Merritt v. Kelly
| Docket Number | A-0754-21 |
| Decision Date | 02 November 2023 |
| Parties | JAMAAL MERRITT, JR., Plaintiff-Appellant, v. OFFICER JOHN KELLY, CAPTAIN MICHAEL DAMMANN, BOROUGH OF CARTERET, CARTERET POLICE DEPARTMENT, Defendants-Respondents. |
| Court | New Jersey Superior Court — Appellate Division |
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
Argued October 11, 2023
On appeal from the Superior Court of New Jersey, Law Division Middlesex County, Docket No. L-7741-19.
Kevin Thomas Flood argued the cause for appellant (Law Office of Kevin T. Flood, LLC, attorneys; Lon C. Taylor, of counsel and on the briefs; Kevin Thomas Flood, on the briefs).
Roy Thomas Caplinger argued the cause for respondents (DeCotiis FitzPatrick Cole & Giblin LLP, attorneys; Roy Thomas Caplinger and Adrien Al-Malik Moncur, on the brief).
Karen D. Thompson, Senior Staff Attorney, argued the cause for amicus curiae American Civil Liberties Union of New Jersey Foundation (American Civil Liberties Union of New Jersey Foundation, attorneys; Karen D. Thompson, Alexander R Shalom, and Jeanne M. LoCicero, on the brief).
Before Judges Natali and Puglisi.
Plaintiff Jamaal Merritt, Jr., appeals from two Law Division orders that dismissed his complaint in which he alleged defendants Officer John Kelly, Captain Michael Dammann, Borough of Carteret, and Carteret Police Department (CPD) (collectively defendants) violated the New Jersey Civil Rights Act, N.J.S.A. 10:6-1 to -2 (NJCRA) by: 1) retaliating against him for exercising his right to freedom of speech; 2) unlawfully arresting and maliciously prosecuting him; 3) manufacturing false evidence; and 4) engaging in a civil conspiracy to deprive him of his constitutional due process rights. Plaintiff also averred Carteret and CPD acted pursuant to an unspecified policy, custom, or practice in failing to adequately train, supervise or discipline Officer Kelly and Captain Dammann, contrary to the NJCRA.
Plaintiff first challenges a January 8, 2021 order granting defendants' joint Rule 4:6-2(e) motion and dismissing, with prejudice, the six-count complaint.
He contends the court erred in relying upon the municipal court's finding of probable cause to dismiss his claims and to support Officer Kelly's qualified immunity defense, and in determining the notice requirements of the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to -12-3 applied to all his causes of action. Plaintiff also appeals a September 29, 2021 order denying his application in which he requested the court provide additional findings of fact and conclusions of law and reconsider its January 2021 order. Separately, plaintiff challenges the court's oral ruling not specifically memorialized in a written order, denying his recusal application.
After carefully considering the parties' contentions against the record and applicable law, we reach the following conclusions. First, we are convinced the court erred in applying collateral estoppel principles to support its probable cause finding. Second, the complaint sufficiently alleged defendants lacked probable cause to effectuate his arrest and disputed Officer Kelly's qualified immunity defense, and because the facts in the motion record on both issues were disputed, dismissal was an inappropriate remedy.
Third, because we are satisfied, as pled, plaintiff's retaliation and unlawful arrest claims are cognizable under the NJCRA, the TCA's notice requirements did not apply to those causes of action, and the court's ostensible dismissal on that basis was accordingly improper. We reach a different result with respect to plaintiff's malicious prosecution; manufacturing false evidence; failure to train, supervise, or discipline; and civil conspiracy claims, however. While it was undisputed plaintiff failed to comply with the TCA's notice requirements and we agree with the court ordinarily such failure would bar any asserted common law torts, we believe the better course is to vacate that portion of the court's January 8, 2021 order and remand to provide plaintiff with the opportunity to amend his complaint to adequately plead the specific constitutional or statutory rights under the NJCRA.
Finally, we discern nothing that would lead us to have doubts about the trial judge's impartiality and accordingly affirm the court's decision to deny plaintiff's recusal application.
