it's picked up tackled on these eleven street and cuffed he's pummeled all seen before witnesses that by the way were not his mother nor his brother but citizens of the city of bay on that point he is not taken for medical care he's taken to police department and in doing so he's placed in a holding tank for some reason the f allee's carrion roads decide to take him out of that holding tank and bring him into a back then for some reason he was taken out of the holding tank brought into a back of a narcotics room where he was punched and his face broken and bloodied in a braised to the point where his clothes were so bloody did go to county jail and they would not take his is a lister court seem to think that they were in consistencies in this testimony and both instances well that that may be true however they were backed up by mr klump w and he didn't require hospitalization at that point but doesn't look at this case and maybe begin and end with the proposition that there are any number of disputes of material fact in which the district court made what i would consider to be credibility assessments i believe so and and the case in mariano's clear is that it's not their job to make credibility assessments it's the duty of the fact finder the at different places at the same time rhodes testified i didn't sign the complaint against war so there's no question he had a not displeased those fracture when he when he arrived at the hospital correct know that that is the argument is that was as a result of the need to subdue him after he kicked officer rhodes in the general as i recall but then that becomes the question of effect how much force was necessary to subdue someone that was already in custody plead guilty i did kick him but he's always maintained he kicked them to try to keep roads of way from him from punching now that doesn't go let me go to whether he kicked roads certainly doesn't touch upon kerry punching him about the body while in the narcotics room certainly doesn't touch upon anything that happens eleven street where he was pummeled so i think the consistency here is with verisign porch and and not so much with tech because it is not an absolute bar the jury could sit there and decide wait a minute yes he picked them but was  apply because a jury needs to see is this objectionably reasonable use of force and if i was you really have different heck arguments between the two confrontations one on the selema street and one police station yes i  his didn't his plea to simple assault concede that his use of force against rhodes at that time wasn't justified and if in fact they were allowed to go  at that time right ok all right then subsequent does that give the officers the right to him is it objection reasonable to pummel the young man while he's still in custody while he's here cuffed and remember the police said nothing to officer gary absolutely nothing yet he testified carry hit me pummeled me wash me about the body rhodes was the one that punched him in the face broke his nose so i think they're separate and distinct incidents so you're saying there's almost three incidents we have to analyze here yes because i believe the now you may know too that  people plead to simple solve for various reasons one is a young man without money he's got a whole separate criminal attorneys that so there may be other reasons kind of like in the sheriff case where the no a contender a where the court analyzed that look there's many reasons why people take a plea or plea no no no a contender so i'm sorry i didn't i only if you below seeing them just ignored the the evidence and the documentation that this is an ongoing thing the city of valence a three mile long city yes it has about sixty five thousand people but the amount of excessive force cases not only against the the police force but also against kerry and rhodes kerry with the for teles bar and roads with the bar called the rock the lawsuits that when they testify there's an up and step into us we went over the training with lower court and said it pretty general requires of new jersey requires two times a year that these officers must be trained in use of force neither one of them testified that they could recall when they took the training there were no documentations no sign in sheets internal affairs sergeant the door never even checked whether they were they were properly trained he just stamped exonerated and we went into the internal affairs as part of our policy in custom argument that this this department is not interested in abiding by the rules they're cowboys and people are getting hurt because of it and i will add that since this case more cases have been filed so i think we were clear with the court below in our appellate brief that there is a series of cases and they're not old cases and they involve these officers and there's a policy of upper management ignoring training requirements ignoring these cases and not taking action against these officers once they're found to have violated the rules first address the questions asked by judge civic and judge mary any with regard to inconsistency is on the summary judgment record below and i think to call them inconsistency is a somewhat of an understatement they are different versions of the events which are not only contradictory but only incompatible with one another and the versions of the events which are incompatible with and with one another all of which versions came from the plaintiff in this particular case in september of two thousand and ten when plaintiff first filed this complaint in the district court against these defendants the claim that plaintive had made was that what occurred it wasn't until and in fact he was specifically asked a question during his deposition did you try to fight back at all while you were in police headquarters not at all i was handcuffed specifically denied under oath during his deposition in this case to in the position that he took with regard to what happened to be on police headquarters was simply untrue and that in fact you sought the correct approach during the course of that during the course of that interaction on that record and that record alone there in this case the record that the district court has before it was soley that plaintiff was that the defendants used force against the pull of a plaintiff unprovoked and that at no time did he strike these not not not not worthy of belief and we're going to reduce the testimony of john klemp is holding consistent also with the testimony of the plaintiff and i think that's one of the problems that we have in this particular case