United States District Court, District of New Jersey, D
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.
II. STATEMENT OF FACTS
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
A. State v. Soto,
The State Police's practice of racial profiling became a predominant
after a Superior Court Judge in Gloucester County declared,
in a published opinion, that the State Police endorsed, on at least a de
facto basis, a policy of racial profiling. State v. Soto,
324 N.J. Super. 66, 84 (Law Div. 1996). This finding was made in the
context of suppression motions brought by seventeen minority criminal
defendants who had been arrested on drug possession charges after being
stopped on the Turnpike. Id. The court found that the defendants
established a prima facie case of selective enforcement that the state
was unable to rebut. Id. at 69. Therefore, the court suppressed all of
the seized evidence. Id.
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,
B. The Turnpike Shooting
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.
C. The Interim Report
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.
In an effort to remedy racial profiling, the Interim Report established
a number of new policies and procedures to be for the State Police to
implement. Id. at 82. The Report acknowledged that other steps had
previously been taken to eradicate this
problem, including the
establishment of Standard Operating Procedures ("SOPs") which required
troopers to have a reasonable, articulable suspicion that evidence of a
crime would be found prior to asking for permission to search a vehicle.
Id. at 87. The SOPs also required troopers to keep written records of all
consent searches. Id. Troopers were also required to report the racial
characteristics of all individuals involved in traffic stops to the
dispatcher, and to keep track of this information in their log book. Id.
Also, the State Police provided a number of in-service training programs
to explain to troopers that racial profiling was not an acceptable
technique of crime investigation. Id. Further, video cameras were
installed in State Police cars to provide conclusive evidence of a
trooper's conduct during motor vehicle stops. 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.
D. The Consent Decree
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 which it ended;
5. license number/state of stopped vehicle;
5A. description of stopped vehicle;
6. the gender and race/ethnicity of the driver, and
the driver's date of birth if known;
7. the gender and race/ethnicity of any passenger who
was requested to exit the vehicle, frisked, searched,
requested to consent to a vehicle search, or
8. whether the driver was issued a summons or warning
and the category of violation (i.e., moving violation
or non-moving violation);
8A. specific violations cited or warned;
9. the reason for the stop (i.e., moving violation or
non-moving violation, other [probable cause/BOLO]);
10. whether the vehicle occupant(s) were requested to
exit the vehicle;
11. whether the vehicle occupant(s) were frisked;
12. whether consent to search the vehicle was
requested and whether consent was granted;
12A. the basis for requesting consent to search the
13. whether a drug-detection canine was deployed and
whether an alert occurred;
13A. a description of the circumstances that prompted the
deployment of a drug detection canine;
14. whether a non-consensual search of the vehicle was
15. whether any contraband or other property was seized;
15A. a description of the type and quantity of any
contraband or other property seized;
16. whether the vehicle occupant(s) were arrested, and
if so, the specific charges;
17. whether the vehicle occupant(s) were subjected to
deadly, physical, mechanical, or chemical force;
17A. a description of the circumstances that prompted
the use of force; and a description of any injuries to
state troopers and vehicle occupants as a result of
the use of force;
18. the troopers's race and gender; and
19. the trooper's specific assignment at the time of the stop (on
duty only) including squad.
Id. at 9-10. The MAP is also required to include information concerning
whether the stop was video recorded, information on civilian complaints
and evidence of positive performance, reports on the use of force
associated with motor vehicle stops; on-duty and off-duty criminal
arrests and criminal charges; civil suits involving alleged misconduct by
troopers both on — and off-duty (if involving allegations of racial
bias, physical violence or threats of violence), and information
concerning the implementation of interventions and training information.
Id. at 18.
The Consent Decree requires all information attributable to individual
troopers be made available to them, if requested in writing, on an annual
basis. Id. at 19. Further, the database must be able "to search and
retrieve numerical counts and percentages for any combination of the
information and to run reports for different time periods and for
individual troopers, squads or stations." Id. MAP reports shall be
prepared on a regular basis for individual troopers, stations, and squads
for use in performance reviews. Id. at 21.
The Consent Decree also requires the State Police to develop a
system to accurately compile statistics concerning the ethnicity
of persons traveling on the Turnpike so that the MAP data can be
better evaluated. Id. at 22.
