UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

SUSO DAVILA, 

 

 Plaintiff,

v.

CITY OF CAMDEN, SCOTT 

THOMSON, ORLANDO CUEVAS, 

INSPECTOR MICHAEL LYNCH, and 

CHRISTINE JONES-TUCKER,

 Defendants.

CIVIL NO. 11-554 (NLH)(AMD)

OPINION 

Appearances:

LAW OFFICES OF CHERYL L. COOPER 

342 EGG HARBOR RD 

SUITE A-1 

SEWELL, NJ 08080

On behalf of plaintiff

JAMES H. WALLER 

611 WHITE HORSE PIKE 

HADDON HEIGHTS, NJ 08035 

On behalf of defendant City of Camden

JEAN SHARON CHETNEY

JEAN S. CHETNEY, ATTORNEY AT LAW 

18 NORTH MAIN STREET 

WOODSTOWN, NJ 08098 

On behalf of the individual defendants

HILLMAN, District Judge

Presently before the Court is the motion of defendants for 

summary judgment on plaintiff’s claims that his rights were 

violated when he spoke out against a police policy at a pre1

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shift roll call meeting. For the reasons expressed below, 

defendants’ motion will be granted.

BACKGROUND

Plaintiff, Suso Davila, a now-retired Camden City police

sergeant, filed a complaint against defendants, the City of 

Camden;1 Scott Thomson, City of Camden Police Chief; Orlando 

Cuevas, City of Camden Police Inspector; Michael Lynch, Deputy 

Chief of the City of Camden Police Department; and Christine 

Jones-Tuckers, the Business Administrator for the City of Camden, 

claiming that defendants violated his First Amendment rights and 

committed violations of the New Jersey Conscientious Employee 

1Plaintiff’s claims are asserted against the City of Camden, 

which is the same entity as the former Camden City Police 

Department. Boneberger v. Plymouth Township, 132 F.3d 20, 25 n.4 

(3d Cir. 1997) (a municipality and its police department are a 

single entity for the purposes of § 1983 liability). Plaintiff’s 

claims against the individual defendants are in their individual 

and official capacities, and the official capacity claims are 

actually claims against the City of Camden. See Monell v. New York 

City Dept. of Social Services, 436 U.S. 658, 690 n.55 (1978) 

(official capacity suits “generally represent only another way of 

pleading an action against an entity of which an officer is an 

agent”). As of May 1, 2013, the Camden City Police Department 

became defunct, and the County of Camden took over the policing of 

Camden. Because plaintiff’s claims arose prior to the transition, 

the City of Camden is the proper party in this action. See The 

Camden County Police Department: FAQs, available at 

http://camdencountypd.org/wp-content/themes/ccpd/pdf/Police-FAQ.pdf

, at page 3 (“Camden County would NOT be responsible for or cover 

in any way any and all legal challenges and costs associated with 

prior events attributable to the municipality that wishes to join a 

County police department.”). 

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Protection Act (“CEPA”), N.J.S.A. 34:19–1, et seq., when he was 

disciplined and transferred because he spoke out about a Camden 

Police Department policy regarding “directed patrols.” As 

described by defendants, directed patrols were a police 

investigative tactic which required police officers to patrol 

targeted crime “hot spots” in an effort to concentrate police 

presence in areas of the city that were known high-crime areas. 

The policy required officers to “engage” members of the public 

who were not suspected of committing any offense in an attempt to 

obtain information about the community and make the police 

presence known in the community. The policy required officers to 

approach citizens in the neighborhoods and attempt to obtain 

information about criminal activity in the neighborhood, and also 

obtain personal identifying information from individuals if they 

agreed to provide it, such as the person’s name, date of birth, 

residence, and social security number.

