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COMPLAINT

JURISDICTION

1. This action arises under the United States Constitution, particularly under the

provisions of the First, Fourth, and Fourteenth Amendments to the Constitution of the United

States and 42 USC 1983, 1985 and 1988.

2. This Court has jurisdiction of this cause pursuant to 28 USC 1331 and 1343. There

is an actual controversy between the Plaintiffs and Defendants.

3. Jurisdiction over Plaintiffs' request for injunctive relief lies under 29 USC 2201 and

FRCVP 57.

4. Venue is proper in the Eastern District of Pennsylvania pursuant to 28 USC 1391.

The events giving rise to this claim occurred within Philadelphia County, in the Commonwealth

of Pennsylvania.

5. All paragraphs of this complaint are incorporated by reference into all counts of this

complaint, as if set out in full.

PARTIES

6. At all material times, Plaintiff, Ferdinand C. Augello, was an individual, citizen, and

resident of the State of New Jersey, and the United States, residing therein at 1821 South Shore

Road, Oceanview, NJ 08230.

7. At all material times, Plaintiff, Kenneth A. Barner, was an individual, citizen, and

resident of the State of New Jersey, and the United States, residing therein at 1106 Clements

Bridge Road, Apt A, Barrington, NJ 08007-1606.

8. At all material times, Plaintiff, Brian K. Burt, was an individual, citizen, and resident of

the State of New Jersey, and the United States, residing therein at 53 Edmund Street, Edison, NJ

08817.

9. At all material times, Plaintiff, Mike J. Callahan, was an individual, citizen, and

resident of the State of New Jersey, and the United States, residing therein at 6568 Millville

Road, Mays Landing, NJ 08330.

10. At all material times, Plaintiff, Brian Carroll, was an individual, citizen, and resident

of the State of New Jersey, and the United States, residing therein at 4623 Post Road, Vineland,

NJ 08360.

11. At all material times, Plaintiff, Brian D. Clark, was an individual, citizen, and resident

of the State of Pennsylvnia, and the United States, residing therein at 1369 Hollywood Ave,

Langhorne, PA 19047.

12. At all material times, Plaintiff, James O. Coles, was an individual, citizen, and

resident of the State of New Jersey, and the United States, residing therein at 419 Crown Point

Road, Thorofare, NJ 08086-2143.

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13. At all material times, Plaintiff, Jesse J. Cooper, was an individual, citizen, and

resident of the State of New Jersey, and the United States, residing therein at 4056 Tremont Ave,

Egg Harbor Township, NJ 08234.

14. At all material times, Plaintiff, Dante T. Demarco, was an individual, citizen, and

resident of the State of New Jersey, and the United States, residing therein at 153 Franklin Street,

West Berlin, NJ 08091-1645.

15. At all material times, Plaintiff, Paul Deola, III, was an individual, citizen, and resident

of the State of New Jersey, and the United States, residing therein at 4702 Landis Ave., Vineland,

NJ 08360.

16. At all material times, Plaintiff, Timothy E. Fowler, was an individual, citizen, and

resident of the State of New Jersey, and the United States, residing therein at 14 Brainerd Street,

Mount Holly, NJ 08060-1810.

17. At all material times, Plaintiff, James Gajderowicz, was an individual, citizen, and

resident of the State of New Jersey, and the United States, residing therein at 462 Logan Ave,

Burlington, NJ 08016-1834.

18. At all material times, Plaintiff, Kelly A. Horton, was an individual, citizen, and

resident of the State of New Jersey, and the United States, residing therein at 4458 Yorktown

Place, H 54, Mays Landing, NJ 08330-2703.

19. At all material times, Plaintiff, Gil A. Lisiecki, was an individual, citizen, and resident

of the State of New Jersey, and the United States, residing therein at 225 Dickens Drive, Delran,

NJ 08075.

20. At all material times, Plaintiff, Mark S. Matsinger, was an individual, citizen, and

resident of the State of Pennsylvnia, and the United States, residing therein at 1002 DeKalb

Street, Bridgeport, PA 19405.

