ROBERT BRYANT VS. CAMDEN COUNTY POLICE DEPARTMENT (L-3505-15, CAMDEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE 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.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0896-18T4

ROBERT BRYANT,

Plaintiff-Appellant,

v.

CAMDEN COUNTY POLICE

DEPARTMENT,

Defendant,

and

OFFICER JOSE GONZALEZ,

OFFICER JACOB LEVY, and

OFFICER KENNETH EGAN,

Defendants-Respondents.

__________________________

Argued February 10, 2020 – Decided July 21, 2020

Before Judges Sabatino, Sumners and Natali.

On appeal from the Superior Court of New Jersey, Law

Division, Camden County, Docket No. L-3505-15.

Justin T. Loughry argued for appellant (Loughry and

Lindsay, attorneys; Justin T. Loughry, on the briefs).

William F. Cook argued for respondents (Brown &

Connery, LLP, attorneys; William F. Cook, on the

brief).

PER CURIAM

This civil rights litigation commenced with plaintiff Robert Bryant's

complaint alleging false arrest, unreasonable search, and suppression of his

freedom of expression under the New Jersey Constitution against defendants

Camden County Police Department (CCPD) and its officer, Jose Gonzalez.

Bryant later amended his complaint to include claims under the New Jersey Civil

Rights Act (NJCRA), N.J.S.A. 10:6-1 to -2, and the New Jersey Constitution

against CCPD officers Jacob Levy and Kenneth Egan for separate acts of

harassment, discrimination, and detention in retaliation for his complaint against

Gonzalez and the CCPD, and because he is African-American.

In his appeal, Bryant challenges the trial judge's: (1) September 1, 2017

order granting summary judgment dismissal of his complaint against Levy and

Egan; (2) September 7, 2018 decision denying his Rule 4:40-1 motion for a

directed verdict; (3) October 26, 2018 order denying his motion for a new trial

after a jury determined he had no cause of action against Gonzalez; and (4) final

judgment order of November 2, 2018, in favor of Gonzalez. Specifically, Bryant

argues the judge erred in finding as a matter of law Egan and Levy's conduct did

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not amount to a violation of our state constitution. As for Gonzalez, Bryant

argues based on the facts presented at trial, there was no legal basis for Gonzalez

to arrest him, therefore the judge erred in denying him a directed verdict and a

new trial. For the reasons set forth below, we affirm the grant of summary

judgment to Levy and Egan. However, we reverse the order denying plaintiff's

motion for a new trial and order that liability be entered against Gonzalez, and

remand for a damages-only trial concerning the alleged injury inflicted by that

sole defendant.

I.

To give context to the issues on appeal, we begin with a discussion of the

September 2018 trial testimony about the confrontation leading to Gonzalez's

arrest of Bryant. Bryant filed suit on September 15, 2015, later amended on

October 19, 2016, alleging Gonzalez and the CCPD violated his state

constitutional rights under N.J. Const. art. I, ¶ 7 to be free from unreasonable

search and seizure, and false arrest actionable under N.J.S.A. 10:6-2(c).1 We

1

N.J.S.A. 10:6-2(c) provides in pertinent part:

Any person who has been deprived of . . . any

substantive rights, privileges or immunities secured by

the Constitution or laws of this State, or whose exercise

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then discuss Bryant's interactions with Levy and Egan, which both occurred after

Bryant's arrest and the filing of his initial complaint. His claims against Levy

and Egan were set forth in his October 19, 2016 amended complaint.

A. Gonzalez's Arrest of Bryant

Bryant testified, and called his father, Robert Bryant, Sr., and Gonzalez to

testify regarding the arrest. Bryant stated he was standing at his street vendor's

table selling merchandise at a strip mall in Camden on the afternoon of

September 18, 2013, when Gonzalez and his partner drove into the mall's

parking lot. Bryant stated he sometimes sat in his father's red Ford Taurus in

the parking lot but could not remember if he was doing so just before the officers'

arrival. According to Bryant, after Gonzalez confronted him and patted him

down, Bryant produced his identification upon request. Gonzalez then

questioned him about a shooting incident that occurred six days earlier, which

he denied knowing anything about.

or enjoyment of those substantive rights, privileges or

immunities has been interfered with or attempted to be

interfered with, by threats, intimidation or coercion by

a person acting under color of law, may bring a civil

action for damages and for injunctive or other

appropriate relief.

