United States District Court, District of New Jersey
May 26, 1999
MARGARET KELLY MICHAELS, PLAINTIFF,
STATE OF NEW JERSEY, ATTORNEY GENERAL'S OFFICE, COUNTY OF ESSEX, ESSEX COUNTY PROSECUTOR'S OFFICE, GEORGE L. SCHNEIDER, ESQ., HERBERT TATE, ESQ., JOHN MASTROANGELO, JOHN NOONAN, GLENN GOLDBERG, ESQ., SARAH SPENCER-MCARDLE, EILEEN C. TREACY, M.A., ESSEX COUNTY POLICE DEPARTMENT, NEWARK POLICE DEPARTMENT, DIVISION OF YOUTH AND FAMILY SERVICES, LOUIS FONNELARAS, SUSAN ESQUILLAN, , DEFENDANTS.
The opinion of the court was delivered by: Barry, District Judge.
Assistant prosecutor Sara Sencer-McArdle (improperly pled as "Sara
Spencer-McArdle") ("Sencer-McArdle"), Essex County Prosecutor's Office
("ECPO") investigators George McGrath ("McGrath") and Richard
Mastroangelo ("Mastroangelo") (collectively the "county investigators"),
and Division of Youth and Family Services investigator Louis Fonolleras
("Fonolleras"), all move for summary judgment on the complaint of
plaintiff Margaret Kelly Michaels ("Michaels") on the ground of absolute
or qualified immunity. Defendant and third party plaintiff psychologist
Susan Esquilin (improperly pled as "Susan Esquillan") ("Esquilin"), also
moves to dismiss Michaels' complaint for failure to state a claim.*fn1
The court has reviewed the submissions of the parties without oral
argument pursuant to Fed.R.Civ.P. 78. For the reasons discussed below,
each of the defendants' motions will be granted.
The facts of this case are, by now, well known. Michaels, after being
convicted of numerous counts of child sexual abuse, spent five years in
prison before being released when the Appellate Division reversed her
conviction and remanded for a retrial. The Supreme Court, affirmed, but
the charges against Michaels were subsequently dismissed. She comes
before this court seeking damages for being subjected to an allegedly
unconstitutional investigation at the hands of defendants. This court
will not attempt to recap every nuance of the case's history, and that
history is well documented in the various opinions which have preceded
this opinion.*fn2 Only what is relevant to the pending motions will be
On April 26, 1985, upon being examined by his pediatrician, one of the
children (M.P.) for whom Michaels cared at the Wee Care Nursery in
Maplewood, New Jersey, made an allegation of sexual abuse against her.
Four days later, that allegation was referred to the Institutional Abuse
Investigation Unit of the Division of Youth and Family Services
("DYFS"). Schiripo Cert., Exh. A, Fonolleras Dep. I at 71. Fonolleras,
the investigator assigned to the DYFS "investigation, contacted ECPO
investigator Mastrangelo on May 1, 1985, as required by law, and
Mastrangelo brought the matter to the attention of Sencer-McArdle, the
director of the Child Abuse Unit of the ECPO. Sencer-McArdle Cert. ¶ 5.
Within a few days, four more children (E.N., S.R., C.C. and M.R.) came
forward with allegations of abuse at the hands of Michaels. Id. ¶ 6.
Sencer-McArdle interviewed all five children, in early May, after each
child was initially interviewed by a county investigator. id. ¶ 6-8.
Esquilin, after being contacted by either the ECPO or DYFS by virtue of
her position at United Hospital, conducted one interview and attended
another. Esquilin Dep. at 61-63.
Fonolleras and others conducted several more interviews of the children.
Fonolleras Dep. at 87. On May 6, 1985, Michaels took a polygraph
examination, the results of which were inconclusive.
Sencer-McArdle convened a grand jury on May 24, 1985 based on the
allegations of three of the five children she interviewed (M.P., S.R. and
C.C.). Sencer-McArdle Cert. ¶ 9. On June 6, 1985, the first of three
indictments against Michaels was returned. Id. ¶ 8. Michaels was
arrested at her East Orange apartment on June 12, 1985. Mannion Cert.,
Exh. A, McGrath Dep. II at 87.
