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Tarus v. Borough of Pine Hill

November 23, 2005

ROBERT WAYNE TARUS, PLAINTIFF-APPELLANT,
v.
BOROUGH OF PINE HILL, MAYOR LESLIE GALLAGHER AND POLICE CHIEF JOHN WELKER, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. CAM-L-4084-03.

The opinion of the court was delivered by: Parrillo, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Submitted October 24, 2005

Before Judges Parrillo, Holston, Jr. and Gilroy.

Plaintiff, Robert Tarus, sued the borough, mayor, and police chief of Pine Hill, alleging that he had been arrested without probable cause, maliciously prosecuted, and defamed when he refused to stop videotaping council meetings, a right to which he claims entitlement under both Article I, ¶ 6 of the New Jersey Constitution and state common law. The motion judge disagreed and granted defendants summary judgment, dismissing all claims. Plaintiff appeals, and we affirm.

The facts, which are undisputed, may be briefly stated. Plaintiff, a resident of Pine Hill Borough who regularly attends borough council meetings, was permitted to videotape the June 19, 2000 session because no one on the council or in the audience objected. Although plaintiff suggested at that time that he would be videotaping future meetings, he did not attend another meeting until September 18, 2000, when he began videotaping the public session without permission. Mayor Leslie Gallagher polled those present and found that several members of the audience did not wish to be videotaped. Plaintiff refused three requests of Mayor Gallager to turn off the video camera, stating that he had the right to videotape the proceedings under the Maurice River Tp. case*fn1 . The mayor then asked Police Chief John Welker to remove plaintiff, and Chief Welker asked plaintiff to stop recording. Plaintiff responded that the only way that the camera would be turned off would be if Chief Welker arrested him. Chief Welker turned off the video camera and escorted plaintiff out of the meeting room, where he offered to permit plaintiff back into the meeting room if he agreed to keep the camera off. Plaintiff again refused, and Chief Welker then formally charged plaintiff with disorderly conduct in violation of Borough Ordinance 3-11.1b.

An editorial account of the event appeared in the September 20, 2000 Courier-Post newspaper. A quote from Mayor Gallagher was included in the editorial which read:

The council didn't want him to film them. I asked him to turn off the camera, and he refused to do it. We can't permit private people to film. If it was an organized filming, that would be different . . . .

If he was a decent resident, we would have no problem.

Basically, the same sequence occurred again at the October 23, 2000 council meeting. Plaintiff set up his video camera on a tripod in the back of the meeting room. Several audience members expressed a desire not to be videotaped. Consequently, the mayor repeatedly asked plaintiff to turn the video camera off and even offered him the opportunity to videotape the proceedings from the front of the meeting room so the audience would not be included in the footage. Plaintiff, however, refused, citing the Maurice River Tp. case. The Borough Solicitor attempted to explain that decision to plaintiff, but plaintiff disagreed with the solicitor's interpretation. At the mayor's instruction, Chief Welker then escorted plaintiff from the meeting room and again requested that plaintiff keep the video equipment off. In the course of a twenty-minute conversation outside of the meeting room, plaintiff told Chief Welker he would have to arrest him in order to keep his camera off. Chief Welker then arrested him for violating the borough's disorderly conduct ordinance.

One week later, on October 31, 2000, a municipal court judge found plaintiff not guilty of the two disorderly conduct charges, reasoning that plaintiff "had a right here to assert his right to film this meeting and . . . he did it in a manner which was not violative of our disorderly conduct statute." Since then, plaintiff has been permitted to videotape council meetings.

On September 20, 2001, plaintiff filed a 42 U.S.C.A. § 1983 action against defendants in the Federal District Court, claiming that he had been arrested without probable cause and maliciously prosecuted in violation of his civil rights. The District Court granted defendants' motions for summary judgment as to all of plaintiff's federal claims, but declined to exercise supplemental jurisdiction over his state law claims, dismissing them instead without prejudice. The court dismissed plaintiff's federal claims of false arrest and malicious prosecution because plaintiff's refusal to obey the police chief's order to stop videotaping and consequent disruption of council meetings established probable cause for arrest. In this regard, the court specifically found:

probable cause for Chief Welker to determine that Plaintiff's purpose was to disrupt a lawful meeting, and that his acts tended to ...


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