The Consent Decree mandates the implementation of quarterly reviews of
individual state troopers to ensure that they are performing their duties
in accordance with the Consent Decree's provisions. Id. at 20. It also
requires the creation of a Professional Standards Bureau ("PSB") within
the State Police to protect the department's integrity by properly
investigating and resolving misconduct complaints. Id. at 27. All
misconduct complaints are to be investigated by the PSB. The decree
requires the PSB to attempt to complete all misconduct investigations
within forty-five days of assignment to an investigator. Id. at 32.
To aid in community relations, the Consent Decree requires troopers to
provide their identification to any civilian who requests it. Id. at 23.
It requires the development of a system to inform civilians of ways to
file complaints or other feedback concerning an individual trooper's
performance, including the creation of a toll-free telephone hotline
available to citizens to file complaints twenty-four hours a day. Id. at
24. It also requires the State Police to develop community outreach
programs to inform civilians of State Police procedures. Id.
In addition, the Consent Decree requires the development of training,
both at the academy for new recruits and for existing troopers, to
prevent racial profiling and to ensure compliance with the new
requirements. Id. at 34. It specifically mandates annual in-service
training on Fourth Amendment and cultural diversity issues.
In addition, the Consent Decree requires the State to prepare
semiannual public reports containing relevant racial
compiled by the MAP. Id. at 39. Finally, it requires the appointment of
an Independent Monitor to oversee its implementation. Id. at 40. The
Independent Monitor is required to provide quarterly reports during the
first year, and semiannual reports thereafter. Id. at 44.
E. Plaintiffs' Individual Claims
McKenzie alleges that in October 1997, he was traveling southbound on
the Turnpike, in the vicinity of interchange 6, when he was stopped by an
unidentified white trooper who indicated that he was driving too slowly.
(amend. comp. ¶ 23) The trooper ordered McKenzie and his girlfriend
to get out of the vehicle and then searched the vehicle's glove
compartment. The trooper released McKenzie and his girlfriend after
detaining them for approximately fifteen minutes. McKenzie was not
issued a citation.
White alleges that in mid-May 1998, he was traveling northbound on the
Turnpike when he was stopped near interchange 7 by an unidentified white
trooper for driving erratically. (amend. comp. ¶ 21) The trooper
inspected White's license, registration and insurance policy and then
instructed him to open his vehicle's trunk. The trooper searched the
trunk; finding nothing, the trooper released him without issuing a
Approximately one month later, White was again traveling northbound on
the Turnpike when he was stopped near interchange 9 by another
unidentified white trooper for erratic driving. (amend. comp. ¶ 22)
Like the first stop, the trooper checked White's license, registration
and insurance information, before searching the trunk. Once again, the
search revealed no evidence of criminality. White was released without
being issued a citation.
Hamiel alleges that in March 1999, he and his brother were traveling on
the Turnpike when an unidentified white trooper stopped him in the
vicinity of interchange 8. (amend. comp. ¶ 24) As the trooper
approached the vehicle, Hamiel inquired as to why he had been stopped.
The trooper ignored this question, and ordered Hamiel and his brother to
get out of the vehicle. Hamiel complied but asked the trooper if it was
necessary for his brother to get out of the car because his leg was in a
cast. Hamiel asserts that the trooper responded with vulgarities and
again ordered both men to get out of the vehicle. The trooper ordered
the two men against the car, frisked them, and then directed them to
stand alongside the guardrail while he searched the vehicle. The search
proved futile, and Hamiel was released without being issued a citation.
This stop lasted approximately twenty-five minutes.
Hamiel was stopped again in December 1998, while traveling southbound
on the Turnpike. This time Hamiel was detained for an unspecified period
of time before he was released without being issued a citation. (amend.
comp. ¶ 25)
Hamilton alleges that he was stopped on the morning of December 2,
1998, while driving southbound on the Turnpike in the vicinity of
interchange 4. (amend. comp. ¶ 26) The unidentified trooper told
Hamilton that he was stopped for speeding, however, the trooper released
him without issuing a citation once learning that Hamilton is a Juvenile
Several minutes later, Hamilton was stopped again by
a second trooper for speeding. This time, Hamilton was issued a ticket.
After, the trooper returned to his vehicle, Hamilton approached him to
ask about the calculation of the fine. (amend. comp. ¶ 27) At this
time, the trooper asked Hamilton why he had not identified himself as a
Juvenile Detention Officer before he issued the ticket.
