                                                                                                                           Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-22-1995

Orsatti v. New Jersey State Police
Precedential or Non-Precedential:

Docket 94-5757




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                  UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT


                           No. 94-5757



            ARNOLD ORSATTI, JR. and REBECCA ORSATTI,
     Appellees

                                  v.

            NEW JERSEY STATE POLICE; DAVID V. BRODY,
          Deputy Attorney General of the State of New
           Jersey; JOSEPH GUZZARDO, New Jersey State
           Police Officer; ROBERT KIRVAY, New Jersey
             State Police Officer; ALBERT BLACK; and
          CLINTON L. PAGANO, Former Superintendent of
                    New Jersey State Police,

               ROBERT KIRVAY and JOSEPH GUZZARDO,
     Appellants.

On Appeal from the United States District Court for the District
of New Jersey
                    (D.C. Civil No. 91-3023)


                     Argued September 20, 1995
    Before:   BECKER and COWEN, Circuit Judges, and LANCASTER,
                          District Judge.1

                (Opinion Filed:   November 22, l995




1
        The Honorable Gary L. Lancaster, United States District
Judge for the Western District of Pennsylvania, sitting by
designation.


                                  1
                        Carl Greenberg, Esq., (Argued)
                        Darryl Beckman, Esq.
                        Budd, Larner, Gross, Rosenbaum
                        Greenberg & Sade
                        150 J.F.K. Parkway, CNN 1000
                        Short Hills, NJ 07078
                          Attorneys for Appellant              Robert Kirvay

                        George F. Kugler, Esq.,
                        (Argued)
                        John C. Connell, Esq.
                        Archer & Greiner
                        One Centennial Square
                        Haddonfield, NJ 08033
                          Attorneys for Appellant              Joseph Guzzardo

                        Louis M. Barbone, Esq.,
                        (Argued)
                        Lynn Marie Handler, Esq.
                        Jacobs & Barbone
                        1125 Pacific Avenue
                        Atlantic City, NJ 08041
                          Attorneys for Appellees               Arnold Orsatti,
                        Jr. and
                          Rebecca Orsatti




                               OPINION OF THE COURT


GARY L. LANCASTER,
District Judge.

     This case arises under the Civil Rights Act of 1871, 42 U.S.C. § 1

Plaintiff-appellee,      Arnold   Orsatti,    Jr.,   alleges   that   he    was    arrested   with

probable   cause   in    violation   of   his   Fourth   Amendment    right       to   be   free   f

unreasonable   seizure.       Defendant-appellants,      New   Jersey      State   Police     Offi

Robert Kirvay and Joseph Guzzardo, appeal from the district court's order deny

their joint motion for summary judgment. The officers contend that the distr

court erred because they



                                          2
are shielded from Orsatti's claim by the doctrine of qualified immunity.

     Because we find that the undisputed material facts of record establish t

it was objectively reasonable for the officers to conclude that they had proba

cause to arrest Orsatti, we hold that the officers are immune from Orsatti's cla

Accordingly, we reverse.



                                         I.

     The complete factual and procedural background of this case is considera

more complex than the court's treatment here. What follows, however, are th

facts and procedures material to the issue on appeal.

     In December of 1988, New Jersey State Police began an investigation, n

"Operation Comserv," into alleged bribery, corruption, and other misconduct

Atlantic City, New Jersey public officials.    Officers Kirvay and Guzzardo were

charge of the investigation; however, the principal operative was Albert Black

government confidential informant.   The investigation culminated on July 27, 19

with the arrest of eight individuals, including Orsatti.

