Opinion
DOCKET NO. A-0249-13T4 DOCKET NO. A-0250-13T4
02-03-2014
ERIC MORILLO, Plaintiff-Respondent, v. MONMOUTH COUNTY SHERIFF'S OFFICER ALEXANDER TORRES, MONMOUTH COUNTY SHERIFF'S OFFICER THOMAS RUOCCO, MONMOUTH COUNTY SHERIFF'S OFFICE, AND MONMOUTH COUNTY SERGEANT STEVEN COOPER, Defendants-Appellants, and OLD BRIDGE TOWNSHIP ASSISTANT MUNICIPAL COURT ADMINISTRATOR SUSAN BRUCHEZ AND OLD BRIDGE TOWNSHIP MUNICIPAL COURT, Defendants. ERIC MORILLO, Plaintiff-Appellant, v. MONMOUTH COUNTY SHERIFF'S OFFICER ALEXANDER TORRES, MONMOUTH COUNTY SHERIFF'S OFFICER THOMAS RUOCCO, MONMOUTH COUNTY SHERIFF'S OFFICE, AND MONMOUTH COUNTY SERGEANT STEVEN COOPER, Defendants-Respondents, and OLD BRIDGE TOWNSHIP ASSISTANT MUNICIPAL COURT ADMINISTRATOR SUSAN BRUCHEZ AND OLD BRIDGE TOWNSHIP MUNICIPAL COURT, Defendants.
John C. Connell argued the cause for appellants in A-0249-13 and respondents Monmouth County Sheriff's Officers Alexander Torres and Thomas Ruocco, Sergeant Steven Cooper and Monmouth County Sheriff's Office in A-0250-13 (Archer & Greiner, P.C., attorneys; Mr. Connell, Christine G. Hanlon, and Benjamin D. Morgan, on the briefs). Joel I. Rachmiel argued the cause for respondent Eric Morillo in A-0249-13 and appellant Eric Morillo in A-250-13.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes, Simonelli and Fasciale.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-4005-11.
John C. Connell argued the cause for appellants in A-0249-13 and respondents Monmouth County Sheriff's Officers Alexander Torres and Thomas Ruocco, Sergeant Steven Cooper and Monmouth County Sheriff's Office in A-0250-13 (Archer & Greiner, P.C., attorneys; Mr. Connell, Christine G. Hanlon, and Benjamin D. Morgan, on the briefs).
Joel I. Rachmiel argued the cause for respondent Eric Morillo in A-0249-13 and appellant Eric Morillo in A-250-13. PER CURIAM
Plaintiff appeals from an order denying his motion for partial summary judgment on liability. Sergeant Steven Cooper and Officers Alexander Torres and Thomas Ruocco ("defendants") appeal from an order denying their cross-motion for summary judgment. We affirm.
In 2010, Officers Ruocco and Torres executed a child support warrant naming plaintiff. They drove to the address on the warrant, found plaintiff sitting in a vehicle in the driveway, and arrested him. While they executed the warrant, plaintiff told Officer Ruocco that he had a gun in his possession, which the officer then confiscated. Officer Ruocco called Sergeant Cooper to notify him about the gun. When the officers and plaintiff arrived at police headquarters, the sergeant called an assistant prosecutor to determine whether they could charge plaintiff with a weapons offense. Based on the information the sergeant provided, the assistant prosecutor stated that they could do so. The police charged plaintiff with second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b. In March 2011, the prosecutor dismissed the charge after determining that plaintiff was the "lawful owner of the handgun" and possessed it "on his own property."
In February 2011, a New Jersey State Police detective certified that plaintiff maintained a permit to purchase the gun as well as a firearms purchaser identification card, and that the gun was registered to plaintiff.
Plaintiff filed a complaint against defendants alleging constitutional rights violations under the Federal Civil Rights Act, 42 U.S.C.A. § 1983, and the New Jersey Civil Rights Act, N.J.S.A. 10:6-2. Plaintiff moved for partial summary judgment on liability, and defendants cross-moved for summary judgment. The judge conducted oral argument, determined that there existed genuine issues of material fact, and entered the orders under review.
We denied the parties' cross-motions for leave to appeal from these orders, but the Supreme Court granted certification and remanded the matter to us for adjudication of the arguments on appeal.
