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PBA LOCAL NO. 38 v. WOODBRIDGE POLICE DEPT.

September 9, 1993

PBA LOCAL NO. 38, et al., Plaintiffs,
v.
THE WOODBRIDGE POLICE DEPARTMENT, THE TOWNSHIP OF WOODBRIDGE, et al., Defendants.



The opinion of the court was delivered by: MARYANNE TRUMP BARRY

 HON. MARYANNE TRUMP BARRY, U.S.D.J.

 I. Introduction

 Plaintiffs, PBA Local No. 38 and certain current and former police officers of the Township of Woodbridge, bring this action against the Woodbridge Police Department and the Township of Woodbridge (together "the Woodbridge defendants"), the former and current Police Directors, the former Mayor of the Township of Woodbridge, and New Jersey Bell Telephone Company ("NJB"). Plaintiffs allege that electronic listening and taping devices were surreptitiously placed in certain areas of police headquarters and on the building's phone lines. As a result, they allege, their private conversations were unlawfully intercepted. Specifically, plaintiffs bring six separate claims: (1) violation of 42 U.S.C. § 1983 in that the surveillance was under color of state law and in violation of their constitutional right to privacy under the Fourth, Fourteenth, First, and Ninth Amendments (First Count); (2) violation of the New Jersey Wiretapping and Electronic Surveillance Control Act, N.J.S.A. 2A:156A-1 et seq. ("New Jersey Wiretap Act") (Second Count); violation of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, as amended by the Electronic Communications Privacy Act of 1986, Pub. L. No. 99-508, 100 Stat. 848 (1986), 18 U.S.C. §§ 2510-20 ("Federal Wiretap Act") (Third Count); conspiracy to violate federal statutory and constitutional rights pursuant to 42 U.S.C. §§ 1983 and 1985 (Fourth Count); *fn1" violation of their right to privacy under the New Jersey Constitution and New Jersey common law (Fifth Count); and "intrusion upon seclusion" (Sixth Count). Now before the court are numerous motions for summary judgment by defendants on various grounds and plaintiffs' motion for leave to file a fourth amended complaint. For the reasons which follow, defendants' motions will be granted in part and denied in part and plaintiffs' motion will be denied.

 Much of the relevant factual background is set forth in the court's opinion denying plaintiffs' motion for class certification and defendants' motion to dismiss. See PBA Local No. 38 v. Woodbridge Police Department, 134 F.R.D. 96, 97-99 (D.N.J. 1991). Because certain aspects of the case have changed since that opinion was issued, however, the court will briefly set forth the parties and the facts relevant to these motions.

 A. The Parties

 Plaintiff PBA Local No. 38 is the collective bargaining representative of the officers employed at the Woodbridge Police Department. The remaining plaintiffs are sixteen current or former officers employed by the Department -- Joseph Festa, William Matelski, Thomas Polhamus, Richard Bernat, George Conklin, Thomas Barajas, Robert Barajas, David Whitaker, Patrick Donnelly, John Trainor, John Schreck, James Kirby, Robert Hodes, Ronald Nier, and Joseph Covino. *fn2" See October 16, 1991 Order of the Hon. Stanley R. Chesler, U.S.M.J. (permitting amendment of the complaint to add these plaintiffs).

 Defendant Joseph Galassi served as Director of the Woodbridge Police Department from 1963 to 1984. Final Pretrial Order Stipulation of Facts (hereinafter "Stip.") P 1. Defendant Anthony O'Brien became a Woodbridge Police Officer in 1957 and worked his way up through the ranks, eventually succeeding Galassi as Director of Police in 1984. Id. PP 8-15. Defendant Walter Zirpolo, now deceased, served as Mayor of Woodbridge from 1962 to 1967. Zirpolo hired Galassi as Director of Police during his tenure as Mayor. Id. P 7. Defendant NJB is a regulated public utility and a communication common carrier. Id. P 6. NJB installed certain equipment in the Woodbridge Police Department station house. *fn3"

 B. Procedural History

 Plaintiffs filed a complaint in the Superior Court of New Jersey on May 3, 1988. The Hon. Robert A. Longhi, J.S.C., initially denied class certification but later vacated that ruling and certified a class action. The state court action was, nonetheless, subsequently dismissed without prejudice. Plaintiffs filed a complaint in this court in August, 1989 on behalf of a class comprised of all persons who worked as police officers for the Woodbridge Police Department from 1964 to 1985 and their families and associates who visited or telephoned the station house during that time. In its previous opinion, the court denied plaintiffs' motion to certify the class. PBA Local No. 38, 134 F.R.D. at 102. Moreover, the court made clear at that time what was required for an individual plaintiff to have standing: "At a minimum, a named plaintiff must demonstrate the actual interception of at least one of his or her conversations before there can be a justiciable controversy within the meaning of Article III. Where there has been no interception, there can have been no injury." Id. at 100-01.

