DEVITO et al v. BOROUGH OF CALDWELL et al
Filing
25
OPINION. Signed by Judge Stanley R. Chesler on 3/23/16. (DD, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CRAIG A. DEVITO, PROVI I. DEVITO,
GABRIELA K. DEVITO, DARYEN F.
DEVITO, and JEREMY M.
SCARBROUGH,
Plaintiffs,
v.
BOROUGH OF CALDWELL, SGT.
MICHAEL PELLEGRINO, POLICE
CHIEF JAMES H. BONGIORNO, and
JOHN DOES 1-5,
Defendants.
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Civil Action No. 13-6786 (SRC)
OPINION
CHESLER, District Judge
This matter comes before the Court upon the motion for summary judgment filed by
Defendants Borough of Caldwell, Sergeant Michael Pellegrino, and Police Chief James
Bongiorno, pursuant to Federal Rule of Civil Procedure 56. Plaintiffs Craig DeVito, Provi DeVito,
and Daryen DeVito 1 have opposed the motion. The Court has considered the papers filed by the
parties. For the reasons that follow, the Court will deny Defendants’ motion.
I.
BACKGROUND
This case concerns warrantless entries into the home of Plaintiffs Craig DeVito (“Mr.
DeVito”), Provi DeVito, and their daughter Daryen DeVito (“Daryen”), by Borough of Caldwell
1
Gabriela DeVito and Jeremy Scarbrough have voluntarily dismissed their claims.
1
police officers in the course of performing welfare checks on Daryen’s son, then-three-year-old
“JJ”, at the request of JJ’s father, Joseph Colon (“Colon”).
The relevant facts are not in dispute. Daryen and Colon shared custody of JJ, pursuant to
a court order, which required Daryen to take JJ to and from Colon’s house on alternate weekends.
According to Daryen, the arrangement worked until Colon moved to a town approximately 76
miles from her residence and she stopped transporting JJ because she did not have a car. As a
result, Colon did not see JJ for weeks or months at a time. In retaliation, the DeVitos allege, Colon
began to summon the Caldwell police to their residence almost every Friday night for several
weeks by reporting concerns about JJ’s wellbeing and asking officers to check on the child. 2 To
incite these checks, Colon, variously, told the police that he was having “custody issues with the
mother,” was denied visitation, saw bruises on the child’s body, and feared that the mother had
plans to take the child out of state. (Baratz Decl. Ex. I.)
In response to each call from Colon, the Caldwell Police Department dispatched officers
to the DeVito residence to perform a “welfare check” on JJ – officers generally drove to the
residence, spoke with the family, and asked to ascertain that JJ was alright. Initially, the DeVitos
allowed the police conducting these welfare checks to enter their home. Three weeks in a row, on
October 27, 2012, November 2, 2012, and November 9, 2012, officers reported no basis to
substantiate Colon’s worries, noting that JJ was well; “healthy and in good spirits”; was observed
“lying in his bed drinking a bottle and watching television . . . was well fed and cared for.” (Id.)
In sum, JJ was consistently fine.
2
The police performed seven welfare checks in total, on October 27, 2012, November 2, 2012, November 9, 2012,
November 16, 2012, November 23, 2012, November 30, 2012, and May 12, 2013.
2
The DeVitos, on the other hand, grew weary of the weekly intrusions and turned to their
attorney, Ronald Brandmayr, Jr., for help. On November 16, 2012, Plaintiffs state that Mr.
Brandmayr informed the Caldwell Chief of Police James Bongiorno that Mr. DeVito would no
longer let the police into his home without a warrant. Although Chief Bongiorno did not recall
this conversation during his deposition, in his interrogatories the Chief stated that he may have
discussed this call with his lieutenants during weekly meetings, but did not specify the substance
of the conversation. (Id.) Whatever instructions he may have provided, the welfare checks
continued. Two more, on November 16, 2012, and November 23, 2012, preceded the November
30, 2012, and May 12, 2013, unconsented, warrantless entries at issue in this litigation.
On Friday, November 30, Colon told police headquarters that he had not seen JJ in two
months and that JJ had bruises on his body when Colon had last seen him. Officer Matthew
DeAngelo and Sergeant Michael Geary were dispatched to investigate. DeAngelo arrived first,
and without knocking, let himself into the family’s home, allegedly believing that the family’s
duplex was a multiple-unit dwelling with common areas. Daryen testified that she was in her room
when she looked down the hall and saw a policeman, (likely Officer DeAngelo, although she did
not recall his name,) standing on the second floor landing. Daryen spoke with the officer until Mr.
DeVito ran down from the third floor and ordered the police to leave. Officers complied, reporting
that “everything [was] in order at the residence.” (Baratz Decl. Ex. Q.)
After this incident, the Plaintiffs’ attorney followed up on his November 16th phone call
with a letter to Chief Bongiorno, complaining about the continued warrantless searches, and
reiterating his demand for the Caldwell Police to cease and desist. After receiving the letter, Chief
Bongiorno testified that he reviewed the family’s case file, but did not think that the Department
could stop responding because it has “an obligation to act on welfare checks.” (Bongiorno Dep.
