LACEY, District Judge.
Before the court are the motions of defendants David T. Wilentz, the State of New Jersey, the Hearst Corporation, Lewis J. Bornmann, John B. Wallace, William F. Horn, Joseph A. Wolf, Clinton L. Pagano, Brendan T. Byrne, James R. Zazzali, Hugo Stockburger, and Thomas H. Sisk to dismiss the complaint for failure to state a claim upon which relief can be granted.
This case arises out of the prosecution and execution of Bruno Richard Hauptmann for the murder of Charles A. Lindbergh, Jr., over four decades ago. Charles A. Lindbergh, Jr., the twenty-month-old son of the famous aviator Charles Lindbergh and his wife, the writer Anne Morrow Lindbergh, was kidnapped from his home near Hopewell, New Jersey, on the night of March 1, 1932. Charles Lindbergh paid a $50,000 ransom on April 2, 1932; however, the child was not returned. On May 12, 1932, the remains of a child, later identified as those of Charles A. Lindbergh, Jr., were found in a shallow grave about five miles from Hopewell. Over two years later, on September 19, 1934, Hauptmann was arrested in New York after passing one of the bills included in the ransom payment. He was interrogated in New York and was extradited to New Jersey on October 19, 1934. He was incarcerated in Flemington, Hunterdon County, New Jersey.
Defendant David T. Wilentz served as Attorney General for the State of New Jersey during Hauptmann's trial and during all post-trial proceedings. He was responsible for prosecuting the State's case against Hauptmann. The trial began in Flemington on January 2, 1935, and continued for six weeks. Justice Thomas W. Trenchard presided over the trial, at which Hauptmann was represented by counsel. On February 13, 1935, the jury returned its verdict, finding Hauptmann guilty of first degree murder. The jury made no recommendation for a life sentence. This left available to the court the option of ordering execution.
Hauptmann appealed his conviction to the New Jersey Court of Errors and Appeals, which affirmed. State v. Hauptmann, 115 N.J.L. 412, 180 A. 809 (E. & A. 1935). His petition to the United States Supreme Court for certiorari was denied. Hauptmann v. New Jersey, 296 U.S. 649, 56 S. Ct. 310, 80 L. Ed. 461 (1935).
According to the State, Hauptmann petitioned the United States Circuit Court in Trenton for a writ of habeas corpus on January 13, 1936, and his petition was denied on January 14, 1936, but the records of that proceeding are not available. Plaintiff does not dispute these assertions. Hauptmann also petitioned the Supreme Court for a writ of habeas corpus, but this too was denied. Ex parte Hauptmann, 297 U.S. 693, 56 S. Ct. 385, 80 L. Ed. 985 (1936). He filed two petitions for clemency with the New Jersey Court of Pardons; these were rejected as well. After several postponements, Hauptmann was executed in the electric chair at Trenton State Prison on April 3, 1936.
Plaintiff Anna Hauptmann, the widow of Richard Hauptmann, instituted this action on October 14, 1981. She subsequently filed an amended complaint on November 23, 1981, a second amended complaint on February 25, 1982, a third amended complaint on January 19, 1983, and a fourth amended complaint on March 7, 1983.
Plaintiff seeks relief for alleged violations of both her own and her late husband's civil rights, pursuant to 42 U.S.C. §§ 1983, 1985 and 1986; she also asserts pendent state law claims. Although the complaint, in its various versions, is lengthy and diffuse, its gist is that Hauptmann was denied a fair trial and suffered violations of his first, fourth, fifth, sixth, eighth and fourteenth amendment rights.
I. Claims Against Former Attorney General Wilentz
Plaintiff has sued former Attorney General Wilentz "individually, in his official capacity, in his investigative capacity, and in his continuing capacity as a Member of the New Jersey State Bar." Amended Complaint para. 6.
The claims against Wilentz will be discussed in more detail below. Briefly, however, plaintiff alleges that Wilentz knowingly presented perjured, false, and misleading testimony at trial; that he deliberately withheld exculpatory evidence; that he conspired with defendant Hearst Corporation (Hearst) to deprive Hauptmann of his right to a fair trial; and that he conspired with State Police officers who carried out illegal searches and seizures, contaminated the jury, and deprived Hauptmann of his right to privacy and his right to counsel. Plaintiff seeks declaratory judgment, compensatory and punitive damages, costs, and attorneys' fees.
Defendant Wilentz argues that the court should dismiss the complaint against him, pursuant to Fed.R.Civ.P. 12(b)(6), because all of the claims against him fall within the zone of absolute immunity afforded to prosecutors by Imbler v. Pachtman, 424 U.S. 409, 96 S. Ct. 984, 47 L. Ed. 2d 128 (1976).
In addition, Wilentz argues that the claims are barred by the statute of limitations
and that some of the plaintiff's allegations fail to state claims under 42 U.S.C. § 1983.
Plaintiff argues that Wilentz is entitled only to qualified immunity because his actions exceeded the traditional prosecutorial function of initiating and presenting the state's case; under the standard set out in Harlow v. Fitzgerald, 457 U.S. 800, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982), she contends, Wilentz is not immune. She also asserts that her claims are not time-barred, and are cognizable under § 1983.
