COLES et al v. CARLINI et al

Filing 52

OPINION. Signed by Chief Judge Jerome B. Simandle on 3/29/12. (th, )

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

JAMES COLES, et al.,
Plaintiffs,

HON. JEROME B. SIMANDLE
Civil No. 10-6132 (JBS/AMD)

v.
OPINION
NICHOLAS CARLINI, et al.,
Defendants.

APPEARANCES:
Boyd Spencer, Esq.
2100 Swede Road
Norristown, PA 19401
Attorney for Plaintiffs James Coles, Louis C. Degailler and
Joseph Ballinger
Roshan Deven Shaw, Deputy Attorney General
STATE OF NEW JERSEY
OFFICE OF THE ATTORNEY GENERAL
25 Market Street
P.O. Box 112
Trenton, NJ 08625
Attorney for Defendants Nicholas Carlini, Gregory Manuel,
Paula T. Dow, Colonel Joseph R. Fruentes, PH.D, Kristopher
Gertsen, Erik Lindner, and Thomas O'Connor
SIMANDLE, Chief Judge:
I.

INTRODUCTION
This matter is before the Court on the combined motion of

Defendants Nicholas Carlini, Paula T. Dow, Joseph R. Fuentes,
PhD, Kristofer Gertsen, Erik Lindner, Gregory Manuel and Thomas
O'Connor (collectively "Defendants") to dismiss the complaint
pursuant to Fed. R. Civ. P. 12(b)(6) and motion to strike
pursuant to Fed. R. Civ. P. 12(f).

[Docket Item 39]

The

Plaintiffs James Coles, Louis C. Degailler, and Joseph Ballinger
(collectively "Plaintiffs") filed opposition to this motion.

The

court heard oral argument on November 30, 2011.
This action arises out of a traffic stop which occurred on
July 30, 2009 on Route 70 in Southampton, N.J.

The Plaintiffs

were riding their motorcycles to a charity fundraiser for a sick
child along with three other motorcyclists.

The Plaintiffs were

wearing jackets with symbols referencing their membership in
certain motorcycle organizations, commonly referred to as
"colors."

The Plaintiffs argue they were impermissibly stopped

by the police because they were wearing their colors.

The

Defendants maintain that the Plaintiffs were stopped because they
were wearing improper helmets.
For the reasons discussed herein, the Defendants' motion to
dismiss will be granted in part and denied in part and the
Defendants' motion to strike will be denied.
II.

BACKGROUND
A. Statement of the Facts
On July 30, 2009, six motorcycle club members, including the

three Plaintiffs, were riding their motorcycles as a group near
Red Lion, New Jersey. (Am. Comp. ¶ 1.)

During this ride, the

Plaintiffs were wearing jackets that bore logos, and the names of
their motorcycle clubs on the back. (Id. ¶ 2)
These logos are known as "colors." (Id.)

2

Colors are

collective membership marks, which are a form of trademarks,
owned by motorcycle clubs. (Id. at ¶ 44.)

The membership marks

are worn on the back of jackets or vests to indicate membership
in a motorcycle club. (Id.)

Plaintiffs James Coles and Louis

DeGallier are members of the Pagan Motorcycle Club and on July
30, 2009, were wearing the Pagan's Motorcycle Club Colors.
at ¶ 54.)

(Id.

Plaintiff Joseph Ballinger is a member of the Tribe

Motorcycle Club and on July 30, 2009, was wearing Tribe
Motorcycle Club Colors.

(Id. at ¶ 56.)

The other three

remaining motorcyclists in the group were also wearing colors.
(Id. at ¶¶ 55-58.)
The Plaintiffs were on their way to a charity fund raiser at
the Woodshed Beef & Beer in Vincentown, New Jersey.
2.)

(Id. at ¶

The fundraiser was held by another motorcycle club in order

to raise funds for an ill child of one of its members.

(Id. at ¶

58.)
On their way to the charity fund raiser, the Plaintiffs'
group passed a New Jersey State Police car, which was parked at a
gasoline station on Route 206 in Southampton, New Jersey.
at ¶ 59.)

(Id.

The police car was occupied by Defendant Trooper

Carlini ("Carlini"), who was a senior trooper, and Defendant
Trooper Manuel ("Manuel"), a junior trooper who was receiving onthe-job training from Carlini.

(Id. at ¶ 60.)

None of the motorcyclists or their motorcycles displayed

3

anything visibly which violated the law.

(Id. at ¶ 62.)

However, the police car pulled out of the gas station and
followed the Plaintiffs' motorcycle group for approximately five
miles.

(Id. at ¶¶ 63-64.)

Troopers Carlini and Manuel then

activated the emergency or enforcement lights on their police car
and directed the six motorcycles to pull off to the shoulder of
the road on State Route 70.

(Id. at ¶ 65.)

No violations of the

law were visible or capable of being observed by Carlini and
Manuel before the traffic stop. (Id. at ¶ 61.)
Shortly after the Plaintiffs' group had stopped and pulled
over to the side of the road, Troopers Carlini and Manuel
manually activated a video camera which video taped the traffic
stop.

(Id. at ¶ 66.)

The New Jersey State Police agreed to make

video tape recordings of all traffic stops as a result of a court
approved settlement in United States v. State of New Jersey,
Civil No. 99-0597, which was in full force and effect on July 30,
2009.

(Id. at ¶¶ 67-68.)

According to this consent decree, the

New Jersey State Police were required to begin recording a
traffic stop at the time they signaled motorists to stop.
at ¶ 69.)

(Id.

Here, Troopers Carline and Manuel began recording

after they had signaled the Plaintiffs' group to stop and the
group was already pulled over.

(Id.)

After the Plaintiffs' group was pulled over, the radio
dispatcher reported to Troopers Carlini and Manuel that there

4

were "three different chapters coming down (Route) 530." (Id. at
¶ 75.)

Carlini then reported to the dispatcher, "I got three

Pagan's, a Tribe and two unknowns." (Id. at ¶ 77.)
Trooper Carlini then exited the police car and approached
the group.

Carlini told the group that, "you can all face

forward." (Id. at ¶ 79.)

Carlini then stated, "None of you have

proper helmets." (Id. at ¶ 81.)

Carlini made this declaration

without inspecting, either internally or externally, any of the
Plaintiffs' group's helmets.

(Id. at ¶ 82.)

Trooper Carlini then told the group to "Stay on your bikes"
and both Carlini and Manuel returned to the police car.
¶¶ 87-88.)

