IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY
December 20, 2012
LISA CRESS, ON BEHALF OF HERSELF, AND AS GUARDIAN FOR MINOR K.C. AND AS GUARDIAN FOR MINOR C.C., AND DANIEL LOMBARDI, PLAINTIFFS/COUNTER-DEFENDANTS,
VENTNOR CITY, THEODORE BERGMAN, DOUGLAS BIAGI, MICHAEL MILLER, SCHALLUS, JOHN DOE #1-10(MASKED MEN IN BLACK), JAMES DONALDSON, JOSEPH BONSALL, JAY WOODS, JASON RZEMYK, DAVE DRUDING, STEVEN SWANKOSKI, AND TIM COLELLA, DEFENDANTS/CROSS-CLAIMANTS/CROSS-DEFENDANTS.
The opinion of the court was delivered by: Hillman, District Judge
This case involves allegations of constitutional and state law violations by defendant police officers in connection with the execution of a "no-knock" search warrant executed at night upon plaintiffs at their home. Presently before the Court are the following motions: a) Motion to seal confidential materials and for summary judgment by defendants Ventnor City, Theordore Bergman, Michael Miller, and Jason Rzemyk ("Ventnor defendants")*fn1 ; b) Motion for summary judgment by defendants Joseph Bonsall, Tim Colella, James Donaldson, Dave Druding, Steven Swankoski, and Jay Woods (Egg Harbor Township police department officers who are members of the Atlantic County Emergency Response Team ("ACERT")); c) Motion for sanctions against the Ventnor defendant by plaintiffs Lisa Cress and Daniel Lombardi; and d) Cross-motion for sanctions by the Ventnor defendants. For the reasons expressed below, the parties' motions will be granted in part and denied in part.
According to plaintiffs*fn2 , on March 15, 2008, at approximately 10:00 p.m., Lisa Cress ("Cress"), Daniel Lombardi ("Lombardi"), eleven-year-old C.C., and twelve-year-old K.C., were asleep in their home when they were awakened by the defendants' execution of a no-knock search warrant. During the course of the entry and apprehension of Lombardi, the target of the warrant, plaintiffs claim that defendants: (1) used flash sound diversionary devices (NFDs); (2) shattered glass; (3) stormed their home with masks and carrying assault rifles; (4) struck Cress in the forehead with a metal object, trampled over her, and dragged her down the stairs; (5) apprehended Lombardi by throwing him into a glass table, beating and kicking him, and rubbing his face and head into broken glass; and (6) kept the traumatized children separated from their parents for 90 minutes. Plaintiffs contend that this conduct, among other alleged actions of defendants, constitutes excessive force in violation of their Fourth Amendment rights, and violates various state laws.
In addition to the claims based on the execution of the search warrant, plaintiffs claim that the search warrant itself was invalid because it was not based on probable cause. According to the search warrant affidavit, probable cause was based on a drug investigation that used two confidential informants. The search warrant affidavit claims that CI-1 purchased drugs from Lombardi on two occasions, and that CI-1 and CI-2 provided information that Lombardi was currently in possession of a firearm. Plaintiffs contend that the purported drug buys were fabricated, and the use of confidential informants was fabricated.
During the course of discovery in this case, plaintiffs requested that the identities of the two confidential informants be revealed. After briefing and oral argument, the Court granted plaintiffs' request, and permitted plaintiffs' counsel to take the depositions of the two CIs. The Court also ordered that the names of the CIs would remain under seal, and that the transcripts of the depositions would be redacted, until the Court subsequently addressed the continued propriety of keeping the identities of the CIs protected.
Presently before the Court are the motions by the two groups of defendants for summary judgment in their favor on all of plaintiffs' claims against them. Also pending are cross-motions for sanctions by plaintiffs and the Ventnor defendants. On November 15, 2012, oral argument was held on these motions, and the following analysis supplements the Court's rulings made on the record.
