DEMETRO et al v. NATIONAL ASSOCIATION OF BUNCO INVESTIGATIONS et al

Filing 100

OPINION. Signed by Judge Kevin McNulty on 6/25/2019. (as, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

CLARK DEMETRO, Union County,
New Jersey, and CLARK & SONS
CONSTRUCTION, LLC, Union County,
New Jersey,

Civ. No. 14-6521 (1CM) (SCM)
OPINION

Plaintiffs,
V.

NATIONAL ASSOCIATION OF BUNCO
INVESTIGATIONS, Baltimore County,
Maryland, and ROBERT POCHEK,
individual capacity, Middlesex
County, New Jersey, and TOWNSHIP
OF WOODBRIDGE, NEW JERSEY,
and JOHN DOE,
Defendants.

KEVIN MCNULTY, U.S.D.J.:

The plaintiffs, Clark Demetro (“Demetro”) and Clark & Sons
Construction, LLC (“Clark & Sons”) brought this action against Defendants
National Association of Bunco Investigators (“NABI”),’ Robert Pochek
(“Pochek”), and the Township of Woodbridge, NJ, (“Woodbridge9 based on
allegedly defamatory statements and violations of Demetro’s rights under the
constitutions and laws of the United States and New Jersey. In short, Demetro
asserts that NABI has targeted and defamed him due to his Romani ethnicity

NABI was incorrectly pled as the “National Association of Bunco Investigations.”
“Bunco” is an informal term, perhaps antiquated, for a swindle or confidence trick.
1

by cataloguing him in its online database and sharing allegedly
unsubstantiated accusations of criminal conduct.
After my dismissal of some of plaintiffs claims (DE 61, 62), the remaining
causes of action are as follows: (i) common law defamation (Count 1); (ii)
violation of plaintiffs right to equal protection of the law under 42 U.S.C.
1983 and the New Jersey Civil Rights Act (“NJCRA”), N.J. Stat. Ann.

§

§ 10:6—i et

seq. (Count 5); (iii) violation of the New Jersey Law Against Discrimination
(“NJLAD”), N.J. Stat. Ann.

§ 10:5-12(f) based on discrimination in a place of

public accommodation (Count 6); and (iv) civil conspiracy to violate plaintiffs
right to equal protection of the law under 42 U.S.C.

§ 1985 and the NJLAD

(Count 7).
Theories of defamation and selective prosecution I must reject for lack of
evidence. The website, fairly read, reported that Demetro had been criminally
charged, which is a true statement and therefore not defamatory. The record
also demonstrates that the website did not catalyze any discriminatory
prosecution or official mistreatment of Demetro, who was charged locally based
on an independent civilian complaint.
Equal protection claims, however, remain in play. There is evidence from
which a fact finder need not, but could, conclude that information was
published on this website on a discriminatory basis. Some of the language on
this website is appalling, and the citizens have a right to expect better of the
police.
I say “the police” because the members in question are police officers.
They do not necessarily lose that status because they are acting under the
auspices of an antifraud organization, which occupies a sort of queasy middle
status between official and unofficial.
I say “appalling” because the website at times speaks in broad ethnic
categories, attributing fraudulent practices and motives to the Romani people
generally (who are referred to as “rpsies,” a charged and at least potentially
derogatory term). Of course law enforcement may, when appropriate, use race
2

or ethnicity (or height, or weight, or eye color) to identify suspects. Of course
law enforcement may focus its attention on gangs or criminal organizations
that associate along ethnic lines. And of course this court does not sit as a
general arbiter of the language on websites. But police-published statements
attributing criminalit to ethnic groups—as opposed to factual statements
about particular persons or criminal organizations—can undermine public
confidence that the laws are being administered fairly.
Now before the Court are NABI’s motion for summary judgment (DE 83),
and the motion of Pochek and Woodbridge for summary judgment (DE 84),
pursuant to Fed. R. Civ. P. 56. For the reasons stated in this Opinion, the
motions are denied in part and granted in part. Defendants’ motions for
summary judgment are granted as to the defamation claim (Count 1) and the
NJLAD claim for discrimination in a place of public accommodation (Count 6).
Defendants’ motions are denied as to the equal protection claims, both the
direct claim under 42 U.S.C.

§

1983 and the NJCRA (Count 5) and the

conspiracy claim under 42 U.S.C.
I.

§

1985 (Count 7).

BACKGROUND2

Record items cited repeatedly will be abbreviated as follows. Citations to page
numbers refer to the page numbers assigned through the Electronic Court Filing
system, unless otherwise indicated.

2

“DE

—“

Docket Entry in this case

=

“NABI Br.”

“NABI SMUF”
“RP/W Br.”

Memorandum of Law in Support of Defendant NABI’s
Motion for Summary Judgment (DE 83-3)

=

NABI’s Statement of Material Undisputed Facts (DE 83-2)

=

Memorandum of Law in Support of Defendants’ Robert
Pochek and the Township of Woodbridge Motion for
Summary Judgment (DE 84-3)

=

“RP/W SMUF”

Robert Pochek and Township of Woodbridge Statement of
Material Undisputed Facts (DE 84-2)

=

“P1. Opp. to NABI”

=

“P1. SMUF re NABI”

Plaintiffs’ Memorandum of Law in Opposition to NABI’s
Motion for Summary Judgment (DE 90)
Plaintiffs’ Statement of Material Undisputed Facts in
Response to NABI’s SMUF (DE 90-3, ending at p. 10)

=

3

A. Factual Background
i. The Parties
Plaintiff Clark Demetro is a man of Romani ethnic descent who resides in
Elizabeth, New Jersey.3 (DE 97

¶

1; DE 83-10 at4; P1. CS

¶

1). The Romani

people (also referred to as “Roma” or “Rom”) are a distinct ethnic group
originally of Asian origin. Historically and colloquially they have been described
with the epithet “Gypsy,” which can carry a derogatory connotation. (DE 21 at
pp.1--5,

¶

1,5). The Roma have historically suffered from discrimination based

on their origin and an assumed connection with criminality. (Id.).
Demetro was engaged in the business of home renovations through his
company, Clark & Sons, which was incorporated in New Jersey in 2013 and
has since discontinued operations. (DE 97

¶

31; P1. SMUF re RP/W

¶

¶

2; DE 83-10 at 9, 15; RP/W SMUF

31). Clark & Sons advertised in “Home Magazine”

and similar publications in New Jersey, on craigslist.com, and in flyers handed
out by Demetro. (RP/W SMUF

¶11

33-35; P1. SMUF re RP/W

¶

33-35). Demetro

did not maintain any business records for Clark & Sons. (RP/W SMUF
SMUF re RP/W

¶

¶

¶

38; P1. SMUF

38).

“P1. CS”
“P1.

37; P1.

37). He could only remember the names and addresses for

two of the customers that Clark & Sons serviced. (RP/W SMUF
re RP/W

¶

=

Opp.

Plaintiffs Counter Statement of Material Undisputed Facts
(DE 90-3, starting at p. 10)
to RP/W” = Plaintiffs’ Memorandum of Law in Opposition to NABI’s
Motion for Surnmaxy Judgment (DE 92)

“P1. SMUF re RP/W”

Plaintiffs’ Statement of Material Undisputed Facts in
Response to Robert Pocket’s and Township of WoodbHdge’s
SMUF (DE 92-2)

“DE 97”

NABI’s Response to Plaintiffs’ Counter Statement of
Undisputed Material Facts (DE 97)

=

“DE 99- 1”

=

=

Robert Pochek and Township of Woodbridge Reply
Statement of Material Undisputed Facts (DE 99-1)

At various points throughout the record plaintiff Clark Demetro is referred to as
Clark Signo. (See, e.g., DE 83-15; RP/W SMUF ¶‘J 5-6; P1. SMUFre RP/W ¶J 5-6).
Throughout this Opinion, I will refer to the plaintiff as Demetro.
3

4

NABI is a non-profit organization that provides information to its
members about suspected fraudulent activity involving ‘transient’ criminals.

(NABI SMUF

¶

¶ 2; P1. SMUF re NABI ¶

4; RP/W SMUF

¶ 39; P1. SMUF re RP/W

39). NABI’s members include law enforcement personnel and individuals

employed in related fields who are involved in the detection and prosecution of
criminal conduct, and the apprehension of defendants. (NABI SMUF

¶

3).4

It

compiles and distributes materials regarding recent developments in fraud
related crimes through electronic newsletters and bulletins. (NABI SMUF

¶

4).

NABI has a history of publishing articles that include racially charged
generalizations about persons of Romani descent. (P1. CS

¶31 23-24; DE 97 ¶31

23-24). For example, the following are excerpts from articles or text that
appeared on NABI’s website:
“We’ve all heard tales about gypsies and their mysterious ways, though
there’s a good chance, many of those stories aren’t true. But these people
Their faces look like anybody else’s here, but police
really do exist.
say these individuals, all Romanian citizens,5 are a modern take on
They’ll look for checkbooks, jewelry.
notorious gypsies of old.
anything that they think they can convert to money.” (DE 90-1 at 31).
.

.

.

.

.

.

“Ignorance is the Gypsies’ weapon against the outside world.” (DE 90-1
at 40).
(P1. CS

¶31 23-24; DE 97 ¶31 23-24).

Some of the NABI website postings include disclaimers of discrimination.
For example, an article reporting on NABI’s 2006 annual conference notes one
speaker’s generous concession that “[n]ot all Gypsies or Rom are criminals.”
(DE 90-1 at 37). Nonetheless, the participants’ statements then largely cast
On several occasions the parties’ responses to the other parties’ Local 56.1
statement of undisputed material facts are not directly responsive. (Compare NABI
SMUF ¶31 3, 4, with P1. SMUF re NABI ¶31 1-7; P1. CS ¶31 23-24; DE 97 ¶31 23-24). For
example, the allegations regarding the ethnic comments are not denied outright, but
“denied as irrelevant.” That is not an option under the Local Rules. Pursuant to Fed.
R. Civ. P. 56(e), the Court may consider a fact undisputed for purposes of a summary
judgment motion if a party “fails to properly address another party’s assertion of fact.”
4

This statement is confusing, and possibly confused. “Romanian citizens” would
most commonly refer to people who are citizens of the nation of Romania.
5

D

such caution aside: the speaker goes on to explain that NABI’s “main target
was the thefts, swindles and frauds perpetrated by Gypsies.” (Id.). The article
also quotes a detective who presented at a NABI conference as follows:
In his presentation, Det. Gary Nolte of Skokie showed a painting of
wagons passing through a bucolic countryside. “Most of America thinks
this is what a Gypsy is, I kid you not,” Nolte said. Americans “think it’s
fun. They think it’s a joke. Tambourine-thumping, banjo-playing
buffoons. That’s what [Gypsies] want us to think. But they’re not.”
(Id.). The article again quotes Nolte: “The Gypsies, Nolte said, ‘have a common
goal, and that’s to get over on us. They’re going to steal from the gaje [the non
Gypsy every day of their life.”’ (Id.). The remainder of the account of the NABI
conference contains many other such descriptions, all pertaining to “Gypsies”
(or suspected “Gypsies”).
The reporter who wrote the article also obtained the comments of a
university scholar (not a guest at the conference, apparently) who pointed out
that the NABI officers’ attitudes “are especially egregious because of the long
history of persecution of Gypsies.” (Id.).
NABI’s database has included photographs of individuals recently
arrested or suspected of criminal activity. (DE
i4, i5, 23, 24; DE 97

