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WHITE v. WILLIAMS
January 9, 2002
THOMAS M. WHITE, JOHN MCKENZIE, FREDERICK HAMIEL, TYRONE HAMILTON, AND SOUTH BURLINGTON COUNTY BRANCH, NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, PLAINTIFFS,
COL. CARL A. WILLIAMS, INDIVIDUALLY, DEPARTMENT OF LAW AND PUBLIC SAFETY &MDASH; DIVISION OF STATE POLICE, PETER VERNIERO, INDIVIDUALLY, JOHN J. FARMER, JR., IN HIS OFFICIAL CAPACITY AS ATTORNEY GENERAL OF THE STATE OF NEW JERSEY, COL. CLINTON PAGANO, INDIVIDUALLY, COL. MICHAEL FEDORKO, IN HIS OFFICIAL CAPACITY AS ACTING SUPERINTENDENT OF THE NEW JERSEY STATE POLICE, NEW JERSEY TURNPIKE AUTHORITY, JOHN AND JANE DOES 1-99, INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES, JOHN AND JANE ROES 1-99, INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES, AND JOHN AND JANE MOES 1-99, INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES, DEFENDANTS.
The opinion of the court was delivered by: Pisano, District Judge.
This case arises out of the ongoing scrutiny of the New Jersey State
Police and its practice of racial profiling on the New Jersey
Turnpike.*fn1 Plaintiffs Thomas White, John McKenzie, Frederick Hamiel,
Tyrone Hamilton and the South Burlington County Branch, National
Association for the Advancement of Colored People ("NAACP") filed this
lawsuit alleging various claims against defendants, the Department of Law
and Public Safety — Division of State Police ("State Police"), the
New Jersey Turnpike Authority ("Turnpike Authority"), Col. Carl A.
Williams, Col. Clinton Pagano, Col. Michael Fedorko, Justice Peter
Verniero and Attorney General John J. Farmer, Jr., related to the racial
profiling conducted by the State Police on the New Jersey Turnpike
Plaintiffs' amended complaint contains five counts. Count one is
brought pursuant to 42 U.S.C. § 1983 and alleges that defendants,
Williams, Pagano and Verniero abridged plaintiffs' constitutional
rights; Count two alleges that defendants, Williams, Pagano and Verniero
acted with racial animus and were motivated by their "desire to injure,
oppress, and intimidate plaintiffs because of their race" in violation of
42 U.S.C. § 1981; Count three alleges that defendants Williams,
Pagano and Verniero, conspired to violate plaintiffs' civil rights in
violation of 42 U.S.C. § 1985; Count four alleges that defendants,
Williams, Pagano, Verniero, the State Police and the Turnpike Authority,
"had knowledge of the discrimination and other violations of
constitutional rights perpetrated on minorities, including plaintiffs, by
their subordinates, but neglected and failed to prevent said wrongful
acts when they had the power to do so" in violation of
42 U.S.C. § 1986; and Count five seeks injunctive relief, pursuant to
42 U.S.C. § 2000d (Title VI) to preclude racial profiling and to
impose broad restraints and remedial measures.
Plaintiffs seek the following relief: (1) class certification; (2) a
declaratory judgment that the defendants' actions, policies and practices
deprived plaintiffs of their rights under the Fourth and Fourteenth
Amendments to the United States Constitution and 42 U.S.C. § 2000d;
(3) an order permanently enjoining defendants, their employees "and all
persons acting in concert with them from stopping, searching, questioning
and/or detaining motorists" without probable cause on New Jersey Highways
based on their minority status; (4) an order compelling the State Police
and the Turnpike Authority to "take prompt, appropriate and effective
corrective measures . . . to prevent any policies, patterns, or practices
that encourage, teach, train, and/or condone" arrests, stops, searches
and other law enforcement action based upon an individual's race or
ethnic background; (5) an order directing the State Police and the
Turnpike Authority to implement a disciplinary system to punish those who
continue to engage in or condone arrests, stops or other law enforcement
action based upon an individual's race or ethnic background; (6) an order
compelling the State Police and the Turnpike Authority to implement a
record keeping system to gather statistical information concerning the
race of all individuals stopped, detained, searched and arrested by the
State Police; (7) compensatory, punitive and treble damages, as well as
damages allowed under 42 U.S.C. § 1981, 1983, 1985, 1986 and 2000d;
(8) reasonable attorneys' fees and court costs, as well as fees and
expenses under 42 U.S.C. § 1988; and (9) any other "award, equitable
or prospective injunctive relief allowed by statute, or pursuant to the
equitable and just power of the Court."