21. At all material times, Plaintiff, Paul M. Pagano, was an individual, citizen, and

resident of the State of New Jersey, and the United States, residing therein at 6358 Beacon Ave,

Mays Landing, NJ 08330.

22. At all material times, Plaintiff, Daniel T. Popa, was an individual, citizen, and resident

of the State of New Jersey, and the United States, residing therein at 6464 South Ave., Mays

Landing, NJ 08330-1052.

23. At all material times, Plaintiff, Keith L. Riegel, was an individual, citizen, and

resident of the State of New Jersey, and the United States, residing therein at 6124 Estella Ave.,

Mays Landing, NJ 08330-1058.

24. At all material times, Plaintiff, Russell W. Schleben, III, was an individual, citizen,

and resident of the State of New Jersey, and the United States, residing therein at P.O. Box 139,

Dorchester, NJ 08316.

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25. At all material times, Plaintiff, Edmund S Wells, Jr., was an individual, citizen, and

resident of the State of New Jersey, and the United States, residing therein at 4 Silver Lake Drive,

Clementon, NJ 08021.

26. At all material times, Plaintiff, Stephen J. Wittenwiler, was an individual, citizen, and

resident of the State of New Jersey, and the United States, residing therein at 334 Pine Ave., Egg

Harbor Township, NJ 08234-7105.

27. At all material times, Plaintiff, Dominick N. Zerra, was an individual, citizen, and

resident of the State of New Jersey, and the United States, residing therein at P.O. Box 221,

Leesburg, NJ 08327-0221.

28. At all material times, all Plaintiffs, except Kelly A. Horton, were members or

associates of various motorcycle clubs.

29. Other motorcyclists have expressed an interest in being plaintiffs in this action.

Plaintiffs may move to add additional plaintiffs.

30. The City of Philadelphia is a political sub-division of the Commonwealth of

Pennsylvania and is the employer or principal or master of the individual Defendants, Sylvester

Johnson, Thomas J. Nistel, III, and Officers John Does 1-50, who acted in their official and

individual capacities, and all of whom act under color of state law.

31. The Philadelphia Police Department is the police force for the City of Philadelphia,

Pennsylvania, and is the employer or principal or master of the individual Defendants, Sylvester

Johnson, Thomas J. Nistel, III, and Officers John Does 1-50, who acted in their official and

individual capacities and all of whom act under color of state law.

33. At all material times, Defendant, Sylvester Johnson, was the Chief of Police of the

Philadelphia Police Department; he is a final decision maker for the Philadelphia Police

Department; he is responsible for the training and supervision of the servants, agents and

employees of the Philadelphia Police Department; and is acting under color of state law and

within the scope of his employment by the municipality. Defendant Sylvester Johnson is being

sued in his individual and official capacities.

34. At all material times, Defendant, Thomas J. Nistel, III, was head of the Philadelphia

Highway Patrol; he is a final decision maker for the Philadelphia Highway Patrol; he is

responsible for the training and supervision of the agents and employees of the Philadelphia

Highway Patrol; and is acting under color of state law and within the scope of his employment by

the municipality. Defendant Thomas J. Nistel, III is being sued in his individual and official

capacities.

35. Officers John Does are police officers of the Philadelphia Police Department,

unknown to Plaintiffs, but Plaintiffs are informed and believe, and therefore allege that said John

Does are liable to them as alleged herein, and Plaintiffs pray for relief to amend their Complaint

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to state the true names and capacities of such parties when the same have been ascertained.

Defendants, Officers John Does, are being sued in their individual and official capacities.

36. At all times relevant herein defendants, Sylvester Johnson, Thomas J. Nistel, III, and

Officers John Does 1-50, were employees, agents, servants, or workmen of Defendant, the City

of Philadelphia, and the Philadelphia Police Department, acting within the course and scope of

their employment or agency, and acting under the color of state law.

37. At all material times, Defendants, Sylvester Johnson, Thomas J. Nistel, III, and

Officers John Does 1-50, were acting under customs and policies of Defendant, The City of

Philadelphia, the Philadelphia Police Department, or the Philadelphia Highway Patrol.