     Orsatti and the others were arrested pursuant to criminal complaints

warrants issued by the Superior Court of New Jersey.       In the aggregate, th

criminal complaints alleged a variety of corrupt acts.       However, the compla
issued against Orsatti charged him only with official misconduct under N.J. St

Ann. 2C:30-2 and conspiracy to commit official misconduct under N.J. Stat. A

2C:5-2, and the complaint related only to his role in attempting to acquire

Black a gift shop concession contract at the Atlantic City Airport.   At the time

his arrest, Orsatti was an Atlantic City Councilman and Chairman of the

Council Transportation Committee.
     Thereafter, a State Grand Jury returned indictments against each of th

arrested.   The Grand Jury indicted Orsatti for conspiracy to commit racketeering


                                     3
violation of N.J. Stat. Ann. 2C:41-2(d) and conspiracy in violation of N.J. St

Ann. 2C:5-2. The case against all criminal defendants was called to trial on A

22, 1991.     Following the close of the State's case, the trial judge grante

judgment of acquittal to Orsatti and several of the other criminal defendan

Eventually, the jury acquitted all of the remaining criminal defendants, save o

of the charges.

     Thereafter, Orsatti filed this civil rights action. Orsatti's complaint

broad in scope and asserts claims under both federal and state law.    Moreover,

challenges virtually every aspect of his investigation, arrest, and prosecuti

and he names as defendants essentially every individual involved in Operat

Comserv.    In this appeal, however, we are only concerned with Orsatti's claim t

Kirvay and Guzzardo violated the Fourth Amendment prohibition against unreasona

seizures. Specifically, Orsatti alleged that the officers carried out Operat

Comserv in a negligent and incompetent manner. Orsatti further alleged that

officers had neither probable cause to arrest him, nor an objective good fa

belief that he was guilty of the offense charged.




                                     4
     At the close of discovery, Kirvay and Guzzardo filed a joint motion

summary    judgment    contending     that    they   are    entitled   to    judgment   on    Orsat

unlawful arrest claim under the doctrine of qualified immunity.                  The district co

denied the motion and held that whether the officers were entitled to immun

rested upon disputed questions of fact that the jury had to resolve.                      This app

followed.



                                                   II.

     We have jurisdiction pursuant to 28 U.S.C. § 1291 to review an order deny

a claim of immunity raised by a defendant in a motion for summary judgme

Mitchell    v.   Forsyth,     472   U.S.   511,    524-30    (1985).    The    standard      of   re

applicable to an order denying summary judgment is plenary, Bixler v. Central

Teamsters Health & Welfare Fund, 12 F.3d 1292, 1297 (3d Cir. 1993), and "[

review, the appellate court is required to apply the same test the district c

should have utilized initially." Goodman v. Mead Johnson & Co., 534 F.2d 566,

(3d Cir. 1976).

     Summary judgment may be granted if, drawing all inferences in favor of

nonmoving    party,    "the   pleadings,      depositions,    answers   to    interrogatories,

admissions on file, together with the affidavits, if any, show that there is
genuine issue as to any material fact and that the moving party is entitled t

judgment as a matter of law."         Fed.R.Civ.P. 56(c).

     An otherwise properly supported motion for summary judgment will not

defeated    by   the   mere   existence      of   some   factual   dispute    between   the   parti

However, a dispute over those facts that might affect the outcome of the suit un

the governing substantive law, i.e., the material facts, will preclude the entry
summary judgment.        Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (198

Similarly, summary judgment is improper so long as the dispute over the mater


                                              5
facts is genuine.         In determining whether the dispute is genuine, the cour

function is not to weigh the evidence or to determine the truth of the matter,

only to determine whether the evidence of record is such that a reasonable j

could return a verdict for the nonmoving party.                    Id.



                                                    III.

                                                      A.

        Kirvay and Guzzardo argue that the district court erred in denying th

joint   motion    for    summary   judgment.         They       contend   that    they   are    immune      f

Orsatti's suit because the undisputed material facts of record establish that t

were objectively reasonable in concluding that probable cause existed to arr

Orsatti for the crime of official misconduct.                    We agree.

