Schneider v. Simonini

VERNIERO, J.,

concurring in part and dissenting in part.

I concur in the majority’s formulation of procedures to be used in deciding the issue of qualified immunity in actions brought under 42 U.S.C.A. § 1983 (Section 1983). I refer specifically to the Court’s approach in respect of disputed material facts; that approach is sound and resolves a question confronted by other jurisdictions.

With regard to defendant Simonini, I conclude that he is entitled to qualified immunity under the “reasonable belief’ prong of the federal test as applied in Kirk v. City of Newark, 109 N.J. 173, 536 A.2d 229 (1988), and other cases. Defendant acted upon the advice of counsel in the context of information obtained by two informants that prompted a series of steps designed to verify the true identity of the suspect. Although ultimately incorrect, Si-monini’s judgments and beliefs were reasonable at the time. Accordingly, I find Simonini to be immune for the reasons set *377forth in Section II below, which is joined by three other members of the Court.

I would also find defendant Buccino to be immune. However, I dissent from that portion of the Court’s opinion pertaining to that defendant. In my view, it is unnecessary to create a new standard for supervisory liability to dispose of the pertinent issues in this case. Instead, I would find Buccino to be immune on the facts presented and as a logical consequence of the majority’s conclusions regarding Simonini.

I.

As part of an undercover investigation of organized crime known as Operation LeJeune, Donald Simonini, an investigator at the New Jersey Division of Criminal Justice (DCJ), received information that one “Frank Schneider” had been involved in a tractor-trailer hijacking. Simonini obtained that information from two independent sources: first in April 1989 from Anthony Bonu-ra, DCJ’s confidential informant, and then in July 1989 from an FBI informant as communicated by FBI Special Agent Robert DeBellis. Agent DeBellis characterized the suspect as “a big kid from the Lodi-Garfield area [,] ... in his twenties [,] ... six foot or over [with] prior involvement with the law.” DeBellis also gave Simonini information contained in a State Police report prepared at the time of the crime, December 27, 1988. The report confirmed that there had been a hijacking on or about that date and contained other details.

Simonini asked DeBellis whether the FBI informant had photographs of Schneider or Mark Vilardi, the other person suspected in the hijacking, and whether the informant could otherwise be of assistance in identifying those men. DeBellis indicated that the informant could not assist with additional information but nonetheless represented to Simonini that the informant had proven to be reliable to the FBI in the past. (Indeed, the informant’s description of details of the crime were verified by the victim and the police reports.)

*378After receiving that information and reviewing the State Police report, Simonini asked detectives at the State Police whether the driver of the hijacked tractor-trailer, Clifford Glidden, might be of assistance in identifying the perpetrators. Simonini was told that the driver probably would be of no assistance because of his likely faulty memory caused by fear at the time of the incident and the difficulty in contacting him. (Glidden was asked to assist sometime later, after plaintiffs arrest and release. Although he selected the correct Frank Schneider from a line-up of photographs, Glidden was unable to state definitively that the selected photograph was that of the person who had committed the crime.)

Armed with the information obtained through DeBellis, the FBI informant and DCJ’s informant, along with the information found in the State Police report, Simonini set about the task of identifying the suspect. Utilizing a Division of Motor Vehicle (DMV) database, criminal history and similar databases, Simonini narrowed the search to four “Frank Schneiders.” One of the Frank Schneiders was born in 1944, which would have made him forty-five years old and therefore too old; another lived in Lincoln Park, was born in 1964 but had a height of only five feet, eight inches, which would not have qualified as a “big kid.”

The remaining two Frank Schneiders did appear to qualify on the criteria of height, age and location. Frank J. Schneider of Lodi was shown in the DMV database to have a birth date of “August 00, 1961,” with an eye color of brown, while Frank J. Schneider of Hasbrouck Heights was shown to have a birth date of “August 2,1961” and an eye color of hazel. The birth dates raised suspicions. As Simonini later explained:

This is the type of thing that people will do when applying for a driver’s license, to alter the number [specifying eye color], so that they can obtain another license under another number, and it’s not detected that they are, in fact, one person with two driver’s license numbers.

Because of the similarity of birth dates, Simonini concluded that the two Frank J. Schneiders were one and the same person.