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Bryant testified that after Gonzalez made him sit on the curb, Gonzalez

continued to question him about the shooting, which he continually denied any

knowledge of, and he eventually asked Gonzalez if he was being detained.

Bryant stated he was then arrested and charged with obstruction. The

obstruction charge was downgraded to municipal court about a week later. The

charge was dismissed in February 2014, but the record provided to us does not

reveal why.

The senior Bryant corroborated his son's testimony that he was standing

near his street vendor's table when Gonzalez approached him and asked for his

identification, which he gave to Gonzalez. The father stated Gonzalez inquired

about the red Taurus and he replied the car was his. After his son was made to

sit on the curb, the father testified:

Then I heard . . . the officer tell [my son] you know

about this shooting. And my son kept saying I don't

know nothing about no shooting. And then a few

seconds later, . . . I can't hear everything precisely, but

I'm hearing, you know, parts of it.

....

And then a few seconds later I heard my son saying am

I being detained. And when he said that, that's when

the officer pulled my son up from the curb and escorted

[him], not handcuffed, and put him in a patrol car and

they took him downtown.

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Bryant next called Gonzalez as a witness to authenticate a report the

officer wrote regarding the incident. The following pertinent part of the report

was read into evidence:

As we approached, Bryant exited the vehicle clutching

his waistband and began to walk away from it. I then

approached Bryant and smelled a strong odor of burnt

marijuana. I asked him to raise his hands. I began to

pat him down and then asked him to have a seat on the

curb so that I could ask him a few questions. Bryant

was very uncooperative and refused to answer any

questions after I explained to him that we were

investigating a shooting . . . .

He eventually gave me his identification after I asked

him numerous times. Bryant was advised that the

vehicle he exited matched the description of the vehicle

used in the said shooting. He stated he did not care and

asked why he was being harassed. I again asked him

about the vehicle in question and I also asked him about

the odor of marijuana.

He again stated he was not going to answer any

questions and asked me for my name. I told Bryant my

name and rank, as well as my badge number, and

advised him that if he refused to answer any of my

questions, he would be placed under arrest for

obstruction. He again refused and was subsequently

placed under arrest.

Gonzalez testified in his own defense. He stated he and another CCPD

officer were investigating a shooting involving a school bus which had taken

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place six days earlier. They were in an unmarked police vehicle driving around

ten to twelve blocks from the scene of the shooting, when they saw Bryant sitting

in the driver's seat of a red Ford Taurus "not [being] operated," but parked in the

parking lot of a strip mall. Gonzalez testified they did not observe any motor

vehicle violations on the Taurus prior to or after they pulled into the parking lot.

Gonzalez testified when he got out of his vehicle Bryant was getting out

of the Taurus at the same time, and he thought "I'm going to conduct a car stop

. . . and see what's going on with the car . . . ." The car matched a general

description of a car involved in the shooting, a red or burgundy Ford Taurus or

Mercury Sable, which have similar sedan body types. 2 The officers did not have

a description of the alleged shooters. Gonzalez stated the area of the encounter

was "infamous for like the amount of shootings and homicides" so when he

couldn't see Bryant's hands, he told him to put them up, and frisked him for

weapons. Upon approaching Bryant, he testified that he smelled marijuana.

After frisking Bryant, Gonzalez told him about the shooting involving a school

bus, which he stated had taken place six days earlier.

2

Further police investigation determined the car involved in the shooting was

a Mercury Sable.

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Gonzalez testified he then asked Bryant his name, but he refused, stating

he did not need to answer any questions. After directing Bryant to sit on the

curb, Gonzalez stated he continued to question him and advised him if he did

not identify himself, he could be arrested for obstruction. After Bryant again

refused to identify himself, Gonzalez arrested him. Gonzalez stated it was only

after Bryant was being placed in the police car that he offered his identification.

