTIFF\u2019S EXPERT PAUL J. MACKOWSKI\n\n The defendant, Town of Nantucket requests that this Court preclude plaintiff\u2019s expert\n\nwitness, Paul J. Mackowski from testifying at trial.\n\n The plaintiff has identified Paul J. Macowski as her liability expert. Specifically, the\n\nplaintiff\u2019s expert report states that Mr. Macowski will opine (1) to the meaning of \u201cprotective\n\ncustody\u201d in the field of law enforcement (Please see plaintiff\u2019s liability disclosure.) ; (2) to the\n\ntraining, policies, procedures, customs and practices used by police departments to protect the\n\nrights of females in protective custody on the one hand, and individual police officers and the\n\ndepartments on the other hand (Please see plaintiff\u2019s liability disclosure.) ; (3) to police work\n\nthat is at least in part paid for by a third-party, sometimes referred to as \u201cdetails\u201d. Specifically,\n\nthat details do not define the relationship between an officer and a person in custody during or as\n\na result of police services performed on the detail and that a department may decline a call to\n\ntake a detail. (Please see plaintiff\u2019s liability disclosure.) ; (4) to the law enforcement\n\ncommunity\u2019s awareness of the problem of sexual misconduct by police officers (Please see\n\n\n 1\n\f Case 1:05-cv-11547-RWZ Document 40 Filed 08/14/2007 Page 2 of 7\n\n\n\nplaintiff\u2019s liability disclosure.) ; (5) to the Nantucket Police Department\u2019s failure to have in place\n\nclear policies and practices concerning the assignment of male officers to supervision of women\n\nin protective custody and how it is contrary to standard practices and is negligent and reckless in\n\nits failure to anticipate the possibility of police sexual misconduct; (6) to the Nantucket Police\n\nDepartment\u2019s assignment of Officer Samson to protective custody of a young, intoxicated\n\nwoman in an unsupervised setting, and its failure to follow the most basic procedures for\n\ninvestigating an allegation of sexual assault (Please see plaintiff\u2019s liability disclosure.); and\n\nlastly, (7) to how Sergeant Ladner should have immediately given formal notice to the\n\nDepartment\u2019s designated \u201crape officer\u201d once she learned of the allegations against Samson\n\n(Please see plaintiff\u2019s liability disclosure.)\n\n Mr. Macowski was a Medford, Massachusetts police officer for 22 years. He also has a\n\nconsulting firm, The M Group, that specializes in law enforcement training, program consulting\n\nand private investigation services. Id.\n\n Mr. Mackowski does not identify any cases that he has previously testified to as an expert\n\nnor does he identify any articles or publications that he has written regarding these particular\n\nareas of law enforcement in the Plaintiff\u2019s Expert Disclosure. Id.\n\nI. ARGUMENT\n\n A. THE EXPERT TESTIMONY OF PAUL J. MACKOWSKI MUST BE\n EXCLUDED AS THE PROFFERED TESTIMONY IS NOT ADMISSIBLE\n AS SCIENTIFIC OR TECHNICAL EVIDENCE UNDER FRE 702, Daubert\n v. Merrill Dow Pharmaceuticals, Inc. and Kumho Tire Co., Ltd. v. Carmichael\n\n In determining whether or not the plaintiff\u2019s expert, Paul J. Mackowski should be\n\npermitted to testify concerning the above identified topics, this Court must apply FRE 702 as\n\nwell as the Daubert and Kumho standards. Saia v. Sears Roebuck and Co., Inc. et. al., 47\n\n 2\n\f Case 1:05-cv-11547-RWZ Document 40 Filed 08/14/2007 Page 3 of 7\n\n\n\nF.Supp. 2nd 141(D.Mass. 1999). As the Court is aware, FRE 702 provides:\n\n If scientific, technical, or other specialized knowledge will assist the trier of fact to\n understand the evidence or to determine a fact in issue, a witness qualified as an expert\n by knowledge, skill, experience, training or education, may testify thereto in the form of\n an opinion or otherwise. FRE 702\n\n The Supreme Court in Daubert established a two-part test, requiring the Court to\n\ndetermine whether the proffered expert evidence is both reliable and relevant. Daubert v. Merrill\n\nDow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The test for reliability of the evidence\n\nparticularly in scientific fields required a four part inquiry: (1) can the theory or technique at\n\nissue be tested: (2) has the theory or technique been subject to peer review; (3) does the theory or\n\ntechnique have a known error rate; and (4) has the theory or technique been generally accepted\n\nin the relevant scientific community. Daubert 509 U.S. at 591-95. Relevance the Court stated,\n\nrequires a determination as to whether the evidence will assist the jury in determining the\n\nexistence of any fact of consequence. Id. at 591-593. Relevancy and reliability still must be\n\nfactored against FRE 403's balancing of probative value versus prejudice, confusion of the\n\nissues, misleading to the jury, undue delay, waste of time or needless presentation of cumulative\n\nevidence. FRE 403.\n\n The Supreme Court in Kumho Tire Co., Ltd. v. Carmichael, 199 S.Ct. 1167, 1171 (1999),\n\nconcluded that \u201cDaubert\u2019s general holding, setting forth the trial judge\u2019s general \u2018gatekeeping\u2019\n\nobligation, applies not only to testimony based on \u2018scientific\u2019 knowledge, but also to testimony\n\nbased on \u2018technical\u2019 and \u2018other specialized\u2019 knowledge.\u201d Saia v. Sears Roebuck and Co., Inc.\n\net. al., 47 F.Supp. 2nd 141(D.Mass. 1999) quoting Kumho Tire Co., Ltd. v. Carmichael, 199\n\nS.Ct. 1167, 1171 (1999). See also Ed Peters Jewelry Co.,Inc. V. C & J Jewelry Co.,Inc., 124\n\nF.3d 252 (1st Cir. 1997) (expert testimony must involve specialized knowledge); Schubert v.\n\n 3\n\f Case 1:05-cv-11547-RWZ Document 40 Filed 08/14/2007 Page 4 of 7\n\n\n\nNissan Motor Corp., 148 F.3d 25 (1st Cir. 1998) (Expert opinion must be based on factually\n\nadequate foundation for the testimony); Oglesby v. General Motors Corp., 190 F.3d 244 (4th\n\nCir.1999) (Court must determine that proposed expert testimony is reliable and relevant); United\n\nStates v. Hines, 55 F.Supp.2d 62(D.Mass. 1999) .\n\n As the Supreme Court has indicated in Daubert and Kumho, the ability to verify a\n\nhypothesis is at the core of a court\u2019s inquiry. Saia v. Sears Roebuck and Co., Inc. et. al., 47\n\nF.Supp. 2nd 141(D.Mass. 1999). In the present case, this is exactly the problem that the\n\ntestimony of Paul J. Mackowski presents. By his testimony, Mr. Mackowski will be offering\n\npure conjecture which is not based on reliable facts or data. His opinion does not disclose and\n\nreflect the reliability of the information upon which he basis his conclusions. Nor do his\n\nopinions sufficiently demonstrate that the materials upon which he relies on meet the standards\n\napplied by experts in his specific area. SMS Systems Maintenance Services, Inc. v. Digital\n\nEquipment Corp., 188 F.3d 11 (1st Cir. 1999). In fact, his report cites no\n\n Mr. Mackowski\u2019s subjective testimony or theories are entirely speculative and not\n\ncapable of (1) being tested: (2) being subjected to peer review; and (3) being accepted in the\n\nrelevant scientific or technical community. To allow Mr. Mackowski to testify as to an\n\nunreliable and speculative subject is contrary to the principles espoused in Daubert/Kumho.\n\n Further, Mr. Mackowski\u2019s testimony will not assist the jury in understanding the\n\nevidence or determining any facts in issue. Any determination of whether the Town of\n\nNantucket was negligent can be calculated independently by the jury without the assistance and\n\nconfusion of Mr. Mackowski\u2019s proffered testimony. The probative value of his testimony is\n\neasily outweighed by the balancing factors under FRE 403. Accordingly, any testimony by Mr.\n\n\n 4\n\f Case 1:05-cv-11547-RWZ Document 40 Filed 08/14/2007 Page 5 of 7\n\n\n\nMackowski as outlined in Plaintiff\u2019s expert disclosure.\n\n 2. The Plaintiff\u2019s Expert Is Not Qualified to Testify as an Expert.\n\n Next, the defendant, Town of Nantucket asserts that the plaintiff\u2019s expert is not qualified\n\nto testify as an expert in the specific areas of law enforcement he has identified.\n\n In Berry v. City of Detroit, 25 F.3d 1342 (1994), the Court held that a City police officer\n\nlacked qualifications to testify as an expert witness based on the fact that he had not testified to\n\nhaving made personal observations regarding disciplinary issues. The issue with regard to expert\n\ntestimony is not qualifications of witness in abstract, but whether those qualifications provide\n\nfoundation for a witness to answer specific questions. Id.\n\n In a similar case, West by and through Norris v. Waymire, 114 F.3d 646 (1997) the Court\n\nprecluded witness testimony to show that the negligence of a municipality in supervising its\n\nofficers constituted a municipal policy of refusing to protect teenage girls from sexual\n\ndepredations of the Town\u2019s police officers.\n\n Mr. Mackowski intends to testify to issues including but not limited to protective\n\ncustody, police details, municipal policies and procedures, and knowledge in the police\n\ncommunity regarding sexual misconduct amongst police officers.\n\n The defendant, Town of Nantucket asserts that Paul J. Macowski lacks the expertise in\n\nthe area of his testimony. Mr. Mackowski was a patrolman for the City of Medford for 22 years.\n\nThere is nothing in his expert report that states that he has been a police academy instructor, that\n\nhe has authored any articles or publications, that he has attended or taught any seminars or that\n\nhe even has first hand knowledge of the very specific topics identified in the expert disclosure.\n\nLastly, there is nothing in his expert report which indicates that he has ever been qualified as an\n\n\n 5\n\f Case 1:05-cv-11547-RWZ Document 40 Filed 08/14/2007 Page 6 of 7\n\n\n\nexpert witness or ever provided expert testimony.\n\n Mr. Mackowski speculates on the opinions he offers and does not provide any basis for\n\nthese opinions. His opinions do not assist the jury in teaching ultimate fact determinations.\n\n Accordingly, Mr. Mackowski is not qualified to testify or opine to the areas of law\n\nenforcement as outlined in the plaintiff\u2019s expert disclosure.\n\nIII. CONCLUSION\n\n For the reasons outlined above, the defendants respectfully request that his motion in\n\nlimine to exclude the testimony of Mr. Mackowski be allowed based on Daubert/Kumho and the\n\nfact that he is not qualified to testify.\n Defendant, TOWN OF NANTUCKET,\n By its attorney,\n\n\n /s/ Regina M. Ryan\n Douglas I. Louison (BBO # 545191)\n Regina M. Ryan (BBO #565246)\n MERRICK, LOUISON & COSTELLO\n 67 Batterymarch Street\n Boston, MA 02110\n (617) 439-0305\n\n\n\n\n CERTIFICATE OF SERVICE\n\n I, Regina M. Ryan, hereby certify that on the 14th day of August, 2007, I served the\nforegoing by electronic filing, directed to Bradley Henry, Esquire, Meehan, Boyle, Black &\nFitzgerald, PC, Two Center Plaza, Suite 600, Boston, MA 02108 and Philip Slotnick, Esquire,\nShocket & Dockser, LLP 6 Huron Drive, PO Box 2219, Natick, MA 01760.\n\n\n /s/ Regina M. Ryan\n\n 6\n\fCase 1:05-cv-11547-RWZ Document 40 Filed 08/14/2007 Page 7 of 7\n\n\n\n Regina M. Ryan\n\n\n\n\n 7\n\f","ocr_status":2,"date_upload":"2009-08-08T22:00:30-07:00","document_number":"40","attachment_number":null,"pacer_doc_id":"09501076335","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"Memorandum in Support of Motion","acms_document_guid":""}],"date_created":"2016-08-21T00:27:11.259754-07:00","date_modified":"2018-12-14T22:59:15.701603-08:00","date_filed":"2007-08-14","time_filed":null,"entry_number":40,"recap_sequence_number":"2007-08-14.004","pacer_sequence_number":null,"description":"MEMORANDUM in Support re [39] MOTION in Limine to Preclude Plaintiff's Expert Paul J. Mackowski filed by Town of Nantucket, Massachusetts. (Ryan, Regina)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/7346438/","id":7346438,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/4282952/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/5554705/","id":5554705,"tags":[],"absolute_url":"/docket/4282952/39/varallo-v-town-of-nantucket-massachusetts/","date_created":"2016-08-21T00:27:11.253382-07:00","date_modified":"2018-12-14T22:59:15.689187-08:00","sha1":"c9b799ea4be59057e833acd1af712cf232b7f11b","page_count":3,"file_size":11313,"filepath_local":"recap/gov.uscourts.mad.99138.39.0.pdf","filepath_ia":"https://www.archive.org/download/gov.uscourts.mad.99138/gov.uscourts.mad.99138.39.0.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":" Case 1:05-cv-11547-RWZ Document 39 Filed 08/14/2007 Page 1 of 3\n\n\n\n\n UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF MASSACHUSETTS\n\n DOCKET NO. 05-111547RWZ\n\nLAUREN VARALLO\n Plaintiff,\n\nv.\n\nTOWN OF NANTUCKET POLICE\nDEPARTMENT and JAMES SAMSON,\n Defendant,\n\n\nMOTION IN LIMINE TO PRECLUDE PLAINTIFF\u2019S EXPERT PAUL J. MACKOWSKI\n\n The defendants, move in limine to preclude the testimony at trial of Paul J. Mackowski,\n\nan expert named by the plaintiff. In support thereof, the defendants rely on the attached\n\nmemorandum of law.\n\n Defendant, TOWN OF NANTUCKET,\n By its attorney,\n\n\n /s/ Regina M. Ryan\n Douglas I. Louison (BBO # 545191)\n Regina M. Ryan (BBO #565246)\n MERRICK, LOUISON & COSTELLO\n 67 Batterymarch Street\n Boston, MA 02110\n (617) 439-0305\n\n\n\n\n CERTIFICATE OF SERVICE\n\n 1\n\f Case 1:05-cv-11547-RWZ Document 39 Filed 08/14/2007 Page 2 of 3\n\n\n\n\n I, Regina M. Ryan, hereby certify that on the 14th day of August, 2007, I served the\nforegoing by electronic filing, directed to Bradley Henry, Esquire, Meehan, Boyle, Black &\nFitzgerald, PC, Two Center Plaza, Suite 600, Boston, MA 02108 and Philip Slotnick, Esquire,\nShocket & Dockser, LLP 6 Huron Drive, PO Box 2219, Natick, MA 01760.\n\n\n /s/ Regina M. Ryan\n Regina M. Ryan\n\n\n\n\n 2\n\fCase 1:05-cv-11547-RWZ Document 39 Filed 08/14/2007 Page 3 of 3\n\n\n\n\n 3\n\f","ocr_status":2,"date_upload":"2009-08-08T21:58:21-07:00","document_number":"39","attachment_number":null,"pacer_doc_id":"09502259414","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"Motion in Limine","acms_document_guid":""}],"date_created":"2016-08-21T00:27:11.247975-07:00","date_modified":"2018-12-14T22:59:15.670882-08:00","date_filed":"2007-08-14","time_filed":null,"entry_number":39,"recap_sequence_number":"2007-08-14.003","pacer_sequence_number":null,"description":"MOTION in Limine to Preclude Plaintiff's Expert Paul J. Mackowski by Town of Nantucket, Massachusetts.(Ryan, Regina)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/7346437/","id":7346437,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/4282952/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/5554704/","id":5554704,"tags":[],"absolute_url":"/docket/4282952/38/varallo-v-town-of-nantucket-massachusetts/","date_created":"2016-08-21T00:27:11.242277-07:00","date_modified":"2018-12-14T22:59:15.657269-08:00","sha1":"d8bf42d93658cd5c93503a5c04e59be22a45c78a","page_count":5,"file_size":16348,"filepath_local":"recap/gov.uscourts.mad.99138.38.0.pdf","filepath_ia":"https://www.archive.org/download/gov.uscourts.mad.99138/gov.uscourts.mad.99138.38.0.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":" Case 1:05-cv-11547-RWZ Document 38 Filed 08/14/2007 Page 1 of 5\n\n\n\n UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF MASSACHUSETTS\n\n DOCKET NO. 05-11547-RWZ\n\nLAUREN VARALLO,\n Plaintiff,\n\nv.\n\nTOWN OF NANTUCKET POLICE\nDEPARTMENT and JAMES SAMSON,\n Defendants\n\n TOWN OF NANTUCKET\u2019S PRE-TRIAL MEMORANDUM\n\n The Town of Nantucket submits the following as its final pre-trial memorandum.\n\n1. TRIAL COUNSEL:\n\n Defendant: Plaintiff:\n Town of Nantucket\n\n Douglas I. Louison Leo Boyle\n Regina M. Ryan Bradley Henry\n Merrick, Louison & Costello, LLC. Meehan, Boyle, Black & Bogdanow,\n 67 Batterymarch Street 2 Center Plaza, Suite 600\n Boston, MA 02110 Boston, MA 02108\n\n\n Defendant, James Samson\n\n Philip Slotnick, Esquire\n Shocket & Dockser, LLP\n 6 Huron Drive\n PO Box 2219\n Natick, MA 01760\n\n\n\n\n2. THE CASE WILL BE TRIED BY A JURY:\n\n -1-\n\f Case 1:05-cv-11547-RWZ Document 38 Filed 08/14/2007 Page 2 of 5\n\n\n\n\n3. CONCISE SUMMARY OF THE EVIDENCE:\n\n DEFENDANT TOWN OF NANTUCKET:\n\n The defendant, Town of Nantucket, expects the evidence to show that on July 21, 2002,\nthe plaintiff, Lauren Varallo, was transported to the Nantucket Cottage Hospital by ambulance\nfollowing a 911 call by her parents. The plaintiff had inflicted wounds to herself while at home.\nThe 911 call was handled by the Town of Nantucket dispatch and the Fire Department\nambulance was dispatched to the plaintiff\u2019s residence.\n\n The plaintiff was admitted by hospital staff for observation for intoxication and for major\ndepression.. Admission time was approximately 12:30 a.m. Nursing personnel from Nantucket\nCottage Hospital contacted the Nantucket Police Department on two occasions to arrange for a\npolice detail to assist in the observation of the plaintiff at the hospital.\n\n Then summer police officer, James Samson, came into the station and volunteered to fill\nthe detail assignment at the hospital. He arrived at the hospital at about 2:30 a.m.\n\n The plaintiff was never placed in protective custody by the Nantucket Police Department\nbut, was a patient of the hospital. The defendant, James Samson was never informed that the\nplaintiff was in protective custody but rather, that she [plaintiff] was under a watch because she\ntried to harm herself.\n\n The defendant, James Samson had received greater training than was generally required\nto hold the position as a summer reserve police officer. Samson had attended the Massachusetts\nReserve Officer Criminal Justice Training Council Academy. Prior to hiring, candidates for\nsummer reserve positions are interviewed, submit an application and criminal history checks are\nconducted.\n\n The defendant, James Samson, was a productive officer during his tenure with no\ncriminal history and had completed the Reserve Officer Criminal Justice Training Council\nAcademy.\n\n4. STATEMENT OF STIPULATED FACTS:\n\n The plaintiff was transported to Nantucket Hospital on July 21, 2002 where she was held\nfor observation.\n\n\n\n5. CONTESTED ISSUES OF FACT:\n\n Whether the Town of Nantucket was negligent on July 21, 2002\n\n -2-\n\f Case 1:05-cv-11547-RWZ Document 38 Filed 08/14/2007 Page 3 of 5\n\n\n\n\n Whether the alleged negligence on behalf of the Town of Nantucket was the\n proximate cause of the plaintiff\u2019s injuries?\n\n6. JURISDICTIONAL QUESTIONS:\n\n None.\n\n7. ISSUES OF LAW:\n\n Whether the Town of Nantucket is immune from liability pursuant to G.L . 258, the\nMassachusetts Tort Claims Act.\n\n8. AMENDMENTS TO PLEADINGS:\n\n None.\n\n9. ADDITIONAL MATTERS:\n\n The defendant, Town of Nantucket has filed a Motion to Preclude the Plaintiff\u2019s Expert\nfrom Testifying at Trial.\n\n10. PROBABLE LENGTH OF TRIAL:\n\n 3-5 days.\n\n11. TRIAL WITNESSES:\n\n DEFENDANT: TOWN OF NANTUCKET\n\n 1. Kristie Stolgitis.\n 2. Jerome Mack, Det,. Nantucket Police Department.\n 3. Jerry Adams, Det, Nantucket Police Department.\n 4. James Samson.\n 5. Jane Bonvini.\n 6. Christine Ladner, Sgt., Nantucket Police Department.\n 7. Randolph Norris (Ret) Chief, Nantucket Police Department.\n 8. Charles Gibson, Deputy Chief, Nantucket Police Department.\n 9. C. Elizabeth Gibson, Town of Nantucket.\n 10. John F. McGrady, Jr., Deputy Chief, Nantucket Police Department.\n 11. Jill Kennedy.\n 12. Martha Greenfield.\n 13. Nancy Luchini.\n 14. Melissa Mullen.\n\n -3-\n\f Case 1:05-cv-11547-RWZ Document 38 Filed 08/14/2007 Page 4 of 5\n\n\n\n 15. f/n/u Hinson, M.D.\n 16. Kimberly A. Squier, Trooper, Massachusetts State Police.\n 17. William J. Burke, Sgt.,Massachusetts State Police.\n 18. Charles A. Morano, Esquire.\n 19. Philip A. Tracy, Jr., Esquire.\n 20. John Muhr, Nantucket Police Department.\n 21. John Welch, Nantucket Police Department.\n 22. Suzanne Gale, Nantucket Police Department.\n\n12. DEPOSITION/DISCOVERY EVIDENCE TO BE OFFERED AT TRIAL:\n\n None reasonably contemplated.\n\n13. VOIR DIRE/JURY INSTRUCTIONS:\n\n Counsel for each party will file their respective voir dire and jury instructions under\nseparate cover.\n\n14. MOTIONS IN LIMINE:\n\n Motion to Preclude Plaintiff\u2019s Expert Witness.