Subsequent to the first indictment, the county investigators were
notified by DYFS that there were other children claiming to have been
sexually abused by Michaels. Sencer-McArdle Cert. ¶ 10. Interviews of
these children by the county investigators followed, but Sencer-McArdle
did not participate. Id. Instead, Sencer-McArdle interviewed parents and
teachers, reviewed transcripts the county investigators had made of their
interviews with the children (id.), and advised the investigators as to
how to handle the interviews. Santore Cert., Exh. H, Noonan Dep. at
29-31. When Sencer-McArdle thereafter decided to present the newly
gathered information to a second grand jury, she interviewed the latest
group of children. A one hundred and seventy four count indictment
involving approximately twenty children was returned by the second grand
jury on July 30, 1985. Sencer-McArdle Cert. ¶ 11.
After the second indictment was returned, the ECPO was contacted
regarding additional allegations of abuse of yet other children, and
those children were interviewed by the investigators. Id. Alter those
initial interviews, Sencer-McArdle interviewed the children in
preparation for a third grand jury, which returned the final fifty-five
count indictment against Michaels on November 21, 1985. Id.
Trial against Michaels commenced on June 22, 1987 in the Superior Court
of New Jersey on the one hundred and sixty-three counts returned by the
three grand juries.*fn3 Assistant prosecutors Sencer-McArdle and Glenn
Goldberg led the prosecution. Esquilin and Fonolleras both testified for
the prosecution at the trial.
In April of 1988, Michaels was convicted of 115 counts of aggravated
sexual assault, sexual assault, endangering the welfare of children, and
terroristic threats. See Michaels, 136 N.J. at 305-06, 642 A.2d 1372. The
Appellate Division reversed the convictions on March 26, 1993, and
remanded for a new trial. See Michaels, 264 N.J.Super. at 629-32,
625 A.2d 489. The Appellate Division directed that a pretrial hearing
would be required to ascertain the reliability of the children's
statements and testimony should the prosecution decide to retry the case
(id. at 631-32, 625 A.2d 489), and the Supreme Court of New Jersey
agreed. See Michaels, 136 N.J. at 324, 642 A.2d 1372 (agreeing with the
Appellate Division on the need for a taint hearing, stating that "the
interrogations . . . were improper and there is a substantial likelihood
that the evidence derived from them is unreliable"). On December 1,
1994, the ECPO formally dismissed all criminal charges against Michaels.
Compl., First Count, ¶ 25.
On June 13, 1996, Michaels filed a six-count complaint against a
multitude of defendants in the Superior Court of New Jersey, Law
Division, Essex County. Defendants removed the case to this court on July
25, 1996. All that remains of the complaint, however, are Michaels'
malicious prosecution and Section 1983 claims against Sencer-McArdle,
McGrath, Mastrangelo, Fonolleras and Esquilin.*fn4 Discovery on the
issue of immunity having
concluded, these defendants now move for dismissal of the claims against
A. Summary Judgment Standard
Summary judgment may be granted when "there is no genuine issue as to
any material fact and ... the moving party is entitled to a judgment as a
matter of law." Fed.R.Civ.P. 56(c). When ruling on a motion for summary
judgment, all facts and reasonable inferences drawn from the evidence are
viewed in the light most favorable to the non-moving party. See
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,
587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The moving party has the
initial burden of pointing out the absence of a genuine issue as to any
material fact, but summary judgment is only granted against a party who
fails to demonstrate "the existence of an element essential to that
party's case, and on which that party will bear the burden of proof at
trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91
L.Ed.2d 265 (1986).
B. Michaels' Claim under 42 U.S.C. § 1983
In support of her claim pursuant to 42 U.S.C. § 1983, Michaels
alleges that each defendant violated her Fourteenth Amendment rights in
conducting the investigation.*fn5 Specifically, Michaels contends that
the defendants: one, improperly suggested false allegations to the
children and thereby destroyed their capacity to remember or recall;
two, brainwashed the children with the aforementioned false suggestions;
three, distorted the children's memories with suggestive and leading
questions; four, used selective reinforcement via threats, coercion and
bribes; five, failed to record interviews with the children and destroyed
or intentionally lost tapes of interviews; and six, used gross and
egregious interrogation techniques which included threatening and
suggestive methods, in addition to coaching the children as to their
interviews prior to taping. "Amended Compl., ¶ 27(a)-(f).*fn6
A Section 1983 claim must be based on an alleged constitutional, or
federal statutory, violation.*fn7 If a defendant enjoys either absolute
or qualified immunity, however, the action should be dismissed at the
outset. Immunity is not simply a means of avoiding trial but, rather, a
method of preventing a party from having to be subjected to litigation at
all. See Orsatti v. New Jersey State Police, 71 F.3d 480, 483
(3d Cir. 1995). If at all possible, therefrom, immunity issues should be
resolved by the court at an early stage, as a matter of law. See Hunter
v. Bryant, 502 U.S. 224, 228, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991).