3
14:10-15:13.) To confirm, Chief Bongiorno sought direction from counsel for the Borough of
Caldwell, Gregory Mascera, who affirmed that the police have no discretion in the matter. In
relevant part, Mr. Mascera’s letter to Plaintiffs stated that:
Chief Bongiorno and all members of the Caldwell police department
have an obligation and duty to act upon every welfare check request
received by the Police Department. No member of the police
department has discretion over whether to act on a welfare check
request. . . .
No member of the Caldwell Police department has violated your
client’s civil rights, state, or constitutional rights. Please convey to
your client that the members of the Caldwell Police Department
have no discretion in this situation. The members of the Police
Department therefore will continue to carry out their duty to protect
the health and safety of the minor child whenever they are requested
to do so.
(Baratz Decl. Ex. F.) 3 Accordingly, Chief Bongiorno ordered his lieutenants and sergeants to
continue to investigate all subsequent welfare check requests at the DeVito residence, warning
them that, based on the letter from Mr. Brandmayr, they “may be faced with some resistance[.]”
(Bongiorno Dep. 15:20-16:5.)
Following the November 30, 2012, call, Colon took an approximately five-month break
from contacting the Caldwell Police. In the intervening time, on April 19, 2013, the acting Essex
County prosecutor sent a memorandum to all county directors and chiefs of police, explaining,
among other issues, the law concerning home entry in the context of community caretaking
functions, as distinct from criminal investigations. Summarizing a newly-issued New Jersey
Supreme Court decision in State v. Vargas, 213 N.J. 301 (N.J. 2013), which set forth the applicable
3
Mr. Mascrera further suggested that Plaintiffs should instead direct their grievances to the Superior Court and request
an injunction to prevent Colon from making future welfare check requests. (Baratz Decl. Ex. F.) The family court
denied this relief, refusing to bar Colon from seeking help if he had a legitimate concern. (Daryen Dep. 82:13-22.)
The judge’s refusal to issue a blanket prohibition on Colon’s ability to call the police does not affect the analysis of
the propriety of the police response to the specific facts at issue in this case on two specific days.
4
standard under both the United States and New Jersey Constitutions, the memorandum emphasized
that warrantless entry into a residence is only justified where there are exigent circumstances, such
as “an objectively reasonable basis to believe that an emergency [is] threatening life or limb,”
regardless of law enforcement’s motive for entry. (Baratz Decl. Ex. G.) Chief Bongiorno read the
memorandum, emailed it to the police force, and posted it on a daily-update board.
The Department’s next relevant encounter with the family occurred in response to Colon’s
Mother’s Day call, when he complained that he had not seen JJ in a week and a half, the Division
of Youth and Family Services (“DYFS”) 4 was investigating Daryen for child abuse (this
investigation, Plaintiffs note, was also triggered by prompting from Colon,) and Daryen had plans
to leave the state with JJ, in violation of the custody order. Sergeant Michael Pellegrino and
Officer William Roberts drove to the residence, where they encountered Craig DeVito, who told
them to leave, pointing to a doormat, sent by his attorney just for such an occasion, that read “come
back with a warrant.” Sergeant Pellegrino told Mr. DeVito that he needed to check on the welfare
of JJ. (DSOF ¶ 23.) According to Mr. DeVito, when he emphasized that Sergeant Pellegrino had
no permission to come in, no warrant, and no exigency, Defendant responded that “[h]e didn’t
care. He was coming in.” (DeVito Dep. 85:9.) Sergeant Pellegrino stated that as he was arguing
with Mr. DeVito, Daryen came downstairs and told the officers that they could enter the residence.
(Pellegrino Dep. 11:17-13:14.) Plaintiffs deny that Daryen consented to the search, claiming that
she was in the shower during the initial exchange. (Daryen Dep. 70:20-71:9.) In any event, the
officers entered the house over Mr. DeVito’s objections and proceeded to search for JJ until they
confirmed that JJ was not home, then left to wait for the child to return. As with all prior incidents,
4
The agency is now named the Division of Child Protection and Permanency.
5
the police report stated that “Colon was advised that contact was made with his son and all [was]
well.” (Baratz Decl. Ex. S.)
The DeVitos allege that the welfare checks have caused them psychological distress – they
have testified to feeling increased fear, anxiety, depression, experiencing difficulty sleeping, and
feeling uncomfortable at home.
II.
DISCUSSION
A. Legal Standard for Summary Judgment
Federal Rule of Civil Procedure 56(a) provides that a “court shall grant summary judgment
if the movant shows that there is no genuine issue 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, 322-23 (1986) (construing the similarly worded Rule 56(c), predecessor to the current
summary judgment standard set forth in Rule 56(a)). A factual dispute is genuine if a reasonable
jury could return a verdict for the non-movant, and it is material if, under the substantive law, it
would affect the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
“[W]ith respect to an issue on which the nonmoving 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.”
