Case 1:17-cv-00129-JEJ Document 1-1 Filed …bloximages.chicago2.vip.townnews.com/gettysburgtimes.com/...Case 1:17-cv-00129-JEJ Document 1 Filed 01/24/17 Page 2 of 67 3 8. Defendant,

Case 1:17-cv-00129-JEJ Document 1-1 Filed 01/24/17 Page 1 of 1

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IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

DEREK J. TWYMAN, Civil Action No.:

Plaintiff, (Filed: 01/24/2017)

v. District Judge:

CHRISTOPHER B. FOLSTER, CIVIL ACTION – LAW

TRAVIS SMITH, JURY TRIAL DEMANDED

BRIAN HERRELL,

LARRY RUNK,

JOSEPH F. DOUGHERTY,

WILLIAM E. TROXELL,

GETTYSBURG COLLEGE,

BOROUGH OF GETTYSBURG, PENNSYLVANIA,

Defendants.

COMPLAINT

AND NOW comes the Plaintiff, Derek J. Twyman, by and through his

undersigned counsel, Devon M. Jacob, Esquire, and the law firm of Jacob Litigation,

A Civil Rights Law Firm, and avers as follows:

JURISDICTION AND VENUE

1. This action is brought pursuant to 42 U.S.C. § 1983.

2. Jurisdiction is founded upon 28 U.S.C. §§ 1331, 1343, and 1367.

Case 1:17-cv-00129-JEJ Document 1 Filed 01/24/17 Page 1 of 67

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3. Venue is proper in this Court, as all parties are located within the

Middle District of Pennsylvania, and the cause of action arose in the Middle District

of Pennsylvania.

PARTIES

4. Plaintiff, Derek J. Twyman (hereinafter, “Derek”), is an adult

individual, who lives in the Borough of Gettysburg, Adams County, Pennsylvania.

5. Defendant, Christopher B. Folster (hereinafter, “Folster”), is an adult

individual, who, during all relevant times, was employed by the Gettysburg Borough

Police Department, as a police officer. All of Defendant Folster’s actions or inactions

were taken under color of state law. He is sued in his individual capacity.

6. Defendant, Travis Smith (hereinafter, “Smith”), is an adult individual,

who, during all relevant times, was employed by Gettysburg College, in the

Gettysburg College Department of Public Safety, as a police officer. All of

Defendant Smith’s actions or inactions were taken under color of state law. He is

sued in his individual capacity.

7. Defendant, Brian Herrell (hereinafter, “Herrell”), is an adult individual,

who, during all relevant times, was employed by Gettysburg College, in the

Gettysburg College Department of Public Safety, as a police officer. All of

Defendant Herrell’s actions or inactions were taken under color of state law. He is

sued in his individual capacity.


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8. Defendant, Larry Runk (hereinafter, “Runk”), is an adult individual,

who, during all relevant times, was employed by the Gettysburg Borough Police

Department, as a police officer. All of Defendant Runk’s actions or inactions were

taken under color of state law. He is sued in his individual capacity.

9. Defendant, Joseph F. Dougherty (hereinafter, “Dougherty”), is an adult

individual, who, during all relevant times, was employed by the Gettysburg Borough

Police Department, as the Chief of Police. All of Defendant Dougherty’s actions or

inactions were taken under color of state law. He is sued in his individual capacity.

10. Defendant, William E. Troxell (hereinafter, “Troxell”), is an adult

individual, who, during all relevant times, was employed by the Borough of

Gettysburg, as the Mayor. All of Defendant Troxell’s actions or inactions were taken

under color of state law. He is sued in his individual capacity.

11. Defendant, Gettysburg College (hereinafter, “College”), is located at

300 North Washington Street, Gettysburg, PA 17325. The Defendant College owns

and operates the Gettysburg College Department of Public Safety.

12. Defendant, Borough of Gettysburg (hereinafter, “Borough”), is located

at 59 E. High Street, Gettysburg, PA 17325. The Borough owns and operates the

Gettysburg Borough Police Department. The Gettysburg Borough Police

Department is a full service police department which operates 24 hours a day, seven

days a week.


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MATERIAL FACTS

A. The Management of the Defendant Borough

13. Defendant Borough operates as a “weak mayor-strong council” form of

government.

14. Borough Council, otherwise known as the Council at Large, is

comprised of seven council members, and has policymaking authority for the

Defendant Borough.

15. During the relevant period of time, it is believed, and therefore averred,

that the following persons served as the seven members of the Council at Large:

a. Robert Krummerich

b. Scot Pitzer

c. Susan Naugle

d. Graham Weaver

e. Jacob Schindel

f. AmyBeth Hodges

g. Wesley Heyser

16. From 1997, until May 31, 2016, Defendant Troxell was the duly elected

Mayor of the Defendant Borough.

17. The Council at Large has the authority to appoint a Borough Manager,

who is responsible for taking care of the Defendant Borough’s day-to-day business.

18. The Borough Manager is responsible for directing and supervising the

daily work of the administrative staff and coordinating the activities of all municipal

departments.


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19. From 2006, until the present, Defendant Dougherty has been employed

by the Gettysburg Borough Police Department, as the Chief of Police.

20. During all relevant times, Defendants, Borough, Troxell, and

Dougherty, had independent and/or overlapping supervisory and policymaking

authority over the Gettysburg Borough Police Department (“GBPD”).

21. From approximately 2004 until June of 2016, Defendant Folster was

employed by GBPD, as a police officer.

22. During all relevant times, Defendants, Borough, Troxell, and

Dougherty, had independent and/or overlapping supervisory authority over

Defendant Folster.

B. Defendants, Borough’s, Troxell’s, Dougherty’s, and Runk’s, Knowledge

of Defendant Folster’s Long History of Unlawful Conduct

23. While under the supervision of Defendants, Borough, Troxell,

Dougherty, and/or Runk, numerous complaints were lodged against Defendant

Folster.

24. March 21, 2007: Citizen’s Complaint against Defendant Folster:

a. Citizen complained to Defendant Dougherty that when Defendant

Folster approached to investigate the complaint of a plow truck

doing donuts in the snow, he “puffed out his chest and pulled back

his wings.”

b. Defendant Dougherty assigned Defendant Runk to investigate.

c. A statement obtained from GBPD Police Officer, Larry E. Weikert,

provides that when Citizen became uncooperative and only wanted


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to speak with Weikert, Defendant Folster advised Citizen that he had

to speak with him (Folster), and stated, “Oh, I have heard all about

you,” and then walked away.

d. On May 7, 2007, Defendant Dougherty advised Defendant Folster

that he “made the determination that your conduct was proper and

that you have been exonerated of any misconduct surrounding this

incident.”

e. Despite being aware of the complaint, Defendants Borough,

Dougherty, and Troxell did not discipline and/or retrain Defendant

Folster.

25. June 19, 2007: Citizen’s Complaint against Defendant Folster:

a. Citizen complained that while investigating a traffic incident,

Defendant Folster had a “bad attitude.”

b. Defendant Dougherty advised Citizen that no action would be taken

unless he submits an Internal Affairs Complaint Form. No form was

submitted.

c. Despite being aware of the complaint, Defendants Borough, Troxell,

and Dougherty, did not investigate the incident, and did not

discipline and/or retrain Defendant Folster.

26. September 20, 2007: Citizen’s Complaint against Defendant Folster:

a. Citizen complained that while investigating an assault, Defendant

Folster hit him in the chest and yelled at him. He complained that

Defendant Folster had “an attitude” and had no right to hit him.

b. Despite the fact that Defendant Runk was a witness to the incident,

Defendant Dougherty assigned him to investigate.

c. Defendant Runk witnessed Defendant Folster and the citizen yelling

and observed Defendant Folster throw a pen. Defendant Runk noted

that both the Citizen and Defendant Folster “have a personal air

about them that are (sic) easily read wrong and that it was more of a

personality issue than an attitude issue.”


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d. Defendant Dougherty sent a letter to Citizen advising Citizen that

since he did not return Defendant Runk’s telephone call, he was

closing the investigation.

e. Despite being aware of the complaint, Defendants Borough, Troxell,

Dougherty, and Runk, did not investigate the incident, and did not


27. October 17, 2007: Citizen’s Complaint against Defendant Folster:

a. Citizen complained to Defendants, Dougherty and Troxell, that,

while investigating a traffic incident, Defendant Folster “displayed

an unprofessional attitude.”


unless he submits an Internal Affairs Complaint Form.

c. Defendant Dougherty sent citizen a letter in which he stated that,

since the Citizen had not returned the form, he was closing the

investigation with no further action.

d. Defendant Dougherty provided Defendant Troxell with a copy of

his letter to Citizen.




28. February 1, 2008: Citizen’s Complaint against Defendant Folster:

a. Citizen complained that Defendant Folster was “loud, belligerent,

rude, and unprofessional” during a traffic incident, and prior to a

traffic hearing, pressured her to agree to a deal.

b. Defendant Dougherty sent a letter to Citizen advising, in part, that

Defendant Folster was “reminded that all members of the police

department are expected to be respectful and courteous to all persons

at all times.”


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and Dougherty, did not discipline and/or retrain Defendant Folster.


a. Citizen complained to Defendants Dougherty and Troxell that

Defendant Folster had pushed his wife during a medical incident

involving his son, and that during a previous incident, grabbed his

son by the throat.



c. Defendant Dougherty sent a letter to Citizen in which he stated that

since the Citizen did not return the form, he was closing the


d. Defendant Dougherty provided Defendant Troxell with a copy of

his letter to Citizen.




30. June 28, 2011: Citizen’s Complaint against Defendant Folster:

a. Citizen complained that Defendant Folster was “very

unprofessional” during an investigation of a possible Megan’s Law

violation.



c. Defendant Dougherty sent a letter to Citizen in which he stated that

since the Citizen did not return the form, he was closing the


d. Despite being aware of the complaint, Defendants Borough, Troxell,




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a. Citizen complained that Defendant Folster called her “stupid” for

driving through flood water to pick up her son from preschool, and

then issued her a traffic citation for reckless driving for complaining

to him about his conduct.

b. Defendant Dougherty assigned Defendant Runk to investigate the

complaint.

c. During the investigation, Defendant Folster denied calling the

female stupid, but admitted telling the female “that her actions were

stupid.”

d. Defendant Dougherty sent a letter to Citizen, advising Citizen that

“it has been determined that while Officer Folster’s interaction with

you could have been handled in a better fashion, his actions were

not in violation of any police departmental rules or regulations.

Non-the-less [sic], Officer Folster was counselled to be more careful

in the manner in which he interacts with citizens.” Defendant

Dougherty further advised that “The issue of the traffic citation that

you received was resolved in the form of a hearing before the

District Magistrate.”