Plaintiff believed that the directed patrol policy was 

sound, but he took issue with one aspect of it. Plaintiff 

believed that the practice of collecting personal information 

from innocent citizens and commingling that information with 

personal information of suspected and known criminals was 

“illegal.” Plaintiff also believed that the repeated requests by 

police of innocent citizens for their personal information would 

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expose the police officers and the department to lawsuits for 

harassment. In his capacity as a union board member, as vicepresident of the Camden Organization of Police Superiors, and as 

a homeowner in Camden, plaintiff spoke out against the collection 

of personal information from regular citizens, and informed other 

Camden residents that they were not required to provide such 

personal information to a police officer simply because they were 

asked for that information from an officer.2

On March 17, 2009, plaintiff conducted roll call as he 

usually did at the beginning of the midnight shift. That day, 

defendant Lynch attended roll call to speak to the officers about 

2 It appears that “directed patrols” fall into two categories. 

One type of police contact with an individual constitutes a 

constitutionally protected encounter, where an officer has

reasonable suspicion to stop an individual suspected of 

committing a crime. In that type of encounter, an individual is 

not free to walk away and is required to provide identifying 

information. The other type of police contact with an 

individual – called a “mere inquiry” - does not implicate any 

constitutional rights, and a party is free to refuse to provide 

personal information and can walk away from the officer. 

Plaintiff’s concern with the directed patrols is that the 

general public does not know that they may refuse to provide 

personal information, including social security numbers, to a 

police officer pursuant to a “mere inquiry,” particularly when 

they are asked for the same information multiple times. (Pl. 

Dep., Def. Ex. B, at 71, 77, 79.) The Court notes that putting 

aside the place and manner in which they were raised, Sergeant

Davila’s concerns were not frivolous from a policy perspective. 

That having been said, the Court takes no position on the 

propriety of the directed patrol policy and need not do so in 

order the resolve plaintiff’s First Amendment and NJ CEPA 

claims.

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the engagement of citizens in Camden. Plaintiff, along with 

several other officers, voiced their concerns about collecting 

personal information from citizens not suspected of any crime, 

recording that information on contact cards, and commingling that 

recorded data with information of suspected and known criminals 

that is supplied to the attorney general’s office. Plaintiff 

claims that he was respectful in his criticism, while other 

officers were much more vocal.

Despite plaintiff’s deferential and respectful expression of 

his view on the propriety of collecting personal information from 

regular Camden citizens, plaintiff claims that he was the victim 

of retaliation. Immediately following the meeting, plaintiff was 

sent home from work, where he remained on administrative leave, 

with pay, for three days. At the end of the three days, he was 

transferred to Central Complaint where he no longer supervised 

directed patrols, and he was placed on a different shift that 

caused him to lose a shift deferential in pay. Plaintiff was 

charged interdepartmentally with a violation of Rules and 

Regulations of the Camden Police Department Disciplinary Code, 

Chapter 8, Rule 8.1.6(k), “Insubordination or Serious Breach of 

Discipline.” The specifications of the Preliminary Notice of 

Personnel Action provided:

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On March 17, 2009, Sergeant Suso Davila #420, a seventeen 

year veteran of the Camden Police Department, interrupted 

Inspector Lynch during roll call and stated, “Officers 

cannot stop people for no reason.” Inspector Lynch 

attempted to clarify the difference between investigative 

detentions and mere inquiries to which sergeant Davila 

contradicted Inspector Lynch’s direction and stated, “You 

couldn’t do this in any other town.” Sergeant Davila also 

stated the department was violating the Attorney General 

guidelines by completing field contact cards. Inspector 

Lynch corrected Sergeant Davila to which Sergeant Davila 

laughed and stated, “That’s why you guys should not have 

gotten rid of the 1A.” Sergeant Davila’s comments and 

demeanor were insubordinate, disruptive and adversely 

impacted the efficient operation of the Department, not to 

mention under minded Inspector Lynch’s authority as 

Commanding Officer. Furthermore, instructing subordinates 

incorrectly regarding the legal exercise of their authority 

either exhibits his inexcusable lack of basic police 

knowledge or his intent to subvert the good order and 

effectiveness of the Department, either way Sergeant Davila 

failed to carry out his responsibilities as a first line 

supervisor. Such failure jeopardizes the safety of our 

officers as well as the citizens we are sworn to protect.

Def. Ex. C, Docket No. 25-8.

