Full opinion text
OPINION BARRY, District Judge. I. Introduction Plaintiffs, PBA Local No. 38 and certain current and former police officers of the Township of Woodbridge, bring this action against the Woodbridge Police Department and the Township of Woodbridge (together “the Woodbridge defendants”), the former and current Police Directors, the former Mayor of the Township of Woodbridge, and New Jersey Bell Telephone Company (“NJB”). Plaintiffs allege that electronic listening and taping devices were surreptitiously placed in certain areas of police headquarters and on the building’s phone lines. As a result, they allege, their private conversations were unlawfully intercepted. Specifically, plaintiffs bring six separate claims: (1) violation of 42 U.S.C. § 1983 in that the surveillance was under color of state law and in violation of their constitutional right to privacy under the Fourth, Fourteenth, First, and Ninth Amendments (First Count); (2) violation of the New Jersey Wiretapping and Electronic Surveillance Control Act, N.J.S.A. 2A:156A-1 et seq. (“New Jersey Wiretap Act”) (Second Count); violation of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, as amended by the Electronic Communications Privacy Act of 1986, Pub.L. No. 99-508, 100 Stat. 1848 (1986), 18 U.S.C. §§ 2510-20 (“Federal Wiretap Act”) (Third Count); conspiracy to violate federal statutory and constitutional rights pursuant to 42 U.S.C. §§ 1983 and 1985 (Fourth Count); violation of their right to privacy under the New Jersey Constitution and New Jersey common law (Fifth Count); and “intrusion upon seclusion” (Sixth Count). Now before the court are numerous motions for summary judgment by defendants on various grounds and plaintiffs’ motion for leave to file a fourth amended complaint. For the reasons which follow, defendants’ motions will be granted in part and denied in part and plaintiffs’ motion will be denied. II. Procedural History and Factual Background Much of the relevant factual background is set forth in the court’s opinion denying plaintiffs’ motion for class certification and defendants’ motion to dismiss. See PBA Local No. 38 v. Woodbridge Police Department, 134 F.R.D. 96, 97-99 (D.N.J.1991). Because certain aspects of the case have changed since that opinion was issued, however, the court will briefly set forth the parties and the facts relevant to these motions. A. The Parties Plaintiff PBA Local No. 38 is the collective bargaining representative of the officers employed at the Woodbridge Police Department. The remaining plaintiffs are sixteen current or former officers employed by the Department — Joseph Festa, William Matelski, Thomas Polhamus, Richard Bernat, George Conklin, Thomas Barajas, Robert Ba-rajas, David Whitaker, Patrick Donnelly, John Trainor, John Schreek, James Kirby, Robert Hodes, Ronald Nier, and Joseph Co-vino. See October 16, 1991 Order of the Hon. Stanley R. Chesler, U.S.M.J. (permitting amendment of the complaint to add these plaintiffs). Defendant Joseph Galassi served as Director of the Woodbridge Police Department from 1963 to 1984. Final Pretrial Order Stipulation of Facts (hereinafter “Stip.”) ¶ 1. Defendant Anthony O’Brien became a Wood-bridge Police Officer in 1957 and worked his way up through the ranks, eventually succeeding Galassi as Director of Police in 1984. Id. ¶¶ 8-15. Defendant Walter Zirpolo, now deceased, served as Mayor of Woodbridge from 1962 to 1967. Zirpolo hired Galassi as Director of Police during his tenure as May- or. Id. ¶ 7. Defendant NJB is a regulated public utility and a communication common carrier. Id. ¶ 6. NJB installed certain equipment in the Woodbridge Police Department station house. B. Procedural History Plaintiffs filed a complaint in the Superior Court of New Jersey on May 3, 1988. The Hon. Robert A. Longhi, J.S.C., initially denied class certification but later vacated that ruling and certified a class action. The state court action was, nonetheless, subsequently dismissed without prejudice. Plaintiffs filed a complaint in this court in August, 1989 on behalf of a class comprised of all persons who worked as police officers for the Woodbridge Police Department from 1964 to 1985 and their families and associates who visited or telephoned the station house during that time. In its previous opinion, the court denied plaintiffs’ motion to certify the class. PBA Local No. 38, 134 F.R.D. at 102. Moreover, the court made clear at that time what was required for an individual plaintiff to have standing: “At a minimum, a named plaintiff must demonstrate the actual interception of at least one of his or her conversations before there can be a justiciable controversy within the meaning of Article III. Where there has been no interception, there can have been no injury.” Id. at 100-01. Subsequent to the denial of class certification, plaintiffs moved to amend the complaint to join 233 other individuals as plaintiffs in the action. Consistent with this court’s prior ruling, Magistrate Judge Chesler granted the motion in part and denied it in part, permitting the complaint to be amended to include as plaintiffs the sixteen individuals who were able to demonstrate that they had at least one conversation intercepted. See Order dated October 16, 1991. Discovery has been completed and, defendants’, dispositive motions and plaintiffs’ motion for leave to file a fourth amended complaint aside, the case is ready for trial. The court notes, however, that although trial there will be, it has grave doubts that even if some or all of the plaintiffs who go to trial prevail on the merits, other than the most minimal damages can be proven. C. Factual Background The general factual background of this litigation is set forth in the court’s previous opinion. Specific factual arguments and evidence relating to specific claims or specific defendants will be discussed in the context of the court’s legal analysis of these motions. III. Defendants’ Motions The motions for summary judgment present a complex web of legal arguments and factual references. There are five separate defendants moving for summary judgment on some or all of the six counts of the third amended complaint. While some arguments are made by more than one defendant or are joined post hoc by other defendants, there are numerous arguments which apply to one defendant alone, one or a few plaintiffs, or only one or a few of the counts of the complaint. A. Statute of Limitations In its previous opinion, the court noted that because the accrual of the statute of limitations as to each plaintiff will depend on an individualized determination as to when he became aware of both the fact of injury and the causal connection to one or more of the defendants, statute of limitations issues could not be resolved on class-wide basis. PBA Local No. 38, 134 F.R.D. at 106. Finding defendants’ evidence regarding the statute of limitations inconclusive at that juncture, the court invited a renewed motion on statute of limitations grounds “should additional discovery clarify what is now unclear.” Id. NJB, joined by Galassi, O’Brien, and Zirpolo, now argues that plaintiffs’ claims are barred on statute of limitations grounds. The Woodbridge defendants renew the statute of limitations argument only with respect to plaintiff PBA Local No. 38. All defendants’ arguments must fail. Plaintiffs do not dispute that all their claims are