Case Document 8 Filed 08/29/16 Page 1 of 29 William P. Harrington Justin M. Gardner (J 1 69) BLEAKLEY PLATT SCHMIDT, LLP One NorthLexington Avenue White Plains, NY 10601 (914) 949-2700 Attorneys for Defendants UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK In the Matter of the Application of Case N0.: 7:16-cv-067l4 MICHAEL SULLIVAN, Petitioner/ Plaintiff, For a Judgment Pursuant to CPLR Article 78 and for a Declaratory Judgment and other relief against - GEORGE HOEHMANN, Individually and as Town Supervisor of the Town of Clarkstown, Councilman FRANK BORELLI, Individually and as a Member of the Clarkstown Town Board, Councilwoman STEPHANIE HAUSNER, as a Member of the Clarkstown Town Board, Councilman JOHN J. NOTO, Individually and as a Member of the Clarkstown Town Board, Councilwoman ADRIENNE D. CAREY, Individually and as a Member of the Clarkstown Town Board, the TOWN OF CLARKSTOWN and the TOWN BOARD OF THE TOWN OF CLARKSTOWN, Respondents/ Defendants, And STEPHEN JOHN DOE and JANE DOE, unknown Members of the Clarkstown Police Department, Counterclaim?Defendants. ANSWER TO VERIFIED WITH COUNTERCLAIMS Case Document 8 Filed 08/29/16 Page 2 of 29 Defendants, by their attorneys, BLEAKLEY PLATT SCHMIDT, LLP, answer the Veri?ed Petition/Complaint of plaintiff as follows: 1. Admit the allegations in paragraph 1, except aver and allege that plaintiff has been lawfully suspended as Chief of Police of the Town of Clarkstown (?the Town?). 2. Admit the allegations in paragraph 2, except deny any liability in any capacity to plaintiff. 3. Admit the allegations in paragraph 3, except deny any liability in any capacity to plaintiff. 4. Admit the allegations in paragraph 4, except deny any liability in any capacity to plaintiff. 5. Admit the allegations in paragraph 5, except deny any liability in any capacity to plaintiff. 6. Admit the allegations in paragraph 6, except deny any liability in any capacity to plaintiff. 7. Admit the allegations set forth in paragraph 7. 8. Admit the allegations set forth in paragraph 8. 9. Deny the allegations set forth in paragraph 9. 10. Deny the allegations set forth in paragraph 10. 11. Deny the allegations set forth in paragraph 11, except admit plaintiff purports to seek legal relief under the cited federal and state statutes. 12. Admit the allegations set forth in paragraph 12, except aver that plaintiff has been lawfully suspended as the Chief of Police since July 20, 2016, and is the subject of a pending administrative disciplinary hearing. Case 7:16-cv-06714-UA Document 8 Filed 08/29/16 Page 3 of 29 13. Deny the allegations set forth in paragraph 13. 14. Deny the allegations set forth in paragraph 14. 15. Deny the allegations set forth in paragraph 15. 16. Deny knowledge or information suf?cient to form a belief with respect to the allegations set forth in paragraph 16, except deny plaintiff has maintained an exemplary, unblemished record in light of the facts which precipitated his pending suspension. 17. Deny the allegations set forth in paragraph 17. 18. Admit the allegations set forth in paragraph 18 and refer the court to the document referenced therein to establish the substance thereof. 19. Deny the allegations set forth in paragraph 19. 20. Deny the allegations set forth in paragraph 20, except admit plaintiff is the subject of a lawfully commenced administrative disciplinary proceeding and related investigation.? 21. Deny the allegations set forth in paragraph 21. 22. Admit the allegations set forth in paragraph 22, except aver defendants have complied with all applicable law and refer the court to the document referenced in the complaint to establish terms thereof. 23. Admit the allegations set forth in paragraph 23. 24. Deny the allegations in paragraph 24 as they constitute improper conclusions of law. 25 . Deny knowledge or information sufficient to form a belief with respect to the allegations set forth in paragraph 25. 26. Deny the allegations set forth in paragraph 26, except admit that applicable law Case Document 8 Filed 08/29/16 Page 4 of 29 exists governing the plaintiff and the Town?s Police Department. 27. Deny the allegations set forth in paragraph 27, except admit that applicable law exists governing the plaintiff and the Town?s Police Department. 28. Admit the allegations set forth in paragraph 28, except deny plaintiff as Chief of Police has unfettered, unreviewable discretion to manage the Police Department. 29. Admit the allegations in paragraph 29, except deny that plaintiff, as Chief of Police, is the only entity authorized to initiate an investigation of or disciplinary charges against members of the Town?s Police Department. 30. Admit the allegations set forth in paragraph 30, except aver that prior to June 28, 2016, plaintiff was asked by defendants to investigate potentially unlawful, unauthorized activities of Sgt. Cole-Hatchard. 31. Admit the allegations set forth in paragraph 31. 32. Deny knowledge or information suf?cient to form a belief with respect to the allegations set forth in paragraph 32, except admit that plaintiff, at some point, served Sgt. Cole- Hatchard with a notice of internal investigation and interviewed him. 33. Admit the allegation that plaintiff advised a Deputy Town Attorney of his interview with Sgt. Cole-Hatchard, but deny the plaintiff ?s characterization of the substance of the communication. 