Francisco Nunez v. Martin R. Pachman

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-3314
FRANCISCO NUNEZ,
Appellant
v.
MARTIN R. PACHMAN;
THE CITY OF UNION CITY;
MAYOR BRIAN P. STACK,
individually and in his official capacity;
JOHN DOE (1-12),
being fictitious person male or female
Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 06-cv-05519)
District Judge: Honorable Faith S. Hochberg
Submitted Under Third Circuit LAR 34.1(a)
July 13, 2009
Before: RENDELL, FUENTES and ROTH, Circuit Judges.

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2
(Filed: August 26, 2009)
Tomas Espinosa, Esq.
Apartment 1
4005 Bergenline Avenue
Union City, NJ 07087
Counsel for Plaintiff - Appellant
Juan C. Fernandez, Esq.
O'Toole Fernandez Weiner Van Lieu
60 Pompton Avenue
Verone, NJ 07044
Counsel for Defendants - Appellees
City of Union and Brian P. Stack
Robert M. Schwartz, Esq.
12 Centre Drive
Monroe Township, NJ 08831
Counsel for Defendant- Appellee
Martin R. Pachman
OPINION OF THE COURT
RENDELL, Circuit Judge.
This appeal from the District Court’s grant of summary
judgment in favor of defendants, and against plaintiff Francisco

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Nunez, requires us to decide whether disclosure of an expunged
criminal record violates the right of privacy afforded by the Due
Process Clause of the U.S. Constitution. Relying on a footnote
in our opinion in Fraternal Order of Police, Lodge No. 5 v. City
of Philadelphia, 812 F.2d 105, 117 n.8 (3d Cir. 1987), the
District Court concluded that no cognizable privacy interest lies
in an expunged criminal record, which may linger in police
blotters, court dockets, and other publicly available records. On
appeal, Nunez urges that New Jersey law mandates removal of
an expunged record from all public documents and thus creates
a reasonable expectation of privacy in this information. We
conclude, however, that because expungement is available only
after a minimum statutory period of ten years has elapsed, and
because references to a defendant’s criminal conduct may persist
in public news sources after expungement, the information
expunged is never truly “private.” Even if the state recognizes
a privacy interest in an expunged criminal record, we hold that
such an interest is not cognizable under the federal constitution.
Accordingly, we will affirm the District Court’s grant of
summary judgment.
Nunez’s core contention is that defendants accessed and
disclosed his criminal records, in violation of an expungement
order and N.J.S.A. 2C:51-2(a), which restricts access to, and
disclosure of, expunged materials. In 2005, Nunez, an
employee of the City of Union City (“City”), filed a grievance
against the City, alleging improper denial of a vacation request.
Representing the City in arbitration proceedings related to the
grievance, Defendant Martin R. Pachman learned in the course
of interviews with City employees that Nunez had pled guilty to
a gun offense several years earlier. Because a weapons

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It appears that Pachman received confirmation of this1
information from the police department but did not actually seek
the records from the department or from any other city agency
or office.
The District Court properly exercised jurisdiction over2
Nunez’s § 1983 claim under 28 U.S.C. § 1331, and over his
state law claims under 28 U.S.C. § 1367(a). Our jurisdiction is
proper under 28 U.S.C. § 1291.
4
conviction would likely preclude Nunez from prosecuting his
grievance complaint, Pachman sought to verify the information
by obtaining Nunez’s criminal records from the City police
department. At the ensuing arbitration proceeding, Pachman1
also “disclosed” the records by cross-examining Nunez about
the weapons conviction to impeach his credibility.
Nunez subsequently filed suit under 42 U.S.C. § 1983
against Pachman, the City, and the Mayor, who he alleges was
essentially targeting him because Nunez did not support him
politically. Nunez contends that the disclosure of his weapons
conviction, in violation of the prior expungement order, violated
his right of privacy under the United States and New Jersey
Constitutions. Rejecting Nunez’s claim, the District Court
concluded that “an arrest record, even one that is expunged,
warrants no privacy protection under the Constitution.” A. 12.2
After granting judgment in favor of defendants on Nunez’s