subject to a two-year statute of limitations, whether under federal law or state law. See Wilson v. Garcia, 471 U.S. 261, 280, 105 S.Ct. 1938, 1949, 85 L.Ed.2d 254 (1985) (state personal injury statute of limitations should be applied to § 1983 claims); 18 U.S.C. § 2520(e) (amendment to federal anti-wiretapping statute, effective January, 1987, setting a statutory two-year limitation period); Awbrey v. Great Atlantic & Pacific Tea Co., 505 F.Supp. 604, 607 (N.D.Ga.1980) (prior to amendment of Federal Wiretap Act, applying the state’s two-year statute of limitations applicable to the tort of invasion of privacy); N.J.S.A. 2A:14-2 (general personal injury statute of limitations of two years). Plaintiffs filed their federal complaint on August 2, 1989. The question, then, is whether the court can determine as a matter of law that any or all of the plaintiffs’ claims against defendants accrued prior to August 2, 1987. NJB argues that the attorney for PBA Local No. 38, Raymond Gill, Esq., knew of the existence of a State Police report in December, 1986, that report put him on notice of plaintiffs’ cause of action, and, thus, the cause of action should be deemed to have accrued as of that date and certainly no later than February 2,1987, as evidenced by counsel’s letter of that date to the New Jersey Attorney General’s Office. Pl.Opp.Br., Exh.F. NJB suggests, moreover, that plaintiffs’ cause of action could well have accrued on June 21,1985, the date on which the State Police did a “sweep” of police headquarters. But NJB’s statute of limitations argument makes utterly no reference to the knowledge or awareness of any individual plaintiff, rather treating all plaintiffs as one. NJB apparently fails to appreciate the court’s previous statement that the accrual of the statute of limitations requires an inquiry which is “specific to each plaintiff and ... obviously ill suited to general disposition on a class-wide basis.” PBA Local No. 38, 134 F.R.D. at 106. Parenthetically, this point was not lost on the Woodbridge defendants, who concede in their brief that “the questions as to the accrual of the causes of action by individually-named plaintiffs may still need to be clarified at this time____” Woodbridge Defendants Moving Br. at 39. Accordingly, the Woodbridge defendants have limited their statute of limitations argument to plaintiff PBA Local No. 38. No defendant has shown that plaintiffs knew as of the time of the investigation that their, or indeed any, conversations had been recorded; indeed, the press reports on which defendants place substantial reliance are contradictory as to whether surveillance had or had not been occurring. Additionally, while plaintiffs apparently knew of the existence of the State Police report prior to August, 1987, knowledge of the existence of that report and knowledge of the report’s contents are far different matters. Although defendants maintain that plaintiffs could have known the contents of the report prior to August, 1987 with the exercise of reasonable diligence (and therefore should have known), the court cannot say as a matter of law that this is so. The Woodbridge defendants rest their argument on another piece of evidence. Specifically, they claim that the minutes of the August 14, 1985 meeting of PBA Local No. 38 establish actual knowledge that wiretapping was occurring. This argument, too, must fail. Although the minutes of this meeting (certain portions of which were ordered redacted during discovery on the basis of attorney-client privilege) clearly mention the “bugging” of police headquarters, the statements therein do not establish that the PBA or any other plaintiff knew or should have known of their purported injury and the causal connection to defendants. In short, although defendants may ultimately prevail on the statute of limitations issue, that issue must be addressed to the jury. B. Plaintiffs’ Reasonable Expectation of Privacy The threshold issue of statute of limitations aside, one of the primary themes of defendants’ motions for summary judgment as they relate to intercepted telephone conversations is that plaintiffs cannot produce evidence to show that any conversations in which plaintiffs enjoyed a reasonable expectation of privacy were intercepted. 1. Conversations on “Beeped” Phone Lines Defendants move for summary judgment on plaintiffs’ claims insofar as they relate to the interception of conversations on the station house’s “beeped” phone lines. Defendants concede for purposes of the motions that all telephone calls going into or coming out of the station house were taped on the Dictaphone machine in the basement. All but two of the phone lines in the station house were trunk lines subject to recording. Recording was signified by a beep every five seconds which was audible to the telephone’s user. The deposition testimony of each and every individual plaintiff indicates that all were aware that the beeped lines were recorded. Some plaintiffs indicated that they were told by department officials that the lines were recorded. Moreover, the deposition testimony establishes that even if a particular plaintiff was not told by department officials, it was general knowledge among police officers that the beep on the phone lines signified that the lines were being recorded. Consistent with this knowledge, some plaintiffs testified that they adjusted their telephone conversations to avoid discussing matters which they did not want recorded. Arguing that plaintiffs could not have had a reasonable expectation of privacy in talking on these beeped lines, defendants move for summary judgment on all claims as they relate to conversations over beeped telephone lines. While this argument is persuasive as to certain of plaintiffs’ claims, it is not as to others. Because the standards governing plaintiffs’ various claims differ, they will be considered seriatim. The § 1983 claim in the First Count (and, derivatively, the § 1983 conspiracy claim of the Fourth Count), it was previously determined, will be governed by the law prevailing at the time of the alleged violation. See Letter Opinion, dated May 10, 1991 (denying plaintiffs’ motion for reconsideration of denial of class certification) (hereinafter “Letter Opinion”). As the court’s previous overview of the development of the constitutional law of privacy made clear, the law most favorable to plaintiffs is Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), the case in which the Supreme Court first determined that the Fourth Amendment’s protections apply where there is a “reasonable expectation of privacy.” See Letter Opinion at 9-10 (discussing Fourth Amendment jurisprudence from Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944 (1928), and Goldman v. United States, 316 U.S. 129, 62 S.Ct. 993, 86 L.Ed. 1322 (1942), which employed a physical trespass approach to the right to privacy, to Katz). Thus, for purposes of the summary judgment motions, the court will apply the Katz “reasonable expectation of privacy” formulation to determine if plaintiffs’ constitutional claims regarding conversations which occurred over beeped telephone lines are legally viable. It is clear that plaintiffs did not have a reasonable expectation of privacy in conversations which took place over the beeped telephone lines. The Supreme Court has described the “reasonable expectation of privacy” test endorsed in Katz