Celotex, 477 U.S. at 325. “When the moving party has the burden of proof at trial, that party must
show affirmatively the absence of a genuine issue of material fact: it must show that, on all the
essential elements of its case on which it bears the burden of proof at trial, no reasonable jury could
find for the non-moving party.” In re Bressman, 327 F.3d 229, 238 (3d Cir. 2003) (quoting United
States v. Four Parcels of Real Property, 941 F.2d 1428, 1438 (11th Cir. 1991)). In considering a
motion for summary judgment, a district court “must view the evidence ‘in the light most favorable
6
to the opposing party.’” Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014) (quoting Adickes v. S.H.
Kress & Co., 398 U.S. 144, 157 (1970)). It may not make credibility determinations or engage in
any weighing of the evidence. Anderson, 477 U.S. at 255; see also Marino v. Indus. Crating Co.,
358 F.3d 241, 247 (3d Cir. 2004) (holding same).
Once the moving party has satisfied its initial burden, the party opposing the motion must
establish the existence of a genuine issue as to a material fact. Jersey Cent. Power & Light Co. v.
Lacey Twp., 772 F.2d 1103, 1109 (3d Cir. 1985). “A nonmoving party has created a genuine issue
of material fact if it has provided sufficient evidence to allow a jury to find in its favor at trial.”
Gleason v. Norwest Mortg., Inc., 243 F.3d 130, 138 (3d Cir.2001), overruled on other grounds by
Ray Haluch Gravel Co. v. Cent. Pension Fund of the Int'l Union of Operating Eng'rs and
Participating Emp’rs, 134 S.Ct. 773 (2014). However, the party opposing the motion for summary
judgment cannot rest on mere allegations; instead, it must present actual evidence that creates a
genuine issue as to a material fact for trial. Anderson, 477 U.S. at 248; see also Schoch v. First
Fid. Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990) (holding that “unsupported allegations in
[a] memorandum and pleadings are insufficient to repel summary judgment”).
B. Section 1983 Claim
Plaintiffs brought this action against the Borough of Caldwell, Police Chief Bongiorno,
and Sergeant Michael Pellegrino, alleging that the intrusions into their home by Officer Matthew
DeAngelo and Sergeant Michael Geary on November 30, 2012, and Sergeant Michael Pellegrino
and Officer William Roberts on May 12, 2013, violated their Constitutional rights under the Fourth
Amendment.
Although Officer DeAngelo, Sergeant Geary, and Officer Roberts were not
individually named as defendants, their conduct is relevant to Plaintiffs’ claims of liability against
Chief Bongiorno and the Borough of Caldwell.
7
Plaintiffs’ right of action arises under 42 U.S.C. § 1983, which allows individuals to bring
a suit for damages “against any person who, acting under the color of state law, deprives another
individual of any rights, privileges, or immunities secured by the United States Constitution or
federal law.” Couden v. Duffy, 446 F.3d 483, 491 (3d Cir. 2006). Defendants have filed a motion
for summary judgment arguing that there were no underlying Fourth Amendment violations,
Sergeant Pellegrino and Chief Bongiorno are entitled to qualified immunity, and the Borough of
Caldwell is not vicariously liable for any violations that may have occurred. Defendants also assert
that Plaintiffs are not entitled to actual or punitive damages.
Qualified immunity shields government officials from standing trial in Section 1983 suits
unless their conduct has violated “clearly established statutory or constitutional rights of which a
reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The
defense accounts for the fact that police officers operate in often “tense, uncertain, and rapidly
evolving” circumstances, whose actions must be judged from the “on-scene perspective,” not “the
perfect vision of hindsight.” Gilles v. Davis, 427 F.3d 197, 207 (3d Cir. 2005). Qualified immunity
thus affords police officers the leeway to make reasonable mistakes in the course of performing
their duties. It is a threshold inquiry in Section 1983 litigation. To evaluate whether qualified
immunity applies, a court must first decide “whether the facts, taken in the light most favorable to
the plaintiff, demonstrate a constitutional violation.” Curley v. Klem, 298 F.3d 271, 277 (3d Cir.
2002) (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). If so, then whether the right was clearly
established. Couden, 446 F.3d at 492. In other words, whether, in the specific context of the case,
“it would have been clear to a reasonable officer that his conduct was unlawful[.]” Wilson v.
Layne, 526 U.S. 603, 615 (1999)).
8
a. Fourth Amendment Violations
The Fourth Amendment safeguards “the privacy and security of individuals against
arbitrary invasions by governmental officials.” Gillard v. Schmidt, 579 F.2d 825, 827-28 (3d Cir.
1978) (quoting Camara v. Mun. Court, 387 U.S. 523, 528 (1967)). “Freedom from intrusion into
the home or dwelling is the archetype of the privacy protection secured by the Fourth
Amendment.” Payton v. New York, 445 U.S. 573, 587 (1980) (quoting Dorman v. United States,
435 F.2d 385, 389 (D.C. Cir. 1970)). To enter a person’s home, police officers must ordinarily
have consent or seek a warrant based on probable cause. See Parkhurst v. Trapp, 77 F.3d 707,
711 (3d Cir. 1996). Warrantless entries are presumptively unreasonable. Ray v. Twp. of Warren,
626 F.3d 170, 174 (3d Cir. 2010). However, the exigencies of the situation may make the needs
of law enforcement so compelling as to overcome this presumption. Kentucky v. King, 563 U.S.