Dougherty, and Runk, did not discipline and/or retrain Defendant

Folster.

32. November 6, 2011: Citizen’s Complaint Against Defendant Folster:

a. A citizen called GBPD to report an alleged parking trespasser.

b. Defendant Folster escalated the situation to the point that he arrested

the 62 year old complainant.

c. During the arrest, Defendant Folster used excessive force – an

unsanctioned Judo leg-sweep instead of a controlled takedown –

knocking the complainant to the ground backwards, causing him to

break his shoulder.


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d. The victim of the assault filed a lawsuit against Defendant Folster.

See Meena Gangwal v. Christopher B. Folster, No.: 1:14-cv-02002-

JEJ (M.D.Pa.), which remains pending.


Dougherty, and Runk, neither (i) disciplined or retrained Defendant

Folster, nor (ii) provided just compensation to the individual who

was assaulted by Defendant Folster.

f. Instead, the Defendant Borough used taxpayer money to mount an

aggressive defense against the meritorious claim.


a. Citizen complained that Defendant Folster and another officer used

“excessive and unwarranted force in the process of handcuffing and

detaining” him.

b. Despite being aware of the complaint, Defendants Borough,

Dougherty, and Troxell did not investigate the incident, and did not


34. December 2, 2012: Citizen’s Complaint against Defendant Folster:

a. Complaint filed with Defendant Dougherty, who assigned

Defendant Runk to investigate.

b. An Assistant Dean of Defendant College complained that while

searching for a student who ran from him, he witnessed Defendant

Folster yell at a group of uninvolved students “in a manner that was

borderline abusive.” He then witnessed Defendant Folster throw the

student into a wall, and berate the student for running; despite the

fact that the student did not “resist nor pose a threat to self or others.”

c. A Gettysburg College police officer stated that he observed

Defendant Folster grab the student “by the arm and forcibly pulled

him across the hallway and then violently slamming his body, face

first, into the concrete wall.”


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d. Cumberland Township Police Officer Barbagello stated in a report

that “I then grabbed his right wrist and escorted him out of the door

way (sic). At the same time Folster applied a soft hand technique on

the subjects left side. Officer Folster then took the subject into

custody.”

e. Defendant Runk submitted a misleading/false report to Defendant

Dougherty in which he stated, “At this point two witnesses advised

that Officer Folster grabbed (redacted) and forcibly pulled him out

of his room. In a written statement from Officer Barbagello, he

stated that he was the officer that grabbed (redacted) and when he

did so Officer Folster assisted.”

f. Defendant Runk failed to mention in his report that Defendant

Folster “assisted” Officer Barbagello by grabbing the student by the

arm, and by forcibly pulling the student across the hallway, and then

violently slamming his body, face first, into the concrete wall.

Defendant Runk recommended that the complaint be marked

unfounded.

g. Despite being aware of the complaint, Defendants Borough, Troxell,

Dougherty, and Runk, did not criminally charge, discipline, retrain,

or send Defendant Folster for a mental health evaluation.

35. December 2, 2012: Citizen’s Complaint against Defendant Folster:

a. Gettysburg College complained that Defendant Folster was “loud

and obnoxious” with several students while investigating an

apparent disturbance.

b. During the investigation, Defendant Folster admitted that he “lost

his temper.” Subsequently, Defendant Folster apologized to the

students “for his use of language.”


and Dougherty, did not discipline, retrain, or send Defendant Folster

for a mental health evaluation.


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36. July 8, 2014: Citizen’s Complaint against Defendant Folster:

a. Citizen complained Defendant Folster did not permit her to call

home after being arrested for public intoxication.

b. In his police report, Defendant Folster admits to arguing with the

intoxicated Citizen.

c. Despite being aware of the complaint, Defendants Borough, Troxell



37. January 22, 2014: Citizen’s Complaint against Defendant Folster:

a. Citizen complained about Defendant Folster’s “attitude” during a

traffic stop, and for issuing him a citation.

b. Chief Dougherty advised Citizen that an investigation would only

be conducted if he submitted a notarized complaint form within 30

days. No form was submitted.


and Dougherty, did not investigate, discipline, retrain, or send

Defendant Folster for a mental health evaluation.

38. February 14, 2014: Citizen’s Complaint against Defendant Folster:

a. Citizen wanted to file a complaint about Defendant Folster’s

treatment of her father during a traffic stop. The Citizen witnessed

the conduct.

b. Chief Dougherty did not document the conduct and advised Citizen

that only her father could complain about his treatment. Chief

Dougherty further stated that a complaint form must be submitted in

order for an investigation to be completed. No form was submitted.





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C. Defendant Folster Unlawfully Arrests Derek

39. As a direct result of Defendants Borough’s, Troxell’s, and Dougherty’s,

repeated failures to discipline, retrain, or terminate Defendant Folster’s employment,

on May 11, 2015, Defendant Folster was still employed as a police officer for the

Defendant Borough, and still violating citizen’s civil rights.

40. On said date, Defendant Folster received a complaint from Ashlee

Sexton (“Sexton”) (GBPD Incident 1505-0247-I).

41. Sexton and Plaintiff, Derek J. Twyman (“Derek”), are estranged, but

have a minor child together.

42. Sexton reported that she had an active Protection From Abuse Order

(“PFA”) against Derek “that restricts contact to that which is necessary for the

welfare of their common children, and that contact is to be made through a third

party.” (GBPD Incident 1505-0247-I)

43. Sexton claimed that Derek “has been calling and texting her about 70

times a day, despite repeated requests not to call her.” (GBPD Incident 1505-0247-

I)

44. When Defendant Folster requested that Sexton provide him with a

written statement to support her complaint, “she got upset, that [Folster] asked her

that and wanted to know why [Folster] wasn’t just going and arresting Twyman.”

(GBPD Incident 1505-0247-I)


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45. Sexton made an appointment with Defendant Folster to provide him

with the requested written statement on May 12, 2015, at 5:30 PM.

46. Sexton claimed to have saved incriminating text messages that she said

she would show Defendant Folster during their meeting.

47. Defendant Folster contacted then Adams County Assistant District

Attorney, Brian R. Sinnett, who advised Folster that he “should wait until [he] had

more evidence if she doesn’t want to come back to Gettysburg tonight.” (GBPD

Incident 1505-0247-I)

48. On May 12, 2015, Sexton did not appear for her scheduled 5:30 PM

appointment with Defendant Folster.

49. At around 9:00 PM, Defendant Folster called Sexton, who claimed that

she went to the GBPD at 4:30 PM (despite knowing that Defendant Folster would

not be on duty until 5:30 PM), but when “her kids got fussy,” she decided to go

“shopping and out to dinner.” (GBPD Incident 1505-0247-I)

50. At around 9:45 PM, Sexton met with Defendant Folster at GBPD and

provided him with a statement.

51. In her statement, Sexton reported a “significant” number of “missed

calls” from “blocked numbers,” that she claimed were from Derek. (GBPD Incident

1505-0247-I)


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52. Sexton claimed that she answered “some” of the calls and that she

spoke to Derek. (GBPD Incident 1505-0247-I)

53. Sexton reported that during the calls, Derek threatened to call children’s

services and to cause her harm.

54. Sexton also showed Defendant Folster a Facebook message, sent from

a profile identifying itself as Derek, in which it was stated that Sexton would be

reported to children’s services.

55. Defendant Folster did not apply for a search warrant to obtain Sexton’s

phone records to (a) discover the identity of the “blocked” caller, and (b) confirm

whether or not any calls had been answered.

56. Defendant Folster did not apply for a search warrant to obtain Derek’s

phone records.

57. Defendant Folster did not apply for a search warrant to identify who

owned the Facebook profile in question.

58. Defendant Folster did not attempt to interview Derek.

59. Instead, without checking with ADA Sinnett, Defendant Folster

determined that probable cause existed, and that he needed to make an immediate

warrantless arrest of Derek for purportedly violating the PFA.


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60. Defendant Folster went to Derek’s home “and watched the house while

waiting for Officer Weikert to clear another incident.” (GBPD Incident 1505-0247-

I)

61. While lying in wait, Defendant Folster observed Derek exit his home

and enter his vehicle.

62. Defendant Folster performed a traffic stop a short distance from

Derek’s home.

63. Derek provided Defendant Folster with additional exculpatory

evidence (discussed below), which vitiated the existence of probable cause.

64. Regardless, Defendant Folster placed Derek under arrest for the

purported PFA violation.

65. On May 12, 2015, Defendant Folster criminally charged Derek with

Indirect Criminal Contempt, without disclosing to the Court or prosecutor the totality

of the evidence known to him at that time.

66. Despite reviewing Defendant Folster’s report, and having access to all

related evidence, Defendants, Dougherty and Runk, did not dismiss the criminal

charges against Derek, or request that the charges be dismissed.

67. Instead, they participated in his criminal prosecution.

68. On June 10, 2015, the Court granted the Commonwealth’s motion to

withdraw the petition for indirect criminal contempt.


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D. Defendant Folster Assaults Derek

69. Most of the events that occurred during the aforementioned traffic stop

were audio and video recorded by a body camera worn by Defendant Folster.

70. A copy of the audio and video recording produced by the Defendant

Borough is attached at Exhibit 1.

71. Defendant Folster approached the driver’s side of the vehicle with his

flashlight illuminated.

72. When Defendant Folster approached, he had a TASER Model No. X26,

serial number 581612, in his possession.

73. Derek was seated in the driver’s seat, with his window open, sorting

through paperwork, looking for the documents that he would need to present to

Defendant Folster.

74. Defendant Folster advised Derek that he was being audio and video

recorded.

75. Defendant Folster asked Derek to turn the vehicle off, and Derek

complied, immediately.

76. Defendant Folster asked to see Derek’s driver’s license.

77. Derek immediately reached for his driver’s license to present, and at

the same time, inquired calmly as to why he was being pulled over.


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78. Defendant Folster let out a loud sigh, and then stated, “Well, you are

aware of the PFA against you, right?”

79. Derek replied that he was aware.

80. Defendant Folster then stated, “Ok, well, you have been calling her and

sent her Facebook messages.”

81. Derek denied calling Sexton or sending her Facebook messages.

82. When Derek tried to respond further to Defendant Folster’s

accusations, Defendant Folster yelled, “Stop!”

83. Defendant Folster then reprimanded Derek, stating, “First of all, don’t

tell me to listen.”

84. Derek explained to Defendant Folster that he had “problems with her

earlier,” and that the police had responded, and that the police knew everything.

85. Derek explained that Sexton had contacted him by telephone earlier in

the day, and that Sexton had spoken with his daughter.

86. Derek advised Defendant Folster that his father had witnessed the

events in question.

87. Derek explained that his phone did not have the ability to connect with

Facebook, and further explained that someone had created a fake Facebook profile

pretending to be him.


