Filed: Nov. 22, 1995
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 1995 Decisions States Court of Appeals for the Third Circuit 11-22-1995 Orsatti v. New Jersey State Police Precedential or Non-Precedential: Docket 94-5757 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1995 Recommended Citation "Orsatti v. New Jersey State Police" (1995). 1995 Decisions. Paper 295. http://digitalcommons.law.villanova.edu/thirdcircuit_1995/295 This decision is brought to you for free and open access by the Opinion
Summary: Opinions of the United 1995 Decisions States Court of Appeals for the Third Circuit 11-22-1995 Orsatti v. New Jersey State Police Precedential or Non-Precedential: Docket 94-5757 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1995 Recommended Citation "Orsatti v. New Jersey State Police" (1995). 1995 Decisions. Paper 295. http://digitalcommons.law.villanova.edu/thirdcircuit_1995/295 This decision is brought to you for free and open access by the Opinions..
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Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit
11-22-1995
Orsatti v. New Jersey State Police
Precedential or Non-Precedential:
Docket 94-5757
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1995
Recommended Citation
"Orsatti v. New Jersey State Police" (1995). 1995 Decisions. Paper 295.
http://digitalcommons.law.villanova.edu/thirdcircuit_1995/295
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 94-5757
ARNOLD ORSATTI, JR. and REBECCA ORSATTI,
Appellees
v.
NEW JERSEY STATE POLICE; DAVID V. BRODY,
Deputy Attorney General of the State of New
Jersey; JOSEPH GUZZARDO, New Jersey State
Police Officer; ROBERT KIRVAY, New Jersey
State Police Officer; ALBERT BLACK; and
CLINTON L. PAGANO, Former Superintendent of
New Jersey State Police,
ROBERT KIRVAY and JOSEPH GUZZARDO,
Appellants.
On Appeal from the United States District Court for the District
of New Jersey
(D.C. Civil No. 91-3023)
Argued September 20, 1995
Before: BECKER and COWEN, Circuit Judges, and LANCASTER,
District Judge.1
(Opinion Filed: November 22, l995
1
The Honorable Gary L. Lancaster, United States District
Judge for the Western District of Pennsylvania, sitting by
designation.
1
Carl Greenberg, Esq., (Argued)
Darryl Beckman, Esq.
Budd, Larner, Gross, Rosenbaum
Greenberg & Sade
150 J.F.K. Parkway, CNN 1000
Short Hills, NJ 07078
Attorneys for Appellant Robert Kirvay
George F. Kugler, Esq.,
(Argued)
John C. Connell, Esq.
Archer & Greiner
One Centennial Square
Haddonfield, NJ 08033
Attorneys for Appellant Joseph Guzzardo
Louis M. Barbone, Esq.,
(Argued)
Lynn Marie Handler, Esq.
Jacobs & Barbone
1125 Pacific Avenue
Atlantic City, NJ 08041
Attorneys for Appellees Arnold Orsatti,
Jr. and
Rebecca Orsatti
OPINION OF THE COURT
GARY L. LANCASTER,
District Judge.
This case arises under the Civil Rights Act of 1871, 42 U.S.C. § 1
Plaintiff-appellee, Arnold Orsatti, Jr., alleges that he was arrested with
probable cause in violation of his Fourth Amendment right to be free f
unreasonable seizure. Defendant-appellants, New Jersey State Police Offi
Robert Kirvay and Joseph Guzzardo, appeal from the district court's order deny
their joint motion for summary judgment. The officers contend that the distr
court erred because they
2
are shielded from Orsatti's claim by the doctrine of qualified immunity.
Because we find that the undisputed material facts of record establish t
it was objectively reasonable for the officers to conclude that they had proba
cause to arrest Orsatti, we hold that the officers are immune from Orsatti's cla
Accordingly, we reverse.
I.
The complete factual and procedural background of this case is considera
more complex than the court's treatment here. What follows, however, are th
facts and procedures material to the issue on appeal.