34. Admit that on July 1, 2016, Supervisor Hoehmann ordered plaintiff to immediately reassign Sgt. Cole?Hatchard from the Strategic Intelligence Unit to the detective bureau at Police headquarters and prohibit communication with the press, and that plaintiff disregarded the Supervisor?s direct order. Defendants otherwise deny the balance of the allegations set forth in paragraph 34. Case Document 8 Filed 08/29/16 Page 5 of 29 35. Admit the allegations contained in paragraph 35. 36. Deny the allegations set forth in paragraph 36 on the grounds they had no bearing on plaintiff?s ability to obey the Supervisor?s direct order. 37. Deny the allegations set forth in paragraph 37. 3 8. Deny the allegations set forth in paragraph 3 8. ?39. Deny the allegations set forth in paragraph 39. 40. Deny the allegations set forth in paragraph 40, and aver that Supervisor Hoehmann?s action was lawful. The defendants refer the court to the email to establish the terms thereof. 41. Deny the allegations in paragraph 41, and aver the actions of defendants were lawful in all respects. 42. Admit the allegations in paragraph 42. 43. Admit the allegations in paragraph 43, except deny knowledge or information sufficient to form a belief regarding Defendant Hausner. 44. Deny knowledge or information suf?cient to form a belief with respect to the allegations in paragraph 44, except admit that, at some point, defendants were informed of Sgt. Cole?Hatchard?s untimely reassignment. 45. Deny knowledge or information sufficient to form a belief with respect to the allegations in paragraph 45, except admit that plaintiff authored and transmitted Exhibit to the complaint. 46. Deny the allegations in paragraph 46. 47. Deny knowledge or information suf?cient to form a belief with respect to the allegations in paragraph 47. Case Document 8 Filed 08/29/16 Page 6 of 29 48. Deny knowledge or information suf?cient to form a belief with respect to the allegations in paragraph 48. 49. Deny knowledge or information suf?cient to form a belief with respect to the allegations in paragraph 49, and refer the Court to the documents to establish the terms thereof. 50. Deny the allegations in paragraph 50. 51. Deny the allegations in paragraph 51. 52. Deny the allegations in paragraph 52, but admit plaintiff met with Supervisor Hoehmann on July 19, 2016 at approximately 7:30 pm. 53. Admit that plaintiff was handed two documents, but otherwise deny the allegations of paragraph 53. 54. Admit that as a courtesy plaintiff was provided the opportunity to retire with full bene?ts, rather than face bona?de, warranted disciplinary charges, but otherwise deny the allegations in paragraph 54. Defendants refer to Exhibit to establish the substance thereof. 55. Admit the allegations in paragraph 55 and refer to Exhibit to establish the terms thereof. 56. Admit plaintiff was provided the opportunity to retire with full bene?ts rather than face bonafrde, warranted disciplinary charges, but otherwise deny the allegations set forth in paragraph 56. 57. Upon information and belief, admit the allegations in paragraph 5 7. 58. Admit that the plaintiff declined the offer to retire and was subsequently suspended with pay, but otherwise deny the allegations of paragraph 58. 59. Admit that pursuant to applicable protocol, defendant Hoehmann advised the Police Department of the plaintiff?s suspension and took the appropriate steps necessary to Case 7:16-cv-06714-UA Document 8 Filed 08/29/16 Page 7 of 29 secure plaintiff ?3 cell phone, computer and to prohibit plaintiff ?3 access to Police Department Headquarters. 60. Admit that defendant Hoehmann publicly and properly announced plaintiff ?3 suspension with pay, but deny the balance of the allegations in paragraph 60. 61. Deny the allegations in paragraph 61, except admit that defendant Hausner made certain public statements but thereafter supported the suspension of plaintiff, the ?ling of amended disciplinary charges, and other actions consistent therewith. 62. Deny the allegations of paragraph 62 and aver that defendants complied with applicable law relating to disciplinary actions taken against municipal employees. ANSWER TO THE FIRST CAUSE OF ACTION 63. Defendants repeat the responses to the allegations contained in paragraphs 1 through 62 as if set forth more fully herein. 64. Deny the allegations in paragraph 64. 65. Deny the allegations. in paragraph 65. 66. Deny the allegations in paragraph 66. ANSWER TO THE SECOND CAUSE OF ACTION 67. Defendants repeat the responses to the allegations contained in paragraphs 1 through 66 as if set forth more fully herein. 68. Deny the allegations in paragraph 68. 69. Deny the allegations in paragraph 69. 70. Deny the allegations in paragraph 70. ANSWER TO THE THIRD CAUSE OF ACTION 71. Defendants repeat the responses to the allegations contained in paragraphs 1 Case Document 8 Filed 08/29/16 Page 8 of 29 through 70 as if set forth more fully herein. 72. Deny the allegations in paragraph 72. 73. Deny the allegations in paragraph 73, except admit plaintiff was lawfully suspended. 74. Deny the allegations in paragraph 74. ANSWER TO THE FOURTH CAUSE OF ACTION 75. Defendants repeat the responses to the allegations contained in paragraphs 1 through 74 as if set forth more fully herein. 76. Deny knowledge or information suf?cient to form a belief with respect to the allegations in paragraph 76. 77. Deny knowledge or information suf?cient to form a belief with respect to the allegations in paragraph 77. 78. Deny the allegations in paragraph 78. ANSWER TO THE FIFTH CAUSE OF ACTION 79. Defendants repeat the responses to the allegations contained in paragraphs 1 through 78 as if set forth more fully herein. 