as follows: Katz posits a two-part inquiry: first, has the individual manifested a subjective expectation of privacy in the object of a challenged search? Second, is society willing to recognize that expectation as reasonable? See Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220 (1979). California v. Ciraolo, 476 U.S. 207, 211, 106 S.Ct. 1809, 1811, 90 L.Ed.2d 210 (1986). The first prong of this inquiry relates to the person’s subjective intent, i.e. whether he or she actually had an expectation of privacy. The second prong is an objective component, i.e. whether that expectation was reasonable. It is clear beyond any doubt that because all the police officer plaintiffs knew that the beeped phone lines were recorded, they had no subjective expectation that conversations on those lines would be private, and there certainly is no evidence on this score. Moreover, even were the evidence not so conclusive on the subjective prong of Katz, ample evidence supports the conclusion that the significance of the beeps was common knowledge among the Woodbridge police officers and, thus, that any subjective expectation of privacy could not be reasonable. Summary judgment will, therefore, be granted in favor of defendants as to the § 1983 claims of all plaintiffs insofar as those claims rely on conversations occurring on beeped phone lines. Defendants likewise move for summary judgment on plaintiffs’ federal and state anti-wiretap statutory claims on the basis that plaintiffs had no reasonable expectation of privacy in these conversations. As will become clear, however, defendants apparent assumption that the “reasonable expectation of privacy” standard governs these claims is incorrect. Both the federal and the state wiretap statutes cover the interception of two kinds of communications, “wire” and “oral.” See 18 U.S.C. § 2511(1)(a); N.J.S.A. 2A:156A-2(a) & (b). Both statutes define “oral communication” to include “any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation____” 18 U.S.C. § 2510(1); N.J.S.A. 2A:156A-2(b). Courts interpreting this language in light of the legislative history of the federal act have opined that the “expectation of privacy” language in the statute was intended to parallel the language and standard of Katz, making the “reasonable expectation of privacy” highly relevant to claimed interceptions of oral conversations. See In re John Doe Trader Number One, 894 F.2d 240, 242 (7th Cir.1990) (citing S.Rep. No. 1097, 90th Cong., 2d Sess., reprinted in 1968 U.S.Code Cong. & Admin.News 2112-2274); United States v. Harrelson, 754 F.2d 1153, 1170-71 (5th Cir.1985). But see Walker v. Darby, 911 F.2d 1573, 1578-79 (11th Cir.1990) (distinguishing between the expectation of privacy and the expectation of noninterception); Boddie v. American Broadcasting Cos., 731 F.2d 333, 338-39 & n. 4 (6th Cir.1984). Of critical importance here, however, is that defendants have moved for summary judgment only as to the telephone conversations of plaintiffs. Telephone conversations fall under the definition of “wire communication” in both the federal and state acts. Shubert v. Metrophone, Inc., 898 F.2d 401, 404 (3d Cir.1990); Briggs v. American Air Filter Co., 630 F.2d 414, 417 (5th Cir.1980); United States v. Axselle, 604 F.2d 1330, 1334 (10th Cir.1979); In re Wire Communication, 76 N.J. at 261, 386 A.2d 1295. As a comparison between the definitions of “oral communication” and “wire communication” elucidates, wire communications, unlike oral communications, are generally protected regardless of whether the person making or receiving such communications has an expectation of privacy. Compare 18 U.S.C. § 2510(1) with 18 U.S.C. § 2510(2) and N.J.S.A. 2A:156A-2(a) with N.J.S.A. 2A:156A-2(b). See Briggs, 630 F.2d at 417 & n. 4. Plaintiffs’ reasonable expectation of privacy being irrelevant to statutory liability for the alleged interception of wire communications, defendants’ motion for summary judgment on these claims as they relate to conversations on beeped — or for that matter any — telephone lines on the basis that plaintiffs had no expectation of privacy in such conversations must be denied. 2. Conversations on Non-Beeped Phone Lines Defendants’ arguments in support of their motions for summary judgment on plaintiffs’ claims arising out of the alleged interception of conversations on “unbeeped” phone lines do not, understandably, focus on the lack of an expectation of privacy. Rather, defendants attack these claims only as to certain plaintiffs on the basis that the claims lack factual support. Defendants argue that the evidence indicates that some plaintiffs never used the unbeeped phone lines and that, therefore, they could not have had any conversations on these lines intercepted. Certain plaintiffs have testified that they never had occasion to use such phone lines. See Polhamus Dep., Galassi Mov.Br., Exh. R, at 89, 95; Trainor Dep., Galassi Mov.Br., Exh. S, at 89; Hodes Dep., O’Brien Mov.Br., Exh. B, at 41; Festa Dep., O’Brien Mov.Br., Exh. F, at 50; Schreck Dep., O’Brien Mov.Br., Exh. H, at 156-57. These plaintiffs, by their own admission, have no provable claims arising from conversations on unbeeped phone lines. Accordingly, defendants’ motion for summary judgment will be granted as to the claims of plaintiffs Polhamus, Trainor, Hodes, Festa, and Schreck which rely on such conversations. C. Plaintiffs’ State Constitutional and Common Law Claims The Fifth Count of the complaint alleges that defendants violated plaintiffs’ right to privacy as guaranteed by the Constitution of the State of New Jersey. The Sixth Count alleges the tort of “intrusion upon seclusion.” Defendants move for summary judgment as to these claims based on certain limitations imposed by the New Jersey Tort Claims Act (“NJTCA”), N.J.S.A. 59:1-1 et seq. None of the parties disputes that the strictures of the NJTCA apply to plaintiffs’ state constitutional and common law claims against the public entity and public employee defendants, i.e. all defendants except NJB. Defendants argue that plaintiffs’ claims for emotional distress, emotional anguish, and pain and suffering should be dismissed under N.J.S.A. 59:9 — 2(d), a section of the NJTCA limiting the types of judgments which can be recovered from public entities and public employees for claims covered by the Act. Under the NJTCA, damages may be recovered from a public entity or employee for pain and suffering only under certain circumstances. N.J.S.A. 59:9-2(d) provides: No damages shall be awarded against a public entity or public employee for pain and suffering resulting from any injury; provided, however, that this limitation on the recovery of damages for pain and suffering shall not apply in cases of permanent loss of a bodily function, permanent disfigurement or dismemberment where the medical treatment expenses are in excess of $1,000.00. For purposes of this section medical treatment expenses are defined as the reasonable value of services rendered for necessary surgical, medical and dental treatment of the claimant for such injury, sickness or disease, including prosthetic devices and ambulance, hospital or professional nursing service. New Jersey courts have characterized the subjective symptoms accompanying emotional distress as within the definition of pain and suffering. See Ayers v. Jackson, 106 N.J. 557, 576-77, 525 A.2d 287 (1987). In order to recover for