1. Absolute immunity
Absolute immunity exists for those officers who perform judicial or
quasi-judicial functions. See Imbler v. Pachtman, 424 U.S. 409, 420, 96
S.Ct. 984, 47 L.Ed.2d 128 (1976). Prosecutors are absolutely immune from
liability under § 1983 for their conduct in "initiating a prosecution
and presenting the State's case" insofar as that conduct is "intimately
associated with the judicial phase of the criminal process." See id. at
430-431, 96 S.Ct. 984. Other officers, such as investigators, enjoy
qualified immunity for their discretionary functions. See Malley v.
Briggs, 475 U.S. 335, 340, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986). Whether
an actor enjoys absolute or qualified immunity is based on the function
he or she performs, not the title he or she holds. See Jean v. Collins,
155 F.3d 701, 707 (4th Cir. 1998) ("[I]mmunity is tied to the nature of
the function performed and not to the identity of the defendant
performing that function "), cert. petition filed, 67 USLW 3409 (Dec.
16, 1998). In this case, the only remaining defendant eligible for
absolute immunity is assistant prosecutor Sencer-McArdle, as none of the
others performed any judicial or quasi-judicial functions.
A prosecutor generally enjoys absolute immunity for his or her
quasi-judicial functions, or, to put it another way, when he or she is
acting as an advocate for the state. Examples of such functions include:
deciding whether or not to seek an indictment based on evidence gathered
by law enforcement officers, see Buckley v. Fitzsimmons, 509 U.S. 259,
113 S.Ct. 2606, 125 L.Ed.2d 209 (1993); preparing for grand jury or trial
proceedings, see Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47
L.Ed.2d 128 (1976); and presenting evidence at a probable cause hearing.
See Burns v. Reed, 500 U.S. 478, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991).
A prosecutor does not enjoy absolute immunity, however, for functions
deemed investigative in nature, such as the rendering of legal advice to
the police or the fabrication of evidence during the investigative stage
of a case. See id. at 496, 111 S.Ct. 1934; Buckley, 509 U.S. at 274-76,
113 S.Ct. 2606.
Most of Sencer-McArdle's actions clearly fall within the ambit of
quasi-judicial functions. When, for example, Sencer-McArdle decided to
seek an indictment against Michaels, she was acting as an advocate for
the state. See Buckley, 509 U.S. at 273, 113 S.Ct. 2606; Kulwicki v.
Dawson, 969 F.2d 1454, 1463-64 (3d Cir. 1992) ("The decision to initiate
a prosecution is at the core of a prosecutor's judicial role. A
prosecutor is absolutely immune when making this decision, even where he
acts without a good faith belief that any wrongdoing has occurred.")
(citations omitted). Furthermore, Sencer-McArdle enjoys absolute immunity
for all of her activities in preparation for the grand jury proceedings
and the actual trial, including witness preparation. This includes her
decision to use and rely on Dr. Treacy, the expert witness, at trial.
See Compl., Count Two, ¶ 28. It also encompasses her reliance on
evidence subsequently deemed unreliable by the Supreme Court of New
Jersey. See Imbler, 424 U.S. at 431, 96 S.Ct. 984 (holding that
prosecutor enjoys absolute immunity "in initiating a prosecution and
presenting the State's case" even if prosecutor knowingly submitted false
evidence at trial).
Not all of Sencer-McArdle's actions, however, are so clearly
quasi-judicial, and this court must look carefully to determine if and
when she was acting in an investigative capacity, with only qualified
immunity available for those activities. The line between quasi-judicial
and investigative activities is concededly nebulous, and courts look to
several factors. See id., 424 U.S. at 431 n. 33, 96 S.Ct. 984; Kulwicki,
969 F.2d at 1465. One of the ways by which to determine on which side of
line the actions in question fall is by determining when probable cause
existed for, as the Supreme Court has held, prior to the establishment of
probable cause to arrest, the prosecutor cannot be deemed an advocate for
the state. See Buckley, 509 U.S. at 274, 113 S.Ct. 2606 ("A prosecutor
neither is, nor should consider himself to be, an advocate before he has
probable cause to have anyone arrested."). At issue here, therefore, are
Sencer-McArdle's activities which predated her decision to seek an arrest
and/or an indictment of Michaels, specifically: one, the interviews she
conducted in early May of 1985 of the first five children; and, two, the
legal advice she rendered to the investigators.