Plaintiff claims that his expression of his view of the 

directed patrol policy as it concerned the collection of 

personal information constituted speech protected under the 

First Amendment to the federal and New Jersey constitutions. He 

also claims that his reassignment and shift change were in 

retaliation for his protected speech, and also constituted a 

violation of NJ CEPA because he “blew the whistle” on the 

department’s harmful activity.

Defendants have moved for summary judgment on all of 

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plaintiff’s claims. Plaintiff has opposed their motion.

DISCUSSION

A. Subject matter jurisdiction

Plaintiff has brought his claims pursuant to 42 U.S.C. § 

1983, as well as pursuant to the New Jersey constitution and New 

Jersey state law. This Court has jurisdiction over plaintiff’s 

federal claims under 28 U.S.C. § 1331, and supplemental 

jurisdiction over plaintiff’s state law claims under 28 U.S.C. § 

1367. 

B. Standard for Summary Judgment

Summary judgment is appropriate where the Court is 

satisfied that the materials in the record, including 

depositions, documents, electronically stored information, 

affidavits or declarations, stipulations, admissions, or 

interrogatory answers, demonstrate that there is no genuine 

issue as to any material fact and that the moving party is 

entitled to a judgment as a matter of law. Celotex Corp. v. 

Catrett, 477 U.S. 317, 330 (1986); Fed. R. Civ. P. 56(a).

An issue is “genuine” if it is supported by evidence such 

that a reasonable jury could return a verdict in the nonmoving 

party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 

(1986). A fact is “material” if, under the governing substantive 

law, a dispute about the fact might affect the outcome of the 

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suit. Id. In considering a motion for summary judgment, a 

district court may not make credibility determinations or engage 

in any weighing of the evidence; instead, the non-moving party's 

evidence “is to be believed and all justifiable inferences are to 

be drawn in his favor.” Marino v. Industrial Crating Co., 358 

F.3d 241, 247 (3d Cir. 2004)(quoting Anderson, 477 U.S. at 255).

Initially, the moving party has the burden of demonstrating 

the absence of a genuine issue of material fact. Celotex Corp. v. 

Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met 

this burden, the nonmoving party must identify, by affidavits or 

otherwise, specific facts showing that there is a genuine issue 

for trial. Id. Thus, to withstand a properly supported motion 

for summary judgment, the nonmoving party must identify specific 

facts and affirmative evidence that contradict those offered by 

the moving party. Anderson, 477 U.S. at 256-57. A party opposing 

summary judgment must do more than just rest upon mere 

allegations, general denials, or vague statements. Saldana v. 

Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001).

C. Analysis

1. First Amendment claims

It is well-established that a governmental entity “‘may not 

discharge an employee on a basis that infringes that employee’s 

constitutionally protected interest in freedom of speech.’” 

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Dougherty v. School Dist. of Philadelphia, --- F.3d ---, 2014 WL 

6600421, 5 (3d Cir. Nov. 21, 2014) (quoting Rankin v. McPherson, 

483 U.S. 378, 383 (1987)). To establish a First Amendment 

retaliation claim, a public employee must show that (1) his speech 

is protected by the First Amendment and (2) the speech was a 

substantial or motivating factor in the alleged retaliatory action, 

which, if both are proved, shifts the burden to the employer to 

prove that (3) the same action would have been taken even if the 

speech had not occurred. Id. (citation omitted).3

The Third Circuit recently noted that “the Supreme Court has 

reiterated time and time again, [that] ‘free and unhindered debate 

on matters of public importance’” is “‘the core value of the Free 

Speech Clause of the First Amendment.’” Id. (quoting Pickering v. 

3 For plaintiff’s claims against the individual defendants acting 

in their personal capacity, the qualified immunity doctrine 

governs the analysis of those claims. “Qualified immunity shields 

government officials from civil damages liability unless the 

official violated a statutory or constitutional right that was 

clearly established at the time of the challenged conduct.” 

Reichle v. Howards, ––– U.S. ––––, ––––, 132 S. Ct. 2088, 2093 

(2012). The qualified immunity analysis is a two-step process, 

where a court must first decide whether the facts, taken in the 

light most favorable to plaintiff, establish that defendants’

conduct “violated a constitutional right,” and, second, whether 

that right was “clearly established” at the time of the challenged 

conduct. Saucier v. Katz, 533 U.S. 194, 201 (2001). Because the 

Court finds that plaintiff cannot support a claim that defendants 

violated his constitutional rights, the qualified immunity 

analysis ends there.

