CHRISTIAN et al v. HAMILTON JEWELERS BOROUGH OF RED BANK et al

Filing 102

OPINION. Signed by Judge Joseph E. Irenas on 4/17/2014. (dmr)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

REVEREND RONALD CHRISTIAN, TAMI
CHRISTIAN, and EVERETTE
CHRISTIAN,
HONORABLE JOSEPH E. IRENAS
Plaintiffs,
CIVIL ACTION NO. 11-00518
(JEI/KMW)

v.
HAMILTON JEWELERS, RED BANK
POLICE DEPARTMENT, CAPTAIN
DARREN MCCONNELL, JOHN/JANE
DOES 1-10, CORPORATIONS ABC
through XYZ, and BOROUGH OF RED
BANK,

OPINION

Defendants.

APPEARANCES:
Cynthia Hardaway, Esq.
Military Park Building
60 Park Place
Suite 1602
Newark, NJ 07102
Counsel for Plaintiffs Reverend Christian, Tami Christian,
and Everette Christian
Thomas R. Ashley, Esq.
50 Park Place
Suite 1400
Newark, NJ 07102
Counsel for Plaintiffs Reverend Christian, Tami Christian,
and Everette Christian

1

CHAMLIN, ROSEN, ULIANO & WITHERINGTON, PC
John T. Bazzurro, Esq.
Charles John Uliano, Esq.
268 Norwood Avenue
PO Box 38
West Long Branch, NJ 07764
Counsel for Defendants Red Bank Police Department, Captain
Darren McConnell, and Borough of Red Bank

BYRNES O’HERN LLC
Daniel J. O’Hern, Jr., Esq.
28 Leroy Place
Red Bank, NJ 07701
Counsel for Defendants Red Bank Police Department, Captain
Darren McConnell, and Borough of Red Bank
IRENAS, Senior District Judge:
This § 1983 and state law torts matter, currently before
the Court on Defendants’ motion for summary judgment, involves
the dissemination of a police notification informing surrounding
law enforcement agencies and related organizations of a report
of suspicious conduct at a local jewelry store.1

The

notification contained two of the Plaintiffs’ DMV photos and
identifying information, referred to them as “subjects,” and
informed recipients that although no crime was committed, it is
possible that the subjects “have committed a theft in other
jurisdictions or may be preparing to do so.”

1

(Opp’n Br., Ex. M)

The Court has subject matter jurisdiction pursuant to 28 U.S.C.
§ 1331, and exercises supplemental jurisdiction of Plaintiffs’
state law claims pursuant to 28 U.S.C. § 1367(a).
2

Plaintiffs, aggrieved by the miasma of criminality created
by the message, argue Defendants’ conduct was racially
motivated, contrary to proper police procedure, and injured
Plaintiffs’ standing in their community.

Defendants argue that

liability cannot attach because Defendants are protected by
qualified immunity, and in any event Plaintiffs fail to prove
the occurrence of a constitutional violation.
For the reasons outlined below, the Court will grant
summary judgment in Defendants’ favor.

While the United States

Constitution, New Jersey common law, and New Jersey Law Against
Discrimination clearly protect against racially motivated and
unfounded allegations of criminality, the conduct of Defendants
did not violate the law.

I.
On May 15, 2010, Plaintiff Reverend Ronald Christian and
his wife Tami entered Hamilton Jewelers (“Hamilton”) in Red
Bank, New Jersey.2

(Pls.’ Fact ¶ 1)3

From the moment they

entered, they believed they were being stared at and followed
because of their African-American race.

While Reverend

2

Hamilton was formerly a defendant but was dismissed with
prejudice November 7, 2013. (Dkt. No. 96)
3

The Courts refers to Plaintiffs’ Statement of Material Facts
with the citation “Pls.’ Facts” and Defendants’ Statement of
Undisputed Material Facts with “Defs.’ Facts.”
3

Christian spoke on his cell phone, occasionally exiting and reentering the store, Tami looked at jewelry and spoke with store
employees.

(Pls.’ Fact ¶ 1)

At one point the couple went

upstairs to use the restroom.

(Pls.’ Fact ¶ 6)

A sales

associate followed them and waited outside.
The couple returned downstairs and Tami tried on a $6,000
watch.

(Pls.’ Facts ¶¶ 1, 32)

Reverend Christian then told a

store employee that they had to eat before buying anything, and
the couple soon left the store.

(Pls.’ Facts ¶ 33)

visit lasted approximately one hour.4

The entire

(Pls.’ Facts ¶ 1)

Minutes after Hamilton closed its doors for the day, the
couple returned.

(Pls.’ Facts ¶ 8)

Reverend Christian tried to

enter, and after finding the front door locked, asked an
employee through the closed door if he could check the restroom
for his keys.

