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Sweeten v. Middle Township

December 14, 2007


The opinion of the court was delivered by: Hon. Jerome B. Simandle


In this action, Plaintiffs Richard and Karen Sweeten filed suit against Middle Township, the Middle Township Police Department (the "MTPD"), and former MTPD Detective Gregg Taylor, alleging that they were injured as a result of the defendants' violation of federal and state anti-wiretapping laws and commission of various torts under New Jersey law. At the root of Plaintiffs' claims are a series of incidents that took place in 1996 that ultimately led to the removal of Plaintiff Richard Sweeten from his position as a police officer with the MTPD. Mr. Sweeten lost his position with the MTPD as a result of his commission of certain acts of misconduct, which Mr. Sweeten alleges the defendants learned about only through the use of the unlawful interception of his telephone conversations. The Sweetens seek damages for wiretap violations under 18 U.S.C. § 2520 and N.J.S.A. 2A:156A-24 (Counts One and Two), for intentional infliction of emotional distress (Count Three), for tortious interference with contract (Count Four), and for Mrs. Sweeten's loss of consortium (Count Five).

Presently before the Court are Plaintiffs' motion for partial summary judgment [Docket Item 45], Defendant Middle Township's motion for summary judgment [Docket Item 48], and Defendant Taylor's motion for summary judgment [Docket Item 63]. For the following reasons, the Court will grant the defendants' motions for summary judgment as to Counts Three, Four, and Five of the complaint, and will deny the remainder of the relief the parties seek.


A. The January 11, 1996 Incident

In January 1995, Mr. Sweeten was hired as a police officer with the MTPD. (Pl.'s Br. Ex. A 7.) On January 11, 1996, he was driving his police vehicle down Siegtown Road in Middle Township, New Jersey, when he observed four of his friends -- Philip Zimmerman, David Allen Myers, Angela Durham, and Cheryl Berlanger -- standing near the side of the road. (Id. at 16.) According to Mr. Sweeten, when his friends waved to him, he pulled over, stopped his vehicle, exited and walked in front of his vehicle in order to speak with his friends. (Id. at 68.) Mr. Sweeten left the vehicle's engine running and left its door open. (Id.)

After Mr. Sweeten approached his friends and began speaking with them, Mr. Myers, apparently in an effort to make a joke, snuck behind Mr. Sweeten, and, unbeknownst to Mr. Sweeten, entered the police vehicle. (Id. at 17-18; 68.) While Mr. Sweeten's back was turned to Mr. Myers and the police vehicle, Mr. Myers put the vehicle in gear and drove forward at a slow rate of speed, passing Mr. Sweeten. (Id. at 17-18.) According to Mr. Sweeten, he was startled by the fact that someone had entered his vehicle and did not realize that it was his friend who was driving the car; Mr. Sweeten was apparently concerned that whoever was driving the car would have access to the shotgun that was in the car. (Id.) Mr. Sweeten claims that he reacted "instinctively" by drawing his handgun from its holster and aiming it at the driver. (Id.) When he realized that it was Mr. Myers behind the wheel and that Mr. Myers was simply playing a joke, Mr. Sweeten put his gun away, told Mr. Myers to get out of the car and said that "that was a dumb thing to do." (Id. at 68.) Mr. Sweeten and his friends proceeded to "jok[e] around" about the incident for several minutes before Mr. Sweeten left in his vehicle.*fn1 (Def. Middle's Br. Ex. M 3.)

Later in the day on January 11, 2006, Mr. Sweeten spoke by telephone with Mr. Myers and Mr. Zimmerman about the events that led him to point his gun at Mr. Myers.*fn2 (Def. Taylor Br. Ex. F 22-23.) Although at the time Mr. Sweeten apparently "believed that [he] had a legitimate reason" for drawing his handgun, he nonetheless instructed both Mr. Myers and Mr. Zimmerman that if anyone ever asked either of them about the incident, they were to deny that Mr. Sweeten pointed his handgun at Mr. Myers. (Id. at 22-24.) Instead, Mr. Sweeten instructed Mr. Myers and Mr. Zimmerman to tell anyone who asked about the events of that day that Mr. Sweeten had drawn his police radio and aimed its antenna at Mr. Myers. (Id.) Mr. Sweeten testified during his deposition that he understood at the time both that he was "suggesting to these individuals that they provide false information to the authorities," and that it was unlawful for a police officer "to contact a potential witness to an event and attempt to influence that witness to provide false information to law enforcement officers as part of their investigation." (Id. at 25-26.)

