DARIAN EHLER v. COUNTY OF MERCER, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5980-05T35980-05T3

DARIAN EHLER,

Plaintiff-Appellant,

v.

BELLEVILLE POLICE DEPARTMENT

and TOWNSHIP OF BELLEVILLE,

Defendants-Respondents.

________________________________________________

 

Argued June 6, 2007 - Decided July 30, 2007

Before Judges Parker, C.S. Fisher and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. ESX-L-3268-03.

Timothy H. Alexander argued the cause for appellant.

Andrew T. McDonald argued the cause for respondents (Lomurro, Davison, Eastman & Mu oz, attorneys; Mr. McDonald, of counsel and on the brief).

PER CURIAM

Plaintiff commenced this action, alleging he was falsely arrested and imprisoned and demanding relief based upon, among other things, 42 U.S.C.A. 1983. Plaintiff has appealed, seeking our review of an order denying his motion to amend the complaint to add individual police officers as defendants and an order granting summary judgment in favor of the municipality. We remand for further proceedings regarding the application of the relation back doctrine embodied in R. 4:9-3 to plaintiff's attempt to join the individual officers as defendants more than two years after the incident referred to in the complaint. And we reverse, in part, the summary judgment entered in favor of the municipality because plaintiff provided sufficient evidence from which it could be inferred that the municipality had a policy or custom of engaging in similar constitutional violations, or had engaged in an unlawful conspiracy, at the time of plaintiff's arrest and imprisonment.

I

On April 14, 2003, plaintiff Darian Ehler commenced this action against defendants Belleville Police Department and the Township of Belleville (hereinafter collectively referred to as "the municipality"). He alleged that on May 10, 2002 he was threatened by Police Officer Phil Canning (Canning). Plaintiff also alleged that, less than two weeks later, Canning's attorney served him with papers, which named plaintiff as a co-respondent in a divorce proceeding between Canning and his wife Toni Ann. In February 2002, Canning separated from Toni Ann, who began dating plaintiff in April 2002.

On June 1, 2002, after leaving his place of work in the early morning hours, plaintiff was stopped by Officer Anthony Weedo (Weedo) based upon what Weedo later described as plaintiff's "erratic[]" driving and his "continually changing lanes." Field sobriety tests were conducted, but out of the view of the police vehicle's video camera. Weedo reported that plaintiff's performance of the field test demonstrated that he was driving while under the influence. Plaintiff asserted that he had offered to take a breathalyzer test and also to have blood drawn to prove he was not intoxicated. He claimed that Weedo refused these offers. Weedo, on the other hand, asserted in his report that plaintiff had refused to submit to a breathalyzer test.

Plaintiff was arrested and charged with driving while under the influence, failing to submit to a breathalyzer test, careless driving, unsafe lane change, throwing debris from a motor vehicle, failing to wear a seatbelt, and refusing to show his driver's license. According to plaintiff's complaint, he was incarcerated for sixteen hours before being given an opportunity to post the $250 bail imposed.

A trial regarding the June 1, 2002 charges occurred on August 20 and 21, 2002. Plaintiff was acquitted of all charges, except the refusal to show his driver's license, which plaintiff did not have in his possession at the time of the vehicle stop.

The audiotapes of the municipal trial were apparently lost. As a result, the trial judge in this action entered an order on January 18, 2006 directing the municipal judge to reconstruct the record. In his written reconstruction, the municipal judge described the proceedings and the testimony, and thoroughly recounted his former findings.

The municipal judge explained that the testimony provided by Weedo and Officer Joseph DeRose was "impossible" to believe. In examining whether the police had probable cause to stop plaintiff's vehicle, the municipal judge held:

If I were to accept [the] testimony of Officers Weedo and DeRose there would clearly have been probable cause for the . . . stop [of plaintiff's vehicle]. But, having viewed the video tape, in most instances frame by frame, it is impossible for this Court to accept the police officers' version over what my own eyes have observed on the video which was marked into evidence.

The officers first would ask the court to justify the stop because of [plaintiff's] erratic driving. Other than for a moment (maybe two to five seconds based on the testimony of the officers) that the officers claim to have observed [plaintiff] driving before the police vehicle made a u-turn, the balance of [plaintiff's] operation was on video. I viewed the operation sequence numerous times and I did not observe any lane changes except the one made by [plaintiff] after passing a vehicle that was traveling in the right southbound lane of Franklin Avenue in the same direction as [plaintiff]. That was a slow moving vehicle which [plaintiff] only passed after he put on his turn signal and had proper clearance to get back into the right lane of traffic.

