The opinion of the court was delivered by: Hon. Jerome B. Simandle
This matter is before the Court on the combined motion of Defendants Nicholas Carlini, Paula T. Dow, Joseph R. Fuentes, PhD, Kristofer Gertsen, Erik Lindner, Gregory Manuel and Thomas O'Connor (collectively "Defendants") to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6) and motion to strike pursuant to Fed. R. Civ. P. 12(f). [Docket Item 39] The Plaintiffs James Coles, Louis C. Degailler, and Joseph Ballinger (collectively "Plaintiffs") filed opposition to this motion. The court heard oral argument on November 30, 2011.
This action arises out of a traffic stop which occurred on July 30, 2009 on Route 70 in Southampton, N.J. The Plaintiffs were riding their motorcycles to a charity fundraiser for a sick child along with three other motorcyclists. The Plaintiffs were wearing jackets with symbols referencing their membership in certain motorcycle organizations, commonly referred to as "colors." The Plaintiffs argue they were impermissibly stopped by the police because they were wearing their colors. The Defendants maintain that the Plaintiffs were stopped because they were wearing improper helmets.
For the reasons discussed herein, the Defendants' motion to dismiss will be granted in part and denied in part and the Defendants' motion to strike will be denied.
A. Statement of the Facts
On July 30, 2009, six motorcycle club members, including the three Plaintiffs, were riding their motorcycles as a group near Red Lion, New Jersey. (Am. Comp. ¶ 1.) During this ride, the Plaintiffs were wearing jackets that bore logos, and the names of their motorcycle clubs on the back. (Id. ¶ 2)
These logos are known as "colors." (Id.) Colors are collective membership marks, which are a form of trademarks, owned by motorcycle clubs. (Id. at ¶ 44.) The membership marks are worn on the back of jackets or vests to indicate membership in a motorcycle club. (Id.) Plaintiffs James Coles and Louis DeGallier are members of the Pagan Motorcycle Club and on July 30, 2009, were wearing the Pagan's Motorcycle Club Colors. (Id. at ¶ 54.) Plaintiff Joseph Ballinger is a member of the Tribe Motorcycle Club and on July 30, 2009, was wearing Tribe Motorcycle Club Colors. (Id. at ¶ 56.) The other three remaining motorcyclists in the group were also wearing colors. (Id. at ¶¶ 55-58.)
The Plaintiffs were on their way to a charity fund raiser at the Woodshed Beef & Beer in Vincentown, New Jersey. (Id. at ¶ 2.) The fundraiser was held by another motorcycle club in order to raise funds for an ill child of one of its members. (Id. at ¶ 58.)
On their way to the charity fund raiser, the Plaintiffs' group passed a New Jersey State Police car, which was parked at a gasoline station on Route 206 in Southampton, New Jersey. (Id. at ¶ 59.) The police car was occupied by Defendant Trooper Carlini ("Carlini"), who was a senior trooper, and Defendant Trooper Manuel ("Manuel"), a junior trooper who was receiving onthe-job training from Carlini. (Id. at ¶ 60.)
None of the motorcyclists or their motorcycles displayed anything visibly which violated the law. (Id. at ¶ 62.) However, the police car pulled out of the gas station and followed the Plaintiffs' motorcycle group for approximately five miles. (Id. at ¶¶ 63-64.) Troopers Carlini and Manuel then activated the emergency or enforcement lights on their police car and directed the six motorcycles to pull off to the shoulder of the road on State Route 70. (Id. at ¶ 65.) No violations of the law were visible or capable of being observed by Carlini and Manuel before the traffic stop. (Id. at ¶ 61.)
Shortly after the Plaintiffs' group had stopped and pulled over to the side of the road, Troopers Carlini and Manuel manually activated a video camera which video taped the traffic stop. (Id. at ¶ 66.) The New Jersey State Police agreed to make video tape recordings of all traffic stops as a result of a court approved settlement in United States v. State of New Jersey, Civil No. 99-0597, which was in full force and effect on July 30, 2009. (Id. at ¶¶ 67-68.) According to this consent decree, the New Jersey State Police were required to begin recording a traffic stop at the time they signaled motorists to stop. (Id. at ¶ 69.) Here, Troopers Carline and Manuel began recording after they had signaled the Plaintiffs' group to stop and the group was already pulled over. (Id.)