B. The Telephone Monitoring

Unbeknownst to Mr. Sweeten, his telephone conversations with Mr. Myers and Mr. Zimmerman were being monitored. A woman named Tamala M. Marks who lived on the same street as Mr. Sweeten had come into possession of an electronic device known as a "scanner" that could be used to intercept conversations made on cordless telephones. (Def. Taylor Br. Ex. L 20.) While Defendant Taylor denies having provided Ms. Marks with the scanner, Plaintiffs and Ms. Marks maintain that Mr. Taylor supplied Ms. Marks with the scanner and instructed her on how to use it.*fn3 (Id. at 24.) According to Ms. Marks, Mr. Taylor, who at the time worked as a detective for the MTPD*fn4 , had originally provided her with the scanner in order to listen to and record the telephone conversations taking place at the home of her neighbor, Lori Abadie; Ms. Marks and Mr. Taylor had suspected that illegal drug activity was taking place at the Abadie residence, and Ms. Marks reportedly engaged in extensive telephone monitoring at Mr. Taylor's behest.*fn5 (Id. at 34-35.)

At some point near the end of 1995, Mr. Taylor allegedly urged Ms. Marks to use the scanner to monitor Mr. Sweeten's telephone activities. (Def. Taylor Br. Ex. L 83.) In her deposition testimony, Ms. Marks reported that Mr. Taylor referred to Mr. Sweeten as "squirrel[l]y" and a "dirty cop" who might be "dealing with drugs." (Id. at 119.) Mr. Taylor instructed Ms. Marks to "see what [she] can get on" Mr. Sweeten, and Ms. Marks listened extensively to Mr. Sweeten's telephone conversations between the end of 1995 and early 1996. (Id. at 127-29.) On January 11, 1996, Ms. Marks overheard and recorded Mr. Sweeten's conversations with Mr. Myers and Mr. Zimmerman, including Mr. Sweeten's instructions that his friends misrepresent Mr. Sweeten's use of his handgun earlier that day. (Pl.'s Opp. Br. Ex. N-3 172.) Ms. Marks played the tape of this recording to Mr. Taylor, who subsequently informed Ms. Marks that Mr. Sweeten would be investigated for his conduct. (Def. Taylor Br. Ex. L 179.) Nothing in the record suggests that Mr. Taylor was acting pursuant to a search warrant when he instructed Ms. Marks to intercept Mr. Sweeten's telephone calls.

C. The Investigation of Officer Sweeten

On January 12, 1996, then-Detective Taylor wrote an "Investigation Report" detailing the contents of Mr. Sweeten's conversations with Mr. Myers and Mr. Zimmerman. (Def. Middle's Br. Ex. K.) The report (the "Taylor Report"), which identifies Ms. Marks only as a "Good Citizen" or "GC-1," states that GC-1 is a reliable informant who personally overheard a telephone conversation through a cordless telephone . . . [between Mr. Sweeten and "Dave" in which Mr. Sweeten] asked him not to say anything to anyone about what happened today, "Because he'll get fired. Say that it was his radio antenna in his face." Dave said he'll even up later! Pety*fn6 said, "What did it feel like to have a 9mm Glock in your face," and they both laughed. Pety said, "Don't say anything about messing with the shotgun." (Id.) The Taylor Report did not directly state that Ms. Marks used the scanner to "overhear[]" Mr. Sweeten's conversation. (Id.) Following the issuance of Detective Taylor's report, the MTPD commenced an internal affairs investigation into Mr. Sweeten's conduct on January 11, 1996. (Def. Middle's Br. Ex. L 68.)

On February 29, 1996, MTPD detectives interviewed Mr. Myers, Mr. Zimmerman, and Mr. Sweeten. Detective William Webster interviewed Mr. Myers, who at first informed Detective Webster that on January 11, he had snuck into Mr. Sweeten's vehicle in order to "play[] a joke," that when Sweeten saw Myers in his car, he "pulled out his MACE and pointed it at him," and that they all proceeded to "laugh[] about it." (Def. Middle's Br. Ex. N.) When Detective Webster advised Mr. Myers that this account contradicted the information the police had received about the incident, Mr. Myers relayed a different account, stating that Mr. Sweeten had in fact drawn his firearm "as a joke" to indicate that Mr. Myers should get out of the car, and that Mr. Sweeten "just started laughing afterwards." (Def. Middle's Br. Ex. M 7-8.) Mr. Myers denied that Mr. Sweeten had urged him to lie about the events of January 11. (Id. at 9.)

Detective Paul Loefflad interviewed Mr. Zimmerman on February 29, 1996. (Def. Middle's Br. Ex. P.) At first, Mr. Zimmerman told Detective Loefflad that during the January 11 incident Mr. Sweeten had drawn his portable radio and aimed it at Mr. Myers after Myers snuck into his automobile. (Id. at 2.) When Detective Loefflad informed Mr. Zimmerman that this account contradicted information the police had received from both Myers and Sweeten, Mr. Zimmerman admitted that Sweeten had asked him to state that "he pulled his walkie talkie out, not his revolver" if anyone asked about the incident. (Def. Middle's Br. Ex. O 10.) Mr. Zimmerman admitted to Detective Loefflad that Sweeten had drawn his gun "and smiled like a joking[] smile" when he saw Myers in his vehicle. (Id. at 8.)

