Legal landscape note: This article was originally published in 2014 and describes the law as it stood at that time. New Jersey law changes frequently.
A confidential informant's identity is supposed to stay confidential. In this case, the lawsuit alleges, someone in a county prosecutor's office let it slip -- and the informant was later shot dead outside the East Brunswick diner he co-owned. The Third Circuit's ruling that his estate may pursue its claims raises a question with stakes for anyone who cooperates with law enforcement: when the State itself creates the danger, can it be held liable? Whether the claim ultimately succeeds is another matter, but the court recognized that a viable claim may be made.
The ruling allows Lagano's estate to bring claims over his April 12, 2007, murder in front of the Seville Diner in East Brunswick, N.J., of which he was part owner. No one was ever charged in the shooting of Lagano, then 67. The suit claims that disclosure of Lagano's status as an informant established a state-created danger in violation of his due process rights.
The Third Circuit said the Prosecutor's office and Michael Mordaga, a co-defendant in the suit and the former chief of detectives for the office, are subject to claims under state and federal civil rights laws, because each met the definition of a "person" under those laws. U.S. District Judge Faith Hochberg of the District of New Jersey, the judge below, had dismissed the suit after finding Mordaga and the Prosecutor's office were not persons under those laws.
The estate claims Mordaga and Lagano were longtime friends, even as the Prosecutor's office conducted an organized-crime investigation focusing on Lagano. In December 2004, Lagano was charged with racketeering, promoting gambling, criminal usury and conspiracy.
After Lagano was charged, the estate claims, Mordaga met with him and instructed him to hire a particular attorney, who could "'make his legal problems go away.'" But Lagano refused to hire the attorney and unidentified people in the Prosecutor's office told some of his co-defendants that he was a cooperating witness, the suit claims.
The estate says it based its allegations "in substantial part" on another suit against the state filed in late 2010 by James Sweeney, a former investigator in the Division of Criminal Justice, since deceased. Sweeney claimed he was fired in retaliation for investigating corruption in an unspecified county prosecutor's office. He described actions by parties designated "FL" and "MM" that were similar to those attributed to Lagano and Mordaga.
In dismissing the suit in March 2013, Hochberg said the Prosecutor's office and Mordaga were not subject to liability under federal civil rights laws because they are arms of state government, and therefore are not persons under federal law.
But the panel of Judges Michael Chagares, Joseph Greenaway Jr. and Thomas Vanaskie said the Prosecutor's office and Mordaga were subject to suit under federal civil rights law because they were not acting as arms of state government when Mordaga allegedly urged Lagano to hire a particular attorney or at the time of the alleged disclosure of Lagano's status as a confidential informant. Mordaga and the Prosecutor's office were also subject to suit under the New Jersey Civil Rights Act for the same reasons, the appeals court said.
Hochberg also wrongly concluded that the Prosecutor's office was entitled to sovereign immunity, the appeals court said. To decide that question on remand, the lower court should analyze whether the state is the real party in interest, as determined by whether the money to pay for the judgment would come from the state; the status of the agency under state law; and what degree of autonomy the agency has, the Third Circuit said.
The panel also said Hochberg failed to apply the proper standard in concluding that Mordaga is protected by qualified immunity. She concluded that no Third Circuit law had extended to confidential informants the right to a claim based on a state-created danger. But the appeals court said that a state-created danger has been established as a violation of due process for nearly two decades.