This Court exercises original jurisdiction over these federal subject
matter claims pursuant to 28 U.S.C. § 1331.
Pending before this Court are motions submitted by various defendants
including*fn2: (1) a motion to dismiss by defendants State Police,
Pagano, Fedorko and Farmer; (2) a motion to dismiss by defendant
Verniero; and (3) a motion for judgment on the pleadings as to
plaintiffs' disparate impact claims, and a motion for summary judgment on
the injunctive relief claims by the Turnpike Authority.
Plaintiffs commenced this action on May 14, 1999. An Amended Complaint
was filed on June 22, 1999. On November 3,
1999, Judge Irenas placed
this matter on administrative suspension pending the outcome of class
certification issues in the related State Court case Morka v. State of
New Jersey, No. L-8429-97 (N.J. Super. Ct. Law. Div. Oct. 5, 2000). After
the Superior Court denied class certification in Morka, this case was
reopened on January 25, 2001. On April 3, 2001, it was reassigned to the
On November 14, 2001, this Court entered a consent order dismissing
with prejudice Counts two (§ 1981), three (§ 1985) and four
(§ 1986) as to defendant Pagano and Count four (§ 1986) as to
defendant State Police. Finally, on November 19, 2001, counsel for
defendant Williams entered an appearance.
The Court decides the remaining motions without oral argument pursuant
to Fed.R.Civ.P. 78. Defendants' motions are granted in part and denied
in part. Verniero's and Pagano's motions to dismiss Count one (§
1983) are denied. Verniero's motion to dismiss Counts three and four
(§§ 1985, 1986) is denied. Verniero's motion to dismiss count two
(§ 1981) is granted. Finally, Count five (§ 2000d), seeking
injunctive relief, is dismissed with prejudice as duplicative of the
consent decree in United States v. State of New Jersey, No.
This is a putative class action in which the plaintiffs assert that
defendants have engaged in a practice, policy and custom of racial
profiling on the Turnpike. See Peter Verniero and Paul Zoubek, Interim
Report of The State Police Review Team Regarding Allegations of Racial
Profiling, (Apr. 20, 1999). ("Interim Report"). Racial profiling is
defined as "any action taken by a state trooper during a traffic stop
that is based upon racial or ethnic stereotypes and that has the effect
of treating minority motorists differently than non-minority motorists."
Id. at 5.
Plaintiffs Thomas White, John McKenzie and Frederick Hamiel are all
African-American residents of Pennsylvania. White and McKenzie are both
retired prison guards. Hamiel is a newspaper account executive.
Plaintiff Tyrone Hamilton is an African-American resident of New Jersey,
employed as Union County Juvenile Detention Officer. Plaintiff NAACP "is
an association formed and operated to protect and defend the
constitutional rights of its members and the community of persons of
color in and around Burlington County, New Jersey." (amend. comp. ¶
Defendant Turnpike Authority is an independent public agency
responsible for the operation and control of the Turnpike. Defendant
State Police is the agency charged with the responsibility of patrolling
the Turnpike. Defendant Col. Carl A. Williams, now retired, was the
Superintendent of the State Police between March 1994 and February 1999.
(def. brief at 2) Williams' predecessor was Defendant Col. Clinton
Pagano, who was the Superintendent from October 1975 until February
1990; he is also retired. (def. brief at 2) Williams was replaced by
Defendant Col. Michael Fedorko, who served as Acting Superintendent
between February 1999 and November 1999; he is also retired. (def. brief
at 2) Defendant Peter Verniero was the Attorney General of New Jersey
from July 1996 through May 15, 1999. Verniero left that position when he
was confirmed as an Associate Justice of the New Jersey Supreme Court.
Defendant John J. Farmer, Jr. succeeded Verniero as New Jersey's Attorney
This decision was based in part on statistics which established the
existence of institutional racism within the State Police. The moving
defendants compiled these statistics by creating a database of Turnpike
traffic stops made by troopers working out of the Moorestown State Police
Barracks between April 1988 and May 1991. Id. These statistics revealed
that African-Americans were 4.85 times more likely to be stopped on the
Turnpike than non-African-Americans. Id. at 69-71.