80. Deny the allegations in paragraph 80. 81. Deny the allegations in paragraph 81 as they constitute improper conclusions of law. 82. Deny the allegations in paragraph 82. 83. Deny the allegations in paragraph 83. ANSWER TO THE SIXTH CAUSE OF ACTION 84. Defendants repeat the responses to the allegations contained in paragraphs 1 Case Document 8 Filed 08/29/16 Page 9 of 29 through 83 as if set forth more fully herein. 85. Deny the allegations in paragraph 85. 86. Deny the allegations in paragraph 86. 87. Deny the allegations in paragraph 87. 88. Deny the allegations in paragraph 88. ANSWER TO THE SEVENTH CAUSE OF ACTION 89. Defendants repeat the responses to the allegations contained in paragraphs 1 through 88 as if set forth more fully herein. 90. Deny the allegations in paragraph 90. 91. Deny the allegations in paragraph 91. 92. Deny the allegations in paragraph 92. 93. Deny the allegations in paragraph 93. ANSWER TO THE EIGHTH CAUSE OF ACTION 94. Defendants repeat the responses to the allegations contained in paragraphs 1 through 93 as if set forth more herein. 95. Deny the allegations in paragraph 95. 96. Deny the allegations in paragraph 96. 97. Deny the allegations in paragraph 97. 98. Admit that plaintiff has had a 33?year career as a law enforcement police officer, but otherwise deny the balance of the allegations in paragraph 98. 99. Deny the allegations in paragraph 99. 100. Deny the allegations in paragraph 100. Case Document 8 Filed 08/29/16 Page 10 of 29 ANSWER TO THE NINTH CAUSE OF ACTION 101. Defendants repeat the responses to the allegations contained in paragraphs 1 through 100 as if set forth more fully herein. 102. Deny the allegations in paragraph 102. 103. Deny the allegations in paragraph 103. 104. Deny the allegations in paragraph 104. 105. Admit plaintiff has been a law enforcement officer for 33 years, but deny the balance of the allegations in paragraph 105. 106. Deny the allegations in paragraph 106. 107. Deny the allegations in paragraph 107. ANSWER TO THE TENTH CAUSE OF ACTION 108. Defendants repeat the responses to the allegations contained in paragraphs 1 through 107 as if set forth more fully herein. 109. Deny knowledge or information suf?cient to form a belief with respect to the allegations contained in paragraph 109, but deny defendants engaged in any conduct or plan to reinstate a former police officer so that the former police officer could obtain a pension or exact revenge against the Police Department. 1 10. Deny the allegations in paragraph 110. 1 1 1. Deny the allegations in paragraph 111 . 112. Admit that defendant Hoehmann met with the Rockland County District Attorney concerning plaintiff?s meritless complaint, but deny the balance of the allegations contained in paragraph 112. 1 l3. Deny the allegations in paragraph 113. 10 Case 7:16-cv-06714-UA Document 8 Filed 08/29/16 Page 11 of 29 114. Admit plaintiff has been a law enforcement of?cer for 33 years, but otherwise deny the allegations in paragraph 114. 115. Deny the allegations in paragraph 115. 116. Deny the allegations in paragraph 116. 117. Deny the allegations in paragraph 117. 118. Deny the allegations in paragraph 118. ANSWER TO THE ELEVENTH CAUSE OF ACTION 119. Defendants repeat the responses to the allegations contained in paragraphs 1 through 118 as if set forth more fully herein. 120. Deny knowledge or information suf?cient to form a belief with respect to the allegations in paragraph 120. 121. Deny knowledge or information suf?cient to form a belief with respect to the allegations in paragraph 121. 122. Deny the allegations in paragraph 122. 123. Deny knowledge or information suf?cient to form a belief with respect to the allegations in paragraph 123. 124. Deny the allegations in paragraph 124. 125. Deny the allegations in paragraph 125. 126. Deny the allegations in paragraph 126. 127. Deny the allegations in paragraph 127. 128. Deny the allegations in paragraph 128. 129. Admit plaintiff has been a law enforcement of?cer for 33 years, but deny the balance of the allegations in paragraph 129. 11 Case Document 8 Filed 08/29/16 Page 12 of 29 130. Deny the allegations in paragraph 130. 131. Deny the allegations in paragraph 131. 132. Deny the allegations in paragraph 132. 133. Deny the allegations in paragraph 133. ANSWER TO THE TWELFTH CAUSE OF ACTION 134. Defendants repeat the responses to the allegations contained in paragraphs 1 through 133 as if set forth more fully herein. 135. Deny knowledge or information to form a belief with respect to the allegations in paragraph 135 and refer the Court to the alleged newspaper story to establish the substance, if any, thereof. 136. Deny knowledge or information to form a belief with respect to the allegations in paragraph 136 and refer the Court to the alleged newspaper story to establish the substance, if any, thereof. 137. Deny the allegation that any statement by the Supervisor?s Chief of Staff was misleading or prejudiced to the Town in the pending litigation, but otherwise deny knowledge or information suf?cient to form a belief with respect to the allegations in paragraph 137. 138. Upon information and belief, admit the ?newspaper article? was republished on social media, but deny knowledge or information sufficient to form a belief with respect to the allegations in paragraph 138. 139. Deny knowledge or information sufficient to form a belief with respect to the allegations in paragraph 139. 140. Deny knowledge or information suf?cient to form a belief with respect to the allegations in paragraph 140. 