pain and suffering, a plaintiff must show both a permanent loss of a bodily function or permanent disfigurement or dismemberment and medical treatment expenses of more than $1,000. There is no dispute that plaintiffs have failed to meet both of these requirements. Recognizing this failure, plaintiffs do not oppose defendants’ motion for summary judgment as to emotional distress, emotional anguish, and pain and suffering under state and common law. See Pl.Opp.Br. at 34. Lest there be any confusion concerning the effect of this concession (and, even without concession, the undeniable failure to comply with N.J.S.A. 59:9-2(d)), the court will take this opportunity to state what should be obvious. The Fifth and Sixth Counts of the third amended complaint allege that as a result of defendants’ violations of plaintiffs’ right of privacy under the New Jersey Constitution and defendants’ “intrusion upon seclusion”, plaintiffs suffered and continue to suffer humiliation, mental pain and anguish. Inasmuch as all these “injuries” fall within the purview of pain and suffering, the failure to comply with N.J.S.A. 59:9 — 2(d) mandates dismissal of the Fifth and Sixth Counts of the third amended complaint in their entirety as against the public defendants. See Mercado v. State, 212 N.J.Super. 487, 494, 515 A.2d 804 (Law Div.1985) (where plaintiff alleged injuries of severe emotional distress, distress, anxiety, and embarrassment and failed to comply with N.J.S.A. 59:9-2(d), the court found “no basis for recovery for these alleged injuries under the Tort Claims Act.”). D. Interception of Plaintiff Schreck’s Conversations Defendant Galassi, joined by defendants O’Brien, Zirpolo, and NJB, moves for summary judgment on plaintiff Schreek’s claims arising from the recording of conversations of Schreck which took place on December 20 and 21, 1987 in the communiea-' tions room. There is no doubt that Schreck’s conversations were recorded. Rather, defendants move for summary judgment because, they contend, there is no evidence to show that defendants were in any way responsible for the recording of these conversations or that the recording was intentional or willful, a prerequisite for liability under § 1983 and the federal and state wiretap statutes. Schreck claims that the conversations were intercepted by a speaker in the communications room which, because of the way in which it was wired, acted as a microphone enabling recordation on the Dictaphone recorder in the basement of police headquarters. In support of this theory, plaintiffs rely on the expert report of Kevin D. Murray. Murray’s report concludes in relevant part: Further tests revealed that the [radio] room audio was being picked up by the radio’s loudspeaker, which is located within three feet of where the central dispatcher sits. When the radio was not actively receiving communications (a majority of the time) the sound within the dispatcher’s room was being picked up by the speaker, and carried to the tape recorder via the connecting cable. Note: The average loudspeaker will act as a dynamic microphone when it is not in use as a speaker. This is a commonly known fact among electronic technicians. Murray Report, Final Pretrial Order, Exh. A, at 4. Murray testified at his deposition that while the speaker in the radio room was an ordinary part of the radio transceiver, one of the channels was hooked up in an unusual way which allowed the ambient noise in the radio room to be recorded on the Dictaphone recorder in the basement. Murray Dep., Final Pretrial Order, Exh. C, at 42, 44. Galassi points out that at his deposition, Murray did not know when the system or the speaker had been installed, who had wired the system in this way, or if it had been changed at any time. Murray Dep. at 43-44. Moreover, Galassi argues that because Schreck’s conversations which were recorded in this way occurred in December, 1987, approximately four years after Galassi stepped down as Director, no reasonable inference can be drawn that he had any connection to these recordings. Plaintiffs rejoinder cites a portion of the State Police report indicating that the communications system was renovated in late 1982 or early 1983, at which time Galassi was serving as Director. The report states that the renovation included replacing old equipment and modernizing the communications room. Certification of Francis A. Polito, dated October 29,1990, Exh. C, at 00043. Murray also testified that in the 15 or 20 times in the past that he has seen speakers hooked up to act as microphones to pick up ambient sound, the hookup has never been by simple mistake. Murray Dep. at 63. Defendants Galassi, O’Brien, Zirpolo, and NJB contend that the foregoing evidence is insufficient for a jury to reasonably infer that the recording of Schreck’s conversations in the radio room was attributable to them. While the evidence is admittedly weak, the court cannot say that, viewing all reasonable inferences in favor of plaintiffs, there is no genuine issue of material fact with respect to the recording of Schreck’s conversations in the radio room. Accordingly, summary judgment will be denied as to these claims. E. The Claims of Plaintiff PBA Local No. 38 In its previous opinion, the court expressly declined to address the ability of PBA Local No. 38 to sue on behalf of its members. PBA Local No. 38, 134 F.R.D. at 101. Defendant Galassi, joined by defendant Zirpolo, now moves to dismiss the claims of plaintiff PBA Local No. 38 for lack of standing or, in the alternative, for summary judgment based on a lack of evidence to support the claims. Discovery having closed, plaintiff PBA’s claim is essentially this: Galassi and the other defendants had the capability of intercepting conversations that took place at police headquarters for several years and many conversations concerning PBA union matters, including discussions concerning contract negotiations and negotiation strategy, took place at police headquarters, including the locker room and the muster room. From this, plaintiffs extrapolate that the Township of Woodbridge gained an unfair advantage over the PBA in contract negotiations and other matters. Plaintiffs’ protestations notwithstanding, it is clear under the standards previously enunciated by the court that PBA does not have standing to pursue its claims. After the benefit of full discovery, PBA finds itself in a situation much like that of the former-plaintiff officers whose claims were dismissed in the court’s previous opinion. Thus, it asserts the existence of electronic surveillance capability generally and suspects that conversations related to PBA activity were intercepted. There is no evidence, however, which indicates that any conversations related to PBA activity were intercepted. Moreover, neither of PBA’s designated representatives produced for depositions could identify any specific injury to the PBA that might have come from allegedly intercepted conversations. Schreck Dep., Galassi Mov.Br., Exh. F, at 58-62, 67; Protz Dep., Galassi Mov.Br., Exh. G, at 43-44, 48, 50. As the court has already ruled, “Where there has been no interception, there can have been no injury.” PBA Local No. 38, 134 F.R.D. at 101. Therefore, the claims of plaintiff PBA Local No. 38 will be dismissed. It is worthwhile noting that even were the court to somehow find that the PBA had standing to bring these claims, the utter failure to produce any evidence of intercepted conversations relating to PBA activity or any evidence of injury to the PBA would require that defendants’ alternative motion for summary judgment on PBA’s claims be granted. In the face of defendants’ properly supported motion for summary judgment, plaintiffs have failed to go beyond the general and unsupported allegations of the third amended complaint. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Based on the evidence of record, no reasonable jury could find in favor of plaintiff PBA. Accordingly, even if PBA had standing to bring this action, summary judgment would be granted in favor of defendants on all of PBA’s claims. See id.; Matsushita Elec. Industrial Prods. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1355, 89 L.Ed.2d 538 (1986) (party resisting a properly supported motion for summary judgment must do “more than simply show that there is some metaphysical doubt as to the material facts.”). F. The Woodbridge Defendants’ Arguments 1. Claims under the Federal and State Wiretap Statutes The Woodbridge defendants contend that plaintiffs’ claims under the federal and state anti-wiretap statutes should be dismissed as to them because the township and the police department are not “persons” as defined under those acts. The New Jersey Wiretapping and Electronic Surveillance Control Act provides for a civil cause of action “against any person who intercepts, discloses, or uses or procures any other person to intercept, disclose or use” a wire or oral communication, as defined by the Act. N.J.S.A. 2A:156A-24 (emphasis added). The Federal Wiretap Act provides that any person whose wire, oral, or electronic communication is intercepted, disclosed, or used in violation of the Act “can recover from the person or entity which engaged in that violation such relief as may be appropriate.” 18 U.S.C. § 2520(a) (emphasis added). The Woodbridge defendants’ argument addresses the scope of coverage of the federal and state acts. The Federal Wiretap Act defines “person” as “any employee, or agent of the United States or any State or political subdivision thereof, and any individual, partnership, association, joint stock company, trust, or corporation. ...” 18 U.S.C. §2510(6). The definitional section of the statute, the statute’s legislative history, and the eases construing the meaning of “person” in this context make clear that while “person” includes government employees, it does not include governmental bodies themselves. See 18 U.S.C. § 2510(6); S.Rep. No. 1097, 90th Cong., 2d Sess. (1968), reprinted in 1968 U.S.C.C.A.N. 2112, 2179 (“The definition [of person] explicitly includes any officer or employee of the United States or any State or political subdivision of a State ... Only the governmental units themselves are excluded.”); Spock v. United States, 464 F.Supp. 510, 514 n. 4 (S.D.N.Y.1978) (“person” does not include the United States). Citing Spook, the Woodbridge defendants assert that they cannot be subject to liability under 18 U.S.C. § 2520. Defendants’ argument, however, fails to take into account the “or entity” language of § 2520(a). This language was added to the Act, effective in January, 1987, as part of the Electronic Communications Privacy Act of 1986, Pub.L. No. 99-508, 100 Stat. 1848 (1986). The amendment to § 2520(a) was recently construed in Bodunde v. Parizek, No. 93-C-1464, 1993 WL 189941, 1993 U.S.Dist. LEXIS 7365 (N.D.Ill. May 27, 1993) to specifically include governmental entities. Id. 1993 WL 189941 at *3, 1993 U.S.Dist. Lexis 7365 at *10-12. The Bodunde court reasoned that prior to the amendment of § 2520(a) in 1986, the definition of “person” in § 2510(6) already included business entities such as corporations and partnerships. Finding that both “person” and “entity” must be given effect in § 2520(a), the court held that “entity” referred to governmental entities. It found further support for this holding in the legislative history: [The Privacy Act of 1986] also added Chapter 121 of Title 18, 18 U.S.C. §§ 2701-10, which contains a provision for that chapter identical in relevant part to the language of § 2520(a). See 18 U.S.C. § 2707(a) (“Except as provided in § 2703(e), any provider of electronic communications service, subscriber, or customer aggrieved by any violation of this chapter in which the conduct constituting the violation is engaged in with a knowing or intentional state of mind may, in a civil action, recover from the person or entity which engaged in that violation such relief as may be appropriate.”). The Senate Committee Report summarized § 2707(a) as follows: Subsection (a) of this proposed section provides that, except as provided in section 2703(e), any provider of electronic communication service, subscriber, or customer of such service aggrieved by any violation of this new chapter may recover from any person or entity — including government entities —who knowingly or intentionally violated this chapter. S.Rep. No. 541, 99th Cong., 2d Sess. 43 (1986), reprinted in 1986 U.S.C.C.A.N. 3555, 3597 (emphasis added). Bodunde, supra, 1993 WL 189941 at *3-4, 1993 U.S.Dist. Lexis 7365 at *12. This reasoning is persuasive. Principles of statutory construction and the legislative history of the Electronic Communications Privacy Act of 1986 indicate that governmental entities such as the Woodbridge defendants can be subject to liability under § 2520(a). Therefore, the Woodbridge defendants’ motion to dismiss the Federal Wiretap Act claims will be denied. The definitional section of the New Jersey Wiretap Act states the following with respect to the word “person” as used in the Act: “ ‘Person’ means that term as defined in R.S. 1:1-2 and includes any officer or employee of the State or of a political subdivision thereof....” N.J.S.A. 2A:156A-2(e) (footnote omitted). As a footnote in the statute indicates, R.S. 1:1-2 is codified at N.J.S.A. 1:1-2, which states that “person” includes corporations, companies, associations, societies, firms, partnerships and joint stock companies as well as individuals, unless restricted by the context to an individual as distinguished from a corporate entity or specifically restricted to 1 or some of the above enumerated synonyms and, when used to designate the owner of property which may be the subject of an offense, includes this State, the United States, any other State of the United States as defined infra and any foreign country or government lawfully owning or possessing property within this State. The Woodbridge defendants argue that because N.J.S.A. 1:1-2 also has separate definitions for “municipalities” and “municipal corporations,” the term “person” should not be read to include municipalities. See Leonard v. State Highway Dep't 29 N.J.Super. 188, 196, 102 A.2d 97 (App.Div.1954) (holding that “person” as defined in N.J.S.A. 1:1-2 does not include the State based on the fact that (1) the definition of “person” indicates that such term includes the State when it is used “to designate the owner of property which may be the subject of an offense;” and (2) “State” and “municipality” are separately defined in N.J.S.A. 1:1-2). Plaintiffs counter by citing Hartman v. City of Brigantine, 42 N.J.Super. 