For convenience, the court will divide plaintiff's claims against Wilentz into four categories: claims based on concealment of exculpatory evidence and presentation of perjured, false and/or misleading testimony at trial; claims based on authorization of illegal investigative techniques; all other claims, with the exception of a due process claim based on the theory that the entire prosecutorial process was a mockery of justice; and the due process claim.
A complaint may be dismissed under Fed.R.Civ.P. 12(b)(6) when "it appears beyond doubt that the plaintiff can prove no set of facts which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80 (1957); accord Paolino v. Channel Home Centers, 668 F.2d 721, 722 (3d Cir.1981). On a Rule 12(b)(6) motion, the district court is to limit its consideration to the facts alleged in the complaint. Conley, supra, 355 U.S. at 45-46, 78 S. Ct. at 102; Biesenbach v. Guenther, 588 F.2d 400, 401 (3d Cir.1978). All the well pleaded material factual allegations of the complaint are to be taken as true, and the complaint is to be read in the light most favorable to plaintiff. Hospital Building Co. v. Trustees of Rex Hospital, 425 U.S. 738, 740, 96 S. Ct. 1848, 1850, 48 L. Ed. 2d 338 (1976); Paolino, supra, 668 F.2d at 722.
A. Claims Based on Concealment of Exculpatory Evidence and Presentation of Perjured, False and/or Misleading Testimony
The starting point for any discussion of prosecutorial immunity is Imbler v. Pachtman, supra. The plaintiff in Imbler had been convicted of murder after a jury trial. He brought suit under § 1983 against the prosecutor who had presented the State's case against him, alleging that the prosecutor had knowingly used false testimony at trial and had concealed exculpatory evidence. The Supreme Court held that a prosecutor is absolutely immune from § 1983 suits for damages on claims arising out of his initiation of a prosecution and his presentation of the State's case at trial. Id. 424 U.S. at 431, 96 S. Ct. at 995.
The court reasoned that, although § 1983 provides a cause of action against "every person" who acts under color of state law to deprive another of a constitutional right, prosecutors have always been immune from suit at common law, and the policies underlying common law prosecutorial immunity apply with equal force to § 1983 actions. The Court found absolute immunity necessary because, if the prosecutor received only qualified immunity, he would be constrained in the performance of his duties, and his time and energy would be diverted from criminal prosecutions to the defense of civil suits which "could impose unique and intolerable burdens upon a prosecutor responsible annually for hundreds of indictments and trials." Id. at 425-26, 96 S. Ct. at 992-93. In addition, the Court found that the ultimate fairness of the criminal justice system itself would be weakened if the prosecutor's immunity were not absolute, since the triers of fact in criminal cases would be denied relevant evidence and post-conviction review could be skewed. Id. at 426-28, 96 S. Ct. at 993-94. The Court pointed out that absolute prosecutorial immunity would not leave the public powerless, since prosecutors guilty of misconduct could be punished under the criminal law or by disciplinary action of professional associations. Id. at 428-29, 96 S. Ct. at 994.
In Imbler, the Court found that the activities which formed the bases of the plaintiff's claims against the prosecutor were "intimately associated with the judicial phase of the criminal process, and thus were functions to which the reasons for absolute immunity apply with full force." Imbler, supra, 424 U.S. at 430, 96 S. Ct. at 995. The Court expressly refrained from deciding whether a prosecutor would enjoy absolute immunity when acting in an administrative or investigatory role, rather than as an advocate. Id. at 430-31, 96 S. Ct. at 994-95. In a footnote, the Court stated:
We recognize that the duties of the prosecutor in his role as advocate for the State involve actions preliminary to the initiation of a prosecution and actions apart from the courtroom. A prosecuting attorney is required constantly, in the course of his duty as such, to make decisions on a wide variety of sensitive issues. These include questions of whether to present a case to the grand jury, whether to file an information, whether and when to prosecute, whether to dismiss an indictment against particular defendants, which witnesses to call, and what other evidence to present. Preparation, both for the initiation of the criminal process and for a trial, may require the obtaining, reviewing, and evaluating of evidence. At some point, and with respect to some decisions, the prosecutor no doubt functions as an administrator rather than as an officer of the court. Drawing a proper line between these functions may present difficult questions, but this case does not require us to anticipate them.
Id. at 431 n. 33, 96 S. Ct. at 995 n. 33.
Justice White, joined by Justices Brennan and Marshall, concurred in the judgment. He agreed that a prosecutor is absolutely immune from suits based on knowing use of false testimony. Imbler, supra, 424 U.S. at 440, 96 S. Ct. at 999 (White, J., concurring in judgment). Unlike the majority, however, he would have held that a prosecutor should not be absolutely immune from claims of unconstitutional suppression of exculpatory evidence. Id. at 442-45, 96 S. Ct. at 1000-02 (White, J., concurring in judgment). The majority unequivocally rejected this distinction:
We do not accept the distinction urged by Mr. Justice White for several reasons. As a matter of principle, we perceive no less an infringement of defendant's rights by the knowing use of perjured testimony than by the deliberate withholding of exculpatory information . . . . Moreover, the distinction is not susceptible of practical application. A claim of using perjured testimony simply may be reframed and asserted as a claim of suppression of the evidence on which the knowledge of perjury tested.
