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Nunez v. Pachman

August 26, 2009


Appeal from the United States District Court for the District of New Jersey (D.C. Civil No. 06-cv-05519) District Judge: Honorable Faith S. Hochberg.

The opinion of the court was delivered by: Rendell, Circuit Judge.


Submitted Under Third Circuit LAR 34.1(a) July 13, 2009

Before: RENDELL, FUENTES and ROTH, Circuit Judges.


This appeal from the District Court's grant of summary judgment in favor of defendants, and against plaintiff Francisco Nunez, requires us to decide whether disclosure of an expunged criminal record violates the right of privacy afforded by the Due Process Clause of the U.S. Constitution. Relying on a footnote in our opinion in Fraternal Order of Police, Lodge No. 5 v. City of Philadelphia, 812 F.2d 105, 117 n.8 (3d Cir. 1987), the District Court concluded that no cognizable privacy interest lies in an expunged criminal record, which may linger in police blotters, court dockets, and other publicly available records. On appeal, Nunez urges that New Jersey law mandates removal of an expunged record from all public documents and thus creates a reasonable expectation of privacy in this information. We conclude, however, that because expungement is available only after a minimum statutory period of ten years has elapsed, and because references to a defendant's criminal conduct may persist in public news sources after expungement, the information expunged is never truly "private." Even if the state recognizes a privacy interest in an expunged criminal record, we hold that such an interest is not cognizable under the federal constitution. Accordingly, we will affirm the District Court's grant of summary judgment.

Nunez's core contention is that defendants accessed and disclosed his criminal records, in violation of an expungement order and N.J.S.A. 2C:51-2(a), which restricts access to, and disclosure of, expunged materials. In 2005, Nunez, an employee of the City of Union City ("City"), filed a grievance against the City, alleging improper denial of a vacation request. Representing the City in arbitration proceedings related to the grievance, Defendant Martin R. Pachman learned in the course of interviews with City employees that Nunez had pled guilty to a gun offense several years earlier. Because a weapons conviction would likely preclude Nunez from prosecuting his grievance complaint, Pachman sought to verify the information by obtaining Nunez's criminal records from the City police department.*fn1 At the ensuing arbitration proceeding, Pachman also "disclosed" the records by cross-examining Nunez about the weapons conviction to impeach his credibility.

Nunez subsequently filed suit under 42 U.S.C. § 1983 against Pachman, the City, and the Mayor, who he alleges was essentially targeting him because Nunez did not support him politically. Nunez contends that the disclosure of his weapons conviction, in violation of the prior expungement order, violated his right of privacy under the United States and New Jersey Constitutions. Rejecting Nunez's claim, the District Court concluded that "an arrest record, even one that is expunged, warrants no privacy protection under the Constitution." A. 12.*fn2 After granting judgment in favor of defendants on Nunez's privacy claim -- the sole federal law violation alleged*fn3 -- the Court dismissed Nunez's remaining claims, all of which arose under New Jersey state law, for lack of subject matter jurisdiction under 28 U.S.C. § 1367(c)(3). Our review of the District Court's grant of summary judgment is plenary. AT&T Corp. v. JMC Telecom, LLC, 470 F.3d 525, 530 (3d Cir. 2006), cert. denied, 551 U.S. 1103 (2007). Summary judgment is appropriate only if there are no genuine issues of material fact, and the movant is entitled to judgment as a matter of law. Id.

