The opinion of the court was delivered by: Coleman, J.
On certification to the Superior Court, Appellate Division, whose opinion is reported at 314 N.J. Super. 583 (1998).
This appeal involves a claim for a constitutional violation brought under 42 U.S.C.A. § 1983 (Section 1983). We are asked primarily to decide whether sufficient probable cause existed to arrest Frank Schneider, Jr. (plaintiff) and, if not, whether defendants otherwise are entitled to qualified immunity. We must also revisit our summary judgment standard explicated in Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520 (1995), and adjudge whether the trial court or the jury should decide certain factual and legal disputes in Section 1983 cases. We hold that probable cause did not exist to arrest plaintiff. A majority of the Court however, holds that even in the absence of probable cause defendant Simonini is entitled to qualified immunity because he could reasonably have believed in its existence. We also hold that defendant Buccino is not liable as a supervisor under the standard adopted today. Accordingly, the judgment of the Appellate Division is affirmed.
Although the facts are, for the most part, undisputed, different inferences may be drawn from those facts. In October 1988, the Organized Crime Bureau of the New Jersey Division of Criminal Justice (DCJ) began Operation LeJeune, a ten-month investigation into the Bruno/Scarfo organized crime family. Defendant Donald Simonini, the lead investigator, and defendant Robert Buccino, commander of the Organized Crime Bureau of the DCJ, were two key members of Operation LeJeune.
From the beginning of the investigation, Simonini was assisted by a confidential informant named Anthony Bonura, who aided the investigation by providing inside information. Bonura's identity remained confidential throughout most of the investigation. The name Frank Schneider first surfaced after a tape recorded conversation on April 19, 1989 between Bonura and Richard Discorfano, an Operation LeJeune target, which revealed that two men, Frank Schneider and Mark Vilardi, were involved in hijacking a truckload of VCRs. The recorded conversation revealed, in pertinent part:
Bonura: . . . what about the big load, VCRs, shit like that. 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. Bonura: Who stuck them up? Discorfano: They did. Bonura: Smokey and a . . . Discorfano: No. No. Frankie. Bonura: Frankie Schneider? Discorfano: Not the father, the son. Bonura: The son. Yea. Discorfano: Well. Mark right now is involved with the walkie talkie; Frank Schneider does the shit. Know what I'm saying?
Bonura told Simonini that he did not know Frank Schneider, Jr. Thereafter, on July 10, 1989, Simonini was informed by FBI Special Agent Robert DeBellis that a Mark Vilardi and a Frank Schneider, Jr., had committed an armed hijacking of a truckload of VCRs on the New Jersey Turnpike for Richard Discorfano. According to Simonini, DeBellis told him that the hijackers abandoned the truck and its cargo and left the truck driver, Cliff Glidden, bound in the sleeper section of the truck after they struck a telephone pole in northern New Jersey. DeBellis also gave Simonini a description of Schneider relayed to him by his informant: a "big kid" between six and six feet two inches tall with a large muscular build and in his twenties. He told Simonini that Schneider and his father had criminal records and that the son lived in the Garfield-Lodi area. Simonini testified that, although DeBellis told him that there was a Frank Schneider, Sr., he was never told that Frank Schneider, Sr. had a criminal record. That is the only disputed relevant fact in the record. Finally, Simonini was told that Vilardi had an arrest record and lived in Paterson.
DeBellis mentioned to Simonini that the FBI had verified some of the informant's information by checking police reports. The reports confirmed that two men hijacked a truckload of VCRs on the New Jersey Turnpike on December 27, 1988, and that they bound the driver with tape, threw him in the sleeper portion of the truck, and abandoned the truck and its cargo in Hackensack.
Based on that information, Simonini began his search to find Schneider and Vilardi. Simonini inquired whether DeBellis's informant could identify Schneider or Vilardi, or whether there were any photographs Simonini could use to assist in his search for the hijackers. DeBellis told Simonini that neither he nor his informant could provide additional assistance, but that his informant had proven to be reliable in the past.
Simonini obtained access to the police reports on the hijacking and learned that no fingerprints were found at the scene. The truck driver, Glidden, gave a general description of one of the hijackers, whom he described as a "very strong" Hispanic male, twenty-five or thirty years old, about five feet eleven inches tall with dark hair, wearing a plaid coat, blue jeans and sunglasses. Subsequent to plaintiff's arrest, Glidden picked out the real hijacker from a photo line-up in August 1990. However, Simonini was unable to contact Glidden during the investigation.