Apparently, only Officer Weedo was able to observe the six or seven lane changes that he testified to. Even Officer DeRose did not testify to any improper lane changes after the patrol vehicle made its u-turn. Based on the inconsistencies between the video and the officers['] testimony, particularly Weedo's, it is impossible for me to believe the officers' testimony that [plaintiff] drove erratically for the brief moment that they observed [plaintiff] before the police vehicle made its u-turn.

[Emphasis added.]

As for the charge that plaintiff threw debris from his vehicle, the municipal judge had this to say:

Officer Weedo testified that [plain-tiff] threw something from his vehicle while [plaintiff's] vehicle was stopped at a red light at the intersection of Mill Street and Franklin Avenue at approximately 3:00 a.m. in the morning. Weedo testified that he thought it was contraband. Despite Officer Weedo's testimony, the [o]fficers did not stop [plaintiff].

I note that [plaintiff] was already stopped at the stop light and traffic was extremely light. To suggest that it was dangerous to make a stop and approach [plaintiff's] vehicle at that time as testified by Weedo is impossible for this Court to accept, especially when considering that there were two travel lanes of traffic in each direction on Franklin Avenue and that any minimal traffic that was on Franklin Avenue and Mill Street at that hour of the morning would not have been impeded. Had the stop for the suspected contraband been made, the officers would have been able to immediately retrieve what they believed was contraband immediately.

[Emphasis added.]

As a result of these and other findings, the municipal judge found that plaintiff did not operate his vehicle erratically, that he did not throw any contraband or other item from his vehicle, and that the officers lacked probable cause to stop plaintiff's vehicle.

The municipal judge further held that, even if there was a basis for the vehicle stop, the State failed to prove that the officers had probable cause to believe that plaintiff was operating the vehicle while under the influence of alcohol:

As previously stated, no reasonable person could view the video and conclude that [plaintiff] was driving while under the influence. At the scene, [plaintiff's] ability to walk as I observed . . . in the video was anything but what was testified to by the [o]fficers and put in their police report. To suggest that [plaintiff] was unable to walk as is stated in the police report is not supported by what I observed on the video. While watching the video, I observed that [plaintiff] walked perfectly normal, did not sway and did not stagger before he was asked to take the field sobriety test. The inconsistencies between the [o]fficers' testimony regarding [plain-tiff's] ability to walk and my own observations make it impossible for me to believe that [plaintiff] was under the influence of alcohol. . . .

I am satisfied that the believable testimony in this matter is that presented by [plaintiff]. . . .

I also must question the field sobriety tests. . . . [F]rom the time [plaintiff] gets to the sidewalk to perform the tests to the time that the tests were concluded was approximately three minutes. Weedo testified that the time to conduct these tests would be six to nine minutes. I also question why something as crucial as the sobriety field tests were not on the video. At 3:00 a.m. in the morning on a side street in Belleville the police vehicle, [plaintiff] or both could have been positioned so that the tests could have been observed [by] the video [camera] without danger to [plaintiff] or the [o]fficers.

I also find it unusual that the video only picks up audio for a brief moment when Officer Weedo tells [plaintiff] that he failed the sobriety tests and then the audio goes off after Weedo walks towards the middle of Rocco Street.

[Emphasis added.]

Following his acquittal, plaintiff filed a citizen's complaint with the Belleville Police Department protesting the conduct of the officers. In response, Captain Nicholas Krentz (Krentz) prepared a memorandum, which bears a date of June 27, 2002, that he forwarded to Police Chief Joseph Rotunda (police chief). In this report, Krentz concluded that there was an insufficient basis for taking any action against Weedo; the report makes no mention of the municipal judge's utter rejection of the veracity of Weedo's testimony and report. On October 17, 2002 -- six days after Krentz reported to the police chief on his completion of another investigation in which he concluded that Weedo had filed a false report -- the police chief wrote to plaintiff to advise that there was insufficient evidence to support his claim that he had been arrested and imprisoned as a result of Weedo's false report.

Plaintiff filed a complaint based, in part, on 42 U.S.C.A. 1983, seeking damages against the municipality. Fictitious defendants were also mentioned, but the complaint does not indicate who these John Does might have been or what it was that they did or failed to do that would warrant the awarding of relief against them.

Plaintiff's complaint did not name Canning, Weedo, DeRose, Krentz, or the police chief as parties. Not until May 2005 did plaintiff move to amend his complaint to name these individuals as defendants. An order denying plaintiff's motion to amend the complaint, for the reasons set forth in an oral decision, was entered on May 27, 2005. Later, for reasons contained in a written decision, the trial judge entered an order on April 28, 2006, which granted the municipality's motion for summary judgment.