Trooper Carlini reported to dispatch that he had

"Four Pagans, a Tribe and another guy with no colors."
91.)

(Id. at

(Id. at ¶

Trooper Carlini then mentioned the section of the traffic

code that he intended to use to write the Complaint-Summonses as
"4-14.3q." (Id. at ¶ 92.)

This citation applies to helmets

required for operation of a motorized bicycle, not a motorcycle.
(Id. at ¶ 94.)

Trooper Carlini confirmed this citation with the

dispatcher four times. (Id. at ¶¶ 92, 100, 101, 110.)
Trooper Carlini stated the reason for the helmets being
unauthorized under 4.14-3q is that, "They have to wear visors."
(Id. at ¶ 122.)
Trooper Carlini then requested "wants and warrants" on all
six of the license tags and motorcyclists by stating, "Now here

5

comes the bad part, I am going to need lookup on all of them . .
. . warrant checks . . . . we are not going anywhere."
102.)

(Id. at ¶

Trooper Carlini then reported his location to the

dispatcher.

(Id. at ¶ 106.)

The dispatcher then informed

Carlini and Manuel that there were 90 bikes at the Woodshed bar.
(Id. at ¶ 107.)
Carlini and Manuel were then joined by Defendants Troopers
Gertsen and Lindner who stated that the Plaintiffs' group would
have run if they had any contraband.

(Id. at ¶ 111.)

Troopers

Gertsen and Linder then informed Carlini and Manuel that "one guy
I pulled over about a mile up . . . . I couldn't see if he was
wearing anything." (Id. at ¶ 114.)
Defendant Trooper O'Connor then joined Troopers Carlini,
Manuel, Gertsen and Lindner at the scene.

(Id. at ¶ 116.)

Either Gertsen, Lindner or O'Connor commented, "These are good
hardworking folk.

They're having a benefit for somebody's kid,

man, why did you have to mess with them?" (Id. at ¶ 119.)
In his police car, Trooper Carlini asked, "Are we going to
use Blue and Gold are the only colors that ride these roads?"
(Id. at ¶ 124.)

Blue and gold refer to the colors of the New

Jersey State Trooper uniform.

(Id. at ¶ 126.)

Trooper Carlini

then confirms that "We use blue and gold are the only colors that
are allowed on this road."

(Id. at ¶ 127.)

Troopers Carlini and Manuel then exited the car and asked

6

Kelly Ballinger, the wife of Plaintiff Joseph Ballinger who was
riding on her husband's motorcycle, for her license.

(Id. at ¶

130.)
Dispatch informed Trooper Carlini that Plaintiff Joseph
Ballinger had a suspended license for non-payment of an insurance
surcharge.

(Id. at ¶ 132.)

Plaintiff Joseph Ballinger had paid

the insurance surcharge and the database was incorrect.

(Id. Ex.

20.)
All the other motorcyclists had valid licenses and no one
had an outstanding warrant.

(Id. at ¶ 132.)

Trooper Carlini

requested dispatch to see whether Kelly Ballinger had a
motorcycle endorsement and Dispatch informed that no endorsement
was showing.

(Id. at ¶ 134.)

Trooper Gertsen, Lindner or O'Connor then asked, "When we
eventually go out there, what's our game plan for turning
everything inside out? Do we give like one big speech, or we tell
them one at a time?" (Id. at ¶ 135.)

"Inside out" refers to the

policy or practice of turning a jacket or vest inside out, to
hide the motorcycle club colors.

(Id. at ¶ 137.) Trooper Carlini

responded by saying, "Blue and gold are the only colors allowed
on this road." (Id. at ¶ 139.)
Troopers Carlini and Manuel then left their police cars and
approached the Plaintiffs' group.

(Id. at ¶ 143.)

Trooper

Manuel had written and signed all the summonses at the direction

7

of Carlini.

(Id. at ¶ 144.)

Seven summonses were served on all

of the motorcyclists, including the Plaintiffs.

(Id. at ¶ 146.)

After the summonses were served, Trooper Carlini spoke to
the entire group of motorcyclists and said, "Now you are all
going to take your jackets off, because on these highways these
are the only colors (indicating his blue and gold uniform) you
wear." (Id. at ¶ 149.)
Trooper Carlini then said to Plaintiff Ballinger, "You are a
suspended driver, so you're getting a ticket as well for driving
while suspended and I got no one else for this bike." (Id. at ¶
156.)
Trooper Carlini then stated, "So you are going to take your
jackets off, or I'm going to tow this bike." (Id. at ¶ 158.)
Trooper Carlini then said, "You want to take your jackets off?
If not, this bike is getting hooked." (Id. at ¶ 159.)

The

Plaintiffs did not remove their jackets, which bore their
motorcycle club colors. (Id. at ¶ 161.)

Carlini then stated, "I

can stand here all night as well." (Id. at ¶ 162.)
Then Carlini said, "I'm going to call for a tow for the
impound."

Carlini returned to the police car and told dispatch,

"You can start the first available for the impound of this
motorcycle."

(Id. at ¶ 166.)

At this time, the motorcycle was

parked on the shoulder of the road.

(Id. at ¶ 167.)

Plaintiff Coles requested a complaint form, which was handed

8

to him by Carlini, and then requested the name of the trooper who
handed him the form.

(Id. at ¶ 172.)

Trooper Carlini told

Plaintiff Coles, "It's on the ticket."

(Id. at ¶ 173.)

In

actuality, only Trooper Manuel's name was on the ticket as he was
the one who issued the tickets.

(Id.)

Then Carlini announced to the group that "Youse [ph] five
are free to leave."

(Id. at ¶ 174.)

The two remaining members

of the group were Plaintiff Ballinger and his wife, Kelly
Ballinger.

(Id. at ¶ 175.)

At this point, the traffic stop had

lasted a total of 51 minutes, 41 minutes of which the Defendants
Carlini and Manuel were in their police car.
Four of the seven motorcyclists went.

(Id. at ¶ 176.)
Both the Ballingers

and Bob Fleming, one of the members of the group, stayed behind.
(Id. at ¶ 178.)

Before the impound arrived, a friend of

Plaintiff Ballinger, Walt Smith, arrived in a pick up truck,
driven by George Fulmer, and removed the motorcycle.
168, 184.)

(Id. at ¶¶

During the traffic stop, Mr. Smith, a fellow member

of the Pagan's Motorcycle Club, had passed the Plaintiffs and was
stopped by another New Jersey State Trooper.