\n\n Defendant, TOWN OF NANTUCKET,\n By its attorney,\n\n\n /s/ Regina M. Ryan\n Douglas I. Louison (BBO # 545191)\n Regina M. Ryan (BBO #565246)\n MERRICK, LOUISON & COSTELLO\n 67 Batterymarch Street\n Boston, MA 02110\n (617) 439-0305\n\n\n\n\n CERTIFICATE OF SERVICE\n\n I, Regina M. Ryan, hereby certify that on the 14th day of August, 2007, I served the\nforegoing by electronic filing, directed to Bradley Henry, Esquire, Meehan, Boyle, Black &\nFitzgerald, PC, Two Center Plaza, Suite 600, Boston, MA 02108 and Philip Slotnick, Esquire,\n\n -4-\n\f Case 1:05-cv-11547-RWZ Document 38 Filed 08/14/2007 Page 5 of 5\n\n\n\nShocket & Dockser, LLP 6 Huron Drive, PO Box 2219, Natick, MA 01760.\n\n\n /s/ Regina M. Ryan\n Regina M. Ryan\n\n\n\n\n -5-\n\f","ocr_status":2,"date_upload":"2009-08-08T21:59:10-07:00","document_number":"38","attachment_number":null,"pacer_doc_id":"09501075592","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"Pretrial Memorandum","acms_document_guid":""}],"date_created":"2016-08-21T00:27:11.236614-07:00","date_modified":"2018-12-14T22:59:15.637808-08:00","date_filed":"2007-08-14","time_filed":null,"entry_number":38,"recap_sequence_number":"2007-08-14.002","pacer_sequence_number":null,"description":"PRETRIAL MEMORANDUM by Town of Nantucket, Massachusetts. (Ryan, Regina)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/7346436/","id":7346436,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/4282952/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/5554703/","id":5554703,"tags":[],"absolute_url":"/docket/4282952/37/varallo-v-town-of-nantucket-massachusetts/","date_created":"2016-08-21T00:27:11.229357-07:00","date_modified":"2018-12-14T22:59:15.624604-08:00","sha1":"e5651493ad98a35d832536ba8e55fb99397c9070","page_count":1,"file_size":8410,"filepath_local":"recap/gov.uscourts.mad.99138.37.0.pdf","filepath_ia":"https://www.archive.org/download/gov.uscourts.mad.99138/gov.uscourts.mad.99138.37.0.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":" Case 1:05-cv-11547-RWZ Document 37 Filed 08/14/2007 Page 1 of 1\n\n\n\n UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF MASSACHUSETTS\n\n DOCKET NO. 05-111547RWZ\nLAUREN VARALLO\n Plaintiff,\n\nv.\n\nTOWN OF NANTUCKET POLICE\nDEPARTMENT and JAMES SAMSON,\n Defendant,\n\n NOTICE OF APPEARANCE\n\n I, Regina M. Ryan, do hereby enter my appearance on behalf of the defendants, Town of\nNantucket Police Department in the captioned matter.\n\n\n\n Defendant, TOWN OF NANTUCKET,\n By its attorney,\n\n\n /s/ Regina M. Ryan\n Douglas I. Louison (BBO # 545191)\n Regina M. Ryan (BBO #565246)\n MERRICK, LOUISON & COSTELLO\n 67 Batterymarch Street\n Boston, MA 02110\n (617) 439-0305\n\n\n CERTIFICATE OF SERVICE\n\n I, Regina M. Ryan, hereby certify that on the 14th day of August, 2007, I served the\nforegoing by electronic filing, directed to Bradley Henry, Esquire, Meehan, Boyle, Black &\nFitzgerald, PC, Two Center Plaza, Suite 600, Boston, MA 02108 and Philip Slotnick, Esquire,\nShocket & Dockser, LLP 6 Huron Drive, PO Box 2219, Natick, MA 01760.\n\n\n /s/ Regina M. Ryan\n Regina M. Ryan\n\f","ocr_status":2,"date_upload":"2009-08-08T21:59:05-07:00","document_number":"37","attachment_number":null,"pacer_doc_id":"09501075631","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"Notice of Appearance","acms_document_guid":""}],"date_created":"2016-08-21T00:27:11.222187-07:00","date_modified":"2018-12-14T22:59:15.602757-08:00","date_filed":"2007-08-14","time_filed":null,"entry_number":37,"recap_sequence_number":"2007-08-14.001","pacer_sequence_number":null,"description":"NOTICE of Appearance by Regina M. Ryan on behalf of Town of Nantucket, Massachusetts (Ryan, Regina)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/7346435/","id":7346435,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/4282952/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/5554702/","id":5554702,"tags":[],"absolute_url":"/docket/4282952/36/varallo-v-town-of-nantucket-massachusetts/","date_created":"2016-08-21T00:27:11.214866-07:00","date_modified":"2018-12-14T22:59:15.589326-08:00","sha1":"7c52e1de863bc33f83bd4243c2450322457aee3c","page_count":2,"file_size":25050,"filepath_local":"recap/gov.uscourts.mad.99138.36.0.pdf","filepath_ia":"https://www.archive.org/download/gov.uscourts.mad.99138/gov.uscourts.mad.99138.36.0.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"Case 1:05-cv-11547-RWZ Document 36 Filed 06/08/2007 Page 1 of 2\n\nUNITED sTATES DISTRICT COURT F 1 L_ E D\nFOR THE DIsTRIcT 0F MAssAcHUsEHs;q d 3 9 g ;: 155\n\nDOCKE:FMAM$-\u00e9ll\u00a3\u00a2\u2018?zl{\u00a7\u00e9z\n1 11 {NSTRZC`\nLAUREN VARALLO, Disl .\u00bb<|CI GF\u2019 P{T:\u00a3lSj\u00a7T\nPlaintiff '\n\nV.\n\nTOWN OF NANTUCKET POLICE\nDEPARTMENT and JAMES SAMSON,\nDefendants\n\n\\_/\\~_/\\-/\\_/\\_/\\_/\\_/\\._/\\_/\n\n \n\nNOTICE OF CHANGE OF ADDRESS OF\nPHILIP SLOTNICK ATTORNEY FOR JAMES SAMSON\n\nTo the Clerk\nPlease note, as of Ju.ne 18, 2007 the address of Philip Slotnick will be changes to:\n\nPhilip Slotnick\n\nShocket & Dockser, LLP\n13 Tech Circle\n\nNatick, MA 0176()\nPhone: 508-653-0160\nFax: 508-651-0750\n\nOq\u00a2.\u00a3@\u00bb\u00a2\\/L\n\nPhilip Slotnick, BBO #466960\nShocket & Dockser, LLP\n\n6 Huron Drive\n\nP.O. Box 2219\n\nNatick, MA 01760\n508-653-0160\n\nCase 1:05-cv-11547-RWZ Document 36 Filed 06/08/2007 Page 2 of 2\n\nCERTIFICATE OF SERVICE\nI certify this f; day of June, 2007 I mailed a copy of the foregoing to\n\nBradley Henry, Esquire, Meehan, Boyle, Black & Fitzgerald, PC, Two Center Plaza,\nSuite 600, Boston, MA 02108 and Douglas I. Louison, Merrick & Louison, 67\n\nBatterymarch Street, Boston, MA 02110.\n\nPhilip S\\otnick\n\n","ocr_status":1,"date_upload":"2009-08-08T22:00:21-07:00","document_number":"36","attachment_number":null,"pacer_doc_id":"09502196367","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"Notice of Change of Address or Firm Name","acms_document_guid":""}],"date_created":"2016-08-21T00:27:11.207593-07:00","date_modified":"2018-12-14T22:59:15.570479-08:00","date_filed":"2007-06-08","time_filed":null,"entry_number":36,"recap_sequence_number":"2007-06-08.001","pacer_sequence_number":null,"description":"NOTICE of Change of Address by Philip Slotnick (Johnson, Jay)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/7346434/","id":7346434,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/4282952/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/5554701/","id":5554701,"tags":[],"absolute_url":"/docket/4282952/35/varallo-v-town-of-nantucket-massachusetts/","date_created":"2016-08-21T00:27:11.200685-07:00","date_modified":"2018-12-14T22:59:15.559132-08:00","sha1":"8408acc921a8a381bb0fc90186c766738701daef","page_count":2,"file_size":9984,"filepath_local":"recap/gov.uscourts.mad.99138.35.0.pdf","filepath_ia":"https://www.archive.org/download/gov.uscourts.mad.99138/gov.uscourts.mad.99138.35.0.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":" Case 1:05-cv-11547-RWZ Document 35 Filed 05/22/2007 Page 1 of 2\n\n\n\n UNITED STATES DISTRICT COURT\n DISTRICT OF MASSACHUSETTS\n\n CIVIL ACTION NO. 05-11547-RWZ\n\n LAUREN VARALLO\n\n\n v.\n\n TOWN OF NANTUCKET POLICE DEPARTMENT\n and JAMES SAMSON\n\n\n ORDER\n\n May 22, 2007\n\nZOBEL, D.J.\n\n\n In a four-count complaint plaintiff asserts civil rights and tort claims against the\n\nTown of Nantucket Police Department and one of its officers, James Samson, who\n\nallegedly sexually assaulted plaintiff while she was a patient at the Nantucket Hospital\n\nunder his watch after a suicide attempt.\n\n The complaint is somewhat unorthodox. Count I is merely a recitation of the\n\nfacts alleged without any legal claims. Count II asserts claims against Samson for\n\nviolations of plaintiff\u2019s civil rights under state and federal law. Count III alleges civil\n\nrights violations against the Town for policies and practices implicating faulty hiring,\n\ntraining, supervising and assigning of its officers. Count IV, against both the Town and\n\nthe officer, sets forth a number of negligent and intentional torts.\n\n Defendant, Town of Nantucket Police Department, has moved for partial\n\nsummary judgment.\n\f Case 1:05-cv-11547-RWZ Document 35 Filed 05/22/2007 Page 2 of 2\n\n\n\n Since Count I is merely a recitation of facts without any legally cognizable claim,\n\nthe motion is allowed as to this count.\n\n The motion is allowed also as to Count III because neither the facts alleged nor\n\nthe law upon which these claims are premised support the claims.\n\n The motion is allowed as to the intentional tort claims in Count IV, assault and\n\nbattery, outrageous conduct, intentional infliction of emotional distress and invasion of\n\nprivacy. It is denied as to the negligence claims.\n\n In summary, the motion for partial summary judgment is allowed as to all claims\n\nagainst the Town except those for negligence.\n\n\n\n\n May 22, 2007 /s/Rya W. Zobel\n DATE RYA W. ZOBEL\n UNITED STATES DISTRICT JUDGE\n\n\n\n\n 2\n\f","ocr_status":2,"date_upload":"2009-08-08T21:58:36-07:00","document_number":"35","attachment_number":null,"pacer_doc_id":"09501018105","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"Order on Motion for Partial Summary Judgment","acms_document_guid":""}],"date_created":"2016-08-21T00:27:11.195282-07:00","date_modified":"2018-12-14T22:59:15.540611-08:00","date_filed":"2007-05-22","time_filed":null,"entry_number":35,"recap_sequence_number":"2007-05-22.001","pacer_sequence_number":null,"description":"Judge Rya W. Zobel : ORDER entered granting in part and denying in part [20] Motion for Partial Summary Judgment. In summary, the motion for partial summary judgment is allowed as to all claims against the Town except those for negligence. (Urso, Lisa)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/7346433/","id":7346433,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/4282952/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/5554700/","id":5554700,"tags":[],"absolute_url":"/docket/4282952/34/varallo-v-town-of-nantucket-massachusetts/","date_created":"2016-08-21T00:27:11.189686-07:00","date_modified":"2018-12-14T22:59:15.526674-08:00","sha1":"f15c73284701be79e9b13930a6fb6f852d30e525","page_count":5,"file_size":102403,"filepath_local":"recap/gov.uscourts.mad.99138.34.0.pdf","filepath_ia":"https://www.archive.org/download/gov.uscourts.mad.99138/gov.uscourts.mad.99138.34.0.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":" Case 1:05-cv-11547-RWZ Document 34 Filed 05/21/2007 Page 1 of 5\n\n\n\n UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF MASSACHUSETTS\n\n DOCKET NO. 05-11547RWZ\n\nLAUREN VARALLO\n Plaintiff,\n\nv.\n\nTOWN OF NANTUCKET POLICE\nDEPARTMENT and JAMES SAMSON,\n Defendant,\n\n DEFENDANT, TOWN OF NANTUCKET POLICE DEPARTMENT\u2019S REPLY TO\n THE PLAINTIFF\u2019S OPPOSITION TO PARTIAL MOTION FOR SUMMARY\n JUDGMENT\n\nI. STATEMENT OF THE CASE\n\n The plaintiff has brought the instant action alleging violations of her civil rights and various\n\nstate tort claims. Specifically, the plaintiff alleges violations of her Fourth, Eighth and Fourteenth\n\nAmendment rights under 42 U.S.C. Section 1983 as well as violations under the Massachusetts Civil\n\nRights Act. (\u201cMCRA\u201d). Lastly, the plaintiff also asserts a claim for negligence under the\n\nMassachusetts Tort Claims Act. (G.L. c. 258) The defendant, Town of Nantucket, moved for\n\nsummary judgment as to the plaintiff\u2019s state and federal civil rights claims and intentional tort claims\n\nto which the plaintiff responded to same. The defendant now submits its reply.\n\nII. ARGUMENT\n\n THERE IS NO EVIDENCE THAT A DECISION BY A FINAL POLICYMAKER\n VIOLATED THE PLAINTIFF\u2019S CIVIL RIGHTS\n\n\n The plaintiff\u2019s opposition to the defendant, Town of Nantucket\u2019s motion or partial summary\n\njudgment now specifically articulates the basis for attempting to hold the Town liable under \u00a7 1983.\n\nParaphrasing, the plaintiff claims that the decision by dispatch officers to assign the defendant\n\n\n -1-\n\f Case 1:05-cv-11547-RWZ Document 34 Filed 05/21/2007 Page 2 of 5\n\n\n\nSamson to the detail at the Nantucket Hospital was violative of her civil rights due to the fact that it\n\nwas a \u201chighly predictable risk\u201d that a woman\u2019s constitutional right to bodily integrity would be\n\nviolated.\u201d Plaintiff\u2019s opposition page 9. The plaintiff further argues that the Town knew or should\n\nhave known that there was a need for such a policy prohibiting male officers from guarding female\n\ndetainees. Thus, based on a single incident the plaintiff believes it has netted the Town within the\n\ngrasp of a civil rights violation.\n\n Notwithstanding the plaintiff\u2019s argument to the contrary, the traditional rule governing\n\nmunicipal liability is that a single incident of misconduct alleged in a complaint does not suffice to\n\nshow a municipal policy. City of Canton v. Harris, 489 U.S. 378, 387 (1989); Oklahoma City v.\n\nTuttle, 471 U.S. 808, 818 (1985)(plurality opinion); See Also, Gallego v. Wilson, 882 F.Supp. 1169\n\n(D.Mass. 1995)(dismissed plaintiff\u2019s municipal misconduct claim because a single alleged incident of\n\nindividual misconduct cannot establish a municipal policy or custom). The plaintiff cites Judge\n\nYoung\u2019s opinion in Putnam v. Town of Saugus, 365 F.Supp. 2d. 151 (D.Mass. 2005) as contrary to\n\nthis traditional view. Judge Young in analyzing the debate over municipal liability under \u00a7 1983 said:\n\n \u201cThe Supreme Court revisited this issue in Board of the County Comm'rs v. Brown, 520 U.S. at\n 404, 117 S.Ct. 1382. Elaborating on its decision in Pembaur, the Supreme Court noted that it\n is not enough for an imposition of municipal liability to simply identify conduct properly\n attributable to the municipality. Id. Rather, it must be shown that \u201c\u201cthrough its deliberate\n conduct, the municipality was the \u2018\u2018moving force\u2019\u2019 behind the injury alleged. That is, a\n plaintiff must show that the municipal action was taken with the requisite degree of\n culpability and must demonstrate a direct causal link between the municipal action and the\n deprivation of federal rights.\u201d\u201d Id. Proof that a municipality's \u201c\u201cauthorized decisionmaker\n has intentionally deprived a plaintiff of a federally protected right\u201d\u201d the Court held,\n \u201c\u201cnecessarily establishes that the municipality acted culpably. Similarly, the conclusion that\n the action taken by the ... authorized decisionmaker itself violates federal law will also\n determine that the municipal action was the moving force behind the injury of which the\n plaintiff complains.\u201d\u201d Id. at 405, 117 S.Ct. 1382.\n\n Putnam v. Town of Saugus, 365 F.Supp. 2d. 151, 178-182 (D.Mass. 2005).\n\n The First Circuit however, went even further by adding in Baron v. Suffolk County Sheriff\u2019s\n\n\n -2-\n\f Case 1:05-cv-11547-RWZ Document 34 Filed 05/21/2007 Page 3 of 5\n\n\n\nDepartment, 402 F.3d. 225 (1st. Cir. 2005) \u201c it is only a policy made by the final policymaker that\n\nexposes a municipality to liability.\u201d citing Silva v. Worden, 130 F.3d 26, 31 (1st Cir.1997) (explaining\n\nthat municipal liability for acts taken pursuant to a policy \u201c\u201cattaches only where the decisionmaker\n\npossesses final authority to establish municipal policy with respect to the action ordered\u201d\u201d); see also,\n\nFabiano v. Hopkins, 352 F.3d 4 (1st Cir. 2005)(single decision is insufficient predicate for municipal\n\nliability because it cannot constitute a \u201cpolicy\u201d)\n\n Here, in the present case, even if the decision to send a male officer as opposed to a female\n\nofficer to monitor the plaintiff was violative of the plaintiff\u2019s civil rights, (which the defendant\n\ndenies) said decision was not made by a final policymaker of the municipality. The decision to send\n\nthen Officer Samson to the hospital was made by Sgt. Ladner who was hardly the \u201cfinal\n\npolicymaker\u201d for the Town of Nantucket or its police department.\n\n As for the failure to have such a policy prohibiting or discouraging such male to female\n\nsupervision, the plaintiff fares no better. Aside from some cursory citations to studies regarding\n\npolice sexual misconduct in the law enforcement community, her brief and expert fail\n\nwholeheartedly to identify, cite or refer to any established, recognized or nationally followed\n\npolicy/procedure which prohibits male police officers from being assigned to work in a setting\n\nsimilar to the incident at hand. To the contrary, there is ample precedent and established practice\n\nthat such scenarios are not only commonplace, but not violative of any established or accepted law\n\nenforcement policy or procedure. See defendant\u2019s expert disclosure of Captain Daniel Wicks.\n\nExhibit \u201cA\u201d. The Town\u2019s alleged failure to have such a policy or failing to train officers in this\n\nsituation, does not amount to deliberate indifference to the plaintiff\u2019s civil rights. A training\n\nprogram must be quite deficient in order for the deliberate indifference standard to be met: the fact\n\nthat training is imperfect or not in the precise form a plaintiff would prefer is insufficient to make\n\n\n -3-\n\f Case 1:05-cv-11547-RWZ Document 34 Filed 05/21/2007 Page 4 of 5\n\n\n\nsuch a showing. See Canton, 489 U.S. at 391, 109 S.Ct. 1197; Grazier v. City of Philadelphia, 328\n\nF.3d 120, 125 (3d Cir.2003); Young v. City of Providence, 404 F.3d 4 (1st Cir. 2005); Palmquist v.\n\nSelvik, 111 F.3d 1332, 1345 (7th Cir.1997) (where town gave police officers some training on\n\nhandling suspects exhibiting abnormal behavior, argument that even more training should have been\n\ngiven failed); Swain v. Spinney, 117 F.3d 1, 11 (1st Cir.1997) (lack of notice of prior constitutional\n\nviolations defeats failure-to-train claim); Armstong v. Lamy, 938 F.Supp. 1018 (D.Mass. 1996); (To\n\nestablish liability of local governmental entity under \u00a7\u00a7 1983 for failure to adequately train employees\n\nto report and to prevent sexual abuse of students, student must prove entity's failure to train its\n\nemployees in relevant respect evidenced deliberate indifference to rights of students.)\n\n As such, the plaintiff\u2019s civil rights claims against the Town must be dismissed.\n\nIII. CONCLUSION\n\n Wherefor, the defendant respectfully requests the its motion for summary judgment be\n\nallowed.\n\n\n\n Defendant, Town of Nantucket, by its\n attorneys,\n\n\n /s/ Douglas I. Lousion__________\n Douglas I. Louison BBO# 545191\n James W. Simpson, Jr. BBO#634344\n MERRICK & LOUISON\n 67 Batterymarch Street\n Boston, MA 02110\n (617) 439-0305\n\n\n CERTIFICATE OF SERVICE\n\n I, Douglas I. Louison, hereby certify that on the ___ day of __________________, 2007, I\nserved the foregoing by causing a copy to be mailed, postage prepaid, directed to Bradley Henry,\nEsquire, Meehan, Boyle, Black & Fitzgerald, PC, Two Center Plaza, Suite 600, Boston, MA 02108\n\n -4-\n\f Case 1:05-cv-11547-RWZ Document 34 Filed 05/21/2007 Page 5 of 5\n\n\n\nand Philip Slotnick, Esquire, Shocket & Dockser, LLP 6 Huron Drive, PO Box 2219, Natick, MA\n01760.\n\n\n /S/ Douglas I. Louison\n Douglas I. Louison\n\n\n\n\n -5-\n\f","ocr_status":2,"date_upload":"2009-08-08T21:59:57-07:00","document_number":"34","attachment_number":null,"pacer_doc_id":"0950673388","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"Reply to Response to Motion","acms_document_guid":""}],"date_created":"2016-08-21T00:27:11.184074-07:00","date_modified":"2018-12-14T22:59:15.509024-08:00","date_filed":"2007-05-21","time_filed":null,"entry_number":34,"recap_sequence_number":"2007-05-21.001","pacer_sequence_number":null,"description":"REPLY to Response to Motion re [20] MOTION for Partial Summary Judgment filed by Town of Nantucket, Massachusetts. (Simpson, James)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/7346432/","id":7346432,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/4282952/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/5554699/","id":5554699,"tags":[],"absolute_url":"/docket/4282952/33/varallo-v-town-of-nantucket-massachusetts/","date_created":"2016-08-21T00:27:11.177074-07:00","date_modified":"2018-12-14T22:59:15.493102-08:00","sha1":"a2bf3fe9271ffc8c2a9272025b50cd9a1de44e2b","page_count":3,"file_size":10608,"filepath_local":"recap/gov.uscourts.mad.99138.33.0.pdf","filepath_ia":"https://www.archive.org/download/gov.uscourts.mad.99138/gov.uscourts.mad.99138.33.0.