Michael Marotta

My Note begins with the story of Bergen County police officers Saheed Baksh and Jeffery Roberts. On August 12, 2010, Officer Baksh was in vehicular pursuit of a burglary suspect.[1] After passing through six towns, the suspect’s vehicle finally came to rest.[2] Officer Baksh exited his patrol vehicle and allegedly fired two shots at the suspect, who tried to escape on foot, but he missed both times.[3] Officer Roberts responded to the scene shortly thereafter, where he allegedly assisted Baksh pick up the shell casings in an attempt to cover up the shooting.[4] The two officers were indicted on charges of official misconduct, tampering with evidence, and making false statements to investigators.[5] The trial eventually ended in their acquittal and subsequent reinstatement.[6] After the trial, a malicious prosecution action against Bergen County prosecutor John Molinelli and an action for indemnification of legal fees for the acquitted officers loomed.[7] To avoid further litigation, Bergen County settled with Baksh and Roberts by reimbursing them $1.12 million for legal fees and back pay.[8] A claim has been filed with the county’s insurance, but it is unclear if it will cover the settlement.[9]

My Note argues throughout that the settlement between Bergen County and the officers should never have been New Jersey taxpayers’ responsibility. This is because the New Jersey Legislature failed to amend the statute for reimbursement of county police officers when it amended a similar statute for municipal police officers in 1986. The amended language made the standard for indemnification more stringent. The statute before the amendment called for indemnification of municipal police officers after successfully defending charges against them that were “arising out of or incidental to the performance of his duties.” [10] Post-amendment, the charges covered under the statute need to be “arising out of and directly related to the lawful exercise of police powers in furtherance of his official duties.”[11] Had the legislature amended the statute for county police officers, the threat of an action for reimbursement would have been considerably less daunting. Part I of my Note examines the pre- and post-amendment standards for municipal officer indemnification. Part II of my Note argues that the county should not have settled with the officers despite the current standard for county officer indemnification because statutory interpretation and the clear directive from the legislature regarding the municipal amendment weighed in the county’s favor. Part III of my Note argues that Bergen County could have defeated a malicious prosecution action based on the doctrine of prosecutorial immunity. Part IV answers the question of who will ultimately foot the bill for the settlement. The State of New Jersey may be vicariously liable for the conduct of the Bergen County prosecutor’s office. Since the New Jersey Attorney General’s office oversees the county prosecutor’s office and can intervene at any time, the doctrine of respondeat superior dictates that this master/servant relationship puts the master (the State) on the hook for the errs of the servant (the officers) if the servant was acting pursuant to a mandate from the master.

Although I believe the failure to amend the county statute is a careless oversight, whatever the reason, the reality is that the legislature left Bergen County an outdated statute that has had significant economic consequences for the New Jersey taxpayer. Perhaps this legislature will be motivated to amend a statute that should have been updated almost thirty years ago. Ultimately, it is the legislature’s fault for leaving New Jersey with a different standard for police officer indemnification based upon who is writing the officer’s paycheck.

Questions and inquiries regarding this Note may be forwarded to the author at LawReview@vermontlaw.edu.

---

[1] Bergen County Cops Indicted on Misconduct Charges Stemming from Wild Chase, CBS New York (Aug. 20, 2012, 9:44 PM), http://newyork.cbslocal.com/2012/08/20/bergen-county-cops-indicted-on-misconduct-charges-face-prison-time/.

[2] Id.

[3] Id.

[4] Peter J. Sampson, Bergen County Officer Gives Different Account in Misconduct Trial of Fellow Officers, Record, http://www.northjersey.com/news/bergen-county-officer-gives-different-account-in-misconduct-trial-of-fellow-officers-video-1.1010248 (last updated May 6, 2014, 7:45 PM).

[5] Id.

[6] Jean Rimbach, 2 Return to Bergen County Cops After Acquittal but Plenty of Issues Remain Unresolved, Record, http://www.northjersey.com/news/crime-and-courts/2-return-to-bergen-county-cops-after-acquittal-but-plenty-of-issues-remain-unresolved-1.1031084?page=all (last updated June 7, 2014, 1:21 AM).

[7] Jean Rimbach, Bergen County Tab Totals $507,000 in Back Pay in Two Cops’ Acquittal, Record, http://www.northjersey.com/news/bergen-county-tab-totals-507-000-in-back-pay-in-2-cops-acquittal-1.1076352 (last updated Aug. 26, 2014, 7:18 PM).

[8] Id.

[9] Id.

[10] N.J. Stat. Ann. § 40A: 14-155 (West 2014).

[11] Id.