On appeal from Superior Court of New Jersey, Law Division, Mercer County.
Antell, Brody and D'Annunzio. The opinion of the court was delivered by Brody, J.A.D.
Kenneth T. Hayes (plaintiff) and his wife brought this action for false arrest and related torts against three public employees and two public entities who were responsible for instituting extradition proceedings against him. Those proceedings were terminated when the victim of the alleged crime could not identify plaintiff at a lineup. Plaintiffs assert their claims under 42 U.S.C.A. § 1983 and the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 et seq.
Defendants are the Mercer County prosecutor and one of his assistant prosecutors, who initiated the proceedings, an investigator in the prosecutor's office who gathered the evidence, and the County of Mercer and the State of New Jersey who are allegedly liable under the doctrine of respondeat superior. Plaintiffs appeal a summary judgment that the trial judge entered in favor of all defendants on the ground that they are absolutely immune under federal and New Jersey law.
In 1973 a Mercer County grand jury indicted a man it named Kenneth Hayes for obtaining money under false pretenses from James M. Howarth, contrary to former N.J.S.A. 2A:111-1. Howarth claimed that he had given Hayes a $1,000 down payment based on Hayes's false promise to install air-conditioning equipment in Howarth's home. As a result of the indictment, a warrant issued in 1973 for Hayes's arrest.
The warrant was still outstanding on September 26, 1982, when a Larchmont, New York, police officer stopped an automobile because he believed that its inspection sticker was invalid. When the officer routinely ordered a lookup on plaintiff, who was operating the automobile, he learned of the warrant and arrested him. Later that day plaintiff was released to his New York attorney, Frank Cahill. Two weeks later Cahill wrote a letter to the Mercer County prosecutor in which he personally vouched for plaintiff, stated that plaintiff has been a respected contractor in New York City since 1949, and insisted that plaintiff was not the man who had been indicted by the Mercer County grand jury in 1973.
The prosecutor did not accept Cahill's claim at face value because there were major similarities between facts known about plaintiff and facts known about the man who had been indicted. Their first and last names were identical. The indicted man's middle name was not known. They were both building contractors. Inconclusive evidence suggested that they were the same age: Cahill stated that plaintiff was born October 10, 1930; a 1973 police report notes that a former New Jersey employer had said that the indicted man was born September 30, 1930. Although Cahill stated in his letter that plaintiff has worked in New York since 1949, he also referred in his letter to a New Jersey customer who in 1951 made a criminal complaint against plaintiff for failing to complete promised construction work in New Jersey. According to Cahill, "The New Jersey Judge, after reviewing the facts, dismissed the matter, since he realized this was not a criminal matter, but a civil one involving a construction contract."
Cahill made other representations in his letter, however, which, if believed, exculpate plaintiff.
The prosecutor wrote a letter to Cahill on November 16, 1982, in which he made the following proposal to put the matter to rest:
My suggestion at this point on how to resolve this issue with the least inconvenience to all concerned is to have Mr. Hayes proceed to the Larchmont, Westchester County, Police Headquarters, for the purposes of being photographed. Upon that photograph being transmitted to this Office, we shall complete our investigation and if no identification can be made, then we will dismiss the warrant as to your client.
While I appreciate the sincerity of the representations made in your letter, it is still imperative that the victims have an opportunity to make an identification, albeit by a photograph. If you have any problems with ...