3rd Cir. Remands Case of Man Killed After Cop Outs Him as Informant
You know the old trope of the two friends who couldn't be more different? "The Odd Couple"? "Bosom Buddies"? "The Patty Duke Show"? Well, Estate of Lagano v. Bergen County Prosecutor's Office is like that, except one was Chief of Detectives for the East Brunswick, New Jersey, police department and the other one might be a mobster. (I smell a "Sopranos" spin-off!)
Frank Lagano was under investigation; his friend Michael Mordaga was the detective. Mordaga told his friend to hire a particular attorney to make all of it go away. Instead, Lagano became a confidential informant for the New Jersey Attorney General's office.
Then Things Took a Turn
Mordaga and Lagano's relationship "soured" after Lagano continued to refuse to hire an attorney, and at some point, the suit alleges, Mordaga and the Bergen County Prosecutor's Office (BCPO) disclosed to members of "traditional Organized Crime families" that Lagano had been an informant. It's not clear whether this was inadvertent or intentional, but sometime later, Lagano was killed. His estate brought a claim against BCPO and Mordaga.
You've Got Some Problems Here
The district court dismissed the claims against BCPO and Mordaga because of sovereign immunity and qualified immunity. Also in question was whether either BCPO or Mordaga fell into the Section 1983 definition of "person," as a state government entity acting in its official capacity is not a "person," but a local government entity or official is.
The court found that Mordaga was being sued in his official capacity, as the complaint was full of facts about Lagano and Mordaga's personal and business relationship, meaning "Mordaga was not performing classic investigatory and prosecutorial functions when he urged Lagano to retain a specific attorney."
Sovereign immunity for BCPO was a question too. One of the many caveats to sovereign immunity is that it applies only when a state is "the real party in interest." The Third Circuit remanded on this question because the district court applied the wrong test for determining whether the state was the real party in interest.
Qualified Immunity
Believe it or not, the Due Process Clause doesn't "require the state to affirmatively protect its citizens." This doesn't extend to "state-created danger," which is how Lagano's estate saw the alleged divulging of his identity to the mob.
The district court, however, said that the right for confidential informants to be free from state-created danger wasn't clearly established. Again, you can get a particular outcome in situations like this by articulating the right extremely narrowly, but the Third Circuit wasn't having it, reversing the finding of qualified immunity because of the district court's "unduly narrow construction of the right at issue."
While the Third Circuit hasn't ruled on the merits of any of the claims in this interesting case, it did clear some of the procedural hurdles to Lagano's estate even being heard in district court.
Related Resources:
- Confidential Informants: Valuable Assets Walking a Fine Line (Pittsburgh Post-Gazette)
- N.J. Judge Who Played Prosecutor, Denied Counsel Gets No Immunity (FindLaw's U.S. Third Circuit Blog)
- N.J. Sup. Ct.: Sex Offender Ankle Monitor Is Ex Post Facto Punishment (FindLaw's U.S. Third Circuit Blog)
- N.J. Sports Betting Case Denied Cert, N.J. Enacts Work-Around (FindLaw's U.S. Third Circuit Blog)