(Id. at ¶ 181.)

This trooper stated to Mr. Smith that he was being stopped for no
reason, except to check his license, registration and insurance
documents.

(Id. at ¶ 181.)

When Mr. Smith arrived, Defendant

Troopers again examined his license and found that it had a valid
motorcycle endorsement.

(Id. at ¶ 184.)

9

Trooper Carlini then canceled the order to impound the
motorcycle and permitted Mr. Smith to drive the bike away.
at ¶¶ 186-87.)

(Id.

Plaintiff Ballinger was driven away in the pick

up by Mr. Fulmer, and Kelly Ballinger was driven away as a
passenger on the motorcycle with Mr. Smith.

(Id. at ¶ 187.)

At

this point, the traffic stop had lasted one hour and fourteen
minutes for Plaintiff Ballinger.

(Id. at ¶ 184.)

On October 14, 2009, Plaintiffs James Cole and Louis C.
DeGailler appeared in the Municipal Court for Southampton
Township to contest the summonses that were issued on July 30,
2009.

(Id. at ¶ 189.)

They were represented by counsel, Mr.

Boyd Spencer, who represents the Plaintiffs in the instant
action.

(Id. at ¶ 190.)

They presented the helmets that they

had been wearing on July 30, 2009, to the municipal prosecutor
for inspection.

(Id. at ¶ 192.)

The prosecutor agreed that the helmets complied with
N.J.S.A. § 39:3-76.7, the statute applicable to regulating
motorcycle helmets.

(Id.)

The prosecutor further commented that

the trooper had told him that the summonses were purposely
written under section N.J.S.A. § 39:4-14.3q, Helmets for
motorized bicycles, to insult and demean the Plaintiffs and
disparage their Harley-Davidson motorcycles.

(Id. at ¶ 193.)

The municipal court then dismissed the charges finding that
the helmets were in compliance with the applicable statute.

10

(Id.

at ¶ 194.)
Plaintiff Ballinger also had his helmet violation charge
dismissed.

(Id. at ¶ 147.)

The summons for driving with a

suspended license was also dismissed as to Plaintiff Ballinger
because he had in fact paid the insurance surcharge.
20.)

(Id. Ex.

The charge was reduced to not having a license in his

possession.

(Id.)

B. Procedural History
The Plaintiffs collectively filed the instant action
pursuant to 42 U.S.C. §§ 1983, 1985(2 & 3); 1986, 1988 and
N.J.S.A. § 10:6-2 alleging numerous constitutional violations as
a result of the above incident.

[Docket Item 1.]

The

Plaintiffs named Troopers Carlini, Manuel, Gertsen, Lindner and
O'Connor as defendants in their individual capacity.

The

complaint also named Colonel Joseph R. Fuentes, Ph.D., as the
Superintendent of the New Jersey State Police, as a defendant in
both his individual and official capacity.

Finally, the

complaint also names Paula T. Dow, as the Attorney General of New
Jersey, as a defendant in her official capacity.

The Plaintiffs

have amended their complaint since filing the instant action.
The First Amended Complaint alleges several violations of
federal and state law.

Count I of the Complaint alleges

constitutional violations of the Fourth Amendment, First
Amendment and Fourteenth Amendment (substantive and procedural

11

due process, equal protection) against the five troopers and
Colonel Fuentes in their individual capacities.

Count II alleges

New Jersey state law violations of malicious prosecution and
abuse of process against the five troopers and Colonel Fuentes in
their individual capacities.

Count III of the complaint seeks

declaratory relief against the five troopers in their individual
capacity, Colonel Fuentes in his individual and official capacity
and Paula Dow in her official capacity.1
In lieu of answering the First Amended Complaint, after
several extensions were granted, the Defendants jointly filed the
instant motion to dismiss. [Docket Item 39.]

The Defendants'

motion addresses Counts I and II of the complaint but does not
address Count III for declaratory relief.

Therefore, this

opinion will only examine Counts I and II.

1

The Plaintiffs seek extensive declaratory relief
specifying that (1) wearing of collective membership marks or
colors by members of a motorcycle club is a constitutional right;
(2) wearing colors is not a constitutional basis for a traffic
stop; (3) it is unconstitutional to issue a summons for wearing
an improper motorized bicycle helmet when the motor vehicle
stopped is a motorcycle, it is unconstitutional to issue a
summons for wearing an improper helmet without an inspection of
the helmet; it is unconstitutional to retaliate against
motorcycle club members who wear colors by issuing summonses
without foundation; (4) making multiple warrant checks is
unconstitutional unless some reasonable suspicion exists for the
warrant checks and it is unconstitutional to extend a traffic
stop in order to punish, harass, demean, discriminate,
intimidate, humiliate or embarrass motorcycle club members; and
(5) threatening to impound a motorcycle in order to coerce
motorcycle club members to remove their collective membership
marks or colors, is unconstitutional.
12

In their motion, the Defendants argue that they are entitled
to qualified immunity as to the stop, detention and citations
issued to the Plaintiffs because each was objectively reasonable
under the circumstances.

Next, the Defendants argue that the

Plaintiffs failed to state a claim for malicious prosecution or
abuse of process.

The Defendants also argue that the amended

complaint fails to plausibly suggest a violation of the
Fourteenth Amendment or First Amendment.

In addition, the

Defendants argue that the Plaintiffs' complaint fails to
plausibly suggest a violation of 42 U.S.C. § 1985.

Finally, the

Defendants maintain that the Plaintiffs have failed to state a
claim under the New Jersey Civil Rights Act.
The Plaintiffs filed opposition to this motion.

The

Plaintiffs argue that the Defendants support their motion to
dismiss by injecting their own versions of the facts into their
argument and ignoring the facts that are pled in the complaint.
The Plaintiffs maintain that the argument for qualified immunity
is premature in a motion to dismiss and unsupported by the facts
in the First Amended Complaint.

Moreover, the Plaintiffs argue

that the complaint does sufficiently state a claim for each count
alleged and should not be dismissed.
The Defendants also combined their motion to dismiss with a
motion to strike pursuant to Fed. R. Civ. P. 12(f).

The

Defendants urge the court to strike all references to the Consent

13

Decree in United States v. New Jersey, No. 99-5970, because the
Plaintiffs were not parties to the consent decree and have no
standing to enforce it.