38. At all material times, Defendants, Officers John Does 1-50 were acting under

customs, policies, edicts and directives of Defendants, Sylvester Johnson and Thomas J. Nistel,

III.

FACTUALALLEGATIONS

39. Each and all of the acts of the individual Defendants alleged herein were done by the

said individual Defendants, and each of them, under the color and pretense of the statutes,

ordinances, regulations, policies and customs of the Commonwealth of Pennsylvania, The City of

Philadelphia, the Philadelphia Police Department, or the Philadelphia Highway Patrol.

40. On November 3, 2002, there was a Toy Run "For the Kids" (Toy Run), which was a

scheduled motorcycle parade, wherein motorcyclists and motorcycle clubs are invited to bring

toys for the children at Children's Hospital of Philadelphia, gather at Penns Landing, ride their

motorcycles to Children's Hospital and give the toys to the children.

41. This was the Twenty Second Annual Toy Run, which was organized by the Delaware

Valley Chapter of ABATE (Alliance of Bikers Aimed to Educate) of Pennsylvania (ABATE).

42. Plaintiffs have participated in this event for many years.

43. Plaintiffs had been invited to the Toy Run, as ABATE welcomes all motorcyclists to

the Toy Run.

44. Plaintiffs' motorcycle clubs had been invited to the Toy Run, as ABATE welcomes all

motorcycle organizations to the Toy Run.

45. The staging area for the Toy Run, where all clubs and motorcyclists were to meet, was

on Christopher Columbus Boulevard, south of Spring Garden Street, in the City and County of

Philadelphia.

46. Ten Thousand or more motorcyclists attended the toy run.

47. Plaintiffs, with the permission of ABATE, were placed near or at the front of the

parade. The parade started at noon.

48. Shortly after the plaintiffs turned from Christopher Columbus Boulevard onto Spring

Garden Street, each and every one of them was detained by members of the Philadelphia

Highway patrol, and possibly other Philadelphia Policemen.

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49. Some were detained under the I-95 underpass between Front and 2nd Street, and some

were directed into a parking lot near 6th and Spring Garden Streets.

50. Most of the plaintiffs wore insignia or "colors" that indicated membership in the

motorcycle club to which they belonged.

51. None of the plaintiffs committed a breach of the peace, nor was any plaintiff subject

to an outstanding warrant;

52. Defendants went upon the highway in disguise, by covering their name tags, and

badge numbers, in violation of the Kl Klux Klan Act, 42 USC 1985;

53. Some, or all of the Plaintiffs, at the hands of some or all of the defendants, were:

a. Stopped by Philadelphia Police without probable cause;

b. Searched, without probable cause;

c. Told to remove their club insignia, or "colors;"

d. Demanded that they disclose their Social Security Numbers, without informing them of

their right to refuse, or giving them a disclosure form as required by the Privacy Act of

1974;

e. Told they would go to jail if they did not remove their club insignia, or "colors;"

f. Had their insignia or "colors" forcible removed;

g. Told that they could not wear their club insignia, or "colors" in the City of Philadelphia

at any time;

h. Given traffic tickets for careless driving for driving on the sidewalk, when such driving

was required by the sponsor of the Toy Run, ABATE.

i. Told that they were not welcome in the City of Philadelphia;

j. Told not to remain in the parade to Children's Hospital;

k. Told that the Philadelphia Highway Patrol owned the streets of Philadelphia;

l. Subjected to obscenities by the Philadelphia Police;

m. Intimated by Philadelphia Police brandishing shotguns, laser scope equipped M-16

rifles, canisters of Mace, and riot gear;

n. Threatened by having firearms pointed at them;

o. Threatened with unlawful permanent impoundment of their motorcycles;

p. Assaulted by the Philadelphia Police;

q. Battered by the Philadelphia Police;

r. Endured public humiliation which lasted in excess of 30 minutes, and occurred in full

view of other motorcyclists in the parade, and the public at large;

s. When directed to leave the parade immediately, without benefit of their friends, became

lost in unfamiliar parts of the City of Philadelphia;

54. Other motorcyclists, who did not wear "colors" received none of the above treatment;

DAMAGES

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55. The City of Philadelphia is liable for compensatory damages, attorneys fees, and costs

assessed against Sylvester Johnson, Thomas J. Nistel, III, and Officers John Does 1-50, in their

official and individual capacities.