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Board of Education, 391 U.S. 563, 573 (1968)). Accordingly, 

“public employees do not surrender all their First Amendment rights 

by reason of their employment.” Id. (quoting Garcetti v. Ceballos, 

547 U.S. 563, 417 (2006)). “At the same time, the Supreme Court 

also aptly recognizes the government's countervailing interest - as 

an employer - in maintaining control over their employees' words 

and actions for the proper performance of the workplace. Thus, so 

long as employees are speaking as citizens about matters of public 

concern, they must face only those speech restrictions that are 

necessary for their employers to operate efficiently and 

effectively.” Id. (citation and quotation omitted).

Under this backdrop, a court must conduct a three-step inquiry 

to determine whether a public employee’s speech is protected: (1)

the employee must speak as a citizen, not as an employee, under the 

test established in Garcetti and recently reiterated by the Supreme 

Court in Lane v. Franks, ––– U.S. ––––, ––––, 134 S. Ct. 2369, 

2378–802 (2014); (2) the speech must involve a matter of public 

concern; and (3) the government must lack an “adequate 

justification” for treating the employee differently than the 

general public based on its needs as an employer under the 

Pickering balancing test. Id. 

In this case, even accepting that plaintiff’s view of the 

police department’s collection of personal information from 

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ordinary citizens involves a matter of public concern, plaintiff 

cannot meet the other two elements of his First Amendment 

retaliation claim. First, plaintiff’s expression of his concerns 

about the data collection aspect of the directed patrols falls into 

the category of an employee speaking, rather than the speech of a 

citizen. Plaintiff states that he did not dispute the legality of 

gathering personal information from citizens pursuant to a “mere 

inquiry” stop by police. Plaintiff agrees that police officers are 

permitted to engage in this interaction with anyone on the street.4 

4 As a police officer, plaintiff was required to understand the 

parameters of detaining and speaking to citizens. See, e.g.,

Ashcroft v. al-Kidd, ––– U.S. ––––, 131 S. Ct. 2074, 2083 (2011) 

{“A Government official's conduct violates clearly established law 

when, at the time of the challenged conduct, the contours of a 

right are sufficiently clear that every reasonable official would 

have understood that what he is doing violates that right.”). 

The law on police speaking with citizens is clearly established:

Even a brief detention can constitute a seizure. Terry v. 

Ohio, 392 U.S. 1, 16 (1968). However, “[t]he police do not 

violate the fourth amendment by ‘merely approaching an 

individual on the street or in another public place, by 

asking him [or her] if he [or she] is willing to answer some 

questions....' ” Davis, 104 N.J. at 497, 517 A.2d 859 

(quoting Florida v. Royer, 460 U.S. 491, 497 (1983)). On the 

other hand, “mere field interrogation” is constitutional “so 

long as the officer does not deny the individual the right to 

move.” State v. Sheffield, 62 N.J. 441, 447, 303 A.2d 68, 

cert. denied, 414 U.S. 876 (1973). A police officer may 

conduct an investigatory stop if, based on the totality of 

the circumstances, the officer had a reasonable and 

particularized suspicion to believe that an individual has 

just engaged in, or was about to engage in, criminal 

activity. Terry, 392 U.S. at 21. This Court has upheld the 

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Instead, plaintiff was concerned that lawsuits could be filed 

against him and his fellow officers by citizens because they felt 

harassed. He was also generally concerned about the commingling of 

criminal information with innocent citizen information. These 

concerns evidence a police sergeant’s worry for his department’s 

exposure to lawsuits by citizens who do not understand the legality 

of the police inquires, rather than for violations of citizens’ 

rights, which plaintiff agrees was not occurring as a matter of

policy.5

constitutionality of a temporary street detention based on 

less than probable cause.