Further, the Defendants argue that

United States v. New Jersey involved racial profiling and is not
relevant to the instant action.
The Plaintiffs maintain in their opposition to the motion to
strike that all the procedures under the Consent Decree were to
be applied equally, no matter what the reason for the traffic
stop, or the persons being stopped.

The Consent Decree required

the Defendant Troopers to begin videotaping at the moment they
turned their lights on and signaled the Plaintiffs to stop, which
did not happen in this case.

Rather, the Consent Decree in this

case was violated, and the Plaintiffs argue that a spoliation
inference may arise.

The Plaintiffs contend that the Defendants'

motion is nothing more than an attempt to preemptively seek to
suppress proper inferences duly raised by the complaint.
This opinion will first address the Defendants' motion to
dismiss and will then address the Defendants' motion to strike.
III.

MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(b)(6)
A.

Standard of Review

In deciding the Defendants’ motion to dismiss pursuant to
Fed. R. Civ. P. 12(b)(6), the Court must look to the face of the
First Amended Complaint -- and undisputedly authentic underlying
documents -- and decide, taking all of the allegations of fact as

14

true and construing them in a light most favorable to the
Plaintiffs, whether their allegations state any legal claim, and
“determine whether, under any reasonable reading of the
complaint, the plaintiff is entitled to relief.”

Phillips v.

County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (citing
Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir.
2002)); see Markowitz v. Northeast Land Co., 906 F.2d 100, 103
(3d Cir. 1990).

For Plaintiffs to proceed with their claims, the

Amended Complaint must contain “sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible
on its face.’”

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007));
Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009).

In

accord with Fed. R. Civ. P. 8(a)(2), a pleading that states a
claim for relief need only contain “a short and plain statement
of the claim showing that the pleader is entitled to relief.”
Thus, a plaintiff is obligated to “provide the ‘grounds’ of his
‘entitle[ment] to relief,’” which requires more than “labels and
conclusions,” but he is not required to lay out “detailed factual
allegations.”

Twombly, 550 U.S. at 555 (quoting Papasan v.

Allain, 478 U.S. 265, 286 (1986)).

Therefore, a complaint must

contain facially plausible claims, that is, a plaintiff must
“plead factual content that allows the court to draw the
reasonable inference that the defendant is liable for the

15

misconduct alleged.”

Twombly, 550 U.S. at 556.

Following the Supreme Court precedent in Iqbal, the Third
Circuit Court of Appeals in Fowler instructs district courts to
conduct a two-part analysis when presented with a motion to
dismiss for failure to state a claim upon which relief may be
granted.

Fowler, 578 F.3d at 210-11 (citations omitted).

The

analysis should be conducted as follows:
(1) the Court should separate the factual and
legal elements of a claim, and the Court must
accept all of the complaint’s well-pleaded
facts as true, but may disregard any legal
conclusions; and (2) the Court must then
determine whether the facts alleged in the
complaint are sufficient to show that the
plaintiff has a plausible claim for relief, so
the complaint must contain allegations beyond
plaintiff’s
entitlement
to
relief.
A
plaintiff shows entitlement by using the facts
in his complaint.
Id.
The Court independently considers whether the alleged claims
are sufficient to survive Defendants’ motion to dismiss, and
draws on its judicial experience and common sense when conducting
this context-specific inquiry.

See Twombly, 550 U.S. at 556

(holding that a reviewing court’s inquiry necessitates that a
court draw on its judicial experience and common sense).
Only the allegations in the First Amended Complaint, matters
of public record, orders, and exhibits attached to the First
Amended Complaint are taken into consideration.

Chester County

Intermediate Unit v. Pennsylvania Blue Shield, 896 F.2d 808, 812
16

(3d Cir. 1990).

Additionally, without converting this motion to

a motion to summary judgment, the “court may consider an
undisputedly authentic document . . . if the plaintiff’s claims
are based on the document.”

Pension Ben. Guar. Corp. v. White

Consol. Industries, Inc., 998 F.2d 1192, 1196 (3d Cir. 1993).
“To resolve a 12(b)(6) motion, a court may properly look at
public records, including judicial proceedings, in addition to
the allegations in the complaint.”

Southern Cross Overseas

Agencies, Inc. v. Wah Kwong Shipping Group, Ltd., 181 F.3d 410,
426-427 (3d Cir. 1999).
B. DVD Video
As a preliminary matter, the court will address the issue of
whether the DVD video of the traffic stop submitted by the
Plaintiffs as an exhibit to their complaint is properly
considered by the court on the this motion.
A court "may consider an undisputedly authentic document . .
. if the plaintiff’s claims are based on the document”

without

converting a motion to dismiss into a motion for summary
judgment,

Pension Ben. Guar. Corp. v. White Consol. Industries,

Inc., 998 F.2d 1192, 1196 (3d Cir. 1993).

Here, it is

undisputed by the parties that the recording of the traffic stop
attached as an exhibit to the Plaintiff's First Amended Complaint
is an authentic document.

Therefore, the court will consider it

in evaluating the Defendants' motion to dismiss and will not

17

convert the instant motion into a motion for summary judgment.
C.

Qualified Immunity

First, the Defendants argue that the complaint should be
dismissed because they are entitled to qualified immunity.

The

Defendants argue that the Plaintiffs' stop, detention and
citations were each objectively reasonable under the
circumstances.

Specifically, the Defendants maintain that the

initial stop was supported by a reasonable suspicion of a motor
vehicle violation, probable cause existed for the issuance of the
citations and the duration of the stop was objectively
reasonable.
The Plaintiffs contend that qualified immunity is not
warranted here, especially in light of the early procedural
posture of the case.

In particular, the Plaintiffs argue that

the Defendants disregard the facts as alleged in the First
Amended Complaint and instead, rely on their own factual
allegations which are outside the four corners of the complaint
and unsupported by evidence.
As an "accommodation of competing values," qualified
immunity strikes a balance by permitting a plaintiff to recover
for constitutional violations where a governmental defendant was
"plainly incompetent or . . . knowingly violate[d] the law,"
while immunizing a state officer who "made a reasonable mistake
about the legal constraints on his actions."

18

Curley v. Klem, 499

F.3d 199, 206-07 (3d Cir. 2007) (internal quotations and
citations omitted).
The Court's assessment of whether a defendant is entitled to
qualified immunity hinges on two considerations.

The Court must

determine "whether the plaintiff has alleged a deprivation of a
constitutional right at all."

Id. (citation omitted).