¶

go-i

at 23, 25, 43-47; P1. CS ¶j

i4, 15, 23, 24). Beneath those headshots, NABI

includes details about the individuals such as their height, weight, hair color,
eye color, potential aliases, and a brief summary about their alleged
misconduct. (Id.). Next to some of these individuals’ names appears a notation
or “G/F”, which perhaps stands for “Gypsy/Male” and “Gypsy/Female”,
although the parties have not explicitly said so. (Id.). Out of the sample
provided to the Court, most of the images have either “G/M” or “G/F” next to
the name, while a few names have “W/M” or “W/F”, which ostensibly means
“White/Male” and “White/Female.” (Id.) 6

6
The intended meaning, again, is unclear, and may reflect racial or ethnic
confusion.
6

Demetro appears in two NABI posts that have “G/M” next to his name
and image. (DE 90-1 at 23, 25; P1. CS

¶

g, 14, 15; DE 97

¶1J

9, 14, 15). One of

those posts, from April 12, 2002, includes a description of Demetro selling a
watercraft at a pawnshop in Philadelphia. (DE 90-1 at 23). It also says that
“Demetro has an extensive record for Assaulting Police and Resisting Arrest
when police are called to domestic situations involving him.” (Id.). “G/M” is
directly next to his name. (Id.). The second post is from March 30, 2012, and
also has “G/M” directly next to his name. (DE 90-1 at 25). This post describes
a Georgia traffic stop in which Demetro was found to possess $20,000 in cash.
It also says that “Demetro is involved in several scams involving Auto body
work and Psychic readings.” (Id.). Demetro appears in a third NABI post from
May 2014, which is discussed in further detail below, see subsection I.A.ii,
although that third post does not refer to Demefro’s ethnicity. (DE 90-1 at 6).7
Access to the portion of NABI’s website that includes information about
fraud suspects is restricted to NABI’s members. This section requires a
username and password to log in. (NABI SMUF

¶

12). NABI has two classes of

membership with separate privileges: law enforcement (“LE”) members and
associate members. (NABI SMUF

¶

7; P1. SMUF re NABI

¶

7).

To qualify for LE membership, applicants must submit proof that they
are sworn law enforcement officers or certified by their agency to access
federal, state, and local databases involving criminals, suspects, and arrestees.
(NABI SMUF

¶

8; P1. SMUF re NABI

¶

8). According to NABI, only LE members

receive NABI materials with private and sensitive information, such as a
suspect’s social security number, birthdate, or FBI number. (NABI SMUF

¶

9).

Associate members of NABI, who are generally in the fields of loss
prevention, insurance, banking, or bail bonds, receive NABI materials with

Demetro initially brought defamation claims for all three of these NABI posts. in
a prior Opinion, I dismissed the defamation claims for the 2002 and 2012 posts as
untimely. (See DE 61, 62). However, the 2002 and 2012 posts may have evidentiasy
relevance.
7

redacted personally identifiable information (“P11”) and do not have access to
the unredacted materials available to LE members. (NABI SMUF

10, 11).

¶1J

The general public does not have access to the redacted or unredacted
information accessible by associate members or LE members, as the website
requires login credentials to view that material. (RP/W SMUF
RP/W

¶

¶

50; P1. SMUF re

50).

Under NABI rules, LED members are not permitted to disclose information
found on the unredacted version of the online database or bulletins outside of
authorized LED channels. (RP/W SMUF

¶

51; P1. SMUF re RP/W

¶

51). It is not

entirely clear how this rule is enforced and whether NABI has any actual
resfrictions that prevent LE members from sharing the unredacted information
with unauthorized third parties. (Id.).
Demetro disputes the assertion that only NABI members can access the
materials about fraud suspects on its website because he, although not a
member, possesses copies of NABI’s online materials that disclose his P11. (P1.
SMUF re NABI

¶

9). During the course of discovery, however, Demetro has

refused to explain with particularity how he obtained the NABI posts that
would otherwise only be accessible to its members. See Subsection I.A.iii, infra.
NABI itself has no authority to arrest or prosecute any criminal suspect.
(NABI SMUF

¶

15; P1. SMUF re NABI

¶

15). LED members who perform their LED

duties do so pursuant to their LED roles and not on behalf of NABI. (NABI SMUF

¶

16; P1. SMUF re NABI

¶

16).

Defendant Woodbridge is a municipality organized under N.J. Stat. Ann.
40A:61-1. (RP/W SMUF

¶

52; P1. SMUF re RP/W

¶

52). Woodbridge has a

police department (the “Woodbridge PD”) (Id.),
Defendant Pochek is a police officer who has been employed with the
Woodbridge PD since 1995. (RP/W SMUF

¶

54; P1. SMUF re RP/W

¶

54).

Pochek became a LE member of NABI in 2004 and has served on NABI’s Board
of Directors intermittently from 2007 through the present. (RP/W SMUF
P1. SMUF re RP/W

¶

55; P1. CS

¶

13; DE 97
S

¶

¶

55;

13). Pochek served as NABI’s

Executive Secretary from 2009 through 2014. (Id.). Pochek’s employer was
aware of his activities with and membership in NABJ. (P1. CS

¶

21; DE 97

¶

21).

Demetro has been arrested on 26 separate occasions, including the “Del
Rosso Incident” outlined below. (NAB! SMUF

¶

19; P1. SMUF re NABI

¶

19).

None of those arrests involved officers who were working on behalf of NABI.
(NABI SMUF

¶

17; P1. SMUF re NAB!

¶

17). At least three of those arrests

resulted in criminal convictions for fraud or forgery-related offenses. (NAB!
SMUF

¶

20; P1. SMUF re NABI

¶

20). Defendants attach various documents

that describe some of those arrests. (See NABI SMUF ¶j 21-23, 25; P1. SMUF re
NAB!

¶IJ

21-23, 25).
ii. The Del Rosso Incident

On April 25, 2014, Michael Del Rosso (“Del Rosso”) filed an official
incident report with the Woodbridge PD against Demetro alleging that Demetro
and his company had committed theft by deception. (NAB! SMUF
SMUF re NABI

¶

¶

35; P1.

35). On May 16, 2014, Detective Andrew Kondracki of the

Woodbridge PD interviewed Del Rosso about the basis for the incident report.
(NABI SMUF

¶

36; P1. SMUF re NAB!

¶

36).

As alleged in Del Rosso’s statement to Det. Kondracki, Del Rosso’s
mother’s driveway needed repair work, so he contacted Clark & Sons around
March 31, 2014, which his mother learned of from an advertisement in a local
flyer. (NAB! SMUF

¶

37; P1. SMUF re NAB!

¶

37). After “slicing” the concrete on

the driveway, Demetro determined that the project would cost $7,500. (NABI
SMUF

¶

38; P1. SMUF re NABI

¶

38). Del Rosso then signed an agreement with

Clark & Sons to complete the work for $7,500. (NAB! SMUF
NAB!

¶

¶

39; P1. SMUF re

39). Del Rosso paid Demetro an initial deposit of $4,350. (Id.).

According to what Del Rosso told the Woodbridge PD, Demetro never
began work on the project, but instead returned two days later and claimed
that he needed more money. (NABI SMUF

¶

40). Del Rosso agreed to enter into

another contract with Clark & Sons to also do some work on the house’s
gutters and gave Del Rosso an additional check of $600 for the gutter repairs.
9

(Id.

¶

41; RP/W SMUF

¶

74; P1. SMUF re RP/W

¶

74). Clark & Sons did repair

Del Rosso’s mother’s gutters, but the work was allegedly done so poorly that
Del Rosso had to hire another contractor to properly repair it. (NABI SMUF

¶

42). With respect to the driveway, Demetro told Del Rosso that Clark & Sons
could no longer complete the renovations for the $7,500 to which Del Rosso
had initially agreed but instead required another $3,000 to complete the job.
(Id.

¶

43).
At this point, Demetro told Del Rosso that Del Rosso would lose the

entirety of his deposit if he did not provide the additional $3,000. (Id.).
Del Rosso decided to give Sons & Clark a check for $2,000, but after having
second thoughts, Del Rosso cancelled the check before anyone cashed or
deposited it. (DE 83-15 at 3). Then, on April 13, 2014, Demetro showed up in
person at the house and demanded more money from Del Rosso. (Id.).
Motivated by the concern that he would lose the money he already put down as
a deposit, Del Rosso withdrew $2,000 in cash from his bank and gave it to
Demetro. (Id.; RP/W SMUF

¶

83; P1. SMUF re RP/W

¶

83; NABI SMUF

This brought the total that Del Rosso gave Demetro

/

¶

42).

Clark & Sons to

$6,950. (DE 83-15 at 2). Driven by the large sums of money Demetro
demanded upfront without performing more work on the driveway, around
April 22, 2014 Del Rosso researched Clark & Sons online and found numerous
complaints about the company, seemingly suspicious details about Demetro
doing business under different names (such as Clark Signo), and details about
one of his arrests in Florida. (NABI SMUF
84-86, 99; P1. SMUF re RP/W

¶11

¶

45; DE 83-15 at 3; RP/W SMUF

¶J

84-86, 99).

Del Rosso approached Demetro about the information he discovered from
his online research but Demetro denied the accusations. (NABI SMUF

¶

45; DE

83-15 at 3). Del Rosso never stated that the information he found online was
from NABI’s website. (RP/W SMUF

¶

87; P1. SMUF re RP/W

¶

87).

After providing the $2,000 in cash to Demetro, Del Rosso had trouble
getting in contact with Demetro. (Id.). When they finally did speak, Del Rosso
10

informed Demetro that he wanted back the money he put down as a deposit.
(Id.). Demetro did not return the money and Clark & Sons did not do any
additional repair work for Del Rosso on the driveway or otherwise. (Id.).
Del Rosso then filed the April 25, 2014 incident report with the
Woodbridge PD describing these allegations. (NABI SMUF
NABI

¶

35; P1. SMUF re

35). As a result of this incident report, several arrest warrants were

¶

issued for Demetro, and Woodbridge PD officers attempted to locate him. (NABI
SMUF

¶

46; P1. SMUF re NABI

¶

46).

On May 27, 2014, Demetro was arrested by the Woodbridge PD as a
consequence of the Del Grosso Incident. (RP/W SMUF
RP/W

¶

¶

104; P1. SMUF re

104). On November 20, 2014, Demetro was indicted on several

criminal counts, which included charges for theft by deception and violations of
the Contractor Registration Act, N.J. Stat. Ann. 56:8-136, et seq. (NABI SMUF

¶

49; P1. SMUF re NABI

¶

49; RP/W SMUF

¶

105; P1. SMUF re RP/W

¶

105).

On January 7, 2015, Demetro pled guilty to one count of Failure to
Display Registration Number, N.J. Stat. Ann. 56:8-144 (RP/W SMUF
SMUF re RP/W

1

¶

106; P1.