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":" Case 1:05-cv-11547-RWZ Document 33 Filed 05/17/2007 Page 1 of 2\n\n\n\n UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF MASSACHUSETTS\n\n DOCKET NO. 05-11547-RWZ\n\nLAUREN VARALLO,\n Plaintiff,\n\nv.\n\nTOWN OF NANTUCKET POLICE\nDEPARTMENT and JAMES SAMSON,\n Defendants\n\n DEFENDANT, TOWN OF NANTUCKET\u2019S MOTION TO\n RESCHEDULE TRIAL DATE\n\n The defendant, Town of Nantucket moves this Court to reschedule the trial in the\ncaptioned action presently scheduled for June 18, 2007.\n As grounds therefor, the defendant states:\n1. Four of the essential witnesses on behalf of the Town will be unavailable to appear in\n Boston for trial. Specifically, Det. Lt. Jerry Adams, Det. Gerard Mack and Sgt. Christine\n Ladner are all scheduled to appear in the Nantucket Superior Court as witnesses on a\n murder trial scheduled to commence the same time as the instant trial. (Commonwealth v.\n Thomas Toolan, III, 05-NACR-0001.) Additionally, the essential representative of the\n Town and its Police Department, Deputy Police Chief Charles Gibson is scheduled to be\n out of the country on a prescheduled and prepaid vacation from June 16, 2007 through\n June 26, 2007.\n2. These above percipient witnesses are essential to the presentation of the defendant\u2019s case.\n Defendant\u2019s counsel, Douglas I. Louison was unaware of these conflicting obligations at\n the time he appeared before the Court on May 16, 2007 for the pretrial conference. The\n defendant further relies on the attached affidavit of Douglas I. Louison\n\f Case 1:05-cv-11547-RWZ Document 33 Filed 05/17/2007 Page 2 of 2\n\n\n\n\n CERTIFICATION PURSUANT TO L.R. 7.1 (A)(2)\n\n\n The undersigned certifies that he has conferred with plaintiffs\u2019 counsel and attempted in\ngood faith to resolve or narrow the issues presented in this motion.\n\n\n\n Defendant, TOWN OF NANTUCKET\n POLICE DEPARTMENT,\n By its attorney,\n\n\n\n /s/ Douglas I. Louison\n Douglas I. Louison (BBO # 545191)\n MERRICK, LOUISON & COSTELLO\n 67 Batterymarch Street\n Boston, MA 02110\n (617) 439-0305\n\n\n CERTIFICATE OF SERVICE\n\n I, Douglas I. Louison, hereby certify that on the 17th day of May, 2007, I served the\nforegoing by causing a copy to be directed to Bradley Henry, Meehan, Boyle, Black &\nBogdanow, PC, Two Center Plaza, Suite 600, Boston, MA 02108 and Philip Slotnick, Esquire,\nShocket & Dockser, LLP 6 Huron Drive, PO Box 2219, Natick, MA 01760.\n\n /s/ Douglas I. Louison\n Douglas I. Louison\n\f Case 1:05-cv-11547-RWZ Document 33-2 Filed 05/17/2007 Page 1 of 1\n\n\n\n UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF MASSACHUSETTS\n\n DOCKET NO. 05-11547-RWZ\n\nLAUREN VARALLO,\n Plaintiff,\n\nv.\n\nTOWN OF NANTUCKET POLICE\nDEPARTMENT and JAMES SAMSON,\n Defendants\n\n\n AFFIDAVIT OF DOUGLAS I. LOUISON\n\n I, Douglas I. Louison, do hereby swear and depose the following:\n\n1. I am an attorney in good standing licensed to practice law in the Commonwealth of\n Massachusetts and before the United States District Court in Massachusetts.\n\n2. I am the counsel of record for the defendant in the captioned action.\n\n3. I appeared before the United States District Court, Zobel, J. on a pretrial conference on May 16,\n 2007. At that conference, a June 18, 2007 trial date was set. Thereafter, that afternoon, I e-\n mailed my contact with the defendant, Town of Nantucket, Deputy Police Chief Charles Gibson\n advising him of the June 18, 2007 trial date. By e-mail correspondence received on May 17,\n 2007, Deputy Chief Gibson advised me that the three percipient witnesses, Lt. Det. Jerry Adams,\n Det. Gerald Mack and Sgt. Christine Ladner are all scheduled to appear as Commonwealth\n witnesses in a homicide trial scheduled to commence on June 4, 2007. That matter is\n Commonwealth v. Thomas Toolan, III, Nantucket Superior Court 05-NACR-0001.\n\n4. Deputy Gibson further advised me that having conferred with the Assistant District Attorney\n handling the case, he has been informed that the trial judge, Honorable Richard Connan has\n advised that he anticipates that jury selection in the homicide trial will take approximately two\n weeks. As a result, the presentation of the evidence in the criminal trial would commence on or\n about June 18, 2007 conflicting with the trial scheduled in the instant matter.\n\n5. The four witnesses are essential to the defendant Town\u2019s defense. Without Deputy Gibson and\n the other three witnesses, I will not be able to properly present the defendant\u2019s case.\n\n Signed under the pains and penalties of perjury, this 17st day of May, 2007.\n\n /s/ Douglas I. Louison\n Douglas I. Louison\n\f","ocr_status":2,"date_upload":"2009-08-08T22:00:27-07:00","document_number":"33","attachment_number":null,"pacer_doc_id":"09501004708","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"Motion to Continue","acms_document_guid":""}],"date_created":"2016-08-21T00:27:11.170114-07:00","date_modified":"2018-12-14T22:59:15.475169-08:00","date_filed":"2007-05-17","time_filed":null,"entry_number":33,"recap_sequence_number":"2007-05-17.001","pacer_sequence_number":null,"description":"MOTION to Continue Trial by Town of Nantucket, Massachusetts. (Attachments: # (1) Affidavit of Douglas I. Louison)(Louison, Douglas)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/7346431/","id":7346431,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/4282952/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/5554698/","id":5554698,"tags":[],"absolute_url":"/docket/4282952/32/varallo-v-town-of-nantucket-massachusetts/","date_created":"2016-08-21T00:27:11.162851-07:00","date_modified":"2018-12-14T22:59:15.461715-08:00","sha1":"613efd190053ada4390c1d9fcb4980549bb9c2d3","page_count":40,"file_size":1955134,"filepath_local":"recap/gov.uscourts.mad.99138.32.0.pdf","filepath_ia":"https://www.archive.org/download/gov.uscourts.mad.99138/gov.uscourts.mad.99138.32.0.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"Case 1:05-cv-11547-RWZ Document 32 ~ Filed 05/16/2007 Page 1 of 1\n\nUNITED STATES DISTRICT COURT FOR\nTHE DISTRICT OF MASSACHUSETTS\n\nLAUREN VARALLO,\n\nV.\n\nTOWN OF NANTUCKET - POLICE\nDEPARTMENT and JAMES SAMSON,\n\nPlaintiff,\nCIVIL ACTION\nNO: 05-11547-RWZ\n\nDefendants.\n\nTABLE OF EXHIBITS TO THE PLAINTIFF\u2019S OPPOSITION TO THE\n\nDEFENDANT TOWN\u2019S MOTION FOR PARTIAL SUMMARY JUDGMENT\n\nExhibit\n\nDescription Page(s)\n\nA\n\nMichael Naughton, \u201cTrooper Sentenced to 8-10 Years for\nRape\u2019, The Boston Globe, April 18,2007 ee eee 9\n\nS. Walker & D. Irlbeck, \u201cDriving While Female: A National\n\nProblem in Police Misconduct,\u201d Special Report by the\n\nPolice Professionalism Initiative, Univ. of Nebraska at\n\nOmaha,May 200200 \u00a9 eee 10\n\nPennsylvania State Police Year 2003 Press Releases, \u201cState\nPolice Commissioner Calls for Independent Review of\nDepartment\u2019s Examination of Sexual Misconduct.\u201d ws eee eee. 10\n\nT. Maher, Police Sexual Misconduct: Officers\u2019 Perceptions\nof its Extent and Causality, Criminal Justice Review, V. 28,\nNo.2, Autumn 2003 0 ne ee 10, 11\n\nPLAINTIFF LAUREN VARALLO, By her attorneys,\n/s/ Bradley M. Henry\n\nBradley M. Henry, BBO No. 559501\n\nSuleyken D. Walker, BBO No. 654933\n\nMEEHAN, BOYLE, BLACK & BOGDANOW, P.C.\nTwo Center Plaza - Suite 600\n\nBoston, MA 02108-1922 PH: 617-523-8300\n\nCERTIFICATE OF SERVICE\n\nI, Bradley M. Henry, certify that on May 16, 2007, I served the foregoing Table of Exhibits to Plaintiff\u2019 s\n\nOpposition by electronic filing and by mailing an exact copy thereof, postage prepaid to all parties of record:\nDouglas I. Louison, Merrick, Louison & Costello, 67 Batterymarch St., Boston, MA 02110 & Philip Slotnick, Shocket\n& Dockser, 6 Huron Dr., Natick, MA 01760.\n\n/s/_Bradley M. Henry\nBradley M. Henry\n\n\fTrooper erengedsqd= 14 saqcetoyzapep das Heneatiobe Filed 05/16/2007 Page 1 dfage | of 2\n\nSponsored Links\nOnline Degree Programs Ontine Law School\n\nAre You Nursing Material? Law Degree Online\n\nTake this Quiz to Find Out if Browse online law schools\n\nNursing is the Career For You! programs.\nFind a Caurse that is Right for you\n\nwww, OntineDegreeDirect.com\n\nwww. chatterbean.com/Nurse\n\nduris Doctor JD & LLM Masters\nLow Tuition, Free Textbooks\nwww. edu-onlinedegree.org\n\nConvenient Ontine Programs, 100+\nAccredited Schools - Lear More!\nwww. ClassesUSA.com\n\nHome FNews| A&E Business Sports Travel YourLife Cars Jobs\n\nReatEstate Yefow Pages\n\nSignin | Register Now\n\nToday's Globe Local Polifics Opinion Magazine Education NECN\n\nHOME > NEWS > LOCAL\n\nTrooper sentenced to 8-10\nyears for rape\n\nBy Michael Naughton, Globe Correspondent | April 18, 2007\n\nThe Boston Globe\n\nA suspended state trooper was sentenced yesterday to at least eight\nyears in jail for raping a 26-year-cld woman and threatening to piant\ndrugs on her if she did not compiy with his advances last year,\nauthorities said.\n\nDaniel Grant, 42, of Holbrook was found ARTICLE TOOLS\n\nSpecialreports Obituaries\n\nguilty Friday of three counts of rape.\nYesterday, he was sentenced in Middlesex\nSuperior Court to serve between 8 and 10\nyears in state prison, followed by five years\nprobation, the Middlesex district attorney's\noffice announced.\n\n& PRINTER FRIENDLY\n\n1 E-MAIL TO A FRIEND\nLOCAL RSS FEED\nREPRINTS & LICENSING\nGF SHARE ON DIGG\nfed SHARE ON FACEBOOK\n\na SAVE THIS ARTIGLE\npowered by Del.icio.us\n\nWhile on duty on Jan. 20 last year, Grani,\nwho was in full uniform, approached a\n\nparked car in Cambridge at 11:15 p.m. He\ntold the woman inside the car that he was\n\ndoing her a favor by not arresting her and\nremoved from his pocket what appeared to\nbe a smal! bag of cocaine and said that it\ncould very easily be hers and asked if she\n\nMORE:\nGlobe City/Region stories\nLatest local news\n\nwould like to spend time in a women's\nprison, the district attorney's office said.\n\nGrant, a 17-year veteran assigned to the Boston barracks at Leverett\nCircle, ordered fhe woman to icllow him to a building near the Royal\nSonesta Hotel in Cambridge, where he repeatedly raped her.\n\n\"Daniel Grant abused his position of authority to prey upon a\nvulnerable victim, and he has broughi dishonor to himself and the\nuniform he was privileged to wear,\" said a stalement issued by\nMiddlesex District Attorney Gerard T. Leone Jr. \"The victim in this\ncase went through a deeply traumatic experience, and she deserves\ngreat credit for bravely coming forward and recounting this incident to\nthe jurors.\"\n\nThe woman reported the rape to relatives and to Stoneham police.\nDuring the investigation, Grant was suspended without pay.\n\n\"I strongly denounce the actions of Daniel Grant,\u201d said a statement\nissued by Mark F. Delaney, superintendent of the State Police. \"He\nhas disgraced and dishonored himself by his wanton and willful\ncriminal actions. His actions are not reflective of the excellence and\ntradition of the Massachusetts State Police and the men and women\nwho serve this proud department.\" =\n\n\u00a9 Copyright 2007 Globe Newspaper Company.\n\nAds by Google what's this?\n\nhttp://www.boston.com/news/local/articles/2007/04/18/trooper_sentenced_to 8 10 years ...\n\nTraffic | Weather | Mobile\n\nHXALT\n\nIGPPAS & EPGATE\n\nCHECK-IN NOW \u00a2\n\nLATEST LOCAL NEWS\n>\u00bb Summary Box: Iran Divestment\n\n> Lawmakers\u2019 own portfolios had iran investment ties\n> Connecticut lacrosse team shaken up when bus overturns\n\n> Democrats turn up pressure on Rell on 1-84 project\n\n> More local news\n\nBOSTON.COM'S MOST E-MAILED\n\nb A pregnant pause\n\n> Hearts & Minds\n\n> This is a huge change from their usual route\nb Biotech firms sprint to cut ethanol's cost\n\n> His find could be a chocolate Jover's dream\n> See full list of most e-mailed\n\nSEARCH THE ARCHIVES\n\nAll Globe stories since 2003 are now FREE\n\ni} Teday \u2018Gi Past 30 days \u2018\u201d Since 1979\n\n<2 Yesterday <) Last 12 months\n\nb More search options\n\nADVERTISEMENT\n\n> Get 50% off Boston Globe home delivery.\nOrder now!\n\n4/30/2007\n\nEXHIBIT A\n\fChief Peay Hare Beton SoeriaydiePo'D dati Him Pals Femaed 05/16/2007 Page 1 oP ase 1 of 7\n\nChief Penny Eileen Harrington\n\n| chiefpenny@aol.com\n\n\u201cDRIVING WHILE FEMALE\":\nA NATIONAL PROBLEM IN POLICE MISCONDUCT\n\nSamuel Walker and Dawn Irlbeck\nDepartment of Criminal Justice\nUniversity of Nebraska at Omaha\nMay 2002\nA Special Report by the\nPolice Professionalism Initiative\nUniversity of Nebraska at Omaha\n\nThe Authors would like to thank Lenora Lapidus, Director of the ACLU Women's Rights\nProject, Loren Siegel, former Director of the ACLU Public Education Department, and Susan\nMartin, Ph.D., of Washington, DC for their assistance in preparing this report.\n\n|. THE STORIES\n\nIn April, 2002 a Virginia state trooper was indicted for soliciting sex from female drivers in\nreturn for dropping traffic charges against them. [1]\n\nJust one week earlier a San Bernardino, California police officer was charged with sexually\nassaulting or raping 11 women while on duty. [2]\n\nAlso in March, 2002 a suburban Philadelphia police officer was convicted of raping an\nintoxicated woman while on duty and in uniform. [3]\n\nThese and numerous other cases highlight a national problem of \"driving while female\" where\npolice officers use their authority, often in traffic stops, to harass or assault women drivers, or\nto take advantage of women who have been stopped for legitimate violations. The \"driving\nwhile female\" problem became apparent in early 2001 in a series of cases on Long Island,\nNew York. On New Year's Day 2001, a Suffolk County (NY) police officer stopped a female\ndriver for an alleged\n\ntraffic violation and instead of issuing her a traffic ticket forced her to strip and walk home\nwearing only her underpants. The report of this incident brought forth similar allegations of\nsexual abuse arising from traffic stops conducted by Long Island police by 13 women and one\nman. Several of the cases involved allegations that officers coerced sexual favors as the price\nof avoiding a traffic ticket.[4] The publicity also brought forward a spate of nearly identical\nallegations against officers with the neighboring Nassau County police department. Allegations\nof harassment of female drivers by Walkill (NY) police officers led to a suit by the Attorney\nGeneral of New York and a consent\n\ndecree requiring a sweeping reforms in the police department.[5] Reports of \"driving while\nfemale\" abuses are found in every part of the country, and the level of abuse runs the gamut\n\nhttp://www.pennyharrington.com/drivingfemale.htm 5/2/2007\n\nEXHIBIT B\n\fChief Penny Hari aelens SpPri Po ty Coen ae!s Femaiea 05/16/2007 Page 2 of 8\u00b0 2 of7\n\nfrom harassment to sexual assault and even murder: [6]\n\nIn 2000, a Houston, Tex., police officer was convicted and sentenced to 20 years in prison for\nthe sexual assauit of a female driver. Also in 2000, a San Francisco police officer pleaded no\ncontest to\n\ncharges of fondling teenage girls during traffic stops. In 1998, a Washington, DC, police officer\nwas convicted of sexually assaulting a 14-year-old girl and an adult woman. A Milwaukee\npolice officer was sentenced to eight years in prison in 1998 for sexually assaulting a female\ndriver. In 1996, a Chicago police officer was sentenced to four years in prison for fondling\nwomen during traffic stops.\n\nA suburban Chicago police officer was convicted in 1996 for stalking several women between\nthe years 1990 and 1994. And in perhaps the most grotesque case of ali, Cara Knott was\nmurdered\n\nin 1986 by a predatory California Highway Patrol officer who stopped her for a traffic violation.\n\n[7]\n\nThese are not isolated incidents. A review of national print media from 1990 to 2001 revealed\nliterally hundreds of allegations of \u201cdriving while female\" abuses, and an average of over a\ndozen substantiated cases each year.[8]The estimate cited in this report is conservative in two\nways. First, it only includes abuses that were substantiated by the criminal justice system (i.e.,\nthe officer was indicted,, found guilty, etc.). Second, it defines \"cases\" by the number of\nvictims. Many officers were charged with several criminal counts associated with each victim.\nAdditionally, there is good reason to believe that these cases represent only the tip of the\niceberg. Many victims do not come forward because of humiliation and fear of reprisal. And\nsome police departments do not accept and investigate complaints from many victims who do\ncome forward.\n\nIl. THE PATTERNS\n\nSeveral patterns emerge from these stories: First, there is a pattern of police officers using\ntheir traffic enforcement powers to abuse women. [9] The problem of \"driving while female\"\nparallels the national problem of racial profiling or \"driving while black\" (DWB). Substantial\nevidence indicates that police officers stop African American drivers because of their race and\nnot because of any\n\nevidence of illegal activity. In other parts of the country, police officers stop Hispanic/Latino\ndrivers solely because of their ethnicity, a practice that has been labeled \"driving while\nbrown.\"[10] On Interstate 95 in Maryland, for example, white and African American drivers\nwere independently observed to violate traffic laws at the same rate. Yet, 73 percent of the\ndrivers stopped by Maryland State Troopers were African American. Moreover, of those drivers\nwho were stopped, 80 percent were either African American or Hispanic. In the case of driving\nwhile black or brown, police officers engage in an illegal form of discrimination based on race\nor ethnicity. Racial and ethnic stereotypes about minority involvement in crime are part of anti-\ncrime crackdowns, most notably in the war on drugs. in some driving while female cases\ninnocent drivers are similarly stopped based on an\n\nimmutable characteristic: gender. Just as they abuse their law enforcement power to stop\ndrivers of color, police officers abuse their power to stop and harass women drivers. In other\ncases, the driver is guilty of an offense and the police officer takes advantage of her vulnerable\nlegal status. An important difference between the DWB and DWF problems, however, is that\nofficers engaged in racial profiling are usually acting in accord with department crime-fighting\npolicies, while officers targeting female drivers represent the classic \"rogue\" officers who are\nviolating the law\n\nhttp://www .pennyharrington.com/drivingfemale.htm 5/2/2007\n\fChief Peay Sarg Beton Sacra ESP Ons Ath HOR a blg Female 05/16/2007 Page 3 of 8\u00b0 3 of7\n\nand department policy. Second, a major part of the DWF problem is the failure of police\ndepartments to investigate allegations that come to their attention. In a number of cases,\nsupervisors disregarded citizen complaints filed by female victims. In one of the Nassau\nCounty cases, the female victim filed a formal complaint with the department in a timely\nfashion, but the department did not investigate it for almost nine months.[11] This aspect of the\nDWF problem is very similar ic the DWB problem, where police departments do not take\nseriously and investigate allegations of\n\ndiscrimination on the basis of race or ethnicity and deny that their officers are doing anything\nwrong.\n\nSimilarly, \"rogue\" officers are able to continue their sexual predatory activity because the\ndepartment looks the other way. An Indianapolis, Ind., officer who was finally caught in 1996\nmade 224 traffic stops in a four month period in 1995, with 199 of those stops (89 percent!)\ninvolving\n\nfemale drivers. [12] Third, as in the case of DWB, DWF abuses continue because police\ndepartments tolerate them by failing to maintain an open and accessible citizen complaint\nsystem.\n\nMost people who feel they have been mistreated by a police officer \u2014regardless of the\ncircumstances\u2014 do not file a complaint. In part, this is due to a complaint process that is not\nuser-friendly. Some complainants who do come forward, meanwhile, are actively discouraged\nfrom filing complaints. These problems are compounded in DWF cases because the victims\nfeel particularly traumatized or humiliated. Fourth, DWF abuses continue because departments\ndo not have policies and procedures that ensure close supervision and accountability of\nofficers.