(Pls.’ Facts ¶ 8)

The employee checked the

restroom himself, did not find any keys, and refused the
Christians entry.

(Pls.’ Facts ¶ 8)

Reverend Christian then

asked the owner of a neighboring store, referred to by the
parties as “Anthony,” if he could assist in gaining entry to
Hamilton.

(Pls.’ Facts ¶ 9)

Anthony’s attempts were also

rebuffed.

4

Along with their opposition brief and supporting materials,
Plaintiffs submitted a USB memory stick on which the relevant
portions of Hamilton’s video footage are saved. The Court has
reviewed the footage.
4

After the Christians left, a Hamilton employee called
Defendant Red Bank Police Department (the “Department”) and
reported that a couple who had acted suspiciously while in the
store had returned after closing and were refused entry.
Facts ¶ 9)

(Pls.’

The employee asked the Department if a police

officer could escort the remaining employees to their cars.
(Pls.’ Facts ¶ 9)

Officer Hicks was quickly dispatched,

escorted the employees to their cars, and wrote up an incident
report.

(Pls.’ Facts ¶ 9)

Hicks included in his report the

license plate number of the Christians’ car, as reported by
Hamilton employees.

(Pls.’ Facts ¶ 11)

Two weeks later, employees of non-party Mustillo’s Bridal
Boutique (“Mustillo’s”), located on the same street as Hamilton,
reported to the Department that an African-American couple had
recently visited the store and acted in a suspicious manner.
(Pls.’ Facts ¶ 12)

Officer Hicks, who is himself African-

American, again responded to the call, spoke with Mustillo’s
employees and wrote a report on his visit.

In his report,

Officer Hicks noted that the incident “sound[s] similar to an
incident that was reported [] at Hamilton Jewelers.” (Defs.’
Facts ¶ 10; Opp’n Br., Ex. F)
Defendant Captain Darren McConnell, director of the
Department’s Special Operations Bureau, read the two reports and
decided to conduct an investigation.
5

(Pls.’ Facts ¶¶ 14, 28)

He visited Hamilton on June 2, 2010 and met with Johnny
Hillibrandt, a Hamilton employee who helped the Christians
during their visit.

Hillibrandt told McConnell that he did not

believe the couple was interested in buying a watch because they
were walking around looking at other items and repeatedly
wandered in and out of the store.

(Pls.’ Facts ¶ 15)

Hillibrandt also told McConnell that Reverend Christian made
several vulgar statements and asked another sales associate if
she was afraid he was “going to steal something,” thereby
strengthening Hillibrandt’s suspicion.

(Pls.’ Facts ¶¶ 15, 16)

McConnell and Hillibrandt also reviewed Hamilton’s surveillance
tape from the day of the incident.

(Pls.’ Facts ¶ 19)

Prior to visiting Hamilton, McConnell ran the license plate
number Officer Hicks included in his Hamilton incident report.
(Pls.’ Fact ¶ 20)

After determining that Reverend Christian was

the registered owner of the car, McConnell ran Reverend
Christian’s driver’s license and printed a copy of his DMV
photo.

(Pls.’ Fact ¶ 20)

McConnell also ran the vehicle’s

license plate through the Department’s Automated Traffic System
(ATS) to determine who else drove the vehicle.
20)

(Pls.’ Facts ¶

ATS informed McConnell that Plaintiff Everette Christian,

Reverend Christian’s sister, had previously received a summons
while operating the vehicle.

(Opp’n Br., Ex. H)

subsequently printed her DMV photo.
6

McConnell

(Pls.’ Fact ¶20)

Captain McConnell took the photos with him when he visited
Hamilton and showed them to Hillebrandt and Anthony, the
neighboring proprietor.

(Pls.’ Facts ¶ 20; Defs.’ Facts ¶ 14)

Hillebrandt identified Reverend Christian as the male who had
visited the store and stated he was fairly certain the
Reverend’s companion was Everette.

(Pls.’ Facts ¶ 21)

Anthony

was shown the same photos and stated that he was certain that
the companion was Everette, but wasn’t certain the male was
Reverend Christian, yet he added it very well could be.
Facts ¶ 21)

(Pls.’

McConnell, apparently under the assumption that

Everette was with Reverend Christian at Hamilton, did not show
Hillebrandt or Anthony a photo of anyone other than Reverend
Christian and Everette.
McConnell returned to the station to write a supplemental
report.

(See Br., Ex. C)

McConnell ran the Christians’ names

through the Department’s Automated Criminal System (ACS) and
learned that the Reverend had a prior shoplifting complaint
filed against him and Everette had entries for “ordinance type
violations” but no criminal entries.

(Defs.’ Fact ¶ 15; Pls.’

