CRESS et al v. VENTNOR CITY et al

Filing 180

OPINION. Signed by Judge Noel L. Hillman on 12/20/2012. (dmr)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

LISA CRESS,
on behalf of herself, and as
GUARDIAN FOR MINOR K.C. and
as GUARDIAN FOR MINOR C.C.,
and DANIEL LOMBARDI,

CIVIL NO. 08-1873(NLH)(AMD)
OPINION

Plaintiffs/CounterDefendants,
v.
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/CrossClaimants/Cross-Defendants.
APPEARANCES:
COURTNEY ERIN BLACK
JENNIFER ANN BONJEAN
BONJEAN LAW GROUP PLLC
142 Joralemon Street, 5A
BROOKLYN, NY 11201
On behalf of plaintiffs
THOMAS B. REYNOLDS
STEVEN HORN
REYNOLDS & DRAKE
29 NORTH SHORE ROAD
ABSECON, NJ 08201
On behalf of Ventnor City, Theodore Bergman, Douglas Biagi,
Michael Miller, Schallus

ROBERT P. MERENICH
GEMMEL, TODD & MERENICH, P.A.
767 SHORE ROAD
P.O. BOX 296
LINWOOD, NJ 08221
On behalf of James Donaldson, Joseph Bonsall, Jay Woods, Jason
Rzemyk, Dave Druding, Steven Swankoski, Tim Colella
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”)1; 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

1

It appears from the docket that the Ventnor defendants’
counsel also entered his appearance on behalf of defendant
“Schallus, Ventnor City Police Officer,” and answered the
complaint on his behalf, but it does not appear that counsel
moved for summary judgment on his behalf. It also does not
appear that the first name of this officer has ever been
identified. The parties are directed to advise the Court on the
status of plaintiffs’ claims against this defendant.
2

Ventnor defendants.

For the reasons expressed below, the parties’

motions will be granted in part and denied in part.
BACKGROUND
According to plaintiffs2, 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

2

We have written in this case before and recite now only
certain background facts and those necessary for the resolution
of the pending motions.
3

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.

4

DISCUSSION
A.

Jurisdiction

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).
C.

Analysis
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

5

2007 that Lombardi was in possession of a handgun.3

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.4
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.5

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.6

The Ventnor

3

CI-2 testified that on several occasions she served as a
confidential informant for certain police departments on matters
unrelated to Lombardi. Whether her identity will be revealed in
this case is discussed below.
4

Whether the identity of CI-1 will be revealed is discussed

below.
5

It is somewhat ironic that the Ventnor defendants found
CI-1 credible enough to serve as a basis for the probable cause
to support a no-knock search warrant, but they deem him not
credible when he has disputed his involvement as a confidential
informant.
6

Exhibit U is the report of a private investigator who
interviewed Margate City police officer Christopher Koch.
According to the Ventnor defendants, Koch, who was dismissed by
plaintiffs as a defendant in this case, provided information
regarding Lombardi to the Ventnor City police department,
specifically defendant Bergman, prior to the issuance of the
warrant. This information was purportedly supplied to Koch by
6

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 noknock 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,7 the
Court will not impose any sanctions against defendants at this

CI-2 and the third information source. Exhibit U contains Koch’s
statement to the investigator regarding the information CI-3 gave
him. According to the report, CI-3 told Koch that he saw a gun
in Lombardi’s home, and Koch then relayed this information to
Bergman.
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.
7

As with the other two informants, whether the identity of
this third informant will be revealed is discussed below.
7

time.

The information contained in Exhibit U, although not

provided until June 2011, was nonetheless disclosed to plaintiffs
prior to the end of discovery.8

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.9
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’

8

When questioned at the November 15, 2012 hearing, counsel
for the Ventnor defendants did not know when his firm or cocounsel obtained “Exhibit U.”
9