\n\nIn many of the cases that have come to light, the officer had committed a number of offenses.\nThe behavior of the Virginia state patrol officer was well-known to people in the department\nand around the local court-house. The abuses continued because the officer was not closely\nsupervised and no\n\none in the department acted on the information that was available. Fifth, DWF is often\nsymptomatic of a pervasive sexist culture within a police department.[13] This sexist culture\nmanifests itself in several ways:\n\n(1) employment discrimination against women, including the failure to promote women to\nsupervisory positions;[14]\n\n(2) tolerance of sexual harassment within the department;[15]\n\n(3) a systematic failure to investigate domestic violence incidents where the alleged\nperpetrator is an officer in the department;[16]\n\n(4) inadequate policies regarding pregnancy and parental leave.[17]\n\nlll, THE REMEDIES\n\nThere are several remedies that can and should be taken immediately to curb DWF abuses.\nThese are steps that law enforcement chief executives can take without requiring additional\nstatutory authority.\n\nStep One: Data Collection\n\nLaw enforcement agencies need to begin collecting data to determine whether there is a\npattern of DWF abuses by their officers. At present we don\u2019t know exactly how extensive the\nDWF problem is. The anecdotal evidence, particularly the many cases of officers who have\nbeen convicted\n\nof some form of sexual abuse, suggests that the problem is serious and widespread.\nFortunately, many police departments are already collecting traffic stop data to investigate\n\nhttp://www.pennyharrington.com/drivingfemale.htm 5/2/2007\n\fChief Peay Sg t9R Sao AMISP nD dothieR tabs Pemalgg 05/16/2007 Page 4 oP ee 4 of 7\n\npossible racial profiling. Virtually all of the data collection instruments record the gender of the\ndriver. Where the identity of the officer is also indicated, it is a very simple matter of analyzing\nthe data to determine if certain officers are stopping a suspiciously high number of female\ndrivers. In those departments where the identity of officers is not part of the data collection\nprocess it needs to be added. [18]\n\nStep Two: Official Policies and Training\n\nEvery law enforcement agency should immediately issue a formal policy prohibiting \"driving\nwhile female\" abuse.[19] The policy should define DWF as the use of law enforcement powers\nfor the purpose of stopping female drivers where there is no suspected criminal activity or\ntraffic law\n\nviolation, and also taking advantage of women drivers who have been stopped for legitimate\nviolations. The policy should clearly state that any form of sexual harassment or assault of an\nindividual, regardiess of gender, is impermissible conduct that will result in termination\nproceedings. Every law enforcement agency should immediately incorporate the new \"driving\nwhile female\" policy into both pre-service and in-service training programs. Pre-service training\nor police academy training is provided to all new recruits. In-service training is provided to\nofficers who are already on the force. The in-service training is especially important because\nexperienced officers who may have engaged in some form of DWF in the past need to be\ninstructed that such activity violates department policy.\n\nStep Three: Better Supervision\n\nLaw enforcement chief executives need to take immediate steps to ensure proper supervision\nof officers on the street. They need to ensure that supervisory officers are alert to the potential\nprobiem of DWF and take the necessary steps to curb it. Supervisors need to be advised that\nall allegations and rumors of possible DWF abuses are taken seriously and promptly\ninvestigated. In cases where\n\nalleged abuse is suspected but cannot be proven, supervisors should counsel strongly the\nsuspected officer that any such abuse will not be tolerated by the department. How should\ndepartments respond to allegations? The chief of the Homewood, IIl., police department\nadopted a vigilant policy, announcing in 1996: \"We'll take anonymous compiaints, third-hand\ncomplaints, we'll take anything.\"[20]The chief executive needs to make it clear that any attempt\nto cover up alleged abuse by a police officer is a serious violation of department rules.\n\nStep Four: An Open and Accessible Citizen Complaint System\n\nLaw enforcement chief executives should take immediate steps to ensure that the\ndepartment's citizen complaint system is open and accessible to all members of the\ncommunity.[21] Where an independent citizen oversight agency does not exist, local\ncommunities need to create one that is open and accessible.[22] The minimum conditions of\nan open and accessible citizen complaint system include: (1) publication and dissemination of\nmaterials explaining the complaint system; (2) publication and dissemination of such materials\nin all languages appropriate to the local community; multiple and convenient locations for filing\ncomplaints, including locations separate from police\n\nfacilities; (3) procedures to ensure the proper receipt, classification, and investigation of all\ncomplaints; and (4) annual publication of complaint data. Special steps need to be taken to\nmake the complaint process comfortable for female citizens. If a complainant expresses a\ndesire to discuss the incident with a female officer, the department should promptly make a\nfemale investigator available. Also, each department needs to have a process where female\nemployees can\n\nbring complaints against other employees and be assured that the complaint will be taken\nseriously and investigated.\n\nStep Five: Hire More Female Officers\n\nStudies have shown that male officers are much more likely to use excessive force and\nengage in misconduct than female officers. One solution to this problem is simply to hire more\n\nhttp://www.pennyharrington.com/drivingfemale.htm , 5/2/2007\n\fChret Peay PB St 3 SFA POD A eh aes Female 05/16/2007 Page 5 of 8\u00b0 5 OF7\n\nwomen.\nThe Feminist Majority Foundation and The National Center for Women & Policing conducted a\nstudy on the costs of police misconduct and abuse in the Los Angeles police department as a\nresult of civil liability lawsuits between 1990-1999.[23] The study only analyzed cases involving\nexcessive\n\nforce allegations, police officers involved in sexual assaults, and police officers involved in\ndomestic violence incidents that had judgments or out-of-court settlements exceeding\n$100,000. Between 1990-1999, there were 80 such lawsuits, which cost a total of $67.8\nmillion. Of the 80 lawsuits,\n\nthe gender of the officers could be determined in 78, which cost a total of $66.3 million. The\nstudy found that female officers were involved in excessive force lawsuits at much lower rates\nthan maie officers. No cases of sexual assault or domestic violence listed a female officer as a\ndefendant. Of\n\nthe total $66.3 million in payouts, male officers were responsible for $63.4 million, or 95.8\npercent. Female officers accounted for $2.8 million, or 4.2 percent. Sexual assault and\ndomestic violence cases, involving only male officers, resulted in $10.4 million in judgments\nand settlements. The overall ratio of male to female officers and sergeants from 1990-1999\nwas 4:1. Male officers were also involved in or at the scene of an incident compared to women\nby a ratio of 9:1. Of the 27 female\n\nofficers at the scene of an excessive force incident, only 15 were alleged to be \"directly\ninvoived in the use of excessive force.\" The ratio of payouts for killings by male and female\nofficers was 43:1, and the ratio of payouts for assault and battery was 32:1. \"Moreover, not\none female police officer was named in more than one lawsuit, while some male officers were\ndefendants in more than one case, evidencing a pattern of use of excessive force among\nthese male officers.\" The National Center for Women & Policing has recommended that\ndepartments hire more women not only to change from an aggressive style of policing to one\nthat emphasizes communication, but also to stem the use of excessive force and misconduct.\n\nIV. CONCLUSION\n\nDWF is a real problem -- spread nationwide \u2014 not just isolated incidents here and there. Police\ndepartments need to address it as such. Without proper training, supervision, and punishment\nof offending officers, the problem will continue; and without a commitment to protecting victims\nof\n\nDWF, police departments will force them to remain silent. Departments must implement\ncomplaint systems that allow victims to come forward, and they must take these complaints\nseriously.\n\nAPPENDIX\n\n[4] Josh White, \"Honored Trooper Charged in Bribery,\" Washington Post\n(April 3, 2002).\n\n[2] Daren Briscoe, \u201cAccused Officer is Called Devoted Father, Worker,\" Los\nAngeles Times (March 30, 2002),\n\n[3] Mary Anne Janco, \"Delco Jury Convicts Officer of Rape Charge,\"\nPhiiadelphia Inquirer (March 15, 2002).\n\n[4] Michae! Luo, \"Officers May Face Federal Charges,\u201d Newsday (March 9,\n2001),\n\n[5] Dean Esserman, Monitor, First Report of the Monitor (January 2002).\nNew York v. Town of Wallkill (U.S. District Court, Southern District of\n\nNew York (01-CIV-0364 (CM).\n\n[6] \"Betrayed by a Badge,\" Newsweek (June 18, 2001): 38-41.\n\n[7] Joe Cantlupe and Lisa Petrillo, Badge of Betrayal: The Devastating\n\nhitp:/Avww.pennyharrington.com/drivingfemale.htm 5/2/2007\n\f_ Chief Penny Bartneton specie) Reports Driving Maaile Female 9 95/16/2007\n\nStrue Story of a Rogue Cop Turned Murderer (New York: Avon Books, 1991).\n[8] See appendix. An earlier study of this problem is Peter B. Kraska and\nVictor E. Kappeler, \"To Serve and Pursue: Exploring Police Sexual Violence\nAgainst Women,\" Justice Quarterly, 12\n\n(March 1995): 85-111.\n\n[9] Sexual abuse of individuals by police officers is not confined to\n\nfemale drivers, There are also a number of stories of officers entering\nprivate homes on the pretext of a search and then assaulting\n\nwomen who live there. In addition, there are a number of stories of male\nofficers harassing or assaulting male drivers whom they have stopped for\nan alleged traffic violation.\n\n{10] The best book on racial profiling is David Harris, Profiles in\n\nInjustice (New York: The New Press, 2001). [See ACLU, Driving While Black\n(New York: ACLU, 1999). [Available at http:/Avww.aclu.org].\n\n[11] Oscar Corral, \"Failure to Go by the Book,\" Newsday (February 1,\n\n2001).\n\n[12] R. Joseph Gelarden, \"Ex-Police Officer Faces New Misconduct Charges,\u201d\nThe Indianapolis Star (August 22, 1996}.\n\n[13] This is again similar to racist environments in many police\n\ndepartments that have records of DWB abuses. [See reports of suit by\nofficers of color against NJ State Police, alleging racism and\n\nforced use of DWE practices.]\n\n[14] National Center for Women & Policing, Equality Denied: The Status of\nWomen in Policing (Los Angeles: NCWP, 1998). [Available at\n\nhttp ://www.ferninist.org].\n\n[15] Susan Martin, On the Move: The Status of Women in Policing\n(Washington, DC: The Police Foundation, 1990), pp. 139-164.\n\n{16] See the pioneering effort by Katherine Mader, then-Inspector General\nof the Los Angles Police Department: Inspector General, Domestic Violence\nin the Los Angeles Police Department:\n\nHow Well Does the Los Angeles Police Department Police its Own? (Los\nAngeles: Office of the Inspector General, 1997).\n\n[17] National Center for Women and Policing, Recruiting and Retaining\nWomen: A Self-Assessment Guide for Law Enforcement (Los Angeles: NCWP,\n2000), Ch. 9., \"Implementing Family-Friendly\n\nPolicies,\" pp, 111-115.\n\n[18] Samuel Walker, \"Searching for the Denaminator: Problems with Police\nTraffic Stop Data and an Early Warming System Solution,\" Justice Research\nand Policy, 3 (Spring 2001): 63-95.\n\nDeborah Ramirez, Jack McDevitt, and Amy Farrell, A Resource Guide on\nRacial Profiling Data Collection Systems: Promising Practices and Lessons\nLearned (Washington, DC: Government Printing Office, 2000). [Available at\nhttp :/Awww.ncirs.org].\n\n[19] See the similar recommendations related to racial profiling in Police\nExecutive Research Forum, Racially Biased Policing: A Principled Response\n(Washington, DC: Police Executive Research Forum,\n\n2001). [Available at http:/Avww.policeforum.org].\n\n[20] Pamela Cytrynbaum, \"Police Sex Abuse Tears at Code of Silence,\" The\nChicago Tribune (February 29, 1996).\n\n[21] U.S. Department of Justice, Principles for Promoting Police Integrity\n(Washington, DC: Government Printing Office, 2001). [Available at\nhitp-/Awww.nejrs.org].\n\n[22] Samuel Walker, Police Accountability: The Role of Citizen Oversight\n(Belmont, CA: Wadsworth, 2001). {See http:/Avww.policeaccountability.ora].\n[23] National Center for Women & Policing, Gender Differences in the Cost\nof Police Brutality and Misconduct: A Content Analysis of LAPD Civil\nLiability Cases 1990-1999 (September 5, 2000)\n\n[Available at http:/Avww.feminist.org].\n\nCopyright 2002, Samuel Walker, UNO Police Accountability Initiative.\nFor problems or questions regarding this web site contact Webmaster.\n\nhttp://www.pennyharrington.com/drivingfemale.htm\n\nPage 6 of 38\u00b0 of?\n\n5/2/2007\n\feT RS FOBT BATA \"DCU BA aes FemBy 05/16/2007 Page 7 of 7 Of7\n\nhttp://www. pennyharrington.com/drivingfemale, htm 5/2/2007\n\fPSP Search\n\n- Department\ninformation\n\n& Frequently Asked\nQuestions\n\nk Press Releases\n\n\u00ae PSP Bureau and Troop\nWeb Directory\n\npb PSP Car Safety Seat\nInfarmation\n\n& PSP Crime Prevention\nTips\n\nbk PSP History And\nInformation\n\nk PSP Kids' Zone\n\nF PSP Memorial Wall\n\nf PSP Personal Safety\nTips\n\n\u00bb PSP Telephone\nDirectory\n\n& Public Documents,\nBrochures and Forms\n\nk View as Text-Only\nb Home\n\nhttp://www.psp.state.pa.us/psp/ewp/view.asp?A=11&Q=170138\n\nPSP state eee eee Calls for Independent Keview Of Vepartments Mxamination OF Sexual Mus... rage 1 O14\n-Z\n\nYear 2003 Press Releases\n\nPSP Home Back Printable Version eMail Previous Next\n\nState Police Commissioner Calls for Independent Review of\nDepartment's Examination of Sexual Misconduct Cases\n\nEXHIBIT C\n\nImplements Steps to Prevent Future Misconduct Cases\n\nHARRISBURG: (June 25, 2003) State Police Commissioner Jeffrey B. Miller\ntoday called for Governor Edward G. Rendell to seek an independent review of\nthe Department's investigation of sexual misconduct cases between 1995 and\n2001.\n\n*I make this recommendation not because I believe the State Police did not\nhandle the cases properly, but because I believe that it is extremely important\nthat an independent reviewer be brought in to examine the information that I\nhave reviewed and make an independent assessment of how the Department\nhandled these allegations,\u201d Col. Miller said.\n\n\u201cI believe that by doing this, my review can be confirmed by someone\nindependent of the agency who may also be able to offer additional\nsuggestions or insights that we could employ with the goal of improving the\nway we handle and prevent this type of misconduct in the future\u201d,\n\nCol. Miller said his review ofthe. allegations. of.sexual misconduct involving\nDepartment personnel from 1995 through 2001 found 163 total complaints.\n\nOf those, 39 were withdrawn. by the complainant, 26 were unfounded, 26 could\nnot be conclusively proven or disproven, 2 are still pending and 2 involved\ncivilian employees that were handled under a previous accelerated\n\ngrievance procedure and the dispositions are no longer available.\n\nCol. Miller said 68 total complaints in the seven-year period were sustained\nby investigation. Those cases involved 75 troopers, two Liquor Control\nEnforcement officers and two civilian employees. In an agency of 5,750\nemployees, this amounts to 0.19 percent, or less than one-fifth of one percent\nof the workforce per year.\n\nTwenty of the 68 cases were referred to prosecutors, Col, Miller said. Eight of\nthe cases resulted in prosecution; in 12 cases, the District Attorney declined to\nprosecute. In all cases where the district attorney declined to prosecute, the\nDepartment took disciplinary action against the department personnel, up to\nand including dismissal. Fourteen department employees were dismissed for\nsexual misconduct between 1995 and 2002.\n\nCol. Miller also said the Department recently has instituted procedures\ndesigned te ensure that persons with psycho-sexual problems are not admitted\nto the Pennsylvania State Police. Col. Miller said a polygraph test and\ncomplete psychological testing are now administered to every Cadet applicant,\na more stringent background investigation is now in place, and the department\nhas added a full-time psychologist to the medical staff.\n\nAI27/2007\n\fPSP: state Pouce Lommissioner Calis Tor independent Review Ol Veparnanents Pxamimatvion Of sexual Vis... Page 4 Or 2\nCase 1:05-cv-11547-RWZ ~~ Document 32-4 Filed 05/16/2007 Page2of2\n\nIn addition, Col. Miller said he has implemented a number of steps to ensure\nthat sexual misconduct is eradicated, including:\n\n- A Zero Tolerance Policy on all sexual misconduct cases to ensure that\nappropriate administrative action is pursued when instances of sexual\nmisconduct, whether on or off duty, are investigated and sustained.\n\n- A department-wide Early Intervention Program to identify any problem\nbehavior or indicators of a potential problem behavior prior to it reaching a\ncritical stage.\n\n: Directing the Deputy Commissioner of Administration to ensure that all\nCommanders receive enhanced training on the adjudication of investigations\nreferred to them from the Bureau of Professional Responsibility.\n\n\u2018Implementing a new procedure in the Cadet background screening process,\nwhich currently requires a two-thirds vote of three members of the screening\npanel for action. The new procedure will call for a second panel to convene to\nreview the Cadet package if there is any dissenting opinion on the original\npanel.\n\n- Instituting additional training at the State Police Academy for all new cadets\non the consequences of violating the Code of Conduct.\n\n\u201cIT am extremely proud to be a member of the Pennsylvania State Police, one\nof the finest police organizations in the world,\u201d Col. Miller said. \u201cI am equally\nproud of the men and women of the State Police, the overwhelming vast\nmajority of whom always conduct themselves professionally and are dedicated\nto solving problems and to helping others.\u201d\n\n#HeF\n\nPennsylvania State Police\nPublic Information Office\n1800 Elmerton Avenue\nHarrisburg, PA 17110\n717-783-5556\n\n\u00a9 Copyright 2003-04, Commonwealth of PA - Pennsylvania State Police\n\nThis Web Site is for information and Online Services only - If you have an emergency, crime, or\nincident to report, please contact your nearest Police Agency or cail 911.\n\nSome Documentation/Information on this site may require the ADOBE Acrobat Viewer...\n\nComments/Suggestions/Technical Questions? Use our PSP Contact Web Form.\n\nhttp://www.psp.state.pa.us/psp/cwp/view.asp?A=11&Q=170138 4/27/2007\n\fCase 1:05-cv-11547-RWZ Document32-5 Filed 05/16/2007 Page 1 of 29\n\nCriminal Justice Review\n\nHAR\n\nnito/cir sacepus.com\n\nnduct: Officers\u2019 Perceptions of its Extent and Causality\nTimothy M. Maher\nCriminal Justice Review 2003; 28; 355\nDOI: 10.1177/073401680302800209\n\nPolice Sexual Misco\n\nThe online version of this article can be found at:\n28/2/355\n\nhitp://cir.sagepub.com/cgi/conienv/abstrac\n\nPublished by:\nSSAGE Publications\nhito:/Awww.sagepublications.com\n\nOn behalf of:\n\nGeorgia State University, College of Health and Human Sciences\n\nAdditional services and information for Criminal Justice Review can be found at:\n\nEmail Alerts: hitp://cj;. sagepub.com/cgi/alerts\n\nSubscriptions: htip-//cjr.segepub.com/subscriptions\n\nvy\n\nReprints: hip /Avww.sagepub.cam/journaisReoprints.n\u00e9\n\nPermissions: htigvAvww.sagepud.com/journalsPermissions.n2v\n\nCitations (this article cites 13 articles hosted on the\n\nSAGE Journals Online and HighWire Press platforms):\nnitp://ejr.sagepub.com/cgi/contenvabstracl/28/2/355eBibL\n\nDownloaded from Mis scy.gageaet com by gueston April 29, 2007\naa Sciences, All rights reserved. Not for commercial use or unauthorized\n\n\u00a92003 Georgia State University, College of Health and Hum\ndistribution.