12 Case Document 8 Filed 08/29/16 Page 13 of 29 141. Deny the allegations in paragraph 141. 142. Deny the allegations in paragraph 142. 143. Deny the allegations in paragraph 143. 144. Deny the allegations in paragraph 144. 145. Deny the allegations in paragraph 145. 146. Deny the allegations in paragraph 146. 147. Deny the allegations in paragraph 147. FIRST AFFIRMATIVE DEFENSE 148. Plaintiff lacks standing to assert claims on behalf of the Clarkstown Police Department or any member thereof. SECOND AFFIRMATIVE DEFENSE 149. Plaintiff has failed to exhaust mandated administrative remedies under New York law, warranting dismissal of the Complaint. THIRD AFFIRMATIVE DEFENSE 150. The relief sought in the Complaint is barred by the doctrine of unclean hands and plaintiff Violation of applicable law. FOURTH AFFIRMATIVE DEFENSE 151. The relief sought in the Complaint is barred by plaintiff illegal insubordination and illegal conduct. FIFTH AFFIRMATIVE DEFENSE 152. Some or all of plaintiff?s claims are barred by the doctrine of absolute immunity. SIXTH AFFIRMATIVE DEFENSE 153. Some or all of plaintiff 3 claims are barred by the doctrine of qualified immunity. 13 Case Document 8 Filed 08/29/16 Page 14 of 29 SEVENTH AFFIRMATIVE DEFENSE 154. To the extent plaintiff purports to claim his activities were constitutionally protected, such claims are barred since the plaintiff was acting in his capacity as the Chief of Police. EIGHTH AFFIRMATIVE DEFENSE 155. Some or all of plaintiff 3 claims are barred by the applicable statute of limitations. NINTH AFFIRMATIVE DEFENSE 156. At all relevant times, the defendants treated plaintiff in a non?discriminatory manner with respect to his employment with the Town in accordance and in compliance with any and all applicable federal, state and local laws, rules, ordinances and regulations. TENTH AFFIRMATIVE DEFENSE 157. Plaintiff was not damaged by any act or omission of the defendants, but if Plaintiff sustained any damage, he has failed to mitigate his damages. ELEVENTH AFFIRMATIVE DEFENSE 158. Plaintiff failed to join a necessary party pursuant to Rule 19 of the Federal Rules of Civil Procedure. FIRST COUNTERCLAIM AGAINST PLAINTIFF AND COUNTERCLAIM DEFENDANTS STEPHEN JOHN DOE AND JANE DOE A. The Parties 159. Defendants are duly elected members of the Town Board of the Town of Clarkstown (the ?Town?) responsible for the lawful management of Town of?cials and employees, including the Town Police Department and Chief of Police. 160. At all relevant times before his suspension as Chief of Police, plaintiff Michael 14 Case 7:16-cv-06714-UA Document 8 Filed 08/29/16 Page 15 of 29 Sullivan (?Sullivan?) was the Chief of Police of the Town of Clarkstown, New York. 161. At all relevant times, Counterclaim?Defendant Stephen Cole-Hatchard (?Cole- Hatchard?) was a Member of the Clarkstown Police Department and Director of its Special Intelligence Unit As Director of the SIU, Cole-Hatchard reported directly to Sullivan who was fully apprised of and approved of the actions of Cole?Hatchard and the SIU. 162. Cole-Hatchard is a former elected of?cial of the Town of Stony Point, New York, a lawyer duly admitted to practice law in the State of New York, and maintains a political fund as a former elected of?cial which he uses to support candidates of his choice for elected public of?ce. 163. Counterclaim-Defendants John Doe and Jane Doe are Members of the SIU of the Clarkstown Police Department, currently unknown to defendants, who acted in concert with and took direction from Sullivan and Cole-Hatchard. 164. Pursuant to applicable law, as Chief of Police, Sullivan was responsible for certain management functions of the Police Department and to insure Department personnel complied with all applicable laws. 165. Pursuant to applicable law, as Chief of Police, Sullivan was obligated to report to and comply with the lawful directives of Defendant Hoehmann, as Town Supervisor, and the Town Board. 166. As Director of the SIU, Cole-Hatchard was responsible for the conduct of lawful electronic surveillance of individuals and groups in accord with applicable law including, without limitation, 28 CFR Part 23, et. seq. and the Constitution of the United States. 167. As members of the SIU, Counterclaim?Defendants John Doe and Jane Doe were responsible for the conduct of lawful electronic surveillance of individuals and groups in accord 15 Case 7:16-cv-06714-UA Document 8 Filed 08/29/16 Page 16 of 29 with applicable law including, without limitation, 28 CFR Part 23, et. seq. and the Constitution of the United States. 168. Pursuant to Rule 19 of the Federal Rules of Civil Procedure, Counterclaim- Defendants Cole?Hatchard, John Doe and Jane Doe are necessary parties Without Whom the Court cannot afford complete relief among existing parties. 169. Pursuant to Rules 20 and 13(h) of the Federal Rules of Civil Procedure, Counterclaim?Defendants Cole?Hatchard, John Doe and Jane Doe are proper parties to the counterclaims in that the relief requested arises out of the same transaction, occurrence, or series of transactions or occurrences and involves common questions of law or fact. JURISDICTION 170. Pursuant to 28 U.S.C. 1331, the Court has jurisdiction over the counterclaims since they arise under the Constitution and laws of the United States. 