If the

Plaintiff has sufficiently alleged such a deprivation, the Court
must address "whether the right that was [allegedly] violated was
clearly established, or, in other words, whether it would be
clear to a reasonable officer that his conduct was unlawful in
the situation he confronted."

Id. (internal quotations and

citations omitted).
In this case, the Plaintiff has sufficiently alleged
deprivations of a clearly established constitutional right.

The

First Amended Complaint as well as the video present facts
supporting the Plaintiffs' allegations that they were subjected
to an unlawful seizure by the Defendant Troopers as a result of
wearing their colors.

It is undisputed by the parties that

wearing colors symbolizing membership in an organization is
protected under the First Amendment.

See Tinker v. Des Moines

Independent Community School District, 393 U.S. 503, 505-506
(1969).

There is clear evidence in the video tape as well as

sufficient factual allegations in the Complaint where the
Troopers discuss making the Plaintiffs turn their jackets inside

19

out, surround the Plaintiffs on the side of the road and order
them to take off their jackets, and threaten to impound one of
the motorcycles if the Plaintiffs don't take off their colors.
The Defendants argue against these clear factual
allegations.

First, the Defendants argue that at the beginning

of the video tape, one of the bikers had his helmet off and on
his handlebars.

The Defendants argue that this is sufficient to

conclude that the Troopers had reasonable suspicion for
initiating the stop and for the subsequent citations.

The

Defendants urge the court to ignore all the comments the
Defendant Troopers made about the Plaintiffs' motorcycle colors
and view everything from an objective point of view without
considering the full context what the Troopers actually did or
said.

The Defendants maintain that the Troopers had reasonable

suspicion that the Plaintiffs and others were wearing improper
helmets prior to initiating the stop without pointing to any
allegation in the pleading.
This argument is unpersuasive.

First, on a motion to

dismiss, the Court must accept as true the facts alleged in the
complaint in a light most favorable to the plaintiff.

The Court

is not permitted to ignore facts or engage in a summary judgment
analysis on a motion to dismiss.

Second, while the video does

show a biker with a helmet on his handlebars at the beginning of
the footage, this is inconclusive as to whether the biker had the

20

helmet on at the time the stop was made.

The Defendants are

asking the court to speculate without any evidence or allegation
in the pleadings that one of the bikers, not the Plaintiffs, had
their helmet off at the time of the stop.

This is impermissible

on a motion to dismiss and would require the court to inject
factual material into the Plaintiffs' complaint which is not
present.
Finally, the qualified immunity analysis is typically
inappropriate for motions to dismiss for the very issue present
in this motion - it is a fact sensitive inquiry.

The Third

Circuit has cautioned against dismissing a case based on
qualified immunity on a 12(b)(6) motion because "it is generally
unwise to venture into a qualified immunity analysis at the
pleading stage as it is necessary to develop the factual record
in the vast majority of cases."

Newland v. Reehorst, 328 Fed.

Appx. 788, 791 n.3 (3d Cir. 2009).

While the issue of whether a

right is clearly established and whether a reasonable officer
could have believed his actions were lawful are questions of law
for the court to decide, the Court does not consider facts
outside the pleadings in assessing these issues.
The Third Circuit has clearly held that "qualified immunity
will be upheld on a 12(b)(6) motion only when the immunity is
established on the face of the complaint."

Thomas v.

Independence Township, 463 F.3d 285, 291 (3d Cir. 2006).

21

The

Defendants seek to introduce a fact which is not present on the
face of the complaint or the video - specifically that the
Troopers had reasonable suspicion that the Plaintiffs were
wearing improper helmets prior to the stop - as a basis for their
qualified immunity argument.

This is plainly against Third

Circuit case law and therefore, the Defendants' qualified
immunity argument will be denied without prejudice to the matter
being raised upon a summary judgment motion.
Similarly, the Defendants argue that the improper citation
to motorized bicycle helmets instead of motorcycle helmets should
not be a basis for the misuse of criminal process because
probable cause existed for the citations and the Troopers are
therefore entitled to qualified immunity.

However, the

Defendants point to no allegations in the pleading to support
their argument that a reasonable police officer could have
believed probable cause existed.

The pleadings as they presently

stand assert that Defendants intentionally misapplied the
motorized bicycle requirement to a motorcycle situation to serve
as a put-down to these motorcycle club members.

No reasonable

officer could believe that such an intentional mis-application of
the charging statute was lawful.

Therefore, Defendants should

not be granted qualified immunity as to the citations at this
early stage of the litigation

because the immunity is not

established on the face of the complaint.

22

Thomas, 463 F.3d at

291 (3d Cir. 2006).
Further, as to the duration of the stop, qualified immunity
should not be granted at this time.

The Defendants' argument

that the duration of the stop was reasonable ignores the factual
allegations in the Plaintiffs' complaint that the stop was
excessive due to the Troopers' speech on the primacy of "blue and
gold colors" and the demands of the officers for the Plaintiffs
to take off their jackets, which was directed at all Plaintiffs.
Only after these demands were made did the Troopers threaten to
impound Plaintiff Ballinger's motorcycle which prolonged the stop
for Plaintiff Ballinger.
Therefore, the immunity defense is not evident on the face
of the complaint and will not be granted at this time.

However,

this denial is without prejudice to the Defendants raising their
qualified immunity defense at a later stage in this litigation,
once discovery has been completed.
D.

Violation of the First Amendment

It is undisputed by the parties that it is a fundamental
First Amendment Right to wear motorcycle club colors on public
roadways. See Tinker v. Des Moines Independent Community School
District, 393 U.S. 503, 505-06 (1969)(upholding the wearing of
black armbands by public school students) and Sammartano v. First
Judicial District Court, 303 F.3d 959 (9th Cir. 2002)(holding
that the wearing of motorcycle club colors in a government

23

building is protected speech under the First Amendment).

The

Defendants do not dispute that the Plaintiffs had a
constitutional right to wear their motorcycle club colors when
riding their motorcycles nor do the Defendants dispute that this
right was clearly established at the time of the traffic stop.
Instead, the Defendants argue that the conduct of the Defendant
Troopers did not violate the First Amendment rights of the
Plaintiffs.
First, the Defendants argue that there was no actual injury
in this case because the Plaintiffs did not actually remove their
jackets and Plaintiff Ballinger's motorcycle was not towed.
However, this ignores Plaintiffs' central argument that the
traffic stop was allegedly initiated and prolonged solely because
the Plaintiffs were wearing motorcycle colors.