Facts ¶ 22)
McConnell further determined, in light of height
disparities between the relevant actors, that different couples
visited Hamilton and Mustillo’s.

(Pls.’ Facts ¶ 22)

7

On June 3, 2010, McConnell prepared a notification titled
“Police Information” (the “Information”) that he disseminated
via email, fax, and New Jersey’s Critical Reach System.5

The

Information identified Reverend and Tami Christian by name,
included their DMV photos, dates of birth, driver’s license
numbers, and home addresses, and stated that the Department
“received a report of a suspicious incident involving two
subjects possibly attempting to commit a distraction theft at a
local jewelry store.”

(Information, Br., Ex. F)

The

Information then recounted the events of the day of the
incident: the subjects “inquired about purchasing a Chanel watch
for $6,000”; “[e]mployees immediately became suspicious”; “the
subjects [] returned 10 minutes after store clos[ed]” and
“attempted to have a nearby storeowner convince” the employees
to open the store, “at one point claim[ing] to have left their
keys in the store.”

(Information, Br., Ex. F)

The Information concluded: “Although no crime occurred in
this jurisdiction, this information is being relayed for
information purposes as the actors could have committed a theft
in other jurisdictions or may be preparing to do so.

5

Any

New Jersey’s Critical Reach System is a secure network used by
the state’s law enforcement entities. (Defs.’ Facts ¶ 16)
Plaintiffs assert that the Information was sent “to several nonlaw enforcements [sic] agencies, to include municipalities,
jails, and organizations such as crime stoppers, which are made
up of private citizens.” (Pls.’ Facts ¶ 58)
8

department with information or inquiries contact Capt. Darren
McConnell.”

(Information, Br., Ex. F)

Reverend Christian subsequently found a copy of the
Information laying on his desk at his church.6
35)

It is unknown who left it there.

immediately faxed Everette a copy.

(Pls.’ Facts ¶

(Pls.’ Facts ¶ 35)

He

(Pls.’ Facts ¶ 38)

The Reverend called Captain McConnell on the number
provided on the Information but does not recall reaching him.
(Pls.’ Facts ¶ 37)

Soon thereafter, he faxed a letter to

Captain McDunna of the Department, informing him that his sister
Everette was not with him on the day in question and “seeking
an[] immediate retraction” of the Information.

(Opp’n Br., Ex.

M)
On June 18, 2010, the Department responded with a
notification of cancellation.

(Defs.’ Facts ¶ 20)

Titled

“CANCEL – POLICE INFO,” the cancellation stated that the
incident “occurred on 5/15/2010 not 5/8/2010 as initially
reported” and that “information received from male subject
Ronald Christian indicates that female subject listed in message
Everette Christian was not present . . . [and] that he was at
jewelry store for legitimate purposes.”

6

(Cancellation

Reverend Christian also claims that parishioners gave him
copies of the Information, and that a copy was left on his car.
(Pls.’ Facts ¶ 36)
9

Information, Br., Ex. H)

The cancellation was sent to 883

Critical Reach Systems, 69 fax machines, and 865 email
addresses; the Information was originally sent to 576 Critical
Reach Systems, 42 fax numbers, and 531 email addresses.

(Pls.’

Facts ¶ 56)
Reverend Christian continues to work at the Love Baptist
Church, but claims he lost paid speaking engagements at other
churches because of the Information.

(Pls.’ Facts ¶¶ 40-41)

He

sought medical treatment for his stress and anxiety but was not
placed on any medications and was told that he is “medically
fine.”

(Pls.’ Response Facts ¶ 21; Defs.’ Facts ¶ 21)

Everette

felt too embarrassed to attend subsequent church events and no
longer considers herself a member.

(Pls.’ Facts ¶ 39)

has not sought the treatment of a medical professional.

Everette
(Defs.’

Facts ¶ 22)

II.
Summary judgment is proper if “the movant shows that there
is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.”

Fed. R. Civ. P.

56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986).

In deciding a motion for summary judgment, the Court

must construe the facts and inferences in a light most favorable

10

to the non-moving party.

Pollock v. Am. Tel. & Tel. Long Lines,

794 F.2d 860, 864 (3d Cir. 1986).
“‘With respect to an issue on which the non-moving party
bears the burden of proof, the burden on the moving party may be
discharged by ‘showing’ – that is, pointing out to the district
court – that there is an absence of evidence to support the
nonmoving party’s case.’”

Conoshenti v. Public Serv. Elec. &

Gas, 364 F.3d 135, 145-46 (3d Cir. 2004) (quoting Celotex, 477
U.S. at 323).

The role of the Court is not “to weigh the

evidence and determine the truth of the matter, but to determine
whether there is a genuine issue for trial.”

Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).

“Only disputes

over facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary
judgment.”

Id. at 249.