56. Plaintiffs first seek declaratory and injunctive relief from this Court to protect their

rights guaranteed under the First, Fourth, and Fourteenth Amendments of the United States

Constitution and to prevent the chilling effect Defendants' conduct will continue to have upon

Plaintiffs' exercise of these rights.

57. Plaintiffs also seek compensatory damages for violations of their constitutional rights

and for the economic damages caused to them by Defendants' conduct.

58. Plaintiffs further seek punitive damages from the individual Defendants in amounts

sufficient to punish Defendants, to deter such conduct in the future.

59. Defendants have engaged in a practice of conduct designed to interfere with Plaintiffs'

rights protected under the First and Fourteenth Amendments to the United States Constitution,

including their right to freedom of assembly and association.

60. Defendants have engaged in a practice of conduct designed to interfere with Plaintiffs'

right protected under the Fourth and Fourteenth Amendments of the United States Constitution,

including their rights to be free from unreasonable searches and seizures.

61. Defendants' conduct herein has and will continue to have a chilling effect on

Plaintiffs' exercise of their constitutional rights of freedom of assembly and freedom of

association.

62. Defendants have engaged in a practice of conduct designed to deprive Plaintiffs of

their interests in life, liberty, and property without due process of law and to deny Plaintiffs' equal

protection of law, in violation of the Fourteenth Amendment to the United States Constitution.

63. No reasonable officer or administrator of the City of Philadelphia, the Philadelphia

Police Department, or the Philadelphia Highway Patrol could have believed that the actions of

Defendants, which are alleged herein, were lawful in light of clearly established law or that such

actions were consistent with Plaintiffs' constitutionally protected rights.

64. Defendants are and were aware of the Federal and State laws protecting Plaintiffs'

rights as guaranteed by the First, Fourth, and Fourteenth Amendments to the United States

Constitution.

65. Defendants have acted with knowledge of and deliberate indifference to the fact that

their conduct was in violation of the Plaintiffs' constitutionally protected rights.

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FIRST CLAIM FOR RELIEF

42 USC 1983-First Amendment

66. Defendants violated Plaintiffs' clearly established right to freedom of association and

freedom of assembly as guaranteed by the First Amendment of the United States Constitution, for

which Plaintiffs seek redress pursuant to 42 USC 1983 and 1988.

67. WHEREFORE, Plaintiffs requests relief at law and in equity, as detailed in Plaintiffs'

PRAYER FOR RELIEF, below.

SECOND CLAIM FOR RELIEF

42 USC 1983- Fourth Amendment

68. Defendants violated Plaintiffs' clearly established rights to be free from unreasonable

searches and seizures as guaranteed by the Fourth Amendment of the United States Constitution,

for which Plaintiffs seek redress pursuant to 42 USC 1983 and 1988.

69. WHEREFORE, Plaintiffs requests relief at law and in equity, as detailed in Plaintiffs'

PRAYER FOR RELIEF, below.

THIRD CLAIM FOR RELIEF

42 USC 1983- Fourteenth Amendment

70. Defendants deprived Plaintiffs of their liberty and property interests without due

process of law in violation of Plaintiffs' right to due process of law as guaranteed by the

Fourteenth Amendment of the United States Constitution, for which Plaintiffs seek redress

pursuant to 42 USC 1983 and 1988.

71. WHEREFORE, Plaintiffs requests relief at law and in equity, as detailed in Plaintiffs'

PRAYER FOR RELIEF, below.