247, 126 A.2d 224 (App.Div.1956), aff'd, 23 N.J. 530, 129 A.2d 876 (1957). The coui’t in Hartman construed New Jersey’s wrongful death law, which made reference to “persons” as potential tortfeasors, to include counties. Id. at 255. The court reasoned that because the definition of “person” in N.J.S.A. 1:1-2 includes corporations, and because counties are municipal corporations specifically declared in the Revised Statutes of 1937 (40:18-1) to be bodies corporate, there is no reason to interpret “person” to include private corporations but not public corporations. Id. In reaching this conclusion, the court also relied on the fact that prior to the revision of the general laws in 1937, which revision is presumptively treated as effecting no change in the substance of the laws, public corporations could be subjected to liability under the wrongful death law. Finding no intent to change the prior state of the law with respect to the liability of public corporations for wrongful death, the court concluded that “person” should be read to include municipal corporations. Id. This court finds these cases and the principles on which they are based inconclusive as they relate to the question sub judice. As the Hartman court noted, “[t]he legislative intention is sometimes gathered with greater acuity ‘from the spirit and policy of the statute rather than the literal sense of the particular terms.’ ” Hartman, 42 N.J.Super. at 255 (quoting Lloyd v. Vermeulen, 22 N.J. 200, 125 A.2d 393 (1956)). In determining what construction to give to the New Jersey Wiretap Act, the court must weigh the fact that the Act was closely modeled after and made to substantially parallel the Federal Wiretap Act. See State v. Minter, 116 N.J. 269, 275, 561 A.2d 570 (1989); State v. Sanchez, 149 N.J.Super. 381, 394, 373 A.2d 1028 (Law Div.1977). The New Jersey Wiretap Act’s legislative history evidences the legislature’s reliance on the Federal Wiretap Act. The sponsor’s statement in the report on Senate Bill 897 states, “This bill is designed to meet the federal requirements and to conform to the Federal Act in terminology, style and format which will have obvious advantages in its future application and construction.” Report on Senate Bill 897, Senate Committee on Law, Public Safety and Defense, October 29, 1968, at 21. As the discussion of the Federal Wiretap Act, supra, makes clear, the federal Act did not include governmental bodies when it was originally passed and it was not until the word “entity” was added to § 2520(a) as part of the Privacy Act that governmental entities could be held liable for violations of the Act. In light of the New Jersey legislature’s intent to adhere to the federal Act’s terminology, it must be assumed that the New Jersey Act was not intended to include governmental bodies when it was enacted. Moreover, unlike its federal counterpart, the New Jersey Act has not been amended in a way which could be viewed as subjecting municipalities to liability. Thus, this court construes the word “person” in N.J.S.A. 2A:156A-2(e) in accord with the definition of “person” in the Federal Wiretap Act, which definition does not include governmental bodies. Therefore, the Woodbridge defendants cannot be subjected to liability under the New Jersey Act and their motion to dismiss the Second Count will be granted. % § 1983 Claims With respect to plaintiffs’ claims under 42 U.S.C. § 1983, the Woodbridge defendants make three arguments. First, they argue that the federal and state wiretap statutes provide comprehensive remedies for claims arising out of alleged illegal surveillance and that, as a result, § 1983 liability should be deemed precluded. Second, they contend that the Woodbridge Police Department is not a “person” subject to liability under § 1983. Finally, they move for summary judgment as to the § 1983 claims on the ground there is no evidence to suggest that any alleged surveillance was undertaken pursuant to an official policy or custom. (a) Statutory Preclusion of § 1983 Remedies The court need not tarry long on the Woodbridge defendants’ claim that § 1983 liability should be precluded because the federal and state wiretap statutes provide comprehensive remedies for the alleged illegal surveillance. Plaintiffs’ § 1983 claims are based on alleged violations of rights secured by the First, Fourth, Ninth, and Fourteenth Amendments. Third Amended Complaint ¶265. In arguing that there should be no § 1983 cause of action to enforce these rights, defendants rely on Middlesex County Sewerage Authority v. National Sea Clammers Ass’n, 453 U.S. 1, 20, 101 S.Ct. 2615, 2626, 69 L.Ed.2d 435 (1981). The Court stated in Sea Clammers that there are “two exceptions to the application of § 1983 to statutory violations. In Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981), we remanded certain claims for a determination of (i) whether Congress had foreclosed private enforcement of that statute in the enactment itself, and (ii) whether the statute at issue there was the kind that created enforceable ‘rights’ under § 1983.” Sea Clammers, 453 U.S. at 19, 101 S.Ct. at 2626 (emphasis added). The fundamental flaw in defendants’ argument is that the doctrine enunciated in Pennhurst and Sea Clammers pertains only to claims brought under § 1983 to enforce rights created by congressional statutes. See Wilder v. Virginia Hospital Ass’n, 496 U.S. 498, 508, 110 S.Ct. 2510, 2516, 110 L.Ed.2d 455 (1990). Here, however, plaintiffs’ § 1983 claims relate to rights which exist under the Constitution itself. Defendants’ argument under Pennhurst and Sea Clammers, therefore, is simply inapt. (b) The Police Department is not a “Person” for Purposes of § 1983 Liability The Woodbridge defendants next contend that the Woodbridge Police Department is not a “person” under § 1983 and that, therefore, plaintiffs’ § 1983 claims must be dismissed as to it. Defendants are correct. The numerous courts that have considered the question of whether a municipal police department is a proper defendant in a § 1983 action have unanimously reached the conclusion that it is not. Martinez v. Winner, 771 F.2d 424, 444 (10th Cir.1985); Moran v. Illinois State Police, No. 93-C-1554, 1993 WL 210107, at 1-2, U.S.Dist. LEXIS 7950, at 7-8 (N.D.Ill. June 11, 1993); Creppel v. Miller, No. 92-2531, 1993 WL 21408, at 1, U.S.Dist. LEXIS 792, at 1 (E.D.La. January 22,1993); Timberlake v. Benton, 786 F.Supp. 676, 682 (M.D.Tenn.1992); Vanderlinde v. Brockman, No. 92-C-836, 1992 WL 26737, at *1, U.S.Dist. LEXIS 1315, at *2 (N.D.Ill. February 5, 1992); Stump v. Gates, 777 F.Supp. 808, 815 (D.Colo.1991), aff'd, 986 F.2d 1429 (10th Cir.1993); Eddy v. City of Miami, 715 F.Supp. 1553, 1556 (S.D.Fla.1989); Reese v. Chicago Police Dep’t, 602 F.Supp. 441, 443 (N.D.Ill.1984); Shelby v. City of Atlanta, 578 F.Supp. 1368, 1370 (N.D.Ga.1984). Accordingly, plaintiffs’ § 1983 claims will be dismissed as to the Woodbridge Police Department. (c) The Actions Alleged Were not Taken Pursuant to Municipal Policy, Custom, or Usage The final argument raised by the Woodbridge defendants with respect to plaintiffs’ § 1983 claims is the most substantial, i.e. there is no evidence which indicates that the alleged surveillance on the part of defendant Galassi or the other defendants was done pursuant to official policy, custom, or usage, a predicate to municipal liability under Monell v. Dep’t of Social Services, 436 U.S. 658, 691, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978). The Supreme Court in Monell rejected the theory of § 1983 municipal liability