 Subsequent to the denial of class certification, plaintiffs moved to amend the complaint to join 233 other individuals as plaintiffs in the action. Consistent with this court's prior ruling, Magistrate Judge Chesler granted the motion in part and denied it in part, permitting the complaint to be amended to include as plaintiffs the sixteen individuals who were able to demonstrate that they had at least one conversation intercepted. See Order dated October 16, 1991. Discovery has been completed and, defendants' dispositive motions and plaintiffs' motion for leave to file a fourth amended complaint aside, the case is ready for trial. The court notes, however, that although trial there will be, it has grave doubts that even if some or all of the plaintiffs who go to trial prevail on the merits, other than the most minimal damages can be proven.

 C. Factual Background

 The general factual background of this litigation is set forth in the court's previous opinion. Specific factual arguments and evidence relating to specific claims or specific defendants will be discussed in the context of the court's legal analysis of these motions.

 III. Defendants' Motions

 The motions for summary judgment present a complex web of legal arguments and factual references. There are five separate defendants moving for summary judgment on some or all of the six counts of the third amended complaint. While some arguments are made by more than one defendant or are joined post hoc by other defendants, there are numerous arguments which apply to one defendant alone, one or a few plaintiffs, or only one or a few of the counts of the complaint.

 A. Statute of Limitations

 In its previous opinion, the court noted that because the accrual of the statute of limitations as to each plaintiff will depend on an individualized determination as to when he became aware of both the fact of injury and the causal connection to one or more of the defendants, statute of limitations issues could not be resolved on class-wide basis. PBA Local No. 38, 134 F.R.D. at 106. Finding defendants' evidence regarding the statute of limitations inconclusive at that juncture, the court invited a renewed motion on statute of limitations grounds "should additional discovery clarify what is now unclear." Id.

 NJB, joined by Galassi, O'Brien, and Zirpolo, now argues that plaintiffs' claims are barred on statute of limitations grounds. The Woodbridge defendants renew the statute of limitations argument only with respect to plaintiff PBA Local No. 38. All defendants' arguments must fail. Plaintiffs do not dispute that all their claims are subject to a two-year statute of limitations, whether under federal law or state law. See Wilson v. Garcia, 471 U.S. 261, 280, 85 L. Ed. 2d 254, 105 S. Ct. 1938 (1985) (state personal injury statute of limitations should be applied to § 1983 claims); 18 U.S.C. § 2520(e) (amendment to federal anti-wiretapping statute, effective January, 1987, setting a statutory two-year limitation period); Awbrey v. Great Atlantic & Pacific Tea Co., 505 F. Supp. 604, 607 (N.D. Ga. 1980) (prior to amendment of Federal Wiretap Act, applying the state's two-year statute of limitations applicable to the tort of invasion of privacy); N.J.S.A. 2A:14-2 (general personal injury statute of limitations of two years). Plaintiffs filed their federal complaint on August 2, 1989. The question, then, is whether the court can determine as a matter of law that any or all of the plaintiffs' claims against defendants accrued prior to August 2, 1987.

 NJB argues that the attorney for PBA Local No. 38, Raymond Gill, Esq., knew of the existence of a State Police report in December, 1986, that report put him on notice of plaintiffs' cause of action, and, thus, the cause of action should be deemed to have accrued as of that date and certainly no later than February 2, 1987, as evidenced by counsel's letter of that date to the New Jersey Attorney General's Office. Pl. Opp. Br., Exh. F. NJB suggests, moreover, that plaintiffs' cause of action could well have accrued on June 21, 1985, the date on which the State Police did a "sweep" of police headquarters. But NJB's statute of limitations argument makes utterly no reference to the knowledge or awareness of any individual plaintiff, rather treating all plaintiffs as one. NJB apparently fails to appreciate the court's previous statement that the accrual of the statute of limitations requires an inquiry which is "specific to each plaintiff and . . . obviously ill suited to general disposition on a class-wide basis." PBA Local No. 38, 134 F.R.D. at 106. Parenthetically, this point was not lost on the Woodbridge defendants, who concede in their brief that "the questions as to the accrual of the causes of action by individually-named plaintiffs may still need to be clarified at this time . . . ." Woodbridge Defendants Moving Br. at 39. Accordingly, the Woodbridge defendants have limited their statute of limitations argument to plaintiff PBA Local No. 38.