        The   general    principles    of   law     that    govern       this    case   are   well    settl

Broadly stated, the Fourth Amendment prohibits a police officer from arrestin

citizen except upon probable cause.               Papachristou v. City of Jacksonville, 405

156, 169 (1972).         Probable cause to arrest requires more than mere suspici

however, it does not require that the officer have evidence sufficient to p

guilt beyond a reasonable doubt. See United States v. Glasser, 750 F.2d 1197, 1

(3d   Cir.    1984).    Rather,    probable   cause        to    arrest   exists    when      the   facts
circumstances within the arresting officer's knowledge are sufficient in themsel

to warrant a reasonable person to believe that an offense has been or is b

committed by the person to be arrested.              United States v. Cruz, 910 F.2d 1072,

(3d Cir. 1990) (citing Dunaway v. New York, 442 U.S. 200, 208 n.9 (1979)).                             Whe

police officer does arrest a person without probable cause, the officer may

liable in a civil rights suit for damages.                 Pierson v. Ray, 386 U.S. 547 (1967)
        Nevertheless,     "government       officials           performing      discretionary       functio

generally are shielded from liability for civil damages insofar as their cond


                                              6
does not violate clearly established statutory or constitutional rights of whic

reasonable person would have known."             Harlow v. Fitzgerald, 457 U.S. 800,

(1982).     Government officials, such as police officers, are accorded qualif

rather than absolute immunity in order to accommodate two important interests:

officials' interest in performing their duties without the fear of constan

defending themselves against insubstantial claims for damages, and the publi

interest in recovering damages when government officials unreasonably invade

violate individual rights under the Constitution and laws of the United Stat

Anderson v. Creighton, 483 U.S. 635, 639 (1987).

      Because the qualified immunity doctrine provides the official with immun

from suit, not simply trial, Puerto Rico Aqueduct and Sewer Auth. v. Metcal

Eddy, Inc., 506 U.S. 139 (1993), the district court should resolve any immu

question at the earliest possible stage of the litigation.                   Creighton, 483 U.S.

646 n.6.    When the material facts are not in dispute, the district court may dec

whether a government official is shielded by qualified immunity as a matter of l

Id.

      Typically, the dispositive issue in these types of cases is whether the ri

at issue was "clearly established" at the time the official acted.                      In this ca

however, there is no question that the right at issue, namely, the right to be f
from arrest except on probable cause, was clearly established at the time

Orsatti's   arrest.    Finding      that   the   right    at   issue   was    clearly    establish

however, does not end the court's inquiry.                Nor does the court's decision t

merely on whether the official violated that clearly established right.                       On

contrary,   the   Supreme   Court    has   recognized      that   it   is     inevitable    that

enforcement officers will in some cases reasonably but mistakenly conclude t
probable cause to make an arrest is present.             The Court has made clear that in s




                                           7
cases those officers, like other officials who act in ways they reasonably beli

to be lawful, will not be held personally liable.     Id. at 641.

     In Malley v. Briggs, 475 U.S. 335 (1986), the Supreme Court, in a da

action under 42 U.S.C. § 1983, established the degree of immunity to be accorde

police officer who arrests a citizen after presenting a judge with a complaint

supporting affidavit that allegedly fails to establish probable cause.      The Co

held that whether a police officer is immune is governed by the same standard

objective reasonableness that applies in the context of a suppression hearing un

United States v. Leon, 468 U.S. 897 (1984).       Under this standard, only where

warrant application is "so lacking in indicia of probable cause as to ren

official belief in its existence unreasonable," will the officer lose the shield

immunity. Malley, 475 U.S. at 341.       The Court further held that the standard

determining the reasonableness of an official's belief in the existence of proba

cause is whether a reasonably well-trained officer would have known that

affidavit failed to establish probable cause and that he therefore should not h

applied for the warrant under the conditions.     Id. at 345.

     According to this standard, the qualified immunity doctrine "gives ample r

for mistaken judgments" by protecting "all but the plainly incompetent or those

knowingly violate the law." Id.



                                           B.
     In this case, the district court held that Kirvay and Guzzardo were

entitled to summary judgment on their qualified immunity defense for two disti

reasons.   First, the district court found that summary judgment was impro

"because the plaintiff's allegations suffice to allege conduct that violated
clearly established constitutional right to be free from arrest without prob

cause . . ."   Orsatti v. New Jersey State Police, No. 91-3023, slip op. at


                                     8
(D.N.J. Nov. 2, 1994). Of course, the district court would have been correct

the   matter    been   before   the   court       on   a   motion   to   dismiss   under   Fed.R.Ci

12(b)(6).      The matter before the district court, however, was a motion for summ

judgment under Fed.R.Civ.P. 56. Summary judgment is designed to go beyond

pleadings in order to assess whether a genuine issue of material fact exists

whether a trial is necessary.