Id. at 431 n. 34, 96 S. Ct. at 995 n. 34.
With the Imbler standard in mind, the court turns to consider the specific claims against former Attorney General Wilentz. The claims asserted against Wilentz in paras. 19, 26, 27, 29, 48, 49 and 52 of the Amended Complaint, paras. 33-4(1),
33-4(2), 33-6, 33-7, 60-10 and 60-15 of the Second Amended Complaint, and para. 33-10 of the Third Amended Complaint are based, in whole or in part, on his alleged use of false testimony or his suppression of exculpatory evidence at trial. There can be no doubt that a prosecutor is absolutely immune from suit for damages
on such claims. See Imbler, supra; Siano v. Justices of Massachusetts, 698 F.2d 52, 57-58 (1st Cir.1983) (prosecutor enjoys absolute immunity from claims that he knowingly allowed the state to use forged evidence at trial); Briscoe v. LaHue, 663 F.2d 713, 721-22 (7th Cir.1981) (absolute immunity for prosecutors on claims that they knowingly used perjured evidence), aff'd, 460 U.S. 325, 103 S. Ct. 1108, 75 L. Ed. 2d 96 (1983); Henzel v. Gerstein, 608 F.2d 654, 657 (5th Cir.1979) (prosecutors absolutely immune on claims that they used perjured testimony and suppressed exculpatory evidence); Hampton v. Hanrahan, 600 F.2d 600, 633 (7th Cir.1979) (absolute immunity for prosecutors on claim of deliberate preparation of perjured testimony), rev'd in part on other grounds, 446 U.S. 754, 100 S. Ct. 1987, 64 L. Ed. 2d 670 (1980);
Blevins v. Ford, 572 F.2d 1336, 1339 (9th Cir.1978) (prosecutor absolutely immune from suit on claim that he knowingly used perjured testimony at trial, and conspired with law enforcement officers to conceal the perjury from the court); Heidelberg v. Hammer, 577 F.2d 429, 432 (7th Cir.1978) (absolute immunity for prosecutors on claims that they destroyed certain evidence, falsified other evidence, and induced a witness to commit perjury); Hilliard v. Williams, 540 F.2d 220 (6th Cir.1976) (per curiam) (absolute immunity for prosecutor on claim that he withheld evidence and presented false and misleading testimony);
Brawer v. Horowitz, 535 F.2d 830, 834 (3d Cir.1976) (prosecutor absolutely immune from suit on claims that he conspired with a witness to use perjured testimony and to conceal exculpatory evidence); Kauffman v. Moss, 420 F.2d 1270, 1272-73 (3d Cir.) (prosecutor absolutely immune from suit on claim that he conspired with police officers to secure convictions by knowing use of perjured testimony), cert. denied, 400 U.S. 846, 91 S. Ct. 93, 27 L. Ed. 2d 84 (1970); Bethea v. Reid, 445 F.2d 1163, 1165-66 (3d Cir.1971) (prosecutor absolutely immune from suit on claims that he conspired with FBI agents to use perjured testimony and to seize property illegally), cert. denied, 404 U.S. 1061, 92 S. Ct. 747, 30 L. Ed. 2d 749 (1972).
Henderson v. Fisher, 631 F.2d 1115, 1120 (3d Cir.1980) (per curiam), cited by plaintiff, is not to the contrary. In Henderson, the plaintiff brought a § 1983 suit against a prosecutor, alleging that he had knowingly failed to stop the removal of exculpatory physical evidence from a police locker on the morning of the plaintiff's trial. The court found the question a "very close" one, id., but held that the prosecutor did not enjoy absolute immunity, since it was difficult to characterize the removal of such material as "'presenting the state's case.'" Id. (quoting Imbler, supra, 424 U.S. at 431 n. 33, 96 S. Ct. at 995 n. 33). In this case, however, plaintiff has not alleged that defendant Wilentz permitted the removal or destruction of any evidence; her claims are based on his decisions regarding the use or non-use of evidence at trial and thus fall squarely within Imbler. Cf. Wilkinson v. Ellis, 484 F. Supp. 1072, 1082-84 (E.D.Pa.1980) (holding that a prosecutor would enjoy only qualified immunity from a claim that he had destroyed a tape-recorded confession which would have exculpated the plaintiff, but stating that even the prosecutor's allegedly false testimony as to the existence of exculpatory evidence is entitled to absolute immunity). n.14
Plaintiff also alleges that defendant Wilentz withheld exculpatory evidence from the Court of Pardons and the Governor after trial. Amended Complaint paras. 32, 59; Second Amended Complaint paras. 33-6, 60-15; Third Amended Complaint paras. 33-10. Since appeals, habeas corpus proceedings, and proceedings before the Court of Pardons are all "intimately associated with the judicial phase of the criminal process," Imbler, supra, 424 U.S. at 430, 96 S. Ct. at 995, the prosecutor must be granted absolute immunity for decisions regarding the presentation of the state's case at each of these stages. See Briscoe v. LaHue, supra, 663 F.2d at 721-22 (prosecutors have absolute immunity from suits based on claims that they withheld material evidence from appellate tribunals); Henzel v. Gerstein, supra, 608 F.2d at 657 (Imbler extends to appeals); Bruce v. Wade, 537 F.2d 850, 852 (5th Cir.1976) (Imbler extends to habeas corpus proceedings).
