To Establish willful or official misconduct by Police Officers a Private Attorney General needs to know the Duties of the Officer and the Official Policies of the Department and State. The Duties of a Police Officer were broken down by the New Jersey Superior Court in STATE v. STEVENS 203 N.J. Super. 59 (1984) 495 A.2d 910
Duties arising “out of the very nature of the office,” i.e., inherent duties, usually are derived from the common law. In State v. Cohen, 32 N.J. 1 (1960), the court addressed an indictment charging a policeman with misconduct in office. It held:
… [F]or purposes of allegation in an indictment for official misconduct, the duties and their source are considered as one, and there is no requirement that the allegedly violated duties of the office be expounded in detail unless the source of the duties must be cited in the indictment.
….Just at the source of the prescribed duty existing in the common law or general statute may be judicially noticed, so also may the duty arising from such sources be similarly noticed. And it is from the common law that we derive the primary duties attached to the position of a police officer. [at 6-7]
In State v. Winne, supra, the Court said: “It is only when duties arise under a special or private law that they must be pleaded.” 12 N.J. at 179. No special or private law prescribed Stevens’ duties. They are inherent duties of his office which may be judicially noticed.
“Every police officer has an inherent duty to obey the law and to enforce it. That duty is essential to the preservation of a free society. Its absence makes the law enforcer lawless, permitting violence, oppression and injustice. Thus, in State v. Cohen, supra, the court said:
A police officer has the recognized duty to use all reasonable means to enforce the laws applicable to his jurisdiction, and to apprehend violators…. A police officer may not himself violate the laws he is sworn to enforce applicable in his jurisdiction . .., and such officer is criminally responsible under a charge of misconduct in office when either he himself commits, or he solicits others to commit, the crimes which defendant attempted to persuade the meter collectors and repairman to execute. Such acts, carried to a conclusion, would be criminal per se, and we perceive a clear duty incumbent upon a police officer not to act in such a manner. [32 N.J. at 9-10]
Numerous cases have described the inherent duties of policemen and other public officials in very broad terms. In State v. Donovan, 132 N.J.L. 319 (Sup.Ct. 1945), several police officers were indicted for failing to prosecute certain criminal offenses. The court said:
One of the fundamental duties of a police department, from Chief of Police to patrolman, is to be on the lookout for infractions of the law and to use due diligence in discovering and reporting them, and in the proper case, arresting the perpetrator and lodging and prosecuting a proper complaint. [at 321]
Driscoll v. Burlington Bristol Bridge Co. Inc., 8 N.J. 433 (1952), held that public officers have a duty “to serve the public with the highest fidelity … to be diligent and conscientious, to exercise their discretion not arbitrarily but reasonably, … to
display good faith, honesty and integrity, … to be impervious to corrupting influences….” Id. at 474-476. InState v. Weleck, supra, defendant was charged with violation of a duty “to render legal services to said Borough to the best of his ability and uninfluenced by motives adverse to the best interests of said Borough.” 10 N.J. at 367. The Court found that this language described an inherent duty of Weleck’s office as a municipal attorney. In State v. Begyn, 34 N.J. 35 (1961) the court said:
The indictment quite properly in substance alleged the duty of any official to be to perform the tasks assigned to him uninfluenced by adverse motives engendered by requesting or accepting any gift, gratuity or promise under an agreement either evilly not to do some of the very functions of his position at all or to do them in a manner contrary to the public interest. Such a duty is an inherent and fundamental one, specifically related to the particular office and founded on something more than a mere moral concept. [at 51]
The Begyn court considered an apt definition of misconduct in office to be: “[C]orrupt behavior by an officer in the exercise of the duties of his office, or while acting under color of his office.” Id. at 49. It noted that “[d]efinitions of misconduct in office are necessarily broad.” Ibid.
All of these broadly described inherent duties are included in the duty of a police officer to obey and enforce the law. That duty requires service to the public of the highest fidelity, a refusal to be influenced by corrupting motives, as well as honesty, integrity and good faith. It is a duty which need not be set forth in the indictment because it may be supplied by judicial notice. Consequently, if the actions set forth in Stevens’ indictment constitute a breach of that duty, whether broadly or narrowly described, the indictment is sufficient. Quite clearly, it is. The actions charged are violations of constitutional law.”
THE CONSTITUTIONAL DUTY
A strip search, whenever and however made, is a gross violation of privacy. It is to be condoned only in the
presence of special circumstances. Absent these, the procedure constitutes a flagrant violation of personal rights protected by the state and federal constitutions. The provisions of these constitutions are laws which must be obeyed and enforced by policemen. When they are not, that failure is the breach of a duty imposed upon all public officials.
The Fourth Amendment to the United States Constitution provides:
The right of the people to be secure in their persons … against unreasonable searches and seizures shall not be violated, and no warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.