Simonini then obtained the State Police master name index indicating that the individual identified with the August 2nd birth *379date had a total of foür arrests, including arrests for invasion of privacy, disturbance of the peace, burglary and damage to property. That information corroborated what was learned earlier from FBI Agent DeBellis, namely, that Frank Schneider the hijacker had some prior involvement with the law. Simonini contacted DeBellis again to ascertain whether he had any additional identifiers for Frank Schneider; DeBellis responded that he did not.

Fearing that he might compromise the investigation or endanger the life of the informant, Simonini made no further inquiry and concluded his investigation. Operation LeJeune itself was terminated on July 17, 1989, because the authorities believed a residential armed robbery was imminent. Before the last date of the operation, Simonini reviewed the information he had obtained concerning Schneider and Vilardi, the other suspected -hijacker, with the legal staff at the DCJ. The deputy attorney general assigned to the investigation agreed that Simonini had probable cause to include references to both Schneider and Vilardi in his lengthy affidavit, which sought arrest and search warrants for plaintiff, Vilardi, and thirteen others who were targets of Operation LeJeune. With regard to Schneider, Simonini’s affidavit detailed in pertinent part the information obtained by the two informants as corroborated by the State Police report. A judge signed the arrest warrants for plaintiff and the other suspects on July 14,1989.

Vilardi was in the room at the armory immediately following the arrest and informed DCJ personnel that plaintiff was not the right suspect. Plaintiff was promptly released and driven back to work. Two days later, on July 19, 1989, then-Attorney General Peter N. Perretti issued a press release indicating that plaintiff was mistakenly identified as one of the individuals targeted in Operation LeJeune and that he was released two hours after his arrest. The statement also indicated that plaintiff was not involved in the Bruno/Searfo crime family and that the authorities were still searching for the Frank Schneider, Jr. who was the actual target of the investigation. In addition, an assistant attorney general *380sent plaintiff a letter indicating that the ptess release had been sent to various newspapers and news services to lessen any negative impact resulting from plaintiffs arrest and brief detention. The Attorney General’s Office also offered to write to plaintiffs employer to verify that plaintiffs arrest was a mistake.

On August 3, 1989, the Frank J. Schneider involved in the hijacking turned himself in to authorities. In fact, that Frank Schneider was the same person Simonini had found in the DMV records with the Lincoln Park address and the 1964 birth date. Plaintiffs’ suit and this appeal followed.

II.

“The existence of probable cause is a complete defense to a [Section] 1983 claim____” Bernstein v. Aivazis, 584 F.Supp. 606, 607 (D.N.J.1983). If, in hindsight, it is determined that probable cause did not exist, an officer will still be immune from suit if “a reasonable police officer could have believed in its [probable cause] existence.” Kirk v. City of Newark, supra, 109 N.J. at 184, 536 A.2d 229.

The United States Supreme Court has made clear that, in close cases in which reasonable minds may differ about whether probable cause existed to justify an arrest, the officer should be immune, stating: “[I]f officers of reasonable competence could disagree on this issue, immunity should be recognized.” Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 1096, 89 L.Ed.2d 271, 278 (1986). Thus, the qualified immunity standard is intended to protect “all but the plainly incompetent or those who knowingly violate the law.” Ibid.

Probable cause as a legal standard is, by design, inexact. *381At its root, the doctrine of probable cause represents society’s attempt at striking a balance between safeguarding citizens from the unreasonable actions of police officers and providing those same officers with the leeway necessary to enforce the law for everyone’s protection. “The rule of probable cause is a practical, nontechnical conception affording the best compromise that has been found for accommodating these often opposing interests.” Id. at 176, 69 S.Ct. at 1311, 93 L.Ed. at 1891.

*380In dealing with probable cause ... as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. The standard of proof is accordingly correlative to what must be proved.
[Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879, 1890 (1949).]

*381In this case, Simonini secured the following evidence or information upon which to base his actions: the taped conversation between the DCJ informant, Anthony Bonura, and an Operation LeJeune target, Richard Discorfano, in which it was revealed that a “Frankie Schneider” was involved in the truck hijackings; the statement by FBI Special Agent DeBellis that a second informant, an FBI informant, indicated that a Frank Schneider, Jr. had committed the hijacking; the fact that plaintiffs address, age, height and criminal record were consistent with the FBI informant’s description of Frank Schneider, Jr.; the fact that DeBellis told Simonini that the FBI informant had proven to be reliable in the past; and the fact that the details of the crime given by the federal informant were consistent with the victim’s version of events and the version found in the investigative police reports.