Plaintiff also asserts that Wilentz continued to conceal exculpatory evidence after leaving office. Amended Complaint paras. 26, 33, 60. A prosecutor's immunity depends on the nature of his conduct, not on his status at the time of suit. See Forsyth v. Kleindienst, 599 F.2d 1203, 1215 (3d Cir.1979), cert. denied, 453 U.S. 913, 101 S. Ct. 3147, 69 L. Ed. 2d 997 (1981). Continuing concealment of exculpatory evidence cannot be considered an act separate from the original decision to withhold evidence.
If a plaintiff could circumvent Imbler merely by waiting until the prosecutor leaves office before filing suit, prosecutorial immunity would be meaningless and the policies behind it would be vitiated. Wilentz's absolute immunity extends to this claim also.
"An absolute immunity defeats a suit at the outset, so long as the official's actions were within the scope of the immunity." Imbler, supra, 424 U.S. at 419 n.13, 96 S. Ct. at 989 n. 13. Defendant Wilentz is absolutely immune from suit on all claims that he violated Hauptmann's constitutional rights) by using false, perjured or misleading evidence or by concealing exculpatory evidence, before, during, or after trial. The portions of the amended complaints that relate to those claims must be dismissed with prejudice.
B. Claims Based on Authorization and Use of Illegal Investigative Techniques
Plaintiff asserts that Wilentz conspired with members of the New Jersey State Police force (including defendants Stockburger, Bornmann, Wolf, Wallace and Horn) and with FBI agent Sisk to employ illegal investigative techniques to obtain information which could be used against Hauptmann at trial. Specifically, she alleges that Wilentz authorized illegal wiretapping, Second Amended Complaint paras. 33-4(2), 60-10, and eavesdropping, id. paras. 33-2, 60-10, Third Amended Complaint paras. 33-12, and that he conspired with the police to "burglarize" the luggage of a defense investigator, Second Amended Complaint para. 33-5. The court will consider each of these claims in turn.
1. Wiretapping. Plaintiff alleges that Wilentz authorized warrantless wiretaps of the telephones of "defense personnel and others." Second Amended Complaint para. 60-10. The only allegation which approaches any detail at all is the statement that the police "tapp[ed] the telephone of a defense investigator and intercept[ed] conversations between he [ sic ], his spouse, and others." Id. para. 33-4(2). Plaintiff asserts that the alleged wiretapping violated Hauptmann's first, fourth, fifth, sixth and fourteenth amendment rights.
The claim based on a fourth amendment violation is the most plausible of these; it must be dismissed, however, for a number of reasons. First, plaintiff lacks standing to assert this claim. Fourth amendment rights are personal rights that may not be vicariously asserted. Rakas v. Illinois, 439 U.S. 128, 133-34, 99 S. Ct. 421, 425, 58 L. Ed. 2d 387 (1978); Alderman v. United States, 394 U.S. 165, 174, 89 S. Ct. 961, 967, 22 L. Ed. 2d 176 (1969). In Rakas, supra, the Supreme Court unequivocally rejected the argument that any criminal defendant at whom a search was directed would have standing to contest the validity of the search; the Court held, instead, that a person claiming the protection of the fourth amendment must have a "legitimate expectation of privacy" in the invaded place. 439 U.S. at 143, 99 S. Ct. at 430. See also United States v. Knotts, 460 U.S. 276, 103 S. Ct. 1081, 1085, 75 L. Ed. 2d 55 (1983); Rawlings v. Kentucky, 448 U.S. 98, 104-06, 100 S. Ct. 2556, 2561-62, 65 L. Ed. 2d 633 (1980); United States v. Chadwick, 433 U.S. 1, 7, 97 S. Ct. 2476, 2481, 53 L. Ed. 2d 538 (1977); Katz v. United States, 389 U.S. 347, 353, 88 S. Ct. 507, 512, 19 L. Ed. 2d 576 (1967). Even assuming that plaintiff could assert Hauptmann's rights, supra n. 7, she does not allege that Hauptmann's own telephone conversations were monitored, but only those of an unnamed defense investigator with unnamed "others." Hauptmann would have had no expectation of privacy in the investigator's telephone, and plaintiff cannot assert the defense investigator's rights merely because her husband may have been the target of the surveillance of conversations between the investigator and third parties.
Assuming arguendo that plaintiff has standing to assert such a claim, she has not alleged that the warrantless wiretapping resulted in any injury to Hauptmann. She does not allege that the police overheard any incriminating information, that they passed any information on to Wilentz, or that Wilentz used any such information against Hauptmann at trial.
