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Ashby v. City of East Orange

May 8, 2008

DAVID F. ASHBY, INDIVIDUALLY AND T/A "BRAVO'S CAFÉ," BRENDA ASHBY, INDIVIDUALLY AND T/A "BRAVO'S CAFÉ," AND BARBARA HATCHER, PLAINTIFFS-APPELLANTS,
v.
THE CITY OF EAST ORANGE AND THE CITY OF EAST ORANGE POLICE DEPARTMENT, DEFENDANTS-RESPONDENTS, AND DETECTIVE REGINALD BUTTS AND OFFICER VICTOR TUCKER, DEFENDANTS.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-8381-00.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 7, 2008

Before Judges Graves, Sabatino and Alvarez.

Plaintiffs, the co-owners of a bar in East Orange and one of their employees, brought this lawsuit in 2000 against the City of East Orange ("the City"), its Police Department, and two of its police officers, arising out of two police raids on the bar that took place in December 1998. Plaintiffs allege that the police officers who participated in those raids violated their civil rights, and otherwise acted unlawfully while they were on the bar premises.

The claims against the two defendant police officers were severed for trial. In December 2006, a bench trial on plaintiffs' claims against one of the two officers resulted in a no-cause verdict. Thereafter, in February 2007, a jury similarly determined that plaintiffs had not proven their factual contentions of wrongdoing by the other named officer.

In the present appeal, plaintiffs do not seek review of the defense verdicts produced in the two trials. Rather, they appeal separate rulings of the Law Division that (1) granted summary judgment to the City and the Police Department on plaintiffs' claims of liability under the federal civil rights laws, and (2) denied plaintiffs' motion, brought almost six years after their lawsuit was filed, to amend their complaint to add new legal theories based upon the same underlying alleged conduct.

For the reasons explained in this opinion, we affirm the Law Division's rulings. In particular, we conclude that the trial court did not misapply its authority in disallowing plaintiffs' very late amendment to the complaint. We also sustain the trial court's dismissal of plaintiffs' claims against the municipal entities, a disposition that is fortified by the two binding no-cause verdicts reached as to the underlying conduct of the named individual officers.

I.

At the times relevant to this case, plaintiffs David and Brenda Ashby, husband and wife, owned a bar and restaurant known as Bravo's Café ("Bravo's") in East Orange. Barbara Hatcher, a co-plaintiff in this case, was a Bravo's employee.

On the evening of December 1, 1998, several members of the Police Department's vice squad were conducting surveillance by the rear door of Bravo's. The police officers observed several men making what they perceived to be drug sales, and then going back into the building. The surveillance team contacted their supervisor, Sergeant Michael Williams, who met with them and formulated a plan of operation to enter the premises.

At that same time, the Ashbys were sitting at the bar inside Bravo's, having dinner. About thirty to forty patrons were also present, along with at least two other employees, including Hatcher.

According to plaintiffs, at about 8:00 p.m. that night, fourteen to twenty men and women suddenly came through the front and back doors of the premises. Several of them had guns drawn. Plaintiffs allege that they did not immediately realize that the persons who entered were police officers, although the record indicates that at least two of the officers were in uniform.

The facts regarding what ensued after the police entered Bravo's that night are substantially disputed. According to plaintiffs,*fn1 the officers directed everyone inside the bar to lie down on the floor. The Ashbys contend that guns were pointed at their backs, and Hatcher alleges that an officer put a gun to her head. Plaintiffs further allege that the police officers used profanity and rough manners in addressing them and their customers.

One of the police officers who participated in the vice squad's raid that night was Detective Reginald Butts, who was individually named as a co-defendant in plaintiffs' complaint. David Ashby contends that Detective Butts placed him in handcuffs, and then grabbed him by the collar. The detective then allegedly dragged Mr. Ashby down a hallway, pushed him against the wall, and addressed him in a hostile and profane manner. According to plaintiffs, Detective Butts was retaliating against Mr. Ashby for refusing to allow him and a companion into the bar about a month earlier because they appeared to be inebriated.

The officers conducted a search of the bar area. Each patron was patted down for weapons and drugs. Female police officers took Brenda Ashby, Hatcher and another female employee into the ladies room, where they were subjected to a strip search. Plaintiffs allege that the police left the door to the ladies room open during the strip search, thereby enabling male officers to observe the three women through the door opening while they were disrobed. Although the males on the premises were frisked, none of them were strip-searched.

The police confiscated money from the bar's cash register, as well as two bags of cash and a lock box containing cash receipts. When the lock box was eventually returned to the Ashbys, it was missing over $500. Plaintiffs also claim that the police took liquor from behind the bar and damaged the pool tables and other things.

David Ashby was arrested that night and charged with illegally selling alcohol to a minor.*fn2 The police also arrested two customers for the possession of illegal narcotics.*fn3

Defendants deny that any police misconduct took place that evening. According to a report Sergeant Williams wrote after the December 1 incident, the police officers involved in the raid, including those in plainclothes, were all "clearly identifiable." Sergeant Williams asserted that it was necessary for the police, upon entering Bravo's, to detain and secure everyone on the premises "for safety reasons." He maintained that such a search was necessary because "patrons inside [Bravo's] are known to have weapons." Sergeant Williams also noted that police officers witnessed two patrons attempting to hide or dispose of narcotics as they entered, and he confirmed that those two persons had been arrested.

As to the strip searches of the three females, Sergeant Williams maintained that they were conducted in private, behind closed doors. The sergeant asserted that he "was on the scene from start to finish [and that] all officers conducted themselves in a professional manner." He specifically denied that any of the officers abused anyone inside the bar.

The day after Bravo's was raided, David Ashby filed a citizen's complaint with the Police Department. The Department conducted an internal investigation of Mr. Ashby's allegations of police misconduct. During the course of that investigation, the lieutenant in charge interviewed Mr. Ashby. The lieutenant found Mr. Ashby to be incredible, describing him as "very evasive[,] vague, [and] combative," noting that Mr. Ashby "changed his story several times." The lieutenant reviewed a written report from Detective Butts, who specifically denied using any physical force against Mr. Ashby. The lieutenant also considered Sergeant Williams's written version of the events in question.

Based on the information he gathered, the investigating lieutenant concluded that Mr. Ashby's allegations were without merit. The lieutenant suggested that the allegations were motivated by a self-interested desire on Mr. Ashby's part to protect his liquor license. Consequently, the ...


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