by virtue of the application of the doctrine of respondeat superior: We conclude, therefore, that a local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983. Id. at 694, 98 S.Ct. at 2037-38. Key to determining whether a municipality can be held liable under § 1983, then, is whether the injury complained of, here, invasion of privacy, resulted from “official policy” or “custom or usage.” The Court set out to clarify the meaning of “policy” in Pembaur v. City of Cincinnati, 475 U.S. 469, 480-81, 106 S.Ct. 1292, 1298-99, 89 L.Ed.2d 452 (1986). Recognizing that a single act of municipal policymakers can give rise to § 1983 liability, the Court held that decisions by officials with “final authority to establish municipal policy with respect to the action ordered” will be deemed policy. Id. at 481, 106 S.Ct. at 1299. Authority to make municipal policy may be granted by legislative enactment or delegated by those who possess such authority, and whether an official has policymaking authority is a question of state law. Id. at 483, 106 S.Ct. at 1300; City of St. Louis v. Praprotnik, 485 U.S. 112, 124, 108 S.Ct. 915, 924, 99 L.Ed.2d 107 (1988). Municipal custom, on the other hand, will arise where a course of conduct, though not formally approved through official channels, is so permanent and well settled as to virtually constitute law. Monell, 436 U.S. at 690-91, 98 S.Ct. at 2035-36 (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 167-68, 90 S.Ct. 1598, 1613, 26 L.Ed.2d 142 (1970)); Andrews v. City of Philadelphia, 895 F.2d 1469, 1481 (3d Cir.1990). Whether a plaintiff asserts municipal liability by way of policy or custom, “it is incumbent upon a plaintiff to show that a policymaker is responsible either for the policy or, through acquiescence, for the custom.” Andrews, 895 F.2d at 1480 (citing Jett v. Dallas Independent School District, 491 U.S. 701, 737, 109 S.Ct. 2702, 2723, 105 L.Ed.2d 598 (1989)). The existence of municipal policymaking authority is a legal question to be resolved by the court. Jett, 491 U.S. at 737, 109 S.Ct. at 2723; Praprotnik, 485 U.S. at 126, 108 S.Ct. at 925. Policymaking authority will be held to exist where there is “final, unreviewable discretion to make a decision or take an action.” Andrews, 895 F.2d at 1481; see also Praprotnik, 485 U.S. at 127, 108 S.Ct. at 926; Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d Cir.1990). Once the court has determined where policymaking authority lies, it is for the jury to decide whether the decisions of those with policymaking authority have caused the deprivation at issue. Jett, 491 U.S. at 737, 109 S.Ct. at 2723; Andrews, 895 F.2d at 1481. The Supreme Court in Jett made explicit the distinction between legal and factual questions: Reviewing the relevant legal materials, including state and local positive law, as well as “ ‘custom or usage’ having the force of law,” ... the trial judge must identify those officials or government bodies who speak with final policymaking authority for the local government actor concerning the action alleged to have caused the particular violation at issue. Once those officials who have the power to make official policy on a particular issue have been identified, it is for the jury to determine whether their decisions have caused the deprivation of rights at issue by policies which affirmatively command that it occur ... or by acquiescence in a longstanding practice or custom which constitutes the “standard operating procedure” of the local governmental entity. Jett, 491 U.S. at 737, 109 S.Ct. at 2723 (emphasis in original). Thus, the first question before the court is whether under state and local law defendant Galassi, who plaintiffs allege installed and used surveillance equipment, had policymaking authority with respect to such acts. If this inquiry yields an affirmative answer, the court must then determine if there is a genuine issue of material fact as to whether Galassi’s decision to “bug” the phone lines and various areas of the police station caused the deprivation of plaintiffs’ privacy rights by policy or custom. To determine if Galassi, as Director of Police, had policymaking authority to carry on the alleged surveillance of plaintiffs, the court must determine whether local law vests final, unreviewable discretion for this decision in the Director of Police. The parties do not dispute that Galassi was, to some extent at least, a policymaking official. The Woodbridge ordinance establishing the Department of Police and the position of Director of Public Safety specifically sets forth the duties of the Director: The Director of Public Safety shall be responsible for the promulgation of and/or amendments to the Rules and Regulations of the Department of Police, as provided in N.J.S.A. 40A:14-118; shall be the hearing officer for any and all disciplinary actions involving employees of the Department of Public Safety; exercise his or her authority through policy decisions and the formulation of fundamental principles to serve as guidelines to the Chief of Police with respect to the routine day-to-day operations of the Police Department; supervise the operations of Emergency Management; act as a liaison between the respective fire districts within the township; prepare and submit yearly budget requests, after consultation with the Chief of Police, to the Budget Director; report to the Mayor and the Municipal Council from time to time; promulgate Rules and Regulations for the Auxiliary Police; act as liaison with all First Aid Squads within the township; and ensure the proper operation of his department on a daily basis. Revised Ordinances of Woodbridge, Art. 11, § 2-86 (January 21, 1964) (originally Ordinance No. 90-25, Art. 10, § 10.3), Rudin September 25, 1992 Cert., Exh. A. There can be no doubt that the Director had policymaking authority in a number of areas. The Director’s duties clearly contemplate that he or she will make policy decisions and formulate fundamental principles to guide the Chief of Police in running the day-to-day operations of the department. Thus, with respect to the general operation of the department, the Director has final, unreviewable policymaking authority. The more specific question before the court, however, is whether the duties enumerated above clothed Director Galassi with the policymaking authority to, as alleged, electronically intercept conversations of police officers at police headquarters. In the absence of contrary authority, the answer would be a resounding yes. The Woodbridge defendants, however, argue that the Director did not enjoy final, unreviewable policymaking authority with respect to approving wiretaps. As support for this proposition, they cite General Order No. 39 of the Woodbridge Police Department. General Order No. 39, Certification of Philip J. DiNicola, dated January 29, 1993, Exh. A. General Order No. 39, directed to all personnel from the Office of the Chief of Police and dated October 13, 1975, addresses “Wire Tap Laws on Consensual Interceptions.” The order cites recent changes to the New Jersey Wiretapping and Electronic Surveillance and Control Act, specifically N.J.S.A. 2A:156A-4(b) and (c), which require that a county prosecutor authorize “most types of consensual interceptions.” The order then states that “As a general rule, whenever a law enforcement officer enlists the aid of a third party, be that third party