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Nunez also maintains that his claim under the First3
Amendment of the U.S. Constitution was improperly dismissed
by the District Court under Fed. R. Civ. P. 12(b)(6). Because
Nunez’s amended complaint does not mention, much less plead
facts supporting, a First Amendment violation, dismissal of this
claim was proper.
5
privacy claim – the sole federal law violation alleged – the3
Court dismissed Nunez’s remaining claims, all of which arose
under New Jersey state law, for lack of subject matter
jurisdiction under 28 U.S.C. § 1367(c)(3). Our review of the
District Court’s grant of summary judgment is plenary. AT&T
Corp. v. JMC Telecom, LLC, 470 F.3d 525, 530 (3d Cir. 2006),
cert. denied, 551 U.S. 1103 (2007). Summary judgment is
appropriate only if there are no genuine issues of material fact,
and the movant is entitled to judgment as a matter of law. Id.
Initially, Nunez contends that disclosure of his weapons
conviction violated his right of privacy under the Due Process
Clause of the Fourteenth Amendment. Relying on our decision
in Fraternal Order of Police, the District Court rejected any
privacy interest in an expunged criminal record. In Fraternal
Order of Police, we concluded in a footnote that the possibility
of expungement of arrest records did not provide these records
with privacy protection: “The ACLU suggests that arrest records
are entitled to privacy protection because the record of an arrest
may be expunged if there has been no disposition. . . . However,
these [expungement] provisions cannot be viewed as removing
arrest information from the public record since it remains on
police blotters and court dockets.” 812 F.2d at 117 n.8

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The New Jersey expungement statute provides in4
pertinent part:
a. Except as otherwise provided in this chapter,
expungement shall mean the extraction and
isolation of all records on file within any court,
detention or correctional facility, law enforcement
or criminal justice agency concerning a person's
detection, apprehension, arrest, detention, trial or
disposition of an offense within the criminal
justice system.
b. Expunged records shall include complaints, warrants,
arrests, commitments, processing records, fingerprints,
photographs, index cards, “rap sheets” and judicial
docket records.
N.J.S.A. 2C:52-1.
The Pennsylvania expungement statute, by contrast,
expressly retains references to a defendant’s criminal record in
police blotters, court dockets, and certain other public
documents. The statute provides that, “Public records listed in
section 9104(a) (relating to scope) shall not be expunged.” 18
6
(emphasis added). On appeal, Nunez attempts to distinguish the
Pennsylvania expungement statute analyzed in Fraternal Order
of Police from its New Jersey counterpart, which mandates
expungement of a criminal record from all public documents,
including police blotters and court dockets. Compare N.J.S.A.
2C:52-1 with 18 Pa. C.S. §§ 9122(e) and 9104(a). Accordingly,4

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Pa. C.S.A. § 9122(e). Section 9104(a) exempts the following
public records from expungement:
(a) General rule.--[N]othing in this chapter shall
be construed to apply to:
(1) Original records of entry compiled
chronologically, including, but not limited to,
police blotters and press releases that contain
criminal history record information and are
disseminated contemporaneous with the incident.
(2) Any documents, records or indices prepared or
maintained by or filed in any court of this
Commonwealth, including but not limited to the
minor judiciary.
(3) Posters, announcements, or lists for
identifying or apprehending fugitives or wanted
persons.
(4) Announcements of executive clemency.
18 Pa. C.S. §§ 9104(a).
7
Nunez maintains that the District Court’s reliance on Fraternal
Order of Police is misplaced.
Notwithstanding distinctions between the New Jersey and
Pennsylvania statutes identified by Nunez, we reject his

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As the Eighth Circuit reasoned in Eagle v. Morgan,5
Just as the judiciary cannot “suppress, edit, or
censor events which transpire in proceedings
before it,” neither does the legislature possess the
Orwellian power to permanently erase from the
public record those affairs that take place in open
court. . . . [N]o governmental body holds the
power to nullify the historical fact that in 1987
Eagle pleaded guilty to a felony. Thus,
notwithstanding the subsequent expungement
order, the officers’ divulgence of this public
information does not implicate the constitutional
right to privacy.
88 F.3d 620, 626-27 (8th Cir. 1996) (internal citation omitted);
see also Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 494-95
(1975) (“[T]he interests in privacy fade when the information
involved already appears on the public record.”); Does v.
Munoz, 507 F.3d 961, 965 (6th Cir. 2007) (“Where the
information disclosed is already public, there is no valid
expectation of privacy because privacy interests diminish when
the material involved is publicly available.”) (internal citation
omitted); Sheetz v. The Morning Call, Inc., 946 F.2d 202, 207
(3d Cir. 1991).
8
constitutional theory on two grounds. First, prior to
expungement, a criminal record is publicly available for a
minimum period of ten years under New Jersey law. N.J.S.A.
2C:52-2(a). News accounts of a defendant’s criminal acts,5