III.
Plaintiffs allege Defendants McConnell, the Department, and
the Borough of Red Bank (“Borough”) are liable under (A) 42
U.S.C. § 1983; (B) 42 U.S.C. § 1985; (C) 42 U.S.C. § 1981; (D)
various New Jersey common law torts; and (E) New Jersey’s Law
Against Discrimination.7

7

(Compl. ¶¶ 32-66)

For the reasons set

Plaintiffs also name several ficticious entities that have not
yet been dismissed. Although “[u]se of John Doe defendants is
11

forth below, the Court will grant summary judgment in
Defendants’ favor on each of Plaintiffs’ claims.

A. § 1983
“By the plain terms of § 1983, two-and only two-allegations
are required in order to state a cause of action under the
statute.

First, the plaintiff must allege that some person has

deprived him of a federal right.

Second, he must allege that

the person who has deprived him of that right acted under color
of state or territorial law.”

Gomez v. Toledo, 446 U.S. 635,

640 (1980).
The parties do not dispute that Captain McConnell acted
under state law.

Accordingly, Plaintiffs’ § 1983 claims turn on

whether Plaintiffs were deprived of a federal right.
The Court has identified three federal rights Plaintiffs
allege were infringed.

The Plaintiffs allege explicitly that

Defendants’ actions “deprived [them] of their constitutional
rights to due process of law [and] equal protection of the

permissible in certain situations until reasonable discovery
permits the true defendants to be identified,” these parties
must be dismissed if such discovery does not reveal their proper
identities. See Blakeslee v. Clinton Cnty., 336 F. App'x 248,
250 (3d Cir.2009) (affirming district court's sua sponte
dismissal of fictitious parties that were not identified after
discovery); see also Fed. R. Civ. P. 21 (“On motion or on its
own, the court may at any time, on just terms, add or drop a
party.”). Accordingly, the fictitious entities and
organizations listed as Defendants are dismissed.
12

law[.]”

(Compl. ¶ 33)

In addition, the Court construes

Plaintiffs’ allegations that Defendants’ violated their privacy
rights to constitute a claim for constitutional invasion of
privacy.

(See Compl. ¶ 33)

Plaintiffs’ claims, however, fail for the following
reasons.

1.

Due Process

Plaintiffs’ § 1983 claim predicated on a deprivation of
procedural due process rights fails because Plaintiffs do not
identify an entitlement, with which Defendants interfered,
deserving of due process protection.
The Fourteenth Amendment decrees that no state shall
“deprive any person of life, liberty, or property, without due
process of law.”

U.S. Const. amend. XIV, § 1.

“To prevail on a

claim under § 1983 for deprivation of procedural due process
rights, a plaintiff must allege that (1) he was deprived of an
individual interest that is encompassed within the Fourteenth
Amendment's protection of ‘life, liberty, or property,’ and (2)
the procedures available to him did not provide due process of
law.”8

Chambers v. Sch. Dist. of Phila. Bd. of Educ., 587 F.3d

176, 194 (3d Cir. 2009).

8

To the extent Plaintiffs allege a violation of their
substantive due process rights, such rights are “violated by
13

When evaluating such a claim, courts “first must determine
whether the asserted interest is encompassed within the
Fourteenth Amendment's protection of life, liberty, or
property[.]”

Solomon v. Phila. Hous. Auth., 143 F. App’x. 447,

452 (3d Cir. 2005).
Plaintiffs allege the following interests deserve due
process protection: (a) Reverend Christian’s lost speaking
engagements at other churches, and (b) Reverend Christian and
Everette’s damaged reputation within the community.
Procedural due process, however, does not protect every
benefit; rather, to have a property interest in a benefit, a
person must have more than a unilateral expectation of receiving
the benefit.

Town of Castle Rock, Colo. v. Gonzales, 545 U.S.

748, 756 (2005).

In constitutional parlance, the claimant must

have a legitimate claim of an “entitlement.”

Culinary Service

of Delaware Valley, Inc. v. Borough of Yardley, Pa, 385 F.
App’x. 135, 141 (3d Cir. 2010).

Furthermore, a “plaintiff must

executive action only when [the action] can properly be
characterized as arbitrary, or conscience shocking, in a
constitutional sense.” Cnty. of Sacramento v. Lewis, 523 U.S.
833, 847 (1998). “[O]nly the most egregious official conduct”
shocks the conscience. Lewis, 523 U.S. at 846. “Whether an
incident ‘shocks the conscience’ is a matter of law for the
courts to decide.” Benn v. Universal Health Sys., Inc., 371
F.3d 165, 174 (3d Cir. 2004) (citing Rochin v. California, 342
U.S. 165, 172, (1952)). Defendants’ conduct does not come close
to shocking the conscience, and consequently, any claim under
substantive due process fails.
14

demonstrate entitlement to a property interest created expressly
by state statute or regulation or arising from government policy
or a mutually explicit understanding between a government
employer and an employee.”