 The Woodbridge defendants rest their argument on another piece of evidence. Specifically, they claim that the minutes of the August 14, 1985 meeting of PBA Local No. 38 establish actual knowledge that wiretapping was occurring. This argument, too, must fail. Although the minutes of this meeting (certain portions of which were ordered redacted during discovery on the basis of attorney-client privilege) clearly mention the "bugging" of police headquarters, the statements therein do not establish that the PBA or any other plaintiff knew or should have known of their purported injury and the causal connection to defendants. In short, although defendants may ultimately prevail on the statute of limitations issue, that issue must be addressed to the jury. *fn5"

 B. Plaintiffs' Reasonable Expectation of Privacy

 The threshold issue of statute of limitations aside, one of the primary themes of defendants' motions for summary judgment as they relate to intercepted telephone conversations is that plaintiffs cannot produce evidence to show that any conversations in which plaintiffs enjoyed a reasonable expectation of privacy were intercepted.

 1. Conversations on "Beeped" Phone Lines

 Defendants move for summary judgment on plaintiffs' claims insofar as they relate to the interception of conversations on the station house's "beeped" phone lines. Defendants concede for purposes of the motions that all telephone calls going into or corning out of the station house were taped on the Dictaphone machine in the basement. All but two of the phone lines in the station house were trunk lines subject to recording. Recording was signified by a beep every five seconds which was audible to the telephone's user. The deposition testimony of each and every individual plaintiff indicates that all were aware that the beeped lines were recorded. *fn6" Some plaintiffs indicated that they were told by department officials that the lines were recorded. *fn7" Moreover, the deposition testimony establishes that even if a particular plaintiff was not told by department officials, it was general knowledge among police officers that the beep on the phone lines signified that the lines were being recorded. *fn8" Consistent with this knowledge, some plaintiffs testified that they adjusted their telephone conversations to avoid discussing matters which they did not want recorded. *fn9"

 Arguing that plaintiffs could not have had a reasonable expectation of privacy in talking on these beeped lines, defendants move for summary judgment on all claims as they relate to conversations over beeped telephone lines. While this argument is persuasive as to certain of plaintiffs' claims, it is not as to others. Because the standards governing plaintiffs' various claims differ, they will be considered seriatim.

 The § 1983 claim in the First Count (and, derivatively, the § 1983 conspiracy claim of the Fourth Count), it was previously determined, will be governed by the law prevailing at the time of the alleged violation. See Letter Opinion, dated May 10, 1991 (denying plaintiffs' motion for reconsideration of denial of class certification) (hereinafter "Letter Opinion"). As the court's previous overview of the development of the constitutional law of privacy made clear, the law most favorable to plaintiffs is Katz v. United States, 389 U.S. 347, 19 L. Ed. 2d 576, 88 S. Ct. 507 (1967), the case in which the Supreme Court first determined that the Fourth Amendment's protections apply where there is a "reasonable expectation of privacy." See Letter Opinion at 9-10 (discussing Fourth Amendment jurisprudence from Olmstead v. United States, 277 U.S. 438, 72 L. Ed. 944, 48 S. Ct. 564 (1928), and Goldman v. United States, 316 U.S. 129, 86 L. Ed. 1322, 62 S. Ct. 993 (1942), which employed a physical trespass approach to the right to privacy, to Katz). Thus, for purposes of the summary judgment motions, the court will apply the Katz "reasonable expectation of privacy" formulation to determine if plaintiffs' constitutional claims regarding conversations which occurred over beeped telephone lines are legally viable.

 It is clear that plaintiffs did not have a reasonable expectation of privacy in conversations which took place over the beeped telephone lines. The Supreme Court has described the "reasonable expectation of privacy" test endorsed in Katz as follows:

 
Katz posits a two-part inquiry: first, has the individual manifested a subjective expectation of privacy in the object of a challenged search? Second, is society willing to recognize that expectation as reasonable? See Smith v. Maryland, 442 U.S. 735, 740, 99 S. Ct. 2577, 2580, 61 L. Ed. 2d 220 (1979).

 California v. Ciraolo, 476 U.S. 207, 211, 90 L. Ed. 2d 210, 106 S. Ct. 1809 (1986). The first prong of this inquiry relates to the person's subjective intent, i.e. whether he or she actually had an expectation of privacy. The second prong is an objective component, i.e. whether that expectation was reasonable. It is clear beyond any doubt that because all the police officer plaintiffs knew that the beeped phone lines were recorded, they had no subjective expectation that conversations on those lines would be private, and there certainly is no evidence on this score. Moreover, even were the evidence not so conclusive on the subjective prong of Katz, ample evidence supports the conclusion that the significance of the beeps was common knowledge among the Woodbridge police officers and, thus, that any subjective expectation of privacy could not be reasonable. Summary judgment will, therefore, be granted in favor of defendants as to the § 1983 claims of all plaintiffs insofar as those claims rely on conversations occurring on beeped phone lines.

