On appeal from the Superior Court of New Jersey, Law Division, Union County.
Michels, Deighan and R.s. Cohen. The opinion of the court was delivered by Michels, P.J.A.D.
We granted leave to defendants Robert Glenn, J. Delisio, J. Mai, R. Miller, K. Salbato, J. Rumplash, J. Reynolds, R. Rivera, and J.V. Jacobs, New Jersey State Police Officers (hereinafter collectively referred to as State Police Officers) and Clinton L. Pagano, Superintendent of the New Jersey State Police Department (Superintendent Pagano) to appeal from an order of the Law Division that denied their motion for summary judgment in this action brought by plaintiffs Stanley Gurski (Gurski) and Eileen Gurski, individually and on behalf of their minor children, Joseph Gurski and Christopher Gurski under 42 U.S.C.A. 1983 and the New Jersey Tort Claims Act.
By way of background, on April 17, 1985, a warrant was issued authorizing the search of Gurski and his home for firearms. The State Police had received information that Gurski was engaged in firearms dealings within the State of New Jersey without having obtained a New Jersey firearms dealer's
license. The following day, April 18, 1985, at approximately 8:00 a.m., several State Police Officers appeared at the Gurski residence to execute the warrant. Although Gurski was not at home at the time, his wife and children were there. The officers entered the premises and began their search. Gurski charged that during the search, the State Police Officers frightened his wife and children, refused to allow them to leave, used abusive language in their presence, directed sarcastic comments at his wife, and destroyed and mutilated his property, including breaking a set of stairs leading to the attic, shattering flower pots and vandalizing an heirloom cedar chest. Additionally, Gurski charged that the State Police Officers helped themselves to refreshments, including soda and coffee, left dirty cups and utensils, used the telephone, relaxed on his lawn furniture and "dry fired" weapons in full view of the neighbors.
Pursuant to the search, the State Police Officers seized numerous firearms, explosive devices and related items. When Gurski returned home, five hours after the search had begun, he was placed under arrest. Gurski was charged with (1) possession of destructive devices in violation of N.J.S.A. 2C:39-3a; (2) possession of a machine gun in violation of N.J.S.A. 2C:58-5 and N.J.S.A. 2C:39-5a; (3) possession of firearm silencers in violation of N.J.S.A. 2C:39-3c; (4) the manufacture of firearm silencers in violation of N.J.S.A. 2C:39-9c and N.J.S.A. 2C:5-1a(3), and (5) the manufacture of firearms in violation of N.J.S.A. 2C:58-1 et seq. and N.J.S.A. 2C:39-9d. Following a jury trial, Gurski was acquitted of all charges.
On May 7, 1986, Gurski filed a motion in the Law Division seeking the return of the various weapons and destructive devices that were seized by the State Police. The State did not oppose Gurski's application, and therefore, on June 10, 1986, the trial court ordered the return of all property seized by the State Police Officers on April 18, 1985. Upon receipt of the trial court's order directing the return of Gurski's property, the State Police, apparently for the first time, undertook a review of the items seized to determine if any of them were illegal per
se and constituted contraband. On September 15, 1986, the State Police informed Gurski that certain items were illegal contraband and, therefore, would not be returned.
On September 19, 1986, more than one year after the property was seized and approximately three months after the trial court ordered its return, the State Police returned to Gurski all property seized with the exception of those items that were considered to be contraband. Gurski thereupon moved for sanctions against the State for failure to comply fully with the trial court order of June 10, 1986. The State Police contended that sanctions should not be imposed since it had attempted in good faith to comply with the order by returning all of Gurski's property with the exception of the alleged " prima facie contraband," which it claimed could not be legally returned. On May 28, 1987, the trial court ordered that the State return "any and all property held by it to [Gurski] . . . within 20 days." The order further provided that if the State did not return the property within 20 days or file an appeal and obtain a stay of the order, a sanction of $200 per day would be imposed for each day the State was in violation of the order. In addition, the trial court awarded Gurski counsel fees of $500.
The State appealed and we stayed the order to enable the State to institute forfeiture proceedings and to seek a court order impounding the alleged items of contraband pursuant to the provisions of N.J.S.A. 2C:64-1 et seq. We also ordered the State to furnish Gurski with a list of all items seized and the name and address of the person having custody and control over these items. Thereafter, in an unpublished opinion, we affirmed the order of the Law Division awarding Gurski counsel fees. State v. Gurski, (A-4783-86T5).
The State instituted a civil forfeiture proceeding in the Law Division. The State sought a judgment (1) extinguishing any and all property rights or claims that Gurski had in the items seized and (2) confirming that the ownership of those items vested in the State at the time of its seizure pursuant to
N.J.S.A. 2C:64-1a(1) and N.J.S.A. 2C:64-2. On the day that the matter was scheduled for trial, the State and Gurski entered into a tentative settlement. However, Gurski was later notified that the proposed settlement had not been approved by State authorities. The trial court thereupon directed all counsel, as well as a representative of the State Police, to appear and explain why the proposed settlement could not be finalized. On April 15, 1988, the State's attorney informed the trial court that Superintendent Pagano had disapproved the proposed settlement. Gurski then moved for summary judgment dismissing the forfeiture claim. The trial court granted the motion, reasoning simply that "the matter was decided, an order was entered and there was no appeal taken from that order. The matter is res judicata." We reversed the order of the trial court in a published opinion in State v. One Wrist Sling Shot, 230 N.J. Super. 498, 553 A.2d 1352 (App.Div.1989). We held there that the State should have an opportunity to present evidence to establish that the property seized constituted prima facie contraband within the forfeiture provisions of the New Jersey Code of Criminal Justice notwithstanding the failure of the State to contest the trial court's order, stating, in part:
The State's failure to contest the return of the seized property, whether the result of mistake or neglect on the part of the Deputy Attorney General or the State Police official handling this matter, cannot operate to negate the State's responsibility and duty to provide for the public safety of its citizens in seeking the forfeiture of prima facie contraband pursuant to the provisions of the New Jersey Code of Criminal Justice (Code). N.J.S.A. 2C:64-1 et seq. N.J.S.A. 2C:64-1 of the Code specifically describes property that is subject to forfeiture and in which no property right shall exist. N.J.S.A. 2C:64-2 and N.J.S.A. 2C:64-3 set forth the procedure to be followed with respect to the forfeiture of prima facie contraband and property other than prima facie contraband. See State v. Cavassa, 228 N.J. Super. 204, 209 [549 A.2d 458] (App.Div.1988). ...