Gonzalez stated because Bryant had already been advised he was under arrest;

he was transported to the police station. However, Gonzalez conceded on cross-

examination, that in his deposition testimony, he stated Bryant had never

identified himself, even after being placed in the police car. Gonzalez charged

Bryant with obstructing a shooting investigation, an "independently unlawful

act" under N.J.S.A. 2C:29-1(a) (the obstruction statute).3

3

N.J.S.A. 2C:29-1 provides:

a. A person commits an offense if he purposely

obstructs, impairs or perverts the administration of law

or other governmental function or prevents or attempts

to prevent a public servant from lawfully performing an

official function by means of flight, intimidation, force,

violence, or physical interference or obstacle, or by

means of any independently unlawful act. This section

does not apply to failure to perform a legal duty other

than an official duty, or any other means of avoiding

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Gonzalez admitted that despite smelling marijuana on Bryant, he did not

enter the Taurus to retrieve a registration card or insurance card, or search for

drugs. In addition, he acknowledged the criminal complaint he wrote against

Bryant made no mention of marijuana odor emanating from Bryant or Bryant

refusing to identify himself. Gonzalez stated, except for not providing his

identification, Bryant complied with his orders and made no attempt to flee

questioning.

John Ryan, a retired police officer, police trainer, and lawyer, testified

for Gonzalez, as an expert on police practices and procedures. Ryan opined

Gonzalez had reasonable articulable suspicion to conduct an investigatory

Terry4 stop of Bryant based on the following facts:

• Gonzalez saw a car that fit the description of one used in "a very

serious shooting."

• The car was ten to twelve blocks from the scene of the shooting,

so it was "in close proximity."

• The car was in a high crime area.

compliance with law without affirmative interference

with governmental functions.

[(Emphasis added).]

4

Terry v. Ohio, 392 U.S. 1 (1968).

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• The car was occupied.

• The occupant exited the car when Gonzalez arrived.

Ryan stated Gonzalez's frisk of Bryant was reasonable because Gonzalez saw

Bryant touch his waistband as Gonzalez approached.

Ryan testified that because Bryant was in a car, the encounter was

technically a car stop, and that car stops aren't only limited to motor vehicle

offenses, but if someone robs a bank, they can still be stopped. He stated in

many states if someone doesn't identify themselves upon request of a police

officer, that alone warrants an arrest. He did not say New Jersey was such a

state. He also noted the odor of marijuana provided Gonzalez with probable

cause to arrest Bryant. Finally, Ryan, without any factual or legal support,

testified that when an "officer's time is interfered with," it constitutes

obstruction.

B. Bryant and Levy

In the early afternoon of October 30, 2015, about six weeks after Bryant

filed suit against Gonzalez and the CCPD, he had moved his business into one

of the storefronts in the same strip mall where Gonzalez had arrested him two

years earlier, and was unloading merchandise from his van outside of his store

when Levy approached him. According to Bryant's deposition testimony, Levy

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asked him what he was doing and requested his name, social security number,

and birth date, which he provided. In addition, Bryant testified that Levy asked

him if he was intimidated, to which he replied he had work to do and asked Levy

if he was free to go. Bryant stated Levy replied "no, I'm not done with you yet."

Bryant stated Levy left without incident after finishing recording his personal

information.

Levy explained in his community information report and deposition

testimony he was directed to conduct business checks at the location because

there had been several recent robberies. The business checks were for the

benefit of business owners so the police could contact them in case of

emergencies. When visiting Bryant's business, Levy testified he saw African-

American men in front of the store who were known to sell drugs, and who

would follow apparent drug buyers inside the store for a short period and leave.

He also noted his belief that the merchandise in the store may have been

unlicensed or stolen. Levy exited the store and approached Bryant who

identified himself as the store owner. Levy requested his contact information,

and once it was provided, Levy returned it to Bryant and left.

C. Bryant and Egan

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On May 5, 2016, about eight months after he filed suit against Gonzalez

and the CCPD, Bryant claimed in his deposition testimony he was tending to his

business, this time as a vendor with a foldout table, when Egan got out of a

patrol car and requested to see his vending license. Bryant handed over his

license, to which Egan told him the license was "bootleg" as the City of Camden

had recently changed the design of its vendor's licenses.5 Egan then issued him

a citation for having a fake license and advised him to "pack [his] shit up and

get out of [t]here." Bryant conceded he did not have his vendor's license

displayed or posted in violation of the City of Camden ordinance 397-5 (the

ordinance). The citation was later dismissed for reasons that are not stated in

the record before us.