II

The record reflects that the false arrest and false imprisonment of which plaintiff complains occurred on June 1, 2002. Plaintiff filed his complaint in this action on April 14, 2003, well within the time limit set by N.J.S.A. 2A:14-2. However, as we have mentioned, the complaint sought relief only against the municipality. The complaint expressly referred to Weedo and Canning, and circumstances demonstrated that the identities of the other proposed defendants -- DeRose, Krentz and the police chief -- were known to plaintiff. But for reasons not fully explored, plaintiff did not move to amend his complaint to join these individuals until more than two years after June 1, 2002. The judge denied plaintiff's motion to amend, finding no legal basis upon which to permit joinder at that late date.

Among other things, plaintiff contends that the amended complaint should have been permitted and that the judge should have held that the claims plaintiff sought to assert against the individual defendants related back to the original filing date. This argument is governed by R. 4:9-3, which states in full:

Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading; but the court, in addition to its power to allow amendments may, upon terms, permit the statement of a new or different claim or defense in the pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against the party to be brought in by amendment, that party (1) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party to be brought in by amendment.

The rule's first requirement -- whether the claim arose out of the conduct, transaction or occurrence set forth in the original pleading -- was undoubtedly met in this case. The original complaint sought relief against the municipality based on plaintiff's allegations that he was arrested and imprisoned on fabricated charges. The conduct of some of the individual officers, whom plaintiff seeks to join as defendants, is described in the original complaint. The amended complaint merely sought to assert a claim for relief against the individuals based on the conduct set forth in the original complaint.

The rule next requires a determination of whether the parties to be joined "received such notice of the institution of the action that the party [to be joined] will not be prejudiced in maintaining a defense on the merits." Ibid. In Kernan v. One Washington Park, 154 N.J. 437 (1998), our Supreme Court described the manner in which this requirement should be interpreted.

In Kernan, the plaintiff filed a timely complaint alleging that she slipped and fell on an icy sidewalk adjacent to property owned by One Washington Park Urban Renewal Associates (OWPURA), which was maintained by International Services System, Inc. (ISS). More than two years after the fall, the plaintiff learned during discovery that OWPURA "was in bankruptcy and that a Trustee had been appointed by the bankruptcy court who in turn had appointed McCormick as its agent." 154 N.J. at 456. In considering the application of R. 4:9-3 to the plaintiff's attempt to join the Trustee and McCormick, the Court observed that

OWPURA's lawyer was paid by the same insurance company that also insured the Trustee and McCormick. Hence, the insurance carrier is the real party in interest in this case. . . . Because the real party in interest, the insurance company, always has been aware of the proceedings initiated by plaintiff, there appears to be no prejudice in allowing the complaint to be amended to name the Trustee and McCormick.

[Ibid.]

See also Bussell v. DeWalt Products Corp., 259 N.J. Super. 499, 508-11 (App. Div. 1992) (affirming the amendment of a judgment to name, long after the passage of the statute of limitations, as a party-defendant the named defendant's successor in interest where the successor had notice of the action from the outset and actively controlled the defense), certif. denied, 133 N.J. 431 (1993). The trial judge did not analyze or appear to consider whether an insurer is defending the municipality here and whether, if joinder were permitted, the same insurer would be obligated to defend the individual officers. This question, as well as any other facts relevant to whether the proposed individual defendants would be unduly prejudiced in maintaining a defense on the merits, should be examined by the trial judge in the first instance.

The remaining aspect of R. 4:9-3 to be considered is whether any or all of the individual officers "knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought" against them. Admittedly, this case does not fit the typical mold for matters in which this aspect of the rule has been found to apply. There is nothing in the record to suggest that plaintiff did not know the names of the individuals that he later sought to add as parties, Farrell v. Votator Div. of Chematron Corp., 62 N.J. 111 (1973), or that he in good faith believed one defendant was the proper party as opposed to another, Aruta v. Keller, 134 N.J. Super. 522 (App. Div. 1975). Here, as we have already observed, there appears little doubt that plaintiff knew the identities of the individual officers that he ultimately sought to join after the passage of the limitations period set forth in N.J.S.A. 2A:14-2. Two of the individuals that plaintiff sought to join were actually referred to in the complaint; the identities of the other three were likely known to plaintiff as well.

Plaintiff's knowledge of the identities of the individuals suggests that either a deliberate decision was made not to implead them, or that they were not joined because of the error or omission of plaintiff's attorney. The trial judge's decision did not discuss these circumstances or whether the failure to timely join the individuals constituted the type of mistake encompassed by R. 4:9-3. On remand, the trial judge should consider and determine the reasons for plaintiff's failure to timely join the individuals.

