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Connor v. Powell

January 31, 2000

SONDRA CONNOR, PLAINTIFF-APPELLANT,
v.
PENELOPE POWELL AND JOHN DOE, (FICTITIOUS NAME), DEFENDANTS, AND NEWARK POLICE DEPARTMENT, OFFICER FOSTER BADGLEY, SGT. JOHN CANTALUPO, OFFICER JAMES BIRCSAK AND ACT. LT. RICHARD MANDRIOTA, DEFENDANTS-RESPONDENTS.



The opinion of the court was delivered by: Garibaldi, J.

Argued November 9, 1999

On certification to the Superior Court, Appellate Division.

This appeal concerns the trial court's involuntary dismissal of plaintiff's claims against four City of Newark police officers for false arrest, false accusation, false imprisonment, and malicious prosecution under 42 U.S.C.A. § 1983 ("Section 1983"). The central issue on appeal is whether there was probable cause, or alternatively, whether it was objectively reasonable for the police officers to believe that probable cause existed to arrest plaintiff and to issue a complaint-warrant charging her with aggravated assault and possession of a weapon for an unlawful purpose, and a separate complaint-summons for possession of a dangerous weapon.

I.

Sandra Connor is the executive director of the Foundation for Servicing Adults with Learning Disabilities of New Jersey. In that capacity, she supervises the operation of a bingo game conducted in a hall located in Newark. On Saturday, May 14, 1994, sometime around noon, Connor was preparing for the day's bingo activities when she observed Penelope Powell engaging in illegal gambling in the bingo hall. At that time, there were about fifty people in the bingo hall. Connor, who was approximately fifty feet from Powell, warned her to stop the illegal activity. The two women exchanged strong words in raised voices. According to plaintiff and several other witnesses, Powell responded by attacking Connor with a wooden chair, and hitting her several times on the head, shoulders, arms, and hands. Connor raised her arms above her head to protect herself. Powell's final blow struck a bingo volunteer. Connor testified that she had nothing in her hands at the time of the attack, and none of the witnesses who testified at trial saw any object in Connor's hands.

Connor sought the assistance of James Bircsak, an off-duty Newark police officer who witnessed the incident. According to plaintiff, Officer Bircsak was periodically employed by the Foundation to provide security. Officer Bircsak, however, denied ever working for the bingo hall.

Nevertheless, Officer Bircsak was present in the bingo hall when the incident occurred. According to plaintiff and bingo volunteer Marsha Ellison, Officer Bircsak was sitting in the snack bar area, approximately thirty-five feet away from where the incident took place. After being asked by Ellison to assist Connor, Officer Bircsak walked over and watched the altercation. Connor told Officer Bircsak: "You saw what happened. I want her arrested." According to Connor, Officer Bircsak responded that he could not arrest anyone because he was a "rookie" and "wasn't supposed to be there." A bingo volunteer then summoned the police.

Approximately fifteen minutes after the incident, Officer Foster Badgley of the Newark Police Department arrived at the scene. Officer Badgley and Officer Bircsak went outside to talk for a few minutes. When Officer Badgley returned inside, he asked plaintiff if she "was sure she wanted to make this complaint." Connor told Officer Badgley that Powell had assaulted her with a chair and that she wanted Powell arrested. Powell admitted to striking Connor several times with the chair, but claimed that plaintiff had threatened her with a fork and that she hit Connor in self-defense. Powell did not specify whether the fork was made of plastic or metal. However, the record reflects that the only forks in the bingo hall were plastic forks given to the public and two metal forks used to cook hotdogs in the snack bar area. Ellison, who was in the snack bar, testified that she was in possession of the two metal forks that day.

Following the incident, neither Connor nor Powell exhibited any signs of injury. Officer Badgley asked Powell to point out the fork used by Connor in the attack, but she could not. Officer Badgley did not ask Powell to describe the fork. Officer Badgley stated that he did not look for the fork because he "wasn't going to start searching the premises for an item" when he "couldn't tell . . . whether that was the item or not." Officer Badgley also refused plaintiff's request to take a chair to the police station as evidence because Connor could not identify from the hundreds of wooden chairs in the bingo hall the specific chair Powell used to strike her. Officer Badgley did not speak to any of the approximately fifty people in the bingo hall about the incident. Likewise, none of the witnesses approached Officer Badgley to tell him what took place.