                                              9
     Accordingly,      a   plaintiff   cannot   resist   a   properly   supported    motion

summary judgment merely by restating the allegations of his complaint, but m

point to concrete evidence in the record that supports each and every essent

element of his case.       Celotex v. Catrett, 477 U.S. 317, 322 (1986).          Therefore,

mere fact that Orsatti's allegations, if true, state a claim is an insuffici

basis for the district court to deny the officers' motion for summary judgment.

     Second, the district court found that there remained an issue of mate

fact regarding whether the officers conducted Operation Comserv negligently.

support of its finding, the district court relied on the expert report of Rich

Kobetz, Doctor of Public Administration.         Dr. Kobetz opined that the state pol

conducted Operation Comserv in a reckless and grossly negligent manner becau

(1) they did not conduct a focused investigation; (2) they did not train Mr. Bl

to properly operate the wireless transmitter they supplied him with; (3) they

not instruct Mr. Black to properly utilize equipment they had supplied him wi

and (4) they did not supervise his criminal investigatory procedures and strate

nor his handling of money, expenditures, and equipment.             The district court

that this evidence precluded summary judgment because, in the court's view,

Orsatti were to succeed at proving that the officers carried out Operation Coms

in a negligent manner, he might convince the jury that no reasonable person in
police officers' shoes could have reasonably believed that the criminal prosecut

was lawful.    Orsatti, No. 91-3023, slip op. at 52. The district court's reasoni

however, was flawed.

     The obligation of local law enforcement officers is to conduct crimi

investigations in a manner that does not violate the constitutionally protec

rights   of   the   person   under   investigation.      Therefore,     whether    the   offic
conducted the investigation negligently is not a material fact.            Indeed, for Fou

Amendment purposes, the issue is not whether the information on which pol


                                         10
officers base their request for an arrest warrant resulted from a professiona

executed investigation; rather, the issue is whether that information would warr

a reasonable person to believe that an offense has been or is being committed

the person to be arrested.

        Therefore, in order to assess whether Guzzardo and Kirvay are entitled

immunity on Orsatti's Fourth Amendment unlawful arrest claim, the district co

should have focused on the information the officers had available to them, not

whether the information resulted from exemplary police work.      Upon our review

that information, we find that it was objectively reasonable for the officers

conclude that they had sufficient information to believe that Orsatti had commi

the crime of official misconduct.



                                          C.

        In support of our conclusion that the officers were objectively reasonable

believing they had probable cause to arrest Orsatti for official misconduct,

turn to the elements of that offense.2    Under N.J. Stat. Ann. 2C:30-2, Orsatti

be found guilty of official misconduct if, (1) he was a public servant at the t

alleged in the complaint, (2) he committed an act relating to his office kno

the act was unauthorized, or he committed the act in an unauthorized manner,
(3) his purpose was to benefit himself or another.    State of New Jersey v. Vick

646 A.2d 1159, 1160 (N.J. Super. Court Law Div. 1994).         The statute does

require that the public official's "act" constitute a criminal act, only that

    2
               For reasons that are unclear, Orsatti focused his
    appellate arguments on the elements of conspiracy to commit
    racketeering under N.J.S.A. 2C:41-2(d), which is the subject of
    his state common law malicious prosecution claim.        However,
    Orsatti's malicious prosecution claim is not the subject of this
    appeal. Appellants have appealed only the district court's order
    rejecting their qualified immunity defense on the Fourth
    Amendment unlawful arrest claim.


                                     11
embody an unauthorized exercise of his official functions.                          N.J. Stat. Ann. 2C:

2(a).

        The information that the officers relied on to support their conclusion t

probable cause existed to arrest Orsatti for official misconduct was gathered

taped   conversations        secretly    recorded      by    Black,    the    government's         confident

informant.     A synopsis of the taped conversations was later placed in Kirva

affidavit of probable cause and was presented to the New Jersey Superior Co

judge   in   support    of    the   request     for    the    criminal       complaint    and      warrant

Orsatti's arrest.

