May 25, 2010
MICHAEL LAMONT BLACKNALL, PLAINTIFF-APPELLANT,
MICHAEL SIMONETTI, IN HIS INDIVIDUAL CAPACITY AND BRANNING TOWING, A NEW JERSEY COMPANY, DEFENDANTS-RESPONDENTS.
On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Monmouth County, Docket No. DC-2169-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 27, 2009
Before Judges Wefing and Grall.
Plaintiff Michael Lamont Blacknall filed a complaint in the Special Civil Part of the Law Division seeking judgment in the amount of $7500 against defendant Michael Simonetti, an officer of the Freehold Township Police Department, and defendant Branning Towing (Branning). The complaint includes two claims against Simonetti - that he "unlawfully seized [his] car" and that "[a]fter seizing [the] car he turned it over to defendant Branning without inventorying the contents of [his] car[,] resulting in the theft of [his] personal effects." It includes one claim against Branning - that the company "failed to secure and protect the contents of [his] car[,] which led to the theft of" his personal property - a laptop computer, a "DVD R/RW/RC Drive," a "Wi-Fi Network router/hub," three "wireless network cards," two "Pentium4 cpu's," a thirty-watt "power supply, and software."
Plaintiff appeals from an order granting defendants' motion for summary judgment and dismissing his complaint. We reverse and remand for further proceedings.
The following is a summary of the facts disclosed in the certifications and documents submitted in support of and opposition to the motions. Shortly after 10:00 a.m. on May 26, 2007, Officer Simonetti investigated a citizen complaint about the behavior of a man in a public park in Freehold Township. When Simonetti arrived, he found plaintiff in a state of partial undress and attempting to cover himself with a blanket. A glass pipe and thin piece of metal were on the ground near plaintiff's feet. Plaintiff acknowledged that they belonged to him. He was arrested and charged with luring, possession of a controlled dangerous substance, possession of drug paraphernalia, lewdness and harassment.
At the time of his arrest, plaintiff's car was legally parked in a lot in the public park and it was locked. Plaintiff, who lives a few blocks from the park and had his mobile phone with him, asked for permission to call a member of his family to arrange for one of them to retrieve his car; he also asked Simonetti to have dispatch call his home if plaintiff could not make the call himself. Although parking in this public area is permissible before dark, Simonetti denied both requests and, at 10:49 a.m., arranged for the car to be towed by Branning. In support of his motion for summary judgment, Simonetti certified that his actions in impounding the car were "[i]n accordance with local police procedures." He did not provide any additional evidence about the "procedures."
Simonetti filed a report explaining the seizure. "The vehicle was impounded due to no license[d] driver on the scene able to take possession of the vehicle and the vehicle being parked on state property." Although plaintiff was the registered owner and Simonetti was arresting him, he specified that plaintiff's car could be "released to the registered owner."
According to Kim Branning, plaintiff's car was towed to Branning's storage facility on May 26, 2007. While on Branning's lot, plaintiff's car was locked at all times and the keys were locked in Branning's office. Ms. Branning also stated that on October 3, 2007, plaintiff's father, "upon the authorization of his son," took plaintiff's personal belongings from the car and surrendered its title. Plaintiff did not dispute that his father had surrendered the title to plaintiff's car and retrieved his personal belongings from his car.*fn1
By letter dated October 29, 2007, Branning advised plaintiff that his car was towed to its storage facility on May 26, 2007 and still in its possession. The letter also warned plaintiff that it was illegal for him to abandon a vehicle and that he was being assessed a storage fee at the rate of $29 per day as of May 26, 2007.
