SOUTHAMPTON – The legal saga of a man who claims a state trooper improperly searched his most private of areas for drugs has shifted to federal court — but he wants it to stay in state court.
AÂ lawsuit by 25-year-old Jack Levine of Toms River was removed to federal court July 25 at the request of the deputy attorneys general who are representing the state police. The same day, Levine’s attorney, Arthur Lang, asked that the case be returned to state court.
Levine is suing troopers Joseph Drew and Andrew Whitmore as well as the entire New Jersey State Police. His complaint alleges violations of his civil rights, a civil conspiracy, assault, battery, intentional infliction of emotional distress and violation of the state tort claims act. He is seeking a total of $900,000.
Civil cases go to federal courts only under certain circumstances — allegations of violations of the U.S. Constitution, for example. Lang wrote that his client “did not plead or cite any federal cause of action, any federal statute or any federal claim.”
So what’s the difference?
For one thing, federal juries must return unanimous verdicts, whereas state juries can return a verdict by a vote of five to 1, according to the state judiciary’s website.
Also, a state jury will comprise citizens of the county where a case is filed — Burlington, in this case. Federal jurors can come from anywhere in a specific judicial district.
Robert F. Williams, director of the Center for State Constitutional Studies at Rutgers University Camden, explained the history of opting for state or federal venues, which goes back to the first days of the United States.
“When the country was formed, there were concerns about the fairness of state courts, so if somebody from out of state was sued in the state, they provided for this mechanism called ‘removal,'” he told the Asbury Park Press in a phone interview.
There was another concern as well, he said — that “state judges would not be properly respectful of these new federal courts.”
Nowadays, attorneys might opt for one court or another based on several factors — the possible ethnic, economic and geographical makeups of different jury pools, how familiar judges are with their opponents, their own comfort levels in different courts and whether a case arises from a state-level or federal-level cause of action, Williams explained.
For example, a person suing a police agency may not want to go before a state judge, he said, because “these judges deal with police every day.” However, as Levine is suing state police and not a local agency, that familiarity may not be a factor in his case.
Civil cases also tend to take longer in federal court, which Williams said is appealing to defense attorneys.
The search
It all began on March 8, 2017, when Trooper Joseph Drew pulled Levine over in Southampton in Burlington County. Drew said he smelled marijuana in the car Levine was driving and handcuffed Levine and his passenger, Justin Phillips, according to Levine’s complaint. Whitmore arrived on the scene around that time.
Drew opened Levine’s pants and used his hand to search between Levine’s buttocks, then moved Levine’s genitals, then repeated both maneuvers, according to Levine’s complaint.
“This was conducted on the roadside in front of passing traffic,” according to the complaint. “Mr. Levine repeatedly screamed out for help saying, ‘He’s raping me.'”
Finding no drugs, Drew ticketed Levine for tailgating and sent him on his way, according to the complaint.The whole affair was caught on dashboard and body camera footage, which first came to light when open public records advocate John Paff obtained copies under the state’s Open Public Records Act (OPRA). You can watch that footage at the top of this article.
Levine’s complaint was originally filed in state court in Burlington County June 20.
Drew, Whitmore and the state police have yet to respond to the complaint.
Lang declined to comment for this article.
Leland Moore, a spokesman for the attorney general’s office, said “we do not comment on matters of pending litigation” when contacted by email.
You can read the complaint and Lang’s letter below. The notice of removal is appended to the complaint.