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88. Derek explained that there were two (2) Facebook profiles appearing to

be him, and that the profile in question, the fake profile, did not have his picture.

89. Derek explained that he did not contact Sexton, that he knows better

than to contact Sexton, and that it is he who was being harassed by Sexton.

90. Derek even advised Defendant Folster that Sexton had broken into his

home a few days ago and that he had reported the burglary to the police.

91. Defendant Folster admitted to knowing about the burglary, stating,

“well, you told the officer that you did not want anything done.”

92. When Derek denied telling the officer that he did not want to file

criminal charges, Defendant Folster cut him off and stated, “Alright, we are not

discussing that incident.”

93. Derek repeated that he did not, and would not, contact Sexton;

especially knowing that if he did, he would go to jail.

94. Derek repeatedly denied having any contact with Sexton, explaining

that he had been trying to stay away from Sexton, because she had been trying to get

him into trouble.

95. Defendant Folster’s unprofessional and disrespectful treatment of

Derek escalated, instead of de-escalated, the incident.

96. Despite having no reason to do so, Defendant Folster interrogated

Derek regarding where he was travelling in his vehicle.


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97. Derek stated that he had not done anything wrong, and that he felt that

Defendant Folster was harassing him.

98. Defendant Folster stated, “The problem is, I’ve got a signed statement

from her, and I’ve seen the Facebook post . . . that you’ve called her numerous times

and made threats to her.”

99. Derek asked Defendant Folster why Sexton hadn’t complained to the

officers who were at his home earlier in the day, that he had supposedly been calling

and threatening her.

100. Defendant Folster stated, “I don’t know,” and then stated, “she reported

this to me last night,” despite knowing that he had actually met with Sexton, obtained

the written statement, and viewed the alleged Facebook post, only approximately

one hour earlier.

101. When Derek began to question how the officers had handled the

incident earlier in the day, he inadvertently mispronounced one of the officer’s last

names, and referred to the other officer with an incorrect title.

102. Defendant Folster snapped at Derek, and corrected him.

103. Based upon the information provided by Derek, Defendant Folster

possessed evidence that vitiated probable cause, and if anything, indicated that

Sexton had filed a false report.


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104. Instead of (i) letting Defendant Folster go, (ii) contacting a supervisor

or the District Attorney’s Office for further guidance, or (iii) continuing to

investigate, Defendant Folster told Derek that he needed to do his job, and asked

Derek to extinguish his cigarette, and to step out of his vehicle.

105. Derek asked if he could call someone to get his car.

106. Defendant Folster told him that “we will take care of it in a couple of

minutes.”

107. Derek stated a couple times that he did not do anything wrong, but

Defendant Folster continued to order Derek out of his vehicle.

108. Defendant Folster, however, did not have a lawful basis in which to

order Derek out of his vehicle or to take him into custody.

109. When Derek raised his voice and said, “I didn’t do shit,” Defendant

Folster pointed a Taser at him and continued to order him out of his vehicle.

110. Instead of (i) backing away from the vehicle, (ii) waiting for backup, or

(iii) waiting for a supervisor, Defendant Folster continued to escalate the situation.

111. Derek continued to state that he did not do anything wrong, and asked

Defendant Folster if he actually intended to Taser him.

112. Defendant Folster was not properly trained regarding how to deescalate

the confrontation that he (Defendant Folster) had created.


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113. After approximately a minute of Derek repeating that he did not do

anything wrong, and Defendant Folster screaming to get out of the vehicle while

threatening to Taser Derek, Derek advised Defendant Folster that he is harassing

him and that “I want another officer here.”

114. Again, instead of de-escalating the situation and waiting for another

officer or a supervisor to respond, Defendant Folster continued to scream and

threaten Derek.

115. Derek repeatedly told Defendant Folster that, “I don’t trust you,” and

that, “I want another officer here.”

116. Derek took out his phone, began to dial, and told Defendant Folster that,

“I am calling my Dad.”

117. Despite the fact that the only threat presented by Derek was that Derek

was going to tell on Defendant Folster to his Dad, Defendant Folster drive-stunned

Derek repeatedly with his Taser.

118. Derek yelled, “Stop! You are hurting me!”

119. Defendant Folster continued to Taser Derek, and yelled, “that is the

point!”

120. When the Taser shut off for a few seconds, Derek began to cry, tried to

call his father again, and repeated, “you are hurting me!”


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121. Defendant Folster Tasered Derek again, and yelled, “I will stop hurting

you when you get out of the car!”

122. Defendants Brian Heller and Travis Smith, police officers employed by

Gettysburg College, arrived on scene.

123. Defendant Heller arrived within one minute of, and just prior to,

Defendant Smith.

124. Either Defendant Heller or Defendant Smith asked if Defendant Folster

wanted assistance.

125. Defendant Folster replied loudly and unprofessionally, “yeah, do

something or go away.”

126. Defendant Folster’s response should have placed Defendant Heller

and/or Defendant Smith on notice that Defendant Folster was no longer in control of

his emotions.

127. Derek continued to yell, “you’re hurting me!”

128. Defendant Folster yelled, “I don’t care!”

129. Defendant Folster continued to cycle the Taser, while Derek repeatedly

yelled, “Ow!” and “Stop!”

130. Derek warned Defendant Folster that he was going to give him a heart

attack, but Defendant Folster did not stop.


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131. The video and audio recording abruptly, and inexplicably, ends, while

the camera is still pointed in Derek’s direction.

132. Despite having an appreciable opportunity to do so, Defendants Herrell

and Smith failed to intervene to protect Derek from Defendant Folster.

133. Instead, Defendants Herrell and Smith used force to help Defendant

Folster force Derek from his vehicle.

134. Defendant Smith admits in his police report that he heard Derek tell

Defendant Folster “that he has disabilities” but that Defendant Folster continued to

use the Taser on Derek. (Case # 05122015-000790).

135. At no point in time did Defendants Folster, Herrell, or Smith, try to

determine (a) the nature of Derek’s disability, and/or (b) whether Derek’s disability

was preventing him from understanding what was occurring and complying.

136. Had the Defendants inquired, they would have discovered that Derek

had been diagnosed in childhood with an intellectual disability, and continues to this

date to suffer from same.

137. Persons with an intellectual disability are limited in two areas: (a)

intellectual functioning, and (b) adaptive behaviors.

a. Intellectual functioning refers to the person’s ability to learn, reason,

make decisions, and problem solve.


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b. Adaptive behaviors refer to day-to-day life skills, i.e., the person’s

ability to communicate effectively, interact with others, and take care

of oneself.

138. Importantly, because of his disability, Derek was unable to process the

information that the Defendants were conveying to him at the pace required by the

unnecessarily escalated fast-paced confrontation.

139. Had the confrontation not been escalated, Derek would have had

sufficient time to process and understand that Defendant Folster was improperly

trained, mentally unstable, and intended on causing him physical harm.

140. Had Derek’s disability been acknowledged and accommodated, Derek

would have been able to make decisions that would have protected himself from the

Defendants.

141. Defendants, Herrell and Smith, watched Defendant Folster attach a

cartridge to his Taser and fire the Taser into Derek’s chest.

142. Defendants, Herrell, Smith, and/or Folster, then forced Derek to the

ground.

143. Officer Weikert arrived on scene as Derek was exiting his vehicle and

going to the ground.

144. Weikert handcuffed Derek.


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E. Malicious Prosecution

145. On May 12, 2015, Defendant Folster filed a Criminal Complaint and

Affidavit of Probable Cause (Exhibit 2) against Derek.

146. In the Criminal Complaint, Defendant Folster charged Derek with the

following criminal violations:

a. Title 18 § 5104: Resisting Arrest or Other Law Enforcement: 1

Count, Misdemeanor 2:

A. Section 5104 provides: “A person commits a misdemeanor of

the second degree if, with the intent of preventing a public

servant from effecting a lawful arrest or discharging any other

duty, the person creates a substantial risk of bodily injury to the

public servant or anyone else, or employs means justifying or

requiring substantial force to overcome the resistance.”

B. Defendant Folster claimed: “The defendant did, with the

intent of preventing a public servant from effecting a lawful

arrest, create a substantial risk of bodily injury to the public

servant and employed means justifying or requiring substantial

force to overcome the resistance.”

b. Title 18 § 2709(a)(3): Harassment: 1 Count, Summary:

A. Section 2709(a) provides: “A person commits the crime of

harassment when, with intent to harass, annoy or alarm another,

the person: . . . (3) engages in a course of conduct or repeatedly

commits acts which serve no legitimate purpose(.)”

B. Defendant Folster claimed: “The defendant did, with intent to

harass, annoy or alarm another person, engage in a course of

conduct or repeatedly commit acts which serve no legitimate

purpose.”


27

147. The Criminal Complaint included the following statement:

I verify that the facts set forth in this complaint are true and correct to

the best of my knowledge or information and belief. This verification

is made subject to the penalties of Section 4904 of the Crimes Code (18

Pa.C.S. § 4904) relating to unsworn falsification to authorities.

148. In the Affidavit of Probable Cause, Defendant Folster stated the

following:

On May 12, 2015 at 2254 hours I observed the defendant operating a

silver Lincoln Towncar PA reg JTL6333 on Hanover Street, Borough

of Gettysburg, Adams County, PA. I had just finished receiving a

complaint of a Protection From Abuse order violation and was actively

looking for the defendant to take him into custody for that violation.

The victim is a resident of Breckenridge Street, Borough of Gettysburg,

Adams County, PA and has received over 70 phone calls and three

Facebook messages from the defendant since Sunday May 10, 2015.

I followed the vehicle into Lincoln Square and then onto Carlisle Street,

then onto West Railroad Street. When we turned onto West Railroad

Street I activated my emergency lights and the defendant turned into

the parking lot of College Apartments and stopped. I approached the

vehicle and advised the defendant that he was being recorded on video

and audio and explained why I was stopping him. The defendant was

initially cooperative, but upset. When I instructed the subject to exit the

vehicle he became extremely belligerent and refused orders to exit the

vehicle. After being given at least 6-7 orders to exit the vehicle, and

being advised multiple times that he was under arrest, the de3fendnat

(sic) began to fight and was Tasered before finally exiting the vehicle.

He continued to struggle and it required four officers to take him into

custody. The defendant is 6'04" and weighs about 400lbs. The affiant is

5'07" and weighs about 160 lbs.

I, PFC C. FOLSTER, BEING DULY SWORN ACCORDING TO THE

LAW, DEPOSE AND SAY THAT THE FACTS SET FORTH IN THE

FOREGOING AFFIDAVIT ARE TRUE AND CORRECT TO THE

BEST OF MY KNOWLEDGE, INFORMATION AND BELIEF.