\n\nEXHIBIT D\n\fvorurs Gage 4205-tv-11547-RWZ Document 32-5 Filed 05/16/2007 Page 2 of 29\n\nTHE COMMONWEALTH OF MASSACHUSETTS\n\nMIDDLESEX DISTRICT ATTORNEY\n40 THORNDIKE STREET CAMBRIDGE MA 02141\n\nTel: 617-679-6500\nDISTRICT ATTORNEY : fax: 617-494-5558\n\nFACSIMILE TRANSMITTAL SHEET\n\nTO: FROM:\nPolice Prosecutor Tom Sullivan\n\nCOMPANY: BATE:\nMedford PD May 1, 2007\n\nFAX NUMBER: TOTAL NO. OF PAGES INCLUDING COVER:\n(781) 392-5177 2\n\nRE:\nCc: monwealth y. Bry Saintilus\n\n{] URGENT Ci FOR REVIEW TY PLSASES COMMENT (] PLEASE REPLY _j PLEASE RECYCLE\n\nPLEASE FIND HE Au TACHED NOTLFICATION F OR SGT. MONTANA.. IF YOU\nHAVE ANY QUESTIONS PLEASE CALE ME AT 617-679-6591, THANK YOU.\n\fCase 1:05-cv-11547-RWZ Document 32-5 \u2014 Filed 05/16/2007\n\nPage 3 of 29\nCriminal Justice Review \u00a92003 College of Health and Human Sciences\nVolume 28, Number 2, Autumn 2003 Georgia State University\n\n===\" BOLICE SEXUAL MISCONDUCT:\nOFFICERS\u2019 PERCEPTIONS\nOF ITS EXTENT AND CAUSALITY\n\nTimothy M. Maher\n\nThis article reports on a survey of police officers in 14 different police agencies in four counties in the St. Louis\nmetropolitan area. Results from 4 self-administered questionnaire followed by an oral interview indicate that officers\nreported sexual misconduct to be common and reveal a broad consensus among officers that the more serious forms\nof this behavior should not be tolerated. Nevertheless, none of the departments studied was found to have a formal\npolicy specifically proscribing sexual misconduct, and criminal justice officials have done litde to help control the\nproblem, suggesting that this problem may in part be fostered by the police subculture. The conclusion explores\npolicy implications within law enforcement and suggests the need fot increased attention from researchers and from\ncriminal justice officials and personnel.\n\n\u201cPolice deviance\u201d is a term that refers to a wide variety of activities that are not\nconsistent with an officer\u2019s authority or that violate the standards of ethical conduct\nexpected of members of the criminal justice system. Although police deviance has\nreceived substantial public and scholarly attention in recent years (Barker & Carter,\n1994; Carter 1990; Christopher Commission, 1992; Kappeler, Slider, & Alpert,\n1998), sexual misconduct, especially nonviolent sexual misconduct, has been\nlargely neglected, Media attention to some cases involving police sexual\nmisconduct suggests that members of the public are concerned about and interested\nin controlling such behavior (Bryant, 2000; Parish, 1998a, 1998b, 2061).\n\nPolice sexual misconduct (PSM) compromises the integrity of the law\nenforcement community and interferes with police officers\u2019 ability to effectively\nperform their duties. Police work provides a unique opportunity for sexual\nmisconduct. The combination of police authority, an unsupervised atmosphere, and\nthe frequent isolated contact with the public helps create situations where police\nofficers have ample opportunity to participate in various forms of this behavior. In\naddition, policing is a predominantly male institution dominated by the masculine\nculture. Some argue that, when combined with the monopoly that police have on\nstate-sanctioned violence, this male-dominated culture presents a basis for sexual\nvictimization (MeGurrin & Kappeler, 2002).\n\nThe present article examines police officers\u2019 perceptions of the extent of PSM,\nas well as factors that may influence officers\u201d decisions to engage in or refrain from\nthis behavior. All forms of PSM, including the more serious, violent criminal\nincidents as well as the less serious, noncriminal forms of this behavior, are\n\n355\n\nDownloaded from rucJc dagen a7 by gueston April 29, 2007\n\u00a9 2003 Georgia State University, Cofiege of Health and Huinan Sciences. Al nghts reserved. Not for commercial use or unauthorized\n\nfrom the SAGE Social Science Collections. Ali Righis Reserved. distribution.\n\fCase 1:05-cv-11547-RWZ Document32-5 Filed 05/16/2007 Page 4 of 29\n\n356 Timothy M. Maher\n\naddressed. To begin, an operational definition of \u201cpolice sexual misconduct\u201d is\ndeveloped. Second, prior research on PSM is reviewed. Third, the results of a\nsurvey of active police officers in the St. Louis metropolitan area are described.\nKey to this section of th\u00e9 article is an attempt to determine how the concept of\nsexual misconduct is constructed and perceived by police officers and to examine\ntheir views regarding levels of occurrence. Finally, implications are discussed,\nincluding the need to bring attention to PSM and to create an agenda for future\nresearch.\n\nDEFINING POLICE SEXUAL MISCONDUCT\n\nThere is a lack of uniformity in descriptions of deviance and of police deviance,\nwhich has created a problem in precisely defining these terms and makes it equally\ndifficult to define PSM. Several approaches have been taken to describe police\ndeviance, ranging from narrowly focused forms of deviance to more general\nclassifications of categories of misconduct (Geller, 1984; Sherman, 1980).\n\nBarker and Carter (1994) have proposed a two-category typology in the definition\nof police deviance. The first category, \u201coccupational deviance,\u201d is defined as\n\u201cdeviant behavior both criminal and non-criminal, committed under the guise of a\npolice officer\u2019s authority,\u201d which manifests itself in two forms, police corruption\nand police misconduct (p. 6). The second category, \u201cabuse of authority,\u201d is\ndescribed as \u201cany action by a police officer without regard to motive, intent, or\nmalice that tends to injure, insult, trespass upon human dignity, manifest feelings\nof inferiority, and/or violates an inherent legal right of a member of the police\nconstituency in the course of performing police work\u201d (p. 7). Both categories of\nBarker and Carter\u2019s definition of police deviance relate well to police sexual\nmisconduct.\n\nKappeler et al. (1998) contend that general definitions of deviance referring to\nviolations of society\u2019s norms create a problem because not ali people or groups of\npeople share the same ideas about what is deviant behavior and what is not. This\nmay apply to PSM, because rules and standards governing this behavior are not\nclear, and not all PSM may be viewed as deviant by individual officers or police\nsocial groups.\n\nWhether police behavior is deviant depends primarily on two sets of standards\nor rules. The first, \u201cexternal rules or standards,\u201d includes constitutional, criminal,\ncommon, and civil laws, as well as public opinion. The second, \u201cinternal rules or\nstandards,\u201d includes departmental policies, procedures, practices, and regulations.\nExternal standards are generally clear, at least in comparison with internal rules\n(Kappeler et al., 1998). Although most police departments have extensive lists of\nrules and regulations governing much police behavior, the 14 St. Louis area police\ndepartments that were surveyed for the present article were all found to have no\nformal policy specifically addressing sexual misbehavior.\n\nDownleaded from furs onsasecus oot by guest on Apri 29, 2007\n\u00a9 2003 Georgia State University, College of Health and Human Sciences. All rights mserved. Not for ial use oF ized\nistribution,\n\n\fCase 1:05-cv-11547-RWZ Document32-5 Filed 05/16/2007 Page 5 of 29\n\nCriminal Justice Review 357\n\nReview of the literature reveals no single definition of PSM that broadly\ndescribes this behavior. However, some researchers have focused more narrowly\non PSM, with most attention being paid to the more violent forms of this behavior.\nFor example, Kraska and Kappeler (1995) examined \u201cpolice sexual violence\u201d and\ndefined it as \u201cthose situations in which a female citizen experiences a sexually\ndegrading, humiliating, violating, damaging, or threatening act committed by a\npolice officer through the use of force or police authority\u201d (p. 93). Their work\nidentifies a continuum of police violence ranging from very serious incidents such\nas rape and sexual assault to far less serious incidents such as voyeuristic behaviors.\nAlthough they acknowledge the existence of \u201cconsensual sex\u201d and other less serious\nforms of sexual misconduct, they focus primarily on sexual misconduct that has\nbeen officially recognized and involves violence or the use of police force.\n\nBecause no single existing definition of PSM is comprehensive enough to meet\nthe needs of this article, the following definition is used: \u201cAny behavior by a police\nofficer, whereby an officer takes advantage of his or her unique position in law\nenforcement to misuse his or her authority and power to commit a sexually violent\nact, or to initiate or respond to some sexually motivated cue for the purpose of\npersonal gratification. This behavior must include physical contact, verbal\ncommunication, or a sexually implicit or explicit gesture directed toward another\nperson.\u201d This definition was developed by elaborating on the police deviance\n\nJiterature_and_by incorporating general principles of acceptable and unacceptable\nbehavior common to law enforcement.\n\nPRIOR RESEARCH\n\nHistorically, most of the research on police misconduct has focused on corruption\nand graft (Barker, 1978; H. Goldstein, 1975; Lundman, 1974; Sherman, 1980).\nRelatively little attention has been focused on less traditional forms of police\nmisconduct. There does, however, appear to be. a growing awareness among\nscholars that police..abuse their position in pursuit of personal sexual interest.\nNevertheless, few researchers have focused their attention specifically on police\nsexual misconduct, and a review of the literature reveals only a handful of studies.\n\nOne study examined the perceptions of employees ina small southern city police\ndepartment about police officers\u2019 sexual activity while on duty. Barker (1978)\nreported that both civilian employees and police officers believed that many officers\nin that department had sex while on duty.\n\nKraska and Kappeler (1995) and McGurrin and Kappeler (2002) focused\nprimarily on police sexual violence, examining cases exposed through the courts\nand the media. These two studies point to the jack of response by state officials,\nwhich suggests institutional and cultural support for PSM. These researchers\ncontend that police secrecy and institutional support for PSM make it difficult to\ngather data on this topic.\n\n. Downloaded fram \u201cti yraugetacco7 by guest on April 29, 2007\n\u00a9 2003 Georgia State University, College of Health and Human Sciences. All rights reserved, Not for cer ial Use OF L ized\n\ndistribution.\n\n\fCase 1:05-cv-11547-RWZ Document 32-5 Filed 05/16/2007 Page 6 of 29\n\n358 Timothy M. Maher\n\nEschholz and Vaughn (2001), Kappeler and Vaughn (1997), and Vaughn (1999)\nfocused on civil liability associated with police and correctional officer sexual\nviolence. These researchers point out that police and correctional officers are\nincreasingly being held civilly liable for sexual misconduct and that civil liability\nfor PSM is currently more common than criminal litigation. These studies suggest\nthat there is a high likelihood of municipal liability for PSM and that governmental\nagencies must take this behavior more seriously.\n\nSapp (1994) addresses PSM in a more general context and notes that it is a\n\u201cproblem worthy of study\u201d (p. 188). He says that toleration of PSM at any level\ninvites such conduct and that the problem will not be eliminated until the \u201cboys will\nbe boys\u201d attitude (p. 198) among police administrators and supervisors is\nabandoned.\n\nFinally, Walker and Irlbeck (2002) address the specific problem of \u201cdriving while\nfemale,\u201d which they describe as police officers stopping vehicles on the pretense of\nlegitimate traffic violations in order to sexually harass and abuse female drivers.\nThey conclude that the problem is widespread and that police departments need to\naddress it as such.\n\nThese prior studies represent important steps jn advancing our understanding of\nPSM, and the total weight of the evidence suggests that this behavior is not isolated.\nMuch of the information in prior studies was taken from cases in which the victims .\nmade their victimization public, through either the media, the criminal justice\nprocess, or the civil courts. However, many citizens do not report crimes, provide\ninformation to the police, or testify, even when they have been victimized and it\nwould appear to be in their best interest to do so (Kappeler et al., 1998). In\naddition, much of the previous research has focused primarily on police and\ncorrectional officer behavior involving sexual violence, which includes unobtrusive.\nviewing, sexual harassment, kidnapping, rape, and murder (Baro, 1997; Kraska &\nKappeler, 1995). As a result, many unreported incidents of PSM have not been\naddressed. -\n\nPrevious research has drawn needed attention to PSM, especially the most serious\nforms of this behavior, but not enough research has been done using the technique\nemployed in this article, which addresses a significant component of Jess intrusive\nbut still morally questionable behavior. This behavior includes such activities as\npulling over a driver to get a closer look at or flirt with the vehicle\u2019s occupants,\nrunning a computer check on a vehicle license plate to find out where an attractive\ndriver lives, or having sex in the back seat of a police patrol car. Much of this\nbehavior remains secret because the victims choose not to report the incidents, the\nbehavior is consensual, the victims are unaware that they have been victimized, or\nthe behavior is not considered serious enough to warrant formal reporting.\n\nThe full extent of PSM is unknown, and acquiring information on PSM is\nchallenging. Efforts to uncover it are hampered by several factors. First, many\nwomen who are sexually victimized by police choose not to report the incidents out\n\n\u201c\n\nDownlgaded fram sie gr Seen. IT oy guest on Apri 28, 2007\n\u00a9 2003 Georgia State Liniversity, Coltege of Health and Human Sclenets. All fights reserved, Not for commercial use or unauthorized\ndistribution.\n\fCase 1:05-cv-11547-RWZ Document32-5 Filed 05/16/2007 Page 7 of 29\n\nCriminal Justice Review 359\n\nof fear of retaliation, fear of not being believed, or fear of being blamed for the\nincident (Kraska & Kappeler, 1995; McGurrin & Kappeler, 2002). Sykes and\nMatza (1957) argued that deviants use \u201cneutralization techniques\u201d that help to\ndeflect the stigma of the deviant act from the offender to the victim. These\ntechniques help to create an atmosphere where audiences (the public, policy makers,\nand law enforcement administrators) accept justification for deviance (\u20ac-g., sexual\nmisconduct) and victims are reluctant to report it (Kappeler et al., 1998).\n\nSome victims fear the depersonalization and humiliation of the phenomenon\ncalled \u201csecondary victimization,\u201d by which victims of some crimes, especially\nsexual violence, are often subjected to negative experiences in the criminal justice\nsystem (Murram, Hellman, & Cassinello, 1994; President\u2019s Task Force on Victims\nof Crime, 1982; Schneider, 1993).\n\nFinally, the blue wall of silence, the blue curtain, the code of secrecy, or the ethos\nof secrecy as it is sometimes called, restricts citizens from learning about police\nbusiness. The code of secrecy, in its most general sense, means that officers are not\nto discuss the details of police behavior with others, especially the behavior of\nofficers on their shift (Reuss-lanni, 1983). Some contend that police departments\nand police officers cover up, ignore, or remain silent about incriminating matters\neven when they are brought to their attention (H. Goldstein, 1977; Parish, 2001;\n\u201cSexual Misconduct by Officer,\u201d 1992).\n\nReported cases of PSM are similar to the activities of other hidden populations,\nsuch as drug users, whose activities are clandestine and concealed from mainstream\nsociety and are frequently only exposed and made visible when they enter\ninstitutional settings. Although-the-courts-and other institutional settings provide\nrelatively easy access to some hidden populations, they are limited because they\ngenerally exclude the larger non-institutionalized populations (Watters & Biernacki,\n1989).\n\nMETHODS AND DATA .\n\n_ Two primary objectives of this work are to help identify hidden cases of PSM by\n\nexploring police officers\u2019 perceptions of the frequency of this behavior (in its\nvarious forms) and to identify factors that police officers believe influence officers\u2019\ndecisions to engage in or refrain from such behavior. By recruiting and inter-\nviewing active police officers, it is possible to uncover incidents of PSM that were\nnot reported by citizens and to identify cases that have not entered institutional\nsettings. Although the \u201cblue wall of silence\u201d is a formidable obstacle, Sapp (1994)\nsuccessfully interviewed officers in several states about PSM. His research\ndemonstrates that the wall of silence can be breached and that some officers are\nwilling to discuss incidents involving PSM. He questioned officers about their\ninvolvement in seven different categories of PSM:\n\nQownloaded from \u201c4ns't srgecen for by quest on April 29, 2007\n\u00a9 2003 Georgia State University, College of Heatth and Human \u2018Geiences. All ights reserved. Not fer jal use oF horized\nistribution,\n\n\fCase 1:05-cv-11547-RWZ Document 32-5 Filed 05/16/2007 Page 8 of 29\n\n360 Timothy M, Maher\n\n1. Nonsexual contacts that are sexually motivated. Behaviors that are sexually\nmotivated without direct sexual actions or inferences. These behaviors may or may\nnot be recognized by the citizen as sexually motivated. An example of this type of\nbehavior may include making a sexually motivated traffic stop, whether it is valid\nor invalid, for the purpose of getting a closer Jook at or information from an\noccupant of a vehicle.\n\n2. Voyeuristic contacts. Behavior involving an officer seeking out opportunities\nto view unsuspecting citizens partially clad or nude. Examples of this behavior\ninclude looking in windows of houses or buildings and seeking out parked cars in\nhopes of observing sexual activities of the occupants.\n\n3. Contacts with crime victims. Behaviors that involve an officer who takes\nadvantage of the opportunity to contact a crime victim in part for the purpose of\ninitiating sexual contact with that victim. Examples of this behavior include making\nunnecessary callbacks or visits to a crime victim or taking advantage of the\nsusceptible emotional state of a sex crime victim.\n\n4, Contacts with offenders. Behaviors that involve using police authority to take\nadvantage of suspected offenders who are exposed to the sexually motivated actions\nofa police officer. These include any sexually motivated harassment by an officer.\nExamples include performing unnecessary searches, frisks, and pat-downs or\nrubbing against a suspect in an arrest situation for the purpose of sexual\ngratification.\n\n\u00a7. Contacts with juveniles, Behavior that involves an officer accepting or\ninitiating sexual contact with any juvenile. This also includes any sexually\nmotivated harassment by an officer.\n\n6. Sexual shakedowns. Behavior that involves the demand of sexual service from\nan unwilling citizen who is involved in some illegal activity. The citizen yields to\nthe demands solely on the basis of police authority to arrest. An example of this\nmisconduct is demanding sexual service from a suspect in exchange for the officer\nnot arresting the suspect.\n\n1. Citizen-initiated sexual contacts.-This behavior involves an officer accepting\nany sexual contact that was initiated by a citizen.\n\nThese seven categories serve as the basis of the research reported in this article,\nwith one additional category:\n\n8. Officer-initiated sexual contacts. Any behavior that involves sexual contact\nbetween an officer and a citizen where the officer initiated the contact and the .\ncitizen willingly participates.