171. The acts complained of herein occurred in the County of Rockland New York within the Southern District of New York. FACTS RELEVANT TO COUNTERCLAIM A. Creation of the Police Department?s Special Intelligence Unit Under Applicable Federal Law 172. In an effort to enable law enforcement agencies to appropriately collect and share electronic information regarding criminal activity such as drug traf?cking, extortion, smuggling, corruption of public officials, and other threats to public safety, the Federal Government enacted The Omnibus Crime Control and Safe Streets Act, 42 U.S.C. 3711 (the ?Omnibus Crime Act?) to allow for, among other things, the use of the electronic surveillance as a tool for law enforcement to detect and prevent criminal activity and protect the safety, health and welfare of United States citizens. 16 Case Document 8 Filed 08/29/16 Page 17 of 29 173. In furtherance of the Omnibus Crime Act, the Federal Government issued regulations to assure that all governmental criminal investigations systems operating under the Omnibus Crime Act were utilized in conformance with the privacy and constitutional rights of individuals. 28 CFR Part 23, et seq. 174. 28 CFR Part 23.20 prohibits the surveillance and collection of electronic data concerning the political, religious or social views of any individual, group or association unless there is a reasonable suspicion that such individual, group or association is involved in criminal conduct and the information is relevant to that criminal conduct, stating in pertinent part: A project shall collect and maintain criminal intelligence information concerning an individual only if there is reasonable suspicion that the individual is involved in criminal conduct or activity and the information is relevant to that criminal conduct or activity. A project shall not collect or maintain criminal intelligence information about the political, religious or social views, associates, or activities of any individual or any group, association, corporation, business, partnership, or other organization unless such information directly relates to criminal conduct or activity and there is reasonable suspicion that the subject of the information is or may be involved in criminal conduct or activity. (Emphasis added.) 175. Pursuant to the Omnibus Crime Act, the Town created within the Police Department the Special Intelligence Unit funded, in part, by federal funds. The Town entered into an intermunicipal agreement with the County of Rockland to form an entity known as the Rockland County Intelligence Led Policing and Prosecution Center to monitor, collect and share data regarding criminal activity as authorized by the Omnibus Crime Act, 28 CFR Part 23, et. seq. and the United States Constitution. 176. At all relevant times before his suspension as Chief of Police, Sullivan was 17 Case Document 8 Filed 08/29/16 Page 18 of 29 responsible to insure the SlU?s compliance with all applicable laws, including the aforesaid provisions of the Omnibus Crime Act and related regulations. 177. At all relevant times before his suspension as Chief of Police, Sullivan appointed Cole?Hatchard as the Director of the SIU. l78. As SIU Director, Sgt. Cole?Hatchard reported directly to, timely apprised and obtained approval of plaintiff for all the electronic surveillance and related investigative activities of the SIU. 179. On or about June 26, 2016, Supervisor Hoehmann and the Town Board directed Sullivan, as Chief of Police, to conduct an investigation of Cole-Hatchard?s potential unauthorized leaking to the media of information relating to litigation or administrative disciplinary hearings involving Clarkstown Police Department members. 180. At the time the Supervisor and Town Board directed Sullivan to investigate Cole- Hatchard, neither the Supervisor nor the Town Board had any knowledge of the illegal operation of the SIU as described below by Sullivan, Cole-Hatchard and Counterclaim?Defendants John Doe and Jane Doe. 181. In contrast, at the time Sullivan was directed by Supervisor Hoehmann to investigate Cole?Hatchard, Sullivan had personal knowledge of and condoned the illegal activities of Cole-Hatchard and the SIU, Sullivan and withheld this information from the Supervisor and Town Board. 182. At no time during Sullivan?s investigation did he report to the Town Board the misconduct of himself, Cole-Hatchard or others in the operation of the SIU. 183. On Friday, July 1, 2016, Supervisor Hoehmann and the Town Board, without knowing about the illegal conduct of the SIU, ordered Sullivan to immediately transfer Cole- 18 Case 7:16-cv-06714-UA Document 8 Filed 08/29/16 Page 19 of 29 Hatchard out of the SIU and back to the Detective?s Bureau at Police Headquarters. 184. Rather than comply with the order of Supervisor Hoehrnann and the Town Board, Sullivan de?ed the order and instead, called each Town Board member over the weekend to question if they indeed wanted to transfer Cole?Hatchard from the SIU. Each Town Board member confirmed to Sullivan their agreement to immediately transfer Cole-Hatchard from the SIU. 185. Rather than do so, Sullivan waited until the following week to transfer Cole- Hatchard out of the SIU. 186. As a result thereof, Supervisor Hoehmann suspended Sullivan as Chief of Police with pay effective July 20, 2016. Upon discovery of Sullivan?s knowledge and approval of the illegal conduct of the SIU, on August 19, 2016 amended administrative charges were preferred by Supervisor Hoehmann. 