106). On March 6, 2015, Demetro was sentenced to one year

of probation and was ordered to pay restitution to Del Rosso in the amount of
$6,350—only $600 less than the total amount Del Rosso paid to Clark & Sons,
seemingly taking into account the work performed on the gutters. (Id.; DE 8316 at 4).
iii. Online Posts About Demetro
On May 22, 2014, six days after Det. Kondracki interviewed Del Rosso,
and while detectives from the Woodbridge PD were actively attempting to locate
Demetro, Pochek posted information on NABI’s website (the “May 22 Post”). The
May 22 Post stated that Demetro used Clark & Sons “to scam victims into
paying for work that is never performed” and was “wanted for Theft by
Deception among other offenses.” (DE 90-1 at pp. 5-7; NAB! SMUF ¶1j 34, 50;
34, 50; P1. CS

¶

3; DE 97

¶

3; RP/W SMUF

¶

95; P1.

P1. SMUF re NABI

¶11

SMUF re RP/W

95). The May 22 Post shows two photos of Demetro, lists his

¶

11

social security number, date of birth, height, address, driver’s license number,
and his arrest warrant number. (DE 90-1 at pp. 5-7). Pochek derived this
information from the complaint that charged Demetro with Theft by Deception
and violations of the Contractor Registration Act. (RP/W SMUF
re RP/W

¶

¶

96; P1. SMUF

96).

On May 30, 2014 Pochek updated the entry about Demetro on NABI’s
website, explaining that Demetro was arrested by the Woodbridge PD,
processed, and released after posting bail (the “May 30 Update”). (Id.). Pochek
noted that the case was deemed “closed pending [a] court hearing.” (Id.). Like
the May 22 Post, the May 30 Update was only posted on the secure portion of
NABI’s website accessible only to LE and associate members. (RP/W SMUF
95; P1. SMUF re RP/W

¶

¶

95).

Nowhere in the May 22 Post or the May 30 Update is Demetro identified
as Romani or a “Gypsy.” (RP/W SMUF

¶

98; P1. SMUF re RP/W

¶

98). There is

no mention of Demetro’s racial or ethnic background at all in those posts. (Id.).
Demetro does not describe in detail how he obtained copies of NABI’s
online materials about him, which are ordinarily only accessible to NABI
members. Demetro claimed that a law enforcement officer—whose name he
could not recall during his deposition—showed him the content. (DE 83-10 at
43; RP/W SMUF

¶

100; P1. SMUF re RP/W

¶

100). Demetro could not

remember which police department this unnamed officer worked for, but could
recall that the officer was no longer on the force. (DE 83-10 at 43). Ultimately,
Demetro has refused to disclose this officer’s name during the course of
discovery. (RP/W SMUF

¶

101; P1. SMUF re RP/W

¶

101) Demetro was evasive

when questioned about the details of how the unnamed officer procured this
information and shared it with him. (See DE 83-10 at pp. 43-44).
At some point prior to the Del Rosso Incident, Demetro had searched his
own name online and found unsavory descriptions of his prior business
dealings and encounters with the criminal justice system. (RP/W SMUF
59; P1. SMUF re RP/W ¶jJ 57-59).
12

¶

57-

On March 22, 2014, nine days prior to Demetro’s initial contact with Del
Rosso, a former Clark & Sons customer, Lynn Solomon, complained about her
engagement with Clark & Sons on a website called ñpoffreport.com. (RP/W
SMUF

¶ 60; P1. SMUF re RP/W ¶ 60). Solomon alleged in her post that Demetro

performed substandard work, tried to get paid before the project was
completed, walked off the job when she would not pay in advance of
completion, and left a “major mess.” (Id.; NABI SMUF
NABI

¶ 32-33; P1. SMUF re

¶ 32-33). On April 15, 2014, Solomon updated her previous post on

ripoffreport.com to explain how Demetro had been arrested in Florida under a
different name and that he had been using a separate name in New Jersey.
{RP/W SMUF ¶ 61; P1. SMUF re RP/W

¶ 61).

B. Procedural Background
About three years prior to the commencement of this action, Demetro
was involved in another federal lawsuit against NABI that made claims similar
to those asserted in this case. See Demetro v. Police Dep’t, City of Chenij Hill,
N.J., No. 11-cv-4377 (JLL), 2011 WL 5873063 (D.N.J. Nov. 22, 2011). In that

case, Demetro was part of a group of plaintiffs suing NABI and various police
departments and officers based on alleged constitutional violations due to the
plaintiffs’ Romani ethnic background. See Id., 1 1-cv-4377 at DE 18.
While named as a defendant, NABI was never served in that action and
did not otherwise appear. Demetro, 2011 WL 5873063, at *3 (“[T]here is no
indication on the Court’s docket that service of process on NABI has been
properly effectuated, and NABI has not filed a responsive pleading or joined in
the motions to dismiss currently pending before the Court.”). Ultimately, the
plaintiffs in that case stipulated to its dismissal without prejudice in August
2012 without NABI ever having appeared or been served. See Id., No. 1 1-cv4377 at DE 42.
On October 21, 2014, Demetro and Clark & Sons filed their original
complaint in this action. (DE 1). On November 24, 2015, Plaintiffs filed an
amended complaint. (DE 21). On January 6, 2017, NAB! filed a motion to
13

dismiss all claims for lack of personal jurisdiction and for failure to state a
claim. (DE 47). In an Opinion and Order dated September 7, 2017, I granted in
part and denied in part NABI’s motion to dismiss the amended complaint,
dismissing some of the claims and allowing others to proceed. (DE 61, 62).
Demetro u. Nat’lAss’n of Bunco Investigations, No. 14-6521, 2017 WL 3923290,
at *1 (D.N.J. Sept. 7, 2017) (“MTD Opinion”).
Specifically, I granted the motion to dismiss with respect to the following
claims: Count 2 for commercial disparagement because plaintiffs failed to plead
special damages; Counts 3 and 4 for defamation and false light because the
claims were untimely; and Counts 5 and 7 for violations of 42 U.S.C.

§ 1983

and the NJCRA only insofar as they asserted claims based on reputational
stigma alone. Counts 5 and 7 survive, however, insofar as they assert equal
protection claims. (DE 61, 62). See Demetro v. Nat’lAss’n of Bunco
Investigations, No. 14-652 1, 2017 WL 3923290 (D.N.J. Sept. 7, 2017).
Additionally, I denied the motion to dismiss with respect to Count 1, a timely
claim for defamation, and Count 6, a claim for public accommodation
discrimination under the NJLAD, both of which remain. Id.
The September 7, 2017 dismissals were without prejudice to the filing of
a motion for leave to amend the complaint within 30 days. (DE 61, 62). There
having been no motion to amend, those dismissals have ripened into
dismissals with prejudice. (DE 62, 66, 75, 81).
Now before the Court are the motion of NABI (DE 83) and the motion of
Pochek and Woodbridge (DE 84) for summary judgment on the remaining
counts within the amended complaint.
II.

LEGAL STANDARD

Federal Rule of Civil Procedure 56(a) provides that summary judgment
should be granted “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. I?. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986); Kreschollek u. S. Steuedoring Co., 223 F.3d 202, 204 (3d Cir. 2000). In
14

deciding a motion for summary judgment, a court must construe all facts and
inferences in the light most favorable to the nonmoving party. See Boyle v. Cty.
ofAllegheny Pa., 139 F.3d 386, 393 (3d Cir. 1998). The moving party bears the
burden of establishing that no genuine issue of material fact remains. See
Celotex Corp. u. Catrett, 477 U.S. 317, 322—23 (1986). “[Wjith 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.” Id. at 325.
Once the moving party has met that threshold burden, the non-moving
party “must do more than simply show that there is some metaphysical doubt
as to material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475
U.s. 574, 586 (1986). The opposing party must present actual evidence that
creates a genuine issue as to a material fact for trial. Anderson, 477 U.S. at
248; see also Fed. R. Civ. P. 56(c) (setting forth the types of evidence on which
a nonmoving party must rely to support its assertion that genuine issues of
material fact exist). “[Ujnsupported allegations

.

.

.

and pleadings are

insufficient to repel summary judgment.” Schoch v. First Fid. Bancoip., 912
F.2d 654, 657 (3d Cir. 1990); see also Gleason

t’.

Nonvest Mortg., Inc., 243 F.3d

130, 138 (3d Cir. 2001) (“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.”). If the nonmoving party has failed “to make a showing sufficient
to establish the existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial,

.

.

.

there can be ‘no

genuine issue of material fact,’ since a complete failure of proof concerning an
essential element of the nonmoving party’s case necessarily renders all other
facts immaterial.” Katz v. Aetna Cas. & Stir. Co., 972 F.2d 53, 55 n.5 (3d Cir.
1992) (quoting Celotex, 477 U.S. at 322—23).

15

III.

DISCUSSION AND ANALYSIS
The four claims at issue are as follows: (1) common law defamation; (ii)

violation of plaintiffs right to equal protection of the laws under 42 U.S.C.
1983 and the NJCRA, N.J. Stat. Ann.
NJLAD, N.J. Stat. Ann.

§

§

§

10:6—1 et seq.; (iii) violation of the

10:5-12W, based on discrimination in a place of

public accommodation; and (iv) civil conspiracy to violate plaintiffs right to
equal protection of the laws under 42 U.S.C.

§

1985 and the NJLAD.8

For the reasons explained below, I will grant the defendants’ summary
judgment motions with respect to plaintiffs (i) defamation claim and (iii) claim
for an alleged violation of the NJLAD, N.J. Stat. Ann.

§

10:5-12W), based on

discrimination in a place of public accommodation. I will deny the defendants’
summary judgment motions with respect to plaintiffs (ii) equal protection claim
under 42 U.S.C.

§

1983 and the NJCRA, N.J. Stat. Ann.

§

10:6—1 et seq. and

(iv) civil conspiracy to violate equal protection under 42 U.S.C.

§

1985(3).

A. Common Law Defamation (Count 1)
Count 1 asserts a claim for defamation arising from the May 22 Post. In
that post, as updated, Pochek stated the following:
(05/22/2014) The above individual is wanted for Theft by
Deception among other offenses. He uses his home improvement
company, Clark & Son Construction, to scam victims into paying
for work that is never performed. He is identified as Clark SIGNO,
NJ DL # [redacted], DOB [redacted], SSN [redactedj. He also goes
by Clark DEMETRO among other names. Several possible

Plaintiff has also asserted in his brief that his rights were violated under the
“Privacy Act of 1974.” (See P1. Opp. to NABI at 2 1—22). The amended complaint does
not contain any such claim. (See generally DE 21.) Opposition to a summary judgment
motion is not the appropriate vehicle to insert new claims. See Bey v. Daimler Chrysler
Sews. ofN. Am., 2006 WL 361385, at *11 (D,N.J. Feb. 15, 2006) (“jC]lthms [that] were
cannot be raised for the first time in opposition to a
not alleged in the complaint.
judgment.”). I therefore will not consider it. See Anderson u. DSM
motion for summary
Nil., 58g F. Supp. 2d 528, 534 n.5 (D.N.J. 2008) (declining to consider new breach of
contract claim on summary judgment when plaintiff failed to plead that “particular
claim” in the complaint).
8

.