The court also considered various aspects of trooper training. Id. at
78. Specifically, the court considered the testimony of Sgt. Brian
Caffrey, who was the assistant supervisor of the Drug Interdiction
Training Unit ("DITU") between 1987 and 1992. Id. at 79. He testified
that the major purpose of DITU was to teach trainees how to talk their
way into a vehicle after, not before, a motor vehicle stop in order to
effectuate patrol-related arrests. Id. He recalled that trainees were
taught that "ethnicity is something to keep in mind" when conducting drug
interdiction. Id. at 80. He also testified that trainees were taught
that Hispanics are involved in drug-trafficking and were shown a film
entitled "Operation Pipeline" where the vast majority of those arrested
were Hispanic. Id. In addition, another film, entitled "Jamaican Posse"
was presented to the trainees. In this film, only African-Americans were
depicted as drug traffickers. Id.
The court also considered statements that Col. Pagano made in response
to a news report entitled "Without Just Cause," which aired on WWOR
Television in 1989 and was among the earliest media reports of racial
profiling. Id. at 81. Col. Pagano stated that "[violating the rights of
motorists was] of serious concern [to him], but nowhere near the concern
that I think we have got to look to in trying to correct some of the
problems we find with the criminal element in this State," and "the bottom
line is that those stops were not made on the basis of race alone." Id.
In videotaped remarks shown to all troopers after the airing of the
WWOR report, Col. Pagano stated that "[w]hen you put on this uniform, you
leave your biases and your prejudices behind." Id. Col. Pagano concluded
his remarks by directing the troopers to "keep the heat on" and then
assured them ". . . here at Division Headquarters we'll make sure that
when the wheels start to squeak, we'll do whatever we can to make sure
that you're supported out in the field. . . . Anything that goes toward
implementing the Drug Reform Act is important. And, we'll handle the
squeaky wheels here." Id. at 82.
The State initially filed an appeal arguing that African-American
motorists are stopped more often than white motorists because "they drive
in a manner to make themselves stand out from other drivers." (amend.
comp. ¶ 35) However, on April 22, 1999, in light of the high
Hogan/Kenna Turnpike shooting, see, infra, sub-point B, Attorney
General Verniero withdrew the appeal and admitted that the practice of
racial profiling was real. See, Interim Report at 2. The Soto appeal was
withdrawn two days after the release of the Interim Report. See, infra,
On April 23, 1998, troopers John Hogan and James Kenna were on routine
traffic patrol on the Turnpike when they stopped a 1997 Dodge Caravan in
the vicinity of interchange 7A for traveling 74 mph in a 55 mph zone.
See Tom Haydon and Brian T. Murray, Troopers Retrace Turnpike Shooting:
Police Fired at van, injuring three, Probe follows report of attack on
officers, Newark Star-Ledger, Apr. 25, 1998. Traveling in the van were
four college-age African-American men from New York who were traveling to
a college basketball tryout in North Carolina. Id. The troopers allege
that as they approached the vehicle, on foot after pulling it over, the
van lunged at them in reverse and "clipped" trooper Hogan and knocked him
to the ground. Id. Thereafter, the two troopers fired eleven shots into
the van striking three of its occupants. Id. As the shooting occurred,
the van slammed into the front of the police cruiser and crossed into
traffic and only came to rest after slamming into another car. See Kate
Coscarelli, Lawyer: Van hit trooper accidentally, Newark Star-Ledger,
Apr. 26, 1998.
As a result of this shooting, in May 1999, Hogan and Kenna were
suspended without pay. See Kathy Barrett Carter, Two troopers accused of
faking records will go on trial Nov. 13, Newark Star-Ledger, Apr. 13,
2001. Both troopers are facing criminal charges relating to the shooting
itself and also for falsely reporting the race of stopped minority
drivers as white. Id.
In response to the Turnpike Shooting and Verniero's "realization" that
racial profiling existed in New Jersey, Verniero prepared the Interim
Report, which was released on April 20, 1999. (Interim Report, at p. 1)
The Interim Report concedes that the State Police engaged in racial
profiling on the Turnpike. It explains that "[t]he phenomena of racial
profiling and other forms of disparate treatment of minorities that we
describe in this Report are not just a matter of perception: the evidence
we have compiled clearly shows that the problem is real." Id. at 57. The
Report found that "[t]he use of stereotypes is revealed in the fact that
minority motorists have been treated differently than non-minority
motorists during the course of traffic stops on the New Jersey Turnpike."
Id. at 4. It added that 27% of stops involved African-Americans; 6.9%
involved Hispanics; and 3.9% involved Asians. Id. at 26. The difference
in treatment between various racial groups was attributed to troopers who
abused their duties by failing to focus on minority motorists'
constitutional rights. Id. at 33-34.