In considering the questions posed by these circumstances, the trial judge must be mindful of our Supreme Court's instruction that R. 4:9-3 "should be liberally construed." Kernan, supra, 154 N.J. at 458 (quoting Harr v. Allstate Ins. Co., 54 N.J. 287, 299 (1969)). As such, the rule's goal of permitting a party to correct "a pleading error" or to respond to "the acquisition of new information" should be served so long as a defendant's "right to rely on the repose afforded by the statute of limitations" is not unduly offended. Kernan, supra, 154 N.J. at 458 (quoting Wimmer v. Coombs, 198 N.J. Super. 184, 188 (App. Div. 1985)). The rule guides the accommodation of these competing interests by recognizing that a person who has timely notice of a pending action "cannot reasonably object to the late assertion against him . . . provided he is reasonably chargeable with the knowledge that those other claims would have been timely asserted against him but for plaintiff's error . . . and provided further that the late assertion does not prejudice him in maintaining his defense." Kernan, supra, 154 N.J. at 459 (quoting Wimmer, supra, 198 N.J. Super. at 189).

Because the trial judge did not analyze the factual questions that emanate from plaintiff's attempt to have his proposed amended complaint relate back to the original filing date, we remand for additional proceedings. The judge may require the filing of additional submissions from the parties as are warranted for a full consideration of these interests in determining whether the claims against the individuals ought to relate back to the original filing date. We do not foreclose the judge's conducting of an evidential hearing to fully explore these questions, as was, for example, found appropriate in Aruta v. Keller, supra, 134 N.J. Super. at 530.

III

Plaintiff also seeks reversal of the summary judgment entered in favor of the municipality.

Plaintiff's principal claim against the municipality was based upon 42 U.S.C.A. 1983, which provides that "[e]very 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. . . ." Since the statute expressly forbids only "person[s]" from engaging in the conduct proscribed, in Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961), the Supreme Court held that a municipality could not be held liable for damages based on this statute. That decision was overruled in Monell v. Dep't of Soc. Serv. of the City of N.Y., 436 U.S. 658, 690, 98 S. Ct. 2018, 2035, 56 L. Ed. 2d 611, 635 (1978), where the Court determined that Congress intended for "municipalities and other governmental units to be included among those persons to whom 1983 applies."

The Monell Court held that municipal liability could not be imposed based on respondeat superior, id. at 691, 98 S. Ct. at 2036, 56 L. Ed. 2d at 636, but that a municipality could be held liable when some governmental policy or custom was the "moving force of the constitutional violation," id. at 694-95, 98 S. Ct. at 2038, 56 L. Ed. 2d at 638. The Court explained that the execution of a government's policy or custom may be made either "by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy." Id. at 694, 98 S. Ct. at 2037-38, 56 L. Ed. 2d at 638.

A government policy comes about when a "decisionmaker possess[ing] final authority to establish municipal policy with respect to the action" issues an official proclamation, policy, or edict. Pembaur v. City of Cincinnati, 475 U.S. 469, 481, 106 S. Ct. 1292, 1299, 89 L. Ed. 2d 452, 464 (1986). And, a course of conduct may be considered a custom that will also trigger a municipality's liability when, though not authorized by law, the practices of governmental officials are "so permanent and well settled" as to virtually constitute law. Monell, supra, 436 U.S. at 690, 98 S. Ct. at 2035, 56 L. Ed. 2d at 635 (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 167-68, 90 S. Ct. 1598, 1613-14, 26 L. Ed. 2d 142, 160 (1970)); see also Plemmons v. Blue Chip Ins. Serv., Inc., 387 N.J. Super. 551, 571 (App. Div. 2006). Ultimately, as explained in Jett v. Dallas Independent School Dist., 491 U.S. 701, 737, 109 S. Ct. 2702, 2724, 105 L. Ed. 2d 598, 628 (1989) (internal citations omitted), "it is for the jury to determine whether [a policymaker's] 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."

In applying these standards to the matter at hand, the trial judge correctly observed that a plaintiff will not likely be able to provide evidence of a written policy that disregards the constitutional rights of citizens. As a result, it should come as no surprise that this record does not include any written police policy that authorizes officers to make false statements or provide false reports regarding the conduct of citizens. However, as the trial judge recognized, a custom may be established by evidence of acquiescence.

The alleged violation of plaintiff's constitutional rights occurred on June 1, 2002. Plaintiff claims he was then arrested and imprisoned on false charges by officers motivated by animus against him due to his relationship with Officer Canning's wife. In opposing summary judgment, plaintiff provided evidence of: (1) the failure of a policymaker, i.e., the police chief, to discipline Weedo regarding his conduct on June 1, 2002; (2) Weedo's prior submission of a false report regarding another incident and the police chief's knowledge of this when he chose not to sustain plaintiff's citizen's complaint; and (3) evidence that plaintiff has been harassed by the municipality's police force since June 1, 2002. In granting summary judgment, the trial judge concluded that no inferences could be drawn from this evidence and that the absence of any direct evidence of knowledge or acquiescence by a policymaker prior to June 1, 2002 was fatal to plaintiff's claim against the municipality.