28

149. The audio and video recording of the incident definitively establishes

that Defendant Folster filed a false report.


that Defendant Folster filed a false Affidavit of Probable Cause.

151. The Affidavit of Probable Cause contains the following false

statement, “After being given at least 6-7 orders to exit the vehicle, and being

advised multiple times that he was under arrest, the defendant began to fight and was

Tasered before finally exiting the vehicle.”

152. Despite reviewing Defendant Folster’s report, and having access to all

related evidence, Defendants, Dougherty and Runk, did not dismiss the criminal

charges against Derek, or request that the charges be dismissed.

153. Instead, they participated in his criminal prosecution.

154. On October 15, 2015, a jury found Derek not guilty of resisting arrest.

F. Training and Policy Failures of the Borough of Gettysburg

155. Defendants, Borough, Troxell, and Dougherty, with deliberate

indifference to the rights of the Citizens who they swore to serve and protect,

mismanaged the police department, through hiring, supervising, training, and policy

failures, which directly caused Derek’s constitutional injuries.


29

156. It is believed, and therefore averred, that Defendants Borough,

Dougherty, and Troxell, failed to provide the following basic training to police

officers, including Defendant Folster:

a. Officers were not trained to summon backup prior to attempting to

make a physical arrest, and as a result, Defendant Folster did not wait

for backup before using physical force;

b. Officers were not trained in de-escalation techniques prior to the use of

force, and as a result, Defendant Folster did not use de-escalation

techniques;

c. Officers were not trained to work as a team with backup officers to

communicate with a subject to attempt to de-escalate a situation before

using physical force to effect an arrest, and as a result, Defendant

Folster did not wait for backup before using physical force;

d. Officers were not trained to secure the scene and then to talk or wait a

subject out before resorting to force, and as a result, Defendant Folster

did not attempt to wait or talk Derek out of his vehicle before using

physical force;

e. Officers were not trained to permit subjects to communicate frustration,

slow down events to permit time for reflection, explain the law, or

explain the consequences of actions, and as a result, Defendant Folster

escalated the incident and caused the need for a use of force;

f. Officers, like Defendant Folster, who use force often, and who are

routinely the subject of citizens’ complaints, were not trained to request

a supervisor before using force, and as a result, Defendant Folster did

not call for a supervisor before using physical force;

g. Officers were not trained in how to properly document uses of force, so

that use of force incidents could be properly reviewed, and as a result,

Defendant Folster’s long history of unlawful uses of force went

unchecked;


30

h. Supervising officers were not trained in how to review a use of force

report, and as a result, Defendant Folster’s long history of unlawful uses

of force, went unchecked;

i. Officers were not trained in the proper use of body cameras, and as a

result, Defendant Folster failed to capture the entire incident on video;

j. Officers were not trained to summon a supervisor to the scene when a

subject requests to speak with another officer, and as a result, Defendant

Folster resorted to the use of force instead of summoning a supervisor;

k. Officers were not trained on the definitions of passive and active

resistance, and the use of force permitted in response to same, and as a

result, Defendant Folster used unlawful force against Derek;

l. Officers were not trained as to when they could lawfully use a TASER

on subjects, and as a result, Defendant Folster used a TASER on Derek

to cause pain, and to force Derek from his vehicle when he did not

immediately do so;

m. Officers were not trained as to when they could lawfully use TASER

drive-stuns, and as a result, Defendant Folster repeatedly drive-stunned

Derek to cause pain, and to force Derek from his vehicle when he did

not immediately do so;

n. Officers were not trained on the requirements of the Americans with

Disabilities Act, and as a result, Defendant Folster failed to

accommodate Derek’s disability, and discriminated against him

because of his disability;

o. Officers were not trained regarding how to properly perform internal

affairs investigations, and as a result, numerous citizens’ complaints

against Defendant Folster were not properly investigated; and

p. Officers were not trained regarding how to set up an early warning

system to identify officers who failed to act in accordance with policy

and/or the law, and as a result, Defendant Folster was not identified as

an officer requiring training and/or employment termination.


31

157. It is believed, and therefore averred, that Defendants Borough,

Dougherty, and Troxell, failed to adopt, implement, maintain, or enforce, the

following industry-wide standard law enforcement policies or procedures:

a. No policy required officers to summon backup prior to attempting to

make a physical arrest, and as a result, Defendant Folster did not wait

for backup before using physical force;

b. No policy required officers to engage in de-escalation techniques prior

to using force, and as a result, Defendant Folster did not employ de-

escalation techniques;

c. No policy required officers to work as a team with backup officers to

communicate with a subject, to attempt to de-escalate a situation, before

using physical force to effect an arrest, and as a result, Defendant

Folster did not wait for backup before using physical force;

d. No policy required officers to secure the scene and then to talk or wait

a subject out before resorting to force, and as a result, Defendant Folster

did not attempt to wait or talk Derek out of his vehicle before using

physical force;

e. No policy required officers to permit subjects to communicate

frustration, slow down events to permit time for reflection, explain the

law, or explain the consequences of actions, and as a result, Defendant

Folster escalated the incident and caused the need for a use of force;

f. No policy required officers, like Defendant Folster, who use force often

and are routinely the subject of citizens’ complaints, to request a

supervisor before using force, and as a result, Defendant Folster did not

call for a supervisor before using physical force;

g. No policy required officers to properly document uses of force, so that

use of force incidents could be properly reviewed, and as a result,

Defendant Folster’s long history of unlawful uses of force went

unchecked;


32

h. No policy required supervising officers to return deficient use of force

reports to officers for correction, and as a result, Defendant Folster’s

long history of unlawful uses of force went unchecked;

i. No policy required the chief of police to review all use of force reports

for correctness and lawfulness, and as a result, Defendant Folster’s long

history of unlawful uses of force went unchecked;

j. No policy required the chief of police to maintain a use of force tracking

system, that documented the use of force, and any resulting training,

counseling, or discipline, and as a result, Defendant Folster’s long

history of unlawful uses of force went unchecked;

k. No policy governed the use of body cameras, and as a result, only part

of Defendant Folster’s unlawful use of force was recorded;

l. No policy required officers to summon a supervisor to the scene when

a subject requests to speak with another officer, and as a result,

Defendant Folster resorted to the use of force instead of summoning a

supervisor;

m. No policy required proper record keeping with respect to officers’

training records;

n. No policy required a centralized citizens’ complaint tracking system

(early warning system) that recorded and displayed basic information

about each officer, such as the number of complaints, nature of

complaints, disposition of complaints, and action taken as a result of

the complaints;

o. No progressive discipline policy was implemented or followed;

p. No policy required performance improvement plans to be used to

correct and monitor officer’s conduct, and as a result, Defendant

Folster’s unlawful conduct continued and escalated for several years;

q. No proper internal affairs investigation policy was implemented or

followed;


33

r. No use of force policy defined passive and active resistance, or

identified the use of force lawfully permitted in response to same;

s. No policy provided that the TASER may not be used in response to

passive resistance, and as a result, Defendant Folster repeatedly used a

TASER on Derek to cause pain when he did not immediately exit his

vehicle when requested to do so;

t. No policy identified when officers could lawfully use TASER drive

stuns, as a result, Defendant Folster repeatedly drive-stunned Derek to

cause pain, and to force him from his vehicle;

u. No policy required supervising officers to review body camera video of

use of force incidents, and as a result, Defendant Folster’s conduct went

undiscovered for a significant period of time;

v. No policy required that all citizens’ complaints, regardless of format,

be investigated;

w. No policy required the initiation of an internal affairs investigation

when lawsuits are filed;

x. No policy required officer personnel files to contain records related to

background/hiring, performance evaluations, use of force, counselling,

discipline, or mental health;

y. No policy required the use of performance evaluations, and as a result,

Defendant Folster’s poor performance was not tracked or addressed;

z. No policy required officers to receive mental health and/or anger

management counselling;

aa. No policy required the referral of potential criminal conduct by officers

to the district attorney’s office for investigation;


34

G. Ratification of Unlawful Conduct by Defendant Borough

158. Defendants, Borough, Troxell, and Dougherty, failed to maintain

proper and complete training records, so that they could ensure that officers were

properly trained.

159. Defendants, Borough, Troxell, and Dougherty, failed to conduct officer

performance evaluations.

160. Defendants, Borough, Troxell, and Dougherty, employed and

maintained a citizens’ complaint procedure that discouraged citizens’ complaints.

161. Defendants, Borough, Troxell, and Dougherty, failed to maintain

proper, complete, and readily accessible, citizens’ complaint information so that

problem officers could be identified, counselled, or disciplined.

162. Defendants, Borough, Troxell, Dougherty, and Runk, accepted use of

force reports that failed to sufficiently explain the justification for the force used,

and failed to identify the level of force used.

163. Defendant Folster knew that Defendant Runk’s investigation of any use

of force would be designed to clear him of any wrongdoing.

164. Defendant Folster knew that Defendant Dougherty and Troxell would

do their best to try to close out any citizen’s complaint of wrongdoing without an

investigation.


35

165. Defendants, Borough, Troxell, Dougherty, and Runk, failed to follow a

policy of progressive discipline.

166. Defendants, Borough, Troxell, Dougherty, and Runk, failed to refer

Defendant Folster’s conduct to the district attorney’s office for investigation.

167. Defendant Folster knew that Defendants, Borough, Troxell, Dougherty,

and Runk, would not discipline him, or criminally prosecute him, for the unlawful

use of force.

168. Despite numerous citizens’ complaints against Defendant Folster,

Defendants, Borough, Troxell, Dougherty, and Runk, failed to place Defendant

Folster on a performance improvement plan.

169. As a result, Defendant Folster knew that he could use force against

citizens with impunity.

170. Defendants, Borough, Troxell, Dougherty, and Runk, did not discipline

Defendant Folster or file criminal charges against him.

171. Pursuant to FED.R.CIV.P. 11(b)(3), the following factual contentions

will likely have evidentiary support after a reasonable opportunity for further

investigation or discovery:

a. In November of 2015, realizing that Defendants, Troxell and

Dougherty, were mismanaging the police department, in an effort to

protect the citizens of the Borough, Borough Manager, Charles R.


36

Gable, went above the Mayor’s head, and convened a meeting of the

Council at Large.

b. As a result of the Borough Manager’s actions, in November of 2015,

the Defendant Borough hired former Pittsburgh Police Chief, Robert

McNeilly, Jr., and Pittsburgh area labor lawyer, Neva Stotler, to

conduct an investigation into the Folster use of force incident, and the

overall operation of the police department.

c. In January or February of 2016, the consultants issued written reports

providing the Defendant Borough with recommendations.

d. One recommendation was the immediate termination of three

personnel.

e. It is believed that the three personnel are Joseph F. Dougherty, Larry

Runk, and Christopher B. Folster.

f. On February 11, 2016, February 18, 2016, and March 8, 2016, the

Council at Large discussed the recommendations in executive session.

g. The Council at Large decided not to fire anyone.

h. Instead, the Council at Large decided to offer severance packages to

Defendants Runk and Folster, and to place Defendant Dougherty on a

performance improvement plan.