Jurisdiction is proper pursuant to federal question jurisdiction, 28 U.S.C. § 1331, 28 U.S.C. § 1343(a)(3)(4), and 42 U.S.C. § 1983. Plaintiffs further invoke the pendent and supplemental jurisdiction of this Court to hear and decide claims arising under state law pursuant to 28 U.S.C. § 1367.
B. Summary Judgment Standard
Summary judgment is appropriate where the Court is satisfied that the materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations, admissions, or interrogatory answers, demonstrate that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986); Fed. R. Civ. P. 56(a).
1. Sanctions motions
The two CIs testified in their depositions that they did not provide the information about Lombardi that served as the basis for the search warrant. CI-2 testified that she did not act as a confidential informant for any police department regarding Lombardi, and she never informed any police officer in December 2007 that Lombardi was in possession of a handgun.*fn3 CI-1 testified that he never worked as a confidential informant for the Ventnor City Police Department, he never purchased drugs from Lombardi, and he never observed Lombardi with any weapons.*fn4
In support of their motion for summary judgment, the Ventnor defendants argue that CI-1 was untruthful in his deposition, his testimony should be disregarded, and that the search warrant was properly supported by probable cause - i.e., CI-1's information regarding Lombardi and CI-1's participation in controlled drug buys with Lombardi.*fn5 In addition to that argument, the Ventnor defendants presented a purported third confidential informant - as "Exhibit U" - to further support the validity of probable cause and the entry of summary judgment in their favor.*fn6 The Ventnor defendants' presentation of this third confidential informant resulted in plaintiffs seeking sanctions against the Ventnor defendants in the form of criminal contempt, civil contempt, and Rule 11 sanctions.
As the Court expressed on the record, plaintiffs' motion for sanctions will be denied without prejudice. Although there appears to be a disturbing set of facts regarding the issuance of the no-knock search warrant, and the defendants have not been able to present a consistent, coherent story on how the information that served the basis for the search warrant was obtained, including an 11th-hour presentation of a third source who has since disclaimed that he made any statements regarding Lombardi to the police,*fn7 the Court will not impose any sanctions against defendants at this time. The information contained in Exhibit U, although not provided until June 2011, was nonetheless disclosed to plaintiffs prior to the end of discovery.*fn8 Moreover, even though the typical sanction imposed in similar matters is the exclusion of the offending evidence at trial, plaintiffs, understandably so, do not seek such a sanction in this case.*fn9
Thus, the Court will not impose any sanctions against the Ventnor defendants now, but will not foreclose plaintiffs from obtaining sanctions in the future should other sanctionable conduct come to light.
2. Defendants' summary judgment motions
The Court held on the record that the Ventnor defendants' motion for summary judgment was denied. Issues of disputed material fact abound with regard to plaintiffs' claims against the Ventnor defendants arising from their obtaining and executing the no-knock search warrant. Accordingly, plaintiffs' claims against the Ventnor defendants must be submitted to a jury.*fn10
In contrast, as the Court stated at the hearing, whether summary judgment is appropriate as to the Egg Harbor defendants is a separate question. The Egg Harbor individual defendants (members of ACERT who planned and conducted the no-knock search) incorporate the Ventnor defendants' arguments in support of the validity of the no-knock warrant. Should summary judgment be denied on that issue, the Egg Harbor defendants contend that they are entitled to qualified immunity*fn11 because they had no involvement in the investigation led by the Ventnor police that was the basis for the warrant - i.e., they reasonably believed they were assisting with the execution of a facially valid warrant. They also argue that their actual execution of the warrant was reasonable.*fn12 The Egg Harbor defendants further argue that plaintiffs do not make any substantiated allegations against the ACERT officers individually, instead lumping them all together. Except for not contesting that the Egg Harbor defendants reasonably believed that they were proceeding pursuant to a valid search warrant, plaintiffs have opposed all of the Egg Harbor defendants' other arguments.*fn13