Plaintiffs seek sanctions pursuant to Federal Civil
Procedure Rule 11 arguing that the Ventnor defendants’ filing of
their summary judgment motion was frivolous and in violation of
Local Civil Rule 56.1, which requires the moving parties to set
forth a separate statement of undisputed material facts. The
Court does not find that the filing of the motion for summary
judgment warrants sanctions because at this stage of the case it
appears to be proper litigation strategy. The Court, however,
admonishes the defendants that compliance with the Local Rules is
mandatory, and that even though the Court will deny their motion
for summary judgment on a substantive basis, the Court may also
deny it for their failure to provide their L. Civ. R. 56.1
statement. See L. Civ. R. 56.1(a) (“On motions for summary
judgment, the movant shall furnish a statement which sets forth
material facts as to which there does not exist a genuine issue,
in separately numbered paragraphs citing to the affidavits and
other documents submitted in support of the motion. A motion for
summary judgment unaccompanied by a statement of material facts
not in dispute shall be dismissed. . . .”).
8

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.10

10

The qualified immunity analysis provides the basis to
determine whether a claim for a constitutional violation by a law
enforcement officer is viable. The doctrine of qualified
immunity protects government officials “from liability for civil
damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known.” Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982). In order to determine whether a government
official is entitled to qualified immunity, two questions are to
be asked: (1) has the Plaintiff alleged or shown a violation of a
constitutional right, and (2) is the right at issue “clearly
established” at the time of the Defendant’s alleged misconduct?
Pearson v. Callahan, 129 S. Ct. 808, 816 (2009).
With regard to plaintiff’s excessive force claim, in
determining whether excessive force was used, the Fourth
Amendment’s “objective reasonableness” test is applied. Sharrar
v. Felsing, 128 F.3d 810, 820-21 (3d Cir. 1997) (citing Graham v.
Connor, 490 U.S. 386, 396 (1989)). The objective reasonableness
test “requires careful attention to the facts and circumstances
of each particular case, including the severity of the crime at
issue, whether the suspect poses an immediate threat to the
safety of the officers or others, and whether he is actively
resisting arrest or attempting to evade arrest by flight.” Id.
(relying on Graham, 490 U.S. at 396; Groman v. Township of
Manalapan, 47 F.3d 628, 634 (3d Cir. 1995)). “Other relevant
factors include the possibility that the persons subject to the
police action are themselves violent or dangerous, the duration
of the action, whether the action takes place in the context of
effecting an arrest, the possibility that the suspect may be
armed, and the number of persons with whom the police officers
must contend at one time.” Id.
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
9

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 immunity11 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.12

The Egg

in dispute. Curley v. Klem, 499 F.3d 199, 211, 211 n.12 (3d Cir.
2007). To do this, “[a] judge may use special jury
interrogatories, for instance, to permit the jury to resolve the
disputed facts upon which the court can then determine, as a
matter of law, the ultimate question of qualified immunity.” Id.
In other words, “[w]hen the ultimate question of the objective
reasonableness of an officer's behavior involves tightly
intertwined issues of fact and law, it may be permissible to
utilize a jury in an advisory capacity, . . . but responsibility
for answering that ultimate question remains with the court.”
Id. The Court will follow this path.
11

See, supra, note 10.

12

The Egg Harbor defendants also contend that judgment
should be entered in their favor on plaintiffs’ state law claims
for assault and battery, intentional and negligent infliction of
emotional distress, false imprisonment, trespass, and punitive
damages. Because disputed material facts exist with regard to
the actions of the ACERT officers, the determination as to
whether these defendants are liable to plaintiffs on these claims
must be left for a jury to decide. See N.J.S.A. 59:3-3 (“A
public employee is not liable if he acts in good faith in the
10

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.13
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

execution or enforcement of any law. Nothing in this section
exonerates a public employee from liability for false arrest or
false imprisonment.”); Hill v. Algor, 85 F. Supp. 2d 391, 411
(D.N.J. 2000) (“The ‘objective reasonableness’ standard that is
used to determine whether a defendant enjoys qualified immunity
from actions brought pursuant to 42 U.S.C. § 1983 is used to
determine questions of good faith arising under N.J.S.A.
59:3–3.”).
Conversely, plaintiffs have not demonstrated facts to
support their state law claim for slander against the Egg Harbor
defendants. See W.J.A. v. D.A., 43 A.3d 1148, 1153 (N.J. 2012)
(“[A] statement is defamatory if it is false, communicated to a
third person, and tends to lower the subject's reputation in the
estimation of the community or to deter third persons from
associating with him.” (citation omitted)). Consequently,
judgment shall be entered in these defendants’ favor on this
claim.
13