We therefore reverse the dismissal of plaintiff's claims for retaliation and unlawful arrest and remand with direction for the court to reinstate those claims. We also reverse the court's grant of qualified immunity to Officer Kelly and remand for further proceedings in accordance with this opinion. We vacate the order dismissing plaintiff's malicious prosecution; manufacturing false evidence; failure to train, supervise, or discipline; and civil conspiracy claims with instructions that the court permit plaintiff an opportunity to amend his complaint. Finally, we affirm the denial of plaintiff's recusal application.
We briefly summarize the facts in the record, considering those as pled to be "true" and affording plaintiff "all legitimate inferences." Banco Popular N. Am. v. Gandi, 184 N.J. 161, 166 (2005). Plaintiff is a self-described advocate against police brutality and corruption, well-known in the community for filming police-citizen encounters. In October 2017, plaintiff filed an internal affairs complaint with the CPD and a lawsuit, not at issue in this appeal, against defendants Captain Dammann, Carteret, CPD, and other CPD officers. In that case, he alleged violations of his civil rights following an arrest where he was pepper sprayed.
One month later, on November 14, 2017, plaintiff observed an incident between Officer Kelly, other CPD officers, and Edward Burton, which he filmed with his cell phone. According to Officer Kelly's investigation report, while attempting to arrest Burton, Officer Kelly suspected Burton was trying to swallow a controlled dangerous substance. To prevent this from occurring, Officer Kelly and Officer Antonio Dominguez "escorted [Burton] to the ground" with Officer Dominguez using pepper spray on Burton's face. When Burton began to scream, plaintiff claims he yelled for officers to call an ambulance, recalling his own prior experience being pepper sprayed by CPD. Because the police failed to seek medical assistance, plaintiff alleged he attempted to call an ambulance, but his cell phone's battery died.
The parties dispute the nature of plaintiff's next actions. Plaintiff maintains he left the porch and crossed the street, away from the officers and separated from them by a police car, to call an ambulance at a pay phone. Officer Kelly claims plaintiff approached CPD officers, "causing a scene to create more foot traffic and onlookers" and distracting the officers from their arrest of Burton.
Plaintiff averred in his complaint video captured by the body-worn and police car cameras of Officers Kelly and Dominguez demonstrates he did not approach the officers or physically interfere with the arrest in any way; however, no video was presented to the municipal or trial courts. An unknown CPD officer ultimately arrested plaintiff who, upon the certification of Officer Kelly, was charged with obstruction contrary to N.J.S.A. 2C:29-1(a).
Plaintiff's obstruction case remained pending before the municipal court for over two years before the court ultimately dismissed it on speedy trial grounds, citing the "failure of the State to prosecute the case within a timely manner." After dismissing the matter, the court, sua sponte, and without providing any factual basis for its finding, concluded the police had probable cause to arrest plaintiff. The court did not conduct a probable cause hearing, nor was a hearing requested by either party. Plaintiff's counsel did state plaintiff "dispute[d] probable cause," but he did not request the court make further findings of fact, nor did he later appeal the court's probable cause finding after dismissal.
Plaintiff filed his complaint against defendants and additional fictitious individuals and corporations, which he amended following the dismissal of the municipal court summons. As noted, plaintiff brought six claims, each styled as a cause of action under the NJCRA. First, plaintiff alleged that defendants retaliated against him for exercising his right to free speech by arresting him for obstruction. Next, plaintiff claimed that he was unlawfully arrested in violation of the state constitution. The filing of the obstruction charge, and the related proceedings, he alleged, constituted malicious prosecution.
Additionally, he contended Officer Kelly's certification giving rise to the obstruction proceedings constituted fabricated evidence, depriving him of his liberty and due process. Plaintiff also claimed Carteret and CPD were acting pursuant to an unspecified official policy, custom, or practice in failing to adequately train, supervise or discipline Officer Kelly and Captain Dammann. Finally, he asserted the false obstruction charge, the delay in the municipal court proceedings, and CPD's purposeful withholding of exculpatory video footage evidenced a civil conspiracy to deprive him of his due process rights.
On September 15, 2020, defendants jointly moved to dismiss the complaint for failure to state a claim under Rule 4:6-2(e). In support, they primarily relied upon the municipal court's probable cause finding, which they contended collaterally estopped plaintiff from contesting the issue and was fatal to the malicious prosecution and unlawful arrest claims. Further, defendants argued plaintiff's...
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