452, 460 (2011). Such exigencies exist when officers are in hot pursuit of a fleeing suspect;
reasonably believe that they must act to prevent the imminent destruction of evidence; or
reasonably believe that someone is in imminent danger. United States v. Mallory, 765 F.3d 373,
384 (3d Cir. 2014).
Defendants state that the emergency aid exception justified the November 30, 2012, and
May 12, 2013, entries. The emergency aid exception allows law enforcement officers to enter a
home without a warrant “to assist persons who are seriously injured or threatened with such
injury.” Brigham City v. Stuart, 547 U.S. 398, 403 (2006). To justify warrantless entry, the
officers must have “an objectively reasonable basis for believing that a person within [the house]
is in need of immediate aid[.]” Michigan v. Fisher, 558 U.S. 45, 47 (2009) (internal citations
omitted). The key “is imminence–‘the existence of a true emergency.’” Mallory, 765 F.3d at 384
(quoting United States v. Simmons, 661 F.3d 151, 157 (2d Cir. 2011)). The present record shows
9
no evidence of an emergency, and thus no reasonable basis on which officers could have concluded
that JJ’s wellbeing was in jeopardy on the two days at issue.
The November 30, 2012, welfare check was precipitated by a report that JJ had bruises two
months before and had not seen his father in the intermittent time period. 5 The Third Circuit has
considered analogous circumstances in Good v. Dauphin County Social Services for Children and
Youth, 891 F.2d 1087 (3d Cir. 1989). There, the court held that government officials were not
justified in entering the plaintiff’s home to investigate allegations of child abuse on the basis of a
report, received at least twenty hours earlier, that the child had bruises from a fight with her mother.
Noting that, upon their arrival at the scene, the officials observed no signs to suggest that the child
was presently being mistreated, the court stated that: a single stale report of bruises of unspecified
severity was “hardly a rational basis for a state actor to conclude that forced entry into the residence
was required to protect [the child] from imminent harm.” Id. at 1095.
If twenty-hour old bruises are too stale to merit emergency action, two-month old bruises
are even more so. The fact that Colon had not seen JJ in two months likewise cannot reasonably
support the existence of an emergency. To the contrary, the two intervening months show that the
circumstances could not have been so pressing that the police had no time to secure a warrant.
And it is this very lack of time that transforms an unreasonable, and thus illegal, warrantless search,
into a reasonable one. See Missouri v. McNeely, 133 S. Ct. 1552, 1559 (2013). No information
given by Colon showed that JJ was in danger on November 30, 2012, when Officer DeAngelo and
Sergeant Geary responded to Colon’s request for a welfare check. Nor does the record reflect that
5
Upon arriving at the duplex where the DeVitos lived, Officer DeAngelo explained that he entered through an
unlocked door into what he believed was a common area of a multiple unit dwelling or apartment building, and
proceeded upstairs, ending up on the second floor of the family’s home. Defendants do not argue that a reasonable
mistake of fact excused the Fourth Amendment violation, but rather that the exigency of the circumstances justified
the entry.
10
anything upon arrival at the residence aroused the officers’ suspicions of present danger. Because
the record shows no evidence of exigent circumstances, the Court cannot conclude that the entry
into the Plaintiffs’ residence during the November 30, 2012, welfare check was lawful.
The same is true for the May 12, 2013, entry by Officer Roberts and Defendant Sergeant
Pellegrino, on information, as stated in the police report, that “Colon requested a welfare check for
[JJ] as [Colon] hasn’t had visitation in a week and a half. . . . [T]here is an open DYFS case
involving [Daryen] allegedly abusing [JJ, and Daryen] has plans to leave the state with [JJ] which
she is restricted from doing.” (Baratz Decl. Ex. S.) Standing alone, these facts do not suggest that
anything harmful was happening to JJ at the moment when Colon called. 6 Again, there is no
additional evidence of an exigency that could have necessitated entry, over Mr. DeVito’s
objections, to ensure that JJ was okay. 7 The evidence on the record shows that, upon arrival,
Sergeant Pellergrino knocked on the door and spoke with Mr. DeVito and, if Sergeant Pellegrino’s
testimony were credited, Daryen. Defendants do not say that either person behaved suspiciously;
do not identify any other suspicious activity; do not specify any sight, sound, smell, or indicia of
anything being amiss. In short, the record shows no evidence of an exigency that prevented
Defendants from taking the time to secure a warrant if they believed that they had probable cause
for entry.
6
Even if the justification for entry were to impede Daryen from taking the child out of state rather than to render
emergency aid, which the Defendants do not appear to claim was the case, there is no evidence that the plans were
imminent, nor that it would have been necessary for the officers to enter Daryen’s house to prevent her from leaving
it. Even in an emergency, the scope of a permissible search is limited by the nature and extent of the exigency. See
Mallory, 765 F.3d at 386-88.
