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Frohner v. City of Wildwood

December 1, 2008


The opinion of the court was delivered by: Simandle, District Judge



I. Introduction

This dispute arises out of a series of events that took place.. in 2005 during the "Roar to the Shore Weekend," an annual motorcycle convention based in Wildwood, New Jersey. Plaintiff James A. Frohner was working as an undercover agent for the Federal Bureau of Investigation ("FBI") at the Roar to. the Shore Weekend in September 2005. On September 9, 2005, the individual Defendants, all of whom work for the Wildwood Police Department, began to suspect that Plaintiff was a motorcyclist impersonating an FBI agent, rather than an FBI agent disguised as a motorcyclist, and arrested Plaintiff. Plaintiff was released once the Defendants verified his credentials, but he alleges that he was injured as a result of Defendants' conduct during the arrest. Plaintiff filed suit, alleging that Defendants had violated his rights under federal and state law.

Presently before the Court are Defendants' motion for summary judgment [Docket Item 18] and Plaintiff's cross-motion for partial summary judgment [Docket Item 23]. For the reasons set forth below, the Court will grant in part and deny in part Defendants' motion, and will deny Plaintiff's cross-motion.


A. Facts

The Roar to the Shore Weekend is an annual motorcycle convention that takes place in Wildwood, New Jersey. (Frohner Dep. at 18.) Among the regular attendees at the Roar to the Shore Weekend are members of various motorcycle gangs, including the Hell's Angels and the Pagans. (Id.) Because of the regular presence of gang members at the event, the Roar to the Shore Weekend attracts to Wildwood not only motorcycle enthusiasts, but members of various law enforcement agencies as well, including employees of the Wildwood Police Department, the Cape May County Prosecutor's Office, the Atlantic County Prosecutor's Office, the New Jersey State Police, the Philadelphia Police Department, and the FBI. (Id. at 19-20.) In order to help detect and deter illegal activity at the event, some of these agencies send undercover officers dressed as motorcyclists. (Fisher Dep. at 31-32.)

Plaintiff was working in such an undercover capacity on September 9, 2005. (Frohner Dep. at 21.) Plaintiff, who had previously worked as a police officer for the Egg Harbor Township Police Department, began to work for the FBI's South Jersey Violent Crimes, Gangs and Guns Drug Task Force in 2002. (Id. at 16-17.) In September 2005, he was assigned to attend the Roar to the Shore Weekend while undercover. (Id. at 20.) On September 9, 2005, in order to blend in with the crowd, Plaintiff was wearing "jeans . . . , a multicolored shirt, [and] ratty sneakers," and had grown "a full goatee and a mustache." (Id.) Plaintiff also wore a band-aid across his nose. (Id. at 20-21.) He carried his FBI identification on his person and had his Egg Harbor Township Police Department identification in his vehicle. (Id.)

At approximately 4:30 p.m., Plaintiff was mingling with the crowd and walking south along Atlantic Avenue in Wildwood when he observed two people whom he suspected were members of the Pagans gang traveling in the opposite direction. (Pl.'s Br. Ex. C at 1.) Using his cellular telephone, Plaintiff contacted Sergeant Rick Foote of the New Jersey State Police to relay information about the suspected gang members. (Id.) A man on the street who overheard Plaintiff's telephone conversation about these Pagan gang members approached Plaintiff and, in a loud voice, accused Plaintiff of being a "cop." (Id. at 2.) Plaintiff denied this accusation, to which the man responded that Plaintiff must instead have been a member of the Hell's Angels sent to spy on the Pagans. (Id.) The man then brandished a knife, told Plaintiff that he "had no business being on Pagan territory," shouted obscenities at Plaintiff, and walked away. (Id.)