Egan testified at his deposition that the identification Bryant proffered

wasn't a vending license, and Bryant agreed with him after hearing his

explanation. Egan described the license he was given as "an off yellow piece of

paper that was laminated with [Bryant's] photo on it" with "his name on it."

5

In his complaint Bryant avers the license was rejected by Egan because the

officer falsely stated it was required to have an address on it. In his merits brief,

Bryant states Egan rejected the license because it appeared different than what

Egan was accustomed to seeing.

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Egan was not questioned about the license identified during his deposition, and

the document he described was not provided or addressed by either party. Egan

stated he issued Bryant a citation and advised him that if he had a vendor's

license, he could show it to the court and the citation would be dismissed.

II.

Bryant's claims against all three officers involve warrantless encounters,

thus we find instructive our decision in State v. Williams, 381 N.J. Super. 572,

(App. Div. 2005). There, we succinctly stated:

The three constitutionally permissible forms of

warrantless police encounters with citizens are (1) the

encounter occasioned by probable cause, (2) the

investigatory stop, and (3) the field inquiry. State v.

Pineiro, 181 N.J. 13, 20 (2004).

The encounter based upon probable cause requires "a

well-grounded suspicion." State v. Sullivan, 169 N.J.

204, 211 (2001). Probable cause "exists where the facts

and circumstances" based upon "reasonably

trustworthy information" is sufficient "to warrant a

[person] of reasonable caution" to believe that "an

offense has been or is being committed." Schneider v.

Simonini, 163 N.J. 336, 361 (2000) . . . .

The investigatory stop, sometimes referred to as a Terry

stop, is valid if "based on specific and articulable facts

which, taken together with rational inferences from

those facts, give rise to a reasonable suspicion of

criminal activity." State v. Nishina, 175 N.J. 502, 510–

11 (2003). The suspicion "need not rise to the 'probable

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cause necessary to justify an arrest.'" Pineiro, . . . 181

N.J. at 20 (quoting Nishina, . . . 175 N.J. at 511).

The field inquiry is "the least intrusive" constitutionally

permissible encounter. Pineiro, . . . 181 N.J. at 20. It

occurs "when a police officer approaches an individual

and asks 'if [the person] is willing to answer some

questions,'" and is permissible "so long as the questions

[are] not harassing, overbearing, or accusatory in

nature." Ibid. (quoting Nishina, . . . 175 N.J. at 510).

When subjected to a field inquiry, a person "need not

answer any question put to him; indeed, he may decline

to listen to the questions at all and may go on his way."

State v. Maryland, 167 N.J. 471, 483 (2001) (quoting

Florida v. Royer, 460 U.S. 491, 497–98 (1983)). For

that reason, such an encounter is only constitutionally

legitimate if the individual's movement or ability to

leave are not restricted.

[381 N.J. Super. at 581-82 (internal citation omitted)

(alterations in original).]

When a law enforcement officer has probable cause to arrest, or

reasonably believes there is probable cause to arrest, it is a critical issue because

proof of probable cause is an absolute defense to a claim of false arrest under 42

U.S.C.A. § 1983. Wildoner v. Borough of Ramsey, 162 N.J. 375, 389 (2000);

Bayer v. Twp. of Union, 414 N.J. Super. 238, 262 (App. Div. 2010). The same

defense applies to Bryant's NJCRA claims. See, e.g., Morillo v. Torres, 222

N.J. 104, 116 (2015) (noting that "[F]or purposes of analyzing the qualified-

immunity defense" the analysis under both 42 U.S.C.A. § 1983 and the NJCRA

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"is the same"). "In determining whether probable cause existed, a court should

consider the totality of the circumstances, including the police officer's common

and specialized experience." Bayer, 414 N.J. Super. at 263 (internal quotation

marks and citations omitted).

"[I]t is irrelevant to the probable cause analysis what crime a suspect is

eventually charged with," if the objective facts support probable cause to arrest

for any offense. Wright v. City of Philadelphia, 409 F.3d 595, 602 (3d Cir.

2005); see also Barna v. City of Perth Amboy, 42 F.3d 809, 819 (3d Cir. 1994).

