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Media Alerts - Estate of Frank P. Lagano v. Bergen County Prosecutor's Office - Third Circuit
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October 23, 2014
  Estate of Frank P. Lagano v. Bergen County Prosecutor's Office - Third Circuit
Headline: Third Circuit vacates district court's rulings that BCPO and its officers are not "persons" under civil rights statutes and remands to lower court for further findings.

Area of Law: Due Process and Civil Rights

Issues Presented: Whether the plaintiff stated a claim for relief by alleging that the State violated the decedent's due process and civil rights by allegedly disclosing his identity as a confidential informant and conducting a search and seizure of his home?

Brief Summary: The Third Circuit affirmed in part the district court's ruling granting the State's motion to dismiss but ultimately vacated many of the district court's findings and allowed the Plaintiff to file a second amended complaint. The Plaintiff, Estate of Lagano (Estate) alleges in its complaint that the Bergen County Prosecutor's Office (BCPO) and its Chief Detective, Michael Mordaga, unlawfully searched Lagano's house and seized items from it as well as put him in harm that led to his death by revealing that he was a confidential informant. The Third Circuit vacated the district court's rulings that the defendants cannot be sued under 42 U.S.C. §§ 1983 and 1985 and the New Jersey Civil Rights Act. Next, the Third Circuit found that the district court did not use the correct standards or case law to determine the claims of sovereign immunity and qualified immunity. Finally, the Third Circuit found the claim of unlawful search and seizure from 2005 to be barred by the statute of limitations.

Extended Summary: Frank Lagano was the subject of an organized crime investigation by the BCPO where Michael Mordaga was Chief of Detectives. On December 1, 2004, BCPO detectives executed a search warrant at Lagano's home and safe deposit boxes and seized cash and other items. He was charged with racketeering and other crimes. The Estate alleges that Lagano agreed to serve as a confidential informant for James Sweeney and that Mordaga and Lagano did not have a good relationship.

The Estate alleges that sometime later BCPO personnel disclosed to members of "traditional Organized Crime families" that Lagano had been an informant. On April 12, 2007, Lagano was shot and killed. The Estate asserts that Mordaga and BCPO are responsible for Lagano's death and that they conspired to illegally arrest and steal from Lagano. In 2010, James Sweeney, a Sergeant State Investigator filed a complaint alleging widespread corruption within the BCPO, including allegations related to Mordaga's relationship with Lagano and the circumstances surrounding Lagano's murder. On August 29, 2012, the Estate filed a complaint based primarily on Sweeney's complaint. The District Court dismissed all claims against all defendants, finding the State had Eleventh Amendment sovereign immunity because neither the BCPO nor Mordaga were "persons," Mordaga had qualified immunity as to two of the three counts, and the third count was time barred.

The Third Circuit first found that the district court erred when it found that the BCPO and Mordaga could not be sued under 42 U.S.C. §§ 1983 and 1985 because they are not "persons" under the statutes. First finding that "person" has the same meaning under both statutes §§ 1983 and 1985, the Third Circuit then found that the complaint did not merely allege that Mordaga and other BCPO officials were performing "classic functions of law enforcement." Rather, the district court erred by granting sovereign immunity because the complaint alleged a relationship beyond the defendants' official roles within the BCPO. The Third Circuit reasoned that Mordaga was amenable to suit because he was sued in his personal capacity. For the same reason, the Third Circuit vacated the ruling that the defendants cannot be sued under the New Jersey Civil Rights Act.

Next, The Third Circuit found that the district court erroneously used inapplicable case law to find that the BCPO had Eleventh Amendment sovereign immunity. The panel remanded the case on this issue so that the district court could apply the correct case law. Furthermore, the Third Circuit also found that the district court used an unduly narrow construction to define the rights of confidential informants. The Estate can allege a state-created danger theory despite the fact that there had been no previous reported cases extending it to confidential informants. Without reaching the merits, the Third Circuit found that the district court did not use the correct standard and vacated its decision finding in favor of Mordaga's qualified immunity.

Finally, the Third Circuit rejected the Estate's argument that the statute of limitations regarding the search and seizure should be determined from the Sweeney complaint in lieu of from the date of the search in 2005. Finding the record demonstrated that Lagano knew about the allegedly unlawful search and seizure when it occurred in 2005, the Third Circuit held that the search and seizure claim expired in 2007 and was time barred. The Third Circuit allowed the Estate to file a second amended complaint upon remand.
To read the full opinion, please visit

Panel (if known): Chagares, Greenaway, Jr. and Vanaskie, Circuit Judges

Argument Date: March 19, 2013

Date of Issued Opinion: October 15, 2014

Docket Number: No. 13-3232

Decided: Affirmed in part, vacated in part, remanded for further proceedings

Case Alert Author: Antoinette Snodgrass

Counsel: William H. Buckman, Esq., Edward M. Koch, Esq., and David M. Ragonese, Esq. for Plaintiff/Appellant Estate of Frank P. Lagano; John J Hoffman, Esq., Lisa A. Puglisi, Esq., Brian G. Flanagan, Esq., and Eric S. Pasternack, Esq. for Defendants/Appellees Office of Attorney General of New Jersey

Author of Opinion: Judge Vanaskie

Circuit: Third Circuit

Case Alert Supervisor: Professor Mary E. Levy

    Posted By: Susan DeJarnatt @ 10/23/2014 09:50 AM     3rd Circuit  

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