Plaintiff was incarcerated when defendants filed their motions for summary judgment. Prior to the hearing on those motions, which were conducted on October 23, 2008, plaintiff wrote to the judge requesting an extension of time to file additional papers in opposition, an opportunity "to reply orally at the time the motion is heard," and a certification opposing defendants' motions although he did not have access to supporting materials that were at the county jail.*fn2
Cf. R. 6:4-7(a) (requiring submission to "the clerk's office"). Nothing in the record provided to us on appeal indicates that the judge addressed the requests prior to the October 23 hearing, but the transcript of the October 23, 2008 proceeding demonstrates that plaintiff was not offered an opportunity to testify or present witnesses.*fn3
Review of an order entered on a motion for summary judgment is de novo; this court must apply the same standard as the trial judge. See Liberty Surplus Ins. Corp., Inc. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (applying the Brill standard to review a grant of summary judgment). The question is whether the factual materials presented on the motion "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment or order as a matter of law."
R. 4:46-2(c). All favorable inferences must be granted to the party opposing the motion. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995).
While motions for summary judgment in the Special Civil Part are governed by the standard set forth in Rule 4:46-2(c), the procedural requirements are different. One opposing a motion for summary judgment in the Special Civil Part need not file a responding statement in the form required by paragraph (b) of Rule 4:46-2. R. 6:6-1. Instead, as explained in Rule 6:3-3(c)(4), submission of "a written response stating what facts are disputed and why a decision should not be entered" in favor of the movant suffices.
The trial judge entered summary judgment in favor of Simonetti on the ground that he established his entitlement to qualified immunity. "Qualified immunity is an affirmative defense that the defendant must establish." Schneider v. Simonini, 163 N.J. 336, 354 (2000), cert. denied, 531 U.S. 1146, 121 S.Ct. 1083, 148 L.Ed. 2d 959 (2001). Although the judge decides the validity of the defense of qualified immunity and should where possible do so prior to trial, when the issue is decided before trial "the summary judgment standard should be used." Id. at 356.
As a matter of law, Simonetti's unsupported assertion that his action to impound plaintiff's car was done in accordance with "local police procedures" was insufficient to establish his defense on the facts of this case. "The standard for qualified immunity . . . is whether . . . a police officer violated 'clearly established statutory or constitutional rights of which a reasonable person would have known.'" Schneider, supra, 163 N.J. at 354 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed. 2d 396, 410 (1982)). "If the official did not violate clearly established constitutional or statutory law, he or she would have immunity." Schneider, supra, 163 N.J. at 354.
Since 1979, the constitutional prohibition against impoundments of this sort has been clear. State v. Slockbower, 79 N.J. 1 (1979); State v. Ercolano, 79 N.J. 25 (1979). Impoundment of an automobile without probable cause or a warrant is constitutionally permissible only "upon a factual showing of substantial police need." Ercolano, supra, 79 N.J. at 33-34. Without substantial need, an "impoundment of the car by the police in the first instance [is] unreasonable in a Fourth Amendment or Art. I, par. 7 sense because not reasonably necessary for community safekeeping purposes as against an appropriate regard for the privacy interests of the driver of the car." Id. at 33.
The balance of police need and the individual's rights is assessed in light of the totality of the circumstances. State v. Mangold, 82 N.J. 575, 582 (1980) (observing that the focus is on "the legitimacy of the purpose underlying the impoundment and reasonableness of that action under the facts, including the availability of viable alternatives to police custody of the vehicle"). When "the circumstances that bring a vehicle properly to the attention of the police are such that its driver, even though arrested, is able to make his own arrangements for its custody, or if the vehicle can be conveniently parked and locked without constituting an obstruction of traffic or other public danger, the police should permit that action to be taken rather than impound it against the will of the driver . . . ." Id. at 34. Thus, in Ercolano, the Court held that upon effectuating an arrest for a gambling offense, the police violated the constitution by impounding the arrestee's legally parked car. 79 N.J. at 34. The Court reasoned:
Leaving the properly parked and locked car on the street where defendant had left it, for a reasonable period of time, presented no more danger to the car and its contents than if defendant had been on a legitimate visit to a tenant in the apartment house. In the meantime, and until he could obtain release on bail, defendant should have been afforded an opportunity to telephone his brother or others to assume custody of the car. Absent such action by the police, their seizure of the car was illegal . . . . [Ibid.]