187. From at least July 2015, with the knowledge and consent of Sullivan, Cole- Hatchard and Counterclaim-Defendants John Doe and Jane Doe, the SIU has engaged in the unlawful electronic surveillance of African Americans, the Rockland County Sheriff, a Clarkstown Town Judge and citizens of the County of Rockland, solely based upon these individuals? race, social and/or political positions in violation of 28 CFR Part 23 and the First, Fourth and Fourteenth Amendments to the United States Constitution. Racial Pro?ling and Surveillance of the African American Group ?We The People? 188. Beginning on or about July 24, 2015, Cole-Hatchard advised Haverstraw, New York Police Chief Miller via email that the SIU had learned that ?We The People,? an African American community group located in Rockland County with no criminal record or history of violence, planned to sponsor a play entitled CLEAN stating in pertinent part: 19 Case Document 8 Filed 08/29/16 Page 20 of 29 I came across an on line ad for an event scheduled to take place in your jurisdiction and thought you might want to be aware. A group called ?We The People? is presenting a play entitled CLEAN on Thursday, September 3, 2015, at 2000 hours at the SHADES REPERTORY THEATER at 64 Main Street, Haverstraw. The advertisement shows a photo of a police car with a White subject pointing a handgun out of the vehicle window. I have attached a copy of the ad for your reference. We do not have any intelligence developed relating to this matter at this point, as this is for informational purposes only. However, if you would like a tactical intelligence workup on the hosting group or any of the people mentioned in the ad feel free to let me know and we will be happy to do so right away. (emphasis added.) 189. On August 4, 2015, the Haverstraw Police Department acknowledged via email receipt of the play ?yer and requested that the Clarkstown SIU ?provide anything you can obtain on this group and its participants.? 190. By email of the same day, Cole-Hatchard advised . . I will have one of he (sic) do a workup on the group, location and players. Give us a couple of days and i (sic) will get whatever we ?nd to you.? 191. The SIU thereafter generated an August 7, 2015 ?Intelligence Report? on the ?We The People? community group and the 14 individuals involved with the planned production of the play. 192. The Report stated that the SIU, as part of the ILPPC, was ?a 28 CFR Part 23 compliant agency.? That representation was false in that the Report and the SIU violated 28 CFR Part 23, et. seq. 193. Although there was absolutely no evidence that any of the individuals af?liated with ?We The People? were engaged in, or reasonably suspected to engage in, criminal activity, violence, or otherwise posed a public safety threat, the Report re?ects that the SIU used electronic 20 Case Document 8 Filed 08/29/16 Page 21 of 29 surveillance assets to search each individual?s social media pro?les and postings. In addition, each individual was ?run through? the Clarkstown RMS criminal database. 194. As re?ected in the Report, the vast majority of the pro?led individuals had no criminal record whatsoever, and none posed any public safety threat. The Report?s ?Summary? concluded ?although individuals involved in the organization have strong opinions, there is no cause to believe this event is going to become violent.? 195. The STU conducted racial pro?ling via electronic surveillance on members of the African American community group ?We The People? without any justi?able legal basis simply because the African American community group exercised its First Amendment right to sponsor a play. 196. The racial pro?ling of the members of the ?We The People? community group violated 28 CFR Part 23 and and the First, Fourth and Fourteenth Amendments to the United States Constitution. (ii) Pro?ling of Members of the Black Lives Matter Movement 197. Commencing at least as early as January 1, 2015, the STU issued reports in conjunction with and to the Rockland County District Attorney?s Of?ce. 198. The STU describes the purpose of the Report as follows: Through the use of a social media monitoring platform and other investigatory tactics, the ILPPC is able to search, monitor and analyze real time social media content from any chosen location around the country. With the aim to interrupt violence, the mission is to: Prevent individuals from causing harm to themselves and others; Set up geofences to monitor social media in high risk areas of Rockland; and Monitor social media accounts of individuals who may be associated with acts of violence. 21 Case Document 8 Filed 08/29/16 Page 22 of 29 Findings will all be supported by both tactical and strategic intelligence, with assistance from and constant communication with the Youth Bureau and Community Advocates (Interrupters). 199. Among other things, the Reports re?ect the number of electronic investigations established, the groups targeted for electronic surveillance via electronic ?Geofences? and the number of alerts received and reviewed. 200. The November 2015 Report, dated December 11, 2015, indicates that the ?Black Lives Matter Movement? was one of the groups subject of electronic surveillance, along with such categories as ?Gangs,? ?Violence,? ?Terrorism,? ?Heroine Initiative,? and ?Police Riots.? 201. The November 2015 Report re?ects the SIU conducted electronic surveillance on two (2) Black Lives Matter Movement members. No misconduct or threat of criminal conduct was found with respect to these two unidenti?ed individuals, nor does the Report re?ect any justi?able basis to conduct such surveillance as mandated by 28 CFR Part 23.20 and 202. Upon information and belief, at the direction of Sullivan and Cole?Hatchard, the SIU was conducting unlawful surveillance of Black Lives Matter Members well before November 2015. 