In December of 1988, New Jersey State Police began an investigation, n
"Operation Comserv," into alleged bribery, corruption, and other misconduct
Atlantic City, New Jersey public officials. Officers Kirvay and Guzzardo were
charge of the investigation; however, the principal operative was Albert Black
government confidential informant. The investigation culminated on July 27, 19
with the arrest of eight individuals, including Orsatti.
Orsatti and the others were arrested pursuant to criminal complaints
warrants issued by the Superior Court of New Jersey. In the aggregate, th
criminal complaints alleged a variety of corrupt acts. However, the compla
issued against Orsatti charged him only with official misconduct under N.J. St
Ann. 2C:30-2 and conspiracy to commit official misconduct under N.J. Stat. A
2C:5-2, and the complaint related only to his role in attempting to acquire
Black a gift shop concession contract at the Atlantic City Airport. At the time
his arrest, Orsatti was an Atlantic City Councilman and Chairman of the
Council Transportation Committee.
Thereafter, a State Grand Jury returned indictments against each of th
arrested. The Grand Jury indicted Orsatti for conspiracy to commit racketeering
3
violation of N.J. Stat. Ann. 2C:41-2(d) and conspiracy in violation of N.J. St
Ann. 2C:5-2. The case against all criminal defendants was called to trial on A
22, 1991. Following the close of the State's case, the trial judge grante
judgment of acquittal to Orsatti and several of the other criminal defendan
Eventually, the jury acquitted all of the remaining criminal defendants, save o
of the charges.
Thereafter, Orsatti filed this civil rights action. Orsatti's complaint
broad in scope and asserts claims under both federal and state law. Moreover,
challenges virtually every aspect of his investigation, arrest, and prosecuti
and he names as defendants essentially every individual involved in Operat
Comserv. In this appeal, however, we are only concerned with Orsatti's claim t
Kirvay and Guzzardo violated the Fourth Amendment prohibition against unreasona
seizures. Specifically, Orsatti alleged that the officers carried out Operat
Comserv in a negligent and incompetent manner. Orsatti further alleged that
officers had neither probable cause to arrest him, nor an objective good fa
belief that he was guilty of the offense charged.
4
At the close of discovery, Kirvay and Guzzardo filed a joint motion
summary judgment contending that they are entitled to judgment on Orsat
unlawful arrest claim under the doctrine of qualified immunity. The district co
denied the motion and held that whether the officers were entitled to immun
rested upon disputed questions of fact that the jury had to resolve. This app
followed.
II.
We have jurisdiction pursuant to 28 U.S.C. § 1291 to review an order deny
a claim of immunity raised by a defendant in a motion for summary judgme
Mitchell v. Forsyth, 472 U.S. 511, 524-30 (1985). The standard of re
applicable to an order denying summary judgment is plenary, Bixler v. Central
Teamsters Health & Welfare Fund,
12 F.3d 1292, 1297 (3d Cir. 1993), and "[
review, the appellate court is required to apply the same test the district c
should have utilized initially." Goodman v. Mead Johnson & Co.,
534 F.2d 566,
(3d Cir. 1976).
Summary judgment may be granted if, drawing all inferences in favor of
nonmoving party, "the pleadings, depositions, answers to interrogatories,
admissions on file, together with the affidavits, if any, show that there is
genuine issue as to any material fact and that the moving party is entitled t
judgment as a matter of law." Fed.R.Civ.P. 56(c).
An otherwise properly supported motion for summary judgment will not
defeated by the mere existence of some factual dispute between the parti
However, a dispute over those facts that might affect the outcome of the suit un
the governing substantive law, i.e., the material facts, will preclude the entry
summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (198
Similarly, summary judgment is improper so long as the dispute over the mater
5
facts is genuine. In determining whether the dispute is genuine, the cour
function is not to weigh the evidence or to determine the truth of the matter,
only to determine whether the evidence of record is such that a reasonable j
could return a verdict for the nonmoving party. Id.
III.
A.
Kirvay and Guzzardo argue that the district court erred in denying th
joint motion for summary judgment. They contend that they are immune f
Orsatti's suit because the undisputed material facts of record establish that t
were objectively reasonable in concluding that probable cause existed to arr
Orsatti for the crime of official misconduct. We agree.