With respect to the interviews of the five children, Sencer-McArdle
offers two conflicting conclusions as to whether probable cause then
existed. In her certification to this court, Sencer-McArdle stated that
those interviews were conducted to ascertain whether probable cause
existed. See Sencer-McArdle Cert. ¶ 4, 6. However, one month later,
on September 16, 1998, Sencer-McArdle stated, at her deposition, that
probable cause already existed to arrest Michaels at the time of the
interviews. See Sencer-McArdle Reply Brief, Exh. A, Sencer-McArdle Dep.
at 32. Sencer-McArdle contends that she was always acting as an
advocate. See Sencer-McArdle Cert. ¶ 12.
Although it is Sencer-McArdle's prerogative to attach whatever label
she wishes to her conduct, it is this court's obligation to scrutinize
that conduct to determine what hat she wore during those early days of
the investigation.*fn8 Interviews conducted to establish whether or not
probable cause exists are investigative, rather than quasi-judicial, and
that is what these early interviews appear to be. See Buckley, 509 U.S.
at 273, 113 S.Ct. 2606 ("There is a difference between the advocate's
role in evaluating evidence and interviewing witnesses as he prepares for
trial, on the one hand, and the detective's role in searching for the
clues and corroboration that might give him probable cause to recommend
that a suspect be arrested, on the other hand.").
The time frame here belies Sencer-McArdle's assertion that these early
interviews were not investigatory. As is discussed more fully above,
Sencer-McArdle was made aware of the first allegation of abuse on May 1,
1985. She interviewed the first child within days and the next four
children shortly thereafter. Michaels took a polygraph examination on May
6th. A grand jury was convened on May 24th and returned the indictment on
June 6th. Michaels was arrested six days later.
It is highly unlikely that probable cause to arrest Michaels existed on
the same day on which the ECPO was first made aware of the very first
unsubstantiated allegation, or that Sencer-McArdle's interviews of the
first five children almost immediately thereafter were in preparation for
the grand jury presentation. See Sencer-McArdle Dep. at 17-18.
Certainly, the inconclusive results of the polygraph from that same first
week of May must have given Sencer-McArdle some pause. It is also
unlikely in the extreme that the ECPO would have waited until June 12th
to arrest Michaels if probable cause existed to arrest her on May 1st or
thereabouts when at least arguably the safety of young children was at
risk. See Buckley, 509 U.S. at 275, 113 S.Ct. 2606 (prosecutor's
assertion that probable cause existed during allegedly investigatory
phase was undermined by fact that suspect was arrested well after grand
jury was impaneled).
Moreover, a prosecutor cannot, as Sencer-McArdle attempts to do here,
invoke a later grand jury proceeding to retroactively
recharacterize investigative activities as quasi-judicial. See Buckley,
509 U.S. at 276, 113 S.Ct. 2606 ("A prosecutor may not shield his
investigative work with the aegis of absolute immunity merely because,
after a suspect is eventually arrested, indicted, and tried, that work
may be retrospectively described as `preparation' for a possible trial;
every prosecutor might then shield himself from liability for any
constitutional wrong against innocent citizens by ensuring that they go
Early in May, after being apprised of the first allegation against
Michaels from DYFS, Sencer-McArdle was acting in an investigative
capacity. No matter what label Sencer-McArdle puts on the five initial
interviews (Sencer-McArdle Cert. ¶ 7), it is abundantly clear to this
court that they were investigatory in nature. When a prosecutor functions
as an investigator he or she only enjoys the immunity of the
investigator. See Buckley, 509 U.S. at 276, 113 S.Ct. 2606.
Sencer-McArdle also gave legal advice to the investigators on the
Michaels' case. See Santore Cert., Exh. H, Noonan Dep. at 29-31. Under
Burns, absolute immunity is unavailable to Sencer-McArdle for that
activity. See Burns, 500 U.S. at 495, 111 S.Ct. 1934 (holding that it
would be "incongruous to allow prosecutors to be absolutely immune from
liability for giving advice to the police, but to allow police officers
only qualified immunity for following the advice").