Initially, Nunez contends that disclosure of his weapons conviction violated his right of privacy under the Due Process Clause of the Fourteenth Amendment. Relying on our decision in Fraternal Order of Police, the District Court rejected any privacy interest in an expunged criminal record. In Fraternal Order of Police, we concluded in a footnote that the possibility of expungement of arrest records did not provide these records with privacy protection: "The ACLU suggests that arrest records are entitled to privacy protection because the record of an arrest may be expunged if there has been no disposition. . . . However, these [expungement] provisions cannot be viewed as removing arrest information from the public record since it remains on police blotters and court dockets." 812 F.2d at 117 n.8 (emphasis added). On appeal, Nunez attempts to distinguish the Pennsylvania expungement statute analyzed in Fraternal Order of Police from its New Jersey counterpart, which mandates expungement of a criminal record from all public documents, including police blotters and court dockets. Compare N.J.S.A. 2C:52-1 with 18 Pa. C.S. §§ 9122(e) and 9104(a).*fn4 Accordingly, Nunez maintains that the District Court's reliance on Fraternal Order of Police is misplaced.

Notwithstanding distinctions between the New Jersey and Pennsylvania statutes identified by Nunez, we reject his constitutional theory on two grounds. First, prior to expungement, a criminal record is publicly available for a minimum period of ten years under New Jersey law. N.J.S.A. 2C:52-2(a).*fn5 News accounts of a defendant's criminal acts, moreover, may persist after obliteration of formal records.*fn6 Accordingly, this information is never truly private.

Second, even if we accept Nunez's assertions that the expungement statute accomplishes a complete removal of a criminal record from the public domain, and that New Jersey law thus creates a reasonable expectation of privacy in this information, Nunez fails to state a claim under the federal constitution,*fn7 which protects against public disclosure only "highly personal matters" representing "the most intimate aspects of human affairs." Eagle, 88 F.3d at 625 (quoting Wade v. Goodwin, 843 F.2d 1150, 1153 (8th Cir. 1988)).*fn8 Indeed, the constitutional right of privacy, which courts have been "reluctant to expand," id., shields from public scrutiny only that information which involves "deeply rooted notions of fundamental personal interests derived from the Constitution." Mangels v. Pena, 789 F.2d 836, 839 (10th Cir. 1986) (citing Regents of the Univ. of Mich. v. Ewing, 474 U.S. 214, 228-30 (1985) (Powell, J., concurring)).*fn9 In this respect, the federal right of privacy is significantly narrower than the right of privacy protected by state tort law.*fn10

Here, Nunez does not dispute the established precept that criminal records, including police reports, indictments, guilty verdicts, and guilty pleas, are inherently public--not private--documents and are thus beyond the purview of the Due Process Clause.*fn11 Nor does Nunez maintain that an "expunged" record possesses inherent attributes warranting special constitutional treatment. There is no argument, for example, that because expungement is available solely to first-time offenders,*fn12 an expunged record is somehow of lesser public consequence, or implicates more sensitive subject matter, than a criminal record ineligible for expungement. A right of privacy in the former is not supported by, much less "deeply rooted" in, the customs and traditions of this nation.*fn13 To the contrary, the historic right of public access to criminal records applies in equal measure to the first-time offender and the career criminal. See also Nilson, 45 F.3d at 372 ("[A] validly enacted law places citizens on notice that violations thereof do not fall within the realm of privacy. Criminal activity is thus not protected by the right to privacy.") (internal citation omitted). In short, no attributes inhere in an expunged record entitling it to special constitutional protection.

Nunez, nonetheless, insists that the New Jersey expungement statute "hardens the right to privacy into a constitutional right." Appellant's Br. at 2. New Jersey law, however, is not determinative of the scope of the constitutional right of privacy. A decision of the Tenth Circuit Court of Appeals, rejecting an identical argument, is persuasive:

Mr. Nilson argues that the Utah expungement statute created the legitimate expectation of privacy, and that Sergeant Brimhall's violation of the statute consequently implicated his privacy rights. We disagree. Substantive due process rights are founded not upon state law but upon "deeply rooted notions of fundamental personal interests derived from the Constitution." While state statutes and regulations may inform our judgment regarding the scope of constitutional rights, they "fall far short of the kind of proof necessary" to establish a reasonable expectation of privacy. Mere allegations that an official failed to abide by state law will not suffice to state a constitutional claim. The disclosed information itself must warrant constitutional protection. We have already concluded that Mr. Nilson's ...

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