On appeal, plaintiff argues primarily that the judge erred by denying him summary judgment on liability because (1) no reasonable officer would believe that there was probable cause to charge plaintiff with the weapons offense and (2) defendants should have relied on their independent judgment instead of the assistant prosecutor's purported erroneous advice. In support of their appeal, defendants contend that they are entitled to qualified immunity because (1) they did not violate plaintiff's constitutional rights, and alternatively, that (2) a reasonable officer would have believed there was probable cause to charge plaintiff. As a result, defendants maintain that the judge erred by denying their cross-motion.
We review a denial of summary judgment de novo, applying the same legal standard as the trial court. Nicholas v. Mynster, 213 N.J. 463, 477-78 (2013). We must "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Using this standard, we conclude that the judge did not err by denying the motions.
I.
We begin by addressing defendants' contention that the judge erred by finding that, on this record, they were not entitled to qualified immunity. 43 U.S.C.A. § 1983 provides that:
Every person who, under color of any statute, ordinance, regulation, custom, or usage of any State . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress[.]To establish liability under Section 1983, a plaintiff must show that a defendant violated the plaintiff's federal rights while acting under color of law. McKinney v. E. Orange Mun. Corp., 284 N.J. Super. 639, 647 (App. Div. 1995), certif. denied, 143 N.J. 519 (1996) .
Police officers may assert qualified immunity from suits alleging that they arrested citizens without probable cause. Wildoner v. Borough of Ramsey, 162 N.J. 375, 385-87 (2000); see also Malley v. Briggs, 475 U.S. 335, 343, 106 S. Ct. 1092, 1097, 89 L. Ed. 2d 271, 280 (1986). A police officer is not entitled to qualified immunity, however, if "no reasonably competent officer would have concluded that a warrant should issue; but if officers of reasonable competence could disagree on this issue, immunity should be recognized." Malley, supra, 475 U.S. at 341, 106 S. Ct. at 1096, 89 L. Ed. 2d at 278.
We note that the United States Court of Appeals for the Third Circuit has held that "a police officer who relies in good faith on a prosecutor's legal opinion that the arrest is warranted under the law is presumptively entitled to qualified immunity," but that the reliance must be "objectively reasonable" because "'a wave of the prosecutor's wand cannot magically transform an unreasonable probable cause determination into a reasonable one.'" Kelly v. Borough of Carlisle, 622 F.3d 248, 255-56 (3d Cir. 2010) (quoting Cox v. Hainey, 391 F.3d 25, 34 (1st Cir. 2004)).
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Defendants argue that they did not violate plaintiff's rights because there was probable cause to arrest and detain plaintiff. "Probable cause exists where the facts and circumstances within . . . [the officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a [person] of reasonable caution in the belief that an offense has been or is being committed." Schneider v. Simonini, 163 N.J. 336, 361 (2000) (first and second alterations in original) (citation and internal quotation marks omitted), cert. denied, 531 U.S. 1146, 121 S. Ct. 1083, 148 L. Ed. 2d 959 (2001). Probable cause depends on the totality of the circumstances and is "a suspicion or belief that is well-grounded in facts." Id. at 361-62.
Under N.J.S.A. 2C:39-5b, it is an offense to knowingly possess a handgun without first obtaining a permit to carry the weapon. Pertinent to our analysis, an exemption exists for keeping and carrying firearms about one's own "residence, premises or other land owned or possessed by [the gun possessor]." N.J.S.A. 2C:39-6e. The existence of qualified immunity depends, therefore, on whether "no reasonably competent officer would have concluded that a warrant should issue." Malley, supra, 475 U.S. at 341, 106 S. Ct. at 1096, 89 L. Ed. 2d at 278. Giving plaintiff all favorable inferences, as we must at this stage, genuine issues of material fact exist regarding whether a competent officer would have concluded that a warrant should issue.
Officer Ruocco testified that he arrived at the residence listed on the child support warrant; he went to the back of the house and noticed plaintiff sitting in the passenger's seat of the vehicle; plaintiff told him that he possessed a gun, which the officer seized from plaintiff; he called his supervisor, Sergeant Cooper, from the scene of the arrest and told him about the gun; on the way to headquarters, plaintiff said that the gun was registered to him; he assumed that plaintiff resided at the house whose address was listed on the child support warrant; when he arrived at headquarters with plaintiff, the sergeant called an assistant prosecutor from the sergeant's office, out of earshot of Officer Ruocco; he did not remember if he told the sergeant that plaintiff lived at the residence where the arrest occurred; and he was unaware of the exemption contained in N.J.S.A. 2C:39-6e allowing individuals to legally possess firearms on their own premises.