Lieutenant Blake Moore interviewed Mr. Sweeten on February 29, 1996, after informing him that an internal affairs investigation had been launched into the events of January 11, 1996. (Def. Taylor Br. Ex. R 2.) In his first statement to Lieutenant Moore, which Lieutenant Moore recorded, Sweeten stated that when he saw Myers in his police vehicle, he pointed his radio, not his gun, at him and told him to exit the vehicle. (Def. Middle's Br. Ex. Q 7.) Sweeten likewise denied having asked his friends to misrepresent the events of that day. (Id.) However, after Sweeten had completed his first statement, Lieutenant Moore played a recording of the statement to Sweeten, and midway through the tape, Sweeten "suddenly said 'Stop it! Stop it! I did it! I did it! I pulled my gun! If I'm going to get fired, I might as well tell the [t]ruth!'" (Def. Taylor Br. Ex. R 2) (some internal quotations omitted). Sweeten subsequently admitted in a taped statement to Lieutenant Moore that he had drawn his firearm when Myers entered the vehicle, and that he told Myers and Zimmerman to say that Sweeten pointed a radio rather than a firearm if they were ever questioned about the incident. (Def. Middle's Br. Ex. Q 7.) On March 2, 1996, Sweeten was suspended without pay, and the matter was referred to the Cape May County Prosecutor's office. (Def. Middle's Br. Ex. R.)

Shortly thereafter, Mr. Sweeten retained the services of Joseph J. Rodgers, Esq., to represent him in the disciplinary and criminal proceedings that resulted from the internal affairs investigation. (Def. Taylor Br. Ex. T.) Over the course of his representation of Mr. Sweeten, Mr. Rodgers met with MTPD Chief of Police William H. Hevener and received discovery materials related to the Sweeten investigation, including copies of the statements Sweeten, Myers, and Zimmerman made to the police on February 29, 1996.*fn7 (Id. at 26, 29.) According to his deposition testimony, Mr. Rodgers never received a copy of the Taylor Report when representing Mr. Sweeten. (Id. at 48.) Mr. Rodgers testified that although he learned in his 1996 meeting with Chief Hevener that the MTPD had become aware of Mr. Sweeten's conduct because "somebody overheard a . . . telephone conversation through a scanner*fn8 or something and called the police," he assumed that someone "picked up" Sweeten's conversations through a "wireless house phone." (Id. at 34, 38.) The notion that the interception of Sweeten's telephone calls was the result of wiretapping activity was, according to Mr. Rodgers' deposition testimony, "the last thing that crossed [his] mind." (Id. at 39.)

Pursuant to N.J.S.A. 2C:43-12(e), Mr. Sweeten entered into a Pre-Trial Intervention Program ("PTI Program") on September 5, 1996. (Def. Middle's Br. Ex. A.) Under the terms of the PTI Program, the criminal charges that had been lodged against Mr. Sweeten were held in abeyance for three years; he was required to perform 200 hours of community service; he forfeited his position as an MTPD policeman, his training certification, and his right to future law enforcement employment; and he paid a fine. (Id.) After he completed the PTI Program, his criminal charges were dismissed.

D. The Investigation of Detective Taylor

In 2002, the Cape May County Prosecutor's Office initiated an investigation into "allegations that Detective Gregg Taylor gave one Tammy Marks a scanner and directed her to record telephone conversations of people he suspected to dealing narcotics." (Pl.'s Br. Ex. G.) As part of this investigation, Ms. Marks gave a sworn statement (the "Marks Statement") detailing her telephone interception activities on March 25, 2002, in which Ms. Marks stated that, amidst other telephone monitoring activity, she intercepted and recorded Mr. Sweeten's calls at Mr. Taylor's request. (Pl.'s Br. Ex. H.) While at least two articles were published in local newspapers in April and June of 2002 referring to the Taylor investigation, the articles did not indicate that Taylor was being investigated for wiretapping activities, and instead referred only to "conduct unbecoming a township official." (Def. Middle's Br. Ex. V.) On November 1, 2002, Taylor "agreed to retire after admitting he misused confidential informants in investigations." (Pl.'s Br. Ex. I-3.) During the last week of August in 2002, Mr. Sweeten allegedly first learned of the contents of the Marks Statement when a private investigator named Joseph Gianatasio provided him with a copy of the statement. (Pl.'s Opp'n Br. Ex. C ¶ 3.)

E. Procedural History

Mr. Sweeten filed a motion for leave to file a late notice of tort claim, pursuant to N.J.S.A. 59:8-9, with the Superior Court of New Jersey, Cape May County, on January 24, 2003, which the court granted on March 3, 2003. (Pl.'s Br. Ex. L.) He subsequently filed a complaint in the instant litigation with this Court on July 22, 2004. On February 11, 2005, Middle Township and the Middle Township Police Department (the "Middle Defendants") filed a motion to dismiss in which they argued that Plaintiffs' complaint was time-barred by the statutes of limitations applicable to the claims they alleged [Docket Item 11]. The Court dismissed this motion without prejudice on July 21, 2005 [Docket Item 24] in order to afford the parties the opportunity to ...

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