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See Nilson v. Layton City, 45 F.3d 369, 372 (10th Cir.6
1995) (“An expungement order does not privatize criminal
activity. While it removes a particular arrest and/or conviction
from an individual’s criminal record, the underlying object of
expungement remains public. . . . An expunged arrest and/or
conviction is never truly removed from the public record and
thus is not entitled to privacy protection.”).
The Supreme Court has recognized that notions of7
substantive due process contained within the Fourteenth
Amendment safeguard individuals from unwarranted
governmental intrusions into their personal lives. Eagle, 88 F.3d
at 625; see Whalen v. Roe, 429 U.S. 589, 598 n.23 (1977). This
right to privacy actually encompasses two distinct interests.
Whalen, 429 U.S. at 598-99. “One is the individual interest in
avoiding disclosure of personal matters, and another is the
interest in independence in making certain kinds of important
decisions.” Id. at 599-600 (footnote omitted). Solely the former
concern – the right to confidentiality – is at issue here.
9
moreover, may persist after obliteration of formal records.6
Accordingly, this information is never truly private.
Second, even if we accept Nunez’s assertions that the
expungement statute accomplishes a complete removal of a
criminal record from the public domain, and that New Jersey
law thus creates a reasonable expectation of privacy in this
information, Nunez fails to state a claim under the federal
constitution, which protects against public disclosure only7
“highly personal matters” representing “the most intimate

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See, e.g., Nilson, 45 F.3d at 372 (“Expectations of8
privacy are legitimate if the information which the state
possesses is highly personal or intimate.”); Alexander v. Peffer,
993 F.2d 1348, 1350 (8th Cir. 1993) (“[T]o violate [a person’s]
constitutional right of privacy the information disclosed must be
either a shocking degradation or an egregious humiliation of her
to further some specific state interest, or a flagrant breech [sic]
of a pledge of confidentiality which was instrumental in
obtaining the personal information.”) (emphasis added); York v.
Story, 324 F.2d 450, 455 (9th Cir. 1963) (“We cannot conceive
of a more basic subject of privacy than the naked body.”).
See also Paul v. Davis, 424 U.S. 693, 713 (1976)9
(noting that “the personal rights found in [the] guarantee of
personal privacy must be limited to those which are
‘fundamental’ or ‘implicit in the concept of ordered liberty’”)
(internal citation omitted).
10
aspects of human affairs.” Eagle, 88 F.3d at 625 (quoting Wade
v. Goodwin, 843 F.2d 1150, 1153 (8th Cir. 1988)). Indeed, the8
constitutional right of privacy, which courts have been
“reluctant to expand,” id., shields from public scrutiny only that
information which involves “deeply rooted notions of
fundamental personal interests derived from the Constitution.”
Mangels v. Pena, 789 F.2d 836, 839 (10th Cir. 1986) (citing
Regents of the Univ. of Mich. v. Ewing, 474 U.S. 214, 228-30
(1985) (Powell, J., concurring)). In this respect, the federal9
right of privacy is significantly narrower than the right of

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See Cooksey v. Boyer, 289 F.3d 513, 515-16 (8th Cir.10
2002) (noting that “[n]ot every disclosure of personal
information will implicate the constitutional right to privacy”);
Eagle, 88 F.3d at 627 (“We must constantly remain aware,
however, that the Constitution does not provide a remedy for
every wrong that occurs in society.”); McNally v. Pulitzer Pub.
Co., 532 F.2d 69, 76 (1976) (“The constitutional right of privacy
is not to be equated with the common law right recognized by
state tort law. Thus far only the most intimate phases of
personal life have been held to be constitutionally protected.”).
See, e.g., Paul P. v. Verniero, 170 F.3d 396, 403-40411
(3d Cir. 1999) (“[W]e cannot simply disregard the language of
the Supreme Court rejecting any privacy interest in information,
such as arrests, which is the subject of official records.”);
Sheetz, 946 F.2d at 206 (noting that police reports are public
documents and thus not entitled to constitutional protection);
Fraternal Order of Police, 812 F.2d at 117 & n.8 (noting that
arrest records are public and thus not entitled to privacy
protection); Trade Waste Mgmt. Ass’n, Inc. v. Hughey, 780 F.2d
221, 234 (3d Cir. 1985) (holding that records of criminal
convictions and pending criminal charges “are by definition
11
privacy protected by state tort law.10
Here, Nunez does not dispute the established precept that
criminal records, including police reports, indictments, guilty
verdicts, and guilty pleas, are inherently public–not
private–documents and are thus beyond the purview of the Due
Process Clause. Nor does Nunez maintain that an “expunged”11