Finally, even assuming that plaintiff had standing and that Hauptmann had been injured by the wiretaps, Wilentz would be entitled to at least qualified immunity on this claim, if not absolute immunity. Investigation is not as clearly "associated with the judicial phase of the criminal process," Imbler, supra, 424 U.S. at 430, 96 S. Ct. at 995, as decisions about the initiation and presentation of the state's case are. As noted, supra p. 365, the Supreme Court in Imbler did not delineate the precise boundaries of the prosecutor's absolute immunity. The Court suggested, however, that although preparation for the initiation of the criminal process and for trial "may require the obtaining, reviewing, and evaluating of evidence," at some point the prosecutor no doubt functions as an administrator or investigator rather than as an advocate or an officer of the court. Id. at 430-31 & n. 33, 96 S. Ct. at 995 & n. 33. The Third Circuit in Forsyth, supra, 599 F.2d at 1214-15, adopted a functional approach, holding that a prosecutor enjoys absolute immunity when acting in a "quasi-judicial" role, but is entitled only to qualified immunity when acting in an investigative capacity. See also Ross v. Meagan, 638 F.2d 646, 648 (3d Cir.1981); Mancini v. Lester, 630 F.2d 990, 992-93 (3d Cir.1980). A number of other circuits have adopted the same approach. See, e.g., Freeman v. Hittle, 708 F.2d 442 (9th Cir.1983); Taylor v. Kavanagh, 640 F.2d 450, 452 (2d Cir.1981); Marrero v. City of Hialeah, 625 F.2d 499, 507 (5th Cir.1980), cert. denied, 450 U.S. 913, 101 S. Ct. 1353, 67 L. Ed. 2d 337 (1981); Halperin v. Kissinger, 196 U.S. App. D.C. 285, 606 F.2d 1192, 1208 (D.C.Cir. 1979), aff'd by equally divided Court per curiam, 452 U.S. 713, 101 S. Ct. 3132, 69 L. Ed. 2d 367 (1981); Jacobson v. Rose, 592 F.2d 515, 524 (9th Cir.1978), cert. denied, 442 U.S. 930, 99 S. Ct. 2861, 61 L. Ed. 2d 298 (1979); Atkins v. Lanning, 556 F.2d 485, 488-89 (10th Cir.1977); Guerro v. Mulhearn, 498 F.2d 1249, 1256 (1st Cir.1974); McCray v. Maryland, 456 F.2d 1 (4th Cir.1972). The Supreme Court recently approved Mancini and Forsyth, saying that the Court in Butz v. Economou, 438 U.S. 478, 515-17, 98 S. Ct. 2894, 2915-16, 57 L. Ed. 2d 895 (1978), had implicitly drawn the same distinction. Harlow v. Fitzgerald, 457 U.S. 800, 102 S. Ct. 2727, 2735 n. 16, 73 L. Ed. 2d 396 (1982).
The Third Circuit in Forsyth, supra, considered a claim that the former Attorney General of the United States had authorized warrantless electronic surveillance which resulted in violations of the plaintiffs' rights. The Attorney General argued that he was absolutely immune from suit on this ground. The Third Circuit, characterizing the Attorney General's actions as falling within a "gray area," id. at 1215, stated:
We recognize that the decision of the Attorney General, or a prosecuting attorney, to initiate a prosecution is not made in a vacuum. On occasion, the securing of additional information may be necessary before an informed decision can be made. To grant a prosecuting attorney absolute immunity over his decision to initiate a prosecution while subjecting him to liability for securing the information necessary to make that decision would only foster uninformed decision-making and the potential for needless actions. We believe that the right to make the decision without being subject to suit must include some limited right to gather necessary information. At the same time, we are sensitive to the possibility that this narrow exception could be distorted to include all of a prosecutor's investigative activities. We hold only that to the extent that the securing of information is necessary to a prosecutor's decision to initiate a criminal prosecution, it is encompassed within the protected, quasi-judicial immunity afforded to the decision itself.
Id. The court did not decide whether the Attorney General was entitled to absolute or qualified immunity, in the circumstances; it remanded the case for further consideration. On remand, the district court found that the Attorney General was entitled only to qualified immunity, since the purpose of the surveillance was not "to determine whether and whom to prosecute," but rather was to obtain information to prevent criminal plots of which the Attorney General was already aware. Forsyth v. Kleindienst, 551 F. Supp. 1247, 1252 (E.D.Pa.1983).
In this case, Wilentz allegedly authorized an illegal wiretap after Hauptmann had been indicted and while he was awaiting trial. Taking this allegation, as we must, as true, if Wilentz had already decided to prosecute Hauptmann, his action would probably not fall within the zone of absolute immunity for securing information "necessary to a prosecutor's decision to initiate a criminal prosecution." Forsyth, supra, 599 F.2d at 1215. Thus, were we to avoid the standing and lack of injury issues, we would then have to deal with what Wilentz would be entitled to raise, the defense of qualified immunity on this claim.
Notwithstanding that plaintiff's lack of standing and injury compels the striking of the wiretapping claim, the court will briefly discuss the qualified immunity doctrine.