37

i. The Council at Large retained the services of Peter S. Marshall &

Associates, to monitor Defendant Dougherty’s performance, and to

assist the Defendant Borough with implementing certain recommended

changes.

172. The Defendant Borough permitted Defendant Folster to voluntarily

quit, and unbelievably, provided him with severance pay and health benefits through

December 31, 2016.

173. On March 14, 2015, two members of the Council at Large, Scot Pitzer

and AmyBeth Hodges, spoke out against spending too much money to continue to

investigate the underlying incident and/or to disciplining the involved officers.

174. Specifically, when the costs to continue the investigation exceeded the

budget by a few thousand dollars, both Pitzer and Hodges voted against paying the

additional costs.

175. Hodges stated, “We have already spent thousands of dollars for an

unnecessary review plus the legal fees involved, and if we pursue the current course,

the cost will only continue to rise.”

176. Further, Hodges stated that she intended to vote against any attempt to

punish or reprimand the Defendant officers.

177. Hodges stated, “There is entirely too much negativity and conflict

within the borough management, staff, council and police department.”


38

178. Hodges further stated, “I hope that we can put this incident behind us

and move forward in a positive and transparent manner.”

179. Noting an existing adversarial relationship between Council and the

police department, Pitzer stated, “I would like to see that trend reversed, not

worsened.”

180. It is clear from Pitzer’s and Hodges’ comments and votes that they had

little interest, if any, in protecting the civil rights of the Citizens of the Defendant

Borough.

COUNT I

Plaintiff v. Defendant Folster

Fourth Amendment (Excessive Force)

Pursuant to 42 U.S.C. § 1983

181. Claims that police officers used excessive force are analyzed under the

Fourth Amendment’s objective reasonableness standard. See Graham v.

Connor, 490 U.S. 386, 388 (1989).

182. To state a claim for excessive force under the Fourth Amendment, a

Plaintiff must show that a seizure occurred and that it was objectively unreasonable.

See Curley v. Klem, 499 F.3d 199, 203 (3d Cir. 2007).

183. The test of Fourth Amendment reasonableness of force used during a

seizure is whether, under the totality of the circumstances, an officer’s actions are

objectively reasonable in light of facts and circumstances confronting him, without


39

regard to his underlying intent or motivations. See Kopec v. Tate, 361 F.3d 772, 776

(3d Cir. 2004); Graham, 490 U.S. at 397.

184. Defendant Folster used physical force against Derek, including

repeated applications of a Taser, both in drive-stun and probe mode.

185. When Defendant Folster used force against Derek, he did not enjoy a

lawful privilege to use force, as he was not attempting to effect a lawful arrest.

186. When Defendant Folster used force against Derek, Derek did not

present as a physical threat to Defendant Folster or to others.

187. Defendant Folster escalated the interaction between Derek and himself,

causing the need for the use of force that would otherwise not be necessary.

188. Even if it is determined that Defendant Folster enjoyed a privilege to

use force against Derek, the force used was excessive and unlawful, in that it was

largely intended to cause physical pain and injury in response to anger caused by

Derek questioning Defendant Folster’s authority.

189. As a direct and proximate result of the Defendant’s conduct, Derek

suffered and will continue to suffer embarrassment, humiliation, physical and

psychological harm, pain and suffering, and financial harm, some or all of which

may be permanent.

190. As a direct and proximate result of the Defendant’s conduct, Derek has

incurred attorneys’ fees and other costs associated with his defense.


40

COUNT II

Plaintiff v. Defendant Herrell & Smith

Fourth Amendment (Failure to Intervene)


191. A police officer may be held personally liable for failing to intervene

in another’s use of excessive force if (a) the defendant failed or refused to intervene

when a constitutional violation took place in his or her presence or with his or her

knowledge; and (b) there was “a realistic and reasonable opportunity to

intervene.” Smith v. Mensinger, 293 F.3d 641, 651 (3d Cir. 2002).

192. Defendants Brian Heller and Travis Smith, police officers employed by

Gettysburg College, arrived on scene.

193. Defendant Heller arrived within one minute of, and just prior to,

Defendant Smith.

194. Either Defendant Heller or Defendant Smith asked if Defendant Folster

wanted assistance.

195. Defendant Folster replied loudly, “yeah, do something or go away.”

196. Defendant Folster’s response should have placed Defendant Heller

and/or Defendant Smith on notice that Defendant Folster was no longer in control of

his emotions.

197. Derek continued to yell, “you’re hurting me!”

198. Defendant Folster yelled, “I don’t care!”


41

199. Defendant Folster continued to cycle the Taser, while Derek repeatedly

yelled, “Ow!” and “Stop!”

200. Derek warned Defendant Folster that he was going to give him a heart

attack, but Defendant Folster did not stop.

201. Despite having an appreciable opportunity to do so, Defendants Herrell

and Smith failed to intervene to protect Derek from Defendant Folster.

202. Instead, Defendants, Herrell and Smith, used force to help Defendant

Folster force Derek from his vehicle.

203. Moreover, Defendant Smith heard Derek tell Defendant Folster, “that

he has disabilities,” but Defendant Folster continued to use the Taser on Derek.

204. At no point in time did Defendants, Herrell or Smith, try to determine

whether Derek’s disability was preventing him from understanding what was

occurring and complying, and/or take any action to stop the unlawful use of force.

205. Instead, Defendants, Herrell and Smith, assisted Defendant Folster by

using force against Derek, and watched Defendant Folster attach a cartridge to his

Taser and fire the Taser into Derek’s chest.

206. As a direct and proximate result of the Defendants’ conduct, Derek

suffered, and will continue to suffer, embarrassment, humiliation, physical and


may be permanent.


42

207. As a direct and proximate result of the Defendants’ conduct, Derek has


COUNT III


Fourth and Fourteenth Amendments—Malicious Prosecution


208. To prevail on a Section 1983 malicious prosecution claim, a Plaintiff

must establish that: (1) Defendants initiated a criminal proceeding; (2) the criminal

proceeding ended in Plaintiff’s favor; (3) the proceeding was initiated without

probable cause; (4) Defendants acted maliciously or for a purpose other than

bringing plaintiffs to justice; and (5) Plaintiffs suffered a deprivation of liberty

consistent with the concept of seizure as a consequence of a legal proceeding. See

DiBella v. Borough of Beachwood, 407 F.3d 599 (3d Cir. 2005); Estate of Smith v.

Marasco, 318 F.3d 497 (3d Cir. 2003).

a. Defendant Folster Initiated a Criminal Proceeding

209. A police officer may be held to have “initiated” a criminal proceeding

if he knowingly provided false information to the prosecutor or otherwise interfered

with the prosecutor’s informed discretion. See Reed v. City of Chicago, 77 F.3d

1049, 1054 (7th Cir. 1996).

210. In such cases, “an intelligent exercise of the … [prosecutor’s] discretion

becomes impossible,” and a prosecution based on the false information is deemed


43

“procured by the person giving the false information.” Restatement 2d Torts § 653,

cmt. g.

211. In one of the cases, Defendant Folster improperly attempted to bias the

judicial officer by including a false statement in the affidavit of probable cause, i.e.,

“After being given at least 6-7 orders to exit the vehicle, and being advised multiple

times that he was under arrest, the defendant began to fight and was Tasered before

finally exiting the vehicle.”

212. Moreover, in both cases, Defendant Folster possessed exculpatory

evidence – the audio and video recording in the force incident, the information

provided by Derek in the PFA incident, and the truth – that vitiated probable cause

– but failed to timely provide the evidence to the judicial officer, who evaluated the

criminal complaints, or to the prosecutor; thereby circumventing and undermining

both the judicial officer’s and the prosecutor’s discretion.

b. The Criminal Proceeding Terminated in Derek’s favor

213. The Commonwealth requested that the Indirect Criminal Contempt

charge be dismissed, which was granted.

214. A jury acquitted Derek of all remaining criminal charges.

c. The Proceeding was Initiated Without Probable Cause

215. Even when an arrest warrant is approved by a judge, an officer is not

entitled to immunity, “where the warrant application is ‘so lacking in indicia of


44

probable cause as to render official belief in its existence unreasonable[.]’” Orsatti

v. N.J. State Police, 71 F.3d 480, 483 (3d Cir. 1995) (quoting Malley v. Briggs, 475

U.S. 335, 341 (1986)).

216. To comply with the Fourth Amendment, arrests must be supported by

probable cause.

217. “[P]robable cause to arrest exists when the facts and circumstances

within the arresting officer’s knowledge are sufficient in themselves to warrant a

reasonable person to believe that an offense has been or is being committed by the

person to be arrested.” Orsatti v. N.J. State Police, 71 F.3d 480, 483 (3d Cir. 1995);

see also Wilson v. Russo, 212 F.3d 781, 789 (3d Cir. 2000) (“Probable cause exists

if there is a fair probability that the person committed the crime at issue.”).

218. The probable cause inquiry is fact based. See, e.g., Illinois v. Gates, 462

US 213, 239 (1983).

219. An objectively reasonable police officer knows that probable cause

only exists when sufficient evidence exists “to cause a person of ordinary prudence

and caution to conscientiously entertain a reasonable belief of the accused’s

guilt.” See Sidali v. I.N.S., 107 F.3d 191, 199 (3d Cir. 1977) (citing Coleman v.

Burnett, 477 F.2d 1187, 1202 (D.C. Cir. 1973).

220. Defendant Folster knew that the resisting arrest charges were based

largely on his sworn material false statement.


45

221. Moreover, as discussed above in section (a), Defendant Folster knew

that he did not have probable cause to criminally charge Derek or to continue to keep

Derek in custody.

d. Defendant Folster acted Maliciously or for a Purpose Other than

Bringing Plaintiff to Justice.

222. Defendant Folster knowingly withheld exculpatory information from

the prosecutor.

223. Defendant Folster knew that he could not reasonably rely on the arrest

warrant that he obtained as a result of submitting an Affidavit of Probable Cause that

contained a material false statement.

224. The criminal charges were not asserted for the purpose of pursuing

justice.

225. Rather, the criminal charges were asserted for the purpose of attempting

to justify an unlawful arrest and an unlawful use of force.

e. As a Consequence of the Legal Proceeding, Derek Suffered a

Deprivation of Liberty.