State v. Stovall, 788 A.2d 746, 752 (N.J. 2002); Florida v. Royer, 

460 U.S. 491, 497-98 (U.S. 1983) (“[L]aw enforcement officers do 

not violate the Fourth Amendment by merely approaching an 

individual on the street or in another public place, by asking him 

if he is willing to answer some questions, by putting questions to 

him if the person is willing to listen, or by offering in evidence 

in a criminal prosecution his voluntary answers to such questions. 

Nor would the fact that the officer identifies himself as a police 

officer, without more, convert the encounter into a seizure 

requiring some level of objective justification. The person

approached, however, need not answer any question put to him; 

indeed, he may decline to listen to the questions at all and may 

go on his way.”).

5 In his opposition to defendants’ motion for summary judgment, 

plaintiff provides an affidavit, in which he states, “I reasonably 

believe that the stopping of citizens and members of the public on 

the streets of Camden, asking them all kinds of questions 

including information about crimes, and criminal activity, and 

personal information including their social security numbers, was 

a violation of the Fourth Amendment.” (Pl. Ex. M ¶ 18.) This 

statement in his affidavit is in complete contrast to his 

deposition testimony. There, when asked, “What did you think 

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Moreover, although plaintiff expressed these concerns to his 

neighbors and members of his private organizations, no evidence 

shows that he was retaliated against for that expression.6 The 

evidence in the record demonstrates that it was in his expression 

of his concerns at the police department’s March 17, 2009 roll call 

that resulted in the alleged retaliation. Plaintiff disputes that 

his expression of his views on the information gathering policy was

not delivered in a respectful and deferential manner, but the 

would happen if we put information of people who are not criminals 

with information of people who were criminals?” plaintiff 

answered, “Lawsuits . . . based on gathering information, 

harassment. My concern was harassment. Why are we trying to get 

the information? That was my big concern; us getting sued [,] by 

the general public. The ones we’re stopping.” (Pl. Dep., Def. 

Ex. B, at 71.; see also id. at 77.) When asked, “Is it your 

contention that any requirement of the directed patrol policy as 

of March 17th of 2009 was illegal?”, plaintiff responded, “No.” 

When asked, “Was it your position at any time that you were given 

an illegal order?”, plaintiff answered, “No.” (Id. at 77.) 

“[C]onclusory, self-serving affidavits are insufficient to 

withstand a motion for summary judgment.” Kirleis v. Dickie, 

McCamey & Chilcote, P.C., 560 F.3d 156, 161 (3d Cir. 2009)

(citations omitted). Plaintiff’s affidavit is this type of 

submission.

6 In his affidavit in support of his opposition to defendants’ 

motion for summary judgment, plaintiff states that defendants were 

well aware that he was against the directed patrol policy. (Pl. 

Ex. M ¶ 7.) Plaintiff does not provide any other evidence to 

demonstrate that statement. To defeat summary judgment, plaintiff

must identify specific facts and affirmative evidence that 

contradict those offered by the moving party, and plaintiff must 

do more than just rest upon mere allegations, general denials, or 

vague statements. Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d 

Cir. 2001).

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undisputed evidence in the record shows that plaintiff’s discipline

was for the time, place and manner in which he delivered his 

opinions rather than for the content of his views. Plaintiff was 

as supervisory officer who was in charge of ensuring that the 

officers he supervised understood their duties, including the 

parameters of the directed patrol policy. (See Pl. Dep., Def. Ex. 

B, at 79, explaining his understanding of the difference between an 

“investigative detention” and a “mere inquiry.”) Plaintiff was 

disciplined for insubordination because his comments and demeanor 

were deemed by his supervisors to be disruptive and undermining,

and an incorrect instruction to subordinates on the legal exercise 

of their authority. (Def. Ex. C, Docket No. 25-8.) 

As the Third Circuit reiterated, 

Garcetti establishes that when public employees speak 

“pursuant to their official duties,” that speech does not 

receive First Amendment protection. This is because, when 

doing so, “employees are not speaking as citizens for First 

Amendment purposes, and the Constitution does not insulate 

their communications from employer discipline.” The rationale 

underlying this distinction “promote[s] the individual and 

societal interests that are served when employees speak as 

citizens on matters of public concern,” while “respect[ing] 

the needs of government employers attempting to perform their 

important public functions.” 

