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United States v. City of Brockton

United States District Court, D. Massachusetts

August 5, 2016

UNITED STATES OF AMERICA, ex rel. KEN E. WILLIAMS, Plaintiff-Relator
v.
CITY OF BROCKTON, CITY OF BROCKTON POLICE DEPARTMENT, DOES 1-100 Defendants.

          MEMORANDUM & ORDER

          Indira Talwani United States District Judge

         Plaintiff-Relator Ken Williams brings this action under the federal False Claims Act against the Brockton Police Department and the City of Brockton. Williams’ Amended Complaint [#44] contends that Defendants falsely certified compliance with statutory, regulatory, and contractual requirements (including requirements not to discriminate on the basis of race), maintained false records, and conspired to submit false claims to the government, all in order to obtain funding from United States Department of Justice (“DOJ”) grant programs. Before the court is Defendants’ Motion to Dismiss Plaintiff’s Amended Complaint Pursuant to Fed.R.Civ.P. 12(b)(6) [#45]. For the following reasons, the motion is ALLOWED IN PART and DENIED IN PART.

         I. Legal Standard

         In considering a motion to dismiss under Rule 12(b)(6), a court “presumes that the facts are as properly alleged by plaintiffs and/or reflected in other properly considered records, with reasonable inferences drawn in plaintiffs’ favor.” Abdallah v. Bain Capital LLC, 752 F.3d 114, 119 (1st Cir. 2014) (citations omitted). To survive a motion to dismiss, a complaint must include factual allegations that, taken as true, demonstrate a plausible claim for relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-58 (2007). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         II. Alleged Facts

         Williams was a Brockton police officer from October 30, 1995 until November 12, 2010. First Am. Compl. ¶ 15 [#44]. Williams alleges that the Brockton Police Department and the City of Brockton obtained grants from the DOJ by submitting false assurances and certifications that they would comply with civil rights and antidiscrimination laws and other administrative requirements.

         Williams’ First Amended Complaint identifies several grants received from the DOJ by the City of Brockton and/or the Brockton Police Department from 2003 through 2011, by date, amount, and/or grant number. Id. ¶¶ 68-72. Those grants include grants from the DOJ’s Community Oriented Policing Services (“COPS”) program and the Gang Resistance Education and Training, Project Safe Neighborhoods, and Edward Byrn Memorial JAG programs. Id.

         A. Grant Requirements

         COPS is a program within the DOJ, created by the Violent Crime Control and Law Enforcement Act of 1994. Id. ¶ 28. COPS provides federal grants to help state and local law enforcement agencies hire community policing officers to work within communities, and since 1994, COPS has provided $14 billion in assistance to state and local law enforcement agencies to this end. Id. ¶ 28.

         Applicants for and recipients of COPS grants are required to certify compliance with several requirements. Id. ¶ 40. In particular, COPS grant applicants must sign a standardized “Assurances” form as a part of the application. Id. ¶ 53. The Assurances form must be signed by both a law enforcement executive and a government executive or financial official. Id. The form states that the applicant “will comply with all legal and administrative requirements that govern the applicant for acceptance and use of Federal grant funds.” Id. ¶¶ 53, 56. Among those requirements are “all requirements imposed by the [DOJ] as a condition or administrative requirement of the grant, including but not limited to: . . . applicable provisions of the Omnibus Crime Control and Safe Streets Act of 1968, as amended; . . . the applicable COPS Application Guides; [and] the applicable COPS Grant Owner’s Manuals.” Id. ¶ 57.

         By signing the Assurances form, applicants also expressly assure that they “will not, on the ground of race, color, religion, national origin, gender, disability, or age, unlawfully exclude any person from participation in, deny the benefits of or employment to any person, or subject any person to discrimination in connection with any programs or activities funded in whole or in part with Federal funds.” Id. ¶ 58. The Assurances form notes that these requirements “are found in the non-discrimination provision of the Omnibus Crime Control and Safe Streets Act of 1968, as amended (42 U.S.C. § 3789d); Title VI of the Civil Rights Act of 1964, as amended (42 U.S.C. § 2000d); the Indian Civil Rights Act (25 U.S.C. §§ 1301-1303); Section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. § 794); Title II, Subtitle A of the Americans with Disabilities Act (ADA) (42 U.S.C. § 1201, et seq.); the Age Discrimination Act of 1975 (42 U.S.C. § 6101, et seq.); and Department of Justice Non-Discrimination Regulations contained in Title 28, Parts 35 and 42 (subparts C, D, E, G and I) of the Code of Federal Regulations.” Id.