Qualified immunity shields an official from liability for § 1983 damages "insofar as [his] conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, supra, 102 S. Ct. at 2738.
Prior to Harlow, a government official had to satisfy both an objective and a subjective test in order to obtain qualified immunity: the Court inquired whether the official knew or reasonably should have known that his action would violate the plaintiff's constitutional rights, and whether he took the action with malicious intent. See Harlow, supra, 102 S. Ct. at 2737; Procunier v. Navarette, 434 U.S. 555, 562-63, 98 S. Ct. 855, 859-60, 55 L. Ed. 2d 24 (1978); Wood v. Strickland, 420 U.S. 308, 321-22, 95 S. Ct. 992, 1000, 43 L. Ed. 2d 214 (1975). In Harlow, however, the Court abolished the subjective prong of the test. 102 S. Ct. at 2738. The Court intended the new standard to allow resolution of a greater number of insubstantial claims by summary judgment. Id. 102 S. Ct. at 2737-38. As the Court stated,
Reliance on the objective reasonableness of an official's conduct, as measured by reference to clearly established law, should . . . permit the resolution of many unsubstantial claims on summary judgment. On summary judgment, the judge appropriately may determine, not only the currently applicable law, but whether that law was clearly established at the time an action occurred. If the law at that time was not clearly established, an official could not reasonably be expected to anticipate subsequent legal developments, nor could he fairly be said to "know" that the law forbade conduct not previously identified as unlawful. Until this threshold immunity question is resolved, discovery should not be allowed.
Id. 102 S. Ct. at 2739 (footnotes omitted). The language of this passage ("the judge . . . may determine") makes it clear that the state of the law at the time of the official's action and the reasonableness of his conduct, in relation to that law, are questions of law to be decided by the court, and at least one court within this circuit has so held. Forsyth v. Kleindienst, supra, 551 F. Supp. at 1260-61.
This court believes that these issues are questions of law and thus may be decided by the court on this motion to dismiss.
An examination of the law in effect at the time of the alleged wiretapping shows that Wilentz could not reasonably have known that such wiretapping would violate Hauptmann's fourth amendment rights. In Olmstead v. United States, 277 U.S. 438, 462-64, 48 S. Ct. 564, 567-68, 72 L. Ed. 944 (1928), the Supreme Court held that warrantless electronic surveillance did not violate the fourth amendment, since there was no trespass and no tangible things were seized. The trespass rationale remained the law for nearly forty years after Olmstead,21 until overruled in Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967). In addition, the fourth amendment was not applied to the states until Wolf v. Colorado, 338 U.S. 25, 69 S. Ct. 1359, 93 L. Ed. 1782 (1949), fourteen years after the Hauptmann trial. Thus Wilentz could not be said to have violated Hauptmann's rights unless both Wolf and Katz were retroactive. It is unnecessary to engage in any discussion of retroactivity, however, since even if those doctrines were retroactive, Wilentz would be immune under Harlow. Wilentz could not be expected to anticipate Supreme Court decisions that were far in the future. Even if he authorized a warrantless wiretap in 1934 or 1935, and this claim were otherwise viable (that is, plaintiff had standing and suffered injury), Wilentz did not violate "clearly established constitutional or statutory rights of which a reasonable person would have known," Harlow, supra, 102 S. Ct. at 2738, and he would be entitled to immunity from suit for the alleged violations of Hauptmann's fourth amendment rights.
Plaintiff also asserts that the alleged wiretapping violated Hauptmann's first, fifth, sixth and fourteenth amendment rights. Second Amended Complaint, para. 60-10. Since plaintiff does not specify how the wiretaps interfered with Hauptmann's exercise of his rights of speech, press, assembly, petition or religion, any claim based on the first amendment is insufficiently pleaded. See infra p. 375. Likewise, the complaint does not set out facts necessary to allege a fifth amendment violation. In order for Hauptmann's right against self-incrimination to have been violated, his own telephone conversations would have to have been overheard; plaintiff, however, alleges only that the conversations of a defense investigator and other third parties were intercepted. Plaintiff also fails to allege that Hauptmann was compelled to speak. Even assuming that plaintiff had stated a fifth amendment claim, Wilentz would be immune from suit. The fifth amendment was not applied to the states until Malloy v. Hogan, 378 U.S. 1, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1964). In addition, at the time of the alleged wiretapping Olmstead, supra, held that wiretapping did not violate the fifth amendment unless it first violated the fourth amendment. Since warrantless wiretapping was held not to violate the fourth amendment at that time, id. 277 U.S. at 462-64, 48 S. Ct. at 567-68, a reasonable person would not have concluded that it violated the fifth amendment. Thus, even if Malloy were retroactive, Wilentz would be immune under the Harlow test.