Plaintiff contends that the policymaker's failure to discipline the alleged tortfeasor for the event in question has a tendency to demonstrate the policymaker's acquiescence in that type of conduct at or prior to the event in question, and may be evidence of a policy or custom that may form the basis for municipality liability under 1983. This argument was considered by the court in Grandstaff v. City of Borger, supra, 767 F.2d 161. There, an action was brought by the survivors of an individual killed by police officers who mistook him for another person. Plaintiffs alleged that the municipality had a disposition toward the use of deadly force that could be inferred from the way the municipality dealt with the incident after its occurrence. The court of appeals agreed, holding:

The disposition of the policymaker may be inferred from his conduct after the events of that night. Following this incompetent and catastrophic performance, there were no reprimands, no discharges, and no admissions of error. The officers testified at trial that no changes had been made in their policies. If that episode of such dangerous recklessness obtained so little attention and action by the City policymaker, the jury was entitled to conclude that it was accepted as the way things are done and have been done in the City of Borger. If prior policy had been violated, we would expect to see a different reaction. If what the officers did and failed to do on August 11, 1981 was not acceptable to the police chief, changes would have been made.

[Id. at 171 (emphasis added).]

Although a subsequent decision of the Court of Appeals for the Fifth Circuit held that Grandstaff should be limited to its own egregious facts, Coon v. Ledbetter, 780 F.2d 1158, 1161-62 (5th Cir. 1986), Grandstaff has been followed by the Courts of Appeals for the First Circuit, Bordanaro v. McLeod, 871 F.2d 1151, 1166-67 (1st Cir.), cert. denied, 493 U.S. 820, 110 S. Ct. 75, 107 L. Ed. 2d 42 (1989); Third Circuit, Black v. Stephens, supra, 662 F.2d at 190-91, and Ninth Circuit, Henry v. County of Shasta, 132 F.3d 512, 518-19 (9th Cir. 1997); Larez v. City of Los Angeles, 946 F.2d 630, 645 (9th Cir. 1991); McRorie v. Shimoda, 795 F.2d 780, 784 (9th Cir. 1986).

After carefully weighing the arguments, we find that Grandstaff presents the better-reasoned approach. It must be recognized, as the trial judge observed here, that a plaintiff will not likely be able to provide documentation or direct evidence of a pre-existing custom of disregarding the constitutional rights of citizens in the fashion alleged here. In Carter v. District of Columbia, 795 F.2d 116, 122 (D.C. Cir. 1986) (quoting Oklahoma City v. Tuttle, 471 U.S. 808, 823, 105 S. Ct. 2427, 2436, 85 L. Ed. 2d 791, 804 (1985)), the court recognized that "[p]olice misconduct cases . . . do not involve express statements of policy and 'are not susceptible to such easy proof.'" Accordingly, a plaintiff will be quite often left to prove an existing course of conduct through circumstantial evidence and inferences to be drawn therefrom. Absent a liberal approach to such evidence questions, vindication of the important policies embodied in 42 U.S.C.A. 1983 in cases such as this may be inappropriately precluded.

The trial judge's decision, as well as the authorities upon which he relied, rejected the Grandstaff approach because, we respectfully conclude, they misunderstood its holding. As cogently explained by one commentator, with whom we agree, the courts that have disagreed with Grandstaff "have failed to recognize . . . that subsequent conduct by the municipal policymaker, whether it takes the form of ratification, acquiescence, or inaction, is not the policy itself but may be evidence of the policy in effect at the time of the incident in question." Barbara Rook Snyder, The Final Authority Analysis: A Unified Approach To Municipal Liability Under Section 1983, 1 986 Wis. L. Rev. 633, 668 (1986).

