KLINGBERG et al v. HATCHER et al

Filing 41

OPINION. Signed by Judge Noel L. Hillman on 4/18/2019. (tf, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

CHARLES V. KLINGBERG, JR. and
BRENDA KLINGBERG,

1:17-cv-05563-NLH-AMD
OPINION

Plaintiffs,
v.
LISA HATCHER, RON MIDDLETON,
SCOTT OBERMEIER, DAVE
WALLACE, and GLOUCESTER
TOWNSHIP,
Defendants.

APPEARANCES:
PETER M. KOBER
1864 RT 70 EAST
CHERRY HILL, NJ 08003
On behalf of Plaintiffs
RICHARD L. GOLDSTEIN
MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN, PA
15000 MIDLANTIC DRIVE - SUITE 200
P.O. BOX 5429
MOUNT LAUREL, NJ 08054
On behalf of Defendants Lisa Hatcher, Ron Middleton, Scott
Obermeier, and Gloucester Township
JESSICA ANN JANNETTI
OFFICE OF THE ATTORNEY GENERAL OF NJ
25 MARKET ST, 7TH FL, WEST WING
PO BOX 116
TRENTON, NJ 08625
On behalf of Defendant Dave Wallace
HILLMAN, District Judge
This matter concerns constitutional claims by Plaintiffs
after they were detained for fifteen hours at a police station
during an investigation into a fire at Plaintiffs’ apartment.

After the investigation, no charges were filed.

Presently

before the Court is the second motion of Defendant Dave Wallace,
one of the investigators, to dismiss Plaintiffs’ claims.

For

the reasons expressed below, Defendant’s motion will be granted.
BACKGROUND
A full recitation of the facts of the case may be found in
this Court’s prior opinion granting Defendant Dave Wallace’s
first motion to dismiss. (Docket No. 34.)

Previously, this

Court dismissed Plaintiffs’ claims against Wallace for lack of
sufficient pleading.

Fed. R. Civ. P. 12(b)(6).

Plaintiffs

subsequently amended their complaint.
Briefly stated, on January 27, 2016, Plaintiffs, Charles V.
Klingberg, Jr. and Brenda Klingberg, were taken to the
Gloucester Township police station to give a statement to aid in
the investigation of a fire at their apartment.

They claim that

they were not permitted to leave for fifteen hours.

With regard

to Defendant Wallace’s involvement in Plaintiffs’ detention,
Plaintiffs’ second amended complaint alleges that Wallace, an
investigator with the Camden County Prosecutor’s Office, 1

1

Under New Jersey law, when a county prosecutor investigator
performs law enforcement functions, he acts as an agent of the
State, and the State must indemnify a judgment arising from his
conduct. Watkins v. City of Newark Police Department, 2018 WL
1306267, at *3 (D.N.J. 2018) (citing Hyatt v. Cty. of Passaic,
340 F. App’x 833, 836 (3d Cir. 2009) (quoting Wright v. State,
778 A.2d 443, 461–62, 464 (N.J. 2001)).
2

participated in interrogations of both Brenda Klingberg and
Charles Klingberg.

Plaintiffs claim:

45. Defendant, DAVE WALLACE, arrived at the Gloucester
Township police department during the course of the
afternoon while the detention of Plaintiffs was in
progress.
46. After his arrival, Defendant, DAVE WALLACE, did not
inquire of the Plaintiffs if they were present in the
police station by their consent.
47. The failure by the Defendant, DAVE WALLACE, to inquire
of the Plaintiffs if they were present in the police
station by consent was deliberate indifference as to
whether the Plaintiffs were present in the police station
by consent or not.
48. Defendant, DAVE WALLACE, as an experienced detective,
should reasonably have realized that if the Plaintiffs were
not detained in the police station by their consent, their
continued detention in the police station for purposes of
interrogation and investigation was a violation of their
constitutional rights.
49. If Defendant, DAVE WALLACE, had inquired of the
Plaintiffs if they were present in the Gloucester Township
Police station by consent, he would have learned that the
Plaintiffs were not present in the Gloucester Township
Police station by consent.
50. Upon learning that the Plaintiffs were not present in
the Gloucester Township Police station by consent, in order
not to be complicit in violating the Plaintiffs’
constitutional rights, Defendant, DAVE WALLACE, needed to
tell the Gloucester Township individual defendants that
they needed to release Plaintiffs immediately, and that he
would refuse to participate in any continuing interrogation
of the Plaintiffs that was not done with their consent.
51. By not telling the Gloucester Township individual
defendants that they needed to release Plaintiffs
immediately, and by not stating that he would refuse to
participate in any continuing interrogation of the
Plaintiffs that was not done with their consent, Defendant,
DAVE WALLACE, became complicit with the Gloucester Township
3

