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.
No defendant has shown that plaintiffs knew as of the time of the investigation that their, or indeed any, conversations had been recorded; indeed, the press reports on which defendants place substantial reliance are contradictory as to whether surveillance had or had not been occurring. Additionally, while plaintiffs apparently knew of the existence of the State Police report prior to August, 1987, knowledge of the existence of that report and knowledge of the report's contents are far different matters. Although defendants maintain that plaintiffs could have known the contents of the report prior to August, 1987 with the exercise of reasonable diligence (and therefore should have known), the court cannot say as a matter of law that this is so.
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.
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.
Some plaintiffs indicated that they were told by department officials that the lines were recorded.
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.
Consistent with this knowledge, some plaintiffs testified that they adjusted their telephone conversations to avoid discussing matters which they did not want recorded.
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).