        Specifically,    on     July     16,   1989,    Black    recorded       a    conversation         betw

himself, Jack Wolf, a public relations agent for Pan Am World Services, Inc.,

Orsatti.     The   conversation         took   place    at    Cousin's   Country       Inn    in    Egg    Har

Township, New Jersey.          The purpose of the meeting was to discuss Black's propo

to acquire a gift shop concession at the Atlantic City Airport.                                 Although

record is unclear, apparently Stephen Williams, an airport official, had author

to decide who, if anyone, would get the concession.

        According to the tape, at the meeting Wolf, Orsatti, and Black devised a p

whereby Wolf would compose fraudulent letters.                        These fraudulent letters wo

purport to be from various citizens complaining of the lack of a gift shop at
airport and stressing the need for one.                     Black, in turn, would have the lett

rewritten in different handwriting styles and then give the fraudulent letters

Orsatti.     Orsatti, in his capacity as an Atlantic City Councilman and Chairman

the   City   Council    Transportation         Committee,      would   then     present      the    letters

Williams to pressure Williams into awarding the gift shop contract to Black.

        On July 18, 1989, Black recorded a second conversation with Wolf.                            Accord
to the tape, Wolf gave the fraudulent letters to Black and instructed Black

deliver them to Orsatti later that day.                As Wolf instructed, Black met with Ors


                                               12
in Atlantic City and again recorded their conversation.       According to the ta

Black gave the fraudulent letters to Orsatti, and Orsatti indicated that he wo

give the letters to Williams at a meeting they had scheduled for the following

     On July 19, 1989, New Jersey State Police detectives conducted a physi

surveillance at the Atlantic City Airport and, at approximately 12:50 p.m.,

Orsatti meet with Williams. Two days later, Black called Orsatti and again recor

the conversation.   According to the tape, when the conversation turned to Orsatt

July 19 meeting with Williams, the following exchange took place:

Black:     At your news conference.   How did things go?

Orsatti:   Good.

Black:     These letters work all right?

Orsatti:   What?

Black:     The letters work all right?

Orsatti:   Yea, yea.

Black:     Did you talk to our friend Williams and all?

Orsatti:   He said we're having a gift shop.

Black:     That's great, that's great.

     Orsatti does not contend that the officers tampered with, changed, or alt

the tapes in any way, nor does Orsatti contend that the officers misrepresented
text of the taped conversations in the affidavit of probable cause presented to

New Jersey Superior Court judge.      Orsatti does, however, point out that Willi

in his Grand Jury testimony, denied speaking with Orsatti about the gift s

matter and also denied receiving the fraudulent letters from Orsatti.        Altho

disconcerting, this fact is not material, because we must determine whether

arrest was objectively reasonable on the basis of the information the officers
available at the time of arrest, not thereafter.




                                      13
       In summary, the undisputed facts of record establish that at the time

Orsatti's arrest, the officers had tape recordings that indicated that Orsa

participated in formulating a scheme to acquire the airport gift shop concess

for   Black's    benefit,   in part   by   fraudulent   means,   i.e.,     forged   letters

nonexistent citizens.        According to the tapes, Orsatti received the fraudul

letters, and he agreed to deliver those letters to Williams, the airport offic

At the time, Orsatti was acting in his capacity as an Atlantic City Councilm

Orsatti was observed speaking with Williams at the appointed time and place,

Orsatti expressly reassured Black that the letters were effective.

       Under these undisputed material facts, we are satisfied that no rational j

could find that the officers were objectively unreasonable in concluding th

based on the information available to them at the time, they had probable cause

believe   that   Orsatti's   conduct   constituted      the   crime   of   official   miscondu

Kirvay and Guzzardo are, therefore, immune from this claim.



                                                IV.

       For the foregoing reasons we reverse the district court's order of Nove

2, 1994, insofar as it denied defendant-appellants Kirvay's and Guzzardo's jo

motion for summary judgment on plaintiff-appellee Orsatti's section 1983 claim
arrest without probable cause.




                                           14