The Amended

Complaint sufficiently alleges that the Plaintiffs were the
subject of an unlawful seizure as a result of their protected
speech, and that the length of the seizure was intentionally
prolonged by the Defendants.

Therefore, the Defendants' argument

that no injury occurred is without merit.
Next, the Defendants argue that there was no violation of
the Plaintiffs' right to associate because the Plaintiffs were
not actually impaired from doing so.

This argument also ignores

the implications of the Defendant Troopers' allegedly unlawful
seizure.

It is undisputed that the Plaintiffs were on their way

24

to a motorcycle club charity benefit for a sick child and that
the Defendant Troopers knew of this benefit at the time of the
seizure.

If, as the complaint alleges, the Plaintiffs were

stopped because of their colors and were prevented from attending
the gathering of the motorcycle club, this would arguably
constitute an infringement of the Plaintiffs' right to expressive
association.

As these facts are all properly pled in the

complaint, the Defendants' motion to dismiss will be denied.

In

addition, the Defendants' arguments focus on the expressive right
of association of the motorcycle organization instead of the
individual Plaintiffs' First Amendment Rights.

Since the

motorcycle organizations are not a party to this action and the
complaint alleges violations of individual constitutional rights,
the Defendants' arguments are not persuasive.
Next, the Defendants argue that the Plaintiffs' First
Amendment Rights were not subjected to an impermissible chill.
"An impermissible chill is created when one is deterred from
engaging in protected activity by the existence of a governmental
regulation or the threat of prosecution thereunder.

But

generalized allegations of chill are not an adequate substitute
for a claim of specific present objective harm or a threat of
specific future harm." Aiello v. City of Wilmington, Del., 623
F.2d 845, 857 (3d Cir. 1980).
In this case, the Complaint does not allege facts to support

25

a finding of an impermissible chill.

In the Plaintiffs'

opposition, they do not address the Defendants' argument
regarding an impermissible chill.

There are no allegations that

the Plaintiffs have refrained from wearing their colors or
associating with one another or that their expression has been
chilled as a result of this incident.

Therefore, this portion of

the Plaintiffs' First Amendment claim will be dismissed.
Finally, the Defendants argue that the Plaintiffs'
retaliation claim under the First Amendment must fail because a
lack of probable cause is necessary to prove a retaliatory
prosecution claim.

However, as discussed above, the Defendants'

assertion that probable cause existed for the traffic stop and
citations is a fact outside the Amended Complaint and unsupported
by the pleadings.

In addition, on a Rule 12(b)(6) motion the

Court must read the allegations in the complaint in the light
most favorable to the Plaintiffs.

The Amended Complaint clearly

alleges a lack of probable cause for the traffic stop and
citations.

The Amended Complaint also sufficiently alleges a

claim for retaliation.2

Therefore, this argument is not

2

To state a First Amendment retaliation claim, a plaintiff
must allege (1) constitutionally protected conduct, (2)
retaliatory action sufficient to deter a person of ordinary
firmness from exercising his constitutional rights, and (3) a
causal link between the constitutionally protected conduct and
the retaliatory action. See Thomas v. Independence Twp., 463 F.3d
285, 296 (3d Cir.2006) (describing elements of retaliatory arrest
claim). Here, the Plaintiffs have alleged that they engaged in
constitutionally protected conduct by wearing their motorcycle
26

persuasive and the Plaintiffs' First Amendment claim will not be
dismissed.
E.

Malicious Prosecution Claim and Abuse of Process Claim

Five elements are necessary to allege a malicious
prosecution claim under 42 U.S.C. § 1983 when the claim arises
under the Fourth Amendment.

In his complaint, a plaintiff must

allege: (1) the defendant initiates a criminal proceeding; (2)
the criminal proceeding ends in his favor; (3) the defendant
initiates the proceeding without probable cause; (4) the
defendant acts maliciously or for a purpose other than bringing
the plaintiff to justice; and (5) the plaintiff suffers
deprivation of liberty consistent with the concept of seizure as
a consequence of a legal proceeding.
75, 81-82 (3d Cir. 2007).

Johnson v. Knorr, 477 F.3d

Under New Jersey law, a plaintiff must

allege the first four elements, but need not show the fifth
element.

Lind v. Schmid, 67 N.J. 255, 262 (1965).

The Defendants argue that the Plaintiffs' complaint fails
under federal law and state law because Trooper Carlini had an
objectively reasonable belief in probable cause and therefore
does not meet the third element of the claim.

The Defendants do

not dispute that the Complaint properly alleges the remaining

colors, that the Defendant Troopers retaliated by seizing them
and issuing false citations, and that this retaliation was caused
by the Plaintiffs' wearing of motorcycle colors.
27

elements.
As discussed above, the Defendants contention that probable
cause existed is a fact not alleged in the Complaint.

In fact,

the Complaint specifically alleges the Defendants did not have
probable cause for initiating the stop and detention of the
Plaintiffs (Am. Comp. ¶ 199) and that there was no probable cause
for any charge (Am. Comp. ¶ 229).

Therefore, this claim should

not be dismissed pursuant to 12(b)(6) as it is properly pled in
the complaint.3
A malicious abuse of process claim under section 1983 lies
where "prosecution is initiated legitimately and thereafter is
used for a purpose other than that intended by the law."
Jennings v. Shuman, 567 F.2d 1213, 1217 (3d Cir. 1997).

Under

New Jersey law, a plaintiff must show that the defendants made an

3

In addition, the Third Circuit has instructed that when
addressing the issue of a probable cause on summary judgment:
the question of probable cause in a section 1983 damage
suit is one for the jury. Patzig v. O'Neil, 577 F.2d 841,
848 (3d Cir. 1978). Summary judgment on Montgomery's
malicious prosecution claim therefore is only appropriate
if taking all of Montgomery's allegations as true and
resolving all inferences in her favor, a reasonable jury
could not find a lack of probable cause for Montgomery's
stop and arrest. Deary v. Three Un-named Police Officers,
746 F.2d 185, 191 (3d Cir. 1984).
Montgomery v. De Simone, 159 F.3d 120, 124 (3d Cir. 1998). This
further supports that the issue of probable cause cannot be
summarily determined on a motion to dismiss when there are
contrary allegations in the complaint and there is no evidence to
support the assertion that the officer had a reasonable belief
there was probable cause.
28

improper, illegal, and perverted use of process, neither
warranted nor authorized by process, and that the defendants did
so with an ulterior motive. Simone v. Golden Nugget Hotel and
Casino, 844 F.2d 1031, 1036 (3d Cir. 1988)(citing Ash v. Cohn,
119 N.J.L. 54, 58 (1937)).