A. Legal Standard
"A complaint may be dismissed pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure for failure to state a claim where it appears
beyond doubt no relief could be granted under any set of facts which
could be proved consistent with the allegations." In re Nice Systems,
Ltd. Securities Litigation, 135 F. Supp.2d 551, 564 (D.N.J. 2001). In
considering a Rule 12(b)(6) motion, the court will accept all of the
allegations as set forth in the complaint as true, and draw any
reasonable inferences in favor of the plaintiff. Hishon v. King &
Spalding, 467 U.S. 69, 73 (1984); Nami v. Fauver, 82 F.3d 63, 65 (3d Cir.
1996). However, the court need not accept bald assertions or legal
conclusions made in plaintiff's papers. Morse v. Lower Merion Sch.
Dist., 132 F.3d 902, 906 (3d Cir. 1997). A motion to dismiss does not
resolve the ultimate question of liability in a matter; rather, its
purpose it to determine whether the plaintiff will be entitled to move
forward with discovery. In re Burlington Coat Factory Sec. Litig.,
114 F.3d 1410, 1420 (3d Cir. 1997). The Third Circuit has explained that
"[t]he issue is not whether a plaintiff will ultimately prevail but
whether the claimant is entitled to offer evidence to support the
claims." Id. (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).
In general, a court may not consider any material beyond the
pleadings, however, factual allegations contained in other documents
referred to in the complaint and matters of public record may be
referenced if the plaintiffs' claims are based upon those documents.
Burlington Coat Factory, 114 F.3d at 1426. The Third Circuit has
explained that "a court may consider an undisputedly authentic document
that a defendant attaches as an exhibit to a motion to dismiss if the
plaintiff's claims are based on the document." Pension Benefit Guar.
Corp. v. White Consol. Ind. Inc., 998 F.2d 1192, 1195 (3d Cir. 1993).
B. § 1983 Claim*fn3
Currently before this Court are Pagano's and Verniero's motions for
dismissal of Count One of plaintiffs' amended complaint, which seeks
damages pursuant to 42 U.S.C. § 1983. Giving full credit to all of
plaintiffs' allegations, the Court finds that plaintiffs have pled
sufficient facts which if established at trial could result in Verniero's
and Pagano's liability under Section 1983. Therefore the motions to
dismiss Count one are denied.
"Section 1983 imposes civil liability upon any person, who acting under
the color of state law, deprives another individual of any rights,
privileges or immunities secured by the Constitution or laws of the United
Doe v. Delie,
257 F.3d 309
, 314 (3d Cir. 2001). Section
1983 does not create any new substantive rights, but rather, it provides
a remedy for violations of rights conferred in the Constitution or other
statutes. Id. (citing Baker v. McCollan, 443 U.S. 137
, 144 n. 3
For a Section 1983 claim to survive a motion to dismiss, the plaintiff
must plead that: "(1) a person deprived him of a federal right; and (2)
the person who deprived him of that right acted under the color of state
or territorial law." Groman v. Township of Manalapan, 47 F.3d 628, 633
(3d Cir. 1995) (citing Gomez v. Toledo, 446 U.S. 635, 640 (1980)).
A governmental entity or an individual governmental official may be
held liable under Section 1983. Sample v. Diecks, 885 F.2d 1099, 1118 (3d
Cir. 1989). However, for liability to attach to an individual defendant
he or she must have been personally involved with the alleged
constitutional violations. Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d
Cir. 1988). A defendant's "[p]ersonal involvement can be shown through
allegations of personal direction or of actual knowledge and
acquiescence." Id. However, allegations of participation or actual
knowledge and acquiescence must be made with appropriate particularity.
Plaintiffs have alleged in their amended complaint that they were
victims of the selective enforcement of motor vehicle laws which violate
their right to due process and equal protection under the Fourteenth
See U.S. Const. amend. XIV. The plaintiffs have also
alleged that defendants' violated their Fourth Amendment right to be free
from unreasonable searches and seizures by searching their vehicles
without probable cause.*fn6
See U.S. Const. amend. IV.
Relying upon the Third Circuit's holding in Sample, 885 F.2d at 1110,
Verniero argues that he can not be held individually liable under Section
1983 "simply because he is aware of a problem and has `ultimate
authority' for resolving it." (Verniero brief at 9) However, plaintiffs
allege Verniero and Pagano were intimately aware of racial profiling and
acted with deliberate indifference towards resolving it. (amend. comp.
