Kirk v. City of Newark

• Decision Date: 25 January 1988
• Citation: 536 A.2d 229,109 N.J. 173
• Parties: Tomanqui KIRK, Plaintiff-Respondent and Cross-Appellant, v. The CITY OF NEWARK, a Municipal Corporation of the State of New Jersey; Hubert Williams, Director of the Newark Police Dept.; Charles M. Zizza, Chief of Police of the City of Newark; John Doe, Deputy Chief, Newark Police Dept., Youth & Community Service Division; and John Doe, Captain, Newark Police Dept., Youth Aid Bureau, Defendants, and Virginia Cardillo, Detective, Newark Police Department, Defendant-Appellant and Cross-Respondent.
• Court: New Jersey Supreme Court

Page 173

109 N.J. 173

536 A.2d 229

Tomanqui KIRK, Plaintiff-Respondent and Cross-Appellant, v. The CITY OF NEWARK, a Municipal Corporation of the State of New Jersey; Hubert Williams, Director of the Newark Police Dept.; Charles M. Zizza, Chief of Police of the City of Newark; John Doe, Deputy Chief, Newark Police Dept., Youth & Community Service Division; and John Doe, Captain, Newark Police Dept., Youth Aid Bureau, Defendants and Virginia Cardillo, Detective, Newark Police Department Defendant-Appellant and Cross-Respondent.

Supreme Court of New Jersey.

Argued Feb. 17, 1987.

Decided Jan. 25, 1988.

John C. Pidgeon, First Asst. Corp. Counsel, Newark, for defendant-appellant and cross-respondent (Glenn A. Grant, Corp. Counsel, attorney).

Isabelle R. Strauss, East Orange, for plaintiff-respondent and cross-appellant.

The opinion of the Court was delivered by

POLLOCK, Justice.

This appeal arises out of an action brought under 42 U.S.C.A. section 1983 (section 1983) by plaintiff, Tomanqui Kirk, against various defendants, including Virginia Cardillo, a Newark police detective. Kirk complains that Cardillo caused him to be arrested without probable cause in violation of the fourth and fourteenth amendments to the United States Constitution. The jury returned a verdict against Cardillo, but the trial court granted judgment notwithstanding the verdict in favor of Cardillo under Rule 4:40-2(a). The Appellate Division reversed and remanded the matter to the Law Division for a new trial. 212 N.J.Super. 201, 514 A.2d 839 (1986). We granted Cardillo's petition for certification, 107 N.J. 30, 526 A.2d 125 (1986), and Kirk's cross-petition, id. We reverse the judgment of the Appellate Division and reinstate the judgment of the Law Division.

-I-

By letter dated March 4, 1981, the Essex County Prosecutor's Office requested that the Newark Police Department investigate the February 4, 1981, scalding of a three-year-old child. Attached to the letter was the investigative report of a Division of Youth and Family Services (DYFS) caseworker and a medical report of Dr. F.W. Fuller, the treating physician. The DYFS report recited that the caseworker had examined the scene of the accident and interviewed the mother of the child and Kirk, who lived with them. According to the caseworker and Dr. Fuller, the burns were of "questionable origin."

At the time of the incident, Cardillo was employed by the Newark Police Department as a detective assigned to the Youth Aid Bureau. Her responsibilities included the investigation of child abuse and neglect. Cardillo verified the report with DYFS, and requested that Kirk come to her office. On March 12, 1981, Kirk met with Cardillo, waived his Miranda rights, and signed an exculpatory statement, in which he asserted that the scalding of the child resulted from the breaking of a bathroom sink pipe. Kirk agreed to take a polygraph test, but no operator was available. Although a polygraph examination was scheduled for March 18, 1981, Kirk failed to appear for the examination.

Thereafter Cardillo met with an Essex County Assistant Prosecutor assigned to the Newark Municipal Court, who had the responsibility to decide the existence of probable cause. Acting upon the prosecutor's advice, Cardillo filed a criminal complaint against Kirk for aggravated assault. On March 23, 1981, Kirk was arrested and held in the Essex County Jail until he posted bail five days later.

On April 8, 1981, Cardillo spoke for the first time with Dr. Fuller and requested a more detailed report. In a letter dated April 14, 1981, Dr. Fuller advised Cardillo that, consistent with Kirk's version of the incident, the child's burns appeared to be accidental in nature. Cardillo related this information to the prosecutor's office, and in May 1981 the complaint against Kirk was voluntarily dismissed.

On March 21, 1983, Kirk filed a complaint under section 1983 ¹ against the City of Newark, Police Director Hubert Williams, Chief of Police Charles Zizza, Detective Virginia Cardillo, and two unnamed John Doe defendants. Kirk claimed that in causing him to be arrested without probable cause, the defendants acted with a malicious, reckless, and negligent disregard of his constitutional rights. Before trial, the complaint was dismissed as to all defendants except Cardillo.

