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May 10, 1989

CHARLES McGILL, JR., Plaintiff,

The opinion of the court was delivered by: WOLIN

 In this civil rights action, defendants move for partial summary judgment and for attorney's fees pursuant to 42 U.S.C. § 1988. Plaintiff cross-moves for partial summary judgment. For the reasons sets forth below, summary judgment will be entered in favor of defendants on the Fourth, Fifth, Sixth, Tenth, Eleventh and Twelfth Counts of plaintiff's Complaint. Summary judgment is denied as to the Second, Third and Fourteenth Counts of the Complaint. Plaintiff's motion for partial summary judgment is denied in its entirety. In addition, defendant's motion for attorney's fees is denied without prejudice as premature.


 This case arises out of a sequence of events that began when plaintiff Charles McGill, Jr. was arrested by officers of the Mountainside and Springfield police departments the night of October 3, 1986. On that night, at approximately 10:30 p.m., the Mountainside police apparently received a call from the Watchung police that a vehicle was traveling east on Route 22 at a high rate of speed. Mountainside police officer John Olock spotted the car and eventually stopped the vehicle. Officers Todd Turner and John Garrett of the Mountainside police and officers Jeff Vreeland and Paul Caron of the Springfield police responded to Officer Olock's call for backup and were also present at the scene.

 What happened when McGill was pulled over remains in dispute, and neither side moves for summary judgment on this precise issue. Plaintiff claims he merely asked what the problem was whereupon he was pulled from his car and beaten by the various officers. The police claim plaintiff verbally abused them, and was then placed under arrest, all the while kicking, punching and screaming at the police. Defendants also imply that plaintiff was intoxicated, although no D.W.I. charges were filed against plaintiff.

 Whatever the cause of the scuffle, plaintiff was placed under arrest and taken to Mountainside police headquarters, where he was placed in a holding cell. McGill was charged with assaulting a police officer and resisting arrest, and cited for speeding and improper lane change. The assault charge was later downgraded to simple assault.

 While in the holding cell, McGill apparently vomited. Plaintiff also claims he had difficulty breathing and repeatedly asked to be taken to the hospital. The next morning plaintiff was taken to Overlook Hospital. He was later released from Overlook Hospital since his bail was posted while he was in the hospital.

 After being released from the hospital, plaintiff contemplated but did not file assault charges against the officers he claims assaulted him. Plaintiff did request that the Mountainside police do an internal affairs investigation into the arrest. On October 14, 1986, Jack Frost, Esq. served upon the Mountainside police a Subpoena Duces Tecum for a Civil Action for "All radio transmissions, tapes, and records, dispatch cards" pertaining to McGill's arrest. The Mountainside police believed the request to be improperly made and did not turn over the material. A few months later the tape of the radio transmissions was erased; however, there is no evidence this was done in bad faith.

 Detective Jerome Rice of the Mountainside police was assigned to do the internal affairs investigation of the events surrounding plaintiff's arrest. He requested that McGill come in to headquarters to give a statement. McGill was reluctant to do this but was informed that his statement was required in order for Detective Rice to investigate the matter. Finally on June 23, 1987, McGill and his attorney went to police headquarters, and McGill gave a taped interview with Detectives Rice and Senanick.

 On October 22, 1987, McGill was tried and convicted in Westfield Municipal Court of simple assault, resisting arrest, speeding and unsafe lane change. The trial court ruled that the taking of McGill's statement was not a violation of his Fifth Amendment rights and that the October 14, 1986 subpoena from McGill's attorney was not a proper discovery request. These holdings were affirmed on appeal by a letter opinion dated June 6, 1988 by Honorable Edward W. McGrath, J.S.C.

 On October 19, 1987, McGill filed a 14 count civil complaint in this Court. Among other things, McGill charges that the Mountainside and Springfield police officers assaulted and battered him, and used excessive force to arrest plaintiff, that Mountainside police officers Sgt. James Debbie and Sgt. R. Della Serra refused to get medical treatment for plaintiff, that he was falsely arrested, that the Mountainside police, Sgt. Rice and Det. Senanick violated his Fifth Amendment rights by refusing to conduct an internal affairs investigation unless plaintiff gave a statement, and that his constitutional rights were violated by the failure of the Mountainside police to respond to the October 14, 1986 subpoena. Plaintiff also claims that he was arrested for obstruction of justice merely because he refused to answer questions, thus violating plaintiff's Fourth and Fifth Amendment rights. Finally, plaintiff alleges that the relevant police departments and municipalities are liable for intentional or negligent failure to adequately train, instruct and supervise their police officers.

 Defendants now move for partial summary judgment dismissing plaintiff's claims that Officers Debbie and Della Serra violated his civil rights by failing to provide medical treatment, that the defendants falsely arrested plaintiff and arrested him without probable cause in violation of his constitutional rights, that Detectives Rice and Senanick violated plaintiff's Fifth Amendment right against self-incrimination, and that Chief Alder and Lt. Mazur violated plaintiff's constitutional rights by failing to preserve the tape of radio conversations on the night of plaintiff's arrest. Defendants also move to dismiss all claims against the municipal defendants. In addition, defendants move for attorneys' fees pursuant to 42 U.S.C. § 1988 because the aforesaid claims are frivolous within the meaning of that statute. Plaintiff cross-moves for summary judgment on the issues of the constitutionality of the Mountainside police practice to require a statement before beginning an internal affairs investigation, the failure to preserve the tape of radio conversations, and the arrest of McGill for failure to respond to police questioning.


 A. Plaintiff's False Arrest Claims

 In the Third Count of his Complaint, plaintiff alleges that defendant Olock falsely arrested the plaintiff for obstruction of administration of justice because of plaintiff's refusal to answer questions. In the Fourteenth Count of the Complaint, plaintiff alleges a general claim of false arrest against all the police officers involved. Defendants contend that plaintiff was not arrested merely for failure to answer questions, and that plaintiff's conviction for the offenses charged acts as an absolute bar to a false arrest claim. Although defendants' argument as to the effect of a conviction on a § 1983 action for false arrest does have support in certain circuits, see, e.g., Cameron v. Fogarty, 806 F.2d 380 (2d Cir. 1986), cert. denied, 481 U.S. 1016, 107 S. Ct. 1894, 95 L. Ed. 2d 501 (1987), the Third Circuit has strongly suggested that it does not approve of such an absolute bar. In Rose v. Bartle, 871 F.2d 331 (3d Cir. 1989), the Third Circuit has recently stated:

It appears that this Court has never indicated that favorable termination is a requisite element of a section 1983 false arrest claim, but rather has suggested to the contrary. See, e.g., Patzig v. O'Neil, 577 F.2d 841, 848 (3d Cir. 1978) . . . . Furthermore, whatever the prevailing common law rule, we have some doubts as to the policy determinations underlying Cameron.

 Rose, slip op. at 43-44 (emphasis in original). The Fifth Circuit has also apparently determined that conviction is not an absolute bar to a § 1983 action for false arrest. Brown v. Edwards, 721 F.2d 1442, 1448-49 n.8 (5th Cir. 1984).

 Given the Third Circuit's statements in Rose, this Court is not prepared to find that the conviction of McGill is an absolute defense for the police officers against McGill's general false arrest claims. Thus, Count Fourteen of ...

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