The Third Circuit has found that "deliberate indifference" is akin to a
finding of "reckless indifference," gross negligence," or "reckless
disregard." Williams v. Borough of West Chester, 891 F.2d 458, 464 (3d
Cir. 1989); See City of Canton v. Harris, 489 U.S. 378, 389 (1989)
(holding that a police department's failure to train its police officers
to provide injured detainees with proper medical treatment may result in
a finding of deliberate indifference); Davis v. Monroe Cty. Bd. of
Educ., 526 U.S. 629, 650 (1999) (holding that public school
administrators who have knowledge of male
students bullying female
students to prevent them from using school athletic fields, but fail to
remedy the problem may result in a finding of deliberate indifference).
Plaintiffs allege that during Col. Pagano's tenure as Superintendent,
he advocated the use of racial profiling. To this end, plaintiffs have
directed the court's attention to certain comments that Pagano made in
response to the airing of WWOR Television's special report "Without Just
Cause," to the formation of the Drug Interdiction Training Unit in 1987,
which allegedly taught trainees to profile in order to effectuate drug
arrests, and to the fact that minorities were stopped more frequently
than whites. See Soto, supra; (amend. comp. ¶ 34).
As to Verniero, plaintiffs have alleged that he concealed the existence
of racial profiling until April 1999, despite learning of its existence
shortly after he became the Attorney General. Plaintiffs assert that
Verniero concealed this information from the Appellate Division in the
Soto appeal (amend. comp. ¶ 34), and from the DOJ after it began its
profiling investigation in 1997. Plaintiffs have alleged that Verniero's
inaction allowed racial profiling to continue, when he should have used
his knowledge and authority to rectify the problem. (amend. comp. ¶
Plaintiffs have therefore alleged a set of facts which could form
the basis of a claim under Section 1983, and, therefore, Pagano's
and Verniero's motions for dismissal of Count one are denied.
C. § 1981 Claim*fn7
Also before this Court is Verniero's motion for dismissal of Count two
of plaintiffs' amended complaint, which asserts that he violated
plaintiffs' right to equal treatment under the law in violation of
42 U.S.C. § 1981.
"Section 1981 prohibits `racial' discrimination in the making of
private and public contracts." Pamintuan v. Nanticoke Memorial Hosp.,
192 F.3d 378, 385 (3d Cir. 1999) (citing St. Francis College v.
Al-Khazraji, 481 U.S. 604, 609 (1987)). This Section "prohibits
discrimination that infects the legal process in ways that prevent one
from enforcing contract rights, by reason of his or her race."*fn8 Mian
v. Donaldson, Lufkin & Jenrette Sec. Corp., 7 F.3d 1085, 1086 (2d Cir.
1993) (citing Patterson v. McLean Credit Union, 491 U.S. 164, 177
Although Section 1981 is a federal civil rights statute it is more
appropriately analyzed in terms of a tort remedy. Al-Khazraji v. St.
Francis College,784 F.2d 505, 517 (3d Cir. 1986). Section 1981 is not a
general civil rights statute, nor is it intended as a redundancy of
Section 1983, rather, it "embraces protection of a legal process, and of
a right of access to legal process, that will address and resolve
contract-law claims without regard to race. In this respect, it
prohibits discrimination that infects the legal process in ways that
prevent one from enforcing contract
rights, by reason of his or her race." Mian, 7 F.3d at 1086.
Section 1981 plaintiffs are required to allege a prima facie case of
discrimination by showing that: (1) the plaintiff is a racial minority;
(2) the defendant discriminated against plaintiff; (3) the defendant had
an intent to discriminate on the basis of race; and (4) the
discrimination concerned one or more of the activities enumerated in the
statute. Williams v. Penn State Police Liquor Control, 108 F. Supp.2d 460,
472 (E.D.Pa. 2000); see McDonnell Douglas Corp. v. Green, 411 U.S. 792
The Amended Complaint sufficiently alleges that plaintiffs are racial
minorities, and that they suffered racial discrimination. However,
plaintiffs have not alleged that the defendant's actions violated any of
their specifically enumerated rights in the statute. See Santiago v.