226. To prevail on a malicious prosecution claim, a Plaintiff must suffer a

deprivation of liberty, consistent with the concept of seizure, as a consequence of a

legal proceeding. See Estate of Smith v. Marasco, 318 F.3d 497 (3d Cir. 2003);

Dibella v. Borough of Beachwood, 407 F.3d 599 (3d Cir. 2005); Basile v. Twp. of

Smith, 752 F.Supp.2d 643, 659 (W.D. Pa. 2010) (citing Penberth v. Krajnak, No.


46

3:CV-06-1023 , 2008 WL 509174, at *17-*18 (M.D. Pa. Feb. 21, 2008) (seizure

must occur as a result of the malicious prosecution, and “must occur chronologically

after the pressing of charges.”); see also Lopez v. Maczko, No. 07-1382 , 2007 WL

2461709, at *3-*4 (E.D. Pa. Aug. 16, 2007).

227. As a result of Defendant Folster’s filing of false criminal charges

against Derek, a judicial officer set bail and issued a commitment order directing

that Derek be held in custody unless/until he posted monetary bail.

228. Derek was then transported to jail.




may be permanent.



COUNT IV


Fourteenth Amendments—Procedural Due Process


231. In Black v. Montgomery County, et al., No. 15-3399 (3d Cir. 2016), the

Third Circuit held that, “an acquitted criminal defendant may have a stand-alone

fabricated evidence claim against state actors under the due process clause of the


47

Fourteenth Amendment if there is a reasonable likelihood that, absent that fabricated

evidence, the defendant would not have been criminally charged.” See also Halsey

v. Pfeiffer, et al., 750 F.3d 273 (3d Cir. 2014).


that Defendant Folster filed a sworn Affidavit of Probable Cause, in support of the

Criminal Complaint, that contained the following false statement, “After being given

at least 6-7 orders to exit the vehicle, and being advised multiple times that he was

under arrest, the defendant began to fight and was Tasered before finally exiting the

vehicle.”

233. Absent the fabricated evidence – the false sworn statement – Derek

would not, and could not, have been criminally charged.




may be permanent.




48

COUNT V

Plaintiff v. Defendant Runk, Dougherty & Troxell

Fourth and Fourteenth Amendments—Supervisory Liability


236. A supervisor may be held liable in his/her individual capacity if s/he

participated in violating a Plaintiff’s rights, directed others to violate them, or had

knowledge of and acquiesced in his/her subordinates’ constitutional violations.

See Baker v. Monroe Twp., 50 F.3d 1186, 1190-91 (3d Cir. 1995); Andrews v. City

of Phila., 895 F.2d 1469, 1478 (3d Cir. 1990)).

237. Defendants, Troxell, Dougherty, and Runk, supervised Defendant

Folster, and were responsible, in whole or in part, to ensure that his conduct complied

with state and federal law.

238. Defendants, Troxell, Dougherty, and Runk, were responsible, in whole

or in part, to ensure that Defendant Folster’s conduct complied with Department

policies and training.


or in part, for receiving and investigating citizen’s complaints against Defendant

Folster.


or in part, for providing additional training to Defendant Folster when necessary.


49


or in part, for providing recommendations and/or issuing discipline against

Defendant Folster.

242. Defendants, Troxell, Dougherty, and Runk, failed to properly

investigate citizens’ complaints, and instead, purposefully closed valid complaints,

without taking action against Defendant Folster, in deliberate indifference to the civil

rights of citizens.

243. Defendants, Troxell, Dougherty, and Runk, engaged in a longstanding

pattern and practice of maintaining internal affairs and disciplinary procedures that

were a sham, and that were solely intended to vindicate officers who engaged in

unlawful and/or improper conduct.




may be permanent.




50

COUNT VI

Plaintiff v. Defendants Borough and College

Violations of Americans with Disabilities Act and Rehabilitation Act

246. Defendants Borough and College violated the Americans with

Disabilities Act, 42 U.S.C. § 12101 et seq., and the Rehabilitation Act, 29 U.S.C. §

794(a).

247. “Whether suit is filed under the Rehabilitation Act or under the

Disabilities Act, the substantive standards for determining liability are the

same.” McDonald v. Pennsylvania, 62 F.3d 92, 95 (3d Cir.1995).

248. Title II of the ADA provides that “no qualified individual with a

disability shall, by reason of such disability, be excluded from participation in or be

denied the benefits of the Services, programs, or activities of a public entity, or be

subjected to discrimination by any such entity.” 42 U.S.C. § 12132.

249. Defendant Smith admits in his police report that he heard Derek tell

Defendant Folster “that he has disabilities” but that Defendant Folster continued to

use the Taser on Derek. (Case # 05122015-000790).

250. At no point in time did Defendants Folster, Herrell, or Smith, try to

determine (a) the nature of Derek’s disability, and/or (b) whether Derek’s disability

was preventing him from understanding what was occurring and complying.


51

251. Had the Defendants inquired, they would have discovered that Derek

had been diagnosed in childhood with an intellectual disability, and continues to this

date to suffer from same.

252. Persons with an intellectual disability are limited in two areas: (a)

intellectual functioning, and (b) adaptive behaviors.

a. Intellectual functioning refers to the person’s ability to learn, reason,

make decisions, and problem solve.

b. Adaptive behaviors refer to day-to-day life skills, i.e., the person’s

ability to communicate effectively, interact with others, and take care

of oneself.

253. Importantly, because of his disability, Derek was unable to process the

information that the Defendants were conveying to him at the pace required by the

unnecessarily escalated fast-paced confrontation.

254. Had the confrontation not been escalated, Derek would have had

sufficient time to process and understand that Defendant Folster was improperly

trained, mentally unstable, and intended on causing him physical harm.

255. Had Derek’s disability been acknowledged and accommodated, Derek

would have been able to make decisions that would have protected himself from the

Defendants.


52

256. Derek advised officers from Defendants Borough and College that he

suffered from a disability.

257. Had the Defendants Borough and College had a policy and training that

required the officers to inquire as to the nature of the disability, and how to

accommodate same if reasonably possible, the officers would have done so.

258. Instead, the officers never inquired as to the nature of Derek’s

disability, and as a result, did not accommodate his disability, or protect him from

an unlawful use of force.

259. As a result of his disability, Defendant Folster denied Derek proper law

enforcement services available to non-disabled persons.




may be permanent.




53

COUNT VII

Plaintiff v. Defendant Borough

Fourth and Fourteenth Amendments—Municipal Liability


262. Chiefs of police and law enforcement experts, associated with the

International Association of Chiefs of Police (“IACP”) through the National Law

Enforcement Policy Center, and the U.S. Department of Justice (“DOJ”), have

developed model law enforcement policies, establishing minimum industry

standards – the level of professionalism that law enforcement agencies should

achieve.

263. In Pennsylvania, chiefs of police and law enforcement experts,

associated with the Commission on Accreditation for Law Enforcement (“CALEA”)

and/or The Pennsylvania Law Enforcement Accreditation Program (“PLEAC”) have

developed model law enforcement policies, establishing minimum industry

standards – the level of professionalism that law enforcement agencies should

achieve.

264. The Defendant Borough, however, knowingly failed to maintain

policies, practices, and training that meet the minimum accreditation standards set

by IACP, DOJ, PLEAC, CALEA, or similar type accrediting organizations.


54

265. The Municipal Police Officers’ Education and Training Commission

(“MPOETC”), develops the minimum required training program for municipal

police officers – Act 120 (certification) and Act 180 (annual update training).

266. Merely sending a police officer to training, however, does not satisfy

the training obligations.

267. Rather, the Defendant Borough, and not MPOETC, remain responsible

for ensuring that their respective police officers are properly trained, remain properly

trained, and act in accordance with said training.

268. Regardless, Defendant Folster’s conduct did not comport with

MPOETC training standards.

269. The Defendant Borough maintained policies, practices, and customs,

which were the moving force that resulted in Derek’s constitutional rights being

violated.

270. The Defendant Borough failed to implement the policies identified

herein.

271. It is believed that discovery will reveal, and therefore averred, that the

Defendant Borough failed to implement a policy, enforce a policy, or train officers,

on the Fourth or Fourteenth Amendments to the U.S. Constitution.


Defendant Borough failed to implement an effective process to ensure that policies


55

and training are followed by its law enforcement personnel.

273. It is believed that discovery will reveal, and therefore averred, that

when it has been determined that officers have violated the constitutional or statutory

rights of persons, or when officers have been named in citizen complaints, or when

the Defendant Borough has settled civil lawsuits, the Defendant Borough has not

required officers to receive corrective or additional training.


Defendant Borough did not follow its internal affairs policy and investigate,

discipline, or retrain the Individual Borough Defendants for the conduct discussed

in this Complaint.


only investigation that occurred was because of the threat of litigation (so as to be a

defense to the litigation).

276. It is believed and therefore averred that when the Defendant Borough’s

independent consultants recommended the immediate termination of three

personnel, the Defendant Borough did not terminate the personnel’s employment as

recommended.

277. Instead, in usual fashion, the Defendant Borough took action to protect

the personnel, by providing severance packages to two of the employees, and a

performance plan to the third employee.


56

278. The Defendant Borough continues to maintain that the Individual

Borough Defendants acted lawfully, and in accordance with the Defendant

Borough’s policies and practices; thereby ratifying the unlawful conduct.

279. The Defendant Borough’s deficient policies and practices caused Derek

to suffer the constitutional injuries described herein.

280. The Defendant Borough’s failure or refusal to discipline the Individual

Defendants is clear evidence of after-the-fact ratification of an unlawful policy and

practice that caused Plaintiff’s constitutional injuries.




may be permanent.



COUNT VIII


Assault

(Pursuant to Pennsylvania Commonwealth Law)

283. Assault is an intentional attempt to cause physical injury to another.

See Renk v. City of Pittsburgh, 641 A.2d 289, 293 (Pa. 1994).


57

284. Defendant Folster committed assault against Derek when he engaged

in conduct that placed him in fear that he would be subjected to violence and physical

injury.

285. Defendant Folster did not enjoy a privilege to use force against Derek.

286. Derek did not consent to force being used against him.

287. Defendant Folster engaged in willful misconduct.

288. Pursuant to 42 Pa. Cons. Stat. Ann. § 8550, which abolishes

immunity for willful misconduct engaged in by local agency employees, Defendant

Folster is not immune from suit.




may be permanent.



COUNT IX

Plaintiff v. Defendants Folster

Battery

(Pursuant to Pennsylvania Commonwealth Law)

291. A battery is when the threatened violence in an assault is completed.

See Renk v. City of Pittsburgh, 641 A.2d 289, 293 (Pa. 1994).


58

292. Defendant Folster committed a battery against Derek when he used

force, or permitted force, that caused him to suffer physical injury.