Seeking to avoid having to disclose his identity to the man who had accosted him, Plaintiff immediately approached two uniformed Wildwood police officers who had observed some of the encounter -- Officers Sullivan and Castro, (Defs.' Br. Ex. F at 1), who are not Defendants herein -- and informed them that he was working undercover for the FBI. (Pl.'s Br. Ex. C at 2.) Plaintiff also produced his FBI credentials for Officers Sullivan and Castro. (Id.) Plaintiff described his encounter with the knife-carrying man to the police officers, informed them that he did not wish to reveal to the man (whom he suspected was a member of the Pagans) that he was an undercover FBI agent, and asked the officers if they would assist him in identifying the man. (Id.) Officers Sullivan and Castro stated that they would attempt to identify the man, and Plaintiff departed the scene to avoid another similar encounter. (Id.) After their discussion with Plaintiff, Officers Sullivan and Castro contacted another Wildwood police officer, Patrolman David Romeo, and described their conversation with Plaintiff. (Defs.' Br. Ex. F at 1.) Patrolman Romeo began to search the crowd for the Pagan gang member. (Id.)

Approximately an hour later, Plaintiff returned to the location where Officers Sullivan and Castro were stationed to find out if they had any information about the man who had displayed the knife, and Officers Sullivan and Castro summoned Patrolman Romeo. (Id.) Patrolman Romeo, who had not located the gang member, arrived at the officers' station and observed Officers Sullivan and Castro speaking with Plaintiff. (Id.) Romeo recognized Plaintiff because earlier that evening, Plaintiff had approached Romeo and asked him if he knew Patrolwoman Vaino, who had worked at the Roar to the Shore Weekend the previous year but who had since moved away; Patrolman Romeo's only contact with Plaintiff earlier that evening had been to tell Plaintiff that Patrolwoman Vaino had moved to the South. (Id.)

Upon seeing Plaintiff speaking with Officers Sullivan and Castro, Patrolman Romeo asked to see Plaintiff's FBI credentials, which Plaintiff produced for inspection. (Id.) Patrolman Romeo, who was not certain whether the credentials were authentic or falsified, asked Plaintiff to describe his encounter with the Pagan gang member. (Id.) Plaintiff recounted his encounter with the knife-carrying man, including the fact that the man had initially overheard Plaintiff speaking on the phone with the New Jersey State Police. (Id.) Romeo explained to Plaintiff that they had been unable to locate the Pagan gang member, but stated that he would continue to search the area. (Id.)

As Patrolman Romeo indicated in the report he prepared the following day, he began to harbor doubts about whether Plaintiff was, in fact, an FBI agent.*fn1 (Id. at 2.) To test the authenticity of Plaintiff's story, Patrolman Romeo sought out the Tactical Patrol Unit of the New Jersey State Police in order "to confirm the story that the agent gave to [him] about [having been] talking to the State Police" when the Pagan gang member confronted him. (Id.) Patrolman Romeo spoke with State Police Trooper Hibschman, who "stated . . . that no one contacted him from the FBI or any other Troopers that were with him about watching a subject." (Id.) Apprised of Romeo's suspicions, Defendant Police Chief Fisher, who was present during the conversation between Romeo and Hibschman, instructed Romeo to "attempt to locate the agent and verify his identity through the mobile command center."*fn2 (Id.) Romeo then contacted the Wildwood police officers in the immediate area, including Defendant Murphy, to inform them that "the chief wanted the gentleman stopped . . . to verify who he was and the validity of his credentials." (Murphy Dep. at 35.) According to Defendant Murphy, Romeo indicated that he was "suspicious as to whether or not [Plaintiff] was a legitimate law enforcement officer." (Id. at 34.)

By this point, Plaintiff and his supervisor had determined that it would be best for him to leave the rally in order to avoid jeopardizing his ability to remain undercover. (Pl.'s Br. Ex. C at 3.) Plaintiff located his government-issued unmarked vehicle and began to drive away along Atlantic Avenue. (Id. at 4.) While Plaintiff was stopped at a red light, Defendant Murray recognized him based on the description from Romeo,*fn3 and approached Plaintiff's car along with two other police officers.*fn4

(Id.; Murphy Dep. at 38.)