FOURTH CLAIM FOR RELIEF

42 USC 1983- Fourteenth Amendment

72. Defendants deprived Plaintiffs of their rights to equal protection of the laws which

secure their rights to associate with individuals who share common interests, to belong to

organizations of persons who share their common interests, to assemble and associate with such

organizations, and not to be profiled, or have the traffic code selectively enforced against them in

violation of the Plaintiffs' right to Equal Protection of the Law, as guaranteed by Fourteenth

Amendment of the United States Constitution, for which Plaintiffs seek redress pursuant to 42

USC 1983 and 1988.

73. WHEREFORE, Plaintiffs requests relief at law and in equity, as detailed in Plaintiffs'

PRAYER FOR RELIEF, below.

FIFTH CLAIM FOR RELIEF

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42 USC 1985, the Kl Klux Klan Act

74. Defendants did go in disguise on the highway for the purpose of depriving the

plaintiffs the equal protection of the law in violation of the Plaintiffs' right to Equal Protection of

the Law, as guaranteed by Fourteenth Amendment of the United States Constitution, for which

Plaintiffs seek redress pursuant to 42 USC 1985 and 1988.

75. WHEREFORE, Plaintiffs requests relief at law and in equity, as detailed in Plaintiffs'

PRAYER FOR RELIEF, below.

SIXTH CLAIM FOR RELIEF

The Privacy Act of 1974

76. Defendants demanded that some Plaintiffs disclose their Social Security Number in

violation of The Privacy Act of 1973 (Section 7, PL 93-579) for which Plaintiffs seek redress

pursuant to 42 USC 1983 and 1988.

77. WHEREFORE, Plaintiffs requests relief at law and in equity, as detailed in Plaintiffs'

PRAYER FOR RELIEF, below.

SEVENTH CLAIM FOR RELIEF

Request for Declaratory Relief

78. Unless restrained by the Court, Plaintiffs will suffer irreparable harm through

Defendants' continuing enforcement, policies, and practices in violation of Plaintiffs' rights

guaranteed by the First, Fourth, and Fourteenth Amendments of the United States Constitution.

79. WHEREFORE, Plaintiffs requests declaratory relief in equity, as detailed in Plaintiffs'

PRAYER FOR RELIEF, below.

EIGHTH CLAIM FOR RELIEF

Request for Permanent Injunctive Relief

80. Unless restrained by the Court, Plaintiffs will suffer irreparable harm through

Defendants' continuing enforcement, policies, and practices in violation of Plaintiffs' rights

guaranteed by the First, Fourth, and Fourteenth Amendments of the United States Constitution.

81. WHEREFORE, Plaintiffs requests a permanent injunction, as detailed in Plaintiffs'

PRAYER FOR RELIEF, below.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs prays for the entry of a judgment against Defendants as

follows:

82. On Plaintiffs' First through Sixth Claim for Relief

a. For an Order awarding Plaintiffs compensatory damages from Defendants, jointly and

severally, in excess of $150,000.00 plus interest from the date of judgment;

b. For an Order awarding Plaintiffs punitive damages from each of the individual

Defendants, Sylvester Johnson, Thomas J. Nistel, III, and Officers John Does 1-50,

jointly and severally, in amounts adequate to deter Defendants' unconstitutional actions,

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both in the past and in the future, which were intentional, malicious, and in reckless

disregard of Plaintiffs' civil rights and commensurate with the wealth of the respective

Defendants, in amounts to be determined at trial plus interest from the date of judgment;

c. For an Order awarding Plaintiffs costs and attorneys' fees necessarily incurred herein.

83. On Plaintiffs' First through Eighth Claim for Relief:

a. For a declaration by this Court that the conduct and practices of Defendants described

herein are violations of Plaintiffs' rights protected under the First, Fourth, and Fourteenth

Amendments to the United States Constitution;

b. For an Order by this Court granting permanent injunctions against Defendants and all

other acting in concert with them, to prohibit them from continuing to violate Plaintiffs'

constitutionally protected rights and;

c. For an Order awarding Plaintiffs costs and attorneys' fees necessarily incurred herein.

d. For such other and further relief as the Court may deem just and proper.

RESPECTFULLY SUBMITTED, October 27, 2004.

Boyd Spencer

Attorney for Plaintiffs

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