individual defendants in the continuing violation of
Plaintiffs’ constitutional rights.
(Second Amended Cmpl., Docket No. 36 at 4-5.)
Based on these allegations, Plaintiffs claim that Wallace,
along with the other individual Defendants, unreasonably seized
and detained them in violation of the Fourth Amendment of the
U.S. Constitution and the New Jersey Civil Rights Act.
Wallace has again moved to dismiss Plaintiffs’ claims
against him because he is entitled to qualified immunity. 2
Plaintiffs have opposed Wallace’s motion.
DISCUSSION
A.

Subject Matter Jurisdiction

This Court has jurisdiction over Plaintiffs’ federal claims
under 28 U.S.C. § 1331, and supplemental jurisdiction over
Plaintiffs’ state law claim pursuant to 28 U.S.C. § 1367.
B.

Standard for Qualified Immunity

“Qualified immunity shields government officials from civil
damages liability unless the official violated a statutory or
constitutional right that was clearly established at the time of
the challenged conduct.”
S. Ct. 2088, 2093 (2012).

Reichle v. Howards, 566 U.S. 658, 132
In order to determine whether a

2

Wallace also argues that Plaintiffs have failed to meet the
proper pleading standard to state a viable claim against him.
Because the Court will find that Wallace is entitled to
qualified immunity, the Court need not consider his alternative
basis for dismissal.
4

government official is entitled to qualified immunity, two
questions are to be asked: (1) has the plaintiff alleged or
shown a violation of a constitutional right, and (2) is the
right at issue “clearly established” at the time of the
defendant's alleged misconduct?
223, 236 (2009).

Pearson v. Callahan, 555 U.S.

Courts are “permitted to exercise their sound

discretion in deciding which of the two prongs of the qualified
immunity analysis should be addressed first.”
C.

Id.

Analysis

Plaintiff’s factual allegation against Wallace are
straightforward and clear.
after they were detained.

Wallace arrived, Plaintiffs allege,
(Docket No. 36 at para. 45.)

Wallace

did not ask them if they were present by consent and his failure
to do so amounted to deliberate indifference to their status at
the police station.

(Docket No. 36 at para. 46-47.)

Elsewhere

in Plaintiffs’ second amended complaint, they allege the other
officers had detained Plaintiffs unlawfully.

Under Plaintiffs’

theory of liability as it relates to Wallace, if he had not been
deliberately indifferent and asked the Plaintiffs whether they
were present in the police department by their consent, he would
have learned of their illegal detention.
para. 49.)

(Docket No. 36 at

And if he had learned of their unlawful detention,

he should have declined to participate in the interrogation and
directed the Gloucester Township police officers to release them
5

immediately.

(Docket No. 36 at para. 50.)

But because he did

not ask, he did not know, 3 and therefore his inaction made him
complicit in the violation of Plaintiffs’ constitutional rights
by the other officers.

(Docket No. 36 at para. 51.)

Plaintiffs, however, have failed to cite to any legal
authority to support their “duty to inquire” theory of liability
against Wallace.

The closest analogy to Plaintiffs’ theory is

when an individual is detained but not technically under arrest.
For example, in Dunaway v. New York, 442 U.S. 200, 212–13
(1979), Dunaway was “taken from a neighbor’s home to a police
car, transported to a police station, and placed in an
interrogation room.

He was never informed that he was ‘free to

go’; indeed, he would have been physically restrained if he had
refused to accompany the officers or had tried to escape their
custody.”

The Supreme Court found Dunaway’s detention to

violate his Fourth Amendment rights, and distinguished Dunaway’s
detention from a permissible brief investigatory stop.

Dunaway,

442 U.S. at 212 (citing Terry v. Ohio, 392 U.S. 1 (1968)).

The

Supreme Court explained that “the application of the Fourth
Amendment's requirement of probable cause does not depend on
whether an intrusion of this magnitude is termed an ‘arrest’

3

Plaintiffs do not plead that even without asking Plaintiffs it
would have been obvious to Wallace that they were not there
voluntarily.
6

under state law,” and the “mere facts that petitioner was not
told he was under arrest, was not ‘booked,’ and would not have
had an arrest record if the interrogation had proved fruitless,
while not insignificant for all purposes, obviously do not make
petitioner's seizure even roughly analogous to the narrowly
defined intrusions involved in Terry and its progeny.”