Even if we assume that the foregoing did not give rise to actual probable cause, the inquiry does not end there. As noted, even if a law enforcement officer’s judgments and beliefs turn out to be erroneous, that officer is still protected by qualified immunity if those judgments and beliefs were reasonable under the circumstances. “This accommodation for reasonable error exists because ‘officials should not err always on the side of caution’ because they feared being sued.” Hunter v. Bryant, 502 U.S. 224, 229, 112 S.Ct. 534, 537, 116 L.Ed.2d 589, 596 (1991) (quoting Davis v. Scherer, 468 U.S. 183, 196, 104 S.Ct. 3012, 3020, 82 L.Ed.2d 139, 150-51 (1984)). I agree with the conclusion of the Appellate Division that Simonini satisfied this second prong of the analysis. As Judge Collester stated for the unanimous panel:

*382Information received and developed by Simonini in this case gave him a reasonable objective belief in the existence of probable cause that plaintiff was one of the hijackers. The recorded conversation between Bonura and Discorfano spoke of a botched hijacking involving “Frankie Schneider.” The information received from DeBellis’ informant named one of the perpetrators as a Frank Schneider, Jr. and described him as a “big kid” in his twenties with a criminal record who lived in the Garfield and Lodi area. Simonini was entitled to rely on the information supplied by an FBI informant described as reliable, and in fact the informant’s description of the details of the crime were verified by the victim and the investigative police reports. See State v. Novembrino, 105 N.J. 95, 120-22, 519 A.2d 820 (1987). Moreover, Simonini’s investigation of relevant records confirmed that plaintiffs appearance, address and criminal history were consistent with the other information supplied as to one of the hijackers. See United States v. Williams, 10 F.3d 1070, 1075 n. 6 (4th Cir.1993), cert. denied, 513 U.S. 926, 115 S.Ct. 313, 130 L.Ed.2d 276 (1994); Powe v. City of Chicago, 664 F.2d 639, 645 (7th Cir.1981).
[Schneider v. Simonini, 314 N.J.Super. 583, 594-95, 715 A.2d 1018 (App.Div. 1998).]

Using twenty-twenty hindsight, three members of the Court assert that Simonini should have taken other steps to ensure certainty in the identification of the suspect, Frank Schneider, Jr. However, the test for qualified immunity does not require certainty or even actual probable cause, but only that the officer’s belief in probable cause be reasonable. Kirk, supra, 109 N.J. at 184, 536 A.2d 229; Lee v. Sandberg, 136 F.3d 94, 102-03 (2d. Cir.1997); Madiwale v. Savaiko, 117 F.3d 1321, 1324 (11th Cir.1997); Johnson v. Schneiderheinz, 102 F.3d 340, 341 (8th Cir.1996).

It bears repeating that, “if officers of reasonable competence could disagree on this issue, immunity should be recognized.” Malley, supra, 475 U.S. at 341, 106 S.Ct. at 1096, 89 L.Ed.2d at 278. “Even plaintiffs’ expert did not testify that no reasonable police officer would conclude that an arrest warrant could issue under the circumstances or that officers of reasonable competence could not disagree on the issue of probable cause for a warrant.” Schneider v. Simonini, supra, 314 N.J.Super. at 595, 715 A.2d 1018. Because at the very least there was a reasonable belief in probable cause, Simonini is entitled to qualified immunity for his conduct.

*383The fact that Simonini may have lacked actual probable cause does not, and under federal case law cannot, deprive him of immunity so long as his belief in the existence of probable cause was reasonable under the “reasonable belief’ prong of the analysis. The trial court opinion mistakenly forecloses that second, distinct ground for immunity. As the trial court observed:

Well, you know, it’s almost inconceivable that I could find both that there was no probable cause with respect to [Simonini] and that there was a qualified immunity because it is essentially a review and critique of his behavior which has induced me to conclude that there was no probable cause.

Similarly, three members of the Court believe, “the question is whether Simonini, who obtained the warrant based on his objectively unreasonable affidavit that led to plaintiffs unconstitutional seizure, could nonetheless objectively and reasonably rely on the existence of probable cause. That sounds incongruous, and under the facts of this case, is incongruous.” Ante at 366, 749 A.2d at 352.