Carter v. City of Philadelphia, 989

F.2d 117, 120 (3d Cir. 1993).
Reverend Christian’s speaking engagements, however,
allegedly lost due to Defendants’ dissemination of the
incriminating Information, were not created by state statute or
regulation, did not arise from a government policy, and did not
originate from a mutually explicit understanding between the
Reverend and a government employer.

Accordingly, Reverend

Christian’s prospective speaking engagements are not property
interests afforded due process protection.
Furthermore, while the Fourteenth Amendment secures for
Reverend Christian the liberty right to hold private employment
and to follow a chosen profession free from unreasonable
government interference, see Piecknick v. Pennsylvania, 36 F.3d
1250, 1259 (3d Cir. 1994), the record indicates Defendants have
not interfered with this right: Reverend Christian continues to
work for Love Baptist Church.

(Christian Dep. at 43 (“My job is

to preach, pray, visit the sick[.]”)) ; cf. Culinary Service of
Delaware Valley, Inc., v. Borough of Yardley, 385 F. App’x. 135,
141-42 (3d Cir. 2010) (dismissing § 1983 claim because
defendant-borough’s interference with game manufacturer’s
15

ability to sell one specific arcade game did not prevent
manufacturer from selling other such games); Bernard v. United
Twp. High Sch. Dist. No. 30, 5 F.3d 1090, 1092-93 (7th Cir.
1993) (finding no liberty interest in distributing one
particular print because plaintiff was not prevented from
distributing other prints); Piecknick, 36 F.3d at 1259 (“It is
the liberty to pursue a calling or occupation, and not the right
to a specific job, that is secured by the Fourteenth
Amendment.”).
Accordingly, Reverend Christian has failed to put forward a
cognizable claim based on interference with a property or
liberty interest predicated on his lost speaking engagements.
Plaintiffs also allege due process violations based on the
reputational harm suffered by both Reverend and Everette
Christian.

In § 1983 parlance, such claims are known as

“stigma-plus” claims because claimants must “show a stigma to
[one’s] reputation plus deprivation of some additional right or
interest.”
Cir. 2006).

Hill v. Borough of Kutztown, 455 F.3d 225, 236 (3d
In other words, reputation damage is not actionable

unless “it occurs in the course of or is accompanied by a change
or extinguishment of a right or status guaranteed by state law
or the Constitution.”

Clark v. Twp. of Falls, 890 F.2d 611, 619

(3d Cir. 1989).

16

As noted above, the Reverend’s lost speaking engagements
are not protected under the Fourteenth Amendment, and Plaintiffs
do not point to any other interest with which Defendants
interfered.9

Consequently, even if Plaintiffs were able to prove

government action that unlawfully stigmatized them, see Ersek v.
Twp. Of Springfield, 102 F.3d 79, 83-84 (3d Cir. 1997) (“the
government action first must involve a publication that is
substantially and materially false”), Plaintiffs’ § 1983
“stigma-plus” claim cannot succeed.10

9

Although the Third Circuit has not definitively answered the
question “whether something less than a property interest,
independently protected by the Due Process Clause, could be a
sufficient ‘plus,’” Ersek v. Twp. Of Springfield, 102 F.3d 79,
83 n.5 (3d Cir. 1997), the Supreme Court “has never held that
the mere defamation of an individual, whether by branding him
disloyal or otherwise, was sufficient to invoke the guarantees
of procedural due process absent an accompanying loss of
government employment.” Paul v. Davis, 424 U.S. 693, 706 (1976).
10

Because the Court holds that Plaintiffs have not asserted an
individual interest encompassed within the Fourteenth
Amendment’s protection, it does not analyze whether “the
procedures available to [Plaintiffs] provide[d] due process of
law.” Hill, 455 F.3d at 234; see also Ersek, 102 F.3d at 84
(“The principal relief to which an individual is entitled should
the government’s stigmatizing comments rise to the level of a
due process violation is a hearing to clear [one’s] name.”).
The Court notes, however, that upon learning of the Information,
Reverend Christian faxed Captain McDunna of the Department a
letter informing him that (i) Everette Christian had been
misidentified and was not present at Hamilton; and (ii) he and
his wife visited Hamilton for legitimate purposes. (Pls.’ Facts
¶ 37) Captain McDunna soon thereafter adopted Reverend
Christian’s corrections in the follow-up “Cancel - Information”
that was sent to even more recipients than the original
Information. (Defs.’ Facts ¶ 20; Pls.’ Facts ¶ 52)
17

2.