Plaintiff fails to plead facts sufficient to state a claim for violation of Hauptmann's sixth amendment rights, since she does not state that confidential information was obtained from the defense investigator or that any such information was used against Hauptmann at trial. See Weatherford v. Bursey, 429 U.S. 545, 551-52, 97 S. Ct. 837, 841-42, 51 L. Ed. 2d 30 (1977). Even if she had done so, Wilentz would be immune under Harlow. The sixth amendment right to counsel was not applied to the states until Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963). It is not necessary to decide whether the Gideon doctrine was retroactive, since Wilentz could not reasonably be expected to have known of that doctrine in 1934 or 1935, and thus is entitled to immunity from a claim that he violated Hauptmann's sixth amendment rights.
Finally, plaintiff asserts that the alleged wiretapping violated a New Jersey statute known as the Act of April 18, 1930, ch. 215, 1930 N.J.Laws 987, which made wiretapping a misdemeanor. Violation of state law, in and of itself, cannot form the basis of a § 1983 action. If the violation deprives the plaintiff of a protected "liberty" or "property" interest without first providing due process, however, the plaintiff can bring a § 1983 action based on violation of the fourteenth amendment. See, e.g., Hewitt v. Helms, 459 U.S. 460, 103 S. Ct. 864, 74 L. Ed. 2d 675 (1983); Greenholtz v. Inmates of Nebraska Penal & Correctional Complex, 442 U.S. 1, 99 S. Ct. 2100, 60 L. Ed. 2d 668 (1979); Meachum v. Fano, 427 U.S. 215, 96 S. Ct. 2532, 49 L. Ed. 2d 451 (1976); Roth v. Board of Regents, 408 U.S. 564, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972). Although plaintiff does not spell out her fourteenth amendment argument, presumably it is based on Wilentz's alleged violation of the New Jersey wiretapping statute. This claim is no more viable than any of her other wiretapping claims. Even assuming that plaintiff had standing, which is highly questionable, there is no way to assess the impact of the alleged wiretapping upon any then-existent liberty or property interest, since the contents of the conversation are not alleged, nor is it alleged for what purpose and at what stage of the proceedings the knowledge gained by the alleged wiretapping was used against Hauptmann, if used at all. Moreover, even assuming the analysis of Roth, supra, and its progeny is to be retroactively applied, plaintiff has cited no case holding that a state criminal statute creates an individual liberty or property interest. Finally, even if plaintiff were to overcome all of these shortcomings, she would still encounter the bars of absolute immunity (as to Wilentz, if she alleges that his use of illegally obtained information at trial deprived Hauptmann of a protected interest) and qualified immunity (as to the others alleged to have participated in the wiretapping, and as to Wilentz insofar as her allegations are not based on use of information at trial).
Plaintiff's claims based on Wilentz's alleged authorization of wiretapping must be dismissed. The claims that the alleged wiretapping violated Hauptmann's fourth, fifth, and sixth amendment rights are dismissed with prejudice since, even if the defects in standing and pleading could be cured, Wilentz is immune from suit on those claims under Harlow. The claims that Wilentz violated Hauptmann's first and fourteenth amendment rights by authorizing wiretaps are dismissed without prejudice. However, before an amended complaint is filed in an effort to cure these and other defects, motion for leave therefor is to be filed, and the defendants will have an opportunity to explore through discovery the bases and sources of information supporting the proposed amendments, coming as they do after four amended complaints have been served and filed and plaintiff has had substantial document discovery. Cf. Fed.R.Civ.P. 11.
2. Eavesdropping. Next, plaintiff claims that Wilentz authorized State Police Officer Hugo Stockburger and others to eavesdrop on Hauptmann while he was incarcerated. Second Amended Complaint paras. 33-2, 60-10; Third Amended Complaint para. 38-2. Plaintiff states that Wilentz was thus privy to confidential attorney-client communications involving "trial strategy, plans, and testimony." Third Amended Complaint para. 33-12. Since plaintiff alleges that Hauptmann's conversations (and her own) were overheard, she has standing to assert this claim.
The eavesdropping, like the wiretapping, allegedly occurred after Wilentz had already decided to prosecute Hauptmann. If this is so, since the information was not necessary for the initiation of a prosecution, Wilentz would be acting in an investigative, rather than a quasi-judicial, role and would be entitled to qualified immunity under Forsyth, supra, 599 F.2d 1203. See supra pp. 369-371. Once again, however, Wilentz satisfies the Harlow test of immunity, since his alleged conduct would not violate clearly established statutory or constitutional rights. Plaintiff has cited no cases to show that eavesdropping was held to violate the fourth amendment at the time Wilentz allegedly authorized Stockburger's action, and the court is aware of none. Even today, it is not clear that eavesdropping on a prisoner's conversations would violate his constitutional rights. The Supreme Court has recently ruled that a prisoner has, at best, a reduced expectation of privacy in his cell:
It may well be argued that a person confined in a detention facility has no reasonable expectation of privacy with respect to his room or cell and that therefore the Fourth Amendment provides no protection for such a person. In any case, given the realities of institutional confinement, any reasonable expectation of privacy that a detainee retained necessarily would be of a diminished scope.
Bell v. Wolfish, 441 U.S. 520, 556-57, 99 S. Ct. 1861, 1883, 60 L. Ed. 2d 447 (1979) (citations omitted). In any event, as noted above, the fourth amendment was not applied to the states until 1949, Wolf v. Colorado, supra, 338 U.S. 25, 69 S. Ct. 1359, 93 L. Ed. 1782; even if the Wolf doctrine is retroactive, Wilentz could not have known of it.