Dougherty, --- F.3d ---, 2014 WL 6600421, *6 (quoting Garcetti, 

547 U.S. at 421). Plaintiff has not provided any proof, other 

than his own perception of the events during the roll call, to 

cast doubt that his conduct was not as described in the Notice of 

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Disciplinary Action.7

Relatedly, plaintiff has failed to demonstrate that defendants 

lacked an “adequate justification” for treating him differently 

than the general public based on its needs as an employer under 

the Pickering balancing test. A public employer has a legitimate 

and countervailing interest, as an employer, in “promoting 

workplace efficiency and avoiding workplace disruption,” and a 

public employer may limit an employee’s speech where it “impairs 

discipline by superiors or harmony among co-workers, has a 

7 In an attempt to support his claim that he calmly and 

respectfully voiced his concern about the directed patrol policy, 

rather than how it was described by defendant Lynch, plaintiff 

contends that Captain Grimes, who attended the roll call meeting 

and subsequently sent plaintiff home at the direction of defendant 

Lynch, did not agree with Lynch’s report of the incident, he did 

not agree with the punishment, and he altered his own report at 

the behest of Lynch. (Pl. Statement of Facts ¶ 32.) The hearing 

transcript testimony of Captain Grimes cited does not, however,

support that proposition. (Pl. Ex. G at 77-78.) The hearing 

testimony of Lieutenant John Sosinavage, who was in charge of

internal affairs administrative hearings and investigations, 

testified that when he reviewed defendant Lynch’s report of the 

roll call meeting with Captain Grimes, Captain Grimes felt that

plaintiff’s conduct was not as severe as defendant Lynch felt it 

was, but that Grimes perceived plaintiff’s demeanor to be

“unprofessional,” spilled over to the other officers, and he did 

not stop talking when the conversation should have ended. (Pl. 

Ex. D, at 14-17.) Plaintiff notes that Sosinavage subsequently 

filed a lawsuit against Lynch. These minor disputes as to the 

tone of Plaintiff’s objections are not material. Nowhere does 

Plaintiff dispute that he expressed his concerns during a meeting 

designed to insure the officers under his command followed the 

disputed policy. Whether he shouted or whispered, his expressed 

views undermined departmental goals. 

 

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detrimental impact on close working relationships for which 

personal loyalty and confidence are necessary, or impedes the 

performance of the speaker's duties or interferes with the regular 

operation of the enterprise.” Dougherty, --- F.3d ---, 2014 WL 

6600421, *10 (quoting Rankin, 483 U.S. at 388). Plaintiff has not 

offered sufficient evidence to demonstrate that his discipline was

in retaliation for protected speech, and not an effort to promote

workplace efficiency and avoiding workplace disruption.8

2. NJ CEPA

The New Jersey Legislature enacted CEPA to “protect and 

encourage employees to report illegal or unethical workplace 

activities and to discourage public and private sector employers 

from engaging in such conduct.” Abbamont v. Piscataway Township 

Bd. of Educ., 650 A.2d 958, 971 (N.J. 1994). In furtherance of 

that goal, the statute provides, in relevant part: An employer 

shall not take any retaliatory action against an employee because 

8 For the same reasons, plaintiff’s First Amendment violation claim 

under the New Jersey constitution is also unavailing. See E & J 

Equities, LLC v. Board of Adjustment of Tp. of Franklin, 100 A.3d 

539, 549 n.5 (N.J. Super. App. Div. 2014) (explaining “[b]ecause 

we ordinarily interpret our State Constitution's free speech 

clause, N.J. Const. art. I, ¶ 6, to be no more restrictive than 

the First Amendment to the United States Constitution, we rely on 

federal constitutional principles in interpreting the free speech 

clause of the New Jersey Constitution,” but noting that two 

exceptions to the general rule are political expression at 

privately-owned-and-operated shopping malls).