a civilian or a fellow law enforcement officer, to intercept any criminal conversation, the approval of the County Prosecutor is necessary.” The order then sets forth a procedure to be followed by members of the department before intercepting wire or oral communications: the member desiring to intercept a telephonic or oral communication would first make a request in writing to the Commanding Officer of the Criminal Investigation Section; the Commanding Officer would then request a conference with the Chief or Director, or his or her representative; if it was determined that all the requirements of the New Jersey statute were satisfied, the Director or Chief, or his or her designee, would call the county prosecutor and request an appointment with the prosecutor or his or her representative. Although plaintiffs attempt to argue that the policy embodied in General Order No. 39 has been “abandoned” because there is evidence that the intermediate steps of submitting a written request to the Commanding Officer of the Criminal Investigation Section and conferencing with the Director and Chief were not followed in practice, see DiNicola Dep., Galassi Suppl.Br., Exh. A, at 28-29; O’Brien Dep., Galassi Suppl.Br., Exh. D, at 6-7, there has been no suggestion that the ultimate step, and the main thrust of General Order No. 39, i.e. that approval be obtained from the county prosecutor, was not followed. General Order No. 39, therefore, cannot be said to have been “abandoned”. Based on General Order No. 39, the Woodbridge defendants contend that the Director did not have policymaking authority with respect to conducting wiretap surveillance, arguing that the authority for wiretapping rested instead with the county prosecutor. While appealing at first blush, this argument is flawed. General Order No. 39 was clearly intended to cover situations in which law enforcement officers sought to use wiretaps in the course of criminal investigations. The order requires county prosecutor approval prior to the interception of any “criminal conversation.” The involvement of the Commanding Officer of the Criminal Investigation Section, and even of the county prosecutor, lends support to this view. Moreover, the section of the New Jersey statute with which General Order No. 39 strives to comply, N.J.S.A. 2A:156A-4(b) and (e), requires the county prosecutor to make a determination that there is a reasonable suspicion that evidence of criminal conduct will be gained from the interception. A sensible reading of General Order No. 39 is that its procedures are limited to wiretaps in criminal investigations. There is no suggestion in this record that the surveillance alleged here was to detect or investigate criminal activity on the part of Woodbridge police officers. The Woodbridge ordinance outlining the Director’s authority to set policy with respect to the operations of the Woodbridge Police Department must govern the use of wiretaps for purposes other than criminal investigations. For instance, if the department wished to monitor the telephone conversations of the person assigned to its public switchboard to ensure competent and courteous assistance, the decision to do so would be an operational policy decision properly attributable to the Director. It would be nonsensical for anyone at the department to seek a determination from the county prosecutor as to whether such an interception would be likely to uncover evidence of criminal wrongdoing. Moreover, it would be anomalous to suggest that the policymaker for the municipal police department is a county official. Municipal liability exists only where an unlawful action is taken by a municipal policymaker. Pembaur, 475 U.S. at 483, 106 S.Ct. at 1300. The Court’s opinions in Pembaur, Praprotnik, and Jett recognize that a determination as to which official or officials have policymaking authority is crucial to resolving the question of municipal liability. To claim, as the Woodbridge defendants’ claim, that the county prosecutor sets municipal policy for the Township of Woodbridge gives the lie to Justice O’Connor’s statement that “we can be confident that state law (which may include valid local ordinances and regulations) will always direct a court to some official or body that has the responsibility for making law or setting policy in any given area of a local government’s business.” Praprotnik, 485 U.S. at 125, 108 S.Ct. at 925. This court concludes, based on the applicable state law, that the Director of Police, with final, unreviewable authority to set policy governing the operations of the Woodbridge Police Department, is a “policy-making official” for purposes of the challenged actions. Having identified the Director as the relevant policymaking official, the court finds that there is a factual issue as to whether Galassi’s decisions or actions “caused the deprivation of rights at issue by policies which affirmatively command that it occur ... or by acquiescence in a longstanding practice or custom which constitutes ‘standard operating procedure’ of the local governmental entity.” Jett, 491 U.S. at 737, 109 S.Ct. at 2723. Accordingly, the Wood-bridge defendants’ motion for summary judgment with respect to plaintiffs’ § 1983 claims will be denied. 3. Crossclaims for Indemnification The Woodbridge defendants assert that they are entitled to judgment as a matter of law on the erossclaims of their codefendants. They argue that the nature of the claims against all defendants requires a finding that, as a matter of law, the actions taken were not within the scope of their employment and that, under the authority of Cosgrove v. Laurrence, 214 N.J.Super. 670, 679, 520 A.2d 844 (Law Div.1986), these claims must be dismissed. The court disagrees. While the crossclaims may ultimately prove unavailing as a matter of law, that determination depends on the nature and extent of defendants’ conduct, a factual question which must await trial. A municipality cannot indemnify an employee for his or her acts where those acts were outside the scope of his or her employment or were criminal, fraudulent, malicious, or willful misconduct. N.J.S.A. 59:3-14; Palmentieri v. Atlantic City, 231 N.J.Super. 422, 431, 555 A.2d 752 (Law Div.1988) (construing sections of the New Jersey Tort Claims Act, N.J.S.A. 59:10-4, 59:2-2, and 59:2-10 together). The determination as to whether an employee’s acts were outside the scope of employment was considered in some depth in Cosgrove. The court there noted that New Jersey has adopted the formulation of scope of employment set forth in the Restatement (Second) of Agency. Cosgrove, 214 N.J.Super. at 674, 520 A.2d 844 (citing Commercial Union Ins. Co. v. Burt Thomas-Aitken Constr. Co., 49 N.J. 389, 392 n. 1, 230 A.2d 498 (1967)). Relevant to this inquiry is whether the act is of the kind that an employee is employed to perform; whether it occurs within the authorized time and space limits; and whether it is actuated at least in part in an effort to serve the employer. Cosgrove, 214 N.J.Super. at 674, 520 A.2d 844 (quoting the Restatement); see also DiCosala v. Kay, 91 N.J. 159, 169, 450 A.2d 508 (1982). In determining that the scope of employment was a question for the jury, the court in Marley v. Palmyra Borough, 193 N.J.Super. 271, 295-96, 473 A.2d 554 (Law Div.1983), relied on Professor Prosser’s statement that scope of employment refers to “those acts wh