203. The December 2015 Report, dated January 4, 2016, repeats the surveillance methodology referenced in the November Report. The December Report re?ects that the SIU conducted electronic surveillance on what it deemed to be six (6) members of the Black Lives Matter Movement. Again, no misconduct was found, nor was there any legitimate legal basis in the Report for surveillance under 28 CFR Part 23.20 and 204. By email dated January 14, 2016, Cole-Hatchard forwarded the December 2015 Report to various individuals within both the Clarkstown Police Department including Sullivan, as well as the Rockland County District Attorney?s Of?ce. 22 Case Document 8 Filed 08/29/16 Page 23 of 29 205. Within 45 minutes of receipt of the December Report, the Rockland County District Attorney?s Of?ce responded to Cole-Hatchard?s transmittal of the December Report, noting in pertinent part the obvious illegality of the surveillance of Black Lives Matter members: mentioned before, you really should not have Black Lives Matter listed as a target for surveillance.? (ii) Illegal Use of SIU Surveillance and Assets to Unlawfully Develop Political Attacks of Political Enemies in Law Enforcement, the Judiciary and Public Surveillance of Town Residents That Support Police Department Reform 206. Defendant Hoehmann ran for Supervisor in November 2015 on a platform that included the review and appropriate ?scal reform of all aspects of Town government, including the Police Department?s $50 million annual budget which represents one?third of the Town?s $150 million annual budget. He won the election by approximately 12 points. 207. Upon information and belief, following Defendant Hoehmann?s election Victory in November 2015, the SIU, at the direction of Sullivan and Cole-Hatchard, the SIU began and continue conducting illegal surveillance of defendant Hoehmann?s social media to gather personal information to use to oppose Hoehmann?s proposed review and reform of the Police Department. 208. Commencing on or about December 1, 2015, with the knowledge and consent of Sullivan and Cole?Hatchard, the SIU began using electronic surveillance to identify individuals with social media posts who supported defendant Hoehmann?s fiscal reforms, including that of the Police Department. 209. By email dated December 11, 2015, SIU analyst, K. Donohue gathered and forwarded to Cole?Hatchard the social media posts of approximately 20 Clarkstown residents 23 Case Document 8 Filed 08/29/16 Page 24 of 29 who favor ?scal reform of the Police Department. Once again, none of these individuals were suspected of any criminal activity. Their only crime was that the political views posted on social media were adverse to the ?scal interests of Sullivan, ColeuHatchard and the Clarkstown Police Department. County Sheriff Lou Falco 210. In November 2015, Rockland County Sheriff Lou Falco ran for re-election. Sullivan and Cole?Hatchard opposed his re-election, perceiving him as a political rival and threat for available public police funding. 211. By email dated September 9, 2015, Cole-Hatchard forwarded to Sullivan a four- page political attack strategy against County Sheriff alco entitled FALCO IS THE WORST THING TO HAPPEN TO PUBLIC SAFETY AND LAW ENFORCEMENT IN ROCKLAND COUNTY IN The document was an outline of a political campaign against Falco based upon the perceived threat of the County Sheriff posed to the Clarkstown Police Department. It was prepared by Cole-Hatchard while on duty at the SIU and transmitted via the of?cial Clarkstownorg email to Sullivan while he was on duty as Police Chief. 212. Like the surveillance report on ?We The People? community group members, the covering email ?Notice? accompanying the Falco document reiterated that the SIU was a ?28 CFR Part 23 compliant agency?. Sheriff Falco did not engage in any criminal conduct, nor did Sullivan or Cole-Hatchard have a reasonable suspicion he did so. The political attack against Falco, a County Sheriff who won re-election in November 2015, is a ?agrant violation of 28 CFR Part 23.20 and 24 Case Document 8 Filed 08/29/16 Page 25 of 29 Clarkstown Town Judge Howard Gerber 213. Clarkstown Town Judge Howard Gerber was perceived by Sullivan and Cole- Hatchard as a political enemy of the Police Department. Unhappy with Judge Gerber, plaintiff had unsuccessfully filed a complaint earlier in 2015 with the New York State Commission on Judicial Conduct. Gerber was exonerated. Sullivan was furious. 214. Like County Sheriff Falco, Judge Gerber also ran for re-election in November 2015. In anticipation of his judicial election, Sullivan and Cole?Hatchard, both while on Police Department duty, prepared a potential election strategy to defeat Judge Gerber. 215. By email dated October 29, 2015, Sullivan outlined his plan to Cole?Hatchard: I have been monitoring the news and so far there has been no stories regarding this. I don?t think we should bring attention to it unless the Judge does. If he does I think we should release the case ?le, including the interview to the press. Although we don?t normally do this I think we can in the interest of public disclosure regarding an elected official that directly impacts upon his conduct and duty of that elected official. I also spoke with the District Attorney who stated that he would have no problem with releasing it. I am also including a draft of a letter I will be sending to the Commission on Judicial Misconduct. Please review and let me know what you think. 