Plaintiffs opposed the Egg Harbor defendants’ motion in
substance, but they also contend that it should be denied because
the Egg Harbor defendants failed to comply with Local Civil Rule
56.1 by simply reciting deposition testimony and not specifying
what facts are undisputed. Because the Court will deny the bulk
of defendants’ motion, whether they complied with L. Civ. R. 56.1
is immaterial. The Court, however, admonishes the Egg Harbor
defendants, just as it did the Ventnor defendants, that strict
compliance with L. Civ. R. 56.1 is mandatory.
11

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,14 and (2) assess the credibility

14

Egg Harbor defendant, John Woods, did not participate in
the actual execution of the search warrant and he did not enter
plaintiffs’ home until after the completion of the operation.
Instead, Woods was the team commander who devised the operation
plan, assigned the ACERT members’ duties, and directed practice
runs. Plaintiffs claim that the operation plan was excessive
from its inception based on the minor nature of the offense
allegedly committed by Lombardi and because there was no real or
perceived risk that Lombardi was dangerous.
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.” Baker v. Monroe
Twp., 50 F.3d 1186, 1190-91 (3d Cir. 1995). The Court finds that
even though Woods did not personally use excessive force, there
are sufficient disputes of material fact concerning what was
known and relied upon in developing the plan so as to preclude
summary judgment as to Woods at this time. However, it is likely
that a separate special interrogatory question or questions
regarding the planning of the operation may be necessary to
insure that Woods’s claim of qualified immunity is viewed through
the lens of facts applicable to his conduct and not others. For
example, a jury might conclude that the warrant was obtained
without probable cause, that the officers did not have reason to
fear Lombardi, and the use of force was unreasonable. On the
other hand, they could reach the opposite conclusion on any, or
all, of those factual disputes. A proper set of interrogatories
in this case should assess each stage of the operation and the
relative role of each defendant to insure the proper application
of the qualified immunity doctrine. See id. at 1193; cf.
Santiago v. Warminster Twp., 629 F.3d 121, 133 (3d Cir. 2010)
(“Where, as here, an operation results in the use of allegedly
12

of each party’s testimony.

After the jury resolves these relevant

factual disputes through the use of special interrogatories,15 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.16

excessive force against only one of several people, that use of
force does not, by itself, give rise to a plausible claim for
supervisory liability against those who planned the operation.
To hold otherwise would allow a plaintiff to pursue a supervisory
liability claim anytime a planned operation resulted in excessive
force, merely by describing the force used and appending the
phrase ‘and the Chief told them to do it.’”).
15

See, supra, note 10.

16

Judgment must be entered in the Egg Harbor defendants’
favor as it relates to the retention of the minor children.
Plaintiffs claim that the two minor children were confined in
their bedrooms and separated from their mother, Cress, for 90
minutes, which plaintiffs claim violates the Constitution.
Plaintiffs do not refute the Egg Harbor defendants’ evidence,
however, that the entire ACERT operation took ten to fifteen
minutes, and all of the ACERT officers left the house after the
operation. Even though the children may have been detained in
their bedroom for 90 minutes by the Ventnor defendants, no
evidence establishes that they were held for that amount of time
by any of the Egg Harbor defendants. Thus, even if the
separation of the children from their mother for 90 minutes
constitutes a violation of law under these circumstances, the Egg
Harbor defendants are entitled to summary judgment on that claim.
See, e.g., Baker v. Monroe Twp., 50 F.3d 1186, 1192 (3d Cir.
1995) (“[T]here is no per se rule about the length of time a
suspect may be detained before the detention becomes a full-scale
arrest. Instead, the court must examine the reasonableness of
the detention, particularly whether the police were diligent in
accomplishing the purpose of the stop as rapidly as
possible.”(citation omitted)).
13

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
14

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);17 (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) CI3 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

17

The agreement does not contain any provision regarding if
or when the confidential informant’s identity would be revealed.
15

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.

CONCLUSION
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
16

the three purported confidential informants.
An appropriate Order will be entered.

Date: December 20, 2012
At Camden, New Jersey

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

17