Officer Torres testified that the address listed on the warrant corresponded to the location of the arrest; he arrived at the address of the house listed on the warrant, knocked on the door, asked whether plaintiff was home, and learned that plaintiff was home; he observed plaintiff standing with Officer Ruocco near a car on the premises of the address on the warrant; he had no reason to believe that the house was not plaintiff's residence; he processed plaintiff at headquarters and plaintiff told him that he lived at the house; he knew that individuals are permitted to possess guns at their residences; plaintiff told him that he had paperwork for the gun; and he told the sergeant that plaintiff mentioned that he had paperwork for the gun.
Sergeant Cooper testified that he received a call from Officer Ruocco asking whether he could charge plaintiff with unlawful possession of a weapon; Officer Ruocco did not tell him that they arrested plaintiff at his residence; Officer Ruocco "might have said" that plaintiff stated he had a permit to carry the gun; he called assistant prosecutor Byron Wambaugh, who was unable to say whether the police could charge plaintiff with the weapons offense and referred him to assistant prosecutor Sean Brennan; he called Brennan, but did not remember if he informed him that plaintiff was at his home at the time of the arrest; he was familiar with the exemption contained in N.J.S.A. 2C:39-6e; Brennan did not use the words "probable cause"; and the criminal complaint that charged plaintiff with the weapons offense listed as plaintiff's residence the same address that appeared on the child support warrant.
Wambaugh testified that "the gist of [the sergeant's call] was [that] [plaintiff] has a gun, he may have a permit, [and] can we arrest [plaintiff]." Wambaugh stated that "I didn't feel comfortable with giving out some advice on that." Brennan testified that he received the call from the "sheriff's department." He did not remember being told that plaintiff was on his property at the time of the arrest, but was familiar with the exception contained in N.J.S.A. 2C:39-6e. Brennan also testified that he was aware that plaintiff represented that he had a gun permit.
Looking at the facts in the light most favorable to plaintiff, on this record we cannot say whether "no reasonably competent officer would have concluded that a warrant should issue." Malley, supra, 475 U.S. at 341, 106 S. Ct. at 1096, 89 L. Ed. 2d at 278. Before charging plaintiff with the weapons offense, Officer Torres knew that plaintiff possessed paperwork for the gun and lived at the premises of the arrest, and that the exemption existed. Sergeant Cooper also knew about the exemption, but did not remember telling the assistant prosecutors whether plaintiff lived at the premises. Officer Ruocco assumed that plaintiff resided at the premises, and plaintiff had represented to him that the gun was registered. Brennan did not remember the sergeant telling him that they arrested plaintiff at his residence. Thus, at this stage, we are unable to say as a matter of law that defendants are entitled to qualified immunity and summary judgment.
II.
Finally, we reject plaintiff's contention that the judge erred by denying plaintiff's motion for summary judgment. Genuine issues of material fact exist regarding the malice element of plaintiff's malicious prosecution cause of action.
To establish malicious prosecution, a "'plaintiff must prove (1) that the criminal action was instituted by the defendant against the plaintiff, (2) that it was actuated by malice, (3) that there was an absence of probable cause for the proceeding, and (4) that it was terminated favorably to the plaintiff.'" Brunson v. Affinity Fed. Credit Union, 199 N.J. 381, 393-94 (2009) (quoting Helmy v. City of Jersey City, 178 N.J. 183, 190 (2003)). Malice is "'the intentional doing of a wrongful act without just cause,'" and a lack of probable cause alone is insufficient to establish malice. Id. at 395-96 (citation omitted).
Here, Officer Ruocco testified that he was not aware of the exemption for possession at one's residence. Sergeant Cooper contacted two assistant prosecutors for advice before charging plaintiff, which implies good faith. When viewing the facts in the light most favorable to defendants, a fact issue exists concerning whether defendants intentionally charged plaintiff without just cause. Therefore the judge properly denied plaintiff summary judgment on the issue of defendants' liability.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPE1JATE DIVISION