7
Sergeant Pellegrino testified that, while Mr. DeVito objected to his entry, Daryen allowed him to come in. Daryen
denies doing so. Defendants do not rely on Sergeant Pellegrino’s version of events to argue that he had permission to
perform the May 12, 2013, search for JJ, but instead claim that the entry was lawful because of the emergency aid
exception to the Fourth Amendment. Defendants are right not to hinge their argument on this testimony as Daryen’s
consent is invalid as to Mr. DeVito, an occupant who was present and objected. See Georgia v. Randolph, 547 U.S.
103, 120 (2006).
11
b. Clearly Established Law
Sergeant Pellegrino, the only responding police officer named as an individual Defendant,
argues that he is entitled to qualified immunity, which protects him from Section 1983 liability
unless his conduct violated “clearly established statutory or constitutional rights of which a
reasonable person would have known.” Harlow, 457 U.S. at 818. For a right to be clearly
established, “[t]he contours of the right must be sufficiently clear that a reasonable official would
understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640
(1987). In other words, “existing precedent [must have] placed the statutory or constitutional
question beyond debate.” City and County of San Francisco v. Sheehan, 135 S.Ct. 1765, 1774
(2015) (quoting Ashcroft v. al-Kidd, 131 S.Ct. 2074, 2083 (2011)). To determine whether existing
case law provides such clear guidance, courts “look first for applicable Supreme Court precedent,”
and, if there is none, for a “‘robust consensus of cases of persuasive authority’ in the Court of
Appeals[.]” Mammaro v. New Jersey Div. of Child Prot. & Permanency, -- F.3d --, 2016 WL
683637, at * 3 (Feb. 19, 2016) (quoting Taylor v. Barkes, 135 S.Ct. 2042, 2044 (2015)). The
examination “must be undertaken in light of the specific context of the case, not as a broad general
proposition.” Couden, 446 F.3d at 495 (quoting Saucier, 533 U.S. at 201). “The ultimate issue
is whether . . . reasonable officials in the defendants’ position at the relevant time could have
believed, in light of what was in the decided case law, that their conduct would be lawful.” Good,
891 F.2d at 1092. “‘If the officer’s mistake as to what the law requires is reasonable,’ the officer
is entitled to qualified immunity.” Couden, 446 F.3d at 492 (quoting Saucier, 533 U.S. at 205).
12
The Supreme Court and the Third Circuit have left no doubt that warrantless entry into the
home requires exigent circumstances. 8 See e.g., Brigham City, 547 U.S. at 403; Mallory, 765 F.3d
at 382. If police officers need to access a residence out of concern for an occupant’s welfare, the
officers must “reasonably . . . believe that someone is in imminent danger.” Parkhurst, 77 F.3d at
711 (emphasis in original). Defendants agree that under the emergency aid exception the police
must “have reasonable grounds to believe that there is an emergency relating to the protection of
life or property[.]” (Defs.’ Br. at 18.) The Third Circuit has further cautioned that allegations of
past child abuse do not support a reasonable belief of imminent harm to the child. See Good, 891
F.2d at 1095. Plaintiffs’ rights, on these facts, were sufficiently clear. On the record before the
Court, Sergeant Pellegrino entered Plaintiffs’ home on the basis of information provided by Colon
that did not reveal any harm befalling JJ at the time of Colon’s call. No additional evidence shows
that officers witnessed anything upon arriving at the residence that may have alchemized Colon’s
generalized concerns about his son into indicia of an imminent threat. Without such an exigency,
it should have been clear to a reasonable officer that the intrusion that occurred here could not have
been legally justified. 9
8
Viewing the facts in a light most favorable to the Plaintiffs, Sergeant Pellegrino did not have permission to enter the
family’s home, and even if Daryen allowed entry, her consent, absent exigent circumstances, was not sufficient to
override Mr. DeVito’s objections. See Randolph, 547 U.S. at 120. Thus, the only issue is whether Sergeant Pellegrino
could have reasonably concluded that exigent circumstances justified the entry.