In my view, however, it is not incongruous to note that Simonini reasonably may have believed that he had probable cause even if, in fact, he did not. That Simonini may have omitted additional details from the affidavit does not mean that he believed less strongly or reasonably in the existence of probable cause. The asserted defects in the application do not, without more, foreclose the possibility that defendant maintained a reasonable but mistaken belief in probable cause.

Moreover, although Simonini’s affidavit may have been insufficient to sustain a finding of actual probable cause, it was not so deficient as to render any officer’s belief in the existence of probable cause unreasonable for purposes of Section 1983 immunity. As the Appellate Division concluded: “[Simonini’s] application for the arrest warrant was not ‘so lacking in indicia of probable cause as to render official belief in its existence unreasonable’ ____” Schneider v. Simonini, supra, 314 N.J.Super, at 596, 715 A.2d 1018 (quoting Malley, supra, 475 U.S. at 344-45, 106 S.Ct. at 1098, 89 L.Ed.2d at 281).

*384I find no evidence in the record to support the conclusion that “Simonini knew that in failing to tell the judge who issued the warrant any identifying information except plaintiffs name, there was a substantial probability of misidentification given the information in the DMV records.” Ante at 367, 749 A.2d at 353. In my view, one may arrive at such a conclusion only by delving into Simonini’s state of mind. If such a determination is truly needed to dispose of this appeal (I believe it is not), it would appear to be a question for the jury to resolve.

As indicated in the record, Simonini methodically engaged in a process of elimination before including plaintiffs name in the warrant application. In so doing, Simonini appeared to be making reasonable judgments. For example, when presented with a choice between a Frank Schneider that may have been the right height but not the right weight, and one who was about the right weight but not the right height, Simonini selected the Frank Schneider who was the right height. That was a reasonable approach considering that height is more or less a fixed variable, whereas the weight of an individual can fluctuate. Simonini did more than “act[ ] on a hunch,” ante at 369, 749 A.2d at 354; he made a diligent effort to accurately identify the suspect.

Additionally, the process employed by Simonini yielded an initial pool of only four persons, one of whom was, in fact, the correct Frank Schneider. It is significant that Simonini acted upon the advice of a deputy attorney general in making his probable cause determination. In Kirk, the fact that the police officer acted upon the advice of an assistant prosecutor was considered by this Court to be one of two factors requiring a finding of immunity, the other being the fact that a child might have been in physical danger in that case. As we noted: “[The officer] was confronted with a possible case of child abuse and acted on the advice of counsel. Consequently, we find that a reasonably well-trained police officer viewing the facts could have believed that she had probable cause *385to arrest defendant.” Kirk, supra, 109 N.J. at 187, 536 A.2d 229 (citations omitted).

An investigation like Operation LeJeune presents special risks and therefore poses a unique context within which to judge the reasonableness of police actions. No one can deny the pernicious effects of organized crime: it saps the energy and resources of law enforcement, taints the honest marketplace by fostering an underground economy, and — literally—puts lives in danger. As Simoni-ni himself stated:

If anything ever happened down the line, where this informant was killed or hurt [or] threatened ... in some way anyone who has knowledge of this informant could be questioned as to, you know, were you responsible for what happened to this informant?

Although not excusing the probable cause requirement, Simonini’s concern for the safety of the informant does help to explain how defendant reasonably might have concluded that the circumstances required him to forego additional investigation before making the arrest. As noted, the emergeney-like circumstances evident in Kirk formed the basis of our granting immunity in that ease. See also Anderson v. Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 3039-40, 97 L.Ed.2d 523, 531 (1987) (explaining how reasonable but mistaken judgments about exigency are similarly protected by immunity).

“The Supreme Court created the qualified immunity defense in order to protect public officials from being sued for every error in judgment, thereby diverting their attention from their public responsibilities and impeding the independent exercise of their discretion.” Kit Kinports, The Buck Does Not Stop Here: Supervisory Liability in Section 1983 Cases, 1997 U. Ill. L. Rev . 147, 190 (1997). Here, Simonini acted upon the advice of counsel within the context of information obtained by two informants that set in motion a process of elimination that led to a reasonable belief, albeit a mistaken one, as to the suspect’s identity. Accordingly, this case squarely highlights the purpose of an immunity defense as enunciated by the Supreme Court. See also Hayes v. Mercer County, 217 N.J.Super. 614, 526 A.2d 737 (App.Div.1987) *386(holding investigator not liable even though he arrested wrong person).

