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Kelly Ramos v. Herbert Flowers

September 21, 2012


On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1248-08.

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



Argued February 16, 2012

Before Judges Cuff, Waugh, and St. John.

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

Plaintiff Kelly Ramos appeals the Law Division's April 29, 2011 order granting defendant Herbert Flowers' motion for summary judgment and dismissing his complaint with prejudice. We reverse and remand for further proceedings consistent with this opinion.


We discern the following facts and procedural history from the record on appeal. Because we are reviewing a motion for summary judgment, we outline the facts in the light most favorable to Ramos, the non-moving party. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995).


Ramos is a documentary filmmaker. In 2006, he was working on a project about the emergence of gangs in Trenton. Flowers is a police officer employed by the Trenton Police Department. Ramos contends that he had five encounters with the Trenton Police during the time he was filming the activities of various members of the "Sex Money Murder" Bloods sect, one of the largest Bloods gang units in Trenton. Three of the encounters involved Flowers. He alleges that Flowers' actions during those three encounters interfered with his constitutional rights to free speech and assembly, as well as his right to be free from unlawful police search and seizure.

On May 12, 2006, Ramos attended a birthday party in Trenton. Several known gang members were also in attendance. They were socializing and drinking alcohol "out front of private property." When the Trenton police arrived at the scene, Ramos was filming and "had positioned his vehicle in such a way so that its headlights shone on the participants of the party." Ramos explained what he was doing to the police. Nevertheless, Ramos was arrested and charged with obstructing traffic, contrary to N.J.S.A. 39:4-67; improper parking, contrary to N.J.S.A. 39:4-135; leaving an unattended vehicle running, contrary to N.J.S.A. 39:4-137; and obstructing a public passage on a sidewalk, contrary to N.J.S.A. 2C:33-7.

In another incident that occurred shortly thereafter, Ramos was "filming on a public sidewalk and creating no hazard or interference with anyone else. Trenton Police Officers arrived at the scene . . . and very sternly demanded [that Ramos] turn his camera off."

On May 20, 2006, Ramos was driving in Trenton, "again in the process of obtaining video for the documentary." Police officers pulled him over when they noticed that he was filming. They cited Ramos for improperly parking within an intersection, contrary to N.J.S.A. 39:4-138(a). According to Ramos, he was only parked within the intersection because he had been pulled over by the police.

On July 2, 2006, Ramos arrived at a Trenton park where police officers were "shutting down" a barbeque attended by a large number of known gang members. Ramos started filming the interaction between the police and the gang members. He was asked by the police to move across the street, but allowed to continue filming once he did so.

Approximately ten minutes after Ramos had relocated, Flowers approached him and told him that "something would happen to him" if he did not stop filming. Flowers also told him that he was going to investigate his "so-called" documentary. Nevertheless, Ramos continued filming from across the street and only stopped when he had finished.

On July 6, 2006, the Trenton police responded to a call from the Trenton Public Library to investigate a meeting being held by known gang members on its premises. One of Ramos's sources gave him a tip that he should go to the library to film the events as they unfolded. Once Ramos arrived at the library, Flowers told him he was interfering with a police investigation, adding: "I am sick of you already, I am sick of seeing you, I do not want to hear you anymore, you are not allowed here anymore." Ramos asserts that Flowers grabbed his video camera and put it in his car. Flowers then told Ramos: "If I see you again . . . I am locking you up and I don't care what for . . . you better not let me see you again . . . watch what happens."

Ramos contends that he stopped working on his documentary after the July 6 encounter at the library because he feared Flowers would arrest him for no reason and ruin his life. Ramos subsequently licensed some of his gang footage to the History Channel, for which he was paid. He does not allege that he suffered any emotional distress, physical harm, or damage to his property.

In January 2007, the citations Ramos received on May 12, 2006 were dismissed, with one exception. The citation for obstructing a sidewalk was downgraded to a city ordinance violation, after which Ramos pled guilty and paid a fine.


Ramos filed a three-count complaint on May 12, 2008. Counts one and two asserted claims against Flowers under the New Jersey Civil Rights Act (Act), N.J.S.A. 10:6-1 to -2. The first count was based on the allegation that Flowers interfered with Ramos's free-speech rights under Article I, paragraphs 6 and 18 of the New Jersey Constitution, as well as the First Amendment to the United States Constitution. The second count alleged that Flowers violated Ramos's rights to be free from unlawful search and seizure under Article I, paragraph 7 of the New Jersey Constitution and the Fourth Amendment to the United States Constitution. The third count, which asserted claims against the Trenton Police Department, the City of Trenton, and the then police director, was subsequently dismissed by consent. Flowers answered the complaint, denying its material allegations.

Following discovery, Flowers filed a motion for summary judgment, arguing that Ramos's claims were barred by the doctrine of qualified immunity. Neither party having requested oral argument, the motion judge decided the motion on the papers submitted by both sides. He put an oral decision on the record on April 29, 2011.

The motion judge determined that Flowers was entitled to qualified immunity on the Civil Rights Act claims, because he found there was no well-established right to videotape the police at the time of the incidents involving Flowers. He relied primarily on Kelly v. Borough of Carlisle, 622 F.3d 248 (3d Cir. 2010). In that case, the Third Circuit concluded that "there was insufficient case law establishing a right to videotape police officers during a traffic stop to put a reasonably competent officer on 'fair notice' that seizing a camera or arresting an individual for videotaping police during the stop would violate the First Amendment." Id. at 262. With regard to the May 12, 2006 arrest, the judge held that Ramos's guilty plea demonstrated his acknowledgement of probable cause for his arrest. The judge entered an order granting summary judgment and dismissing the complaint.

This appeal followed. We granted the motion of the American Civil Liberties Union of New Jersey (ACLU) to appear and argue amicus curiae.


On appeal, Ramos argues that the motion judge erred (1) in applying qualified immunity to actions brought under the Civil Rights Act and (2) in dismissing his unlawful arrest claims.


It is well-established that our review of the motion judge's conclusions of law is de novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) ("A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference."). We apply the same standard as the trial court under Rule 4:46-2(c). Brill, supra, 142 N.J. at 539-40. In addressing a motion for summary judgment, a judge must "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, ...

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