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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,
V.
COL. CARL A. WILLIAMS, INDIVIDUALLY, DEPARTMENT OF LAW AND PUBLIC SAFETY — 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.

    OPINION

I. INTRODUCTION

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 ("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.

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. 99-CV-5970(MLC).

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. ¶ 5)
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 General.

A. State v. Soto,

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. at 81-82.
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 profile 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, sub-point C.

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.

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

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 46-47.
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 ...


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