Plaintiff also argues that the alleged eavesdropping violated Hauptmann's first, fifth, sixth and fourteenth amendment rights. Again, plaintiff's first amendment claim is insufficiently pleaded, as she fails to specify how the alleged eavesdropping interfered with Hauptmann's exercise of his first amendment rights. See infra p. 375. Plaintiff fails to state a fifth amendment claim, since she does not allege that Wilentz compelled Hauptmann to speak, or that the statements overheard were self-incriminating. Even if she had done so, Wilentz would be immune from suit under Harlow, since the fifth amendment was not applied to the states until Malloy v. Hogan, 378 U.S. 1, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1964). See supra p. 372. The sixth amendment claim must also be dismissed. First, plaintiff fails to state how the alleged eavesdropping deprived Hauptmann of the effective assistance of counsel. Although she alleges that conversations with his attorneys were overheard, Third Amended Complaint, para. 33-12, she does not say when they were overheard or by whom. Nor does she allege that Hauptmann was injured by use of information gleaned by eavesdropping. In fact, the opposite is true: she charges Wilentz with ignoring conversations which showed that Hauptmann was a "warm, tender and loving person," and portraying him instead at trial as a "cold, unemotional and hardened individual." Second Amended Complaint, para. 33-2.
Beyond this, plaintiff does not describe the content of the conversations or their use. Second, even assuming that plaintiff had provided sufficient facts to support a claim based on interference with effective assistance of counsel, Wilentz would be entitled to immunity under Harlow. Since the sixth amendment right to counsel was not applied to the states until Gideon v. Wainwright, supra, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799, the right was not a "clearly established . . . constitutional right of which a reasonable person would have known." Harlow, supra, 102 S. Ct. at 2738. See supra p. 373.
Although the Supreme Court, at the time of the Hauptmann trial, did not recognize a sixth amendment right to the effective assistance of counsel in state prosecutions, it did recognize a right to counsel under the fourteenth amendment in some situations. See Powell v. Alabama, 287 U.S. 45, 53 S. Ct. 55, 77 L. Ed. 158 (1932), discussed infra at 374-375. Since plaintiff has not alleged facts in this § 1983 suit that would show deprivation of effective assistance of counsel, however, the court need not now decide whether Wilentz would be immune from suit on this claim.
Plaintiff's claims based on Wilentz's alleged authorization of eavesdropping must be dismissed. The claims that the alleged eavesdropping violated Hauptmann's fourth, fifth, and sixth amendment rights are dismissed with prejudice, since Wilentz is immune from suit on those claims under Harlow. The claims that Wilentz violated Hauptmann's first and fourteenth amendment rights are dismissed without prejudice.
3. "Burglarizing" defense investigator's luggage. Plaintiff next alleges that Wilentz conspired with the State Police to "burglarize" a defense investigator's luggage. Plaintiff states that defendant Bornmann opened the unnamed investigator's luggage, read and copied papers and letters, and carried away at least one photograph. Second Amended Complaint para. 33-5.
Her only allegation regarding Wilentz is that he "acted in a conspiracy" with Bornmann and others. Id. She provides no details which would link Wilentz and the police officer in any way, nor does she allege any facts which would tend to show the existence of an agreement. As it stands, this claim of conspiracy fails to meet the standard that the Third Circuit has consistently stated.
The Third Circuit requires "that a civil rights complaint contain a modicum of specificity, identifying the particular conduct of defendants that is alleged to have harmed the plaintiffs." Ross v. Meagan, supra, 638 F.2d at 650; see United States v. City of Philadelphia, 644 F.2d 187, 204 (3d Cir.1980); Rotolo v. Borough of Charleroi, 532 F.2d 920, 922-25 (3d Cir.1976) (per curiam); Ammlung v. City of Chester, 494 F.2d 811, 814 (3d Cir.1974); Esser v. Weller, 467 F.2d 949, 950 (3d Cir.1972); Robinson v. McCorkle, 462 F.2d 111, 113 (3d Cir.1972), cert. denied, 409 U.S. 1042, 93 S. Ct. 529, 34 L. Ed. 2d 492 (1972); Kauffman v. Moss, 420 F.2d 1270, 1275 (3d Cir.), cert. denied, 400 U.S. 846, 91 S. Ct. 93, 27 L. Ed. 2d 84 (1970); see also Mokone v. Fenton, 710 F.2d 998, 1002 n. 12 (3d Cir.1983). A bare claim of conspiracy is not sufficient. As Judge Broderick recently stated in Chicarelli v. Plymouth Garden Apartments, 551 F. Supp. 532 (E.D.Pa.1982):
It is not enough, however, for a plaintiff to make merely broad or conclusory allegations concerning the existence of . . . a conspiracy . . . . Rather, plaintiffs must allege with sufficient particularity that the [defendants] reached some understanding or agreement, or plotted, planned and conspired together, to deprive plaintiffs of a federal right.