Thus, prior to the decision to seek an indictment, Sencer-McArdle was
functioning as an investigator or engaging in investigative activities,
conduct not protected by absolute immunity. Cf Hill v. City of New York,
45 F.3d 653, 662-63 (2d Cir. 1995) (stating that where prosecutor
participated in videotaped interview of suspect, "if the videotapes were
made to collect or corroborate evidence against Hill in order to get
probable cause to arrest her, the act of making the tapes receives only
qualified immunity"). Once Sencer-McArdle made the decision to seek an
indictment and began to function as an advocate for the state by
preparing for the grand jury and then for trial, however, she enjoys
absolute immunity, and there can be no recovery by Michaels for those
2. Qualified Immunity
Defendants*fn9 claim that Michaels cannot recover against them because
they are immune from suit by virtue of the doctrine of qualified
immunity. Michaels disagrees. Like absolute immunity, qualified immunity
is a threshold issue that may be decided by the court at the outset of
litigation. See Orsatti, 71 F.3d at 483 ("When the material facts are not
in dispute, the district court may decide whether a government official
is shielded by qualified immunity as a matter of law.") (citing to
Anderson v. Creighton, 483 U.S. 635, 646 n. 6, 107 S.Ct. 3034, 97 L.Ed.2d
Qualified immunity is available to government officials, such as law
enforcement officers, performing discretionary functions. See Harlow v.
Fitzgerald, 457 U.S. 800, 816, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). The
immunity extends, moreover, to those who are working at the officers'
behest, if the nature of the function performed is the same. See Kerr v.
Lyford, 171 F.3d 330 (5th Cir. 1999) (applying qualified immunity
analysis to Department of Human Services case workers who participated in
murder investigation). The actions of the five defendants before the
court on these motions — the sole remaining defendants — that
contributed to what Michaels claims to be the constitutional violation
— improper interrogation
techniques — will be analyzed, therefore, within the qualified
immunity framework, as both Esquilin and Fonolleras appear to have been
assisting the county investigators (McGrath and Mastrangelo) and
Sencer-McArdle with the interviews.*fn10
To be stripped of qualified immunity, and thus be subjected to
potential liability pursuant to Section 1983, a defendant must have
"violate[d] clearly established statutory or constitutional rights of
which a reasonable person would have known." Harlow, 457 U.S. at 818, 102
S.Ct. 2727. Once a defendant raises the defense of qualified immunity, it
is the plaintiffs burden to delineate the constitutional right that was
violated and show that it was clearly established at the time of the
conduct at issue. See Morales v. Busbee, 972 F. Supp. 254, 260 (D.N.J.
1997), appeal dismissed, 156 F.3d 1225 (3d Cir. 1998). Even if plaintiff
satisfies that burden, however, it must be still be shown that an
objective and reasonable officer — for the analysis does not
concentrate on the subjective intent of the officer — would have
acted otherwise. See Orsatti, "71 F.3d at 483 (noting that "the Supreme
Court has recognized that it is inevitable that law enforcement officers
will in some cases reasonably but mistakenly conclude that probable cause
to make an arrest is present"). Finally, the court must assess the law
and the officer's actions at the time the violation occurred. See
Hunter, 502 U.S. at 228, 112 S.Ct. 534 ("[T]he court should ask whether
the agents acted reasonably under settled law in the circumstances, not
whether another reasonable, or more reasonable, interpretation of the
events can be constructed five years after the fact.").
Before the court delves into the state of the law in 1985, it must
first decide whether a constitutional violation has been alleged at all.
See Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 114 L.Ed.2d 277
(1991); Miller v. City of Philadelphia, 174 F.3d 368, 373 (3d Cir. 1999)
("The proper approach, however, is to ascertain whether a constitutional
violation has been alleged before determining if qualified immunity is
Michaels claims that defendants violated her Fourteenth Amendment
rights*fn11 by engaging in a "wholly improper investigation." Compl.,
Count Four, ¶¶ 6, 8.*fn12 No factual dispute exists over the type of
interrogation and investigatory procedures employed by the defendants
although defendants do not concede that those procedures were
improper.*fn13 For purposes of a summary judgment motion, of
course, this court must draw all inferences in favor of the non-movant.
Michaels' allegations as true, the inquiry becomes whether the improper
interrogation techniques that were employed violated Michaels'
An improper investigation yielding unreliable evidence has its own
remedy in the criminal justice system: suppression of the evidence at
trial or reversal of a conviction based on the unreliable evidence. See
Kulwicki, 969 F.2d at 1464 ("Harm to a falsely-charged defendant is
remedied by safeguards built into the judicial system — probable
cause hearings, dismissal of the charges — and into the state codes
of professional responsibility.") "(citing Burns, 111 S.Ct. at 1939,
1942). Having failed to convince the trial judge that remedy was required
because improper interrogation techniques which led to unreliable
evidence had been used, Michaels utilized the appellate process. Slow as
that process may have seemed to her, it was the appropriate method by
which to challenge those techniques and that evidence. Whether the
improper interrogations rose to the level of a constitutional violation
is a very different matter, and this court finds that they did not.