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the employee does any of the following: . . . c. Objects to, or 

refuses to participate in any activity, policy or practice which 

the employee reasonably believes: (1) is in violation of a law, or 

a rule or regulation promulgated pursuant to law . . .; (2) is 

fraudulent or criminal; or (3) is incompatible with a clear 

mandate of public policy concerning the public health, safety or 

welfare or protection of the environment. N.J.S.A. 34:19-3(c).

A plaintiff who brings a cause of action pursuant to N.J.S.A. 

34:19-3c must demonstrate that: (1) he or she reasonably believed 

that his or her employer's conduct was violating either a law, 

rule, or regulation promulgated pursuant to law, or a clear 

mandate of public policy; (2) he or she performed a “whistleblowing” activity described in N.J.S.A. 34:19-3c; (3) an adverse 

employment action was taken against him or her; and (4) a causal 

connection exists between the whistle-blowing activity and the 

adverse employment action. Kolb v. Burns, 727 A.2d 525, 530 (N.J. 

Super. Ct. App. Div. 1999) (citation omitted).

At the March 17, 2009 roll call meeting, plaintiff voiced his 

objection to the information gathering procedure he and his fellow 

officers were instructed to undertake as part of their directed 

patrols. Even accepting as true that plaintiff suffered an 

adverse employment action as a result, plaintiff’s CEPA claim 

fails for the same reasons as his First Amendment retaliation 

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claims. As explained above, the evidence in the record shows that 

it was the manner, time, and place in which plaintiff expressed 

his concerns with the information gathering policy, and not for 

the content of his views, that subjected him to discipline. See

Connick v. Myers, 461 U.S. 138, 152-53 (1983) (citation omitted) 

(“When a government employee personally confronts his immediate 

superior, the employing agency's institutional efficiency may be 

threatened not only by the content of the employee's message but 

also by the manner, time, and place in which it is delivered.”); 

see also Fleming v. Correctional Healthcare Solutions, Inc., 751 

A.2d 1035, 1039 (N.J. 2000) (explaining that the requirement that 

a whistleblower submit her complaint to a supervisor is not 

limited to her immediate supervisor, and observing, “This does not 

mean that an employer may not fire an employee, even a 

whistleblower, who is unreasonable in expressing his or her 

complaints. For example, a state employee who repeatedly called 

the Governor at the Governor's residence late at night to report 

violations of law at a state agency could justly be said to be 

insubordinate if requested not to do so.”). 

Additionally, the record evidence does not demonstrate that at 

the time of the roll call meeting plaintiff could point to a law, 

rule or regulation that the information gathering policy was 

violating. The Court does not question that plaintiff felt that 

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the police’s often duplicative obtaining of personal information 

from regular citizens on the street simply for the sake of 

fulfilling a quota was not effective or desirable for many 

reasons, but the evidence does not demonstrate that plaintiff 

believed that the police were violating the law by doing so.9 In 

short, the evidence in the record does not support the elements of 

a CEPA violation. 

CONCLUSION

For the reasons expressed above, defendants are entitled to 

summary judgment on all of plaintiff’s claims against them. An 

appropriate Order will be entered.

Date: December 10, 2014 s/ Noel L. Hillman 

NOEL L. HILLMAN, U.S.D.J.

At Camden, New Jersey

9 Again, as noted above, plaintiff’s contention in his complaint 

and affidavit filed in opposition to summary judgment that the 

directed patrol policy, as implemented by the Camden police, was a 

violation of the citizens’ Fourth Amendment rights, does not 

demonstrate that as of March 17, 2009, plaintiff viewed the policy 

as violating citizens’ constitutional rights. Plaintiff has not 

pointed to any evidence that as of March 17, 2009, the information 

gathering part of the directed patrol policy required officers to 

exceed the bounds of the Fourth Amendment, which plaintiff was 

required to understand. See supra note 4. In other words, 

because plaintiff, as a police officer, was required to know the 

clearly established law on an officer’s authority to stop and 

question citizens, he would have been capable of articulating how 

the information gathering policy was violating the Fourth 

Amendment rights of Camden citizens, rather than generally stating 

that it was “improper,” “illegal,” or “harassing.” 

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Case 1:11-cv-00554-NLH-AMD Document 45 Filed 12/11/14 Page 19 of 19 PageID: 512