Before Judges Newman, Collester and Bilder.
The opinion of the court was delivered by: Collester, J.s.c. (temporarily assigned)
On appeal from Superior Court of New Jersey, Law Division, Bergen County.
Defendants Donald Simonini and Robert T. Buccino appeal from a final judgment of the Law Division finding Simonini, an investigator with the New Jersey Division of Criminal Justice (DCJ), and Buccino, Deputy Chief Investigator of the DCJ, liable under 42 U.S.C.A. § 1983 for violating the civil rights of Frank Schneider by his false arrest and detainment. We reverse on the grounds that defendants were entitled to judgment under the doctrine of qualified immunity.
Plaintiffs Frank Schneider, Jr. and Susan Schneider filed this § 1983 action against defendants Simonini and Buccino as well as other law enforcement officers and agencies based on the wrongful arrest of Frank Schneider, Jr. *fn1 Motions for summary judgment were granted in favor of other defendants, but the motion Judge denied summary judgment to Simonini and Buccino as well as to John Post, another investigator with the DCJ, finding that there were genuine issues of material fact as to the existence of probable cause for plaintiff's arrest. We denied defendants' motion for leave to appeal, and the matter proceeded to a jury trial.
Both sides moved for judgment at the Conclusion of testimony. The trial Judge dismissed the case against Post based on qualified immunity. However, he found that Simonini and Buccino "demonstrated a deliberate indifference to the existence of probable cause," denied their motion and granted judgment to plaintiffs on liability. The case proceeded to the jury on the sole issue of damages, resulting in an award to plaintiffs of $60,000 against Simonini and $15,000 against Buccino. Defendants' motions for judgment notwithstanding the verdict, as well as for a new trial or remittitur were denied. Plaintiffs' application for counsel fees was granted and a subsequent award was entered for $301,944 to be paid by defendants. This appeal followed.
The pertinent facts are as follows. In October 1988, the Organized Crime Bureau of the DCJ began Operation LeJeune, an investigation of the northern faction of the Bruno/Scarfo organized crime family involved in an alleged conspiracy to commit the crimes of armed robbery, drug dealing and arson. Key to the investigation was the cooperation of Tony Bonura, a turncoat informant who was part of the Bruno/Scarfo crime network. Bonura assisted both by providing inside information and by wearing a wire recorder in conversations with investigation targets. Because disclosure of his cooperation could well result in his death, Bonura's identity was a secret known only to those at the center of the investigation, which included defendants as well as Deputy Attorney General John Mercun. Simonini was the lead investigator and in charge of Bonura. Buccino was the commander of the Organized Crime bureau of the DCJ. Mercun's responsibilities included consultation with Simonini and Buccino on legal matters including applications for arrest and search warrants prior to submission to a Superior Court Judge.
On April 19, 1989, Bonura recorded his conversation with Richard Discorfano, an Operation LeJeune target, in which Discorfano told Bonura that a Mark Vilardi and Frank Schneider, Jr. had botched a hijacking of a truck load of VCRs for Discorfano. The conversation included the following:
A.B. (Anthony Bonura): ...what about the big load, VCRs, shit like that.
R.D. (Richard Discorfano): That ain't them, that ain't them. Those guys are going into hijacking. Remember, I told you I hired a couple of guys to hijack. Those guys, they don't know what they're doing. They handcuffed a guy in South Jersey, they're bring'em up here, the guys get out of the fuckin' truck, he's knocking on people's fuckin' door.