The distinction between a malicious

use of process claim and an abuse of process claim is that "the
action for abuse of process lies for the improper, unwarranted,
and perverted use of process after it has been issued; while that
for the malicious use of it lies for causing process to issue
maliciously and without reasonable or probable cause." Ash, 119
N.J.L. at 58.
The Defendants maintain that the Plaintiffs have failed to
state an abuse of process claim because the Plaintiffs have not
alleged that the Defendant Troopers had any involvement with the
judicial process after the citations were issued.

However, this

argument ignores Plaintiffs' allegations regarding Trooper
Carlini's threat to the Plaintiffs to take off their jackets or
have Plaintiff Ballinger's motorcycle towed.

The traffic stop

was delayed for all Plaintiffs after they refused to take off
their jackets and were forced by the Troopers to wait for a tow
truck to be called.

This action resulted after the citations

were issued and was allegedly motivated by an ulterior motive to
force the Plaintiffs to remove their colors.

While the

Plaintiffs never took their jackets off and were eventually

29

released prior to the tow arriving, Trooper Carlini in the
presence of the other Defendant Troopers still detained the
Plaintiffs for an extended period of time as a result of his
threat.
Therefore, the court finds the Plaintiffs have properly
alleged an abuse of process claim.
F.

Violation of the Fourteenth Amendment

The Plaintiffs allege their Fourteenth Amendment rights to
procedural due process, substantive due process and equal
protection were violated by the Defendants' conduct.
The Defendants argue that all of these claims pursuant to
the Fourteenth Amendment should be dismissed.

The Defendants

first argue the Plaintiffs' malicious prosecution claim arises
under the Fourth Amendment, not the Fourteenth Amendment.
Further, Plaintiffs were offered an adequate post-deprivation
remedy for the citations at their municipal court hearing and
Plaintiff Ballinger's motorcycle was not in fact towed, so the
Defendants argue that there is no procedural due process
violation.

As to the Plaintiffs' equal protection arguments, the

Defendants argue that the Plaintiffs are not members of a
protected class and that the Plaintiffs have not alleged that the
Troopers were motivated by a discriminatory purpose.
In this case, the procedural due process arguments are
duplicative of the malicious prosecution claim which arises under

30

the Fourth Amendment.

Therefore, claims by the Plaintiffs

alleging violations of procedural due process will be dismissed.
Similarly, the Plaintiffs' claims for violations of
substantive due process are also duplicative as they allege the
same facts as Plaintiffs' First Amendment Claims.
"[W]here a particular Amendment provides an explicit textual
source of constitutional protection against a particular sort of
government behavior, that Amendment, not the more generalized
notion of substantive due process must be the guide for analyzing
these claims."

Albright v. Olivery, 510 U.S. 266, 269 (1994).

See also Torres v. McLaughlin, 163 F.3d 169, 172 (3d Cir.
1998)("Albright commands that claims governed by explicit
constitutional text may not be grounded in substantive due
process).
As discussed supra, Plaintiffs have sufficiently alleged a
violation fo their fundamental rights of free speech and
expressive association by the Defendant Troopers.

Indeed, the

Plaintiffs conceded at oral argument that their claims are
governed by the First Amendment and this is essentially a First
Amendment case.

Therefore, Plaintiffs' substantive due process

claim will be dismissed because it is governed by the First
Amendment and is more appropriately addressed as a First
Amendment claim.
However, Plaintiffs' equal protection claim is sufficiently

31

alleged and will not be dismissed.
The equal protection clause has been held to protect both
unlawful classifications of people as well as government
discrimination among people in the exercise of a fundamental
right.

See Skinner v. Oklahoma, 316 U.S. 535 (1942); U.S. v.

Williams, 124 F.3d 411, 422 (1997)("classifications affecting
fundamental rights are given the most exacting scrutiny" under
the equal protection clause); and Capital Cities Media, Inc. v.
Chester, 797 F.2de 1164, 1192-93 (3d Cir. 1986)(reasoning that
the fundamental rights body of equal protection case law provides
an independent basis for claiming relief for infringement on
freedom of speech).

Further, when a fundamental right is

implicated, strict scrutiny applies.

Romer v. Evans, 517 U.S.

620, 631 (1996).
Here, the First Amended Complaint alleges the Defendant
Troopers seized the Plaintiffs to enforce their policy that only
state police officers could wear expressive colors on New Jersey
highways and members of motorcycle organizations could not.

This

is sufficient to allege that the government Defendants
discriminated against members of motorcycle organizations in the
exercise of their fundamental First Amendment rights and is
sufficient to survive a motion to dismiss.

The Defendants'

justification for seizing Plaintiffs for wearing club colors
awaits any further motion practice but cannot be decided upon

32

this Rule 12(b)(6) motion.
Therefore, while Plaintiffs' Fourteenth Amendment claims
alleging violations of procedural and substantive due process
will be dismissed, the Plaintiffs will be permitted to proceed
with their equal protection claim.
G.

Violation of 42. U.S.C. § 1985

The Amended Complaint alleges violations of 42 U.S.C. §
1985(2) and (3) for civil rights conspiracy.

Subsection 2

provides for liability:
if two or more persons conspire for the purpose of
impeding, hindering, obstructing, or defeating, in any
manner, the due course of justice in any State or
Territory, with intent to deny to any citizen the equal
protection of the laws, or to injure him or his property
for lawfully enforcing, or attempting to enforce, the
right of any person, or class of persons, to the equal
protection of the laws.
42 U.S.C. § 1985(2).
The elements of a § 1985(3) claim for conspiracy are "(1) a
conspiracy; (2) for the purpose of depriving, either directly or
indirectly, any person or class of persons of the equal
protection of the laws, or of equal privileges and immunities
under the laws; and (3) an act in furtherance of the conspiracy;
(4) whereby a person is injured in his person or property or
deprived of any right or privilege of a citizen of the United
States."

Farber v. City of Paterson, 440 F.3d 131, 134 (3d Cir.

2006) (internal quotations and citations omitted).
A civil rights conspiracy claim under Section 1985(2) or (3)
33

must be based on invidious, class-based

discrimination, such as

race-based denial of equal protection.