In rejecting the trial judge's determination, we adhere to the logic of Grandstaff, and the similar decisions of other courts, in concluding that post-event circumstances may be probative of the existence of a municipal policy existing at the time of the event in question. The boundaries delineated by the Supreme Court in defining the scope of a municipality's liability under 1983 do not foreclose a plaintiff from attempting to prove a municipal policy in this fashion. See Bordanaro, supra, 871 F.2d at 1166-67 (observing that the Supreme Court "has never held that inferences about what customs or policies existed in a city before an event could not be drawn from subsequent actions"). Certainly, in considering the obvious proof problems caused by the fact that the relevant evidence of a policy is possessed by the municipality and its employees, it is quite appropriate to adhere to Grandstaff. Again, such a holding does not impose liability, it merely recognizes that evidence of subsequent actions may generate an inference of a pre-existing policy or custom. See Kita v. Bor. of Lindenwold, 305 N.J. Super. 43, 49-50 (App. Div. 1997), and the authorities cited therein. As we held in Harris v. Peridot Chem. (NJ), Inc., 313 N.J. Super. 257, 282 (App. Div. 1998) (quoting 2 Wigmore on Evidence 382 at 406 (Chadbourn rev. 1979)), "the proposition that 'the subsequent existence of a quality or condition' may serve to establish its existence at an earlier time rests upon the general experience of humankind and is consonant with common sense." When presented with such evidence, a factfinder ought to be given the opportunity to determine, based upon its weighing of all relevant evidence, whether a custom existed prior to an event by considering the municipality's response to the event itself as well as any other similar post-event occurrences.

Here, as we have observed, the municipal judge condemned the officers' conduct, readily recognizing that Weedo and DeRose had acted improperly and finding their testimony "impossible" to believe -- tantamount to a finding that they, or at least Weedo, testified falsely during the trial. Plaintiff's claim that the officers fabricated what occurred on June 1, 2002 is further evidenced by the municipal judge's observation that the officers inexplicably conducted the field sobriety test out of range of the police vehicle video camera.

Disregarding the municipal judge's vigorous denouncement of the officers' conduct and testimony, Krentz's investigation inexplicably concluded with his finding that the evidence regarding the stop of plaintiff's vehicle and his subsequent arrest was equivocal. As a result, Krentz did not recommend discipline but instead suggested only that Weedo "need[ed] training in court room testimony," and that both Weedo and DeRose "need[ed] retraining in DWI recognition and arrest." The police chief concurred in Krentz's views, as revealed by his letter to plaintiff of October 17, 2002, in which he stated that "[t]he investigation and a review of all information" had failed to disclose "sufficient evidence to clearly prove or disprove the allegations." In claiming uncertainty about the sufficiency of the evidence, the police chief also gave no weight or consideration to Krentz's determination of a few days earlier that Weedo had issued a false report concerning the Stephen Crane incident, to which we now turn.

The evidence submitted in opposition to the summary judgment motion also indicated that this was not the only known episode of the alleged falsification of police reports. On September 9, 2001, Weedo and DeRose responded to a robbery in the Stephen Crane Village in Belleville. This so-called "Stephen Crane incident" arose when an assistant county prosecutor, in interviewing witnesses in early September 2002 for a trial scheduled to commence on September 30, 2002, came away with the strong suspicion that Weedo had falsely reported that he had personally chased on foot and tackled the suspect. In response to the prosecutor's insistence, Krentz conducted an investigation of this matter and concluded in a memorandum to the police chief dated October 11, 2002 that Weedo had filed a false report.

It is of significance that the investigations into both the arrest of plaintiff and the Stephen Crane incident occurred at or around the same time, and that both matters presented strong evidence of Weedo's false reports in both matters. Indeed, as we have already observed, Krentz's report in the Stephen Crane incident, which preceded the police chief's decision not to sustain plaintiff's citizen's complaint, had concluded that Weedo had filed a false report. As a result of this finding, Weedo was suspended for five days and ordered to see Dr. Karen Omilian for a psychological evaluation. Dr. Omilian "strongly recommended" that Weedo attend at least ten to twelve psychotherapy sessions. Weedo failed to adhere to this recommendation. And the police chief failed to order Weedo to comply with the recommendation.

The finding that Weedo filed a false police report in the Stephen Crane incident has relevance with regard to Weedo's alleged pattern of submitting false reports in the course of his police duties, and constitutes the type of evidence from which the factfinder could infer that there may have been other similar, pre-event instances. In addition, the police chief's failure to compel Weedo's compliance with Dr. Omilian's recommendation might also generate an inference similar to that outlined in Grandstaff, and our earlier discussion, that the police chief had a practice of acquiescing in the filing of false reports.

Lastly, plaintiff provided information in opposition to the motion for summary judgment that he has been harassed by Belleville police officers since the June 1, 2002 occurrence. There was an assertion that a Belleville police officer was observed, and videotaped, shining a spotlight into plaintiff's residence late one night. In 2004, plaintiff filed a municipal complaint in Nutley against Canning, asserting that he was harassed when Canning followed plaintiff's vehicle; plaintiff alleged that on this occasion, Canning cursed at him, stating that plaintiff was "going to get it," that plaintiff should "stay away from [his] kids," and that plaintiff's "day is going to come." Again, the jury could find in this matter that the police chief, as a policymaker in the municipality, had acquiesced in this type of conduct prior to June 1, 2002 in light of the allegation that the conduct of the municipality's police force has continued unabated by any action of its chief.

