NOEL L. 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")
According to plaintiffs
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.
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.
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.
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.
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,
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.
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.
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
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,
Previously, after balancing the interests articulated in
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,
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);
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.
Prior to dismissing him as a defendant, plaintiffs did not take Koch's deposition. After plaintiffs filed their motion for sanctions with regard to Exhibit U, the Ventnor defendants attempted to secure an affidavit from Koch. Having been unsuccessful in their efforts to obtain an affidavit from Koch, the Ventnor defendants asked the Court for leave to take the deposition of Koch prior to the Court's consideration of their motion for summary judgment. Plaintiffs opposed that request, and reiterated at the November 15, 2012 hearing that they did not wish to take Koch's deposition. Because discovery is closed, and for a myriad of other considerations expressed on the record, the Court denied defendants' request to depose Koch.
With regard to plaintiff's excessive force claim, in determining whether excessive force was used, the Fourth Amendment's "objective reasonableness" test is applied.
Even though the determination of whether an officer acted objectively reasonably or made a reasonable mistake of law, and is thus entitled to qualified immunity, is a question of law that is properly answered by the court, not a jury, the Third Circuit has recognized that a judge could decide the objective reasonableness issue once all the historical facts are no longer in dispute.
Conversely, plaintiffs have not demonstrated facts to support their state law claim for slander against the Egg Harbor defendants.
In order to hold Woods personally liable under § 1983, plaintiffs "must show that he participated in violating their rights, or that he directed others to violate them, or that he, as the person in charge of the raid, had knowledge of and acquiesced in his subordinates' violations."