\n\nAlthough these eight categories are not exhaustive, they do account for a wide\nrange of PSM, including both criminal and noncriminal incidents, and generally\nrepresent those areas involving the vast majority of sexual misconduct.\n\nDownloaded from fils. \u201cort SAgeOLe. Ces by quest on April 29, 2007\n2003 Georgia State University, College of Health and Huma Sciences. All fights resurved. Not fot core\nistribution.\n\n\fCase 1:05-cv-11547-RWZ Document 32-5 Filed 05/16/2007 Page 9 of 29\n\nCriminal Justice Review 361\n\nSome acts of PSM occur while an officer is off duty but result from contact that\nwas initiated while the Officer was on duty and are directly related to the officer's\npower and authority asa police officer. Although duty status is not important to the\nvictims of PSM and off-duty PSM is no less deviant than the on-duty variety, the\ncurrent article focuses exclusively on PSM that occurs while the officer is on duty\nin an official capacity.\n\nTo gather sensitive information from active police officers, one must gain at Jeast\npartial access to the world of the police subculture in order fo establish credibility\nand trust. Making the initial contact may be the most difficult aspect of gaining\naccess to a hidden population. To obtain cases for this study, the researcher began\nby contacting and interviewing police officers with whom the researcher was\npersonally acquainted. Those officers then provided names of other officers who\nwere willing to participate in the study. This methodological approach is commonly\nreferred to as a \u201cchain-referral\u201d or \u201csnowball sample\u201d and is extensively described\nin the literature (Erickson, 1979; Heckathorn, 2002; Sudman, 1976). Similar\nmethods have been used successfully by researchers when gathering information\nfrom hidden populations on deviant, sometimes criminal behavior (Jacobs, 2000;\nTaylor, 1985; Wright & Decker, 1994). ,\n\nUsing a referral network for gathering research subjects does have its limitations.\nFirst, limitations arise from the choice of subjects in the initial sample, who in tum.\nrefer othi\u00e9rs with whom they have social ties, suchas friends, relatives, and other\nassociates, leading to sample \u201chomophily\u201d (Erickson, 1979). Second, referrals\n\n~ occur through network links, so those who are more gregarious and socially central\nare more likely to be drawii into the sample than those who are less social members\nof the population (Heckathom, 2002). Third, the researcher\u2019s personal acquain-\ntance with some of the respondents may have biased their responses. They may\nhave been reluctant to divulge certain incidents of personal misconduct because\nthey were uncomfortable or embarrassed or because they feared a breakdown in\nconfidentiality. A fourth linitation relates to respondents\u2019 fear of violating the\nconfidentiality-of other population members, preventing them from referring certain\nindividuals in order to avoid violating that confidentiality. The first two limitations,\n~~;@lated: to sample homophily and the more socially central individuals being\nrepresented in the study, could apply to this sample. Given the potential difficulties\nin accessing hidden populations, certain limitations must be tolerated. However,\nefforts were made to reduce the likelihood\u2014and control for the effects\u2014of the third\nand fourth limitations.\n\nWith respect to the third limitation, which. suggests possible biased responses\nfrom study participants due to the personal relationship of the participants and the\ninvestigator, it is likely that this problem was reduced by allowing respondents to\nprovide information without actually identifying themselves as having participated\nin the incident. Because responses included both incidents in which the officers\nthemselves participated and incidents that were related to them firsthand by other\n\n. . . Pownloaded from hin vat sagenus 227 by quest on April 29, 2007\n\u00a92003 Georgia State Liniversity, College of Health and Human \u2018Sciences. All rights reserved, Not for commercial use or unauthorized\npstribution,\n\fCase 1:05-cv-11547-RWZ Document 32-5 Filed 05/16/2007 Page 10 of 29\n\n362 Timothy M. Maher\n\nofficers, it was not possible to determine whether the respondent actually\nparticipated in-the-incident:\u2014The-fourth_limitation, which suggests that some\nofficers-may-not be willing to refer some individuals for fear of breaching\nconfidentiality, was addressed by providing initial respondents with the option of\ncontacting potential referrals for their approval (which many did) prior to actually\nreferring them to participate in the study.\n\nThe principal data-gathering instruments for this study consisted of survey\nquestionnaires and personal interviews. The surveys were hand-delivered and were\ncompleted in the researcher\u2019s presence. The questionnaires consisted of 16\nquestions in four sections. The first section was designed to gather general\ninformation about the respondents and their police agencies. The second was\ndesigned to obtain information about the officers\u2019 firsthand and secondhand\nknowledge of PSM in metropolitan area police departments. Firsthand knowledge\nis defined as knowledge gained from having personally participated in PSM, from\nhaving personally witnessed PSM, or from having another officer relate an incident\nof PSM in which he or she participated. Secondhand knowledge is defined as\nknowledge gained from being told about an incident of PSM by a third party.\nOfficers were advised to report those firsthand and secondhand incidents that were\nrelated to them by other officers-only-if-they reasonably-believed them to be true.\nThe third section of the questionnaire focused on respondents\u2019 perceptions of the\npolice assignments and shifts that were most likely to be associated with PSM. The\nfinal section requested officers to rate a list of nine factors on their level of\ninfluence on officers\u2019 decisions to engage in or refrain from PSM. A copy of the\nfull survey instrument appears in the Appendix. ~\n\nCompletion of the questionnaire required approximately 30 minutes to an hour,\nafter which an unstructured interview was conducted lasting approximately 20\nminutes to an hour. During these interviews officers were asked-to elaborate on and\n\n_ provide more specific detail for their survey responses. In addition, all participants\nwere asked questions that were not included in the written survey. Officers were\nasked; for example; to-estimate-the percentage.of officers whom they believed to\nengage in PSM, to state whether they would report a fellow officer for PSM, and\nto relate at least one specific example of an \u201coutrageous\u201d or \u201cnotable\u201d incident of\nPSM of which they had firsthand knowledge. Interviews were not tape recorded,\nand officers\u2019 responses were reconstructed as accurately as possible from\nhandwritten notes. To accommodate the participants, they were asked to suggest\nconvenient yet private location to complete the surveys and interviews. Locations\nincluded the researcher\u2019s office at the university, various locations within the\nparticipants\u2019 own police stations (e.g., their personal offices and police department\ninterview and interrogation rooms), public parks, participants\u2019 homes, and the\nresearcher\u2019s home.\n\nA total of 40 police officers from 14 police agencies participated in the study.\nThe researcher was personally acquainted with 16 officers, who represented 10 of\n\nDownloaded from hin: cy segeneo oo by quest en April 29, 2007 .\n\u00a92003 Georgia State University, College of Hoalth and Human Sciences. All rights reserved. Not for commorcial use of unauthorized\n\ndistdbution.\n\fCase 1:05-cv-11547-RWZ Document 32-5 Filed 05/16/2007 Page 11 of 29\n\nCriminal Justice Review 363\n\nthe agencies in the sample. The remaining 24 participants were recruited using\nrecommendations and referrals from the first 16 officers. The sample consisted of\nat least two officers from every \u2018participating agency, with two exceptions. Thus,\nalthough 14 police agencies are \u201crepresented\u201d in this study, the absence of random\nsampling and the small sample size do not allow for systematic comparisons across\nagencies. Although the representativeness of this sample can never be determined\nconclusively, it must be recognized that PSM is a sensitive subject and this article\nis exploratory in nature.\n\nOverall, the sample of officers possessed considerable experience and were\nemployed at larger departments. Twenty-four of the officers were employed at\ndepartments with more than 50 sworn officers, and 15 officers were employed at\nmedium-size agencies that employed between 20 and 50 sworn officers. Only one\nofficer in the sample was employed at a smali department with fewer than 20\nofficers. The respondents\u2019 average number of years of experience was 13.3. In\nterms of occupational role, 19 officers were assigned to the patrol division, 13 were\nassigned to detective units, four were assigned as sergeants in the patrol division,\nand two held the rank of lieutenant. \u2018Thirty-five officers were male and five were\nfemale. Thirty-two of the subjects reported that they were currently married, four\nreported that they were single, and four reported that they were divorced. Although\nnot random, the sample does reflect differences in agency size, rank, and experience\nthat-are roughly typical of officers employed with police departments in the St.\nLouis metropolitan area (St. Louis County Police Department, 2000).\n\nThe number of reported incidents of PSM ranged considerably among the\nresponding officers. Table | presents the total number of incidents, mean, median,\nand standard deviation for all cases reported by the 40 officers. In addition, Table\n\n_ 1 shows the frequencies for the total number of incidents reported by the 40 officers\ndivided by the total years of.service.and the average number of incidents reported\nper year of service, per officer. The total number of incidents reported by all\nofficers was 20,582 for.an average of 515 per officer. The standard deviation was\n595, The average number of incidents reported by all officers per year of service\nwas 39.\n\nThe distribution of reported incidents is highly skewed, as reflected by the much\nlarger mean than median number of incidents per officer-year, as well as the large\nstandard deviation in relation tothe mean. Two officers reported exceptionally high\nnumbers of incidents. Officer #17 reported a total of 3,470 incidents over a four-\nyear career, averaging 867.5 incidents per year. Officer #19 reported a total of\n1,446 incidents over a two-year career, averaging 723 incidents per year. Both of\nthese cases were outliers. With those cases removed from the sample, the total\nnumber of incidents is reduced to 15,666 and the average per year drops from 39 to\n\nDowntoaded from fits ear fRDerth 757 Dy guest on April 29, 2007\n\u00a97003 Georgia State University, College of Health and Human Sciences. All rights reserved. Not for commercial use of unauthorized\nistribution.\n\fCase 1:05-cv-11547-RWZ Document 32-5 Filed 05/16/2007 Page 12 of 29\n\n364 Timothy M. Maher\n\n29, with a standard deviation of 25. At the same time, some officers reported\nexceptionally low numbers of incidents, averaging only three incidents per year.\n\n_ Table 1\n\nPSM Incidents Reperted by 40 Police Officers\n\nIncidents reported\n\nTotal 20,582\nMean 515\nMedian 268\nStandard deviation 595\nMcan per total years of service per officer 39\n\nSome variation in perceived levels of PSM occurred among officers employed\nat the same agency. For example, officers #26 and #36 were both employed at the\nsame police department as officer #17, who reported an average of 867.5 incidents\nper year, the largest number reported. Officer #26 by contrast reported an average\n\nof 12.4 incidents per year, and officer #36 reported an average of 134 incidents per\nyear. Moreover, officer #19, who reported an average of 723 incidents per year,\n__.was employed at the same agency as officer #28, who reported 7.5 incidents per\nyear, and officer #3 8,-who reported an average of 119.5 incidents per year. This\nsuggests that the officers had very different experiences with regard to their\nknowledge of PSM and that there is much variability in PSM within police\nagencies.\n\"The mean number of reported firsthand-knowledge and secondhand-knowledge\n_incidents forthe-14 departments ranged-from a low of nine incidents per officer per\n_year to a high of 261 incidents per_officer. per year. When the two outliers are\nremoved, the high number drops to 68. The average number of incidents reported\n_per officer per year by department was 54.25, with a standard deviation of 74. The\naverage drops to 22.52 when the outliers are removed (standard deviation = 17).\n\nOfficers\u2019 Firsthand and Secondhand Knowledge of PSM.\n\nOfficers\u2019 recorded firsthand and secondhand knowledge of incidents of PSM was\nlisted in two categories: those incidents that occurred during the last year and those\nthat occurred since the time the officers were first employed in the St. Louis\nmetropolitan area. As shown in Table 2, the 40 officers reported a total of 671!\nfirsthand-knowledge incidents during the last year, for an average of 16.77 per\nofficer. The participants reported a total of 8,306 firsthand-knowledge incidents\n\nDownloaded from hint, o\u00b0 sa geyee.c27 Dy guest an Apri 29, 2007\n\u00a92003 Georgia State University, College of Health and Human Sciences. All fights reserved, Not for commercial use or unauthorized\ndistribution.\n\fCase 1:05-cv-11547-RWZ Document 32-5 Filed 05/16/2007 Page 13 of 29\n\nCriminal Justice Review 365\n\nsince they were first employed in the St. Louis area. The officers served a total of\n532 years of service; therefore, 15.61 firsthand-knowledge incidents per year of\nservice were reported, TT TT\n\nTable 2\n\nKnowledge of PSM Reported by 40 Police Officers\n\nFirsthand knowledge Secondhand knowledge\n\nLast year Ever Per year service Last year Ever Per year service\n\nNonsexual contacts 213 3,481 6.54 374 3,901 7.33\nVoyeuristic behavior 172 1,426 2.68 259 3,032 5.69\nContacts with juveniles 2 66 12 2 47 O08\nContacts with crime victims 35 242 45 74 202 37\nSexual shakedowns I iW 02 4 40 07\nContacts with offenders _ 27 168 31 91 314 59\n- Citizen-initiated-contacts 110 1,150 2.16 246 1,899 3.56\n\u201d Officer-initiated contacts 61 1,762 3.31 436 2,841 5.34\nTotal! 671 8,366 1,486 012,276\nMean total per year 16.77 1561 3715 23.07\n\nSecondhand-knowledge responses were also listed in two categories: those\n__ incidents that occurred during the last year and those that occurred since the time\nthe officers-were first employed in the St. Louis:area: The-40 officers reported a\ntotal of 1,486 secondhand-knowledge incidents of PSM during the last year, for an\naverage of 37.15 incidents per officer. They reported a total of 12,276 secondhand-\nknowledge incidents since the time they were first employed in the St. Louis area,\nfor an average of 23.07 incidents per year of service. ~\n\u201cTelescoping,\u201d a problem common to some survey research, is the tendency to\nreport incidents that occurred outside the reference period used in the survey. The\ndata for firsthand-knowledge and secondhand-knowledge incidents exhibit\nmeasurement instability, suggesting that telescoping may have occurred among\nofficers reporting PSM. It is important to mention that the numbers of incidents\nreported as having occurred beyond the last year, over the entire careers of the\nofficers, are in some cases approximations, especially for those categories where\nlarge numbers of incidents were reported. Although unfortunate, this is to be\nexpected in a study of this nature, and this especially holds true for the more\nexperienced officers who had to recall from longer periods.\n\nDownloaded from \u201c!15 itr raget.o oom by quest on April 29, 2007\n\u00a9 2003 Georgia State University, College of Health and Hurnan Sciences. All rights reserved. Net for coramercial use or unauthorized\nistribution.\n\fCase 1:05-cv-11547-RWZ Document 32-5 Filed 05/16/2007 Page 14 of 29\n\n366 Timothy M. Maher\n\nThe number of PSM incidents reported by officers in this study may appear high\nor even alarming, but, because no_previous research has employed the technique\nused in this study, it is difficult to determine whether these figures are unusual.\nThis demonstrates the need for additional research in this area. Itis likely, however,\nthat not all reported incidents of PSM in this study are mutually exclusive and that\nsome incidents were reported by more than one officer and consequently were\ncounted more than once. Duplication of reported incidents is more likely to have\noccurred among officers employed at the same agenicy, as opposed to interagency\nreporting. It is also likely that more duplication occurred in reporting for\nsecondhand-knowledge incidents than for firsthand. How much duplication in\nreported incidents occurred is unknown. However, dup! ication of reported incidents\ndid in all likelihood result in an inflated value in the overall number of incidents.\n\nThree categories of PSM account for a majority of the incidents: nonsexual\ncontacts, voyeuristic behavior, and officer-initiated contacts. Two categories of\nbehavior reveal very low levels of misconduct: contacts with juveniles and sexual\nshakedowns. The remaining three categories, citizen-initiated contacts, contacts\nwith crime victims, and contacts with offenders, show moderate to low levels of\nPSM. The same three categories that reveal high levels of firsthand knowledge also\nreveal high levels of secondhand knowledge. -\n\nThe data from this study indicate that officers perceive that the majority of PSM\nincidents\u2019do not-involve conduct of-a serious: criminal nature (e.g., rape, sexual\nassauit, contacts with juveniles, and sexual shakedowns). Firsthand-knowledge and\nsecondhand-knowledge incidents involving juveniles, sexual shakedowns (e-g.,\ntrading \u2018sex-for not arresting -the suspect), and contacts. with offenders (e.g.,\nunnecessary searches) account for only three percent or 646 of the 20,582 total\nincidents ever reported. The data also reveal that PSM is rarely violent (in\ncomparison to nonviolent incidents) and that it frequently involves consensual\nbehavior (willing participants not coerced through police power or authority or\n\n-acting under some. form of, duress)...A total of 7,652 or 37 percent of incidents ever\n\nreported (firsthand _and_secondhand knowledge of citizen-initiated and officer-\ninitiated contacts) involved consensual contacts among adults. It is important to\nnote, however, that the data reflect the worldviews of the reporting officers, and\nincidents that were reported as consensual by survey participants may not be viewed\nas consensual by others, including other participants.\n\nNonsexual contacts (e.g., making atraffic stop for the purpose of getting a closer\nlook at or information from the driver), voyeuristic behavior (e.g., viewing\nunsuspecting lovers having sex in their automobile), and contacts with crime\nvictims (e.g., unnecessary callbacks or visits with an attractive crime victim)\naccount for 60 percent or 12,284 of the total incidents ever reported. These\ncategories of PSM all involve the misuse of police authority and in some instances\ncould potentially be classified as criminal offenses. (These percentages remain very\nsimilar with the two outliers removed from the data.)\n\n. Downloaded from nun tou sienna vem by guest on April 29, 2007\n2003 Georgia State University, College of Health and Human \u2018Sciences. All rights reserved. Not for jal use oT horized\n\nc zed\ndistributian.\n\n\fCase 1:05-cv-11547-RWZ Document 32-5 Filed 05/16/2007 Page 15 of 29\n\nCriminal Justice Review 367\n\nThe lack of reported serious incidents of PSM could be interpreted in different\nways: First, officers.may not be willing to report serious incidents for fear of\npossible repercussions for offending officers. Second, there may be far fewer\nserious incidents actually occurring. Third, officers may be inaccurately reporting\nincidents because of their personal perceptions of what is forced and violent and\nwhat is not, However, even if the serious incidents in this study were underreported\nby a factor of two or three, the great majority of reported incidents would remain\nin the less serious categories. Although they are less intrusive, these less serious\nincidents are still morally questionable behavior, are no less wrong, should be\naddressed, and should not be tolerated. Although serious criminal incidents did not\nconstitute a Jarge percentage ofthe PSM reported in this survey, previous literature\nsuggests that police sexual violence is not uncommon and is fostered by the police.