After a careful examination of the record, the Court finds that material issues of disputed fact exist as to the Egg Harbor defendants' conduct as it relates to the execution of the search warrant, particularly as to the apprehension of Lombardi and the stairway injury sustained by Cress. Even though plaintiffs cannot specify which defendant inflicted what harm, which plaintiffs explain is due to the nature of defendants' conduct and the fact they were all dressed in black with masks, plaintiffs' testimony of the events paired with each defendant's testimony of his own actions provides sufficient specificity for the jury to (1) determine each officer's actions,*fn14 and (2) assess the credibility of each party's testimony. After the jury resolves these relevant factual disputes through the use of special interrogatories,*fn15 the Court will then be capable of deciding whether or not the law clearly permitted or prohibited the Egg Harbor defendants' conduct. Accordingly, the Egg Harbor defendants' motion for summary judgment will be denied on those issues.*fn16
3. Whether the identities of the confidential informants should be unsealed
Previously, after balancing the interests articulated in Cashen v. Spann, 334 A.2d 8, 15 (N.J. 1975), cert. denied, 423 U.S. 829 (1975), the Court determined that the identities of CI-1 and CI-2 should be revealed to plaintiffs' counsel so that they could take the depositions of the two informants, and that plaintiffs could use the content of those depositions to support their claims. The Court also held that their identities should remain under seal, and their names and any other identifying information should be redacted. (See Docket Entries 110 and 167.) The Court reserved decision on the issue of whether and how the identities of CI-1 and CI-2 should be revealed at trial.
At this stage in the case, there are two main issues concerning the identities of the confidential informants. The first issue concerns whether CI-1 or CI-2 - and more recently CI-3 - are actually confidential informants entitled to protection. The second issue is how to proceed at trial should the informants' identities remain protected.
To answer the first question, Cashan advises that in evaluating "the likelihood that the evidence about or testimony by the informant will be necessary to plaintiffs' case," a court "should consider the risk of possible prejudice to pending or future prosecutions as well as the danger that the informant may be exposed to physical harm, harassment, or other untoward consequences." Cashen, 334 A.2d at 16. In this case, all three "confidential informants" have disclaimed that they actually served as confidential informants with regard to Lombardi. If these statements were undisputed by all parties, these individuals would not be entitled to, or require for their protection, the anonymity provided by the informer's privilege. That is not the case here, however.
Whether to reveal the identities of these three witnesses is complicated by several considerations: (1) the Ventnor defendants have provided a "confidential informant advisement form" signed by CI-1 (Ex. G to Mot. Summary Judgment);*fn17 (2) CI-2 testified that she has served as a confidential informant for other towns in other matters (Ex. 8 to Pl.'s Opp. to Ventnor Def.'s S.M.J.); and (3) CI-3 states in an affidavit provided to plaintiffs' counsel that he never worked as a confidential informant for the Margate Police Department, but it is unknown whether he has served as a confidential informant for any other police department (Docket No. 173).
Because the Court does not wish for any of these three individuals to be "exposed to physical harm, harassment, or other untoward consequences" as the result of revealing their identities at this time, and to assess their own views on this subject, the Court will conduct a sealed Rule 104 hearing at which the informants will be produced for examination by the parties and the Court. Thereafter the parties will articulate a basis, supported by case law and other authorities, for whether the three purported confidential informants' identities should remain under seal, and if so, how the parties propose handling their confidential identities during trial.
Based on the foregoing:
(1) the case will proceed to trial on plaintiffs' constitutional and state law claims against all defendants, except plaintiffs' claims against the Egg Harbor defendants relating to the securing of the search warrant, the confinement of the minor children, and for slander;
(2) no sanctions will be imposed at this time;
(3) the deposition of Christopher Koch will not be permitted;
(4) the parties shall inform the Court about the status of defendant "Schallus, Ventnor City Police Officer";
(5) the Court will set this matter down for a Rule 104 hearing with testimony from the alleged informants to be taken under seal; and
(6) the parties shall thereafter separately brief the Court as to the propriety of continuing the protection of the identities of the three purported confidential informants.
An appropriate Order will be entered.
NOEL L. HILLMAN, U.S.D.J.