         Title VI in particular provides that “[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 42 U.S.C. § 2000d. The Omnibus Crime Control and Safe Streets Act of 1968 prohibits the same forms of discrimination as well as discrimination on the basis of sex and religion and the denial of employment in connection with any program or activity funded in whole or in part under that law. See 42 U.S.C. § 3789d(c). DOJ’s regulations promulgated under Title VI and 42 U.S.C. § 3789d (Title 28 of the C.F.R., Part 42, Subparts C and D) further prohibit a recipient of federal funds from utilizing “criteria or methods of administration which have the effect of subjecting individuals to discrimination” on the basis of race, color, sex, religion, or national origin when determining the type of disposition, services, or benefits to provide under any “program” or the class of individuals to whom and situations in which the services will be provided. 28 C.F.R. § 42.104(b)(2); 28 C.F.R. § 42.203(e); see also First Am. Compl. ¶ 101. The regulations define “program” broadly, including virtually all of the operations of any unit of local government that receives any federal funds. 28 C.F.R. § 42.102(d); 28 C.F.R. § 42.202(k). Accordingly, the regulations prohibit unintentional discrimination by any entity that receives any federal funds from DOJ, whether or not the discrimination occurs in the context of a service specifically operated by those funds.

         COPS applicants and grantees must also sign a “Certifications” form. Am Compl. ¶ 62. The 2011 Certifications form in particular required both a law enforcement and government executive or financial official to represent that, among other things, the applicant “will comply with all legal, administrative, and programmatic requirements that govern the application for acceptance and use of Federal funds as outlined in the applicable COPS Application Guide; the COPS Grant Owner’s Manual, Assurances, Certifications and all other applicable program regulations, laws, orders and circulars [.]” Id. ¶¶ 61, 92. Williams alleges that the funds granted to the City and Brockton Police Department “under Federal programs other than COPS . . . similarly require compliance with civil rights laws.” Id. ¶ 94.

         The COPS Owner’s Manual, distributed upon the award of a grant further reminds grantees of their obligations under the COPS program, including their obligations with respect to unlawful discrimination. Id. ¶ 63. The Owner’s Manual also sets forth certain rules for administering COPS grants. The 2012 COPS Hiring Program Grant Owner’s Manual in particular states that funds from that program “should be used for the payment of approved full-time entry-level salaries and fringe benefits over three years, and that any costs above entry-level salaries must be paid with local funds.” Id. ¶ 76. Williams further alleges that “a statutory ‘non-supplanting requirement’” mandates that COPS grantees not use funds to replace state or local funds that would, in the absence of federal aid, be made available for grant purposes. Id. ¶ 77. Under the non-supplanting rules, COPS grantees must maintain the budgeted number of locally funded officer positions after receiving COPS grants, maintain the required number of additional police officers, and take steps to enhance community policing. Id.

         According to Williams, if a COPS applicant or grantee is found to be non-compliant with “conditions for awarding and properly using COPS grants, ” various remedies are available to the DOJ, including, but not limited to, withholding payments, requiring remittance of funds already paid, and disqualification for future awards. Id. ¶ 65. Williams further alleges that, in 2009, DOJ barred 25 state and local law enforcement agencies, as well as the Amtrak Police Department, from receiving COPS grants for, among other things, failing to hire and retain a certain number of officers as required, diverting grant funds for non-approved uses, being unable to account for grant usage, and awarding government contracts through non-competitive processes-i.e., non- compliance with non-supplanting requirements. Id. ¶ 78.