.

16

addresses in Linden, Elizabeth, and Roselle were checked with
negative results.
v
Warrant#W2014001345-1225 is entered (acs) with bail set at
$30,000.
Any agency that knows the whereabouts of Clark Signo or with any
further information can contact Det. Andrew Kondracki at 732602-[redacted] or Det. Sgt. Richard Hardish at 732-602-[redacted].
(05/30/2014) Update to eLog entry dated 05/22/2014 by Robert
Pocheck, Woodbridge PD (NJ), [redacted]. Information was received
that Clark SIGNO was driving a gray 2013 Mercedes bearing NJ
registration [redacted], which is registered to Joseph Schiavo of
Egg Harbor Twp. It should be noted that this matches the
description of one of the vehicles the victim stated Signo drove. I
located that vehicle parked outside one of Signo’s suspected
residences fredacted], Elizabeth. On May 27, 2024, Clark SIGNO
was arrested by members of the Woodbridge Police Tactical Squad
as he pulled up to the residence in that vehicle. He was processed
and released upon posting bail. He did not wish to make any
statements on the matter. Case closed pending court hearing.
(May 22 Post, DE 90-1 at 5; DE 21, Count 1,

¶1J 1-9).

Under New Jersey law, a claim for defamation has three elements: “(1)
the assertion of a false and defamatory statement concerning another; (2) the
unprivileged publication of that statement to a third party; and (3) fault
amounting at least to negligence by the publisher.”9 Leang v. Jersey City Bd. of
Ethic., 198 N.J. 557, 585, 969 A.2d 1097 (2009).

When the content involves matters of public concern, the standard is not
negligence but the higher one of actual malice. GD. v. Kenny, 205 N.J. 275, 293, 15
A.3d 300, 310 (2011) (“Speech involving matters of public interest and concern
triggers the higher actual-malice standard because free speech on such matters needs
adequate breathing room in a democratic society. The actual-malice standard requires
proof that the defamatory statement was published with knowledge that it was false or
with reckless disregard of its truth or falsity.” (internal citations and quotations
omitted)).
The parties do not argue that the allegedly defamatory speech here involved a
matter of public concern. See Hill v. Evening News Co., 314 N.J. Super. 545, 554-56,
17

To determine if a statement has a defamatory meaning, “a court must
consider three factors: (1) the content, (2) the verifiability, and (3) the context of
the challenged statement.” Id. (internal quotations omitted). A defamatory
statement is “false and injurious to the reputation of another or exposes
another person to hatred, contempt or ridicule or subjects another person to a
loss of the good will and confidence in which he or she is held by others.”’
Soohzokov v. Lichtblau, 664 F. App’x 163, 166 (3d Cir. 2016) (quoting Romaine
v. Kaflinger, 109 N.J. 282, 537 A.2d 284, 287 (1988)). “A defamatory statement,
generally, is one that.

.

.

deter[s] others from wanting to associate or deal with

[the subject of the statementj.” CD. a Kenny, 205 N.J. 275, 293, 15 A.3d 300,
310 (2011) (internal citations and quotations omitted).
If the May 22 Post were, as alleged, a false accusation of criminal
conduct, it would be considered defamatory as a matter of law. Kenny, 205 N.J.
275, 293 (“A statement falsely attributing criminality to an individual is
defamatory as a matter of law.”); see also Soobzokov a Lichtblau, 664 F. App’x
163, 168 (3d Cir. 2016); Hill v. Evening News Co., 314 N.J. Super. 545, 552,
715 A.2d 999, 1002 (App. Div. 1998) (“[C]ertain statements are defamatory per
se, including statements that the subject of the statement committed a
crime.”). In a defamation action, truth is a defense at common law; in addition,
true speech is constitutionally protected. Ward v. Zelikousky, 136 N.J. 516,
530, 643 A.2d 972, 979 (1994) (“True statements are absolutely protected
under the First Amendment.”); Senna v. Florimont, 196 N.J. 469, 480, 958 A.2d
427, 433 (2008) (same under New Jersey State Constitution). Thus, the
defamation claim turns on the veracity of the May 22 Post.

715 A.2d 999, 1002-04 (App. Div. 1998) (“[T]he Court specifically rejected the
contention that any person who engages in criminal conduct automatically becomes a
limited purpose public figure for purposes of comment on issues related to his
conviction.” (citing Woiston a Reader’s Digest Ass’n, Inc., 443 U.S. 157, 168, 99 5. Ct.
2701, 2708 (1979)). I will therefore assume that the negligence standard applies. See
*9 (N.J. Super. Ct.
Afihyie u. Bank ofAm., N.A., No. A-1595-lOT2, 2013 WL 451895, at
App. Div. Feb. 7, 2013).
18

To be “true,” a statement need not be “perfectly accurate”; the test is one
of substantial accuracy. Kenny, 205 N.J. 275, 293. The law of defamation
“overlooks minor inaccuracies and concentrates upon substantial truth.”
Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 516 (1991) (“Minor
inaccuracies do not amount to falsity so long as the substance, the gist, the
sting, of the libelous charge be justified.” (quotations and citation omitted));
Salzano u. N. Jersey Media Group Inc., 201 N.J. 500, 523 (2010).
A court assessing the truth of a statement must consider it as a whole to
determine the impression it will make on a reader. Kenny, 205 N.J. 275, 294;
Deckeru. Princeton Packet, Inc., 116 N.J. 418, 561 A.2d 1122, 1125 (1989)
(explaining that the “allegedly defamatory statement must be taken in context
and the publication considered as a whole”). It also “must evaluate the
criticized language according to the fair and natural meaning which it would be
given by persons of ordinary intelligence.” Decker, 116 N.J. 418, 425 (internal
quotation and citation omitted); Salzano, 201 N.J. 500, 523.
Defendants contend that the May 22 Post was truthful and therefore not
defamatory. (NABI Br. at 10). The website stated that Demetro “uses his home
improvement company, Clark & Son Construction, to scam victims into paying
for work that is never performed.” (DE 90-1, pp. 5-7). As of that date, Demetro
was accused of such conduct in a police report filed with the Woodbridge PD;
warrants were issued for his arrest based on that conduct; and he was then
being sought by the police. Later he was arrested and indicted, pled guilty to
one of the charges in that indictment, and as part of his sentence was ordered
to pay

$

6,350 in restitution to Del Rosso. See Subsection l.A., supra.

The cases require a comprehensive reading of allegedly defamatory
statements, taking into account the (a) the context of the statement, (b) the
audience, and (c) the ordinary meaning an objective reader of ordinary
intelligence would infer. Kenny, 205 N.J. 275, 294; Salzano, 201 N.J. 500, 523;
Decker, 116 N.J. 418, 561 (1989); Hill, 314 N.J. Super. 545, 552.

19

I first consider (a), the context. In the context of the sentences

immediately preceding and following it, this sentence in the May 22 Post would
be fairly understood as indicating no more than that Demetro was accused of
“scam[mingj victims into paying for work that is never performed.” (DE

go-i,

pp. 5-7). The opening sentence of the May 22 Post starts by explaining that
Demetro was “wanted for Theft by Deception among other offenses,” a true
statement. (Id.) (emphasis added). The next sentence—the alleged defamatory
statement—is that Demetro used Clark & Sons “to scam victims into paying for
work that is never performed.” (Id.). Immediately thereafter, it lists the warrant
number, explains that Demetro is being sought, and gives phone numbers to
report leads about his whereabouts. (Id.). The context of the statement is
clearly that it is summarizing the nature of a pending criminal charge. In that
respect, the post was accurate—Demetro was surely criminally accused of such
conduct. 10
I next consider (b), the audience for the statement. The readers of the
May 22 Post were NABI members: people working directly for law enforcement
agencies or those generally affiliated with the industry. The relevant portion of
the website was confined to law enforcement.”
Finally, I consider (c), what an objectively reasonable member of that
audience would infer from the statement. An objective person—and particularly

to
In the end, Demetro pled guilty to one count of Failure to Display Registration
Number. (The relevant statute, N.J. Stat. Ann. 56:8-144, requires contractors to
display their registration at their place of business, in all contracts and
correspondence, etc.). On March 6, 2015, Demetro was sentenced to one year of
probation and was ordered to pay restitution to Del Rosso in the amount of $6,350—a
figure clearly representing the total Del Rosso paid minus $600, the value of the work
performed on the gutters. The clear implication is that Demetro charged Del Rosso for
work not performed. So the statement in the May 22 Post, even if construed as one of
simple fact rather than a summary of charges, would be defensible as true.
I do not credit Demetro’s assertion that because he was able to access the NABI
posts about himself they must be accessible to non-NABI members more broadly.
Demetro was evasive in explaining how he accessed the NABI materials and also
refused to name the LE member who supposedly shared the information with him. See
Subsection I.A.üi., supra.
20

a member of that specialized law enforcement audience—would surely
understand that the May 22 Post was based on accusations of misconduct that
had yet to be proven. The May 30 Update confirmed that Demetro had now
been arrested, and ended with the statement “Case closed pending court
hearing,” an implicit acknowledgement that the judicial process had not yet
played out. 12
In sum, then, the May 22 Post is fairly read as communicating that
Demetro was accused of misconduct. That was truthful.’3 Consequently, the
May 22 Post does not satisfy a critical element of defamation under New Jersey
law.
The case law, while not precisely on point, is supportive of that
conclusion. For example, in Molin v. Trentonian, 297 N.J. Super. 153, 155, 687
A.2d 1022, 1022 (App. Div. 1997), a local newspaper published an article about
the plaintiffs arrest for stalking. The headline on the first page read “Stalker’s
Arrest Ends Year of Terror.” Next to that headline was a photograph of the
plaintiff, with the word “Charged” underneath. Id. at 156—58. The plaintiff
claimed that the statements were defamatory because at the time he was only
an “alleged stalker,” and was eventually found not guilty. Id.
The Appellate Division affirmed the trial judge’s decision that “[njeither
the article nor headline, read in context,” was false. Id. at 159. Police reports

It is unclear what is meant by “Case closed.” The case in question cannot be the
court case; the same sentence states that a hearing is pending. It may simply refer to
the report of an outstanding arrest warrant on the website, which “case” was now
“closed” because the suspect had been apprehended.
13
Repeating a defamatory statement can itself constitute a defamatory
publication. Taj Mahal Travel, Inc. v. Delta Airlines, Inc., 164 F.3d 186, 189 (3d Cir.
1998) (citing Kotlikoff v. Community News, 89 N.J. 62, 444 A.2d 1086, 1088 n. 1
(N.J. 1982)). The parties here do not really assert that Del Rosso defamed Demetro
when he complained to the Woodbridge PD. Such a complaint would in any event be
subject to a qualified privilege. See Williams v. Bell Tel. Labs. Inc., 132 N.J. 109, 120,
623 A.2d 234, 239 (1993) (“The general rule is that a statement charging a criminal
violation, made to a law-enforcement official, is qualifiedly privileged.”); Flythe v. Ralph
Lauren, Inc., No. 16-1321, 2016 WL 6806340, at *3 (D.N.J. Nov. 17, 2016).
12

21

documented the “year of terror” that precipitated the anti-stalking law. The
plaintiff admitted that he was arrested for stalking, which was the gist of the
article. Id (“[Tjhere was nothing false as to plaintiffs status as an arrestee for
the crime of stalking.”). Consequently, the court affirmed the grant of summary
judgment because it was truthful in its overall sense that the plaintiff was
accused of the reported misconduct. Id.; see also Hill, 314 N.J. Super. 545,
552; Lawrence u. Bauer Pub. & Printing Ltd., 89 N.J. 451, 461, 446 A.2d 469,
474 (1982) (“[AJ statement that criminal charges were imminent would be
truthful only if such charges were demonstrably impending.”); Durando v.
Nutley Sun, 209 N.J. 235, 239, 37 A.3d 449, 451 (2012); Taj Mahal Travel, Inc.
v. Delta Airlines, Inc., 164 F.3d 186, 195 (3d Cir. 1998) (Garth, J., dissenting);
Dangerfield v. WAWBroad., LLC, 228 F. Supp. 3d 696, 70 1—04 (E.D. Va.
2017); Thom v. McGary, 684 F. App’x 430, 435 (5th Cir. 2017) (not
precedentiafl; Yohe v. Nugent, 321 F.3d 35, 43 (1st Cir. 2003) [A] newspaper’s
publication of the fact that one has been arrested, and upon what accusation,
is not actionable, if true.” (internal quotation and citation omitted)); Cianci

ii.