The general principles of law that govern this case are well settl
Broadly stated, the Fourth Amendment prohibits a police officer from arrestin
citizen except upon probable cause. Papachristou v. City of Jacksonville, 405
156, 169 (1972). Probable cause to arrest requires more than mere suspici
however, it does not require that the officer have evidence sufficient to p
guilt beyond a reasonable doubt. See United States v. Glasser, 750 F.2d 1197, 1
(3d Cir. 1984). Rather, probable cause to arrest exists when the facts
circumstances within the arresting officer's knowledge are sufficient in themsel
to warrant a reasonable person to believe that an offense has been or is b
committed by the person to be arrested. United States v. Cruz,
910 F.2d 1072,
(3d Cir. 1990) (citing Dunaway v. New York,
442 U.S. 200, 208 n.9 (1979)). Whe
police officer does arrest a person without probable cause, the officer may
liable in a civil rights suit for damages. Pierson v. Ray,
386 U.S. 547 (1967)
Nevertheless, "government officials performing discretionary functio
generally are shielded from liability for civil damages insofar as their cond
6
does not violate clearly established statutory or constitutional rights of whic
reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800,
(1982). Government officials, such as police officers, are accorded qualif
rather than absolute immunity in order to accommodate two important interests:
officials' interest in performing their duties without the fear of constan
defending themselves against insubstantial claims for damages, and the publi
interest in recovering damages when government officials unreasonably invade
violate individual rights under the Constitution and laws of the United Stat
Anderson v. Creighton,
483 U.S. 635, 639 (1987).
Because the qualified immunity doctrine provides the official with immun
from suit, not simply trial, Puerto Rico Aqueduct and Sewer Auth. v. Metcal
Eddy, Inc., 506 U.S. 139 (1993), the district court should resolve any immu
question at the earliest possible stage of the litigation. Creighton,
483 U.S.
646 n.6. When the material facts are not in dispute, the district court may dec
whether a government official is shielded by qualified immunity as a matter of l
Id.
Typically, the dispositive issue in these types of cases is whether the ri
at issue was "clearly established" at the time the official acted. In this ca
however, there is no question that the right at issue, namely, the right to be f
from arrest except on probable cause, was clearly established at the time
Orsatti's arrest. Finding that the right at issue was clearly establish
however, does not end the court's inquiry. Nor does the court's decision t
merely on whether the official violated that clearly established right. On
contrary, the Supreme Court has recognized that it is inevitable that
enforcement officers will in some cases reasonably but mistakenly conclude t
probable cause to make an arrest is present. The Court has made clear that in s
7
cases those officers, like other officials who act in ways they reasonably beli
to be lawful, will not be held personally liable. Id. at 641.
In Malley v. Briggs, 475 U.S. 335 (1986), the Supreme Court, in a da
action under 42 U.S.C. § 1983, established the degree of immunity to be accorde
police officer who arrests a citizen after presenting a judge with a complaint
supporting affidavit that allegedly fails to establish probable cause. The Co
held that whether a police officer is immune is governed by the same standard
objective reasonableness that applies in the context of a suppression hearing un
United States v. Leon,
468 U.S. 897 (1984). Under this standard, only where
warrant application is "so lacking in indicia of probable cause as to ren
official belief in its existence unreasonable," will the officer lose the shield
immunity.
Malley, 475 U.S. at 341. The Court further held that the standard
determining the reasonableness of an official's belief in the existence of proba
cause is whether a reasonably well-trained officer would have known that
affidavit failed to establish probable cause and that he therefore should not h
applied for the warrant under the conditions.
Id. at 345.
According to this standard, the qualified immunity doctrine "gives ample r
for mistaken judgments" by protecting "all but the plainly incompetent or those
knowingly violate the law." Id.
B.
