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Frank Alfano, Jr v. Patrolman Pierce Schaud

February 14, 2013

FRANK ALFANO, JR., PLAINTIFF-APPELLANT,
v.
PATROLMAN PIERCE SCHAUD, LONGPORT POLICE DEPARTMENT, AND BOROUGH OF LONGPORT, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-2046-09.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Submitted January 7, 2013

Before Judges Parrillo, Sabatino and Maven.

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

Plaintiff, Frank Alfano, Jr., appeals from the summary judgment dismissal of his two-count complaint against defendant Pierce Schaud, alleging violations of the New Jersey Civil Rights Act, N.J.S.A. 10:6-2, arising from a traffic stop.*fn1 We affirm.

The facts, viewed most favorably to plaintiff, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), are as follows. Defendant is a patrolman for the Borough of Longport and had been for the four years preceding the incident in question. On May 15, 2009, he responded to a motorist's report of a traffic hazard caused by a parked car obstructing views of traffic at the corner of 24th and Atlantic Avenues. Indisputably, plaintiff, a county employee who was delivering paper products to the municipal building at the time, was parked illegally outside the Longport library.

At 9:33 a.m., from his patrol vehicle, defendant radioed to police dispatch that he was responding to the passerby's complaint and requested the dispatcher to contact the library to locate the driver of the vehicle as it was causing a hazard. Thereafter, the librarian informed plaintiff that Longport police were waiting for him outside. Plaintiff then exited the building and met defendant, who advised him that he was parked illegally. Plaintiff responded that the two one-hour parking spots were being occupied by the Mayor and another official and if they did not park there all day, then plaintiff would have a parking space.

This much appears undisputed. However, the parties' versions of the events occurring thereafter significantly diverge. According to plaintiff, defendant became very upset, asked for plaintiff's driver's license, threatened to have him fired, and accused him of being a political enemy. The entire encounter lasted approximately forty minutes. When plaintiff asked to be ticketed so he could leave, defendant supposedly responded that they were being "watched" and that the officer had to make it appear as if he were giving plaintiff a hard time.

Defendant denies the confrontation was politically motivated and states that he asked for plaintiff's driving credentials only after plaintiff started cursing at him. According to defendant, the entire incident lasted ten to fifteen minutes and ended not with the issuance of a ticket, but rather a verbal warning and a suggestion that plaintiff park in the nearby police parking lot in the future. During the encounter, when plaintiff said he felt he was being "targeted" because of his position on certain municipal issues, defendant assured him that he was simply doing his job responding to a complaint of a traffic hazard by a passing motorist, and that while he was completely apolitical, he would not tolerate plaintiff's attitude.

Defendant's account of the duration of the traffic stop is supported by a real-time audio recording and transcript of the police dispatch radio traffic on the date and time in question, with verbal time markers, which demonstrate that the encounter lasted only nine minutes. As recounted by the motion judge in his decision granting summary judgment dismissal of plaintiff's complaint:

The recording indicates that [defendant] radioed to dispatch at 9:36 a.m. on May 15, 2009 regarding a "parking problem." At 9:38 a.m., a dispatcher called the Longport Library and spoke to a "Kathy," who asks a "Frank" if that is his vehicle, and "Kathy" tells the dispatcher that he was coming out to move the vehicle. At 9:39 a.m., [defendant] calls in to dispatch that he is going to be "out with that male from the County. Apparently he has a little bit of a problem with me doing my job." At 9:40 a.m., [defendant] calls in to dispatch with the license plate number of [plaintiff's] vehicle. At 9:45 a.m., [defendant] says, "I want to be clear. I corrected the attitude problem from that driver, and he's sent on his way, told him where to park next time." At 9:46 a.m., [defendant] calls in to dispatch to indicate that he will be "out of service for a couple minutes" as he was going to be dropping "Car 34 off at Margate Garage. They have to put a new window switch in this car."

As to the latter, Police Chief Pacentrilli certified that he authorized the order for the driver side power control switch for defendant's patrol vehicle; the installation of the power switch occurred within minutes; and ...


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