There was no dispute that this arrest and impoundment took place between 10:00 a.m. and 11:00 a.m. Simonetti did not dispute plaintiff's assertions that his car was locked and would be legally parked until dark. Cf. South Dakota v. Opperman, 428 U.S. 364, 365, 96 S.Ct. 3092, 3095, 49 L.Ed. 2d 1000, 1003 (1976) (a case involving the impoundment of a car that was illegally parked); see Ercolano, supra, 79 N.J. at 31, 34 (noting that the car was legally parked and distinguishing Opperman on that ground); Slockbower, supra, 79 N.J. at 7-8 (discussing Opperman).
Simonetti did not contend that plaintiff failed to tell him that he had family members available to promptly remove his car. And, Simontetti did not certify to facts suggesting that the car posed a danger or significant public inconvenience justifying its removal. See Mangold, supra, 82 N.J. at 585 (finding impoundment "lawful and proper" where a vehicle involved in an accident "came to rest in a position completely obstructing the northbound lane of Route 79," "was inoperable" and "posed a serious threat to public safety").
In short, the facts did not establish that Simonetti was entitled to judgment on his affirmative defense of qualified immunity. Equally important, even if Simonetti did not have the burden of proof on this defense, the facts, viewed in the light most favorable to plaintiff, were more than adequate to permit a jury to find in favor of plaintiff on his claim that the impoundment was unlawful as a constitutionally unreasonable seizure. Accordingly, the judgment entered in favor of Simonetti on plaintiff's claim of unlawful impoundment is reversed.
The defense of "qualified immunity" discussed above does not resolve plaintiff's second claim against Simonetti. Fairly construed, plaintiff alleged not only that the impoundment was unlawful but also negligence based upon Simonetti's failure to have the contents of plaintiff's car inventoried.*fn4 That claim is subject to the procedural requirements and substantive standards of the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to :12-3. From what we can glean from the record provided on appeal, Simonetti presented no argument on this claim on his motion for summary judgment. Because Simonetti does not argue, as an alternative grounds for affirmance, that this claim should have been dismissed for plaintiff's failure to comply with N.J.S.A. 59:8-8 and N.J.S.A. 59:8-9, we also reverse the judgment granted in Simonetti's favor on plaintiff's claim of negligence and remand for further proceedings.
We turn to consider the grant of summary judgment in favor of Branning. With respect to that claim, plaintiff has submitted a certification addressing his obligation under Rule 2:6-1(a)(1) to provide a "statement of all items submitted to the court on the summary judgment motion." It provides:
Due to circumstance of plaintiff's incarceration at Mid-[S]tate Correctional Facility and remand to Monmouth [C]county Correctional Facility on another matter unrelated to this case, [p]laintiff was not able to arrange for presentation [of] affidavits or certifications from Hubert Sidney Blacknall. However, Hubert Blacknall was prepared to give oral testimony in regards to his attempts to obtain [p]laintiff['s] vehicle soon after his arrest and [i]tems he recover[ed] from plaintiff's car and the conditions for the release of those items. Plaintiff notified the [c]court [(omitted is an appendix reference to his request to present an oral response that is discussed above)] that he would orally present his evidence in opposition to the defendants['] [m]otion for summary judgment at the hearing.
As noted above, plaintiff had filed an apparently timely written request for an opportunity to respond orally and documentation corroborating the basis for his request. Although he did not file that request in strict conformity with the rules, it was never addressed. The judge had the discretion to relax or enforce the rules on the basis of proper considerations, but not to disregard it. Due to that omission and in light of the circumstances under which plaintiff terminated his participation in the proceeding, we conclude that the interest in affording plaintiff a fair opportunity to articulate facts in support of his claim against Branning requires us to vacate the judgment entered in favor of Branning and remand for further proceedings. On remand, Branning should be permitted to refile its motion to assert a counterclaim and file a third-party complaint; Branning withdrew that motion after the judge entered judgment in Branning's favor.
The judgments are reversed and the matter is remanded for further proceedings in conformity with this opinion.