According to plaintiff, both women voluntarily accompanied Officer Badgley to the East District police station of the Newark Police Department. Plaintiff testified that she believed she was going to the police station to file a complaint. By contrast, Officer Badgley stated in his deposition that the women were arrested at the scene. Officer Badgley explained:

I advised them that if they wished to make complaints against each other both would be arrested. If they did not wish to make complaints against each other, neither one would be arrested. They both stated they wanted the other one arrested. I arrested both of them.

When Connor arrived at the East District station, she saw Powell's daughter, a Newark police officer, in uniform. Connor and Powell repeated their conflicting factual allegations to the police. Powell signed a complaint against Connor alleging that Connor attacked her with a fork. Powell was charged with simple assault and was issued a summons. She was immediately released.

In what the Appellate Division correctly characterized as inartfully drafted complaints with erroneous statutory citations, *fn1 plaintiff was charged on a complaint and warrant with aggravated assault and possession of a dangerous weapon, a fork, for an unlawful purpose. The police issued a separate summons and complaint against plaintiff, charging her with possession of a dangerous weapon, a fork. Because all of the complaints filed against plaintiff contained erroneous statutory citations, to determine exactly what charges were intended is difficult. It is undisputed, however, that unlike Powell, Connor was charged with serious indictable offenses, arrested, and placed in jail. Connor testified that when she arrived at the station, Officer Badgley first told her that she was under arrest. She was then handcuffed and chained to a chair. Connor was permitted to make one telephone call to her lawyer. Her attorney spoke with Sergeant John Cantalupo, the booking sergeant and acting desk lieutenant on duty at the time the charges were filed.

While at the East District Precinct, Connor demanded to be taken to a hospital and was transported to University Hospital at 4:00 p.m. According to Connor, Officer Bircsak visited her at the hospital and implored her not to report him because he was a rookie cop and did not want another incident reported against him. Two other officers directed Connor to sign a complaint they had prepared against Powell for simple assault, but Connor refused. Connor stated that one officer threatened that if she did not sign the complaint she was "going to have big trouble."

At 7:00 p.m., Connor returned from the hospital to the East District station. Shortly thereafter, she was transferred to the Newark Police Department's main headquarters at Green Street, where she was placed in a jail cell at approximately 7:30 p.m. Thereafter, Connor had no contact with any of the officer defendants. The cell-block personnel were responsible for Connor's bail procedure and release. Plaintiff never discussed bail with any of the defendants. At Green Street, Connor saw Powell, who was unrestrained, sitting with her husband, a retired Newark police officer, and her daughter, a current member of the Newark police force.

An "on-call" municipal court judge set bail in the amount of $350 sometime during the day of the arrest, as indicated in handwriting on the face of the complaint. There are no documents indicating the name of the officer who placed the bail call or the time at which the call was placed. Lieutenant Mandriota stated in his deposition that he had no knowledge of any record or log kept in that regard. That Connor was never told about bail is uncontroverted. While in the jail cell, Connor asked numerous officers when she was going to be released, but the officers ignored her. Plaintiff contends that because this was her first arrest she knew nothing about the procedures for posting bail.

Plaintiff's friend, Barbara Grossman, testified that she made several inquiries of the police concerning Connor's release. Grossman asked a receptionist at Green Street about the procedure for Connor's release, and he replied that nothing could be done until the following day. Grossman also stated that she made five or six telephone calls during the night seeking information about Connor's release, although she did not remember the names of the individuals with whom she spoke. Finally, at 7:00 a.m. on Sunday, Grossman spoke with a police matron who instructed her to call a bail bondsman. Grossman contacted a bail bondsman who inquired on Connor's behalf and learned that her bail had been set. Grossman and plaintiff's daughter arrived at 11:30 a.m. on Sunday with the bail money. Bail was not posted until about 3:30 p.m. on ...


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