New Times Pub. Co., 639 F.2d 54, 60 (2d Cir. 1980) (noting distinction in
allegedly defamatory statement between whether plaintiff “was in fact a rapist
and an obstructor of justice” versus “simply a person who had been accused of
being such” (emphasis added)); Jeter v. McKeithen, No. 14-189 (RS) (EMT),
2014 WL 4996247, at *3 (N.D. Fla. Oct. 7, 2014); Nichols a Moore, 396 F.
Supp. 2d 783, 790—92 (E.D. Mich. 2005).
To be sure, it would have been better if each sentence of the May 22 Post
repeated that this was a report of a criminal charge, not an independent
statement of fact. The sentence isolated by Demetro might more prudently have
stated that Demetro was aècused of”us[ingj his home improvement company,
Clark & Son Construction, to scam victims into paying for work that is never
performed.” The applicable standard, however, is not one of optimality or roomfor-improvement. The sense of the statement, viewed in context, was that it
truthfully reported a criminal accusation. Statements that are “fairly accurate”
22

when viewed in context are subject to the defense of truth. Kenny, 205 N.J.
275, 293.
The sentences surrounding the allegedly defamatory sentence explain
that Demetro was “wanted” on that charge, that an arrest warrant had issued,
and that he was being sought by the police. A person of ordinary
understanding, and particularly a law enforcement employee, would
understand that the “substance” or “gist” of the May 22 Post was based on
accusations against Demetro, and that implicit in the supposedly defamatory
sentence was an allegation, not a conclusion, of wrongdoing. Masson, 501 U.s.
496, 516; Kenny, 205 N.J. 275, 2g3.
Therefore, I will grant NABI’s motion for summary judgment as to the
defamation claim in Count

1.14

B. Discrimination in a Place of Public Accommodation (Count 6)
In Count 6, Demetro asserts a claim under the New Jersey Law Against
Discrimination (“NJLAD”), N.J. Stat. Ann.

§ 10:5-12(f), for discrimination in a

place of public accommodation. To prevail on such a claim a plaintiff must
show that “(1) defendant operates a place of public accommodation; (2) the
plaintiff is a member of a protected class; and (3) he or she was denied equal
treatment on the basis of his or her membership in a protected class.tm
Vandeusen v. Mabel Realty of Bordentown, LLC, No. 12-0330, 2012 WL
1664116, at*3 (D.N.J. May 11,2012) (citing N.J. Stat. Ann.

§ 10:5—12(f);

Dasrath v. Continental Airlines, Inc., 2006 WL 372980 (D.N.J. Feb. 16, 2006)).
The threshold issue here is whether NABI’s website is a place of public
accommodation. NABI contends that a place of accommodation must be a
physical place that is open to the public. (NABI Br. at 16). Demetro demurs,
citing, e.g., Ptaszynski v. Uwaneme 371 N.J. Super. 333, 853 A.2d 288 (App.

Because I rule based on the defense of truth, I do not reach defendants’
arguments regarding qualified immuniw. (See NABI Br. at 11—12 (“[E]ven if arguendo
the May 22 Statement was untrue, the qualified immunity shields NABI from
liability.”); RP/W Br. at 29).
‘4

23

Div. 2004), which held that “the Township police department—both the
building and the individual officers—is a place of public accommodation.” 371
N.J. Super. 333, 347, 853 A.2d 288, 297 (App. Div. 2004).
Demetro thus seeks to analogize NABI’s internet website to a municipal
police force. Denying the defendants’ motion to dismiss, I wrote that “the
aptness of that analogy may depend on the facts as developed in discovery.”
Demetro z,’. Nat’? Ass’n of Bunco Investigations, No. 14-652 1, 2017 WL 3923290,
at *14 (D.N.J. Sept. 7, 2017). Discovery has now closed, and I cannot find
factual support for a holding that NABI’s website is a place of public
accommodation under the NJLAD.
In Ptaszynski, two arrestees sued police officers, a municipality, and its
police department for an alleged NJLAD violation, claiming that they were
beaten and verbally abused due to their race. 371 N.J. Super. 333, 344. The
trial court held that the police department was not a place of public
accommodation and dismissed plaintiffs’ NYLAD claim on that basis. Id. The
Appellate Division reversed, holding that “[ajs a public entity, by its very nature
a police force is a place of public accommodation.” 371 N.J. Super. 333, 347.
The court reasoned as follows:
No formulistic analysis is required to determine whether the police
engage in public solicitation or a police department is similar to those
entities enumerated as public accommodations under the [NJLAD]
statute. A police department is not a private entity that needs to be shoehorned into a list of other, primarily private, entities that provide services
to the public. It would indeed lead to an anomalous result if private
organizations with close ties to government agencies were places of
public accommodation because of those ties, while the government
agency itself was not.
Id.
Vandegnft v. Bowen, No. 07-2623, 2009 WL 1913412 (D.N.J. June 30,
2009), upheld an NJLAD claim against the City of Margate for allegedly failing
to implement policies and procedures within its police department relating to
sexual harassment of women. 2009 WL ig 13412, at *3 Vandegnft cited
Ptaszynski for the proposition that “discriminatory acts of law enforcement
24

officers are considered public accommodation discrimination under the
NJLAD.” Id. Vandegnft found an NJLAD claim for public accommodation
discrimination was sufficiently pled where the plaintiff alleged that “a member
of the police department discriminated and/or harassed her because of her
sex” and the City of Margate failed to prevent these acts. Id. at *5•
Neither Ptasynski nor Vandegnft, the cases relied on by Demetro here,
involved a website. Nor does the mere fact of a law enforcement connection, or
the presence of police officers in NABI’s membership, persuade me that the
police department/website analogy is a good one.
One important factor in identifying a place of public accommodation is
whether the entity “engages in broad public solicitation.” Dale v. Boy Scouts of
Am., 160 N.J. 562, 589, 734 A.2d 1196, 1210 (1999), rev’d on other grounds,
530 U.S. 640, 120 S. Ct. 2446, 147 L. Ed. 2d 554 (2000). Here, there is little
evidence that the NABI website seeks or solicits broad public participation.
NABI does not maintain a physical location in New Jersey, or specifically
advertise there. NABI’s online database is not generally available for viewing by
the public, but instead requires membership in either the associate class or
law enforcement class, the latter of which requires employment at a law
enforcement agency. Still, there is a broader class of NABI members potentially
drawn “from the public at large” via the website. See Clover Hill Swimming
Club, Inc. v. Goldsboro, 47 N.J. 25, 33, 219 A.2d 161, 165 (1966). This factor,
then, generally favors NABI but does not wholly weigh in its favor.
A second public accommodation factor is whether the entity’ in question
“is similar to enumerated or other previously recognized public
accommodations.” Id. The NJLAD itself provides a wide-ranging, nonexhaustive list of public accommodations:
any tavern, roadhouse, hotel, motel, trailer camp, summer camp, day
camp, or resort camp, whether for entertainment of transient guests or
accommodation of those seeking health, recreation, or rest; any
producer, manufacturer, wholesaler, distributor, retail shop, store,
establishment, or concession dealing with goods or services of any kind;
any restaurant, eating house, or place where food is sold for
25

consumption on the premises; any place maintained for the sale of ice
cream, ice and fruit preparations or their derivatives, soda water or
confections, or where any beverages of any kind are retailed for
consumption on the premises; any garage, any public conveyance
operated on land or water or in the air or any stations and terminals
thereof; any bathhouse, boardwalk, or seashore accommodation; any
auditorium, meeting place, or hall; any theatre, motion-picture house,
music hall, roof garden, skating rink, swimming pooi, amusement and
recreation park, fair, bowling alley, gymnasium, shooting gallery, billiard
and pool parlor, or other place of amusement; any comfort station; any
dispensary, clinic, or hospital; any public library; and any kindergarten,
primary and secondary school, trade or business school, high school,
academy, college and university, or any educational institution under the
supervision of the State Board of Education or the Commissioner of
Education of the State of New Jersey.
N.J. Stat. Ann.

§ 10:5-5(1).

None of these enumerated places of public accommodation are electronic
in nature, or online. Moreover, the Third Circuit has held that, in the context of
Title III of the Americans with Disabilities Act, 42 U.S.C.
term “public accommodation

.

.

.

§ 12182 (“ADA”), the

is limited to physical accommodations.”

Peoples v. Discover Fin. Sen’s., Inc., 387 F. App’x 179, 183 (3d Cir. 2010)
(emphasis added; citing Ford v. Schering-Plough Corp., 145 F.3d 601, 612 (3d
Cir. 1998)); see also Walker v. Sam’s Oyster House, LLC, No. 18-193, 2018 WL
4466076, at *2 (E.D. Pa. Sept. 18, 2018); Bowers v. Nat’l Collegiate Athletic
Ass’n, 9 F. Supp. 2d 460, 483 (D.N.J. 1998) (“the Third Circuit has recently
held, and quite rightly, that a public accommodation within the meaning of 42
U.S.C.

§ 12181(7) is a physical place.” (citing Ford, 145 F.3d 601, 612)).
Courts have considered interpretations of the ADA when interpreting the

NJLAD. See Lasky v. Borough of Hightstown, 426 N.J. Super. 68, 76, 43 A.3d
445, 451 (App. Div. 2012); Chisoim v. McManimon, 275 F.3d 315, 325 n.9 (3d
Cir. 2001). I take the Third Circuit’s interpretation of place of public
accommodation in the ADA context to be highly persuasive if not literally

26

controlling here.’5 I hold that a “location” in cyberspace, such as NABI’s
website, is not a “place” of public accommodation under the NJLAD.
I turn, however, to an alternative theory that NABI itself, as opposed to
its website, might be deemed a place of public accommodation. Membership
organizations have been recognized as potential places of public
accommodation for purposes of an NJLAD claim. See Dale, 530 U.S. 640
(noting that the definition of public accommodation “has expanded from clearly
commercial entities” to “membership organizations such as the Boy scouts”);
Frank v. Ivy Club, 120 N.J. 73, 79, 110, 576 A.2d 241 (1990) (eating clubs);
Nat’l Org. for Women, Essex Cty. Chapter v. Little League Baseball, Inc., 127 N.J.
Super. 522, 531, 318 A.2d 33, 37 (App. Div. 1974) (Little League Baseball);
Clover Hill Swimming Club v. Goldsboro, 47 N.J. 25, 33—34, 219 A.2d 161
(1966) (swimming club); N.J. Stat. Ann.