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public” and therefore not protected).
Under N.J.S.A. 2C:52-2(a), a defendant who commits12
no more than two disorderly or petty offenses may also obtain
expungement of his criminal record in certain circumstances.
See Mangels, 789 F.2d at 839. In Paul v. Davis, the13
Supreme Court stated,
He [plaintiff] claims constitutional protection
against the disclosure of the fact of his arrest on a
shoplifting charge. His claim is based, not upon
any challenge to the State’s ability to restrict his
freedom of action in a sphere contended to be
“private” but instead on a claim that the State may
not publicize a record of an official act such as an
arrest. None of our substantive privacy decisions
hold this or anything like this, and we decline to
enlarge them in this manner.
424 U.S. at 713.
12
record possesses inherent attributes warranting special
constitutional treatment. There is no argument, for example,
that because expungement is available solely to first-time
offenders, an expunged record is somehow of lesser public12
consequence, or implicates more sensitive subject matter, than
a criminal record ineligible for expungement. A right of privacy
in the former is not supported by, much less “deeply rooted” in,
the customs and traditions of this nation. To the contrary, the13

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13
historic right of public access to criminal records applies in
equal measure to the first-time offender and the career criminal.
See also Nilson, 45 F.3d at 372 (“[A] validly enacted law places
citizens on notice that violations thereof do not fall within the
realm of privacy. Criminal activity is thus not protected by the
right to privacy.”) (internal citation omitted). In short, no
attributes inhere in an expunged record entitling it to special
constitutional protection.
Nunez, nonetheless, insists that the New Jersey
expungement statute “hardens the right to privacy into a
constitutional right.” Appellant’s Br. at 2. New Jersey law,
however, is not determinative of the scope of the constitutional
right of privacy. A decision of the Tenth Circuit Court of
Appeals, rejecting an identical argument, is persuasive:
Mr. Nilson argues that the Utah expungement
statute created the legitimate expectation of
privacy, and that Sergeant Brimhall’s violation of
the statute consequently implicated his privacy
rights. We disagree. Substantive due process
rights are founded not upon state law but upon
“deeply rooted notions of fundamental personal
interests derived from the Constitution.” While
state statutes and regulations may inform our
judgement regarding the scope of constitutional
rights, they “fall far short of the kind of proof
necessary” to establish a reasonable expectation
of privacy. Mere allegations that an official failed
to abide by state law will not suffice to state a
constitutional claim. The disclosed information

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See Stidham v. Peace Officer Standards and Training,14
265 F.3d 1144, 1155 (10th Cir. 2001); Sheetz, 946 F.2d at 206-
207 (“[T]he question of whether a federal constitutional right to
privacy has been violated is a distinct question from whether a
. . . state common law right to privacy has been violated. . . .
[C]ase law cited by the parties as to Pennsylvania confidentiality
law cannot control the federal constitutional right.”) (internal
citation omitted); Eagle, 88 F.3d at 626 (“We observe initially
that state laws, such as Arkansas’ expungement provisions, do
not establish the parameters of constitutional rights, like the
right to privacy, that are grounded in substantive theories of due
process.”); see also Bagley v. Rogerson, 5 F.3d 325, 328-29 (8th
Cir. 1993) (“If we were to hold that the sort of state statute
involved here created a liberty interest for federal constitutional
purposes, we would be greatly expanding the doctrine of
substantive due process. We would be holding, in effect, every
state statute which imposes a mandatory duty, or creates a legal
right, is constitutional in nature, and the violation of every such
statute would be a violation of the Due Process Clause of the
Fourteenth Amendment. This is emphatically not the law.”); cf.
14
itself must warrant constitutional protection. We
have already concluded that Mr. Nilson's criminal
history, despite the expungement order, is not
protected by the constitutional right to privacy. It
is therefore irrelevant to our inquiry whether
Sergeant Brimhall violated the Utah expungement
statute.
Nilson, 45 F.3d at 372 (internal citations omitted).14

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Mangels, 789 F.2d at 839 (“Rights of substantive due process
are founded not upon state provisions but upon deeply rooted
notions of fundamental personal interests derived from the
Constitution.”).
Nunez’s alternative theory of liability – that15
defendants’ disclosure of his expunged criminal record to union
leaders and public officials violated his “constitutional right to
reputation” – is meritless, as the Due Process Clause does not
protect a defendant from reputational injury resulting from
dissemination of his criminal acts. Appellant’s Br. at 6; see
Nilson, 45 F.3d at 372 (finding no constitutional violation when
police department published details of expunged criminal record
of public school teacher); Mangels, 789 F.2d at 839 (finding no
constitutional violation when Denver Fire Department published
dismissal of two of its members for drug usage); Holman v.
Central Ark. Broadcasting Co., 610 F.2d 542, 544 (8th Cir.
1979) (finding no constitutional violation when state officials
“allow or facilitate publication of an official act such as an
arrest”); Baker v. Howard, 419 F.2d 376, 377 (9th Cir. 1969)
(finding no constitutional violation when police officers
circulate false rumors that person has committed a crime).
15
Accordingly, we reject Nunez’s contention that New Jersey law
itself creates a constitutional right of privacy in an expunged
criminal record.15
For the foregoing reasons, we will affirm the order of the
District Court.

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