Equal Protection

To succeed on their § 1983 equal protection claim,
Plaintiffs must prove that Defendants’ actions (1) had a
discriminatory effect and (2) were motivated by a discriminatory
purpose.

See Arlington Heights v. Metro. Hous. Dev. Corp., 429

U.S. 252, 264–66 (1977); Major Tours, Inc. v. Colorel, 799 F.
Supp. 2d 376, 391 (D.N.J. 2011).

To prove discriminatory

effect, Plaintiffs must show that they are members of a
protected class, that they are otherwise similarly situated to
members of the unprotected class, and that they were treated
differently from members of the unprotected class.

See Major

Tours, Inc., 799 F. Supp. 2d at 392-93.
Plaintiffs allege that white customers at Hamilton were not
followed throughout the store, but Reverend and Tami Christian
were.11

Plaintiffs do not, however, offer any evidence

whatsoever by which the Court could conclude that Defendants—as
opposed to the employees of Hamilton—treated them differently
than white citizens.

See Warner v. Federal Express Corp., 174

F. Supp. 2d 215, 223 (D.N.J. 2001) (granting defendants’ motion
for summary judgment because of “no proof of discrimination in

11

(Pls.’ Facts ¶ 6 (“Although plaintiffs never asked for his
assistance, Hillebrandt escorted plaintiffs upstairs because it
was the policy of Hamilton that all clientele be escorted due to
the ‘valuables’ located upstairs. However, Camera 16, frame 1,
shows a white male go upstairs to the second floor
unattended.”))
18

the record besides whatever inference is drawn from the fact
that Plaintiff was a member of a protected class”).
Accordingly, Plaintiffs’ claim cannot succeed.

3.

Right to Privacy

Plaintiffs allege Defendants “invad[ed] plaintiffs’ right
to privacy” and “depriv[ed] plaintiffs of their rights,
privileges, and/or immunities secured by the United States
Constitution and law.”

(Compl. ¶ 33)

The Court construes

Plaintiffs’ allegations as a § 1983 “right to privacy claim,”
and will grant summary judgment in favor of Defendants.12

See

Warner v. Township of South Harrison, 885 F. Supp. 2d 725, 736
(D.N.J. 2012) (setting forth the elements to a § 1983 right to
privacy claim).
Although the Constitution does not expressly protect a
right to privacy, and the Supreme Court has not found such a
generalized right, the Court has recognized “zones of privacy”

12

The parties did not brief the strength of Plaintiffs’
substantive claim, choosing instead to focus their attention on
the applicability of qualified immunity. (See Br. at 11-20;
Opp’n Br. at 19-32) This was in error. The Supreme Court has
repeatedly instructed lower courts and litigants that that the
first issue to be analyzed in § 1983 matters is whether a
deprivation has occurred at all. See, e.g., Cnty. of Sacramento
v. Lewis, 523 U.S. 833, 841 n.5 (1998). Qualified immunity
should only be considered if the Court first finds that a
constitutional right has in fact been violated.
19

in the various amendments to the Constitution.

Roe v. Wade, 410

U.S. 113, 152-53 (1973); C.N. v. Ridgewood Bd. of Educ., 430
F.3d 159, 178 (3d Cir. 2005).

These zones protect two types of

privacy interests, only one of which is relevant here: the right
to avoid disclosure of personal matters.13

Hedges v. Musco, 204

F.3d 109, 121 (3d Cir. 2000).
To evaluate such a claim, the Court must first determine
whether the information disclosed is entitled any privacy
protection.

C.N., 430 F.3d at 179.

If a privacy interest is

implicated, the Court must then weigh the various competing
interests at issue and decide whether the disclosure was
justified.

Id. at 179–80.

The Court holds that even if Plaintiffs’ privacy interests
were implicated in the publication of the Information,
Defendants’ publication of the details contained therein was
justified.

See Paul P. v. Verniero, 170 F.3d 396, 404 (3d Cir.

1999) (affirming summary judgment in defendants’ favor on
constitutional privacy claim after recognizing a privacy

13

The other privacy interest protected by the Constitution is
possessing the independence necessary to make certain kinds of
important decisions, such as those relating to marriage,
procreation, contraception, family relationships, and child
rearing and education. United States v. Westinghouse Elec.
Corp., 638 F.2d 570, 577 (3d Cir. 1980).
20

interest in one’s home address and subsequently engaging in
balancing inquiry).
The Third Circuit has held specifically that police
reports, such as the McConnell report from which the details of
the Information were taken, are public documents that, if
disseminated, do not implicate constitutional concerns.
In Scheetz v. The Morning Call, Inc., 946 F.2d 202, 207 (3d
Cir. 1991), the Third Circuit held that “the information
contained in a police report is not protected by the
confidentiality branch of the constitutional right of privacy.”
And the court has more recently reaffirmed this rule.