Simonini accessed the Division of Motor Vehicles' (DMV) computerized records for "Frank Schneider" and found several individuals with that name. Based on information he received from DeBellis and Glidden, he narrowed the field down to four "Frank Schneiders." Two of those men were ruled out as suspects. The first Frank Schneider, who had a Montville address and was born in 1944, was eliminated because he was too old to fit the description given by Glidden and DeBellis's informant. The second Frank Schneider, who lived in Lincoln Park and was born in July 1964, was eliminated because his listed height, five feet eight inches, did not fit the "big kid" description given by DeBellis's informant. The other two men were a Frank J. Schneider who lived at 10 Charles Court in Lodi with a listed birth date of "August 00, 1961" and an eye color of brown, and a Frank J. Schneider, Jr., who lived at 270 Walter Avenue in Hasbrouck Heights with a listed birth date of August 2, 1961, and an eye color of hazel. Based on the similarities between the remaining two men, Simonini concluded that the two men were in fact the same person. He testified that, in his experience, many people involved in criminal activities have more than one driver's license with slightly different personal information.
Simonini then ran the name Frank Schneider and the birth date August 2, 1961, through the State Police Master Index. He obtained a report stating that that particular Frank Schneider, plaintiff, was six feet three inches tall and weighed about 150 pounds. The reports also reflected arrests for burglary, property damage, invasion of privacy, and disturbing the peace. Simonini believed those arrests corroborated the information from DeBellis's informant that Frank Schneider, the suspected hijacker, had a criminal record. After reviewing that information, Simonini contacted DeBellis again to determine whether he had any additional identifying characteristics for Frank Schneider; DeBellis told him he did not. Simonini testified that he did not obtain photographs or make any inquiries about Frank Schneider at the police station or at any other law enforcement agency or correctional facilities in his criminal history report because he did not want to jeopardize the investigation or endanger Bonura, and because there was no one to whom he could show the photographs. Simonini did not investigate whether the suspect's father had a criminal record. At that point, Simonini concluded his investigation.
Operation LeJeune was terminated on July 17, 1989, when information was received about an imminent residential armed robbery. The day before, Simonini reviewed the evidence he had against Vilardi and plaintiff with his legal staff who concluded that probable cause existed to make the arrests. Simonini then added plaintiff's and Vilardi's names to his 138-page affidavit, which sought arrest and search warrants for thirteen suspected criminals who were targets of Operation LeJeune. With regard to Schneider, Simonini's affidavit described the conversation recorded by Bonura, the information concerning the hijacking related by DeBellis's confidential informant, and the corroboration of the informant's information through investigative police reports and information from Glidden, the driver of the hijacked truck. Simonini did not include in the affidavit, however, Schneider's physical description, address or age. Based on the content of the affidavit that related to the hijacking, which comprised three pages in an otherwise 138-page affidavit, a Superior Court judge issued separate arrest warrants on July 14, 1989 for Schneider and Vilardi. Warrants were also issued for the other thirteen suspects.
Plaintiff and other Operation LeJeune targets were arrested on July 17, 1989. Plaintiff was arrested at his job by John Post, an investigator with the DCJ Organized Crime Bureau, despite his protests that he was the wrong man. Post had been told that the suspect had different driver's licenses and different addresses, but he was not advised of any uncertainty regarding his identity. Post called Buccino to inform him that plaintiff had been arrested and that plaintiff was forcefully and repeatedly claiming that a mistake had been made. Buccino instructed Post to transport plaintiff to the West Orange Armory and cover his head to avoid any media exposure.
Upon his arrival at the West Orange Armory, plaintiff was taken to the processing room where the other Operation LeJeune targets were being held. According to plaintiff, Buccino asked him whether he remembered him from the arrest of his father from the week before. Plaintiff responded, "[W]hat are you talking about, my father has never gotten a parking ticket before." Mark Vilardi, the other suspected hijacker, was in the room and informed the police that plaintiff was not the right man. Plaintiff eventually removed a picture of his father from his wallet and gave it to Buccino to check, at which point Buccino left the room. When another officer, Edward Ronald Donahue, confirmed that the man in the picture was not Frank Schneider, Sr., plaintiff was released and driven back to work.
