Defendants next argue that plaintiffs allegations concerning "repeaters" are insufficient. Defendants contend that in order for the allegations to be upheld, they must include allegations that the complaints actually involved illegal activity by the officers, that similar illegal activity was involved in this case, and that there was an affirmative link between plaintiffs' injuries and the failure to discipline. Allegations that the complaints were meritorious and that the illegal activities were similar in nature are not necessary. If the complaints were routinely ignored, that could lead to a belief on the part of the officers that they could abuse citizens with impunity, even if the complaints were often meritless and even if the complaints concerned different kinds of abuse. Plaintiffs allegations are also sufficient to show a link between the failure to discipline and their injuries. The complaint expressly alleges causation, and that allegation is sufficient in light of the factual allegations concerning an extensive failure to discipline which has the effect of encouraging abusive behavior by officers.
Defendants also contend that plaintiffs have failed to allege facts indicating that Moore and Serio were "repeaters" or that they, in particular, had previously dropped off youths in hostile neighborhoods. However, no such allegations are necessary. Certainly such showings would strengthen plaintiffs' causation argument. However, if the City, by its inaction in the face of constructive knowledge of the abuses alleged by plaintiffs, had a policy or custom which encouraged drop-offs and other police misconduct, that policy or custom could certainly result in such behavior even by officers with a previously unblemished record.
Finally, defendants argue that plaintiffs' factual allegations are conclusory. For example, plaintiffs allege that officers have customarily dropped off youths in hostile neighborhoods, but they do not describe specific drop off incidents. To accept defendants' argument, however, would be to impose an impossible burden on plaintiffs. As Strauss pointed out, "mere vagueness or lack of detail does not constitute sufficient grounds for a motion to dismiss." 760 F.2d at 767. Furthermore, identifying particular "facts is of course more difficult when the policy through which plaintiff is aggrieved is one of acquiescence by the City in prior misconduct, thus encouraging the misconduct to continue, than when the policy is an affirmative one through which the City has acted to harm the plaintiff." Id. at 769. Plaintiffs need not describe all of their evidence in the complaint. Lack of detail concerning the drop-off custom alleged in the complaint is not fatal.
A failure to discipline police officers, resulting in increased abusive behavior by police officers, has been recognized to be a policy for which municipal liability may attach. See Spell, 824 F.2d 1380; Fiacco v. City of Rensselaer, 783 F.2d 319, 326 (2d Cir. 1986), cert. denied, 480 U.S. 922, 107 S. Ct. 1384, 94 L. Ed. 2d 698 (1987); Williams, 658 F. Supp. at 153-55. The Court finds that plaintiffs' allegations in this case suffice to state a claim against the City for failure to discipline its police officers.
C. Count VII - Code of Silence
In Count VII, plaintiffs allege that the City and high supervisory police officials, including Martin and Fogel, have been aware of a de facto policy or custom of a police code of silence. Pursuant to this code of silence, police officers refuse to report instances of police brutality and misconduct of which they are aware, and they remain silent or give false and misleading information during investigations in order to protect fellow officers. (Complaint paras. 68, 70.) Plaintiffs allege that the code of silence proximately caused their injuries because "but for the belief that they would be protected by the silence and complicity of their fellow officers, the officers responsible for the acts alleged in this complaint would not have engaged in the conduct that resulted in the injuries to the Plaintiffs." (Complaint para. 74.)
Plaintiffs allege that the code of silence is evidenced by the following (Complaint paras. 69, 71, 72):
1. Martin and Fogel have admitted that such a code of silence exists within the Department.