On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. ESX-L-3268-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parker, C.S. Fisher and Yannotti.
Plaintiff commenced this action, alleging he was falsely arrested and imprisoned and demanding relief based upon, among other things, 42 U.S.C.A. § 1983. Plaintiff has appealed, seeking our review of an order denying his motion to amend the complaint to add individual police officers as defendants and an order granting summary judgment in favor of the municipality. We remand for further proceedings regarding the application of the relation back doctrine embodied in R. 4:9-3 to plaintiff's attempt to join the individual officers as defendants more than two years after the incident referred to in the complaint. And we reverse, in part, the summary judgment entered in favor of the municipality because plaintiff provided sufficient evidence from which it could be inferred that the municipality had a policy or custom of engaging in similar constitutional violations, or had engaged in an unlawful conspiracy, at the time of plaintiff's arrest and imprisonment.
On April 14, 2003, plaintiff Darian Ehler commenced this action against defendants Belleville Police Department and the Township of Belleville (hereinafter collectively referred to as "the municipality"). He alleged that on May 10, 2002 he was threatened by Police Officer Phil Canning (Canning). Plaintiff also alleged that, less than two weeks later, Canning's attorney served him with papers, which named plaintiff as a co-respondent in a divorce proceeding between Canning and his wife Toni Ann.
In February 2002, Canning separated from Toni Ann, who began dating plaintiff in April 2002.
On June 1, 2002, after leaving his place of work in the early morning hours, plaintiff was stopped by Officer Anthony Weedo (Weedo) based upon what Weedo later described as plaintiff's "erratic" driving and his "continually changing lanes." Field sobriety tests were conducted, but out of the view of the police vehicle's video camera. Weedo reported that plaintiff's performance of the field test demonstrated that he was driving while under the influence. Plaintiff asserted that he had offered to take a breathalyzer test and also to have blood drawn to prove he was not intoxicated. He claimed that Weedo refused these offers. Weedo, on the other hand, asserted in his report that plaintiff had refused to submit to a breathalyzer test.
Plaintiff was arrested and charged with driving while under the influence, failing to submit to a breathalyzer test, careless driving, unsafe lane change, throwing debris from a motor vehicle, failing to wear a seatbelt, and refusing to show his driver's license. According to plaintiff's complaint, he was incarcerated for sixteen hours before being given an opportunity to post the $250 bail imposed.
A trial regarding the June 1, 2002 charges occurred on August 20 and 21, 2002. Plaintiff was acquitted of all charges, except the refusal to show his driver's license, which plaintiff did not have in his possession at the time of the vehicle stop.
The audiotapes of the municipal trial were apparently lost. As a result, the trial judge in this action entered an order on January 18, 2006 directing the municipal judge to reconstruct the record. In his written reconstruction, the municipal judge described the proceedings and the testimony, and thoroughly recounted his former findings.
The municipal judge explained that the testimony provided by Weedo and Officer Joseph DeRose was "impossible" to believe. In examining whether the police had probable cause to stop plaintiff's vehicle, the municipal judge held:
If I were to accept [the] testimony of Officers Weedo and DeRose there would clearly have been probable cause for the . . . stop [of plaintiff's vehicle]. But, having viewed the video tape, in most instances frame by frame, it is impossible for this Court to accept the police officers' version over what my own eyes have observed on the video which was marked into evidence.
The officers first would ask the court to justify the stop because of [plaintiff's] erratic driving. Other than for a moment (maybe two to five seconds based on the testimony of the officers) that the officers claim to have observed [plaintiff] driving before the police vehicle made a u-turn, the balance of [plaintiff's] operation was on video. I viewed the operation sequence numerous times and I did not observe any lane changes except the one made by [plaintiff] after passing a vehicle that was traveling in the right southbound lane of Franklin Avenue in the same direction as [plaintiff]. That was a slow moving vehicle which [plaintiff] only passed after he put on his turn signal and had proper clearance to get back into the right lane of traffic.
Apparently, only Officer Weedo was able to observe the six or seven lane changes that he testified to. Even Officer DeRose did not testify to any improper lane changes after the patrol vehicle made its u-turn.
Based on the inconsistencies between the video and the officers['] testimony, particularly Weedo's, it is impossible for me to believe the officers' testimony that [plaintiff] drove erratically for the brief moment that they observed [plaintiff] before the police vehicle made its u-turn. [Emphasis added.]
As for the charge that plaintiff threw debris from his vehicle, the municipal judge had this to say:
Officer Weedo testified that [plaintiff] threw something from his vehicle while [plaintiff's] vehicle was stopped at a red light at the intersection of Mill Street and Franklin Avenue at approximately 3:00 a.m. in the morning. Weedo testified that he thought it was contraband. Despite Officer Weedo's testimony, the [o]fficers did not stop [plaintiff].
I note that [plaintiff] was already stopped at the stop light and traffic was extremely light. To suggest that it was dangerous to make a stop and approach [plaintiff's] vehicle at that time as testified by Weedo is impossible for this Court to accept, especially when considering that there were two travel lanes of traffic in each direction on Franklin Avenue and that any minimal traffic that was on Franklin Avenue and Mill Street at that hour of the morning would not have been impeded. Had the stop for the suspected contraband been made, the officers would have been able to immediately retrieve what they believed was contraband immediately. [Emphasis added.]
As a result of these and other findings, the municipal judge found that plaintiff did not operate his vehicle erratically, that he did not throw any contraband or other item from his vehicle, and that the officers lacked probable cause to stop plaintiff's vehicle.
The municipal judge further held that, even if there was a basis for the vehicle stop, the State failed to prove that the officers had probable cause to believe that plaintiff was operating ...