§

lO:5-12(fl(2).

NABI is indeed a membership organization. Such a theory, however, does
not fit Demetro’s public-accommodation claim. NJLAD explicitly makes it
unlawful for a person with authority at a place of public accommodation “to
refuse, withhold from or deny to any person” the advantages of the
accommodation, “or to discriminate against any person in the furnishing
thereof.” N.J. Stat. Ann.

§

10:5-12(f). Demetro does not claim that he sought

membership in NABI or a physical facility maintained by NABI, but was
excluded based on his ethnicity. Nor is Demetro a member of NABI whose
membership rights were somehow curtailed in a discriminatory fashion.

Cases by district courts within the Third Circuit have found a website to be a
place of public accommodation, typically if the website had a sufficient nexus to a
physical place of public accommodation. See Suchenko v. ECCO USA, Inc., No. 180562, 2018 WL 3933514, at *3 (W.D. Pa. Aug. 16, 2018); Tawam v. APCI Fed. Credit
Union, No. 18-00 122, 2018 WL 3723367, at *6 (E.D. Pa. Aug. 6, 2018) (“The website is
a service offered by [defendant} and therefore may be subject to the ADA if it has a
sufficient nexus to [defendant’s] physical location.”); Qniewkowski v. Lettuce Entertain
You Enterprises, mc, 251 F. Supp. 3d 908 (W.D. Pa. 2017) (finding bank’s website to
be a place of public acconmiodafion for ADA claim). That is not the case here.
‘5

27

Rather, Demetro claims that NABI performed a wrongful or
discriminatory act when it catalogued him on their website as a ‘transient
criminal’ due to his ethnicity. That allegation may support a grievance, or some
sort of claim of discrimination. It is not a claim that Demetro was denied equal
access to or enjoyment of a place of public accommodation.
I will grant defendants’ motion for summary judgment on Count 6,
discrimination in a place of public accommodation under NJLAD, N.J. Stat.
Ann.

§ 10:5-12(f).
C. Equal Protection under 42 U.S.C.

§

1983 and NJCRA (Count 5)

In Count 5, Plaintiff asserts claims under 42 U.S.C.
NJCRA, N.J. Stat. Ann.

§ 10:6—1

§ 1983 and the

et seq.,16 for the violation of his right to equal

protection. The Fourteenth Amendment to the U.S. Constitution provides that
no state shall “deny to any person within its jurisdiction the equal protection of
the laws.” U.S. Const., amend. XIV,

§ 1. “Article I, paragraph 1 of the New

Jersey Constitution has been interpreted ‘as conferring the right of equal
treatment under the law, a right analogous to the guarantee of equal protection
under the Fourteenth Amendment.”’ In re D’Aconti, 316 N.J. Super. 1, 19, 719
A.2d 652, 660 (App, Div. 1998) (citing Doe v. Poritz, 142 N.J. 1, 43, 662 A.2d
367 (1995)).
Demetro essentially asserts a claim of racial profiling or unequal
application of the laws on the basis of his Romani ethnicity. From the
allegations, this could mean either of two things: (1) that NABI is responsible
for Demetro’s having been selectively prosecuted over the years; or (2) that the
website’s inclusion of Demetro and listing of criminal allegations against him
was itself discriminatory.

The NJCRA “was modeled after 42 U.S.C. § 1983, and creates a private cause of
action for violations of civil rights secured under the New Jersey Constitufion[].”
Trafton v. City of Woodbury, 799 F. Supp. 2d 417, 443 (D.N.J. 2011). “This district has
repeatedly interpreted NJCRA analogously to § 1983.” Id (collecting cases).
76

28

i.

State action

A threshold requirement of a

§ 1983 claim is that the defendant have

acted “under color of state law.” Sprauve v. W. Indian Co., 799 F.3d 226, 229
(3d Cir. 2015) (citing Groman

ii.

Twp. of Manalapan, 47 F.3d 628, 638 (3d Cir.

1995)). Likewise, the equal protection clause is also directed at official conduct,
and therefore requires “state action.” Id. (citing Lugar v. Edmondson Oil Co.,
Inc., 457 U.S. 922, 937, 102 S. Ct. 2744 (1982)); Edmonson v. Leesuifle
Concrete Co., 500 U.S. 614, 619, 111 S. Ct. 2077, 2082 (1991) (“The
Constitution’s protections of individual liberty and equal protection apply in
general only to action by the government.”). Those two analyses are equivalent.
Sprauve, 799 F.3d 226, 229 (citing Leshko v. Servis, 423 F.3d 337, 339 (3d Cir.
2005)); Cdssman v. Dover Downs Entm’t Inc., 289 F.3d 231, 234 (3d Cir. 2002)
(“Where a defendant’s conduct is state action under the Fourteenth
Amendment, it is also conduct under color of state law for

§ 1983.”). This

presents the question of whether NABI was a state actor for purposes of this
claim. Leesuifle Concrete Co., 500 U.S. 614, 619 (“Racial discrimination, though
invidious in all contexts, violates the Constitution only when it may be
attributed to state action.”).
In limited circumstances, a private person or

entity

can

be considered a

state actor when that private party assumes and effectuates a sufficient level of
government authority. Leesvifle Concrete Co., 500 U.S. 614, 620 (“Although the
conduct of private parties lies beyond the Constitution’s scope in most
instances, governmental authority may dominate an activity to such an extent
that its participants must be deemed to act with the authority of the
government and, as a result, be subject to constitutional constraints. This is
the jurisprudence of state action, which explores the essential dichotomy
between the private sphere and the public sphere, with all its attendant
constitutional obligations.” (internal quotations and citation omitted)).
A court considering whether alleged conduct by a private party
constituted state action must ask (1) “whether the claimed constitutional
29

deprivation resulted from the exercise of a right or privilege having its source in
state authority”; and (2) “whether the private party charged with the
deprivation could be described in all fairness as a state actor.” Id. (citing Lugar,
457 U.S. at 937—42, 102 S. Ct. 2744); Brown v. Philzji Morris Inc., 250 F.3d 789,
801 (3d Cir. 2001).

NABI is a private organization, not a state actor in the ordinary sense.
However, plaintiff argues that NABI’s conduct can be fairly attributed to the
state for purposes of its equal protection claim. NABI, he says, effectuates
government authority since its members include law enforcement personnel
who act in that official capacity when collecting and disseminating non-public
information about suspects in ongoing law enforcement investigations. (P1.
Opp. to NABI at 19—2 1). I agree that Demetro has put forward enough to
present a material question of fact as to whether NABI should be considered a
state actor for purposes of plaintiffs constitutional claim.
The following factors are relevant in determining whether a particular
course of conduct is governmental in character: “the extent to which the actor
relies on governmental assistance and benefits, whether the actor is performing
a traditional governmental function, and whether the injury caused is
aggravated in a unique way by the incidents of governmental authority.”
Leesville Concrete Cc., 500 U.S. 614, 62 1—22 (internal citations omitted).
The crux of the state action analysis “is not whether the state was
involved in some way in the relevant events, but whether the action taken can
be fairly attributed to the state itself.” Groman, 47 F.3d 628, 638; Brentwood
Acad. v. Tennessee Secondary Sch. Athletic Ass’n, 531 U.S. 288, 25, 121 5. Ct.
924, 930, 148 L. Ed. 2d 807 (2001) (“[S]tate action may be found if, though
only if, there is such a close nexus between the State and the challenged action
that seemingly private behavior may be fairly treated as that of the State itself.”
(internal quotations and citation omitted)); NCAA v. Tarkanian, 488 U.S. 179,
192, 109 S.Ct. 454, 462, 102 L.Ed.2d 469 (1988) (“[W]e ask whether the State
provided a mantle of authority that enhanced the power of the harm-causing
30

individual actor.”); West u. Atkins, 487 U.S. 42, 49, 108 5. Ct. 2250, 2255, 101
L. Ed. 2d 40 (1988) (“The traditional definition of acting under color of state law
requires that the defendant in a

§

1983 action have exercised power possessed

by virtue of state law and made possible only because the wrongdoer is clothed
with the authority of state law.” (internal quotation and citation omitted)).
Additionally, the U.S. Supreme Court appears to employ three related
tests, depending on the factual scenario, to determine whether private conduct
can be deemed state action.’7 Those tests include the following: (1) the
“exclusive government function approach”; (2) the joint participation or
symbiotic relationship approach”; and (3) the “nexus approach.” Groman, 47
F.3d 628 (collecting cases); Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d
Cir. 1995) (collecting cases). No matter which test a court evaluates, it “must
remain focused on the heart of the state action inquiry, which.

.

.

is to discern

if the defendant exercised power possessed by virtue of state law and made
possible only because the wrongdoer is clothed with the authority of state law.”
Grnman, 47 F.3d 628, 639 (internal quotations and citation omitted).’8

“The Supreme Court pointed out in Lugar v. Edmondson Oil Co., 457 U.S. 922,
102 S.Ct. 2744, 73 L.Ed.2d 482 (1982), that it has never been clear ‘jwjhether these
different tests are actually different in operation or simply different ways of
characterizing the necessarily fact-bound inquiry that confronts the Court in [each]
situation.”’ Crissman v. Dover Downs Entm’t Inc., 289 F.3d 231, 239 n. 12 (3d Cir.
2002) (also citing Groman, 47 F.3d 628, 639 n. 16).
17

No matter which test is used to evaluate the case, courts should “focus on the
fact-intensive nature of the state action inquiry, mindful of its central purpose: to
assure that constitutional standards are invoked when it can be said that the State is
responsible for the specific conduct of which the plaintiff complains.” Id. at 239
(internal citation and quotation omitted); see also Brentwood Acad. v. Tennessee
Secondary Sch. AthleticAss’n, 531 U.S. 288, 295, 121 S. Ct. 924, 930, 148 L. Ed. 2d
807 (2001) (“What is fairly attributable [to the state] is a matter of normative
judgment, and the criteria lack rigid simplicity.”).
18
None of the parties meaningfully grappled with any of these tests. NABI’s sole
argument on this front is that “no law enforcement official who arrested Demetro was
doing so in their capacity as a member of NABI.” (NABI Br. at 15). That argument
misses the point. The question is whether the conduct of NABI qua NABI constitutes
state action—whether other officers acted on NABI’s behalf is not relevant. Moreover, it
is somewhat inconsistent for NABI to argue that it is not a state actor in the equal
31