"The relevant inquiry in determining objective reasonableness is whether a

reasonable officer, in view of well-established law and the information the

officers possessed, could have believed that probable cause existed to arrest

plaintiff." Connor v. Powell, 162 N.J. 397, 411 (2000).

In DelaCruz v. Borough of Hillsdale, 365 N.J. Super. 127, 149-51 (App.

Div. 2004), we held "a plaintiff asserting a false arrest [or] false imprisonment

claim need only prove that he or she was wrongfully deprived of freedom." We

elaborated:

False arrest and false imprisonment are different names

for the same tort. Price v. Phillips, 90 N.J. Super. 480,

484 (App. Div. 1966). The tort of false imprisonment

is complete when one unlawfully detains another. "'The

gist of false imprisonment is mere unlawful detention

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without more.'" Lakutis v. Greenwood, 9 N.J. 101, 106

(1952) (quoting Altana v. McCabe, 132 N.J.L. 12, 13

(Sup. Ct. 1944)). False imprisonment is a civil wrong

similar to assault and battery in that "[it] consists in

imposing, by force or threats, unlawful restraint upon a

man's freedom of locomotion." Earl v. Winne, . . . 14

N.J. [199], 128 [(1953)]. Police officers and other

public officials may be held liable for false

imprisonment where they have acted outside their

authority. Lakutis, 9 N.J. at 106.

[DelaCruz, 365 N.J. Super. at 149-50 (alterations in

original) (citations omitted).]

Police officers who mistakenly arrest someone are normally afforded the

affirmative defense of qualified immunity to shield themselves "from personal

liability for discretionary actions taken in the course of their public

responsibilities." Brown v. State, 230 N.J. 84, 97-98 (2017). Therefore, an

officer accused of false arrest can assert qualified immunity to defend himself

against an N.J.S.A. 10:6-2 claim if his "conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person would

have known." Id. at 98 (quoting Morillo, 222 N.J. at 116).

To ascertain whether a governmental official . . . is

entitled to qualified immunity requires inquiries into

whether: (1) the facts, "[t]aken in the light most

favorable to the party asserting the injury[ ] . . . show

the officer's conduct violated a constitutional right";

and (2) that constitutional "right was clearly

established" at the time that defendant acted.

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[Ibid. (alterations in original).]

Put another way, an officer must show: (1) that he acted with probable

cause; and (2) if no probable cause existed, a reasonable officer could have

believed in its existence. DelaCruz, 365 N.J. Super. at 142 (citing Schneider v.

Simonini, 163 N.J. 336, 355 (2000)). Qualified immunity, however, does not

shield law enforcement officers who are "'plainly incompetent or those who

knowingly violate the law.'" Connor, 162 N.J. at 409 (quoting Malley v. Briggs,

475 U.S. 335, 341 (1986)).

III.

We now address Bryant's contention the trial judge erred in not granting

his Rule 4:40-1 motion for a directed verdict and allowing the jury to consider

that his conduct of not showing Gonzalez his identification constituted a

violation of the obstruction statute.

We review de novo a trial judge's decision on a motion for a directed

verdict made pursuant to Rule 4:40-1. Boyle v. Ford Motor Co., 399 N.J. Super.

18, 40 (App. Div. 2008). Like the trial judge, we "must accept as true all the

evidence which supports the position of the non-moving party, according him or

her the benefit of all legitimate inferences." RSB Lab. Servs., Inc. v. BSI, Corp.,

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368 N.J. Super. 540, 555 (App. Div. 2004). If reasonable minds could differ as

to which party should prevail, the motion for directed verdict must be denied .

Monaco v. Hartz Mountain Corp., 178 N.J. 401, 413 (2004).

After Gonzalez rested, Bryant's counsel moved for a directed verdict on

liability. Counsel argued there were no facts showing Bryant was a driver or

operator of his father's car, and therefore there was no way the jury could find a

motor vehicle stop had taken place, which would have required him to provide

his identification to Gonzalez. The judge denied the motion, stating the jury

could "draw inferences of operation [by Bryant], which would lead this into the

realm of a motor vehicle stop," which allowed Gonzalez to demand Bryant's

identification.

At the close of trial, the first two questions the jury was charged with

determining were:

1. Has the plaintiff, Robert Bryant, Jr., proven by a

preponderance of the evidence that he did provide his

name or identification to the defendant, Jose Gonzalez,

before the time of his arrest on September 18, 2017?