  Defendants likewise move for summary judgment on plaintiffs' federal and state anti-wiretap statutory claims on the basis that plaintiffs had no reasonable expectation of privacy in these conversations. As will become clear, however, defendants apparent assumption that the "reasonable expectation of privacy" standard governs these claims is incorrect. Both the federal and the state wiretap statutes cover the interception of two kinds of communications, "wire" and "oral." See 18 U.S.C. § 2511(1)(a); N.J.S.A. 2A:156A-2(a) & (b). Both statutes define "oral communication" to include "any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation . . . ." 18 U.S.C. § 2510(1); N.J.S.A. 2A:156A-2(b). *fn10" Courts interpreting this language in light of the legislative history of the federal act have opined that the "expectation of privacy" language in the statute was intended to parallel the language and standard of Katz, making the "reasonable expectation of privacy" highly relevant to claimed interceptions of oral conversations. See In re John Doe Trader Number One, 894 F.2d 240, 242 (7th Cir. 1990) (citing S. Rep. No. 1097, 90th Cong. 2d Sess., reprinted in 1968 U.S. Code Cong. & Admin. News 2112-2274); United States v. Harrelson, 754 F.2d 1153, 1170-71 (5th Cir. 1985). But see Walker v. Darby, 911 F.2d 1573, 1578-79 (11th Cir. 1990) (distinguishing between the expectation of privacy and the expectation of noninterception); Boddie v. American Broadcasting Cos., 731 F.2d 333, 338-39 & n.4 (6th Cir. 1984).

 Of critical importance here, however, is that defendants have moved for summary judgment only as to the telephone conversations of plaintiffs. Telephone conversations fall under the definition of "wire communication" in both the federal and state acts. *fn11" Shubert v. Metrophone, Inc., 898 F.2d 401, 404 (3d Cir. 1990); Briggs v. American Air Filter Co., 630 F.2d 414, 417 (5th Cir. 1980); United States v. Axselle, 604 F.2d 1330, 1334 (10th Cir. 1979); In re Wire Communication, 76 N.J. at 261. As a comparison between the definitions of "oral communication" and "wire communication" elucidates, wire communications, unlike oral communications, are generally protected regardless of whether the person making or receiving such communications has an expectation of privacy. Compare 18 U.S.C. § 2510(1) with 18 U.S.C. § 2510(2) and N.J.S.A. 2A:156A-2(a) with N.J.S.A. 2A:156A-2(b). See Briggs, 630 F.2d at 417 & n.4. Plaintiffs' reasonable expectation of privacy being irrelevant to statutory liability for the alleged interception of wire communications, defendants' motion for summary judgment on these claims as they relate to conversations on beeped--or for that matter any--telephone lines on the basis that plaintiffs had no expectation of privacy in such conversations must be denied.

 2. Conversations on Non-Beeped Phone Lines

 C. Plaintiffs' State Constitutional and Common Law Claims

 The Fifth Count of the complaint alleges that defendants violated plaintiffs' right to privacy as guaranteed by the Constitution of the State of New Jersey. The Sixth Count alleges the tort of "intrusion upon seclusion." Defendants move for summary judgment as to these claims based on certain limitations imposed by the New Jersey Tort Claims Act ("NJTCA"), N.J.S.A. 59:1-1 et seq. None of the parties disputes that the strictures of the NJTCA apply to plaintiffs' state constitutional and common law claims against the public entity and public employee defendants, i.e. all defendants except NJB. *fn13" Defendants argue that plaintiffs' claims for emotional distress, emotional anguish, and pain and suffering should be dismissed under N.J.S.A. 59:9-2(d), a section of the NJTCA limiting the types of judgments which can be recovered from public entities and public employees for claims covered by the Act.

 Under the NJTCA, damages may be recovered from a public entity or employee for pain and suffering only under certain circumstances. N.J.S.A. 59:9-2(d) provides:

 
No damages shall be awarded against a public entity or public employee for pain and suffering resulting from any injury; provided, however, that this limitation on the recovery of damages for pain and suffering shall not apply in cases of permanent loss of a bodily function, permanent disfigurement or dismemberment where the medical treatment expenses are in excess of $ 1,000.00. For purposes of this section medical treatment expenses are defined as the reasonable value of services rendered for necessary surgical, medical and dental treatment of the claimant for such injury, sickness or disease, including prosthetic devices and ambulance, hospital or professional nursing service.

 New Jersey courts have characterized the subjective symptoms accompanying emotional distress as within the definition of pain and suffering. See Ayers v. Jackson, 106 N.J. 557, 576-77, 525 A.2d 287 (1987). In order to recover for pain and suffering, a plaintiff must show both a permanent loss of a bodily function or permanent disfigurement or dismemberment and medical treatment expenses of more than $ 1,000. There is no dispute that plaintiffs have failed to meet both of these requirements. Recognizing this failure, plaintiffs do not oppose defendants' motion for summary judgment as to emotional distress, emotional anguish, and pain and suffering under state and common law. See Pl. Opp. Br. at 34.


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