The plaintiff has put forward enough facts to survive defendants’
summary judgment motion on this issue. However, questions of fact remain as
to whether NABI shares a sufficient nexus with the state. NABI’s law
enforcement members seemingly use their positions of authority within the
state to obtain and disseminate through its website personally identifiable
information about alleged criminal suspects. It remains an open question, inter
alia, whether the information, once on the website, is accessible to the public,
whether or to what extent NABI members use the state’s resources in collecting

that information, and whether the state allows or supports this conduct. From
the face of the record, a fact finder could conclude that the posted content is at
least in part confidential, since it includes P11 and information from ongoing
criminal investigations. Such questions will bear on the ultimate question of
whether NABI qualifies as a state actor.
Gathering information about people for the purpose of pursuing criminal
prosecutions is traditionally a function of the government, and it is typically
performed by police departments and prosecutors’ offices. It is no coincidence
that the membership of NABI mostly consists of individuals who work in or are
affiliated with law enforcement agencies. NABI limits certain information about
suspects to its law enforcement members, which indicates a belief that only
those cloaked with the authority of the state ought to have access to this
information.
Additionally, assuming arguendo that NABI’s conduct does violate
plaintiffs equal protection rights, that injury would certainly be “aggravated in
a unique way by the incidents of governmental authority.” Leesville Concrete
Co., 500 U.S. 614, 62 1—22. NABI’s ability to have its law enforcement members
access government databases and confidential investigatory materials is a
direct incident of governmental authority aggravating the assumed injury. See

protection context while it also asserts that its nexus to the state should subject it to
qualified immunity in the defamation context. (NABI Br. at 11—12, 14—15).
32

Rossignol v. Voorhaar, 316 F.3d 516, 526 (4th Cir. 2003) (“[The defendants’]
status as sheriff’s deputies enabled them to execute their scheme in a manner
that private citizens never could have.”). But for the state’s resources, it is an
open question whether NABI would even be able to gather the personally
identifiable information and suspect reports it puts on its website. In that
respect, material questions of fact exist as to whether NABI’s actions may “be
fairly attributed to the state itself.” Groman, 47 F.3d 628, 638; Brentwood
Acad., 531 U.S. 288, 295.
Because there is at least an issue of fact as to state action, I proceed to
the merits of the claim.
ii.

Merits of equal protection claim

“[Tjhe Constitution prohibits selective enforcement of the law based on
considerations such as race.... jTjhe constitutional basis for objecting to
intentionally discriminatory application of laws is the Equal Protection Clause.”
Whren

ti.

United States, 517 U.S. 806, 813, 116 S. Ct. 1769, 1774 (1996).

Demetro’s equal protection claim is that if he “was not Gypsy, he would
not be continuously included on NABI and targeted by the law enforcement
members of NABI, who have charged him approximately 26 times for crimes
over the past 15 years; he would not be falsely accused of having a criminal
record of violence.” (Cplt. Count 5

¶

7)1

As noted above, Demetro seems to be

claiming either (1) that NABI is responsible for Demetro’s having been
selectively prosecuted over the years; or (2) that the website’s inclusion of
Demetro and listing of criminal allegations against him was itself
discriminatory.
The first theory is easily disposed of. Nothing in the proofs submitted by
Demetro suggests that his 26 criminal prosecutions and three convictions
resulted from anything that NABI or its members did or did not do. A claim of

Although Count Five is tided “Defamation and False Light,” it cites 42 U.S.C.
1983 and explicitly states that “[sjelectively targeting persons because of their race
violates the NJ and US Constitution’s Equal Protection Clauses.” Id. ¶ 8.
33

§

selective prosecution requires that the defendant did the selecting or acted on
behalf of the person who did. That is not alleged here.2°
I therefore move to the second claim, that Demetro was included in the
website’s postings on a discriminatory basis. Such a claim, standing alone,
may or may not give rise to substantial damages, but that is irrelevant to my
conclusion that the proofs are sufficient to make out such a claim.
To state an equal protection claim “in the racial profiling context, a
plaintiff must allege that law enforcement actions: ‘(1) had a discriminatory
effect and (2) were motivated by a discriminatory purpose.’” See Alvin v.
Calabrese, 455 F. App’3c 171, 177 (3d Cir. 2011) (quoting Bradley v. United

Difficult questions of probable cause and intent are thus beside the point.
Generally, plaintiffs in retaliatory prosecution cases must “show more than the
subjective animus of an officer and a subsequent injury; plaintiffs must also prove as
a threshold matter that the decision to press charges was objectively unreasonable
because it was not supported by probable cause.” Nieves v. Bartlett, 139 S. Ct. 1715,
1723 (2019) (“fE}ven when an officer’s animus is clear, it does not necessarily show
that the officer ‘induced the action of a prosecutor who would not have pressed
charges otherwise.”’) (quoting Hartman v. Moore, 547 U.S. 250, 263, 126 5. Ct. 1695,
164 L. Ed. 2d 441 (2006)). Similarly, plaintiffs asserting a retaliatory arrest claim
generally “must plead and prove the absence of probable cause for the arrest.” Nieves,
139 5. Ct. 1715, 1724 (2019); but see id. at 1724 (noting that in the context of an
arrest where the defendant officers allegedly retaliated against a plaintiff for his
protected First Amendment speech, “the no-probable-cause requirement should not
apply when a plaintiff presents objective evidence that he was arrested when otherwise
similarly situated individuals not engaged in the same sort of protected speech had
not been.”).
However, plaintiffs alleging claims for racially selective arrests or prosecutions
in violation of the Fourteenth Amendment are not required to show a lack of probable
cause. See Nieves, 139 5. Ct. 1715, 173 1—32 (2019) (Gorsuch, J., concurring in part
and dissenting in part) (citing Hedgepeth v. Washington Metropolitan Area Transit
Auth., 386 F. 3d 1148, 1156 (D.C. Cir. 2004) (“[S]imply because a practice passes
muster under the Fourth Amendment (arrest based on probable cause) does not mean
that unequal treatment with respect to that practice is consistent with equal
protection.”)); see also Gibson v. Superintendent of NJ Dep’t of Law & Pub. Safety-Div.
of State Police, 411 F.3d 427, 440 (3d Cir. 2005) (‘“The fact that there was no Fourth
Amendment violation does not mean that one was not discriminatorily selected for
enforcement of a law. Plaintiffs’ equal protection claims under the Fourteenth
Amendment require a wholly separate analysis from their claims under the Fourth
Amendment.”’ (quoting Carrasca v. Pomeroy, 313 F.3d 828, 836 (3d Cir.2002))).

20

34

States, 299 F.3d 197, 205 (3d Cir. 2002)). To show discriminatory effect, a
plaintiff must prove “that she is a member of a protected class and that she
was treated differently from similarly situated individuals in an unprotected
class.” See id. (quoting Bradley, 299 F.3d 197, 206). Here, Demetro’s Romani
ethnicity “must have been a substantial facto?’ in the allegedly different
treatment that he received by defendants. Hassan a City of New York, 804 F.3d
277, 294 (3d Cir. 2015).
As to discriminatory effect, plaintiff has adequately established that he is
a member of a protected ethnic class.2’ Therefore, the “sole inquiry under this

Historically, being of Romany descent has subjected persons to
discrimination. See United States v. Lacher, 134 U.s. 624, 629, 10 S. Ct.
625, 33 LEd. 1080 (1890) (mentioning that historically, “to be seen for a
month in the company of gypsies” was punishable by death). While use
of the term “gypsy,” without more, is perhaps insufficient to establish
discriminatory intent, when it is used as part of an ethnic stereotype, it
may create an inference of prejudice.
*4 (S.D. Fla. Mar. 5,
United States v. Marks, No. 11-80072-CR, 2013 WL 4502319, at
2013), report and recommendation adopted, No. 11-80072-CR, 2013 WL 4502309 (S.D.
Fla. Aug. 23, 2013). There is a deplorable history, particularly in Europe, of vilification
and discrimination against the Roma, culminating in the murder of untold thousands
in the Nazi holocaust.
Under antidiscrimination statutes such as 42 U.S.C. § 1981, protected status
for the Roma is not an endorsement of racial or ethnic pseudo-science, but rather is
based on lay perceptions, however erroneous, and a history of discrimination:

21

Based on the history of 1981, we have little trouble in concluding that
Congress intended to protect from discrimination identifiable classes of
persons who are subjected to intentional discrimination solely because of
their ancestry or ethnic characteristics. Such discrimination is racial
discrimination that Congress intended § 1981 to forbid, whether or not it
would be classified as racial in terms of modem scientific theory.
St. Francis CoIL v. Al—Khazraji, 481 U.S. 604, 613, 107 S.Ct. 2022, 95 L.Ed.2d 582
(1987).
Romani or “gypsy” have likewise been recognized as an actionable ethnic
category for purposes of a Title VII discrimination claim. See Jan/co c’. Illinois State Toll
Highway Auth., 704 F. Supp. 1531, 1532 (N.D. III. 1989) (finding that persons of
“Gypsy” descent fit within the definition of national origin—even if the term “Gypsy” is
not related to some particular nation or region—because Congress intended Title VII to
prevent discrimination against people “based upon ethnic distinctions commonly
35

prong of the analysis” is whether the plaintiff was treated “differently from
similarly situated members of an unprotected class.” Bradley, 299 F.3d 197,
206. Discriminatory effect “‘may be proven by naming similarly situated
members of an unprotected class who were not selected for the same
[treatment] or, in some cases, by submitting statistical evidence of bias.’”
Calabrese, 455 F. App’x 171, 177 (quoting Bradley, 299 F.3d at 206).
Plaintiff has pointed to postings in NABI’s database that appear to
segregate and catalogue Romani ‘suspects’ with the demarcation “G/M” or
“G/F”, which inferably stand for “Qypsy/ Male” and “Gypsy/Female.” This is not
necessarily evidence of discrimination, but it may be. See Hassan, 804 F.3d
277, 295 (noting that it was a “viable legal theory” to assert that the
defendant’s program “relie[d] on an express classification of Muslims for
disfavored treatment” and that “direct evidence of intent is ‘supplied by the
policy itself.’” (quoting Massarsky v. Gen. Motors Corp., 706 F.2d 111, 128 (3d
Cir. 1983) (Sloviter, J., dissenting))); see also Marshall, 345 F.3d 1157, 1170
(acknowledging that a jury might think it significant that a police officer when

recognized at the time of discrimination”) (cited in Almendares v. Palmer, No. 3:00-CV7524, 2002 WL 31730963, at *10 (N.D. Ohio Dec. 3, 2002)).
Still, there is a surprising dearth of direct authority concerning Romani
ethnicity and equal protection. See Demetro v. Police Dep’t, City of Cherry Hill, N.J., No.
11-4377 (JLL), 2011 WL 5873063, at *1 n. 1 (D.N.J. Nov. 22, 2011) (“While the Third
Circuit Court of Appeals has recognized the Roma as a distinct ethnic group in its
review of removal decisions by the Board of Immigration Appeals, there is no case law
classifying the Roma people either as a ‘protected class’ based on race, alienage[,] or
national origin or as a ‘discrete and insular minority’ in accordance with Carolene
Products. United States v. Carotene Prods. Co., 304 U.S. 144, 152 n. 4, 58 S.Ct. 778,
82 L.Ed. 1234; see Marinescu v. AG of the United States, 284 Fed. App’x, 889 (3d Cir.
2008). However, litigation targeting alleged discrimination against the Roma has
proliferated outside the United States, and in non-binding fora such as the European
Court of Human Rights, Romani children have successfully brought claims against
school segregation in the Czech Republic found to violate prohibitions on racial
discrimination in the European Convention on Human Rights. See D.H. and Others v.
Czech Republic, 57325/00, Council of Europe: European Court of Human Rights, 7
February 2006, available at www.unhcr.org/refworld / docid /469e020e2.html).
36