At the close of all of the evidence, Cardillo moved for entry of judgment pursuant to Rule 4:40-1. The court reserved decision on the motion and submitted the case to the jury, instructing that to find Cardillo liable, it must find that she acted without probable cause and with either malice or an intentional, deliberate, or reckless indifference to Kirk's constitutional rights. Additionally, the court instructed the jury that Cardillo would not be liable, even if Kirk proved all the elements of a section 1983 violation, if Cardillo acted in good faith or under the advice of counsel. The court, however, did not instruct the jury that if a reasonably well-trained police officer could have believed that probable cause to arrest Kirk existed, then Cardillo would not be liable.

The jury returned a verdict in the form of special interrogatories, finding that Cardillo filed the complaint against Kirk without probable cause. The jury found further that Cardillo filed the complaint not with malice, but with intentional, deliberate, or reckless indifference and disregard of Kirk's constitutional rights. As a result, the jury awarded Kirk damages of $10,000.

The trial court granted Cardillo's motion for a directed verdict under Rule 4:40-2(a), holding that Cardillo had probable cause as a matter of law. Without discussing the issues of immunity based upon advice of counsel or on the objective reasonableness of Cardillo's conduct, the court dismissed the complaint with prejudice.

The Appellate Division reversed and remanded for a new trial on all issues except malice, as to which the jury had found for Cardillo. 212 N.J.Super. at 207, 514 A.2d 839. The court held that except where no genuine issue of material fact exists, the issue of probable cause was for the jury, not the court. Id. Additionally, the court ruled that reliance on advice of counsel is a defense to a section 1983 action.

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II-

While this case has been wending its way through the judicial system, the United States Supreme Court has delivered two opinions that have substantially affected the rights of the parties and the role of courts in deciding section 1983 actions. Those decisions, Malley v. Briggs, 475 U.S. 335, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986), and Anderson v. Creighton, --- U.S. ----, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987), reveal that the Court has interpreted section 1983 to limit the rights of plaintiffs and to encourage disposition of the actions as a matter of law, at least when these actions arise out of an alleged unlawful arrest, search, or seizure by a law enforcement officer. To place those decisions in perspective, we review briefly the history of section 1983 actions.

Although enacted in 1871, section 1983 did not generate much litigation until 1961, when the United States Supreme Court ruled in Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), that a state official could be liable under the statute for depriving another person of his or her federal constitutional rights. See generally Note, Harlow v. Fitzgerald: The Lower Courts Implement the New Standard for Qualified Immunity Under Section 1983, 132 U.Pa.L.Rev. 901 (1984) (New Standard for Qualified Immunity ) (assessment of Harlow 's impact on the qualified immunity defense under section 1983). Six years after Monroe v. Pape, the Court recognized that such an official could defend against a section 1983 action by asserting a defense of qualified immunity. Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967). Later the Court extended the defense to high-ranking state executives. Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). Although Scheuer did not purport to define in detail the qualified-immunity defense, it intimated that the defense included both objective and subjective factors. Id. at 247-48, 94 S.Ct. at 1692, 40 L.Ed.2d at 103. Thereafter, the Court refined its definition to state explicitly that the defense included both factors. Wood v. Strickland, 420 U.S. 308, 322, 95 S.Ct. 992 1000, 43 L.Ed.2d 214, 225 (1975). Thus, the qualified-immunity defense would be lost if the official knew or reasonably should have known that his or her action would violate plaintiff's clearly established constitutional rights or if he or she maliciously intended to deprive plaintiff of those rights. Ibid. See generally Note, Qualified Immunity for Government Officials: The Problem of Unconstitutional Purpose in Civil Rights Litigation, New Standard for Qualified Immunity, 95 Yale L.J. 126, 130-31 (1985) Qualified Immunity for Government Officials (qualified immunity inquiry should be restructured as a purely legal question).

The trial court could determine as a matter of law on a motion for summary judgment whether the official's conduct had violated a clearly established constitutional right. See New Standard for Qualified Immunity, supra, 132 U.Pa.L.Rev. at 910. Whether the official had acted maliciously or whether the official actually knew that he or she had violated a clearly established constitutional right, however, produced questions of fact for the jury. Qualified Immunity for Government Officials, 95 Yale L.J. at 132. The result, as the Court has subsequently explained, was to expose government officials to the harassment and attendant costs of frivolous litigation. Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978); Qualified Immunity for Government Officials, 95 Yale L.J. at 132 n. 29. Butz involved a federal official, but since 1971, the Court has permitted suits against such officials for constitutional violations. Bivens v. Six Unknown...