Defendant Murphy approached the driver's side window and asked Plaintiff to produce his identification and credentials for inspection. (Frohner Dep. at 39.) Plaintiff, who kept his credentials in the door pocket of the driver's side door when driving, (Pl.'s Br. Ex. C at 4), began to reach down to retrieve his credentials. (Frohner Dep. at 39.) As Plaintiff was reaching down, Defendant Murphy shouted at Plaintiff, "keep your hands where I can see them." (Id. at 39-40.) Plaintiff, "[n]ot immediately understanding what was transpiring," continued to reach for his credentials in the door pocket, which prompted Defendant Murphy, who by this time had drawn his firearm, to again shout to Plaintiff to keep his hands in view. (Id. at 39-42.) Plaintiff complied with Defendant Murphy's second order and ceased reaching down to the door pocket. (Id. at 40.) Defendants Murphy and Adair and another unnamed officer then removed Plaintiff from his vehicle, put handcuffs on Plaintiff, and patted him down, at which point they removed the firearm Plaintiff kept at his ankle. (Id. at 42-46.) According to Plaintiff, as a result of the officers aggressively twisting his wrist and/or failing to "double lock" the handcuffs when applying them, Plaintiff's right wrist was seriously injured during the arrest.*fn5 (Id. at 46-48.) The arresting officers refused to loosen the handcuffs, notwithstanding Plaintiff's protests that they were too tight and were injuring his wrists. (Pl.'s Br. Ex. C at 6.) Plaintiff did not struggle while the officers attempted to handcuff him. (Frohner Dep. at 46.)

Once Plaintiff had been removed from the car, Defendant Fisher, who had arrived at the scene at some point during the arrest, removed Plaintiff's credentials from the side door pocket. (Fisher Dep. at 75.) In addition, after Plaintiff had been removed from the vehicle and placed under arrest but while the vehicle was still stopped in the middle of Atlantic Avenue, Defendant Murphy opened the center console in Plaintiff's automobile, observed magazine clips of firearm ammunition, and seized the ammunition.*fn6 (Murphy Dep. at 56; Frohner Dep. at 13.) Defendant Fisher then instructed Defendant Murphy to move Plaintiff's vehicle from the road and to park and lock the vehicle, which Defendant Murphy did. (Murphy Dep. at 54.)

Defendant Murphy and an officer named Patrolman McCarthy then transported Plaintiff to the police station in a police vehicle that had been called to the scene. (Id. at 59-60.) Defendant Fisher brought Plaintiff's credentials to the mobile command center, where he verified that Plaintiff was, indeed, an FBI agent. (Fisher Dep. at 76-77.) Plaintiff was released and driven to his vehicle shortly thereafter, once Defendant Fisher had verified the authenticity of Plaintiff's credentials and that Plaintiff was the person authorized to possess the credentials. (Pl.'s Br. Ex. C at 7-8.)

Following his arrest on September 9, 2005, Plaintiff has experienced pain and numbness in his right wrist and has had two surgeries to address these symptoms. (Frohner Dep. at 68.) He attributes these injuries to the force the officers used in seizing him and the inappropriately tight manner of applying the handcuffs to Plaintiff that evening. (Id. at 42.) Finally, Plaintiff testified during his deposition that he did not believe that any of Defendants' conduct was motivated by personal malice. (Id. at 67.)

B. Procedural History

On February 8, 2007, Plaintiff filed a Complaint in the Superior Court of New Jersey naming the City of Wildwood (the "City"), Fisher, and numerous John Doe officers as Defendants [Docket Item 1]. Defendants removed the matter to this Court on March 12, 2007. Plaintiff filed an Amended Complaint naming Murphy and Adair as Defendants on June 29, 2007 [Docket Item 7]. In his Amended Complaint, Plaintiff asserts claims of false arrest, assault, and battery under New Jersey common law (Court I); claims premised upon Defendants' alleged violation of Plaintiff's due process rights, his right to be free from unlawful searches and seizures, and his right to be free from cruel and unusual punishment under the United States Constitution (Count II); a claim against the City for its failure to adequately screen and/or train its employees (Count III); and a claim against the City for instituting an unlawful policy or custom that resulted in his injuries (Count IV).

After a period of discovery, the parties filed the cross-motions for summary judgment presently under consideration, to the merits of which the Court now turns.


A. Standard of ...

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