         B. Defendants’ Alleged Non-Compliance with Grant Requirements

         Williams alleges that since 2002, Defendants have “not complied with ‘all legal, administrative, and programmatic requirements’” that govern the use of COPS funds in particular, despite the signed Certifications forms saying they would. Id. ¶ 93.

         1. Civil Rights Violations in Violation of Title VI and 28 CFR Part 45(A)

         First, Williams alleges that Defendants knowingly misrepresent compliance with Title VI and 28 C.F.R. Part 42(C) because Defendants “engaged in an ongoing pattern and practice of unlawful discrimination” while receiving COPS grants. Id. ¶¶ 98-99. Williams specifically alleges that several Brockton residents, many of whom are minorities, have filed civil rights actions under 42 U.S.C. § 1983 against Brockton Police Department officers, the Brockton Police Department and/or the City, and that the incidents underlying those lawsuits are examples of violations of Title VI and its implementing regulations. See First Am. Compl. ¶¶ 147-149 (describing Semedo v. Elliot, an action brought by man of Cape Verdean descent for false arrest and intentional discrimination (among other claims))[1]; id. ¶¶ 150-153 (describing Ceneus v. Kalp, an action brought by an African-American man for unreasonable seizure and excessive use of force)[2]; id. ¶¶ 154-157 (describing Summers v. City of Brockton, action brought by African-American man for “violation of constitutional rights, ” and alleging disparate treatment of African-Americans “motivated by racial animus”)[3]; id. ¶¶ 158-160 (describing Medina v. Coady, action brought by Cape Verdean man for excessive use of force and false arrest)[4]; id. ¶¶ 161-163 (describing Zhuang v. Saquet, action brought by Asian-American man for excessive use of force and related civil rights violations)[5]; id. ¶¶ 164-167 (describing Barbosa v. Hyland, action brought by Cape Verdean couple alleging Fourth Amendment violations and excessive force and various state-law torts)[6]; id. ¶¶ 186-187 (describing Davila-Lynch v. City of Brockton, action brought by an African-American man, accusing Brockton Police Department officers of false arrest and discrimination on the basis of race and use of a racial slur, ending in a jury verdict for defendants)[7]. Williams asserts that the alleged incidents underlying these lawsuits are instances of violations of Title VI and its implementing regulations because they allegedly involved discrimination on the basis of race. Id. ¶¶ 149, 153, 157, 160, 163, 167.

         Williams further alleges that Defendants violated Title VI and its implementing regulations when they “targeted and marginalized” Bishop Felipe Teixeira, a religious and community leader, by yelling at him to leave the police station on one occasion, obstructing his ability to obtain permits to build and establish a church in Brockton, and by the Mayor not addressing Bishop Teixeira’s concerns about the lack of trust between the immigrant community and the police department, all allegedly on the basis of Bishop Teixeira’s race. Id. ¶¶ 171-173.[8]

         2. Employment Discrimination in Violation of the Omnibus Crime Control and Safe Streets Act of 1968 and 28 C.F.R. Part 42(D)

         Williams also alleges that Defendants engaged in employment discrimination in connection with its administration of COPS grants in violation of 42 U.S.C. § 3789d(c)(1) and 28 C.F.R. Part 42(D). Specifically, Williams alleges that Brockton Police Chief Conlon admitted to hiring minorities in only two positions in 2007. Id. ¶ 199. Additionally, Williams alleges that Defendants have subjected African-American officers to harassment and disparate treatment on the basis of race by assigning white officers to preferential assignments instead of or before assigning African-American officers, and assigning African-American officers to more difficult and dangerous cases. Id. ¶ 200.

         3. National Origin Discrimination in Violation of Title VI and 28 C.F.R. Part 42(C)

         Williams further alleges that Defendants have engaged in conduct that has disparately impacted Brockton minority residents on the basis of national origin. Specifically, Williams alleges that the Brockton Police Department failed to operate a mutilingual website, “because [the Department] knew that [a multilingual website] involved a greater potential to field more complaints from minority citizens with Limited English Language proficiency, ” and the Brockton Police Department’s requirement that civilian complaints be written out in English has ...


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