See Nunez

v. Pachman, 578 F.3d 228, 232 (3d Cir. 2009) (“Here, Nunez does
not dispute the established precept [that] . . . police reports
. . . are inherently public-not private-documents and are thus
beyond the purview of the Due Process Clause.”)
Consequently, McConnell’s dissemination of the Information
was justified, even if Plaintiffs’ privacy interests were
implicated in its publication.

Accordingly, summary judgment

will be granted in favor of Defendants on Plaintiffs § 1983
claims.14

14

In connection with their § 1983 claims, Plaintiffs allege
municipal liability against Defendant Borough. (Compl. ¶ 62)
However, in the absence of an underlying constitutional
violation, there can be no municipal liability under § 1983. See
Brown v. Pa. Dep't of Health Emergency Med. Servs. Training
Inst., 318 F.3d 473, 482–83 (3d Cir. 2003) (“[F]or there to be
21

B. § 1985
Plaintiffs allege Defendants are liable under 42 U.S.C. §
1985(3), and in response Defendants move for summary judgment.15
“Section 1985(3) permits an action to be brought by one
injured by a conspiracy formed 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.”

Estate of Oliva v. N.J. Dep't of

Law & Pub. Safety, Div. of State Police, 604 F.3d 788, 802 (3d
Cir. 2010).

To prevail, a claimant must establish:

(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; (3) an act in furtherance of the
conspiracy; and (4) a person has been either injured in his
person or property or deprived of any right or privilege of a
citizen of the United States.

United Broth. of Carpenters and

municipal liability, there still must be a violation of the
plaintiff's constitutional rights.”). Accordingly, summary
judgment is granted in Defendants’ favor on Plaintiffs’ claim
for municipal liability.
15

Title 42 Section 1985 provides, in relevant part:
If two or more persons in any State or Territory conspire
. . . 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; . . . the person so injured
or deprived may have an action for the recovery of
damages occasioned by such injury or deprivation,
against any one or more of the conspirators.
22

Joiners of America, Local 610, AFL–CIO v. Scott, 463 U.S. 825,
829 (1983); Farber v. City of Paterson, 440 F.3d 131, 135 (3d
Cir. 2006).
A “meeting of the minds” is required for a civil rights
conspiracy cause of action.

Starzell v. City of Philadelphia,

533 F.3d 183, 205 (3d Cir. 2008).

Yet there is no evidence in

the record from which one could infer an understanding or
agreement to conspire against Plaintiffs.

The evidence only

indicates that McConnell met with Hillibrandt to follow-up on
Officer Hicks’ initial report, that McConnell pursued his
investigation independent of Hillibrandt, interviewing Anthony
and running background checks on Reverend and Everett, and that
he disseminated the Information to inform nearby law enforcement
agents of the recent report.

Accordingly, Plaintiffs’ claim

cannot succeed.

C. § 1981
Plaintiffs allege Defendants are liable under 42 U.S.C. §
1981 for “committing acts of defamation against them.”16

16

(Compl.

42 U.S.C. § 1981 states:
All persons within the jurisdiction of the United States
shall have the same right in every State and Territory
to make and enforce contracts, to sue, be parties, give
evidence, and to the full and equal benefit of all laws
and proceedings for the security of persons and property
as is enjoyed by white citizens, and shall be subject to
23

¶ 65)

Plaintiffs, however, do not defend this claim in their

opposition brief.
waived.

(See Opp’n Br.)

Consequently, the claim is

Freeman v. Middle Tp. Bd. of Educ., Civ. No. 10-6024,

2012 WL 3715925, at *3 (D.N.J. Aug. 27, 2012) (granting summary
judgment in defendants’ favor on all claims not defended in
plaintiff’s opposition brief); see also Resolution Trust Corp.
v. Dunamr Corp., 43 F.3d 587, 599 (11th Cir.1995) (“In opposing
a motion for summary judgment, a party may not rely on his
pleadings to avoid judgment against him. . . . [T]he onus is
upon the parties to formulate arguments; grounds alleged in the
compliant but not relied upon in summary judgment are deemed
abandoned.”).

Summary judgment will be granted in Defendants’

favor.17

D. State Law Tort Claims
Defendants move for summary judgment in their favor on all
of Plaintiffs’ state law tort claims on the basis of the

like punishment, pains, penalties, taxes, licenses, and
exactions of every kind, and to no other.
17

The Court further notes that § 1981 does not provide claimants
with a private right of action against state actors. McGovern
v. City of Philadelphia, 554 F.3d 114, 121 (3d Cir. 2009).
Rather, litigants seeking to enforce rights guaranteed by the §
1981 must do so under § 1983. See, e.g., Benjamin v. City of
Atlantic City, Civ. No. 12-3471 (NJS/AMD), 2014 WL 884569, at *9
(D.N.J. Mar. 6, 2014).
24

statutory immunity afforded by New Jersey’s Tort Claims Act.18
N.J.S.A. 59:3-3 provides: “A public employee is not liable if he
acts in good faith in the execution or enforcement of any law.”
“Good faith immunity under section 3-3 has two alternate
components.”