In adopting the approach outlined in Grandstaff, and the other cases that have followed, we find that these circumstances permit a reasonable inference that there was an unwritten policy in Belleville of overlooking -- and thereby, encouraging -- unconstitutional police stops, arrests and imprisonments. We do not suggest that a factfinder must draw such an inference. We are reviewing only a summary judgment entered against plaintiff. According to the applicable standard, see Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), plaintiff was entitled to the assumption of the truth of his allegations and to the benefit of all reasonable inferences that could be drawn from that evidence. As a result, our holding must be understood as being limited to a determination that the application of the Brill standard required the denial of the municipality's motion for summary judgment on plaintiff's 1983 claims.

IV

The trial judge not only granted summary judgment on plaintiff's 1983 claims, but also dismissed all the other counts of plaintiff's complaint. Specifically, the judge's written decision included his determination that: plaintiff had failed to present sufficient evidence of an unlawful conspiracy pursuant to 42 U.S.C.A. 1983 or 1985(3); the municipality is immune from suit for the unlawful misconduct of its police force, citing N.J.S.A. 59:2-10; plaintiff could not further pursue a claim for pain and suffering on his common law tort claims because he failed to demonstrate that he sustained medical expenses in excess of $3,600; and plaintiff's demand for punitive damages was insufficient as a matter of law.

Since it appears the judge's holding regarding plaintiff's claim of an unlawful conspiracy may have been impacted by his incorrect view of the weight to be given to the post-event actions and inactions of the police chief, as well as the judge's overall view of the 1983 claim, we reverse and remand for further consideration in light of today's decision. In so ruling, we do not intend to preclude further consideration of this claim by way of summary judgment.

However, we find no similar reason to intervene in the dismissal of the remaining claims against the municipality. First, we observe that plaintiff has not argued on appeal that we should reverse other aspects of the judge's decision. Liebling v. Garden State Indem., 337 N.J. Super. 447, 465-66 (App. Div. 2001). Moreover, we find that the judge's decision that the municipality may not be held liable for the willful misconduct of its employees in this regard was well-supported by Delacruz v. Bor. of Hillsdale, 183 N.J. 149, 164 (2005).

We also affirm that part of the trial judge's order that precluded plaintiff's demands for damages based on pain and suffering. As the judge correctly observed, plaintiff presented no evidence of medical expenses in excess of $3,600 as required by N.J.S.A. 59:9-2(d). We lastly affirm that part of the judge's decision that dismissed the punitive damages claim against the municipality since 1983 does not permit the awarding of such relief against a municipality. City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271, 101 S. Ct. 2748, 2762, 69 L. Ed. 2d 616, 635 (1981). The Tort Claims Act also precludes an award of punitive damages against a public entity. N.J.S.A. 59:9-2(c). We offer no view as to whether the claim for punitive damages may be pursued against the individual officers if the proceedings on remand permit their joinder.

V

For these reasons, we vacate the order of May 27, 2005, which denied plaintiff's motion to amend the complaint to join the individual officers as defendants, and we direct the conducting of further proceedings in that regard. We also reverse the order of April 28, 2006, which granted the municipality's motion for summary judgment, with the exception of those parts of the order which dismissed plaintiff's common law tort claims against the municipality, and with the exception of the dismissal of plaintiff's claim for punitive damages against the municipality, as to which we affirm.

Affirmed in part; reversed in part; vacated in part; and remanded for further proceedings. We do not retain jurisdiction.

 

There is no doubt that the date of the memorandum was erroneous since Krentz referred to the results of the municipal trial that occurred in August 2002.

Neither party's appendix includes a copy of these motion papers, nor do the briefs provide the precise date upon which this motion was filed.

Actions brought pursuant to 1983 are governed by the personal injury statute of limitations of the state in which the cause of action accrued. O'Connor v. City of Newark, 440 F.3d 125, 126 (3d Cir. 2006).

Assuming plaintiff was unaware of the name of the other officer who assisted Weedo during the motor vehicle stop of June 1, 2002, he certainly learned his name no later than the municipal court trial that occurred on August 20 and 21, 2002, when DeRose testified on behalf of the State.

Plaintiff learned the identities of Krentz and Chief Rotunda no later than October 17, 2002, when Chief Rotunda's letter, which directed any further comments to Krentz, advised plaintiff that his citizen's complaint had been denied.