The interrogation techniques, standing alone, could not have violated
Michaels' constitutional rights, but only, perhaps, the rights of the
child being interviewed. See Buckley v. Fitzsimmons, 20 F.3d 789, 794-95
(7th Cir. 1994), cert. denied, 513 U.S. 1085, 115 S.Ct. 740, 130 L.Ed.2d
642 (1995). When the child's testimony was introduced at trial, however,
Michaels' due process rights were implicated. See id. Michaels, of
course, may not sue for a due process violation based on testimony
introduced at trial because, as discussed above, absolute immunity
shields that act. See id. at 795 ("Obtaining the [coerced] confession is
not covered by immunity but does not violate any of [plaintiffs] rights;
using the confession could violate [plaintiffs] rights but would be
covered by absolute immunity.") (emphasis in original). See also
Buckley, 20 F.3d at 796 ("A person aggrieved by proposed  testimony may
ask the judge to exclude it, and may appeal from an adverse judgment, but
may not collect damages from the lawyers who recruited the witness.").
Even assuming, however, that improper interrogation techniques,
standing alone, could state a constitutional violation and further
assuming that defendants violated a constitutional right of Michaels, it
does not automatically follow that that right was clearly established at
the time of the violation, or that the interrogation techniques at issue
were unreasonable in light of what was then known.
Parenthetically, in a qualified immunity analysis, defining the
constitutional right at issue is critical in assessing whether or not
that right was clearly established. See Anderson, 483 U.S. at 639, 107
S.Ct. 3034 (noting that this part of the qualified immunity analysis
"depends substantially upon the level of generality at which the relevant
`legal rule' is to be identified"). Indeed, qualified immunity would be a
worthless defense if a plaintiff could simply invoke a broad
constitutional right — as here, "due process" — that a
defendant supposedly violated to overcome the hurdle. See id.; Myers v.
Morris, 810 F.2d 1437, 1459 n. 16 (8th Cir. 1987) ("Qualified immunity
would be meaningless if it could be defeated merely by the recitation of
some well-recognized right and a conclusory allegation that the defendant
infringed it."), cert. denied, 484 U.S. 828, 108 S.Ct. 97, 98 L.Ed.2d 58
Even though Michaels has stated the supposed constitutional right in
the broadest possible fashion, a case startlingly similar to the case at
hand puts meat on those bare bones. See Myers, 810 F.2d at 1437. In
Myers, fifteen arrestees (including parents of the alleged victims) were
charged with child sexual abuse. See id. at 1440-41. After the first two
arrestees were tried and acquitted, all pending charges against the
others were dismissed. See id. The arrestees subsequently filed Section
1983 actions contending that:
[t]he prosecutor, sheriffs deputies, as well as
guardians, therapists and a
court-appointed attorney are alleged to have
interrogated children for an improper purpose
(conspiring to elicit fabricated accusations against
the plaintiffs) and in an improper manner (using
methods so flawed that they inevitably produced false
and fabricated accusations).
Id. at 1444. An appeal was taken after the trial court denied certain
summary judgment motions and granted others. The Court of Appeals for the
Eighth Circuit held that all the defendants were entitled to qualified
In its analysis of qualified immunity with respect to the deputy
sheriffs' interrogation of the alleged child victims, the court stated:
We examine the specific interrogation conduct
identified in the record to determine whether it so
exceeded accepted legal norms for the questioning of
witnesses and victims that the interrogating
detectives "knew or should have known their conduct
would violate the rights of accused persons. We do not
think it sufficient for purposes of this inquiry to
determine only whether fourth, fifth, sixth and
fourteenth amendment rights were clearly established
in 1984. Our inquiry is whether from a 1984
perspective the law was clearly established that the
conduct in which the deputies engaged would violate
Myers, 810 F.2d at 1458-59 (emphasis added). This court agrees and will
engage in the same form of analysis, i.e. in 1985, did defendants'
interrogation techniques violate "constitutional standards protecting
accused persons from suggestive or coercive interrogation of witnesses
and victims." Id. at 1459.