City of Vineland, 107 F. Supp.2d 512, 532 (D.N.J. 2000) (citing Morris
v. Office Max, Inc., 89 F.3d 411, 413 (7th Cir. 1996)). The plaintiffs
have alleged that the defendants have violated their right to be secure
from unreasonable search and seizure, and to be protected from selective
prosecution. Although these allegations properly invoke a remedy under
Section 1983, they do not embrace the intent or language of Section
1981. As a result, the Court declines to expand the scope of Section
1981 to remedy discriminatory conduct already protected under Section
The only reference to Verniero's discriminatory intent in the Amended
Complaint is the following conclusory statement: "the acts of the
defendants were motivated by racial animus and by their desire to
injure, oppress, and intimidate plaintiffs because of their race."
(amend. comp. ¶ 51) No facts are alleged which support that
allegation, or that Verniero had any intent to deprive plaintiffs (or
anyone)of the enumerated rights contained in the statutory language.
Since, "[c]onclusory allegations of generalized racial bias do not
establish discriminatory intent," plaintiffs have not alleged that
Verniero acted with racial animus. Jones v. School Dist. of
Philadelphia, 19 F. Supp.2d 414, 421 (E.D.Pa. 1998), aff'd, 198 F.3d 403
(3d Cir. 1999) (citing Village of Arlington Heights v. Metropolitan
Hous. Dev. Corp., 429 U.S. 252, 264-68 (1977)).
Verniero's motion to dismiss Count two is granted.
D. §§ 1985*fn9 and 1986*fn10 Claims
Also before this Court is Verniero's motion for dismissal of Counts
three and four of plaintiffs' amended complaint. Count three alleges
that Verniero, along with Williams, Pagano and other unnamed defendants
conspired "to violate the civil rights of plaintiffs based on their race"
in violation of 42 U.S.C. § 1985. (amend. comp. ¶ 54) Count
Four alleges that Verniero "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"
those acts from occurring even though he had the power to do so in
violation of 42 U.S.C. § 1986. (amend. comp. ¶ 57) The court
denies Verniero's motion to dismiss these counts since plaintiffs have
alleged that Verniero entered into a conspiracy to conceal racial
profiling from the judiciary and the DOJ, and that he negligently failed
to prevent his subordinates from depriving plaintiffs of their civil
Section 1985 does not create any substantive rights by itself, rather,
it is used to vindicate federal rights and privileges that are enumerated
in the Constitution or in other federal statutes. Great Am. Fed. Sav. &
Loan Ass'n v. Novotny, 442 U.S. 366, 376 (1979). "In general, the
conspiracy provision of § 1985(3) provides a cause of action under
rather limited circumstances against both private and state actors."
Brown v. Phillip Morris, Inc., 250 F.3d 789, 805 (3d Cir. 2001).
For a Section 1985 claim to survive a motion to dismiss a plaintiff
must allege: "(1) a conspiracy; (2) motivated by a racial or class based
discriminatory animus designed to deprive, directly or indirectly, any
person or class of persons to the equal protection of the laws; (3) an act
in furtherance of the conspiracy; and (4) an injury to person or property
or the deprivation of any right or privilege of a citizen of the United
United States v. Lake, 112 F.3d 682
, 685 (3d Cir. 1997)
(citing Griffin v. Breckenridge, 403 U.S. 88
, 91 (1971)). The Third
Circuit has explained that a Section 1985(3) plaintiff must establish:
"(a) that a racial or other class-based invidious discriminatory animus
lay behind the coconspirators' actions, (b) that the coconspirators
intended to deprive the victim of a right guaranteed by the Constitution
against private impairment, and (c) that the right was consciously
targeted and not just incidentally affected." Brown, 250 F.3d at 805
(quoting Spencer v. Casavilla, 44 F.3d 74
, 77 (2d Cir. 1994)). By
contrast, racial animus is not a required element in a Section 1983
claim, nor does it require intentional conduct or any other particular
state of mind as a prerequisite to recovery. Goodman v. Lukens Steel
Co., 777 F.2d 113
, 135 (3d Cir. 1986).
Section 1986 is a companion to Section 1985(3) and provides a cause of
action against persons who, knowing that a violation of § 1985(3) is
about to be committed and possessing the power to prevent its
occurrence, fail to take action to frustrate its execution. Rogin v.
