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Suspended Hackensack Police Chief Ken Zisa has reason to smile
“These cases are getting thrown out before they even start,” a source directly involved told CLIFFVIEW PILOT late Tuesday. “It’s not just a major win for Zisa but a prelude to what will follow. Looks like there could be sanctions.”
U.S. District Court Judge William J. Martini allowed only a smattering of charges from a massive lawsuit to stand, including one against Capt. Tomas Padilla, who is now running the city department, as well as against Bergen County Prosecutor John L. Molinelli and his office, the county and the City of Hackensack.
But he tossed out an overwhelming majority against Zisa, who was suspended from his job after the prosecutor’s office charged him with trying to cover up a DWI accident involving his girlfriend and then using the alleged lies to collect insurance money (SEE: Zisa whisked girlfriend from cops….).
Overall, the suspended chief won just about every argument in his dismissal bid, but not quite all. Martini could still torpedo the remaining charges, depending on what evidence the officers’ lawyers and attorneys for the defendants present regarding the remaining claims.
One thing is certain: Marini’s ruling Tuesday guts the bulk of the case brought by Officers Donald Lee, Patrick O’Connor, Allen DeLeone, and Vincent Riotto. The repercussions will quickly be felt as word begins to make its way through the city, the county and elsewhere.
This comes after a Hackensack police officer who is suing Zisa and several others was jailed last week on charges of falsely arresting a man — bashing him in the ear, causing potential long-term damage — who got into a bar fight with a fellow city officer (SEE: Hackensack officer charged with beating, cover-up).
The officers who brought the federal suit and their respective attorneys could not immediately be reached Tuesday night. Molinelli, meanwhile, did not immediately return a request for comment.
However, those familiar with the specifics of the decision privately told CLIFFVIEW PILOT that, no matter how you slice it, Martini’s ruling is a huge win for Zisa and a flush-on bash to the jaw of his opponents and others who have vowed to see him fail.
“[T]he number of actions filed by [city police against Zisa] has continued to balloon over the last three years. Duplicative filings burden [d]efendants and the [c]ourt,” Martini wrote sternly in his decision, obtained Tuesday night by CLIFFVIEW PILOT. “Should the number of actions brought by the same Plaintiffs continue to grow without cause, the Court may revisit this issue or consider sanctions.”
The thrust of the severely weakened case is that Zisa, along with a group of superior officers who supported him, tried to shake down the rank-and-file for donations to his political career and those of several city PBA officials, then subjected those who didn’t play ball to “retaliation and threats of retaliation in violation of Plaintiffs’ First Amendment free speech and freedom of association rights.”
Citing federal case law, Martini noted that the officers’ proofs must be sufficient to “raise a reasonable expectation that discovery will reveal evidence of” the allegations. This “requires more than labels and conclusions,” the judge wrote in his ruling.
Zisa’s attorneys presented a convincing enough case to warrant dismissing most of the complaints, Martini ruled. The officers’ lawyers now have until Aug. 22 to decide whether to oppose the judge’s decision, then another week to submit briefs, with oral arguments scheduled for Sept. 6.
In one instance, Martini cited the statute of limitations, ruling that “all conduct by Chief Zisa pre-dating March 15, 2009 or post-dating April 30, 2010 under any remaining count is barred for the purpose of establishing liability against Zisa.”
The officers acknowledged that the two-year statute essentially barred them from any claims before March 15, 2009, yet their attorneys argued that the actions by Zisa and others before then were part of “continuing violations.” However, Martini said the arguments didn’t hold water, rendering claims about retaliation following a June 2008 PBA election moot.
Although Lee claims his First Amendment rights were violated for failing to support a pro-Zisa candidate in that race, his case “points to no allegations that he suffered any consequences in regard to the election, much less well-pled allegations in regard to the time period between March 15, 2009 and April 30, 2011,” Martini wrote in his decision.
On top of that, Martini noted that Zisa was on administrative leave after April 30, 2010. As he put it, Riotto’s post-April 30 allegations – which comprise a great deal of the officer’s case – “cannot form a basis of liability.”
Lee also alleged that he was retaliated against for complaining to Zisa about clearly visible audio and video recorders at Hackensack Police headquarters. Given the openness of the recorders, Martini said, Lee was essentially filing “complaints about [the] conditions of employment,” not covered by the law under which he brought his civil rights claim.
Lee “failed to identify what statute, rule, regulation, or clear mandate of public policy was violated (or was reasonable to believe was violated) by Zisa’s placing recording devices on HPD premises,” the judge found. “The suggestion that the Wire Tap statute was violated is not well supported.”
Add to it Martini’s dismissal of Lee’s claim that he was also retaliated against for associating with other plaintiffs: Proof of that allegation wasn’t “sufficiently developed,” the judge said. O’Connor fell short, as well, by not developing any sustainable proof of retaliation, Martini found.
Like the others, DeLeone makes a “generic claim that the audio and visual recording devices were put in place in order to chill free speech,” Martini ruled. “But, there are no well-pled allegations suggesting that Zisa had the recording equipment placed on the premises in retaliation for the exercise of any particular protected speech or association by [the officers].”
Here’s where it gets a bit convoluted:
Riotto claimed that Zisa appointed Detective Capt. Thomas Salcedo to investigate “alleged wrongdoing” by him even though Riotto had brought a civil complaint against the captain.
“Salcedo investigated disciplinary charges against Riotto for allegedly failing to timely report threats by one HPD officer against another,” Martini wrote in his ruling. “The disciplinary hearing was presided over by James Murphy, a retired Superior Court judge. Riotto was represented by counsel. Salcedo testified against Riotto at the hearing, apparently over Riotto’s attorney’s objections.”
In his federal lawsuit, Riotto alleged that Murphy was Zisa’s friend and that Salcedo was biased against him, which denied him a fair hearing. Martini was having none of it, however.
For one thing, the judge ruled, “the decision to admit Salcedo’s evidence at the hearing was Murphy’s, not Zisa’s…. Second, the decision to recommend Riotto for demotion was Murphy’s, not Zisa’s…. Third, Riotto fails to elaborate any actual harm arising in connection from Riotto’s purported bias. He puts forward no testimony tending to establish that Salcedo lied or even that he substantially shaded the truth to Riotto’s disadvantage.”
Zisa doesn’t walk away scot-free. Although Martini dismissed a host of charges against him, Padilla and the others – including Molinelli — he allowed 10 to stand.
The question now is whether these will survive the judge’s scrutiny once lawyers for both sides have their say next month.
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