In this case, the district court held that Kirvay and Guzzardo were
entitled to summary judgment on their qualified immunity defense for two disti
reasons. First, the district court found that summary judgment was impro
"because the plaintiff's allegations suffice to allege conduct that violated
clearly established constitutional right to be free from arrest without prob
cause . . ." Orsatti v. New Jersey State Police, No. 91-3023, slip op. at
8
(D.N.J. Nov. 2, 1994). Of course, the district court would have been correct
the matter been before the court on a motion to dismiss under Fed.R.Ci
12(b)(6). The matter before the district court, however, was a motion for summ
judgment under Fed.R.Civ.P. 56. Summary judgment is designed to go beyond
pleadings in order to assess whether a genuine issue of material fact exists
whether a trial is necessary.
9
Accordingly, a plaintiff cannot resist a properly supported motion
summary judgment merely by restating the allegations of his complaint, but m
point to concrete evidence in the record that supports each and every essent
element of his case. Celotex v. Catrett, 477 U.S. 317, 322 (1986). Therefore,
mere fact that Orsatti's allegations, if true, state a claim is an insuffici
basis for the district court to deny the officers' motion for summary judgment.
Second, the district court found that there remained an issue of mate
fact regarding whether the officers conducted Operation Comserv negligently.
support of its finding, the district court relied on the expert report of Rich
Kobetz, Doctor of Public Administration. Dr. Kobetz opined that the state pol
conducted Operation Comserv in a reckless and grossly negligent manner becau
(1) they did not conduct a focused investigation; (2) they did not train Mr. Bl
to properly operate the wireless transmitter they supplied him with; (3) they
not instruct Mr. Black to properly utilize equipment they had supplied him wi
and (4) they did not supervise his criminal investigatory procedures and strate
nor his handling of money, expenditures, and equipment. The district court
that this evidence precluded summary judgment because, in the court's view,
Orsatti were to succeed at proving that the officers carried out Operation Coms
in a negligent manner, he might convince the jury that no reasonable person in
police officers' shoes could have reasonably believed that the criminal prosecut
was lawful. Orsatti, No. 91-3023, slip op. at 52. The district court's reasoni
however, was flawed.
The obligation of local law enforcement officers is to conduct crimi
investigations in a manner that does not violate the constitutionally protec
rights of the person under investigation. Therefore, whether the offic
conducted the investigation negligently is not a material fact. Indeed, for Fou
Amendment purposes, the issue is not whether the information on which pol
10
officers base their request for an arrest warrant resulted from a professiona
executed investigation; rather, the issue is whether that information would warr
a reasonable person to believe that an offense has been or is being committed
the person to be arrested.
Therefore, in order to assess whether Guzzardo and Kirvay are entitled
immunity on Orsatti's Fourth Amendment unlawful arrest claim, the district co
should have focused on the information the officers had available to them, not
whether the information resulted from exemplary police work. Upon our review
that information, we find that it was objectively reasonable for the officers
conclude that they had sufficient information to believe that Orsatti had commi
the crime of official misconduct.
C.
In support of our conclusion that the officers were objectively reasonable
believing they had probable cause to arrest Orsatti for official misconduct,
turn to the elements of that offense.2 Under N.J. Stat. Ann. 2C:30-2, Orsatti
be found guilty of official misconduct if, (1) he was a public servant at the t
alleged in the complaint, (2) he committed an act relating to his office kno
the act was unauthorized, or he committed the act in an unauthorized manner,
(3) his purpose was to benefit himself or another. State of New Jersey v. Vick
646 A.2d 1159, 1160 (N.J. Super. Court Law Div. 1994). The statute does
require that the public official's "act" constitute a criminal act, only that
2
For reasons that are unclear, Orsatti focused his
appellate arguments on the elements of conspiracy to commit
racketeering under N.J.S.A. 2C:41-2(d), which is the subject of
his state common law malicious prosecution claim. However,
Orsatti's malicious prosecution claim is not the subject of this
appeal. Appellants have appealed only the district court's order
rejecting their qualified immunity defense on the Fourth
Amendment unlawful arrest claim.
11
embody an unauthorized exercise of his official functions. N.J. Stat. Ann. 2C:
2(a).