9
Defendants marshal several cases to support their contentions that reasonable officers could have concluded that an
exigency justified entry. However, Defendants miss that, in each of those cases, the police officers have relied on
contemporaneous evidence to demonstrate a reasonable belief that a present threat may have existed. For example, in
Leenstra v. Then, officers entered the Plaintiff’s home to verify her wellbeing because she had a history of mental
illness and texted her therapist, asking if that day was a good day to die. 2013 WL 663313, at * 7 (D. N.J. Feb. 21,
2013). In State v. Frankel, 847 A.2d 561, 574 (N.J. 2004), the police responded to a dropped 9-1-1 call, after
attempting to call the number back and getting a busy signal. Although the home occupant denied that anyone called,
the police did not find his statement to be credible because he was visibly nervous, agitated, and was stumbling over
his words. On this basis, officers concluded that a victim who made the call may have been inside the house. In State
v. Edmonds, the police were notified that a woman’s boyfriend “is beating her up and he got a gun.” 47 A.3d 737,
740 (N.J. 2012). Thus, when deciding to enter the home over the objections of the alleged victim to ensure that her
eleven-year-old son was safe, officers did so in the context of a presently perceived threat. Even in Martin v. City of
Oceanside, where officers responded to the call of a concerned father who had not heard from his daughter for several
13
Although the inquiry is objective, it is worth mention that before the May 12, 2013,
incident, Sergeant Pellegrino received a memorandum, forwarded by Chief Bongiorno, explaining
that exigent circumstances are required for warrantless entry into a home, even where the entry is
motivated by a desire to assist the occupant. (Baratz Decl. Ex. G) (discussing State v. Vargas, 213
N.J. 301 (N.J. 2013), New Jersey Supreme Court decision explaining the standard, under the
United States and New Jersey State Constitutions, for police entry in the context of executing
community caretaking functions). Yet, Sergeant Pellegrino’s testimony suggests that he does not
understand the law to constrain his ability to enter a home to an emergency when a welfare check
of a minor is involved:
Q.
Let’s say you are dispatched to a home because the father of
a child wants a welfare check on the baby. . . . You go to the home,
the owner of the home meets you at the door. . . . And you say, may
I enter the house to look on the child and he says no. What is your
understanding of your obligation at that point?
A. Well, based on the nature of the call . . . I need to check on the
welfare of a minor, I’m going to go into the residence.
(Pellegrino Dep. 9:19-10:6.) The law, however, does not provide the police carte blanche rights
to protect the welfare of minors. See Goodman, 891 F.2d at 1094 (“The Fourth Amendment
caselaw has been developed in a myriad of situations involving very serious threats to individuals
and society, [with] no suggestion . . . that the governing principles should vary depending on the
court’s assessment of the gravity of the societal risk involved.”). Such an exception would
eviscerate Fourth Amendment protections and could not have been reasonably presumed to exist.
days, officers entered the home because their observations at the scene led them to believe that a crime may have been
in progress. 205 F. Supp. 2d 1142, 1145 (S.D. Cal. 2002). Here, on the other hand, there is no evidence that JJ was
in present danger when Sergeant Pellegrino responded to Colon’s request for a welfare check. The available evidence
instead suggests that the mere request for a welfare check may have provided Sergeant Pellegrino with sufficient
justification to enter. (See Pellegrino Dep. 10:1-6.)
14
Accordingly, Sergeant Pellegrino is not entitled to qualified immunity from Plaintiffs’ Section
1983 claims.
c. Liability of Chief Bongiorno
“Government officials may not be held liable for the unconstitutional conduct of their
subordinates under a theory of respondeat superior.” Bistrian v. Levi, 696 F.3d 352, 366 (3d Cir.
2012) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009)). To face liability, supervisors must
have personal involvement in the alleged wrongs. Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d
Cir. 1988). Personal involvement can be shown if a supervisor “‘participated in violating the
plaintiff’s rights, directed others to violate them, or, as the person in charge, had knowledge of and
acquiesced’ in the subordinate’s unconstitutional conduct.” Barkes v. First Corr. Med., Inc., 766
F.3d 307, 316 (3d Cir. 2014) (quoting A.M. ex rel. J.M.K. v. Lezerne County Juvenile Det. Ctr.,
372 F.3d 572, 586 (3d Cir. 2004)), cert. granted, judgment rev’d sub nom. on other grounds by
Taylor v. Barkes, 135 S. Ct. 2042 (2015). Government officials can also be liable for establishing
or maintaining a policy, practice, or custom that directly causes a deprivation of constitutional
rights with deliberate indifference to the consequences. See Stoneking v. Bradford Area Sch. Dist.,
882 F.2d 720, 724-25 (3d Cir. 1989). “‘Failure to’ claims—failure to train, failure to discipline,
or . . . failure to supervise—are generally considered a subcategory of policy or practice liability.”
Barkes, 766 F.3d at 316. 10
10
Iqbal, holding that a plaintiff could not proceed against high level government officials on the basis of knowledge
and acquiescence in discriminatory conduct on the basis of race, religion, or national origin, absent showing that
defendants developed the policies at issue for the purpose of discrimination, did not “abolish[] supervisory liability[.]”
Barkes, 766 F.3d at 319. Rather, under Iqbal, supervisors remain liable for their own misconduct in creating a
constitutional violation when acting with “the level of intent necessary to establish . . . the underlying constitutional
tort alleged.” Id.
15
Plaintiffs have produced enough evidence of Chief Bongiorno’s personal involvement to
survive summary judgment. After receiving a letter from Plaintiffs’ Counsel demanding an end to
the warrantless welfare checks performed by the Caldwell police, Chief Bongiorno testified that
he reviewed the family’s file, which would have revealed six ultimately unsubstantiated
complaints from Colon about JJ’s wellbeing that triggered the welfare checks, including one
resulting in a warrantless, unconsented entry by a police officer into the Plaintiffs’ home. (Baratz
Decl. Exs. E, I; Bongiorno Dep. 14:17-18.) Nevertheless, the Chief, upon consulting with the
Borough attorney, instructed his subordinates to continue investigating the DeVito residence
whenever a welfare check is requested, without addressing the legal limitations on entry. (Baratz
Decl. Ex. I; Bongiorno Dep. 17:1-8.) Chief Bongiorno’s responses to Plaintiffs’ interrogatories
suggest that he may have given similar instructions after the November 16, 2012, conversation
with Plaintiffs’ counsel, during which Mr. Brandmayr states that he told the Chief that the family
would no longer allow Caldwell police officers to come into their house.