because plaintiffs decided that from the outset he was going to provide complain against with the city of bell and this claim with regard to what occurred on these eleven street was simply that he was tackled and thrown into a police car he testifies that he was not handcuffed at the time that he claims there after that he was in consistencies are based on the poet's own different different versions of the events yes if there are different versions of the events between the plaintiffs and the defendants in the case which require a fact finder to mak what occurred absolutely summary judgment is not appropriate in this particular case depending on which version of events the court except that was presented by plaintiffs there may be issues of fact there may not be issues of if you might you m change the word except who believes you want to are now presented with a claim of self defense which under new jersey law is a legal and possibility and not commit itself in self defense it's simply impossible and case and thought that it provided substantial authority for the proposition in this case i go to trial not only on the on the issues of fact that are in dispute but also with respect to the application of does not stand for the proposition that an individual who pleads guilty for assault has unfettered access to the court no other no question it simply says that in certain factual circumstances a plea does not necessarily undermine the the facts in that case where that after he was subdued wasn't during the course of subduing him but after he was subdued the claim was that excessive force was used thereafter and in else in which i believe arose out of pennsylvania there was a west in this district pennsylvania the determination was based on the self resisting arrest that you are in pennsylvania in new jersey the statutory framework for the simple assault and self defense that you essentially provides that if you creates an incredible problem for the defendants in this case who for two and a half years litigated this case through discovery based on a specific factual claim violates rule twenty six it violates all thirty seven it's sanctions or permissible under this particular fact of case at no point were rule twenty six disclosures discovery disclosures amended or supplemented in effect even after the plea was entered there was no affidavit or sort of case and submitted in opposition to summary judgment explaining in any way why it is this inconsistent testimony exists or try to provide any explanation for why the testimony is inconsistent clearly the plaintiff was aware of what the truth was in this particular instance what happened beyond police headquarters and simply chose not to tell the truth there in the course of this deposition it's bad faith and it's clearly willful misconduct subsequent to that when he enters the plea of guilty not only does he refused to provide or fail to provide that information to the defendants tries to hide behind the veil of a civil reservation and the new jersey appellate division specifically spoken on the issue and put the case of stone versed police department the borough of q port and division in new jersey under the same will specifically said and i quote the immunity is not available to prevent impeachment which man cover the perjurious basis of a criminal defendant civil court that is precisely what we have here plaintiff provides testimony of one venue saying i did nothing wrong and then pleads guilty in another venue but the defendants cannot be prohibited from using that information not only for purposes absolutely there are two essentially two claims that are presenter two sources of evidence that are presented by the point of regarding this file in the civil liability one is the manner in which the plaintiff's internal affairs complaint itself was investigated and the claim that it was investigated improperly and we know that this incident occurred under twenty ninth of two thousand and ten in the internal affairs complaint was filed on july tenth of two thousand and ten and two months nearly two months later  any evidence of what occurred two months after this event cannot be viewed as competent evidence of a policy existing at the time two and a half months prior that plaintiff was arrested the other sources of evidence are alleged other civil complaints have been filing it's a city about which one have not been included as part of the record or not attached as exhibits a summary judgment motion nor as part of the appendix no your honor there's not there's a newspaper article is the only thing in the record which addresses in any way is a newspaper article which discusses a civil settlement in a civil suit in which detective perry was named as a defendant inconsistent stories that are provided by the plaintiffs and i think qualified immunity to a large extent exists soley for cases like this where a place that provides different versions of an event the determination is made based upon the officers observations of the time it comes on to a particular scene so we look at it from the perspective of the police officers and whether or not they would understand that there are accidents in a particular circumstances where objective than reasonable in this particular case there is evidence which suggests not only that plaintiff ran from the police on the saliva street that these officers did nothing more than tackle him in place in a police car and that's plaintiff's version of the events when he filed an internal affairs complaint and when he provided certified answer since there are good stories in fact pointed to no actions by the police officers and he's still on the street other than that he was tackled and placed in the back of a police car wasn't until his deposition municipal court there was a a series of drug charges that were dropped he was never charged with simple salt that was a lesser offense that he pled guilty to again for reasons certainly temperley has nothing to do with roads punching him in the face three times and breaking his nose now with regard to roads and carry off the roads an officer carry cowboys and these are gentlemen that don't understand what it's like to be a police officer they've been on for many years however they testified that no probable cause no search warrant no arrest warrant they didn't observe any illegal activity they had roads had no knowledge what a terry stop even is kerry had no knowledge that a cia or confidential informant had to be registered either with the department or the prosecutor's office these are men that are not trained they came upon