2. Did the defendant, Jose Gonzalez, have an

objectively reasonable belief that the plaintiff, Robert

Bryant, Jr. committed a violation of [the obstruction

statute?]

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The jury returned a unanimous verdict finding Bryant did not provide his

identification to Gonzalez before he was placed under arrest and Gonzalez's

belief that Bryant had violated the obstruction statute was objectively

reasonable. Thus, the jury did not have to determine the remaining questions of

whether Bryant's constitutional rights were violated or the amount of damages

he was entitled to due to such a violation.

Following the jury's verdict, Bryant moved for a new trial, arguing the

dispositive issue in the case was whether he had a legal obligation to identify

himself, and there was no evidence presented at the trial which indicated he had

that duty. The judge denied the motion.

Before us, Bryant contends he was entitled to a judgment on liability

against Gonzalez. He asserts the obstruction statute did not apply to him because

his failure to provide his identification was not an illegal act given the lack of

proof he was a driver or operator of the parked car Gonzalez claimed to have

seen him get out of. Without proof he drove or had the intent to operate the car,

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Bryant maintains the judge erred in finding there was an inference of operation

and his motion for a directed verdict should have been granted.6

Further, Bryant, relying on State v. Davis, 104 N.J. 490, 505-07 (1986),

argues Gonzalez's assertion that he was properly stopped to question him

because he was sitting in a legally parked car which was a similar model and

color of a car seen fleeing from the scene of a shooting six days earlier "would

never suffice to give a reasonable articulable suspicion . . . , without more, . . .

[to] justify a police 'stop' or seizure." Thus, Bryant "urges this [c]ourt to enter

judgment for liability in [his] favor, leaving the question of damages for further

proceedings."

While qualified immunity is a question of law, normally settled before

trial, in cases involving disputes of fact, the parties may present their arguments

to a jury to settle the "who-what-when-where-why" factual issues. Brown, 230

N.J. at 99. Viewing the facts in the light most favorable to Gonzalez, the

6

Bryant also maintains Gonzalez's alleged smell of marijuana emanating from

his body played no part in the stop because it occurred after Gonzalez made the

decision to stop him, and would not have applied under N.J.S.A. 39:4-49.1,

which only applies to a person who operates a motor vehicle. Because neither

the judge nor Gonzalez raised this as a legal basis for Bryant's obligation to

provide his identification, we do not address the argument.

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motion's opposing party, we conclude Bryant was entitled to a directed verdict

on liability.

Our analysis turns not on the stop itself, but what took place thereafter.

Gonzalez and his partner were investigating a shooting in Camden that had

occurred five to six days earlier about ten to twelve blocks away from a strip

mall when they observed a parked car matching the model and color of a car

involved in the shooting. They had no belief Bryant matched the description of

an alleged shooter or was otherwise involved in the shooting. Bryant was seen

exiting the car when the officers parked their car, and Gonzalez claimed he saw

Bryant reached towards his waist. At that point, what began as a field inquiry

turned into an investigatory stop because Gonzalez thought Bryant may have

had a weapon secreted in his waistband. This prompted a frisk of Bryant, which

is not contested, and questioning about the shooting. Bryant replied he knew

nothing about the shooting. It was not until Bryant refused to present his

identification, that Gonzalez claimed he placed Bryant under arrest.

We conclude that after the frisk revealed Bryant did not possess a weapon,

he was under no obligation to turn over his identification or answer any of

Gonzalez's questions. We find it of no significance whether Gonzalez saw

Bryant drive the car, or whether he could infer Bryant had been driving it as the

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trial judge found. The confrontation was not initiated on the belief Bryant was

suspected of violating a motor vehicle law, so he had the right to refuse to turn

over his identification. See N.J.S.A. 39:3-29; State v. Dunbar, 229 N.J. 521,

533 (2017) (holding a police officer may demand a driver's identification

incident to a reasonable and articulable suspicion of a motor vehicle violation).

Gonzalez's questioning of and identification request to Bryant was because he

was seen in a parked car matching the description of a car involved in the

shooting. As stated previously the shooting occurred some ten to twelve blocks

from where Bryant was located and had taken place about a week earlier.