293. Defendant Folster did not enjoy a privilege to use force against Derek.

294. Derek did not consent to the force used against him.

295. Defendant Folster engaged in willful misconduct.

296. Pursuant to 42 Pa. Cons. Stat. Ann. § 8550, which abolishes

immunity for willful misconduct engaged in by local agency employees, Defendant

Folster is not immune from suit.




may be permanent.



COUNT X


Malicious Prosecution Pursuant to Pennsylvania Law

299. To maintain a claim for malicious prosecution under Pennsylvania law,

a Plaintiff must prove that the (1) Defendant initiated a criminal proceeding against

the Plaintiff, (2) without probable cause, (3) the criminal proceeding terminated

favorably to Plaintiff, and (4) Defendant acted maliciously or for a purpose other


59

than bringing the plaintiff to justice. See Kelley v. General Teamsters Local 249,

544 A.2d 940, 941 (1988).

300. Regarding the Pennsylvania Political Subdivision Tort Claims Act, 42

Pa. Cons. Stat. Ann. § 8541 et seq. (“PSTCA”), public officials are not entitled to

immunity if their conduct is deemed to be a “crime, actual fraud, actual malice

or willful misconduct.” 42 Pa. C.S.A. § 8550.

301. The Pennsylvania Supreme Court has defined “willful misconduct” to

mean “that the actor desired to bring about the result that followed, or at least that

he was aware that it was substantially certain to ensue.” Evans v. Philadelphia

Transp. Co., 212 A.2d 440, 443 (1965).

302. In determining whether the willful misconduct exception applies, the

Pennsylvania Supreme Court has applied a different standard to the conduct of police

officers as opposed to the conduct of other employees. Brockington v. City of

Philadelphia, 354 F.Supp.2d 563, 571 (E.D.Pa. 2005) (citing Renk v. City of

Pittsburgh, 641 A.2d 289, 293 (Pa. 1994)).

303. The court in Maiale v. Youse interpreted Renk to require “not only that

the police officer intended to commit the acts that he is accused of carrying out, but

also that the officer understood that the actions he intended to take were illegal and

chose to take the actions anyway.” Maiale v. Youse, No. Civ. A. 03-5450, 2004 WL

1925004, at *11 (E.D.Pa. Aug. 27, 2004).


60

a. Defendant Folster Initiated a Criminal Proceeding

304. Defendant Folster improperly attempted to bias the judicial officer by

including a false statement in the affidavit of probable cause, i.e., “After being given

at least 6-7 orders to exit the vehicle, and being advised multiple times that he was

under arrest, the defendant began to fight and was Tasered before finally exiting the

vehicle.”

305. Moreover, in both cases, Defendant Folster possessed exculpatory

evidence – the audio and video recording in the force incident, the information

provided by Derek in the PFA incident, and the truth – that vitiated probable cause

– but failed to timely provide the evidence to the judicial officer, who evaluated the

criminal complaints, or to the prosecutor; thereby circumventing and undermining

both the judicial officer’s and the prosecutor’s discretion.

b. The Proceeding was Initiated Without Probable Cause

306. “[P]robable cause to arrest exists when the facts and circumstances

within the arresting officer’s knowledge are sufficient in themselves to warrant a

reasonable person to believe that an offense has been or is being committed by the

person to be arrested.” Orsatti v. N.J. State Police, 71 F.3d 480, 483 (3d Cir. 1995);

see also Wilson v. Russo, 212 F.3d 781, 789 (3d Cir. 2000) (“Probable cause exists

if there is a fair probability that the person committed the crime at issue.”)


61

307. An objectively reasonable police officer knows that probable cause

only exists when sufficient evidence exists “to cause a person of ordinary prudence

and caution to conscientiously entertain a reasonable belief of the accused’s

guilt.” See Sidali v. I.N.S., 107 F.3d 191, 199 (3d Cir. 1977) (citing Coleman v.

Burnett, 477 F.2d 1187, 1202 (D.C. Cir. 1973).

308. Defendant Folster knew that the resisting arrest charges were based,

largely on his sworn false statement.

309. Moreover, as discussed above in Count III, section (a), Defendant

Folster knew that he did not have probable cause to criminally charge Derek or to

continue to keep Derek in custody.

c. The Criminal Proceeding Terminated in Derek’s Favor

310. The Commonwealth requested that the Indirect Criminal Contempt

charge be dismissed, which was granted.

311. A jury acquitted Derek of all remaining criminal charges.

d. Defendant Folster acted Maliciously or for a Purpose Other than

Bringing Plaintiff to Justice.

312. Defendant Folster knowingly withheld exculpatory information from

the prosecutor.

313. Defendant Folster knew that he could not reasonably rely on the arrest

warrant that he obtained as a result of submitting an Affidavit of Probable Cause that

contained a material false statement.


62

314. The criminal charges were not asserted for the purpose of pursuing

justice.

315. Rather, the criminal charges were asserted for the purpose of attempting

to justify an unlawful arrest, and an unlawful use of force.




may be permanent.



COUNT XI


Abuse of Process Pursuant to Pennsylvania Law

318. To establish a common law abuse of process claim, a Plaintiff must

establish that the Defendant (1) used a legal process against the Plaintiff, (2)

primarily to accomplish a purpose for which the process was not designed, and (3)

harm has been caused to the Plaintiff. Lerner v. Lerner, 954 A.2d 1229, 1238 (Pa.

Super. Ct. 2008); Shiner v. Moriarty, 706 A.2d 1228, 1236 (Pa. Super. Ct. 1998),

appeal denied, 729 A.2d 1130 (Pa. 1998).

319. It cannot be disputed that Defendant Folster initiated a criminal

proceeding against the Plaintiff.


63

320. Defendant Folster intentionally placed a false statement in the Affidavit

of Probable Cause in support of the Criminal Complaint.

321. It is clear from Defendant Folster’s statement to the Court that he knew

that probable cause for the crime charged did not exist.

322. Defendant Folster’s purpose in knowingly initiating a criminal

proceeding against Derek, without probable cause, was not to obtain a conviction,

but rather to attempt to justify his use of force against Derek.

323. Defendant Folster’s conduct caused Derek to suffer emotional distress,

embarrassment, inconvenience, and financial harm.




may be permanent.



COUNT XII


Intentional Infliction of Emotional Distress

Pursuant to Pennsylvania Law

326. In Williams v. Guzzardi, 875 F.2d 46 (3d Cir. 1989), the Third Circuit

predicted that the Supreme Court of Pennsylvania would recognize the tort of


64

intentional infliction of emotional distress, as described in Restatement (Second) of

Torts S 46 (1965), which provides,

One who by extreme and outrageous conduct intentionally or recklessly

causes severe emotional distress to another is subject to liability for

such emotional distress, and if bodily harm to the other results from it,

for such bodily harm.

327. According to the Restatement commentary, conduct is sufficient to

make out a claim for emotional distress if “the recitation of the facts to an average

member of the community would arouse his resentment against the actor, and lead

him to exclaim, ‘Outrageous!’” Restatement (Second) of Torts S 46, cmt. d.

328. Regarding the Pennsylvania Political Subdivision Tort Claims Act, 42

Pa. Cons. Stat. Ann. § 8541 et seq. (“PSTCA”), public officials are not entitled to

immunity if their conduct is deemed to be a “crime, actual fraud, actual malice

or willful misconduct.” 42 Pa. C.S.A. § 8550.

329. The Pennsylvania Supreme Court has defined “willful misconduct” to

mean “that the actor desired to bring about the result that followed, or at least that

he was aware that it was substantially certain to ensue.” Evans v. Philadelphia

Transp. Co., 212 A.2d 440, 443 (1965).

330. In determining whether the willful misconduct exception applies, the

Pennsylvania Supreme Court has applied a different standard to the conduct of police

officers as opposed to the conduct of other employees. Brockington v. City of

Philadelphia, 354 F.Supp.2d 563, 571 (E.D.Pa. 2005) (citing Renk v. City of


65

Pittsburgh, 641 A.2d 289, 293 (Pa. 1994)).

331. The court in Maiale v. Youse interpreted Renk to require “not only that

the police officer intended to commit the acts that he is accused of carrying out, but

also that the officer understood that the actions he intended to take were illegal and

chose to take the actions anyway.” Maiale v. Youse, No. Civ. A. 03-5450, 2004 WL

1925004, at *11 (E.D.Pa. Aug. 27, 2004).

332. Defendant Folster’s conduct in (1) unnecessarily escalating and causing

a physical confrontation with Derek, and (2) repeatedly Tasering Derek who was not

a threat to Defendant Folster or others, and who is disabled, is extreme and

outrageous conduct.




may be permanent.




66

WHEREFORE, Plaintiff respectfully requests that judgment be entered in

his favor as follows:

A. Declaratory Judgment: Providing that the Defendants’ individual and

collective conduct violated Derek’s Federal Constitutional rights, and his rights

pursuant to the laws of the Commonwealth of Pennsylvania;

B. Injunctive Relief: The Court require the Defendant Borough to

implement all of the recommendations issued by the independent expert consultants.

C. Compensatory Damages: Including, but not limited to, the monetary

value associated with the following: violations of legal rights, emotional distress,

emotional injury, embarrassment, loss of reputation, and related physical injuries;

D. Punitive damages as permitted by law;

E. Equitable Relief: An admission of the allegations stated in the

Complaint, in writing, and an oral and written apology for same, in person, from the

Defendants;

F. Attorney’s Fees and Costs; and

G. Discretionary Damages and Relief: Such other financial or equitable

relief that the Court deems reasonable and just.

Jury Trial Demand

Plaintiff respectfully requests a trial by jury on all claims/issues in this matter

that may be tried to a jury.


67

Respectfully Submitted,

Date: January 24, 2017

DEVON M. JACOB, ESQUIRE Pa. Sup. Ct. I.D.: PA 89182

Counsel for Plaintiff

JACOB LITIGATION

P.O. Box 837, Mechanicsburg, Pa. 17055-0837

717.796.7733 | [email protected]


C<"'MMONWEAL TH OF

. · t=JENNSYLVANIA

COUNTY OF:ADAMS

POLICE CRIMINAL COMPLAINT COMMONWEALTH OF·PENNSYLVANIA

vs. Magisterial District Number: 51-3-01

MDJ: Hon. MATTHEW R HARVEY

Address: 34 EAST MIDDLE STREET

GETIYSBURG, PA 17325

Telephone: (717)334-7913

··.Gen. ·

0 1-Felony Full

0 2-Felony Ltd.

0 3-Felony Surrounding States

0 4-Felony No Ext.

0 5-Felony Pend.

0 A-Misdemeanor Full

181 B-Misdemeanor Limited

0 C-Misdemeanor Surrounding States

0 D-Misdemeanor No Extradition

0 E-Misdemeanor Pending

0 Distance:

'; · ..