The Report concluded that once stopped, minority motorists were subject
to consent searches at much higher rates than white motorists. Id. at 6.
It also found that minority motorists were arrested at a disproportionate
rate as compared to white motorists. Id. at 29. Between 1996 and 1998,
68% of arrests on the Turnpike were of minorities. Id.
The Interim Report implemented the following actions: (1) an updated
statewide drug enforcement policy, Id. at 92; (2) the quarterly
publication of State Police statistics, Id. at 94; (3) establishment of an
"early warning system" and enhanced computerization of records to detect
the disparate impact on minority citizens of individual state troopers,
Id.; (4) the issuance of revised standard operating procedures for
traffic stops, Id. at 96; (5) the development of practical stop criteria
to be used by troopers in exercising their discretion in selecting which
vehicles to stop, Id. at 98; (6) the issuance of new SOPs for consent
searches to reaffirm existing policy that consent searches could only be
conducted when a trooper has a reasonable articulable suspicion that the
search would uncover evidence of a crime, Id. at 100; (7) a case-by-case
review of all consent search data from 1997 and 1998 to determine whether
the existing reporting criteria and SOPs were complied with; Id. at 102;
(8) the development of enhanced training to implement the report, Id.;
(9) the establishment of criteria for summoning drug-detection equipment
and dogs, Id. at 104; (10) the establishment of a new procedure requiring
troopers to inform the dispatcher of his or her intent to conduct a
probable cause "automobile exception" search before conducting the
search, Id. at 104; (11) the establishment of criteria for making
custodial arrests, Id. at 105; (12) making Deputy Attorneys General
("DAGs") and Assistant Prosecutors available twenty-four hours a day to
answer troopers' questions concerning search and seizure, custodial
interrogation and related issues, Id. at 106; (13) the creation of a
system for DAGs and County Prosecutors to notify the State Police of any
suppression of evidence, as well as any downgrading or pleas offered to
defendants as a result of the anticipated suppression of evidence, Id. at
106; (14) the development of an inventory and impoundment policy to
prevent its use as a pretext for a vehicle search, Id. at 107; (15) the
creation of interim internal affair procedures for racial profiling
allegations, Id. at 108; (16) the creation of a plan for uniform handling
of racial profiling challenges in litigation, Id. at 109; (17) the
creation of a committee to provide legislative initiatives to further
prevent racial profiling, Id.; and (18) the development of a reliable
benchmark for statistics concerning the race and ethnicity of those
traveling on the Turnpike, Id. at 110.
In order to resolve the claims in a lawsuit threatened by the U.S.
Department of Justice ("DOJ"), the State of New Jersey entered into a
Consent Decree requiring vast changes in State Police operations. The
Consent Decree, which incorporated many of the proposals of the Interim
Report, was approved by the Honorable Mary Little Cooper of this Court,
on December 30, 1999. See United States v.
State of New Jersey & Div. of
State Police of the New Jersey Dep't of Law & Pub. Safety, No. 99-5970
(D.N.J. Dec. 30, 1999) ("Consent Decree"). The Consent Decree
specifically enjoins the State and the State Police from "engag[ing] in a
pattern or practice of conduct . . . that deprives persons of rights,
privileges, or immunities secured or protected by the Constitution or laws
of the United States." Id. at 45-46. The Consent Decree contains a
disclaimer that the State does not condone the practice of racial
profiling, and it contains a number of extensive and costly remedial
measures that the State agreed to undertake to remedy the profiling
problem. Id. at 9-47.
The Consent Decree can only be enforced by the DOJ. Id. at 24. It
specifically states that "[n]othing in this Consent Decree shall be
construed to impair the right of any person or organization to seek
relief against the State or the State Police for its conduct or the
conduct of state troopers." Id. at 45. The decree provides the terms for
its expiration; however, it must remain in effect for at least five
years, and it may not be dissolved unless the State is found to be in
substantial compliance with its terms for two consecutive years. Id. at
At its core, the Consent Decree requires the State to develop and
implement a computerized "Management Awareness Program" ("MAP") designed
to "identify and modify potentially problematic behavior" and to "promote
best practices" among its troopers. Id. 18. The program database must
include the following information concerning all motor vehicle stops:
1. name and identification number of trooper(s) who
initiated the stop;
2. name and identification number of trooper(s) who
actively participated in the stop;
3. date, time, and location of the stop;
4. time at which the stop commenced and at ...