\nsubculture (Eschholz & Vaughn, 2001; Kappeler & Vaughn, 1997; Kraska &\nKappeler, 1995; McGurrin & Kappeler, 2002).\n\nOfficers in the current study were asked to estimate the level of participation for\nthe eight categories of PSM addressed in this research, On average, they reported\nthat 36.5 percent of all officers in their respective departments participated in at\nleast one of the eight forms of misconduct. This figure is quite close to the\nprevalence measure reported in prior research in which it was related that police\ndepartment employees believed that 31.84 percent of their fellow officers had sex\nwhile on duty (Barker, 1978). However, the level of perceived participation in PSM\nvaried significantly among officers in this study, with two officers reporting less\nthan five percent participation, while two others reported 100 percent participation.\n\nOfficers\u2019 Definitions\n\nMany officers struggled to provide a definition of sexual misconduct, and few\nwere able to do so without significant deliberation. Two officers chose not to\nprovide any-definition.Those two officers stated that they could provide examples\nof this behavior but that they could not clearly define the term. One of the officers\nsimply wrote \u201cunsure\u201d and the other wrote \u201cawkward.\u201d +\n\nVariance in the number of reported PSM incidents depends on how officers\ndefine the behavior. Only one officer reported having seen a definition for PSM,\nbut that officer could not recall the source. One officer stated that his department\nhad a policy specifically addressing PSM; however, further investigation revealed\nthat this was inaccurate and that no specific policy for PSM existed in that\ndepartment. Even without specific policies, however, many definitions provided by\nsurvey participants were generally similar.\n\nFor example, common to many definitions was the distinction between\nconsensual and nonconsensual or unwanted behavior. Of course, whether an act is\ntruly consensual or unwanted is a matter of opinion, and some acts viewed as\nconsensual by the officer may in fact be viewed as unwanted by the other person.\n\n. Downloaded from unr\"! fe geg2tec cov by quest on Apri 29, 2007\n2003 Georgia State University, College of Health and Human Sciences. All rights reserved, Mot for jai use or ized\nistribution.\n\n\fCase 1:05-cv-11547-RWZ Document 32-5 Filed 05/16/2007 Page 16 of 29\n\n368 Timothy M. Maker\n\nNevertheless, this perception among officers suggests that police officers view\ncertain forms of PSM as less serious and that certain behaviors (e.g., those acts that\nare viewed by officers as consensual), although still wrong, are more likely to be\ntolerated, ignored, or covered up.\n\nMany officers (7 = 20) included in their definitions some reference to \u201con-duty\u201d\nbehavior or activities occurring in the official capacity of their job. Although\nofficers generally agreed that sexual misconduct occurring on duty was\ninappropriate, only one officer mentioned \u201coff-duty\u201d behavior, and only one\nmentioned behavior pertaining to secondary police-related employment. This\nsuggests that police officers may not perceive any connection between officers\u2019\nsexual misconduct while off duty and the police profession, including the power and\ncontrol that comes with the profession. Duty status is irrelevant, however, and the\n\n_ victim does not care about the time of occurrence (on duty or off duty) but is only\nconcerned that the officer used the authority and power of their police position to\nperpetrate the act.\n\nThere was little agreement on, exactly what behaviors constitute PSM. In\naddition, officers were generally uncertain about the disciplinary action associated\nwith PSM and many suggested that it would probably depend on the severity of the\nincident. When interviewed about their definitions, many officers suggested that\nas long as the behavior was consensual and between adults it should not result in\ntermination. Others, however, noted that ifan officer were repeatedly disciplined\nfor \u201cless serious\u201d forms of PSM it might be grounds for termination. On the other\nhand, all of the subjects agreed that any incident involving nonconsensual behavior\nis criminal, which is never acceptable and should result in termination or criminal\ncharges.\n\nHow police officers construct their perception of PSM is crucial for identifying\nlevels of PSM and ways to control it. In addition, the lack of consensus among\npolice officers about what disciplinary measures should be taken for PSM suggests\naneed for-specific guidance. Only one officer from the 14 departments represented\nin this-sample-reported-having knowledge of a specific written policy on PSM.\nOfficial representatives of six of the 14 agencies were contacted, and they\nconfirmed that their departments had no such policy; these included a representative\nof the agency of the officer who reported that his department had a policy on PSM.\nIn addition, only three officers could vaguely recall PSM being mentioned during\n\ntheir police academy training or by their field-training officers. Consequently,\nofficers who participated in this study had received virtually no official guidance\nor information for constructing a definition of PSM.\n\nOfficers\u2019 Perceptions of Influential Factors\n\nThe survey participants were asked to rate a set of nine factors to assess those\nfactors\u2019 influence on the decision to engage in or refrain from PSM. The rating\n\nDownloaded from ntsc) sageive.geo by quest on Apri 25, 2007\n\u00a9 2003 Georgia State University, College of Health and Human Sciences. Allrights reserved. Hot for commercial use of unauthorized\nistioution.\n\fCase 1:05-cv-11547-RWZ Document 32-5 Filed 05/16/2007 Page 17 of 29\n\nCriminal Justice Review 369\n\nscale ranged from one to four, with one being not important and four being very\nimportant. The nine factors and their ratings are displayed in Table 3.\n\nTabie 3\n\nViews of 40 Police Officers on Factors Influencing PSM\n\nFactors Mean rating\nPersonal morals and values 3.8\nSelf-control (opportunity exists, little chance of discovery) 37\nConcem over reaction of spouse or significant other 32\nAvailability of misconduct opportunities 2.9\nDisciplinary measures taken by department 2.8\nClimate of department and/or squad assignment 2.8.\nLack of adequate supervision 2.7\nOfficer peer pressure 2.5\nFormal written policy of department on sexual misconduct 2.4\n\nRating scale: 4 = very important, 1 \u00a9 not very important,\n\nThe officers reported that their \u201cpersonal morals and values\u201d most influenced\ntheir conduct (mean = 3.8). The officers also indicated that self-control (mean =\n3.7) and concern over the reaction of a spouse or significant other (mean = 3.2)\nwere also very influential. Four factors received high to moderate ratings:\navailability of misconduct opportunities (mean = 2.9), disciplinary measures taken\nby the department if misconduct.-is discovered (mean = 2.8), climate of the\ndepartment or squad assignment (mean = 2.8), and lack of adequate supervision\n(mean = 2.7). Officers were less likely to report that officer peer pressure (mean =\n2.5) or a formal written policy of the department on sexual misconduct (mean = 2.4)\ninfluenced their behavior. Although participants in this study believed that an\nofficer\u2019s personal moral code is the factor that most influences the likelihood of\nPSM, no factor received a rating of less than 2.4, suggesting that police officers\nperceive a number of factors as having influence on officers\u2019 decisions to engage\nin PSM.\n\nDISCUSSION\n\nThis section of the article discusses officers\u2019 comments about their survey\nresponses and statements pertaining to additional questions that were not included\n\nDownloaded from sy 01.7 fatesee 7 by guest on April 29, 2007\n\u00a92003 Georgia State University, College of Health and Homan Sciences. All rights reserved. Not for ial use ork rized\ndistribution.\n\n\fCase 1:05-cv-11547-RWZ Document 32-5\n\n370\n\nTimothy M. Maher\n\nin the written survey. These responses were reconstructed from handwritten notes\nand help provide a richer and more detailed understanding of police officers\u2019\nperceptions of PSM. me mer mee\nThe results of this article suggest that respondents viewed sexual misconduct as\nsomething primarily guided by personal ethics and morals, implying that officers\nchoose to engage in sexual misconduct based primarily on individually caused and\npredetermined behavior. This lends support for the police myth of the \u201crotten\napple\u201d (Sherman, 1980), which suggests that police deviance is isolated, like a\nsingle rotten apple in a barrel of good apples. This myth suggests that police\ncorruption and misconduct are viewed as singular aberrations and not as being\nwidespread or in any way supported by the state, the police organization, or a\ndeviant subculture. This contrasts with previous research suggesting that police\ndeviance is in part explained by the networking of individuals within the police\norganization and that the police subculture sanctions and promotes such behavior\n(Best & Luckenbill, 1994; McGurrin & Kappeler, 2002). The idea that PSM is\nisolated also contradicts data reported in this article: Respondents reported that a\nsubstantial number (36.5 percent) of all officers engage in some form of PSM.\nThe \u201crotten apple\u201d myth is a powerful construct, however, and it continues to be\nwidely promoted by police administrators and management, helping to shape\n_ officers\u2019 worldviews (Kappeler et al., 1998). Therefore, officers in this survey may\n~gimply- be reflecting a widely held view that they have been-conditioned to accept.\n\nThese contrasting views on the causes of PSM demonstrate the need for additional\n_research to capture the nuances and complexity of the issue.\n\nItshould come as no-surprisethen-+that police officers in this study viewed control\nfactors related to personal morals and values (e-g., self-control and concern over the\nreaction of a spouse) as most influential in their decisions to engage in PSM.\nOfficer #32 concluded, \u201cIt all boils down to an officer\u2019s personal beliefs. Just as\n\n_eriminals choose to break the law or not, cops who do this sort of thing (PSM) make\n\u2018a choice-todo it. -J-don\u2019t see anybody-twisting officers\u201d\u2019arms.\u201d\n- More~ surprising perhaps. is.-the. _availability of misconduct opportunities\ninfluencing officers\u201d behaviors. Much PSM occurs at night, under the cover of\n_.darkness, when officers are less busy, few people are around to interrupt such\nactivity, and oversight by supervisors is at its lowest. Prior research suggests that\nopportunity is enhanced by the existence of lonely suitors seeking attention, or other\nwilling participants such as young groupies who initiate sexual contacts because\nthey are attracted to the uniform, the weapon, or the power of police officers (Sapp,\n1998). Officer #2 said this about opportunity for PSM:\n\nI'd say there are lots of opportunities for a cop to indulge in some extra curricular activity.\n\nIt\u2019s not like women are falling all over us or anything like that, but every once in a while\n\nsome gal comes along that makes if pretty clear that she is interested. 1 think most guys\nignore or blow off the advances, but some do not and set something up for after work. Some\nguys don\u2019t want to wait that long or can\u2019t make it happen after work because it might arouse\nsuspicion by their wives or girlfriends, so they meet the gal in some secluded spot while on\n\nDownloaded from ons seagate com by guest on Apri 2g, 2007\n\n\u00a92003 Georgia State University, College \u2018of Health and Human Sciences. All rights reserved, Not for commercial use or unauthorized\n\ndistribution.\n\nFiled 05/16/2007 Page 18 of 29\n\fCase 1:05-cv-11547-RWZ Document 32-5 Filed 05/16/2007 Page 19 of 29\n\nCriminal Justice Review 371\n\nduty. Young, good-looking guys sec it ali the time. | remember this one guy (who is no\n\n__ longer employed at this department but still works in law enforcement} who got more girls\nthan you could shake a stick at. I think that if he didn\u2019t get some action on aset of midnight\nshifts (11:00 p.m.\u20147:00 a.m.) he thought he was getting cheated,\n\nOfficer #19 observed, \u201cMan, some women are just attracted to cops. I don\u2019t\nknow if it\u2019s the uniform or what. J read somewhere that cops have one of the\nhighest divorce rates. | guess its no surprise a lot of police officers\u2019 marriages don\u2019t\nwork with women firing on them so much.\u201d Officer #6 made this comment about\nopportunity and supervision: \u201cMost supervisors don\u2019t follow you around like a\nmother hen. They watch you pretty close at first, but once they get to know you and\nbelieve you are not a knucklehead, they pretty much leave you alone. Some days\nyou only see your supervisor at the beginning and end of the shift. So, if a cop\nwanted to screw around, it wouldn\u2019t be hard to do. What I mean is that its not likely\na supervisor will catch you.\u201d\n\nSocial factors or those factors related to the organizational culture of policing\nreceived mixed ratings. The police subculture is well documented and many writers\nhave described it (Crank, 2000; Manning, 1995, Reuss-lanni, 1983). Manning\n(1997) defined police culture as the \u201caccepted practices, rules, and principles of\nconduct that are situationally applied, and generalized rationales and beliefs\u201d (p.\n360). Ail subgroups teach group members norms and values that are highly valued.\nby the group. However, the isolation and separation of police officers from the\npublic caused by the unusual work schedules and the continued formal socialization\nprocess of police work create a subculture that is especially powerful (Kappeler et\nal., 1998): It sets them apart from general society and-greatly influences their lives\nand careers,\n\nKappeler et al. (1998) contend that, for those who deviate from the customs and\npractices of the police culture, it could mean suffering the consequences of\nsanctions by police coworkers. Those sanctions include being isolated from peers\u201d\nand \u00e9ven being placed in life-threatening situations. These researchers concluded\n\nthat, in some cases, deviant practices may become part of the police culture. In this\n\nway, informal sanctions of certain deviant practices, including sexual behaviors, can\nbe promoted or discouraged, depending on the informal values and norms of an\norganization. The extent to which the police subculture plays a role in officers\nforming attitudes and beliefs about sexual behavior is not known, but research of\nits function in this role should be pursued.\n\nOfficer peer pressure to engage in PSM received the second lowest rating of the\nnine factors identified in this article. Although peer pressure to actively engage in\nPSM may be perceived as low, the police culture may create an atmosphere in\nwhich officers are conditioned to be apathetic toward PSM, even if they themselves\ndo not participate. Law enforcement is not alone, and similar atmospheres exist in\nother institutions where people in authority take advantage of their position and\nengage in sexual misconduct. Inappropriate behavior involving such authority\n\nDownloaded fom mien segener cor by guest on April 29, 2007\n\u00a92903 Georgia State University, College of Health and Human Se ces. All rights reserved. Not for commercial use or unguthonzed\nistribution.\n\n\fCase 1:05-cv-11547-RWZ Document 32-5 Filed 05/16/2007 Page 20 of 29\n\n372 Timothy M. Maher\n\nfigures as little league coaches, scout leaders, therapists, correctional officers, and -\nreligious leaders is well documented (Baro, 1997; Flowers, 1994; S$. Goldstein, \u00b0\n1987; Grenz & Bell, 1995). The recent sexual abuse scandal confronting the\nCatholic Church provides a good example. Although the Catholic Church does not\ndirectly promote or encourage inappropriate sexual behavior among its priests, it\nmay condone such behavior by failing to discipline abusive priests or report them\nto authorities. The failure of the Church to effectively deal with and report sexually\nabusive priests may have created an atmosphere where some men are drawn to the\npriesthood because they anticipate opportunities to engage in sexual misconduct\nwithout significant fear of formal discipline or punishment. Similar dynamics may\noperate in police agencies. Officer #33 had this to say:\n\nMost cops are good guys and don\u2019t commit crimes or make a habit out of breaking the rules,\nbut this job sure does provide the opportunities and temptations. Lets face it, cops have a\njot of power and if they decide to abuse that power, its not that hard for them to get away\nwith it. Many cops will go a long way to help protect their own. 1] am not saying that cops\ncover for other cops in all cases . . . but if it is something minor, like having sex on duty, it\nisn\u2019t likely cops will \u201crat out\u201d other cops for something that doesn\u2019t hurt anyone.\n\nThe social factor \u201cclimate of the department or workplace\u201d ranked slightly\nhigher. Although most officers indicated that they did not feel pressure to engage\nin sexual misconduct from fellow officers, they did acknowledge that the workplace\nclimate or atmosphere might influence some officers. Although there may not be\nsignificant pressure to engage in PSM, there may be considerable pressure not to\nreport such conduct due to the police cultural code of secrecy (Reuss-lanni, 1983).\nOfficer #3 summed it upthis way:\n\nIf there is a Jot of \"playing around\u201d going on at a department or on a particular squad, then\na guy might be more tempted to participate. This is especially true for new officers whe\nwant to fitin, ]also think it is more likely ifthe bosses participate or don\u2019t seem to care very\nmuch if their officers do. Some supervisors and even chiefs are known to have been \u201creal\n_ ladies men\u201d in their day, so they aren\u2019t going to jump all over their men for doing the same\nthing they did or may still be doing. Generally, the only time supervisors talk to their\nofficers about something like this (PSM) is when they get a complaint.\n\nA department\u2019s formal written policy on PSM was identified as the factor least\nTikely to influence officers\u2019 behavior in this area. However, formal written policies\nare currently the dominant approach to controlling police behavior, and officers are\nmore likely to respect and follow the rules if they are formally adopted (Walker,\n1999). No department represented in this article had a formal policy on PSM.\nSurvey participants generally concluded that most officers know that PSM is wrong\nand that if discovered the behavior could result in some form of discipline.\nHowever, PSM is rarely officially detected, and most officers said that they did not\nbelieve discipline would be severe for most forms of PSM. Kiockars, Ivkovich,\nHarver, and Haberfeld (2000) did not specifically address PSM in their study of\npolice integrity, but they did report that police officers regarded nonserious rule\nviolations as warranting little or no discipline. This supports the findings of\nMcGurrin and Kappeler (2002), who suggested that there is a relative lack of\n\nD ded from fic vo segetue com by gueston Apri 29, 2007\n\u00a92003 Georgia Stale University, College of Health and Human Sciences. Alf rights reserved, Not far commercla! use of unauthorized\nistribution.\n\fCase 1:05-cv-11547-RWZ Document 32-5 Filed 05/16/2007 Page 21 of 29\n\nCriminal Justice Review 373\n\n\u2018response to police sexual violence by state officials. Officer #10 related the\nfollowing about a policy for PSM: \u201cFor Pete\u2019s sake, cops know they are not\nsupposed to have sex on duty. Condoms aren\u2019t exactly standard department-issue.