The information that the officers relied on to support their conclusion t
probable cause existed to arrest Orsatti for official misconduct was gathered
taped conversations secretly recorded by Black, the government's confident
informant. A synopsis of the taped conversations was later placed in Kirva
affidavit of probable cause and was presented to the New Jersey Superior Co
judge in support of the request for the criminal complaint and warrant
Orsatti's arrest.
Specifically, on July 16, 1989, Black recorded a conversation betw
himself, Jack Wolf, a public relations agent for Pan Am World Services, Inc.,
Orsatti. The conversation took place at Cousin's Country Inn in Egg Har
Township, New Jersey. The purpose of the meeting was to discuss Black's propo
to acquire a gift shop concession at the Atlantic City Airport. Although
record is unclear, apparently Stephen Williams, an airport official, had author
to decide who, if anyone, would get the concession.
According to the tape, at the meeting Wolf, Orsatti, and Black devised a p
whereby Wolf would compose fraudulent letters. These fraudulent letters wo
purport to be from various citizens complaining of the lack of a gift shop at
airport and stressing the need for one. Black, in turn, would have the lett
rewritten in different handwriting styles and then give the fraudulent letters
Orsatti. Orsatti, in his capacity as an Atlantic City Councilman and Chairman
the City Council Transportation Committee, would then present the letters
Williams to pressure Williams into awarding the gift shop contract to Black.
On July 18, 1989, Black recorded a second conversation with Wolf. Accord
to the tape, Wolf gave the fraudulent letters to Black and instructed Black
deliver them to Orsatti later that day. As Wolf instructed, Black met with Ors
12
in Atlantic City and again recorded their conversation. According to the ta
Black gave the fraudulent letters to Orsatti, and Orsatti indicated that he wo
give the letters to Williams at a meeting they had scheduled for the following
On July 19, 1989, New Jersey State Police detectives conducted a physi
surveillance at the Atlantic City Airport and, at approximately 12:50 p.m.,
Orsatti meet with Williams. Two days later, Black called Orsatti and again recor
the conversation. According to the tape, when the conversation turned to Orsatt
July 19 meeting with Williams, the following exchange took place:
Black: At your news conference. How did things go?
Orsatti: Good.
Black: These letters work all right?
Orsatti: What?
Black: The letters work all right?
Orsatti: Yea, yea.
Black: Did you talk to our friend Williams and all?
Orsatti: He said we're having a gift shop.
Black: That's great, that's great.
Orsatti does not contend that the officers tampered with, changed, or alt
the tapes in any way, nor does Orsatti contend that the officers misrepresented
text of the taped conversations in the affidavit of probable cause presented to
New Jersey Superior Court judge. Orsatti does, however, point out that Willi
in his Grand Jury testimony, denied speaking with Orsatti about the gift s
matter and also denied receiving the fraudulent letters from Orsatti. Altho
disconcerting, this fact is not material, because we must determine whether
arrest was objectively reasonable on the basis of the information the officers
available at the time of arrest, not thereafter.
13
In summary, the undisputed facts of record establish that at the time
Orsatti's arrest, the officers had tape recordings that indicated that Orsa
participated in formulating a scheme to acquire the airport gift shop concess
for Black's benefit, in part by fraudulent means, i.e., forged letters
nonexistent citizens. According to the tapes, Orsatti received the fraudul
letters, and he agreed to deliver those letters to Williams, the airport offic
At the time, Orsatti was acting in his capacity as an Atlantic City Councilm
Orsatti was observed speaking with Williams at the appointed time and place,
Orsatti expressly reassured Black that the letters were effective.
Under these undisputed material facts, we are satisfied that no rational j
could find that the officers were objectively unreasonable in concluding th
based on the information available to them at the time, they had probable cause
believe that Orsatti's conduct constituted the crime of official miscondu
Kirvay and Guzzardo are, therefore, immune from this claim.
IV.
For the foregoing reasons we reverse the district court's order of Nove
2, 1994, insofar as it denied defendant-appellants Kirvay's and Guzzardo's jo
motion for summary judgment on plaintiff-appellee Orsatti's section 1983 claim
arrest without probable cause.
14