There is further evidence that could support an affirmative link between the Chief’s
instructions and Sergeant Pellegrino’s conduct on May 12, 2013. Sergeant Pellegrino recalled
receiving Chief Bongiorno’s email directing the Department to conduct on-demand welfare checks
at the DeVito residence. (Pellegrino Dep. 21:1-8.) Sergeant Pellegrino then testified that the need
to check on the welfare of a minor allows him to enter a home over an occupant’s objections.
(Pellegrino Dep. 10:1-6.) Although Chief Bongiorno denied that an order to perform welfare
checks equated to authorization for unconsented home entry in the absence of exigent
circumstances, the Chief did not provide such clarification to his officers when directing them to
16
continue conducting welfare checks at the DeVito residence. 11 (Bongiorno Dep. 17:9-18:6, 20:721:17.) Viewing the record in a light most favorable to the Plaintiffs, Plaintiffs have presented
sufficient evidence to raise an issue of material fact concerning the Chief’s liability for the
warrantless searches that occurred on November 30, 2012, and May 12, 2013. 12
The Chief’s reliance on the advice of the Borough’s attorney, Gregory Mascera, confirming
that members of the Caldwell Police Department “have an obligation and duty to act upon every
welfare check request received,” does not preclude liability where the law left no ambiguity that
exigent circumstances must exist to allow law enforcement entry into a residence, even for a
welfare check on a minor child. (Baratz Decl. Ex. F); see Woodwind Estates, Ltd. v. Gretkowski,
205 F.3d 118, 125 (3d Cir. 2000), abrogated by United Artists Theatre Circuit, Inc. v. Twp. of
Warrington on other grounds, 316 F.3d 392 (3d Cir. 2003). Because this law was clearly
established when the incidents occurred, Chief Bongiorno is not entitled to qualified immunity.
d. Liability of the Borough of Caldwell
Finally, Plaintiffs claim that the Borough of Caldwell is liable because the illegal searches
were performed in the course of executing a municipal policy or custom. In Monell v. New York
City Department of Social Services, 436 U.S. 658 (1978), the Supreme Court outlined the
11
Chief Bongiorno testified that:
[Entry] wasn’t discussed. . . . I . . . just let them know they may be faced with
some resistance from the family based on this letter, but we do obviously need to
follow through and investigate the well-being of the child. . . . Obviously they
would act professionally . . . and conduct an investigation, wherever that
investigation may lead. . . . [If a resident denies entry], the officer at that point is
not allowed to force his way into the house. But if there’s an exigen[t]
circumstance, does he hear crying, is there a child yelling for help. What are all
the circumstances involved. If there’s nothing in the background and the officer
is outside and the resident’s saying there’s no child here and nothing is going on,
then the officer would have to take him at his word for that.
(Bongiorno Dep. 17:7-23, 21:4-17.)
12
The parties do not discuss the effect of distributing the Vargas memorandum, which describes the proper standard
for home entry, to subordinates. Its impact, in any case, is a question of fact for trial.
17
requirements for municipal liability under Section 1983. Municipal liability attaches only “when
execution of a government’s policy or custom, whether made by its lawmakers or by those whose
edicts or acts may fairly be said to represent official policy, inflicts the injury” complained of. Id.
at 694. As with supervisory liability, liability cannot be predicated solely on the operation of
respondeat superior. Natale v. Camden County Corr. Facility, 318 F.3d 575, 583-84 (3d Cir.
2003). To successfully bring a Monell claim, a plaintiff must “identify a municipal ‘policy’ or
‘custom’ that caused the plaintiff’s injury.” Bd. of the County Comm’rs v. Brown, 520 U.S. 397,
403 (1997). A policy is made “when a ‘decisionmaker possess[ing] final authority to establish
municipal policy with respect to the action’ issues an official proclamation, policy, or edict.”
Kneipp v. Tedder, 95 F.3d 1199, 1212 (3d Cir. 1996) (quoting Beck v. City of Pittsburgh, 89 F.3d
966, 971 (3d Cir. 1996)). A custom is an act “that has not been formally approved by an
appropriate decisionmaker,” but that is “so widespread as to have the force of law.” Brown, 520
U.S. at 404. In addition to identifying conduct attributable to the municipality, “[t]he plaintiff
must also demonstrate that, through its deliberate conduct, the municipality was the ‘moving force’
behind the injury alleged.” Id. That is, a plaintiff must “demonstrate a ‘plausible nexus’ or
‘affirmative link’ between the municipality’s custom and the specific deprivation of constitutional
rights at issue.” Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d Cir. 1990).
