GLENN CHERRITS VS VILLAGE OF RIDGEWOOD & ET ALS

(NOTE: This decision was approved by the court for publication.)
This case can also be found at 311 N.J. Super. 517.

NOT FOR PUBLICATION WITHOUT THE
 
APPROVAL OF THE APPELLATE DIVISION
 

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-5078-96T3

GLENN CHERRITS,

Plaintiff-Appellant,

v.

VILLAGE OF RIDGEWOOD, a municipality
incorporated under the laws of New Jersey,

Defendant-Respondent,

and

LOUIS J. MADER, ROBERT PRESTON,
JAMES RICE, SCOTT STEPHEN, BUSH/QUALE
'92 GENERAL COMMITTEE,

Defendants.
_______________________________________________________

Argued April 7, 1998 - Decided May 29, 1998

Before Judges Keefe, P.G. Levy and Wecker.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County.

Donald Horowitz argued the cause for appellant (Mr. Horowitz, on the brief).

George W. Connell argued the cause for respondent (Connell, Foley & Geiser, attorneys; Mr. Connell, of counsel; Marc D. Haefner, on the brief).

The opinion of the court was delivered by

KEEFE, J.A.D.

Plaintiff, Glenn Cherrits, appeals from the entry of summary judgment in favor of defendant, Village of Ridgewood (Ridgewood), in this civil rights action brought by plaintiff pursuant to 42 U.S.C. 1983 and 1985(3). On appeal, the question is whether there is a genuine issue of fact as to Ridgewood's liability for the conduct of its Chief of Police, defendant Louis J. Mader (Chief Mader).
Plaintiff filed a complaint against Ridgewood, Chief Mader, Ridgewood Officers Robert Preston and James Rice, the Bush/Quale '92 General Committee, Inc. (Committee), and Bush/Quale '92 General Committee, Inc. member Scott Stephen (Stephen), in January 1995. In his eight count complaint, plaintiff alleges that the defendants deprived him of various constitutional rights in violation of 42 U.S.C. 1983 and 1985(3).See footnote 1
Defendant Ridgewood moved for summary judgment on both the 1983 and 1985 claims. Judge Doyne heard argument on September 15, 1995, and issued a bench decision on that day. As to the 1983 claim, Judge Doyne granted defendant Ridgewood's motion.
With regard to the application as it relates to the 1983 action, the motion is granted. The municipality cannot be held liable under section 1983 based upon a respondeat superior theory. The plaintiff must establish the governmental policy and its causality to the injury and the constitutional violation. Here, plaintiff has failed even to identify the government policy. If the policy is to fail to adequately train, which appears to this court to be an oxymoron, then plaintiff must then show deliberate indifference. . . . Plaintiff has failed to do so. Accordingly, as it pertains to . . . section 1983, defendant's application is granted.

With regard to the 1985(3) claim, Judge Doyne denied the motion. Recognizing that there were some factual issues that had to be developed on the conspiracy issue, the judge granted plaintiff's motion to compel discovery regarding the arrangement between Ridgewood and the Committee concerning security at the rally.
Thereafter, Ridgewood moved for reconsideration of the court's denial of its motion for summary judgment on the 1985 issue. The plaintiff cross-moved for reconsideration of the court's decision to dismiss the 1983 count against Ridgewood.
On February 28, 1996, Judge Doyne issued a written opinion in which he concluded that "plaintiff has presented no competent evidence of any kind that would allow a reasonable factfinder to conclude that the Village and the Committee conspired to injure him in the manner proscribed by 1985(3)." Accordingly, on the 1985(3) count, the judge granted summary judgment in favor of defendant Ridgewood. Plaintiff's motion for reconsideration of the September 15 decision was denied. This appeal followed.

I.
 