Id.

The

Supreme Court therefore held that “detention for custodial
interrogation - regardless of its label - intrudes so severely
on interests protected by the Fourth Amendment as necessarily to
trigger the traditional safeguards against illegal arrest.”
at 216.

Id.

This is in essence the claim Plaintiffs bring against

the other officers.
The problem with Plaintiffs’ claims against Wallace,
however, is that they do not allege he personally restrained
their liberty impermissibly. 4

Rather, they allege that Wallace,

separately and additionally, had an affirmative duty to ask them
or the other officers if Plaintiffs were detained within the
parameters of the Fourth Amendment.

It is important to note

here, again, what Plaintiffs do not allege.

They do not claim

that Wallace should have known without asking that they were not

4

In contrast, Plaintiffs allege that Charles Klingberg asked
Defendant Gloucester Township investigator Lisa Hatcher if he
could leave the police station, and Hatcher responded that he
could not. Plaintiffs also allege that Brenda Klingberg asked
to make a phone call, and Lisa Hatcher said she was not entitled
to a phone call. (Docket No. 36-1 at 4.)
7

there by their consent nor do they allege that Plaintiffs at any
time before, during, or after their interrogations told Wallace
they were being detained without their consent.
Plaintiffs’ theory is without foundation in the law.
Plaintiffs fail to cite a single case that supports the notion
that a county investigator, who arrives at a local police
station to interview individuals who were detained by the local
police, has a sua sponte duty, without any indicia that a Fourth
Amendment violation was occurring, to inquire whether those
individuals were being held against their will, especially when
neither of those individuals tells the investigator that they
want to leave.

Under Plaintiffs’ theory, any investigator

brought in to assist in an investigation would be required to
question the legality of a person’s detention and conduct a
mini-investigation of his fellow officers before going about his
or her law enforcement duties.
The fact that neither Plaintiff nor this Court can find any
basis in the law for this purported “duty to inquire”
demonstrates that such a duty does not exist.

As the Court’s

research reveals, the only instance where courts have found that
a police officer has a duty to inquire are limited to those
where there is a question of third-party authority to consent to
a search.

See, e.g., Illinois v. Rodriguez, 497 U.S. 177, 188–89

(1990) (finding that an officer is entitled to conduct a search
8

without further inquiry if “the facts available to the officer
at the moment . . . warrant a man of reasonable caution in the
belief that the consenting party had authority over the
premises”).
The key, therefore, to the duty to inquiry theory, at least
in the context of third-party consent to searches, is
reasonableness – i.e., “The presence of consent is judged under
a standard of objective reasonableness.”

Mitan v. United States

Postal Inspection Service, 656 F. App’x 610, 614 (3d Cir. 2016)
(citing Rodriguez, 497 U.S. at 188); see also United States v.
Terry, 915 F.3d 1141, 1145 (7th Cir. 2019) (“As one treatise
puts it: ‘sometimes the facts known by the police cry out for
further inquiry, and when this is the case it is not reasonable
for the police to proceed on the theory that ‘ignorance is
bliss.’” (citing 4 Wayne R. Lafave, Search and Seizure § 8.3(g)
(5th ed. 2018)).
In this case, if the Court were to analogize Plaintiffs’
duty to inquire theory with the consent-to-search theory,
Plaintiffs have not alleged any facts that “cry out for further
inquiry” to confirm Plaintiffs were being properly detained,
either by consent or by probable cause.

Nothing in the facts

suggest that Wallace acted unreasonably.

Indeed, Plaintiffs

make no claim that Wallace was ever aware that Plaintiffs were

9

not there voluntarily. 5
More importantly, however, for the qualified immunity
analysis, is that in order to hold Wallace liable for a Fourth
Amendment violation based on Plaintiffs’ theory, it would
require Wallace to understand that he had such a duty.

The

Third Circuit recently addressed the “clearly established” prong
in assessing the qualified immunity defense at the motion to
dismiss stage in a case concerning constitutional claims against
police officers arising out of a high speed chase.