Plaintiffs have presented sufficient evidence on the basis of which a trier of fact could find
the existence of a policy and a link between the policy and the searches that occurred. Mr.
Mascera’s letter to Plaintiffs outlined what a reasonable jury could construe as a Borough policy
on welfare checks: “all members of the Caldwell police department have an obligation and duty to
act upon every welfare check request received by the Police Department. No member of the police
department has discretion over whether to act . . . . ” (Baratz Decl. Ex. F.) On the basis of this
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directive, Chief Bongiorno told his subordinates to continue performing welfare checks at the
Plaintiffs’ residence without discussing any limitations on entry, notwithstanding Plaintiffs’
complaints. Sergeant Pellegrino cited an obligation to ascertain the welfare of minors to justify
entering Mr. DeVito’s home without a warrant, consent, or evidence of an exigency to permit such
entry, testifying that if “I need to check on the welfare of a minor, I’m going to go into the
residence.” (Pellegrino Dep. 9:19-10:6.) From this conduct, a reasonable jury could establish a
link between the alleged policy and the alleged violations of Plaintiffs’ civil rights. The Borough
of Caldwell is thus not entitled to summary judgment.
e. Damages
Plaintiffs allege that as a result of Defendants’ repeated disturbances of their privacy, they
have suffered psychological trauma. Plaintiffs also demand punitive damages. Defendants argue
that Plaintiffs’ emotional injuries are not compensable because they do not stem from conduct that
is so extreme or outrageous in character as to exceed all bounds of decency; nor do the violations
merit an award of punitive damages.
Contrary to Defendants’ contentions, Plaintiffs’ right to recover for psychological injury
in the civil rights context is not governed by the standard imported from intentional infliction of
emotional distress torts. “[C]ivil rights laws are intended in part to provide broad, consistent
recompense for violations of civil rights.” Bolden v. Southeastern Pa. Transp. Auth., 21 F.3d 29,
35 (3d Cir. 1994) (citing Basista v. Weir, 340 F.2d 74 (3d Cir. 1965)). Non-pecuniary emotional
damages can be recovered under Section 1983 as long as the Plaintiff can show actual injury.
Carey v. Piphus, 435 U.S. 247, 263-64 (1978); Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S.
299, 307 (1986) (“compensatory damages may include not only out-of-pocket loss and other
monetary harms, but also such injuries as ‘impairment of reputation . . . , personal humiliation, and
19
mental anguish and suffering.’”) (quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 350 (1974)).
The requirement for actual injury serves merely to caution that injury may not be inferred solely
from the fact that a constitutional right was violated. See Gunby v. Pa. Elec. Co., 840 F.2d 1108,
1121-22 (3d Cir. 1988). It does not impose a threshold for a particular quantum or degree of harm.
Moreover, emotional damages do not have to be supported by any specific kind of
evidence. Bolden, 21 F.3d at 36. Expert medical testimony is not required. Id. Instead, emotional
distress can be proven “by showing the nature and circumstances of the wrong and its effect on
the plaintiff.” Carey, 435 U.S. at 263-64. Such injury “may be evidenced by one’s conduct and
observed by others.” Id. at 264 n.20. Accordingly, plaintiff’s own testimony or the testimony of
family members can be used to support recovery for emotional distress. See Bolden, 21 F.3d at
33; cf. Smith v. Anchor Bldg. Corp., 536 F.2d 231, 236 (8th Cir. 1976) (plaintiff’s testimony that
she was “embarrassed” and “really hurt and humiliated” may support claim for emotional distress
damages).
Plaintiffs have complained of increased fear and anxiety, difficulty sleeping,
depression, and feeling uncomfortable in their home. This evidence is sufficient to allow the jury
to determine whether Plaintiffs’ allegations of emotional distress constitute a compensable injury.
Plaintiffs have also shown sufficient evidence based on which a jury may award punitive
damages. Punitive damages may be warranted where a defendant acts with reckless or callous
disregard for the plaintiff’s rights, or intentionally violates federal law. Smith v. Wade, 461 U.S.
30, 51 (1983). Defendants’ conduct does not need to be driven by evil motive or intent. Savarese
v. Agriss, 883 F.2d 1194, 1204 (3d Cir. 1989). The present record can support a conclusion that
responding police officers, without a warrant or evidence that JJ was in immediate need of help,
entered Plaintiffs’ home without their permission. From there, a reasonable jury could find that a
clear violation of Plaintiffs’ Fourth Amendment rights occurred. Punitive damages, however, are
20
not available against the Borough of Caldwell. City of Newport v. Fact Concerts, Inc., 453 U.S.
247, 271 (1981) (punitive damages are not available against a municipality in an action under 42
U.S.C. § 1983).
III.
CONCLUSION
For the foregoing reasons, the Court will DENY Defendants’ motion for summary
judgment. An appropriate Order will be filed.
s/ Stanley R. Chesler
STANLEY R. CHESLER
United States District Judge
Dated: March 23, 2016
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