On October 22, 1992, the Committee scheduled a rally for then-incumbent President George Bush in support of his bid for re-election. The Committee leased Veteran's Field in Ridgewood for the event, and President Bush was scheduled to speak at the rally.
On the morning of the event, Chief Mader met with Committee chairman William Palatucci to discuss the police officers' role

in security for the event. At that time, the two discussed the procedure by which criminal complaints would be filed should the need arise. Palatucci informed Chief Mader that only those members of the Committee who possessed a copy of the lease between Ridgewood and the Committee would have authority sign a criminal complaint.
Plaintiff, who was a registered Democrat and supporter of the challenger, now-President William Clinton, decided to attend. He, along with a friend, went to Veteran's Field before the expected start time of 3:00 p.m. and acquired tickets to attend the rally.
Plaintiff joined a group of approximately 10-15 people who were also Clinton supporters. According to the plaintiff, the members of the group were holding signs and chanting in support of Clinton. Plaintiff held a sign of his own and chanted along with the others.
According to the plaintiff, at some point while the group was standing at the entrance to the field, Chief Mader, along with a Committee member, defendant Stephen, approached the group and had a discussion with other members of the group and then left. Plaintiff testified that he did not overhear what was discussed.
Stephen subsequently approached the group on a few occasions, saying something to the effect, "If you don't move, you're going to be arrested." Although not aware who Stephen was at the time, plaintiff assumed that Stephen was a staff person

because he was wearing buttons to that effect. On one occasion that Stephen addressed the group, plaintiff told Stephen that they were doing nothing wrong, and that "he would probably be advised not to continue trying to get (them) to move." A short time later the group was again approached by Chief Mader and Stephen, and Chief Mader requested that the group move to another location. The group moved without objection.
At their new location, the group continued to wave their signs and chant. Soon thereafter, the group was once again approached by Chief Mader and Stephen. Plaintiff was informed by other witnesses that there was discussion between Chief Mader and Stephen about the lease. When asked if he had any discussion with Stephen or Chief Mader at this time, plaintiff responded: "There may have been a discussion [but] I can't recall the substance of it." In any event, plaintiff overheard Stephen ask Chief Mader to arrest plaintiff, and Chief Mader directed two officers to do so. Plaintiff was arrested but not handcuffed. He was detained for approximately an hour and then released.See footnote 2 The trespassing complaint against plaintiff was later voluntarily dismissed by Stephen.

II.
 
PLAINTIFF'S 1983 CLAIM
 
We will assume for the purpose of discussion that plaintiff's arrest was without probable cause because he was not

committing a disorderly persons offense in the presence of the arresting officers; that his invalid arrest resulted in an unconstitutional infringement on his freedom of political speech and assembly; and that his incarceration was an unwarranted and unconstitutional infringement of his liberty interests.
Section 1983 provides, in relevant part, that,
Every person who, under color of any statute, ordinance, regulation, custom or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and the laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .

[42 U.S.C 1983.]
Prior to 1978, municipalities did not fall within the definition of a "person" for purposes of 1983. See Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961). That, however, changed in 1978 with the seminal United States Supreme Court decision in Monell v. Department of Soc. Serv. of the City of New York, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978).
In overruling Monroe, and dismissing the holding in that case as a "departure from prior practice," the Court held that Congress intended for "municipalities and other governmental units to be included among those persons to whom 1983 applies." Id. at 690, 98 S. Ct. at 2035, 56 L. Ed. 2d at 635. In recognizing municipal liability under the statute, however, the Court prohibited the imposition of liability on the theory of

respondeat superior. Id. at 694-95, 98 S. Ct. at 2037-38, 56 L. Ed. 2d at 637-38. Rather, the Court held that liability may only attach to a governmental entity where the plaintiff proves that some governmental policy or custom caused their injury. It is only where the execution of the governmental policy or custom is the "moving force of the constitutional violation" where the public entity may be liable under 1983. Id. at 694-95, 98 S. Ct. at 2038, 56 L. Ed. 2d at 638.
Following Monell, it was clearly understood that formal, adopted legislative policy of a local government could potentially expose the governing body to liability under 1983. However, because the Court never reached the issue of what other informal, unadopted acts of government officials may constitute "municipal policy," see id. at 695, 98 S. Ct. at 2038, 56 L. Ed. 2d at 638, lower courts struggled with the task of determining when a de facto "policy" or "custom" existed, and "whose edicts or acts may fairly be said to represent official policy." See Colleen R. Courtade,

Footnote: 1All defendants, except Ridgewood, settled with plaintiff and do not participate in this appeal. Accordingly, we focus only on the issues regarding Ridgewood. Footnote: 2It is alleged by the plaintiff that the time in which he was kept in custody coincides with the time that President Bush addressed the crowd. - -