Griffin v. Breckenridge,

403 U.S. 88, 102, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971) and Brawer
v. Horowitz, 535 F.2d 830, 840 (3d Cir. 1976).
In this case, invidious class-based discrimination is not at
issue and there are no allegations involving a protected class.
Rather, the allegations are limited to the Plaintiffs as members
of motorcycle organizations.

Plaintiffs' equal protection claims

are based primarily on the infringement of a fundamental right
and not class-based distinctions.
In light of the Third Circuit analysis in Brawer and the
Supreme Court analysis in Griffin, the Plaintiffs' § 1985
conspiracy claims will be dismissed.

The Third Circuit has

clearly held that § 1985 conspiracy claims are not "intended to
apply to all tortious, conspiratorial interferences with the
rights of others."4

4

Brawer, 535 F.2d at 830.

Plaintiffs' claims

The Supreme Court has held:

Whatever may be the precise meaning of a “class” for
purposes of Griffin 's speculative extension of § 1985(3)
beyond race, the term unquestionably connotes something
more than a group of individuals who share a desire to
engage in conduct that the § 1985(3) defendant disfavors.
Otherwise, innumerable tort plaintiffs would be able to
assert causes of action under § 1985(3) by simply
defining the aggrieved class as those seeking to engage
in the activity the defendant has interfered with. This
definitional ploy would convert the statute into the
“general federal tort law” it was the very purpose of the
animus requirement to avoid. Ibid.
34

are properly redressed by § 1983 which "provides a civil remedy
for specific acts of constitutional deprivation."
F.2d at 839.

Brawer, 535

Plaintiffs' claims for civil rights conspiracy

under § 1985 will be dismissed.
H.

Violation of New Jersey Civil Rights Act

The New Jersey Civil Rights Act, N.J.S.A. 10:6-1 et seq.,
was modeled after 42 U.S.C. § 1983 and creates a state law cause
of action for violation of an individual's federal and state
constitutional rights.

Owens v. Feigin, 194 N.J. 607, 612 (2008)

and Ortiz v. UMDNJ, 2008 U.S. Dist. LEXIS 117884, *4 (D.N.J. Dec.
15, 2008).

For the reasons discussed above, the Plaintiffs have

alleged sufficient claims for violations of their First
Amendment, Fourth Amendment, and Fourteenth Amendment
constitutional rights.

Therefore, the Plaintiffs have properly

stated a claim pursuant to the New Jersey Civil Rights Act.
IV.

MOTION TO STRIKE PURSUANT TO FED. R. CIV. P. 12(f)
Rule 12(f) provides a court "may strike from a pleading an

insufficient defense or any redundant, immaterial, impertinent,
or scandalous matter."

Fed. R. Civ. P. 12(f).

Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 269
(1993). In this case, there is a lack of the animus requirement
which would allow suit under § 1985. While Defendants' conduct
arguably infringed on Plaintiffs' First, Fourth and Fourteenth
Amendment rights, the facts do not connote something more than a
group of individuals who wish to engage in conduct of which the
Defendants disapprove. Without more, this is insufficient to
sustain an action pursuant to § 1985.
35

As a general matter, motions to strike under Rule 12(f) are
highly disfavored.

See Garlanger v. Verbeke, 223 F. Supp. 2d

596, 609 (D.N.J. 2002).

This is because “it is often sought by

the movant simply as a dilatory tactic.”

Waste Mgmt. Holdings v.

Gilmore, 252 F.3d 316, 347 (4th Cir. 2001).

The successful

motion to strike is granted to “save time and expense” by
clearing away pleadings “which will not have any possible bearing
on the outcome of the litigation.”
609.

Garlanger, 223 F. Supp. 2d at

However, “even where the challenged material is redundant,

immaterial, impertinent, or scandalous, a motion to strike should
not be granted unless the presence of the surplusage will
prejudice the adverse party.”

Symbol Techs., Inc. v. Aruba

Networks, Inc., 609 F. Supp. 2d 353, 359 (D. Del. 2009)
(quotations omitted).

The district court’s decision whether to

grant a motion to strike under Rule 12(f) is discretionary.

Id.

at 217 (citing River Road Devel. Corp. v. Carlson Corp. Civ. No.
89-7073, slip op. 1990 WL 69085 at *2 (E.D. Pa. May 23, 1990)).
In this case, the Defendants' motion to strike the Consent
Decree from the pleadings will be denied.

The Consent Decree is

relevant because it was in full force and effect at the time of
the traffic stop at issue in this case.

It is the reason why a

video recording of the traffic stop was made.

Most importantly,

the video was started late in this case, and the Consent Decree
may be a basis for either a spoliation inference or a negative

36

inference which would be favorable to the Plaintiffs' case.5
Considering the general policy which disfavors motions to
strike and the relevancy of the Consent Decree to Plaintiffs'
claims, the Defendants' motion to strike will be denied.
V. CONCLUSION
For the reasons discussed above, the Defendants' motion to
dismiss will be granted in part and denied in part and the
Defendants' motion to strike will be denied.

The heart of

Defendants' motion is its insistence that the Defendant Troopers
had probable cause to stop the Plaintiffs and issue the
citations.

This factual inference is outside the four corners of

the pleadings and unsupported by any affidavits or exhibits.
Further, the Defendants' motion asks the Court to make several
findings of fact which are inappropriate at this early stage of
the litigation.

The Plaintiffs have sufficiently stated a claim

for violations of their constitutional rights under the First
Amendment, Fourth Amendment and Fourteenth Amendment.

In

addition, the Plaintiffs have sufficiently stated a claim for
malicious prosecution and malicious abuse of process.
However, the Plaintiffs' procedural and substantive due

5

The Court does not determine whether the Consent Decree is
admissible at trial. While it may serve to establish the
requirement for videotaping of traffic stops, its probative value
may need to be weighed against the prospect of undue prejudice to
Defendants, confusion of the jury or undue consumption of time
under Rule 403, Fed. R. Evid.
37

process claims will be dismissed.

In addition, Plaintiffs' civil

conspiracy claims will be dismissed as the Plaintiffs have not
alleged invidious, class-based discrimination sufficient to
establish a 42 U.S.C. § 1985 claim.
Finally, the Defendants' motion to strike will be denied as
the consent decree is relevant to the instant case and could form
the basis of a negative inference in favor of the Plaintiffs'
claims.
The accompanying Order will be entered.

March 29, 2012
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge

38