Bensalem Tp., 616 F.2d 680, 696 (3d Cir. 1980), cert. denied, 450 U.S. 1029
(1981). "[T]ransgressions of § 1986 by definition depend on a
preexisting violation of § 1985." Clark v. Clabaugh, 20 F.3d 1290,
1295 (3d Cir. 1994).
In addition to establishing the existence of a Section 1985
conspiracy, a plaintiff asserting a claim under Section 1986 must
demonstrate that: "(1) the defendant had actual knowledge of a § 1985
conspiracy, (2) the defendant had the power to prevent or aid in
preventing the commission of a § 1985 violation, (3) the defendant
neglected or refused to prevent a § 1985 conspiracy, and (4) a
wrongful act was committed."*fn12 Id.
Plaintiffs have alleged that Verniero conspired with members of the
Attorney General's office staff to conceal the existence of racial
profiling from the judiciary and the DOJ. (amend. comp. ¶ 35)
Plaintiffs have added that this concealment led to the deprivation of
their civil rights by causing them to become victims of the State
Police's selective enforcement of traffic law and searches of their
vehicles without probable cause.
As to the Section 1986 claim, plaintiffs have alleged that when
Verniero was the Attorney General he had the ultimate authority over the
State Police, and the Attorney General's office. Further, plaintiffs have
alleged that for much of his tenure as Attorney General, Verniero had
actual knowledge of various racially motivated conspiracies within the
State Police, and that he had the power to stop the conspirators from
committing discriminatory acts. Plaintiffs allege that despite his
knowledge and power, Verniero did nothing to stop the discrimination.
Therefore, plaintiffs have stated a valid claim under Section 1986.
Mindful of the standards that the Court must observe in considering
motions to dismiss under Rule 12(b)(6), see, infra, the Court concludes
that plaintiffs have alleged colorable claims against Verniero under
Section 1985 and Section 1986. Plaintiffs should have the opportunity to
come forward with evidence to develop these claims.
Verniero's motion to dismiss counts three and four is denied.
E. § 2000d Injunctive Relief Claims*fn13
Currently before this Court are motions for dismissal or, in the
alternative, for summary judgment of Count Five of plaintiffs' Amended
Complaint which seeks injunctive relief pursuant to 42 U.S.C. § 2000d
(Title VI). Because the desired relief duplicates the relief granted in
the consent decree in United States v. State of New Jersey, No. 99-5970,
which is currently under the supervision of Judge Cooper, the Court
grants defendants' motion, in the interest of comity and judicial
economy, and dismisses Count five in its entirety.
Private individuals may sue to enforce Title VI and obtain both
relief and damages.*fn14
Alexander v. Choate, 469 U.S. 287
293 (1985). However, Title VI itself only reaches instances of
intentional discrimination. Alexander v. Sandoval, 531 U.S. 1049
(2001). Therefore, if a plaintiffs' discrimination claim relies upon
disparate impact analysis, they cannot recover damages or seek an
injunction under Title VI. Id. In this case, plaintiffs seek injunctive
relief to remedy alleged intentional discrimination, therefore, the claim
is properly asserted.
However, it is within this Court's discretion to dismiss a claim that
is duplicative of another in a different federal court. Remington Rand
Corp. Delaware v. Business Systems Inc., 830 F.2d 1274, 1275-76 (3d Cir.
1987); see Colorado River Water Conservation Dist. v. United States,
424 U.S. 800, 817 (1976) ("As between federal district courts, . . .
though no precise rule has evolved, the general principle is to avoid
duplicative litigation"). "It long has been recognized that there is a
`power inherent in every court to control the disposition of the causes on
its docket with economy of time and effort for itself, for counsel, and
for litigants.'" Remington Rand Corp. Delaware v. Business Systems Inc.,
830 F.2d 1274, 1275-76 (3d Cir. 1987) (quoting Landis v. North Am. Co.,
299 U.S. 248, 254 (1936)).
The purpose of the rule is to conserve judicial resources, avoid
piecemeal litigation, eliminate the risk of inconsistent adjudications,
and "to promote comity among federal courts of equal rank." E.E.O.C. v.
University of Pennsylvania, 850 F.2d 969, 971-72 (3d Cir. 1988), aff'd,
493 U.S. 182 (1990). Sixty years ago, the Third Circuit warned against
duplicative litigation and pointed out its pitfalls. Crosley Corp. v.