\nWe don\u2019t need a formal policy to tell us sex on duty is wrong. Still, some guys\ndon\u2019t care. As long as they think they won\u2019t get caught, or punished severely ifthey\ndo, they\u2019re not going to stop. When opportunity knocks . . .\u201d\n\nOfficer #24 offered the following:\n\n1 guess it couldn\u2019t hurt to have a policy for PSM, but only if it is enforced, The department\nwould have to make it clear that this type of thing is not tolerated and if you get caught, you\nget canned. Right now, it is almost like nobody cares. Everybody knows it goes on, but\nnobody makes a big deal. Not until some citizen reports it, or the media geisa hold of it will\nPSM become a hot issue. Maybe then we will get a policy.\n\nOfficers suggested that PSM is relatively common. Although they generally\ncontended that not all officers participate, they claimed that enough do participate\nto create an atmosphere where it is widely recognized by police personnel that\nsexual behavior related to the eight forms of misconduct examined in this article is\nnot unusual. Officer #39 presented this conclusion:\n\nIn the strict sense of the word, everybody.1-know has committed at least one of these\nviolations. Cops are just like all men, if they get a chance they are going to do it. 1 don\u2019t\nmean they are all out cheating on their wives, but you cart tell me that when a cap catches\na couple of young lovers making out or some girls skinny dipping, he isn\u2019t going to take a\ngood hard look, probably a littl\u00e9 longer than he should. So if jooking for an extra moment:\nor two before you make them get dressed qualifies as PSM, then I tell you all cops are guilty,\neven me. .\u2014 eee oe vos we\n\nThe findings reveal that not all officers report similar levels of PSM. The\nvariation in the numbers of PSM incidents reported was explored by asking survey\nparticipants to try to explain the Jack of consistency in reported incidents. Many\nofficers said that they would expect t considerable differences. They suggested that\n\n~Some~offi\u00e9ers might \u2018be \u201cifitentionally- d\u00e9ceptive because they do not want this\ninformation to become public knowledge. _Other officers by contrast stated that the\nnumbers of reported incidents are likely to depend on shift or assignment\nworkgroups. They said that certain officers or groups of officers engage in more\nPSM and that an officer who is assigned to one of those squads is more likely to\nhave knowledge of sexual misconduct. in addition, 88 percent of the respondents\nindicated their belief that most PSM occurs on the midnight shift (11 p.m. to 7\na.m.). Some survey participants suggested that officers who spend more time\nworking the midnight shift are more likely to be exposed to and to have knowledge\nof PSM. Although it may be true that more PSM occurs on the midnight shift, most\nofthe officers in this study, especially those assigned to patrol, rotated between day,\nevening, and night shifts. Therefore the influence of temporal shift assignment on\nofficers\u2019 knowledge of PSM is unclear.\n\nDownloaded from Poin cr sayenws 2 by guest on April 29, 2007 .\n\u00a9 2003 Geargia State University, College of Heaith and Human Sele ees. All nghts reserved, Not for \u2018cial use oF zed\ndistribution.\n\n\fCase 1:05-cv-11547-RWZ Document 32-5 Filed 05/16/2007 Page 22 of 29\n\n374 Timothy M. Maher\n\nIn terms of assignments, the vast majority of officers (92 percent) reported that\n_misconduct is more likely to occur among patrol officers than among officers on\nother assignments. Only three officers (7.5-percent-of the-sample) indicated that\nmore PSM occurs among officers assigned to duties other than patrol, such as\nundercover positions in vice or drag units. Only one officer reported that detectives\nare more likely to engage in PSM. Officers\u2019 perception that PSM occurs more\namong patrol officers is likely influenced by the fact that many (27 percent) of the\nofficers in the sample have been assigned to no other duties than patro!. In addition,\nalmost all of the officers in the sample have spent more time assigned to patrol than\nin other assignments. Officer #2 said this about the influence of assignment on\nPSM: \u201cThere is no doubt in my mind that most sexual misconduct occurs among\npatrol officers. I have worked as both a patrolman and detective, and patrol is\nwhere the action is. That doesn\u2019t mean patrol officers as a whole are more deviant\nor perverted, only that they have the most opportunity. Even though detectives are\ngenerally supervised less than patrol officers, the \u201cdicks\u2019 (detectives) spend a lot of\ntime in the office sitting behind a desk.\u201d\n\nSome respondents suggested that certain officers might have less knowledge of\nPSM because they are less sociable and keep to themselves. In addition, some\nofficers have reputations as \u201cstraight\u201d or \u201cno nonsense\u201d officers who are unlikely\nto participate in or approve of such conduct and as aresult-are less likely to have\nknowledge of PSM. For example, Officer #10 provided the following perspective:\n\n1 don\u2019t care what other guys do. I just know I'don\u2019t go in for that Sart of thing and most of\nthe other people around here know it. So I don\u2019t pay much attention to what some guys do\n\n\u201cWhen they ar\u00e9n\u2019t busy. [just know they better be there for me ifthe \u201cshit\u201d hits the fan. They\nbetter carry their part of the joad and not expect me to cover for them when they are off\nhaving fun.\n\nOfficer #21 stated, \u201cEverybody knows | don\u2019t approve of that behavior. If 1\nobserve another officer involved in some sort of sexual misconduct, | will report\nthem in a heartbeat. 1 guess that is Why I'don\u2019t have a lot to report to you in this\nsurvey. Either the other guys hide it from me or there isn\u2019t much going on. |\nsuspect however, there is more going on than I know about.\u201d\n\nOfficers were also asked to comment on the definition of PSM that they provided.\nAlthough there is some ambiguity about the definitions of PSM and the most\nappropriate sanctions, all participants indicated that they believed PSM to be\ncovered under their department\u2019s general policy of \u201cConduct Unbecoming a Police\nOfficer\u201d (CUPO). None ofthe officers, however, could unequivocally state whether\ntheir department\u2019s policy specifically addressed PSM. A review of one\nparticipant\u2019s department policy on CUPO revealed that it did not specifically\nmention PSM. Officer #28 provided the following comment about his definition of\nPSM:\n\nIts pretty simple, you don\u2019t get paid to enhance your love life. You show up and do your\njob. I don\u2019t believe the job includes getting dates or having sex on duty, There may not be\n\n. Downloaded frem si icin sacecin ote7 by guest on Apri 29, 2007\n\u00a9 2003 Geergia State University, Cotiege of Health and Human \u2018Sciences. All rights teserved, Not for commercial use of unauthorized\nistripution.\n\fCase 1:05-cv-11547-RWZ Document 32-5 Filed 05/16/2007 Page 23 of 29\n\nCriminal Justice Review 375\n\na list of sexual behaviors you can or can\u2019t do while on-duty, but J think most guys know\ncertain things are not permitted. Still, some guys do it anyway. Not ail questionable\nbehaviors are completely clear though, like spending a lot of time with the night shift gas\nstation attendant, just talking mind you, but with the intention of perhaps hooking up iater\nwhen you get off work. You really aren\u2019t doing anything wrong per se, but I guess you are\nnot paid to spend time flirting with people. Still, I think some officers would see this\nbehavior as good public relations.\n\nParticipants in the survey also were asked to relate an \u201coutrageous\u201d or \u201cnotable\u201d\nexample of PSM of which they had firsthand knowledge. Many officers related\nsimilar incidents ranging from having sex ina patrol car to meeting a girlfriend at\nher house to have sex. Two of the examples are provided below. Officer #8\nreported the following incident:\n\nWhen 1 was brand new, I got put on a shift with some real wild guys. One night about two\nor three in the morning I thought something was a little strange because the other guys on\nmy squad asked me to answer 4 couple of their calis. They were simple calls and 1 didn\u2019t\nmind, but I began to wonder what was going on, so 1 went looking for them. Well, I found\nthem and I tell you it shocked me. It was truly unbelievable. I discovered two other officers\nand my sergeant standing around completely naked holding beer bottles in their hands.\nThere were also four girls there who were also naked or topless. They were ata pool at the\nback of a private club. ] tell you 1 wasn't happy. What if | needed some back-up? This\noccurred about three times that summer. They even asked me to join them one time, but |\nknow it was just a joke because they knew I would tum them down. | think they did it just\nso L-wou!d not report them---Well.-I never did report them, tike said I was brand new and\n{ didn\u2019t want to make-waves. ~ .\n\nOfficer #11 reported this incident:\n\nThere was this other copper on our squad who had a few acres of property located in an\nunpopulated section in our sector. On occasion, some of the officers would go there and do\na little partying. | recall one time when officers and civilians were drinking a bit and\nsuddenly people began to take their clothes off and started dancing naked around the fire.\n\n_.. ...] didn\u2019t see people having sex, but I did see some people kissing. 1 heard the party fasted all\nnight and some officers made:shift-change-and returned.for more.\n\n-\u2014 Bjnally, officers were questioned about their willingness to report a fellow officer\nfor PSM. All but one respondent stated that it would depend on the severity of the\n-yiolation. Only officer #21 indicated that he would report all incidents of on-duty\nsexual misconduct. The others stated that if the incident involved a serious\nviolation of the law, for example a rape, sexual assault, or sex with a juvenile, they\nwould most likely report the incident. However, if the incident involved something,\niess serious, it was unlikely that they would report it, even if it clearly violated a\nminor law or a department regulation. This includes supervisors who stated that it\nwas unlikely that they would report minor violations of PSM and that they would\nprobably handle the situation informally. They stated that only if the behavior\npersisted would they be likely to formally report the officer.\nThis willingness among police officers to report some violations of PSM and not\nothers provides an example of ethical relativism, which suggests that officers in\n\nDownloaded from sistem segeo sce by guest on April 29, 2007\n\u00a92003 Georgia State University, College of Health and Hurnan Sciences. All rights reserved. Not for commercial use of unauthorized\nistribution.\n\fCase 1:05-cv-11547-RWZ Document 32-5 Filed 05/16/2007 Page 24 of 29\n\n376 Timothy M. Maher\n\ndifferent circumstances have different expectations of one another based on what\nthey learn asa result of cultural traditions and socialization (Kleinig, 1996a). Police\nofficers face a myriad of ethical dilemmas during their careers and must learn,\nprimarily from other officers, how to react to situations and individuals, while\nkeeping in mind potential gains and losses (Elliston, 1985). Officers frequently\nconfront situations where no clear course of action emerges. They may be torn\nbetween doing what is legally correct and following what they feel is a more\nsympathetic course of action, deciding, for example, whether to arrest a woman on\na misdemeanor traffic warrant when there are young children in the car, or whether\nto arrest a borderline drunk driver or simply to calla cab. Many officers also find\nthemselves in a position where they are confronted by dilemmas regarding fellow\nofficers, their families, or friends. Many report differences in how they handle\nsituations involving other officers and indicate that they are more reluctant to report\nsome incidents because they do not want to be responsible for getting a fellow cop\nin trouble (Pollock, 1997). Officer #33 had this to say about reporting a fellow\npolice officer for PSM:\n\nlam not going to stand by while a police officer or anyone else for that matter gets away\nwith raping a woman or molesting a child. On the other hand, I don\u2019t believe that most\nsexual misconduct committed by police officers involves rape or child molesting. ! think the\n-vast majority of misconduct is far less serious and | would hate to cause fellow officer gricf\nfor something minor. You know every profession has its perks, so cops usually don\u2019t write\nother cops tickets or arrest cops for DWI. -The same thing goes for this (PSM), as long as\nits not something real bad, 1 probably would let it ride.\n\nAlthough the use of discretion in law enforcement is well documented (Davis,\n1975; Greenlee, 1980; Kleinig, 1996b) and is generally accepted as an unavoidable\nand indispensable part of policing (Davis, 1975), some contend that increased\nscrutiny for the more serious ethical dilemmas facing police officers (\u00a2.g., reporting\na fellow officer for PSM) is warranted (Pollock & Becker, 1991).\n\nSUMMARY AND IMPLICATIONS\n\nResults of this article suggest that police officers perceive that PSM is common.\n\u2018Although this res\u00e9atch did not uncover significant \u2018levels \u2018of \u2018serious criminal\nconduct, like the sexually violent behavior reported by Kraska and Kappeler (1995)\nand Vaughn (1999), it does suggest that much police sexual behavior at the very\nleast violates widely accepted ethical standards commonly associated with law\nenforcement. Although much PSM typically does not stimulate the same level of\nmedia or citizen interest as some other forms of police deviance (\u00a2.g., brutality, drug\ncormption, or racial discrimination), most civilians would be outraged to discover,\nfor example, that police officers common ly stop vehicles in order to \u201ccheck out\u201d or\ntalk to the driver or passengers, simply because they find them attractive.\n\nDownloaded from nur ier sagenet co by guest on Apri 25, 2007\n\u00a9 2003 Geergia State University, College of Health and Human Sciences. Alf rights reserved, Not fox commercial use oF unauthorized\nistripution.\n\fCase 1:05-cv-11547-RWZ Document 32-5 Filed 05/16/2007 Page 25 of 29\n\nCriminal Justice Review 377\n\nHaving established that PSM is perceived by police officers to be relatively\ncommon, we are brought to the question of what should be done to address this\nmatter. First, the primary goal of this article is to bring needed research attention\nto a problem long neglected. This current effort is an exploratory investigation,\nwhich has its limitations. Specifically, the small nonrepresentative sample does not\nallow for systematic comparisons across agencies, and the \u201cchain-referral\u201d sample\nused may have resulted in possible selection bias. More empirical and qualitative\nwork is needed to uncover the causes and complexities of this behavior.\n\nSecond, all police personnel should be educated and trained about sexual\nmisconduct and its effects on policing. This article suggests that only the most\nsevere forms of PSM are considered problematic by police officers and their\nsupervisors. Not until the secrecy surrounding PSM is removed, and police\nadministrators, supervisors, and officers take this problem seriously, is it likely that\nthe true extent of PSM will be discovered and legitimate efforts can be made to\ncontrol it.\n\nThird, a broader, more systematic approach must be adopted by law enforcement\nto help define, measure, and control PSM, especially in its more common\nmanifestations. This will require a concerted effort of focus groups led by both\nlocal and national police agencies, as well as input from police personnel, unions,\nand associations. Law enforcement agencies should consider adopting clear\npolicies and procedures aimed at regulating PSM and all unethical police behavior.\nSome research suggests that policies help establish uniformity in policing and create\na formal framework for controlling police behavior (Kappeler et al., 1998; Walker,\n1999). No agency represented in this sample had a formal written policy on PSM.\nIn addition, representatives of five St. Louis metropolitan area police agencies not\nrepresented in this article were also contacted and they too reported having no\npolicy on PSM. No effort was made to determine whether this pattern exisis in\npolice-departments across the country. However, representatives of two nationally\n\n.- recognized leaders on police:policy and standards, the International Association of\nChiefs--of-Police (IACP)_ and the. Commission \u2014on.. Accreditation for Law\nEnforcement (CALEA), reported to this researcher that they have not specifically\naddressed this issue. ce\n\nIt is unreasonable to expect police departments to create policies on PSM\nforbidding every single type of sexual misconduct, just as it is unreasonable to\nexpect pursuit policies to identify every circumstance in which a police pursuit\nshould be allowed to continue or be terminated. However, it is not unreasonable to\nexpect police departments to implement specific policies on sexual misconduct that\nforbid or restrict several conceptually distinct categories of sexual behavior.\nPolicies would send a message to police officers and the public that this behavior\nis not condoned or tolerated. There is little doubt that written policies specifically\naddressing sexual misconduct would help to establish a better understanding of this\nissue. Policies would assist police administrators, police officers, and the public in\nihe process of constructing a more universal conceptualization of PSM.\n\n. Downloaded from Min.ice cagenes.co7i bt guest an Apdl 23, 2007\n\u00a9 7003 Georgia State University, College of Bealth and 1 fan Sciences. All rights reserved. Not for commercial use or unauthorized\nistribution.\n\fCase 1:05-cv-11547-RWZ Document 32-5 Filed 05/16/2007 Page 26 of 29\n\n378 Timothy M. Maher\n\nThe lack of formal policies for PSM may be telling. It may suggest that police\nofficials believe that PSM is not a significant problem and therefore is not worthy\nof a policy. It may also suggest that PSM is in part a result of police cultural\ninfluences. Perhaps, formal policies addressing PSM will be developed and become\nstandard in policing only when law enforcement is pressured by the public, the\nmedia, and the courts to enact such policies. Recent attention drawn to other areas,\nsuch as racial profiling and police pursuits, demonstrates the powerful role that\noutside interest groups can play in affecting police policy (Frick, 1997; Homant &\nKennedy, 1994).\n\nFinally, many experts have long recognized the crucial role of pol ice supervisors\nin controlling police behavior (Davis, 1975; Kappeler et al., 1998; Whisenand,\n1976), The apparent availability of opportunities for misconduct provided by police\nwork suggests that police administrators must urge supervisors to take a more\nproactive role in controlling PSM. Police officers surveyed in this study identified\npolice sexual misconduct as a real problem. PSM has been neglected and tolerated\ntoo long. Police administrators and officers, policy makers, and researchers must\nfocus so that PSM can be more clearly defined, more accurately measured, and\nbetter controlled.\n\nREFERENCES\n\nBarker, T. (1978). Anempirical study of police deviance other than soruption. Journal of Police Science and\nAdministration, 6, 264-272.\n\nBarker, T., & Carter, D. L. (1994). Police deviance. Cincinnati: Anderson Publishing.\n\nBaro, A. J. (1997). Spheres of consent: An analysis of the sexual abuse and sexual exploitation of women\nincarcerated in the state of Hawaii. Women and Criminal Justice, 861-84. \u2014~\n\nBest, J., & Luckenbill, D. F. (1994). Organizing deviance. Englewood Cliffs, NJ: Prentice Hall.\n\nBryant, T. (2000, November 1). Three policemen fired over allegations of sex acts with teens. St. Louis Post\nDispatch, p. Al. :\n\nCarter, D. L. 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