On August 3, 1989, the Frank Schneider, Jr. who was involved in the hijacking turned himself in to authorities. He lived near Montville. After checking the police records at the Montville Police Department, investigators learned that the Frank Schneider, Jr. they had been seeking had addresses in Montville and Lincoln Park, was five feet ten inches tall, and weighed 200 pounds. As it turned out, this Frank Schneider, Jr. was the man Simonini had found in the DMV's records with the Lincoln Park address and the July 1964 birth date.
Plaintiffs Frank Schneider, Jr. and his wife, Susan Schneider, filed this Section 1983 action against Simonini, Buccino, and Post, as well as other law enforcement officials and agencies, based on the wrongful arrest and detainment of Frank Schneider, Jr. The trial court granted summary judgment to all defendants except Simonini, Post, and Buccino. As to them, the trial court found that there were genuine issues of material fact concerning the existence of probable cause for plaintiff's arrest.
A jury trial was held during which several officers and an expert on police procedures testified. They indicated that the investigation into the identity of Frank Schneider, Jr. was not thorough and did not conform to standard police procedures. The expert conceded, however, that the existence of information that would tend to point away from a particular person does not independently demonstrate that the investigative officer acted improperly.
During the trial, Buccino described his role in Operation LeJeune. He stated that his "function [was] to give [his staff] what they needed to get the job done." Buccino spoke specifically about Simonini. He stated:
In the case of Don Simonini, I wouldn't ask the question do you have probable cause. There is an attorney sitting right along side of him. If Don Simonini had one-year experience as a law enforcement officer, yes, I would, I would go up to him and say, sure, let's go over your probable cause because that would be my job. . . . [W]ith the people that I have in the organized crime [agency] they're all experienced, well-trained, I don't ask those questions. . . .
At the close of all the evidence, both sides moved for judgment on liability pursuant to Rule 4:40-1. The trial court directed a verdict on liability in favor of plaintiff. In finding that defendants lacked probable case, the trial court stated:
There was not a shred of evidence to tie [plaintiff] to the hijacking. And a little bit more scrutiny by the agents of the State would have assisted them in concluding that. They had no physical observations. They had no weapon. They had no physical evidence of a robbery. They had nobody who could identify this plaintiff. Nothing that DeBellis said . . . should have led them to this plaintiff without more inquiry. [They] did not inquire as to whether the plaintiff's father had a criminal record. [They] made but a cursory examination as to where this plaintiff lived. They did not inquire or they didn't care if there was any person anywhere who could identify what this Frank Schneider looked like.
Mr. Simonini, indeed, made the conclusion that this was his man after he pulled up the DMV check and concluded that merely because this fellow had two addresses, one of which was in Lodi and the other which was in Hasbrouck Heights without knowing more, without knowing at this point whether his father had committed a crime, at that point he concluded that this was his man.
After determining that defendants lacked probable cause, the trial court dismissed the case against Post based on qualified immunity. Buccino and Simonini, however, were not so fortunate. In determining that Simonini was not entitled to qualified immunity, the court stated:
He relied on confidential informants who were untested. He relied on confidential informants as to whom he had no personal knowledge. He had no physical evidence. He had no photograph. He had a variety of names and he centered on the two that were most convenient to him. He did not inquire into the status of the father even though one of the informants on whom he relied said the father had a criminal record.
With respect to Buccino, the trial court stated that it was "a little bit more problematic[,] but the end result is the same." The court stated:
[Buccino] manifested a deliberate indifference here by failing to ask "What is the probable cause to bring these guys in? I never heard of this name before two days ago. Can anybody identify him? Why are you sending . . . an arrest team out with two address? How do we know which address is the right one?"
These are the type of questions that should be asked about.
In sum, the trial court concluded that Simonini and Buccino "demonstrated a deliberate indifference as to the existence of probable cause and [as to] the true identity of the person Frank Schneider that they were seeking." Thus, the trial court denied Simonini's and Buccino's motions for judgment and granted judgment for liability in favor of plaintiffs.
The court submitted the issue of damages to the jury. The jury awarded plaintiffs damages of $60,000 against Simonini and $15,000 against Buccino. Plaintiffs were awarded counsel fees of $301,944 to be paid by defendants. Defendants' post-trial motions for judgment notwithstanding the verdict, and for a new trial or a remittitur, were denied. ...