Hazeltine Corp., 122 F.2d 925, 929 (3d Cir. 1941), cert. denied,
315 U.S. 813 (1942). The court explained:
The economic waste involved in duplicating litigation
is obvious. Equally important is its adverse effect
upon the prompt and efficient administration of
justice. In view of the constant increase in judicial
business in the federal courts and the continual
necessity of adding to the number of judges, at the
expense of the taxpayers, public policy requires us to
seek actively to avoid the waste of judicial time and
energy. Courts already heavily burdened with
litigation with which they must of necessity deal
should therefore not be called upon to duplicate each
other's work in cases involving the same issue and the
Id. at 929-30. The Second Circuit has cautioned that "[t]he complex
problems that can arise from multiple federal filings do not lend
themselves to a rigid test, but require instead that the district court
consider the equities of the situation when exercising its discretion."
Curtis v. Citibank, N.A., 226 F.3d 133, 138 (2d Cir. 2000).
The plaintiffs' claims are nearly identical to those embraced by the
Consent Decree. See United States v. New Jersey, No. 99-5970. In fact,
the Consent Decree provides for more extensive relief than is currently
sought in this action. The Consent Decree prohibits troopers
from considering race when enforcing the State's laws in any manner. At
its core, the Consent Decree requires the State to develop and implement a
computerized "Management Awareness Program" designed to "identify and
modify potentially problematic behavior" and to "promote best practices"
among troopers, thereby allowing the State to gather statistics
concerning racial profiling and be proactive in its training and
discipline to ensure that racial profiling is eradicated. The Consent
Decree also requires the State to set up a civilian complaint commission
to properly gather, investigate, and resolve any civilian profiling
complaints. It also provides for the State to implement new training at
the academy for trainees and troopers alike to help educate the force
about the illegalities of racial profiling and alternative methods of
policing. Finally, the Consent Decree provides for the appointment of an
independent monitor to oversee the implementation of these new programs
and to keep the court abreast of any new developments. Therefore, if the
State fails to comply with the provisions of the Consent Decree, the
Justice Department will file an appropriate action before Judge Cooper to
see that it is enforced.
Plaintiffs argue that the Consent Decree is an inadequate injunctive
remedy, and, therefore, further restraints are necessary. However, this
concern does not require this Court to enter restraints upon the
defendants. Rather, parties, such as the plaintiffs in this claim, who
claim to be aggrieved by the State Police can move to intervene in the
matter before Judge Cooper if there are additional forms of injunctive
relief that they deem necessary to address the problem.
Plaintiffs also complain that the Consent Decree is inadequate because
it enjoins only the State, not the individual defendants or the Turnpike
Authority, from further discrimination. This argument is without merit
as the Consent Decree is binding upon the State, its subdivisions, and
Since the relief sought in Count five is duplicative of the injunctive
relief already provided in the Consent Decree, the Court concludes in the
interest of comity, judicial economy, and to provide for the fair and
efficient administration of justice that Count Five of the amended
complaint is dismissed as to all parties.
For the reasons set forth above, this Court denies Verniero's motion to
dismiss Counts one (§ 1983). The Court also denies Pagano's motion
to dismiss Count one, three and four (§§ 1983, 1985, 1986). The Court
grants Verniero's motion to dismiss Counts two (§ 1981). The Court
grants defendants' motion to dismiss Count five (§ 2000d) in the
interest of comity and judicial economy because the relief sought is
duplicative of the Consent Decree. An appropriate order is attached.
For the reasons set forth in the Court's decision dated January 9,
2002, IT IS ORDERED that (1) defendants' motion to dismiss Counts one,
three and four is denied; (2) defendant Verniero's motion to dismiss
count two is granted; (3) defendants' motion to dismiss Count five is
granted. Count Five is dismissed as to all parties with prejudice.
IT IS ORDERED that this action shall proceed as to the following
counts: Count one (§ 1983) as to defendants Williams, Pagano and
Verniero; Count two (§ 1981) as to Williams; Count three (§ 1985)
as to Williams and Verniero; Count four (§ 1986) as to Williams,
Verniero and the Turnpike Authority.
IT IS ORDERED that all claims as to defendants Farmer, Fedorko,
and Department of Law and Public Safety — Division of State Police
have been or are dismissed.
IT IS ORDERED that all claims asserted by plaintiff South Burlington
County Branch, National Association for the Advancement of Colored People
have been or are dismissed.