Art. 1, par. 7 of the New Jersey Constitution contains a like provision. In Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d, 660 (1979), the United States Supreme Court, in considering whether a particular act constituted an “unreasonable search,” said:
[T]he permissibility of a particular law enforcement practice is judged by balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate government interests … The reasonableness standard usually requires, at a minimum, that facts upon which an intrusion is based be capable of measurement against an “objective standard”, whether this be probable cause or a less stringent test. [440 U.S. at 654, 99 S.Ct. at 1396, 59 L.Ed.2d at 667-668]
A strip search may be permitted under this rule. Law enforcement personnel have a legitimate interest in discovering weapons or contraband secreted upon the person of one who has been detained. That interest may not be pursued through a body search, however, unless there is probable cause to believe that weapons or contraband are present. This requirement is set forth in a number of federal strip search cases, most of which involve suits for damages against offending officers. Salinas v. Breier, 695 F.2d 1073 (7 Cir.1982); Logan v. Shealy, 660 F.2d 1007 (4 Cir.1981); Smith v. Jordan, 527 F.Supp. 167 (S.D.Ohio W.D. 1981); Bono v. Saxbe, 527 F.Supp. 1182 (S.D.Ill. 1980); Tinetti v. Wittke, 479 F.Supp. 486 (E.D.Wis. 1979), aff’d 620 F.2d 160 (7 Cir.1980). Tinetti sums up the law:
The undisputed facts show that the plaintiff was strip searched as a part of a routine, long-standing policy of defendants, without consideration as to whether probable cause existed to believe that she was concealing weapons or contraband. While law enforcement personnel do have a legitimate interest in discovering weapons or contraband, that interest cannot be indiscriminately satisfied by the strip searching of non-misdemeanor traffic violators where there is no reason to believe that the violators have concealed any such articles. The intrusion on one’s personal dignity occasioned by such searches requires that some justifiable basis exist. [479 F. Supp. at 490]
A search and seizure which violates constitutional restrictions may not, standing alone, be a criminal act. It is clear, however, that a charge of misconduct in office may be sustained without proof of a criminal act. As early as 1877, in State v. Startup, 39 N.J.L. 423, 426 (Sup.Ct. 1877), it was held that an act forbidden by statute which was not necessarily criminal could nevertheless constitute an indictable breach of a public duty. In State v. Gleitsmann, 62 N.J.Super. 15 (App. Div. 1960), a police officer was charged with the personal use of a municipal telephone and police car. The court, responding to a claim that no crime was charged, held that the improper action of the officer, if willful, could nevertheless constitute the common law crime of misconduct in office.
SANTIAGO v. CITY OF VINELAND NO. 97-5110. 107 F.Supp.2d 512 (2000)
Santiago’s private interest in maintaining his employment as a special law enforcement officer was significant, considering the fact that his termination was final. See, e.g., Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 543, 105 S.Ct. 1487, 1494, 84 L.Ed.2d 494 (1985)(recognizing “the severity of depriving a person of the means of livelihood”). Second, the allegations against Santiago were obtained from a confidential informant, whose reliability is not briefed by the parties and is only referenced once in the record, and involved conduct that occurred one and one-half to two years prior to the date it was reported. Given the staleness of the information and the inherently suspect nature of the informant, the risk of erroneous deprivation in Santiago’s case is crucial. Finally, this Court acknowledges that the governmental interest in maintaining a body of law-abiding special law enforcement officers is high.
In Gilbert v. Homar, 520 U.S. 924, 117 S.Ct. 1807, 138 L.Ed.2d 120 (1997), the Supreme Court held that a university police officer, who had been arrested on drug-related charges, was not entitled to a hearing before his suspension without pay. See id., 520 U.S. at 928-936, 117 S.Ct. at 1811-1815. In so holding, Justice Scalia quoted the Court’s decision in FDIC v. Mallen, 486 U.S. 230, 108 S.Ct. 1780, 100 L.Ed.2d 265 (1988), for the proposition that “`[a]n important government interest, accompanied by a substantial assurance that the deprivation is not baseless or unwarranted, may in limited cases demanding prompt action justify postponing the opportunity to be heard until after the initial deprivation.'” Gilbert, 520 U.S. at 930-31, 117 S.Ct. at 1812 (quoting Mallen, 486 U.S. at 240, 108 S.Ct. at 1787-1788). Specifically, Justice Scalia found that the significant government interest in preserving public confidence in the police force and the low risk of erroneous deprivation based upon the arrest and the filing of criminal charges overwhelmed the respondent’s private interest in the prevention of a temporary disruption in the receipt of his paycheck.See id., 520 U.S. at 931-35, 117 S.Ct. at 1812-1814.
This case is distinguishable from Gilbert on many levels. First, as set forth above, the private interest in retaining employment is much higher in this case because Santiago’s employment as a special police officer was terminated, not merely suspended. Next, while this Court acknowledges that the government interest in preserving the public confidence in all of its employees is significant, the risk of erroneous deprivation was profound. The evidence against Santiago, which was obtained from one confidential informant, merely implicated him in a crime, which
allegedly occurred almost two years earlier. Indeed, the Defendants concede that they did not possess any information that Santiago was currently involved in the commission of a crime. See Defs.’ Ex. 5 at