Alston v. City of Camden, 168 N.J. 170, 186 (2001)

(internal quotations omitted).

A public employee must

demonstrate either “‘objective reasonableness’ or that he
behaved with ‘subjective good faith.’”

Id.

“[I]mmunity would be defeated if an official knew or
reasonably should have known that the action he took within his
sphere of official responsibility would violate the
constitutional rights of the plaintiff, or if he took the action
with the malicious intention to cause a deprivation of
constitutional rights or other injury.”

Id. at 187 (quoting

Harlow v. Fitzgerald, 457 U.S. 800, 815 (1982).
The Court finds Defendants’ conduct objectively reasonable.
Captain McConnell began investigating the Hamilton incident
because of two separate incident reports, each initially called
into the Department by different proprietors whose stores are
located on the same street.

A separate officer, Officer Hicks,

responded to the calls and noted that the reports may be

18

Specifically, Plaintiffs allege (i) defamation (Compl. ¶¶ 3946); (ii) right to privacy (id. ¶¶ 47-49); (iii) intentional
infliction of emotional distress (id. ¶¶ 50-53); and (iv)
negligence (id. ¶¶ 54-58).
25

related.

McConnell then interviewed Hillebrandt and Anthony,

each of whom confirmed, in varying degrees of certainty,
Reverend Christian and Everette’s presence at Hamilton.
McConnell subsequently reviewed Hamilton’s video footage and
discovered Reverend Christian’s prior shoplifting complaint.
Such conduct, when combined with the strong protection
afforded the dissemination of police reports, justifies holding
that McConnell’s conduct was reasonable.

E. New Jersey Law Against Discrimination
Plaintiffs allege that Defendants “subjected the Plaintiffs
to differential treatment on the basis of race . . . thereby
violating the New Jersey Law Against Discrimination.”

(Compl. ¶

60)
The New Jersey Law Against Discrimination, codified at N.J.
Stat. Ann. § 10:5-1 et seq., prohibits unlawful discrimination
in employment, housing, places of public accommodation, and
certain business transactions.19

19

Although Plaintiffs allege Defendants violated New Jersey’s
Law Against Discrimination in their Complaint, they cite the New
Jersey Civil Rights Act (NJCRA) in their opposition brief. (See
Opp’n Br. at 19). While Plaintiffs are of course bound by what
they allege in their Complaint, the Court notes that under the
instant facts, the analysis for both claims are the same.
Compare Baklayan v. Ortiz, Civ. No. 11-3943, 2012 WL 3560384, at
*4 (D.N.J. Aug. 15, 2012) (“To state an equal protection claim
under the NJLAD, a plaintiff must present facts alleging that
the individual Defendant’s conduct had a discriminatory effect
26

New Jersey case law has established that a municipal police
department and its officers may be considered a “place of public
accommodation” in the context of a LAD claim.

Borroughs v. City

of Newark, Civ. No. 11-1685, 2013 WL 4047588, at *12 (D.N.J.
Aug. 9, 2013); Ptaszynski v. Uwaneme, 37 N.J. Super. 333, 353
(App. Div. 2004).
For a claimant to succeed on a LAD claim based on race
discrimination perpetrated by the government in a non-employment
setting, he must present facts establishing the state action had
a discriminatory effect and was motivated by a discriminatory
purpose.

Anderson v. Cnty. of Salem, Civ. No. 09-4718

(RMB/KMW), 2010 WL 3081070, at *12 (D.N.J. Aug. 5, 2010).
However, as noted above, see supra III.A.2., Plaintiffs have
failed to establish Defendants’ conduct had a discriminatory
effect.
Accordingly, summary judgment will be granted in favor of
Defendants on Plaintiffs’ Law Against Discrimination claim.

and that the conduct was motivated by a discriminatory animus.”)
with Major Tours, Inc. v. Colorel, 799 F. Supp. 2d. 376, 391
(D.N.J. 2011) (“ To prevail on their . . . NJCRA equal
protection claim[], [p]laintiffs must each prove that actions of
each [d]efendant (1) had a discriminatory effect on them and (2)
were motivated by a discriminatory purpose.”)
27

IV.
For the reasons stated above, Defendants’ motion for
summary judgment will be granted.

An appropriate order

accompanies this opinion.

Date: April __17___, 2014

__/s/ Joseph E. Irenas____________
Hon. Joseph E. Irenas
Senior United States District Judge

28