giving a traffic ticket, in the box designated for the gender of the driver “wrote
B/M, making a racial designation where none was called for,”).
While some of the posts were for “W/M” or “W/F”, inferably indicating
“White/Male” and “White/Female”, most of the postings in the record show
or “0/F” underneath the photos. This designation facially appears to
single out persons of Romani descent. When “viewed in the light most favorable
to [the plaintiff]”, Bradley, 299 F.3d at 207, this designation tends to create a
question of fact as to whether NABI’s database of alleged criminal suspects has
a disproportionate, discriminatory purpose or effect on people of Romani
descent. In a literal sense, NABI did treat Demetro differently by categorizing
him as “G/M” as opposed to something else, and most of the people in the
extract of the website given to the Court are labelled either “0/M” or “0/F”. The
extent of this separate treatment deserves further factual development and a
determination from a fact finder as to its discriminatory effect.
Even if a subset of the individuals featured in NABI’s database were non
Romani males or females, that alone would not be enough to rebut the
inference of a discriminatory impact upon members of a protected class. See
Chauez v. illinois State Police, 251 F.3d 612, 637 (7th Cir. 2001) (“The relevant
inquiry is whether a similarly situated individual was treated differently than
the plaintiff, not whether one white motorist was subjected to the same
unlawful treatment. Allowing defendants to escape liability for discriminating
against Hispanics simply because they occasionally mistreat white motorists
would dismantle our equal protection jurisprudence.”). This presents “a factual
issue which the District Court [is] not free to decide” at this procedural stage.
Carrasca v. Pomeroy, 313 F.3d 828, 834 (3d Cir. 2002).
There is more evidence of discriminatory effect. The slogan or catch line
on NABI’s website was the following: “Ignorance is the Gypsies’ weapon against
the outside world.” (DE 90-1 at 40). Plaintiffs assert that NABI is a ‘Gypsy Task
Force’ that centers its activities around cultivating a database of suspected
Romani criminals. This slogan and the other written content posted on NABI’s
37

website, combined with a database of people catalogued by whether they are
Romani, lends enough credence to plaintiff’s view to present a question of fact
as to discriminatory effect.
The same can be said of discriminatory purpose. “Determining whether
invidious discriminatory purpose was a motivating factor demands a sensitive
inquiry into such circumstantial and direct evidence of intent as may be
available.” Village of Arlington Heights z’. Metro. Hous. Dev. Corp., 429 U.S. 252,
266, 97 5. Ct. 555, 564 (1977). Plaintiff has pointed to language published on
NABI’s website that includes pejorative generalizations about Romani people,
not just individuals accused or found guilty of crime. See pp. 5—6, supra. A fact
finder could find in such language a basis to conclude that NABI’s actions were
motivated by a discriminatory purpose. See Carrasca, 313 F.3d 828, 834
(noting that question of fact existed as to whether defendant Park Ranger
“acted with a racially discriminatory purpose” when he referred to plaintiffs as
‘Mexicans’, “arguably stated as a pejorative racial slur”); see also Mody v. City
of Hoboken, 959 F.2d 461, 467 (3d Cir. 1992) (noting that a racial slur by
police officer may be proof of racially-motivated police conduct).
Even if defendants’ motive was primarily to aid in the prosecution of
criminal suspects, a finding of discriminatory intent does not require that the
defendants’ actions have possessed no legitimate purpose at all. See Hassan,
804 F.3d 277, 297. Rather, “[a]ll you need is that the state actor meant to
single out a plaintiff because of the protected characteristic itself.” Id. at 298
(“[I]ntentional discrimination need not be motivated by ill will, enmity, or
hostility to contravene the Equal Protection Clause.” (internal quotation and
citation omitted)). The Third Circuit’s holding, read onto the facts of this case,
implies that “even if [the NABI members] were subjectively motivated by a
legitimate law-enforcement purpose (no matter how sincere), they’ve
intentionally discriminated if they wouldn’t have [catalogued Demetro] had [he]
not been [Romani].” Id. at 298. NABI thus goes astray in arguing that even if it

38

acted out of bias, the plaintiff “cannot show that this was unmerited.” (See
NABI Br. at 13.)
Whether defendants meant to single out Demetro for inclusion on their
website because of his ethnic status presents a material question of fact that
precludes summary judgment.

iii.

Officer Pochek/ Qualified Immunity

Officer Pochek separately argues that he is entitled to qualified immunity
from Demetro’s equal protection claim because “he was reasonably acting in
good faith in accordance with the law.” (RP/W Br. at 18—19). “Qualified
immunity’ is a doctrine that shields government officials from a suit for civil
damages when their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.”
Gonnley v. Wood-El, 218 N.J. 72, 113, 93 A.3d 344, 367 (2014) (internal
quotation and citation omitted); Ramos a Flowers, 429 N.J. Super. 13, 21, 56
A.3d 869, 874 (App. Div. 2012).
Equal protection under the law is a clearly established constitutional
right. See Joyce u. City of Sea Isle City, No. 04-5345, 2008 WL 906266, at *16
(D.N.J. Mar. 31, 2008) (collecting cases). In this context, assuming arguendo
that Pochek and NABI catalogued Demetro in NABI’s database due to his
Romani ethnicity, that would be a clear violation of equal protection that
precludes qualified immunity. See Grant a City of Pittsburgh, 98 F.3d 116, 121
(3d Cir. l96) (noting that in the qualified immunity context “the question is
whether a reasonable public official would know that his or her specic conduct
violated clearly established rights.”).
Because, as outlined above, critical questions of fact remain unresolved,
it cannot be said at this stage whether Pochek’s concerted action with NABI
“violate[d] clearly established statutory or constitutional rights.” Wood-El, 218
N.J. 72, 113; Grant, 98 F.3d 116, 122 (noting tension between the U.S.
Supreme Court’s “insistence that the immunity defense be decided as a matter
of law” and “the reality.., that factual issues must frequently be resolved in
39

order to determine whether the defendant violated clearly established federal
raw”). Even if accompanied by good faith reasons, discriminatory intent—which

remains a material question of fact—may support a claim that plaintiffs equal
protection rights were violated. See Hassan, 804 F.3d 277, 297. For example,
even if defendants’ narrow motive was the desire to aid law enforcement, an
intent to specifically target persons of a particular race or ethnicity may
support a finding of a constitutional violation. See United States a Armstrong,
517 U.S. 456, 464, 116 S. Ct. 1480, 1486 (1996) (noting that equal protection
demands that “the decision whether to prosecute may not be based on an
unjustifiable standard such as race, religion, or other arbitrary classification”
(internal quotation and citation omitted)). And Pochek’s subjective belief that
he was not violating Demetro’s constitutional rights “is simply irrelevant to [the
qualified immunity] analysis.” Grant, 98 F.3d 116, 123 (citing Harlow v.
Fitzgerald, 457 U.S. 800, 815, 102 S. Ct. 2727, 2736 (1982)).
Additionally, qualified immunity only protects “official action” by
government officials. Anderson v. Creighton, 483 U.S. 635, 640, 107 S. Ct.
3034, 3039, 97 L. Ed. 2d 523 (1987) (noting that qualified immunity only
protects “reasonable official action”). The extent to which Pochek was acting in
his official capacity as a law enforcement officer (as opposed to his private
capacity as a NABI member and officer) raises a question of fact, just as NABI’s
status as a state actor raises questions of fact.22
Consequently, Pochek’s qualified immunity depends on the resolution of
issues of fact, and cannot be determined at this time.

Again, these determinations are somewhat in tension. Seen. 18, supra. Pochek
wants to be given qualified immunity because his acts were assertedly performed in
his official capacity, but NABI at the same time distances itself from the state in order
to avoid being deemed a state actor.
22

40

D. Civil Conspiracy under 42 U.S.C.

§

1985 and NJLAD (Count 7)

In Count 7, Demetro alleges that NABI, Pochek and unknown individuals
conspired to violate Demetro’s equal protection rights on account of his race or
ethnicity, in violation of 42 U.S.C.
To make out a violation of

§

§

1985(3) and the NJCRA.

1985(3) a plaintiff must prove the following

four elements: “(1) a conspiracy; (2) for the purpose of depriving, either directly
or indirectly, any person or class of persons of the equal protection of the laws,
or of equal privileges and immunities under the laws; and (3) an act in
furtherance of the conspiracy; (4) whereby a person is either injured in his
person or property or deprived of any right or privilege of a citizen of the United
States.” United EM. of Carpenters & Joiners of Am., Local 610, AFL-CIO v. Scott,
463 U.S. 825, 828—29, 103 S. Ct. 3352, 3356 (1983).
Demetro has put forward enough of a factual basis to plausibly support
the elements of an agreement and concerted action. “Civil rights conspiracies
brought under Section 1983 and the NJCRA require a ‘meeting of the minds,’
and to survive a motion to dismiss, a plaintiff must provide some factual basis
to support the existence of the elements of a conspiracy, namely, agreement
and concerted action.” Obataiye v. Lanigan, No. 14-5462 (FLW), 2016 WL
5387626, at *6 (D.N.J. Sept. 26, 2016) (citing Startzell u. City of Philadelphia,
533 F.3d 183, 205 (3d Cir. 2008)). There is no dispute that NABI is an
organization of individuals who agree to coordinate NABI’s database of
suspected transient criminals.
There is enough evidence of a purpose to deprive the plaintiff of the equal
protection of the laws to repel the defendants’ summary judgment motion. The
same issues of fact that bar summanr judgment as to the

§

1983 equal

protection claims, see Subsection 111.3., supra, also bar summary judgment as
to the claim of conspiracy to violate equal protection. See Mody, 959 F.2d 461,
466 (recognizing that viability of
corresponding

§

§

1985(3) claim turned on success of

1983 claim); Chen-its v. Vill. of Ridgewood, 311 N.J. Super.

517, 535, 710 A.2d 586, 595 (App. Div. 1998) (same); see generally Griffin v.
41

Breckenridge, 403 U.S. 88, 102—03, 91 S.Ct. 1790, 1798—99 (1971) (noting that
section 1985(3) requires proof that conspirators sought to deprive a person of
equal protection of the laws).
Consequently, 1 will deny defendants’ motion for summary judgment on
Count 7.
IV.

CONCLUSION

For the foregoing reasons, I will grant in part and deny in part
defendants’ motions for summary judgment in accordance with this Opinion.
An appropriate Order follows.

Dated: June 25, 2019

-

HO

42

.

4%

KEVIN MCNULTY, U.S.D.