We recognize that some municipalities self-insure, participate in a pool of other self-insured municipalities, or engage in various other types of programs. Kernan does not limit itself to those parties who are insured under a liability policy and should be viewed expansively to include any other type of similar arrangement. In short, this particular question is not governed by whether an insurer is obligated to defend or indemnify both the municipality and any of the individual officers but whether it may be said that the real party in interest with regard to the claim against the municipality is the same as the real party in interest regarding the claims against the individuals.

We have held, Cherrits v. Village of Ridgewood, 311 N.J. Super. 517, 528 (App. Div. 1998), as have other courts, Grandstaff v. City of Borger, 767 F.2d 161, 169 (5th Cir. 1985), cert. denied, 480 U.S. 916, 107 S. Ct. 1369, 94 L. Ed. 2d 686 (1987); Black v. Stephens, 662 F.2d 181, 190 (3d Cir. 1981), cert. denied, 455 U.S. 1008, 102 S. Ct. 1646, 71 L. Ed. 2d 876 (1982), that a police chief may qualify as a policymaker for purposes of a 1983 action against a municipality. This is ultimately a fact that plaintiff must prove, Alexander v. City and County of San Francisco, 29 F.3d 1355, 1368 (9th Cir. 1994), cert. denied, 513 U.S. 1083, 115 S. Ct. 735, 130 L. Ed. 2d 638 (1995), but, for present purposes, we are satisfied that the record contains sufficient evidence from which a jury could find the police chief here to be a policymaker regarding the conduct of the Belleville police force on or before June 1, 2002.

In choosing not to follow Grandstaff, the trial judge was persuaded by certain district court decisions that also chose not to follow Grandstaff, citing Mayer v. Gottheiner, 382 F. Supp. 2d 635 (D.N.J. 2005); Cawthon v. City of Greenville, 745 F. Supp. 377 (N.D. Miss. 1990); and Sowers v. Bradford Area School Dist., 694 F. Supp. 125, 139 (W.D. Pa. 1988), aff'd, 869 F.2d 591 (3d Cir.), vacated on other grounds sub nom., Smith v. Sowers, 490 U.S. 1002, 109 S. Ct. 1634, 104 L. Ed. 2d 150 (1989), as well as other district court decisions that are not contained in official reporters. Only Mayer, supra, 382 F. Supp. 2d at 661 (rejecting plaintiff's argument that the municipal defendants should have known that a police officer would use force because of events that occurred after the event in question) and Cawthon, supra, 745 F. Supp. at 383 (holding that the inferences permitted by Grandstaff "approach dangerously close to dissolving the direct liability rationale of Monell and imposing respondeat superior liability upon a municipality") lend support to the trial judge's decision. The third cited decision does not, since the district judge in Sowers stated that although it had determined that pre-event handling of sexual abuse incidents was relevant, "[t]his does not mean that this [c]ourt has decided that evidence of subsequent acts may not also tend to prove the nature of a prior conspiracy," citing Grandstaff. 694 F. Supp. at 138 n.14.

It should also not be overlooked, as mentioned earlier, that the municipal judge was ordered by the trial judge in this matter to recreate the record because the audiotapes of the municipal trial had gone missing. Belleville's trial court administration of twenty-six years was deposed and testified that the loss of the audiotapes was extraordinarily unusual.

Plaintiff also provided evidence that would support his claim that the investigation was incomplete. For example, plaintiff had been named by Canning as a co-respondent in his divorce action within days of his arrest on June 1, 2002 -- a circumstance that certainly had relevance in determining whether Weedo and DeRose acted with animus toward plaintiff. Yet, according to her certification, Toni Ann Canning was never interviewed by Krentz or the police chief in the course of this investigation.

Krentz's report regarding plaintiff's complaint was misdated and falsely suggests that it was submitted to the police chief on June 27, 2002. Since Krentz's report refers to events that occurred in August 2002, it may be assumed that Krentz's investigation had not been completed by June 27, 2002 and that he was still investigating and preparing his report at or about the time that he was investigating and writing about the Stephan Crane incident. Yet, neither report, both of which dealt with Weedo's alleged false reporting of separate incidents, referred to the other. Even if it were not clear as to when the two matters were investigated and reported by Krentz to the police chief, it is clear that, on October 17, 2002, when the police chief advised plaintiff that his citizen's complaint had not been sustained, he had already received Krentz's report regarding the Stephen Crane incident, in which Krentz concluded that Weedo had filed a false report. The chief's failure to weigh the significance of the Stephen Crane incident in rejecting plaintiff's complaint about what occurred on June 1, 2002 constitutes further evidence from which the jury could conclude that the police chief had a custom of overlooking the filing of false reports by certain members of the police force in the performance of their official duties.

(continued)

(continued)

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A-5980-05T3

July 30, 2007