See Sauers

v. Borough of Nesquehoning, 905 F.3d 711, 719 (3d Cir. 2018).
The Third Circuit explained,
A right is clearly established when the law is
“sufficiently clear that every reasonable official would
have understood that what he is doing violates that right.”
Reichle v. Howards, 566 U.S. 658, 664 (2012) (internal
quotation marks, citation, and alteration omitted). That
does not require a prior precedent with indistinguishable
facts, “but existing precedent must have placed the
statutory or constitutional question beyond debate.”
Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). Existing
precedent is sufficient to place a constitutional question
beyond debate and to defeat qualified immunity only if it
is “controlling authority in [the relevant] jurisdiction,”
Wilson v. Layne, 526 U.S. 603, 617 (1999), or if “a ‘robust
consensus of cases of persuasive authority’ in the Court of
Appeals” has settled the question, Mammaro v. N.J. Div. of
Child Prot. & Permanency, 814 F.3d 164, 169 (3d Cir. 2016)
(quoting Taylor v. Barkes, ––– U.S. ––––, 135 S.Ct. 2042,
2044, (2015)).

5

If Wallace has been aware that Plaintiffs were being held
against their will and proceeded to interrogate them and
otherwise be complicit in their illegal detention, that may be a
different case – but a case not pleaded here.
10

When qualified immunity is at issue, context matters. The
“inquiry ‘must be undertaken in light of the specific
context of the case, not as a broad general proposition.’”
Mullenix v. Lunda, 136 S. Ct. 305, 308 (U.S. 2015) (quoting
Brosseau v. Haugen, 543 U.S. 194, 198 (2004)(per curiam)).
When courts fail to take into consideration the
“particularized” facts of a case, they permit plaintiffs
“to convert the rule of qualified immunity ... into a rule
of virtually unqualified liability simply by alleging
violation of extremely abstract rights.” White v. Pauly,
137 S. Ct. 548, 552 (U.S. 2017) (alteration in original)
(quoting Anderson v. Creighton, 483 U.S. 635, 639-40,
(1987)).
Sauers, 905 F.3d at 719.
The Third Circuit applied this standard in assessing the
second prong of the qualified immunity analysis to the facts
pleaded in the plaintiff’s complaint, and found that the
defendant officers were entitled to qualified immunity because
the law was unsettled as to whether police officers engaged in a
police pursuit could be subject to constitutional liability for
a level of culpability less than intent to harm.

Id. at 723.

The Third Circuit concluded, “Although the state of the law in
May 2014 was unsettled as to whether police officers engaged in
a police pursuit could be subject to constitutional liability
for a level of culpability less than an intent to harm, our
opinion today should resolve any ambiguity in that regard within
this Circuit.”

Id.

Here, Plaintiffs’ novel “duty to inquire” theory advanced
against Wallace does not meet the standard for a clearly

11

established right.

Not only is there no “controlling authority”

or a “robust consensus of cases of persuasive authority” on
Plaintiffs’ theory, the duty to inquire as pleaded by Plaintiffs
does not exist at all in the law.

“It is only when both the

theory of liability and its application to the established facts
are sufficiently plain that the legal question of liability is
beyond legitimate debate and a plaintiff can defeat a qualified
immunity defense.”

Sauers, 905 F.3d at 719.

Plaintiffs have

not met that standard.
Consequently, the Court will dismiss Plaintiffs’ claims as
currently pleaded against Wallace with prejudice because he is
entitled to qualified immunity. 6

An appropriate order will be

entered.
Date: April 18, 2019_
At Camden, New Jersey

___s/ Noel L. Hillman___
NOEL L. HILLMAN, U.S.D.J.

6

See, e.g., Werkheiser v. Pocono Tp., 780 F.3d 172, 176 (3d Cir.
2015) (granting defendant’s motion to dismiss, finding the
defendant entitled to qualified immunity because the law
defendant allegedly violated was not clearly established, and
dismissing those claims against the defendant with prejudice);
Cresci v. Aquino, 2017 WL 1356322, at *10 (D.N.J. 2017) (same);
Barron v. New Jersey, 2018 WL 324725, at *3 (D.N.J. 2018)
(same); see also Roth v. City of Hermitage, 709 F. App’x 733,
736 (3d Cir. 2017) (explaining that a court must assess a motion
to dismiss based on qualified immunity so that it can be
determined whether claims should be dismissed with prejudice
prior to assessing other bases for dismissal which would only
provide a dismissal without prejudice). This finding does not
preclude claims against Wallace that are substantively different
from those dismissed with prejudice should discovery reveal
facts to support a different claim.
12