Under the circumstances, we do not envision a prudent person would

believe there was a reasonable basis for Gonzalez's determination that he had a

right to arrest Bryant for obstruction of a shooting investigation for merely not

turning over his identification, or not answering questions about the shooting

incident. Bryant committed no unlawful act to impede the shooting

investigation. To rule otherwise gives law enforcement without a reasonable

basis the right to demand that a person answer questions or provide

identification and charge that person under the obstruction statute for not

complying. Consequently, Gonzalez's liability has been established for

violating Bryant's state constitutional right to be free from the unreasonable

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seizure of his person and false arrest under N.J. Const. art. I, ¶ 7, actionable

under N.J.S.A. 10:6-2(c), and a trial solely on damages is warranted.

IV.

Finally, we turn to the summary judgment dismissal of claims against

Levy and Egan, whom Bryant added as defendants through his second amended

complaint. Bryant asserted they collectively engaged in a conspiracy to

intimidate, harass, and violate his civil rights. Bryant also asserted CCPD 7 was

vicariously liable for the officers' conduct. The same judge who presided over

the trial granted the motion.

We review a ruling on a summary judgment motion de novo, applying the

same standard governing the trial court. Conley v. Guerrero, 228 N.J. 339, 346

(2017); Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh,

224 N.J. 189, 199 (2016). Thus, we consider, as the motion judge did, "whether

'the competent evidential materials presented, when viewed in the light most

favorable to the non-moving party, are sufficient to permit a rational factfinder

to resolve the alleged disputed issue in favor of the non-moving party.'" Holmes

v. Jersey City Police Dep't, 449 N.J. Super. 600, 602-03 (App. Div. 2017)

7

Bryant voluntarily dismissed all his claims against the CCPD at oral argument

for summary judgment. Hence, the CCPD is not a party to this appeal.

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(citation omitted) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520,

540 (1995)). "If there is no genuine issue of material fact, we must then 'decide

whether the trial court correctly interpreted the law.'" DepoLink Court

Reporting & Litig. Support Servs. v. Rochman, 430 N.J. Super. 325, 333 (App.

Div. 2013) (quoting Massachi v. AHL Servs., Inc., 396 N.J. Super. 486, 494

(App. Div. 2007)). We review issues of law de novo and accord no deference

to the trial judge's legal conclusions. Nicholas v. Mynster, 213 N.J. 463, 478

(2013).

In his decision delivered from the bench, the judge stated that other than

the temporal proximity of Bryant's incidents with Levy and Egan to the initiation

of Bryant's lawsuit against Gonzalez and the CCPD, Bryant failed to show any

evidence supporting his claims to avoid summary dismissal. The judge

determined the proofs showed Levy was merely performing his duties as a police

officer to gather information from store owners.

Bryant appeals, arguing the officers' conduct went beyond making simple

inquiries. Citing State v. Sutherland, 231 N.J. 429 (2018), he argues our

Supreme Court has refused to excuse unconstitutional conduct with the thought

that the officer made a so called "good faith" mistake about the law.

A. Dismissal of Claims Against Levy

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Levy's encounter with Bryant, which occurred about six weeks after

Bryant filed this lawsuit, falls in the category of a field inquiry. Levy went to

Bryant's store to conduct what is known as a "business check" to obtain contact

information from local businesspeople. Levy contended he was conducting a

routine business check and believed the store was being used by Bryant and

others to stock or pedal unlicensed or stolen goods and drugs.

There is nothing in the record suggesting that Levy's motivation was not

as he contended, thereby triggering a factual dispute that needed to be resolved

by a jury. After Bryant showed his credentials, Levy realized he was a store

business owner legally conducting his business and permitted him to carry on

his activities without arresting him, issuing him a citation, or questioning him

further. Levy's recording of Bryant's contact information as a store owner in

case of emergencies cannot be considered harassing, overbearing, or accusatory

conduct absent some evidence to the contrary. In addition, because Bryant

proffered no evidence Levy had any knowledge of his lawsuit or claims against

Gonzalez and the CCPD, there was no factual support for alleging Levy's

encounter was retaliation for the lawsuit.

