Demetro v. N.A. of Bunco Investigations

• Decision Date: 25 June 2019
• Docket Number: Civ. No. 14-6521 (KM) (SCM)
• Parties: CLARK DEMETRO, Union County, New Jersey, and CLARK & SONS CONSTRUCTION, LLC, Union County, New Jersey, 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.
• Court: U.S. District Court — District of New Jersey

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

Civ. No. 14-6521 (KM) (SCM)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

June 25, 2019

OPINION

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"),¹ Robert Pochek ("Pochek"), and the Township of Woodbridge, NJ, ("Woodbridge") 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 ethnicityby cataloguing him in its online database and sharing allegedly unsubstantiated accusations of criminal conduct.

After my dismissal of some of plaintiff's claims (DE 61, 62), the remaining causes of action are as follows: (i) common law defamation (Count 1); (ii) violation of plaintiff's 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. § 10:6-1 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 plaintiff's 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 "gypsies," a charged and at least potentially derogatory term). Of course law enforcement may, when appropriate, use raceor 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 criminality 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. § 1985 (Count 7).

I. BACKGROUND²

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 at 4; Pl. 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.4-5, ¶¶ 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 ¶ 2; DE 83-10 at 9, 15; RP/W SMUF ¶ 31; Pl. SMUF re RP/W ¶ 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 ¶¶ 33-35; Pl. SMUF re RP/W ¶¶ 33-35). Demetro did not maintain any business records for Clark & Sons. (RP/W SMUF ¶ 37; Pl. SMUF re RP/W ¶ 37). He could only remember the names and addresses for two of the customers that Clark & Sons serviced. (RP/W SMUF ¶ 38; Pl. SMUF re RP/W ¶ 38).

NABI is a non-profit organization that provides information to its members about suspected fraudulent activity involving 'transient' criminals. (NABI SMUF ¶ 2; Pl. SMUF re NABI ¶ 4; RP/W SMUF ¶ 39; Pl. 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. (Pl. CS ¶¶ 23-24; DE 97 ¶¶ 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 really do exist. . . . Their faces look like anybody else's here, but police say these individuals, all Romanian citizens,⁵ are a modern take on notorious gypsies of old. . . . They'll look for checkbooks, jewelry. . . 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).

(Pl. CS ¶¶ 23-24; DE 97 ¶¶ 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 castsuch 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 90-1 at 23, 25, 43-47; Pl. CS ¶¶ 14, 15, 23, 24; DE 97 ¶¶ 14, 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 "G/M" 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

Demetro appears in two NABI posts that have "G/M" next to his name and image. (DE 90-1 at 23, 25; Pl. CS ¶¶ 9, 14, 15; DE 97 ¶¶ 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,...