III.

Having found Simonini to be immune because of his reasonable belief in probable cause, I would find his supervisor, DCJ Deputy Chief Robert T. Buccino, to be similarly immune. In view of the facts presented and the majority’s determination in respect of Simonini, I believe it is unnecessary for the Court to create a new standard to resolve the issue of the supervisor’s liability.

Buccino was involved to the extent that he supervised the entire operation but the record does not disclose specific, personal involvement in terms of the steps taken by Simonini in respect of plaintiffs arrest. Buccino testified:

In the case of Don Simonini, I wouldn’t ask the question do you have probable cause. There is an attorney sitting right along side of him. If Don Simonini had one-year experience as a law enforcement [officer], yes, I would go up to him and say, sure let’s go over your probable cause because that would be my job [if] I feel that the officer is inexperienced[,] but with the people that I have in the organized crime [agency] they’re all experienced, well-trained, I don’t ask those questions

That level of involvement is simply insufficient as a matter of law to hold Buccino liable under Section 1983. As the Appellate Division concluded, “[w]ith respect to Buccino, the rationale for qualified immunity is stronger since he committed no acts leading to plaintiffs arrest.” Schneider v. Simonini, supra, 314 N.J.Super. at 595, 715 A.2d 1018.

The Court’s approach also appears to be at odds with the one adopted by the United States District Court in Skevofilax v. Quigley, 586 F.Supp. 532, 543 (D.N.J.1984). In that case, Judge Maryanne Trump Barry, now an appellate judge on the Third Circuit Court of Appeals, observed that a supervisor “might be held liable” if the plaintiff were able to show that the supervisor “was personally involved in the unlawful action or that there was some causal connection between an act of the official and the *387alleged violation .... ” Ibid. That standard appears dissimilar to the one adopted by the majority.

According to the United States Supreme Court, the final arbiter of Section 1983 actions, the qualified immunity standard is designed to provide “ample room for mistaken judgments” on the part of the police. Malley, supra, 475 U.S. at 343, 106 S.Ct. at 1097, 89 L.Ed.2d at 280. Judge Barry’s formulation in respect of supervisory liability seems most consistent with the overall policy objectives set forth in Malley. Judge Barry’s standard would appear to hold the truly culpable supervisors liable for Section 1983 offenses while providing “ample room” for errors or failures in supervisory oversight. In any event, because no new test is required on these facts, I would wait for a more appropriate ease before settling on one of any number of competing federal standards.

IV.

In sum, the evidence and information secured by Simonini provided him with a reasonable basis upon which to believe in the existence of probable cause to arrest plaintiff. Thus, he is entitled to immunity. Under the “reasonable belief’ prong of the federal test, it is not necessary for actual probable cause to have existed. Nor is it necessary to determine whether actual probable cause existed to dispose of this appeal. Buccino, a supervisor who took no action specific to plaintiff, should be immune as a logical consequence of Simonini’s immunity. The special risks posed by Operation LeJeune provide a context that helps to explain the reasonableness of what occurred in this case.

We must abide by the instruction of the United States Supreme Court and provide the police with “ample room for mistaken judgments ....” Malley, supra, 475 U.S. at 343, 106 S.Ct. at 1097, 89 L.Ed.2d at 280. In so doing, we ensure the protections of law enforcement necessary for the safety and well-being of the entire community. There are clear instances in which police officers *388should stand trial because of serious misconduct. This is not one of them.

V.

For the reasons stated, I would affirm the judgment of the Appellate Division.

For affirmance in Sections II, VI, and VII — Chief Justice PORITZ and Justices O’HERN, GARIBALDI, STEIN, COLEMAN, LONG and VERNIERO — 7.

For affirmance in Sections III and V— Chief Justice PORITZ and Justices O’HERN, GARIBALDI, STEIN, COLEMAN and LONG — 6.

Concur in part; dissent in part in Sections III and V — Justice VERNIERO — 1.

For affirmance in Section IV — Chief Justice PORITZ and Justices GARIBALDI, LONG and VERNIERO — 4.

For reversal in Section TV — Justices O’HERN, STEIN and COLEMAN — 3.