·~ ..... , .j,'-'.';t '·'§..;~,!;~.!;; !:,;, •. '\·.'.~:·; ·~~·;.,;,:•.:~·;:-;,: : .. · · ;r,;·,::'•iDEEENDAN:r;IDENTIFleAJ'l0N'INFORMATl0N;~°*~'h'!!.~.1 :~·F:'l'':.<'1>01;~::f~,';;;»;·:.·'.... .:·· ·,;ft', -:::.t-:·-: ;·· .. Docket Number Date Filed OTN/LiveScan Number Complaint/Incident Number SID Request Lab Services?

0 YES 181 NO

Add'I DOB I I Co-Defendant(s) 0 (?ENDER····

181 ,Maie .. : ·. First Name Middle Name Last Name Gen.

o Fem.are:: . .. AKA RACE· . · ·. · 181 White ;· .. : · :··· Asian· · ·. : '/ ··: .. . ,. D Black- · :-c:[J Native American . . · .un~"nowir · : ETHNICITY 0 Hispanic 181 Non-His anlc 0 Unknown HAIR COLOR .... ··

... :::· ... '..: .

:o ·G_RY (Gray} 0 RED. (Red/Aubn.) D SDY.(S.andy) .

-. · .. ~'BLK(Black) "0 O~G:(O~nge) 0 Wi:ii"(Wh1.iei:.

0 Bllf(Bl~ef '· :. . "D PlE (F!urple) O xx)«ct:iril<le~1d) ... · O GRN ·((;;~n> .· : :;-.. ·. . .. . .-.... ·> .

O BRO CB.roW!l)

: 0 PNK.(Pink) .-:. · .

. •. : . ~. •. . .D·BLN (Blonde /strawberrY) · . . .·· ' ' ':·-.. -:::.-··. •.·· > -.. :· .. :.'•': ...

EYE COLOR 0 BLK (Black) 0 BLU (Blue) 181 BRO (Brown) 0 GRN (Green) 0GRY(Gray)

0 HAZ (Hazel) 0 MAR (Maroon) 0 PNK (Pink) 0 MUL (Multicolored) 0 XXX (Unknown)

License Number 26746033 Ex ires: 04 14 2019

DNA Location 400 : .

181 NO 6' ... ·. ' ..4 '· ...

:~:-ii~.:~:f:,\tl1H~~~~?/~;:~~~~;~1~':;.:'·~~-=~'t~l'~1~Y:,t~:{:~~ ;-;.;•;;::. t ~-!' · ~;j;h~~~:.:t ·:·t~~~:~:~DEFENDA lhVEHICLE~lN~ORMAT.10N.~!J~~f~~~:n~~.1.~~;,.·;~.Y,;·~;~~'.i~t;.~;~;~~:t~.f~ ;r ... ; .. :.\~.;i'~-~J1;:~ i~~~~;:~:f;:t~;;.z:~~\ Comm'I Veh. O O 0th. NCIC Yeh. Code Reg.

Plate #JTL6333 01/16 Ind. same as Def.

0

Office of the attorney for the Commonwealth O Approved O Disapproved because: - ------ ---- -----(The attorney for the Commonwealth may require that the complaint, arrest warrant affidavit, or both be approved by the attorney_ for the Commonwealth prior to filing. See Pa.R.Crim.P . . 507). · ·

I I (Name or the attorney ror the Commonwealth) (Signature or the attorney for the Commonwealth) (Date)

I, PFC C HRISTOPHER B . FOLSTER : .... 33368/23 ... , .. , · .. : . (Name of the Affiant) (PSP/MPOETC -Assigned Affiant ID Number & Badge#

of GETTYSBURG POLICE DEPARTMENT (Identify Department or Agency Represented and Political Subdivision) (Police Agency ORI Number) do hereby state: (check appropriate box)

1. 181 I accuse the above named defendant who lives at the address set forth above O I accuse the defendant whose name is unknown to me but who is described as

. : ··'

. · ..

· ..... ; .... ::· :':·

--------------O I accuse the defendant whose name and popular designation or nickname are unknown to me and whom I have

therefore desiqnated as John Doe or Jane Doe with violating the penal laws of the Commonwealth of Pennsylvania at [4071 BRECKENRIDGE ST

BOROUGH OF G ETTYSBURG (Subd1v1s1on Code) (Place-Pouucal SuoarvrsronJ

in ADAMS County [01] on or about 05/12/15 @ 2254 HOURS

(Count Code)

·- - ------·------·------AOPC 412A - Rev. 07 /10 Page 1 of_

EXHIBIT 2


Docket Number: Date Filed: 05/12/2015

I OTN/LiveScan Number

I Middle: L.

POLICE CRIMINAL COMPLAINT

l ;J~on,plaint/lncident ... Number . . ·>:: .:''. .. .. ·. ,1505-0247-I . . · • · · : , · ·· · ,. . ..

I Last: lWYMAN

The acts committed by the accused are described below with each Act of Assembly or statute violated, if appropriate. When there is more than one offense, each offense should be numbered chronologically. (Set forth a brief summary of the facts sufficient to advise the defendant of the nature of the offense(s) charged. A citation to the statute(s) violated, without more, is not sufficient. In a summary case, you must cite the specific section(s) and subsectlon(s) of the statute(s) or ordlnance(s) allegedly violated. The age of the victim at the time of the offense may be included If known. In addition, social security numbers and financial Information (e.g. PINs) should not be listed. If the.identity of an account must be established, list only the last four digits. 204 PA.Code§§ 213.1 - 213.7.) ·

:!lh.clio,a.t~J.~ O Attempt · ~·ottense·ri 18 901 A

-~: ... .·.1

. Lead? Offense# Section Subsection

'· ,,,:: PennD0T:~Dat~i ·:«~ :l~i:·Accident;-": I 1 • ....... ...._ .'"'''"'.'~• · • • · •· \, "~ • A" •J ,... ' I.'

•'!: ... ,, (ifi'cioolic·atjlet':<~, .;_, r:r;·:~y.r:i;iber.;~,,;

0 Solicitation 18902A

~ .. PA Statute rnuel

I Counts

D Safety Zone

. .

D Conspiracy 18903

.. 14801 . ···· ... · .. ·.-. 1 Grade NCIC Offense Code UCR/NIBRS Code

I D Work Zone

Statute Description (include the name of statute or ordinance): PA Title 18 Section 5401 - Resisting arrest or other law enforcement - M2

Acts of the accused associated with this Offense: PA Title 18 Section 5401 - Resisting arrest or other law enforcement - M2; The defendant did, with the intent of preventing a public servant from effecting a lawful arrest, create a substantial risk of bodily injury to the public servant and employed means justifying or requiring substantial force to overcome the resistance.

_ ).nchQ~.~~-~ 0 Attempt .-.Qffehs~e:;.~ 18 901 A

D Conspiracy 18903

0 Work Zone

Acts of the accused associated with this Offense: Title 18 Section 2709(A)(3) Harassment - S: The defendnat did, with intent to harass, annoy or alarm another person, engage in a course of conduct or repeatedly commit acts which serve no legitimate purpose.

·.·.·. : ' ... '~· <·. '"": .·. . .

Counts NCIC Offense Code UCR/NIBRS Code

D Safety Zone D Work Zone

Acts of the accused associated with this Offense:

AOPC 412A - Rev. 07 /10 Page _ of _


• POLICE CRIMINAL COMPLAINT Docket Number: Date Filed:

05/12/2015 First:

DEREK

OTN/LiveScan Number

Middle:

J

.,co:rjlP.l_aint/lnci.deht Number~ · : : ::>>·. ·. · · : ·1sos~6241~1.··; .. ·~· ·:· . . ·. _ ... ;. '"· · .. =: ··

Last: TWYMAN

2. I ask that a warrant of arrest or a summons be issued and that the defendant be required to answer the charges I have made.

3. I verify that the facts set forth in this complaint are true and correct to the best of my knowledge or information and belief. This verification is made subject to the penalties of Section 4904 of the Crimes Code (18 Pa.C.S. § 4904) relating to unsworn falsification to authorities.

4. This complaint consists of the preceding page(s) numbered 1 through 3.

The acts committed by the accused, as listed and hereafter, were against the peace and dignity of the Commonwealth of Pennsylvania and were contrary to the Act(s) of the Assembly, or in violation of the statutes cited. (Before a warrant of arrest can be issued, an affidavit of probable cause must be completed, sworn to before the issuing authority, and attached.)

AND NOW, on this date

;;i. & oS/,..?-/'fi"

05-.H.-2015 (Date) (Signature of Affiant)

I certify that the complaint has been properly completed and verified.

An affidavit of probable cause must be completed before a warrant can be issued.

(Magisterial District Court Number) (Issuing Authority) SEAL

AOPC 412A- Rev. 07 /10 Page _ of _


'* POLICE CRIMINAL COMPLAINT Docket Number: Date Filed: I

05/12/2015 OTN/LiveScan Number

I ~iddle: I

Last: TWYMAN

AFFIDAVIT of PROBABLE CAUSE

On May 12, 2015 at 2254 hours I observed the defendant operating a silver Lincoln Towncar PA reg JTL6333 on Hanover Street, Borough of Gettysburg, Adams County, PA. I had just finished receiving a complaint of a Protection From Abuse order violation and was actively looking for the defendant to take him into custody for that violation. The victim is a resident of Breckenridge Street, Borough of Gettysburg, Adams County, PA and has received over 70 phone calls and three Facebook messages fro the defendant since Sunday May 10, 2015.

I followed the vehicle into Lincoln Square and then onto Carlisle Street, then onto West Railroad Street. When we turned onto West Railroad Street I activated my emergency lights and the defendant turned into the parking lot of College Apartments and stopped. I approached the vehicle and advised the defendant that he was being recorded on video and audio and explained why I was stopping him. The defendant was initially cooperative, but upset. When I instructed the subject to exit the vehicle he became extremely belligerent and refused orders to exit the vehicle. After being given at least 6-7 orders to exit the vehicle, and being advised multiple times that he was under arrest, the de3fendnat began to fight and was Tasered before finally exiting the vehicle. He continued to struggle and it required four officers to take him into custody. The defendant is 6'04" and weighs about 400lbs. The affiant is 5'07" and weighs about 160 lbs.

I, PFC C. FOLSTER, BEING DULY SWORN ACCORDING TO THE LAW, DEPOSE AND SAY THAT THE FACTS SET FORTH IN THE FOREGOING AFFIDAVIT ARE TRUE AND CORRECT TO THE BEST OF MY KNOWLEDGE, INFORMATION AND BELIEF.

(Signature of Affiant)

Sworn to me and subscribed before me this day of

Date , Magisterial District Judge ---------------------------------------------------------------------

My commission expires first Monday of January,

SEAL

_________ , AOPC 411C - Rev. 07 /10 Page 1 of_


djacob

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