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DiBella v. Borough of Beachwood

May 12, 2005; as amended May 31, 2005

ROBERT DIBELLA; JOHN MCLAUGHLIN, APPELLANTS - (CASE NO.03-4892)
v.
BOROUGH OF BEACHWOOD, A MUNICIPALITY ORGANIZED UNDER THE LAWS OF THE STATE OF NEW JERSEY; BEACHWOOD POLICE DEPARTMENT; JOHN WAGNER, CHIEF, IN HIS OFFICIAL CAPACITY AND PERSONALLY; JOHN ZUPA, POLICE OFFICER, PERSONALLY AND IN HIS OFFICIAL CAPACITY ROBERT DIBELLA; JOHN MCLAUGHLIN
v.
BOROUGH OF BEACHWOOD, A MUNICIPALITY ORGANIZED UNDER THE LAWS OF THE STATE OF NEW JERSEY; BEACHWOOD POLICE DEPARTMENT; JOHN WAGNER, CHIEF, IN HIS OFFICIAL CAPACITY AND PERSONALLY; JOHN ZUPA, POLICE OFFICER, PERSONALLY AND IN HIS OFFICIAL CAPACITY APPELLANTS - (CASE NO. 04-1257)



On Appeal from the United States District Court for the District of New Jersey District Court No. 02-CV-3883 District Judge: The Honorable Garrett E. Brown, Jr.

The opinion of the court was delivered by: Shapiro, District Judge

PRECEDENTIAL

Argued on January 11, 2005

Before: ROTH and CHERTOFF,*fn1 Circuit Judges, and SHAPIRO,*fn2 District Judge.

OPINION

Plaintiffs, Robert DiBella and John McLauglin, appeal a post-trial district court order vacating a jury award of $78,237 in compensatory damages, and $95,000 in punitive damages to each plaintiff. The judge held there had been no Fourth Amendment seizure as required in a malicious prosecution action under 42 U.S.C. § 1983. The District Court decision is affirmed.

I. FACTS AND PROCEDURAL HISTORY

On October 30, 1999, DiBella and McLaughlin were campaigning for positions on the governing body of the Borough of Beachwood, Ocean County, New Jersey. They were on public property handing out literature to pedestrians, bicyclists, and drivers stopped at a traffic light. They had also posted signs at the intersection. DiBella testified their political opponent drove by and they had a verbal confrontation. DiBella suspected his opponent then called Chief of Police, John Wagner ("Chief Wagner"), and pressured Chief Wagner to have them stop their campaigning.

Shortly after the verbal confrontation, Police Officer John Zupa ("Officer Zupa") approached DiBella and McLaughlin and told them to move their illegally parked van; they complied. When Officer Zupa later returned and told them to leave the area, they refused. DiBella and McLaughlin disputed Officer Zupa's contention he explained that to approach automobiles stopped at the intersection was dangerous and the signs were blocking motorists' views. Officer Zupa issued a summons for defiant trespass under N.J.S.A. 2C:18-3B, a petty disorderly offense when a person remains in a place, knowing he is not licensed or privileged to do so, after he receives notice of trespass by actual communication.

DiBella and McLaughlin were convicted of defiant trespass in the Borough of Beachwood Municipal Court. The Superior Court of New Jersey, Law Division, Criminal Part, holding their conduct did not constitute defiant trespass as a matter of law, reversed the conviction. The trial court then amended the charge to violation of N.J.S.A. 2C:33-2a(2) (creating a hazardous condition by an act which serves no legitimate purpose of the actor). After a second conviction, the Superior Court, Appellate Division, reversed again and all charges were dismissed.

Appellants filed this action for malicious prosecution under 42 U.S.C. § 1983 in federal district court. The jury awarded $78,237 to the appellants in compensatory damages for legal fees. The jury also awarded each appellant $75,000 in punitive damages against Chief Wagner, and $20,000 against Officer Zupa.

After the jury verdict, the judge entered judgment for defendants and ruled having to attend pretrial and trial hearings did not constitute a government "seizure" in a 42 U.S.C. § 1983 malicious prosecution action predicated on the Fourth Amendment.

DiBella and McLaughlin now appeal.

Chief Wagner and Officer Zupa cross-appeal based on: (1) qualified immunity; and (2) probable cause to issue the summons. They also appeal the jury verdict on the ground that there was insufficient malice to support an award ...


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