In the mid 1980s, child abuse prosecutions had risen dramatically yet
little was known about procedures regarding interviews of alleged
victims. See John E.B. Myers, Taint Hearings for Child Witnesses? A Step
in the Wrong Direction, 46 BAYLOR L.REV. 873, 878 (1994). The ECPO did
not have a manual or set of instructions as to how to adequately
interview children. See Def. Sencer-McArdle Reply Br., Exh. F, Laurino
Cert. ¶ 2; Exh. E, Sencer-McArdle Supp.Cert. ¶ 3. The defendants
in the Myers prosecution, which took place shortly before the Michaels
prosecution, acted in a similar fashion to the defendants here when
interviewing the child abuse victims. After recognizing and discussing
the fact that the "unique reluctance" of victims of child sexual abuse to
acknowledge that sexual abuse has occurred is at least in part
responsible for the uncertainty surrounding acceptable investigative
techniques, the Myers court concluded, in 1987, as follows:
We conclude that the interviewing conduct occurred in
a grey area of investigative procedure as to which
there were, and probably still are, less than clearly
established legal norms. The grey area referred to
involves the extent to which juvenile suspected sexual
abuse victims may reasonably be questioned,
particularly if they initially deny abuse, and the
extent to which leading questions, confrontation with
reports by others and photographs of suspects may be
used.... We do not consider the standards for the
interrogation of juvenile witnesses and victims,
particularly in the area of sexual abuse, so clearly
established in 1984 that on the basis of hindsight the
deputies should now be forced to defend their
questioning techniques in these damages suits.
Myers, 810 F.2d at 1461. This court agrees.
Unfortunately for Michaels herself, the Michaels case inspired a change
law. See Karol L. Ross, State v. Michaels: A New Jersey Supreme Court
Ruling With National Implications, 78 MICH.B.J. 32, 32 (1999) ("Michaels
is one of the first cases that attempts to resolve the issue of the
reliability of testimony of the alleged child abuse victim, thus filling
an important void.") (emphasis added). Indeed, the Supreme Court of New
Jersey, in affirming the reversal and requirement for a taint hearing six
years after the conviction, noted that:
Our decision today should make clear that the
investigatory techniques employed by the prosecution
in this case are unacceptable and that prudent
Prosecutors and investigatory agencies will modify
their investigatory practices to avoid those kinds of
errors and to conform to those standards that are now
accepted by the professional and law enforcement
Michaels, 136 N.J. at 323, 642 A.2d 1372 (emphasis added).
Defendants are not required to predict what tenets will emerge in the
area of interviewing alleged child sexual abuse victims. See Myers, 810
F.2d at 1460 (noting that "a reasonable person is not expected to act as
a legal scholar and predict the future direction of the law") (citation
omitted). Nor are they required to pay for their mistakes that predated
and, indeed, inspired, a change in the law.
As the Supreme Court of New Jersey found, the investigation was clearly
"inept." This court, too, is dismayed at how the investigation and
questioning were handled. For starters, the children were interviewed
numerous times, even after initially denying that abuse occurred; the
investigators used suggestive and leading questions; and the children
were rewarded for "correct" answers.
Michaels contends that the Supreme Court of New Jersey's finding that
the investigation was inept is the same as finding that defendants were
"plainly incompetent" and, thus, not entitled to qualified immunity. See
Pl.Br. at 34; and see Burns, 500 U.S. at 494-95, 111 S.Ct. 1934 ("As the
qualified immunity defense has evolved, it provides ample protection to
all but the plainly incompetent or those who knowingly violate the
law."). But there is an important distinction between what the Appellate
Division and the Supreme Court of New Jersey did and said on the
Michaels appeal and what Michaels asks this court to do today. Both of
the New Jersey higher courts that dealt with the case were permitted to
enjoy the benefit of hindsight; this court is not. Indeed, the
information on which the Appellate Division and the New Jersey Supreme
Court relied in 1993 and 1994, respectively, came from articles and
journals published after Michaels was found guilty. See Michaels, 264
N.J.Super. at 622-29, 625 A.2d 489; Michaels, 136 N.J. at 307-12,
642 A.2d 1372. Those courts created new law; this court must apply old.
As the Fourth Circuit held, "[o]fficials are not liable for bad guesses
in gray areas; "they are liable for transgressing bright lines."
Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir. 1992), cert. denied
sub. nom, 506 U.S. 1080, 113 S.Ct. 1048, 122 L.Ed.2d 356 (1993): The
reasonableness of defendants' actions must be assessed, therefore, in
light of the information they possessed at the time. Considering what
little was known in the mid-1980's, this court cannot say that the
defendants transgressed any "bright line."*fn15
Thus, even assuming that improper interrogation techniques can be said
to violate constitutional right, and further assuming that defendants
violated that right, Michaels has utterly failed to establish
that the contours of that right were clearly established at the time of
the violation, nor has she demonstrated that defendants acted
unreasonably, in light of what limited knowledge they had.*fn16
Defendants' motions for summary judgment on the ground of qualified
immunity are, therefore, granted and Count Four will be dismissed.
One final comment. The issue of immunity aside, if this court were to
construe Michaels' Section 1983 claim as grounded on the common law tort
of malicious prosecution — which in light of her allegations is
plausible — Count Four would be dismissed for failure to state a
Prior to 1994, the Court of Appeals for the Third Circuit allowed a
Section 1983 malicious prosecution claim to be pled in the most liberal
manner in the country. See Albright v. Oliver, 510 U.S. 266, 270-71 n.
4, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) ("The most expansive approach is
exemplified by the Third Circuit, which holds that the elements of a
malicious prosecution action under [Section] 1983 are the same as the
common-law tort of malicious prosecution.") (citing Lee v. Mihalich,
847 F.2d 66, 70 (1988)). To successfully state a claim, a plaintiff
simply had to allege the elements of common law malicious prosecution.
See Lee, 847 F.2d at 70.
The landscape changed, however, in 1994 with the Supreme Court's
plurality in Albright. There, the Court struck a Section 1983 malicious
prosecution claim that was based on a violation of the plaintiffs
substantive due process rights, but left open the possibility that such a
claim could be based on a violation of Fourth Amendment rights. See
Albright, 510 U.S. at 271, 114 S.Ct. 807.
The Third Circuit first construed Albright to mean that such a claim
must, therefore, include not simply the elements of common law malicious
prosecution but some type of seizure under the Fourth Amendment, as well.
See Gallo v. City of Philadelphia, 161 F.3d 217, 221-22 (3d Cir. 1998).
The Gallo court envisioned, in keeping with the Third Circuit's
historically expansive view of a Section 1983 malicious prosecution
claim, that a post-conviction incarceration, resulting from the alleged
malicious prosecution, would satisfy Albright's Fourth Amendment
requirement. See id. at 223-24
But Gallo was the first, not the last, word in this Circuit. Shortly
after Gallo, the Third Circuit again interpreted Albright. See Torres v.
McLaughlin, 163 F.3d 169 (3d Cir. 1998). Agreeing that a Section 1983
malicious prosecution claim was foreclosed under the Fourteenth
Amendment's substantive due process clause, the Torres court interpreted
Albright in one sense more expansively than had the Gallo court, viewing
Albright as leaving open the possibility that such a claim could be based
on a constitutional amendment other than the Fourth Amendment. See id. at
172. However, the Torres court also read Albright more narrowly than had
the Gallo court in holding that post-conviction incarceration could not
satisfy the seizure requirement, as the Fourth Amendment protected only
against preconviction, rather than post-conviction, detainment. See id.
One, and only one, clear principle emerges: a Section 1983 malicious
prosecution claim cannot be based on a substantive due process violation
alone. Thus, if Count Four is construed as a Section 1983 malicious
prosecution claim based on a violation of Michaels' substantive due
process rights, it fails to state a claim.
For the reasons discussed above, defendants' motions for summary
judgment are granted. The court declines to exercise supplemental
jurisdiction over the only
remaining claim, the common law malicious prosecution claim contained in
Count One.*fn17 Count One is, therefore, remanded to Superior Court, Law
Division, Essex County. An appropriate order will issue.
This matter having come before the court upon the motion for summary
judgment on behalf of defendants, Sara Sencer-McArdle (improperly pled as
"Sara Spencer-McArdle"), Essex County investigators George McGrath and
Richard Mastroangelo, Division of Youth and Family Services investigator
Louis Fonolleras, and psychologist Susan Esquilin (improperly pled as
"Susan Esquillan"); and the court having reviewed the submissions of the
parties without oral argument pursuant to Fed.R.Civ.P. 78;
IT IS on this 26th day of May, 1999, hereby
ORDERED that defendants' motions for summary judgment as to Count Four
are granted; and it is further
ORDERED that Count One be and hereby is remanded to Superior Court, Law
Division, Essex County; and it is further
ORDERED that defendant/third party plaintiff Esquilin's claim against
defendant Health Care Insurance Company for costs incurred in defending
this litigation is remanded to Superior Court, Law Division, Essex