216. The same day Cole?Hatchard, while on duty with the SIU, responded: ?If [the District Attorney] is going to release it [Gerber?s disciplinary case I would think it will wait until a point just before Election Day leaving [Gerber] no time for a response.? 217. Judge Gerber had been exonerated of any wrongdoing by the State of New York. He did not engage in criminal conduct. He did not represent a public safety threat. Yet, while on duty, Sullivan and Cole-Hatchard engaged in a scheme to politically attack and potentially defeat Judge Gerber for political purposes illegally using Police Department and SIU resources in violation of 28 CFR Part 23.20 and and the United States Constitution. 25 Case Document 8 Filed 08/29/16 Page 26 of 29 218. As a result of the foregoing, Sullivan, acting in concert with Cole-Hatchard and Counterclaim-Defendants John Doe and Jane Doe, have and, upon information and belief, will continue to use SIU intelligence assets to engage in unlawful racial, political and social pro?ling of Rockland County residents in violation of the Omnibus Crimes Act, 28 CRF 23, et seq. and the First, Fourth and Fourteenth Amendments to the United States Constitution. 219. The subjects of such illegal surveillance, as well as the Town of Clarkstown, its Police Department, and its citizens have and will continue to suffer irreparable harm if the aforesaid illegal conduct is not enjoined. SECOND COUNTERCLAIM AGAINST PLAINTIFF AND COUNTERCLAIM DEFENDANTS STEPHEN COLE-HATCHARD, JOHN DOE AND JANE DOE 220. Defendants/Counterclaim Plaintiffs hereby incorporate by reference all allegations of the preceding paragraphs of this Answer with Counterclaims as if fully set forth herein. 221. Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d, provides: person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied bene?ts of, or be subjected to discrimination under any program or activity receiving federal ?nancial assistance. 222. The Police Department of the Town of Clarkstown (?Clarkstown Police Department?) is the law enforcement agency for the Town of Clarkstown, and receives federal funding and other ?nancial assistance from the Department of Justice and other federal agencies to operate the SIU, which participates in an intermunicipal agreement with the County of Rockland to monitor, surveil, collect and share data regarding criminal activity as authorized by the Omnibus Crime Act and related regulations. 223. The Clarkstown Police Department is a political subdivision of the State of New 26 Case Document 8 Filed 08/29/16 Page 27 of 29 York and, as a recipient of federal funds, is required to conduct its activities in a racially non- discriminatory manner pursuant to Title VI of the Civil Rights Act of 1964. 224. Federal regulations implementing Title VI further provide that no program receiving ?nancial assistance through the DOJ shall utilize criteria or methods of administration which have the effect of subjecting individuals to discrimination because of their race, color and/or ethnicity, or have the effect of defeating or substantially impairing accomplishment of the objectives of the program as respects individuals of a particular race, color and/or ethnicity. 225. The methods employed by Sullivan acting in concert with Cole-Hatchard and others within the SIU discriminate against individuals based on their race, color and/or ethnicity as described herein violating 42 U.S.C. 2000d and its implementing regulations. 226. The subjects of such illegal discrimination, as well as the Town of Clarkstown, its Police Department, and its citizens have and will continue to suffer irreparable harm if the aforesaid illegal conduct is not enjoined. WHEREFORE, defendants respectfully demand the following relief: Dismissal of the Complaint in its entirety with prejudice; 2. On its First Counterclaim: A judgment pursuant to 28 U.S.C. 2201 and 2202 declaring illegal the electronic surveillance of the Police Department?s SIU as approved and supervised by Sullivan, Cole-Hatchard and Counterclaim-Defendants John Doe and Jane Doe under 28 CFR Part 23 and The First, Fourth and Fourteenth Amendments to the Constitution of the United States; and a permanent injunction enjoining the Sullivan, Cole-Hatchard, Counterclaim?Defendants John Doe and Jane Doe, and Police Department?s SIU 27 Case 7:16-cv-06714-UA Document 8 Filed 08/29/16 Page 28 of 29 from engaging in future electronic surveillance of any individual or group in violation of the US. Constitution, other federal law and 28 CFR Part 23; 3. On its Second Counterclairn: a judgment pursuant to 28 U.S.C. 2201 and 2202 declaring Sullivan, Cole-Hatchard and Counterclaim-Defendants John Doe and Jane Doe have engaged in race discrimination in violation of Title VI of the Civil Rights Act of 1964; a permanent injunction enjoining the continued federal funding of the operation of the Clarkstown Police Department prohibiting the SIU from engaging in future unconstitutional electronic surveillance of any individual; and 4. An award of costs and disbursements to defendants, along with whatever further relief the Court deems just and proper. Dated: White Plains, New York August 29, 2016 Respect?illy submitted, BLEAKLEY PLATT SCHMIDT, LLP Attorne WILLIAM P. HA INGTON (WH-5262) JUSTIN M. GA NER (JG-6169) ONE NORTH LEXINGTON AVENUE WHITE PLAINS, NY 10601 (914) 949?2700 By: 28 TO: Case Document 8 Filed 08/29/16 Page 29 of 29 RICHARD A. GLICKEL, ESQ. Attorney for Plainti?r CENTEROCK EAST, SUITE 103 TWO CROSFIELD AVENUE WEST NYACK, NY 10994 (845) 3534300 29