After the Plaintiffs' group was pulled over, the radio dispatcher reported to Troopers Carlini and Manuel that there were "three different chapters coming down (Route) 530." (Id. at ¶ 75.) Carlini then reported to the dispatcher, "I got three Pagan's, a Tribe and two unknowns." (Id. at ¶ 77.)
Trooper Carlini then exited the police car and approached the group. Carlini told the group that, "you can all face forward." (Id. at ¶ 79.) Carlini then stated, "None of you have proper helmets." (Id. at ¶ 81.) Carlini made this declaration without inspecting, either internally or externally, any of the Plaintiffs' group's helmets. (Id. at ¶ 82.)
Trooper Carlini then told the group to "Stay on your bikes" and both Carlini and Manuel returned to the police car. (Id. at ¶¶ 87-88.) Trooper Carlini reported to dispatch that he had "Four Pagans, a Tribe and another guy with no colors." (Id. at ¶ 91.) Trooper Carlini then mentioned the section of the traffic code that he intended to use to write the Complaint-Summonses as "4-14.3q." (Id. at ¶ 92.) This citation applies to helmets required for operation of a motorized bicycle, not a motorcycle. (Id. at ¶ 94.) Trooper Carlini confirmed this citation with the dispatcher four times. (Id. at ¶¶ 92, 100, 101, 110.)
Trooper Carlini stated the reason for the helmets being unauthorized under 4.14-3q is that, "They have to wear visors." (Id. at ¶ 122.)
Trooper Carlini then requested "wants and warrants" on all six of the license tags and motorcyclists by stating, "Now here comes the bad part, I am going to need lookup on all of them . . . . warrant checks . . . . we are not going anywhere." (Id. at ¶ 102.) Trooper Carlini then reported his location to the dispatcher. (Id. at ¶ 106.) The dispatcher then informed Carlini and Manuel that there were 90 bikes at the Woodshed bar. (Id. at ¶ 107.)
Carlini and Manuel were then joined by Defendants Troopers Gertsen and Lindner who stated that the Plaintiffs' group would have run if they had any contraband. (Id. at ¶ 111.) Troopers Gertsen and Linder then informed Carlini and Manuel that "one guy I pulled over about a mile up . . . . I couldn't see if he was wearing anything." (Id. at ¶ 114.)
Defendant Trooper O'Connor then joined Troopers Carlini, Manuel, Gertsen and Lindner at the scene. (Id. at ¶ 116.) Either Gertsen, Lindner or O'Connor commented, "These are good hardworking folk. They're having a benefit for somebody's kid, man, why did you have to mess with them?" (Id. at ¶ 119.)
In his police car, Trooper Carlini asked, "Are we going to use Blue and Gold are the only colors that ride these roads?" (Id. at ¶ 124.) Blue and gold refer to the colors of the New Jersey State Trooper uniform. (Id. at ¶ 126.) Trooper Carlini then confirms that "We use blue and gold are the only colors that are allowed on this road." (Id. at ¶ 127.)
Troopers Carlini and Manuel then exited the car and asked Kelly Ballinger, the wife of Plaintiff Joseph Ballinger who was riding on her husband's motorcycle, for her license. (Id. at ¶ 130.)
Dispatch informed Trooper Carlini that Plaintiff Joseph Ballinger had a suspended license for non-payment of an insurance surcharge. (Id. at ¶ 132.) Plaintiff Joseph Ballinger had paid the insurance surcharge and the database was incorrect. (Id. Ex. 20.)
All the other motorcyclists had valid licenses and no one had an outstanding warrant. (Id. at ¶ 132.) Trooper Carlini requested dispatch to see whether Kelly Ballinger had a motorcycle endorsement and Dispatch informed that no endorsement was showing. (Id. at ¶ 134.)