Furthermore, as Levy correctly maintains, we should not consider Bryant's

argument before us that his constitutional right to be free from an unreasonable

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search and seizure was violated because the argument is waived for failure to

raise it in his opposition to summary judgment. R. 2:6-2(a)(1); Selective Ins.

Co. of Am. v. Rothman, 208 N.J. 580, 586 (2012), as corrected (Jan. 19, 2012)

(holding appellate courts will decline to consider questions or issues not

presented to the trial court when an opportunity for such a presentation is

available unless the questions so raised go to the jurisdiction of the trial court or

concern matters of great public interest). Yet, even considering the argument,

it has no merit. Bryant failed to present any evidence in opposition to summary

judgment that Levy's "business check" was unjustified in any form or not a

proper execution of his police powers.

B. Dismissal of Claims Against Egan

The judge's reasoning granting summary judgment in favor of Egan

required a more nuanced analysis. The judge held:

Egan may have been wrong in terms of whether the

[vendor's]license was valid or not, but that, in this

[c]ourt's estimation doesn't amount to the type of

malfeasance or incompetence that would lead to

[denying] qualified immunity . . . . [B]eing wrong is not

enough to destroy qualified immunity. And there's

nothing else in the facts that are asserted that indicate

to the [c]ourt that [Egan] was either intentionally doing

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anything to roust, so to speak, the plaintiff. [Egan] was

just going about his business . . . .

Nobody disputes that the license was not being worn.

Okay. [Bryant] sa[id] he had to take it out of his pocket.

And even if [Egan] didn't write him the ticket for that

particular aspect of the offense, he wrote him the ticket

for him thinking that it was invalid, that's a mistake. It

doesn't amount to something that would destroy

qualified immunity.

Bryant raises several arguments challenging summary judgment. He

argues Egan detained him without cause for five to ten minutes; issuing him a

citation and directing him to stop selling his merchandise even though he

possessed a valid vendor's license. Bryant contends that in Sutherland, 231 N.J.

at 432, our Supreme Court declined to recognize good faith immunity in a

related context, when a law enforcement officer's mistake of law was

unreasonable due to the unambiguity of a statute. Bryant argues the judge's

ruling in effect excused Egan for his ignorance of the law, which he was bound

to know and enforce by affording him qualified immunity and granting him

summary judgment. Thus, the issue is whether there was a genuine issue of

material fact regarding the presence of probable cause, or the reasonable belief

that probable cause existed, for Egan to issue Bryant a citation. We conclude

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there is no factual and legal foundation for Bryant's argument that summary

judgment dismissal of his claims against Egan was incorrect.

Our analysis begins with the undisputed fact that Bryant did not display

his vendor's license as required by the ordinance, therefore affording Egan the

right to ask him to produce one. Egan's encounter with Bryant, about eight

months after Bryant filed this lawsuit, thus falls in the category of a field inquiry.

Thinking Bryant produced a fake license because it was not designed like the

newly issued licenses, Egan issued him a citation and ordered him to stop selling

and leave. There was no evidence that Egan's conduct was meant to harass

Bryant, as the judge determined. There is no indication in the record Egan had

an unreasonable belief that Bryant's vendor's license was not valid. Bryant did

not show it was well established the City of Camden had issued a new type of

license such that under the circumstances Egan should have known Bryant's

license was valid. Moreover, there is no indication in the record that the citation

against Bryant was dismissed because there was a judicial finding or an

acknowledgment by the CCPD that there was no probable cause for its issuance.

Given the absence of any facts suggesting Egan's conduct towards Bryant

constituted blatant malfeasance or incompetence in the issuance of a citation,

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we take no exception to the judge's ruling that Egan had qualified immunity

from Bryant's claims.

The fact Egan believed Bryant did not have a valid license and issued him

a citation that was later dismissed, does not necessarily deprive Egan from

having qualified immunity as Bryant argues. Although Bryant was not arrested,

case law interpreting civil rights' claims alleging law enforcement officers' lack

of probable cause to arrest is analogous to Bryant's civil rights claim that Egan

did not have probable cause to issue him a citation for not having a valid vendor's

license.

V.

In light of our ruling that Bryant should have been granted a directed

verdict on liability we do not address his argument that the judge erred in

denying his motion for new trial.

Affirmed in part and reversed in part for proceedings on damages

consistent with this opinion. We do not retain jurisdiction.

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