Trooper Gertsen, Lindner or O'Connor then asked, "When we eventually go out there, what's our game plan for turning everything inside out? Do we give like one big speech, or we tell them one at a time?" (Id. at ¶ 135.) "Inside out" refers to the policy or practice of turning a jacket or vest inside out, to hide the motorcycle club colors. (Id. at ¶ 137.) Trooper Carlini responded by saying, "Blue and gold are the only colors allowed on this road." (Id. at ¶ 139.)
Troopers Carlini and Manuel then left their police cars and approached the Plaintiffs' group. (Id. at ¶ 143.) Trooper Manuel had written and signed all the summonses at the direction of Carlini. (Id. at ¶ 144.) Seven summonses were served on all of the motorcyclists, including the Plaintiffs. (Id. at ¶ 146.)
After the summonses were served, Trooper Carlini spoke to the entire group of motorcyclists and said, "Now you are all going to take your jackets off, because on these highways these are the only colors (indicating his blue and gold uniform) you wear." (Id. at ¶ 149.)
Trooper Carlini then said to Plaintiff Ballinger, "You are a suspended driver, so you're getting a ticket as well for driving while suspended and I got no one else for this bike." (Id. at ¶ 156.)
Trooper Carlini then stated, "So you are going to take your jackets off, or I'm going to tow this bike." (Id. at ¶ 158.) Trooper Carlini then said, "You want to take your jackets off? If not, this bike is getting hooked." (Id. at ¶ 159.) The Plaintiffs did not remove their jackets, which bore their motorcycle club colors. (Id. at ¶ 161.) Carlini then stated, "I can stand here all night as well." (Id. at ¶ 162.)
Then Carlini said, "I'm going to call for a tow for the impound." Carlini returned to the police car and told dispatch, "You can start the first available for the impound of this motorcycle." (Id. at ¶ 166.) At this time, the motorcycle was parked on the shoulder of the road. (Id. at ¶ 167.)
Plaintiff Coles requested a complaint form, which was handed to him by Carlini, and then requested the name of the trooper who handed him the form. (Id. at ¶ 172.) Trooper Carlini told Plaintiff Coles, "It's on the ticket." (Id. at ¶ 173.) In actuality, only Trooper Manuel's name was on the ticket as he was the one who issued the tickets. (Id.)
Then Carlini announced to the group that "Youse [ph] five are free to leave." (Id. at ¶ 174.) The two remaining members of the group were Plaintiff Ballinger and his wife, Kelly Ballinger. (Id. at ¶ 175.) At this point, the traffic stop had lasted a total of 51 minutes, 41 minutes of which the Defendants Carlini and Manuel were in their police car. (Id. at ¶ 176.)
Four of the seven motorcyclists went. Both the Ballingers and Bob Fleming, one of the members of the group, stayed behind. (Id. at ¶ 178.) Before the impound arrived, a friend of Plaintiff Ballinger, Walt Smith, arrived in a pick up truck, driven by George Fulmer, and removed the motorcycle. (Id. at ¶¶ 168, 184.) During the traffic stop, Mr. Smith, a fellow member of the Pagan's Motorcycle Club, had passed the Plaintiffs and was stopped by another New Jersey State Trooper. (Id. at ¶ 181.) This trooper stated to Mr. Smith that he was being stopped for no reason, except to check his license, registration and insurance documents. (Id. at ¶ 181.) When Mr. Smith arrived, Defendant Troopers again examined his license and found that it had a valid motorcycle endorsement. (Id. at ¶ 184.)
Trooper Carlini then canceled the order to impound the motorcycle and permitted Mr. Smith to drive the bike away. (Id. at ¶¶ 186-87.) Plaintiff Ballinger was driven away in the pick up by Mr. Fulmer, and Kelly Ballinger was driven away as a passenger on the motorcycle with Mr. Smith. (Id. at ¶ 187.) At this point, the traffic ...