Moya v. City of New Brunswick

CLIFFORD, J.,

dissenting.

In tendering this modest dissent I do not subject the pertinent statute to any exhaustive analysis that would envelop every conceivable fact situation. The web we have thus far woven for ourselves in this troublesome area is tangled quite enough.

Plaintiff Moya was a police officer of the City of New Brunswick. He was charged with multiple counts of what I view as garden-variety breaking, entering, and larceny. He was exonerated. Moya and his lawyers seek to recover from the City the legal fees and costs of the successful defense. The statute providing for a municipality’s furnishing the “necessary means for defense,” N.J.S.A. 40A:14-155, requires that the action in which the officer is a defendant be one “arising out of or incidental to the performance of his duties * * I consider the criminal prosecution against Moya to be of a type not contemplated by that statutory language.

*519 Van Horn v. City of Trenton, 80 N.J. 528 (1979), adverts to the apparent purpose of N.J.S.A. 40A:14-155, namely, to address a legislative concern that

police officers might be discouraged from effectively pursuing their duties if they were forced to provide their own defense against civil actions and criminal charges brought by disgruntled “victims” of law enforcement. Police officers, by the very nature of their duties, are exposed to a substantial risk that such civil or criminal actions will be initiated, regardless of their merits. The possibility of having to incur legal expenses to answer for one’s conduct as a police officer would most certainly temper one’s performance of police duties. We are convinced that the Legislature, by enacting N.J.S.A. 40A:14-155, was obviously attempting to minimize the intrusion of this concern into the momentary decisions which police officers are continually required to make. [Id. at 536-37 (citations omitted) (emphasis supplied).]

In Valerius v. Newark, 84 N.J. 591 (1980), this Court festooned Van Horn’s straightforward approach. The Valerius facts are set forth in the opinion of today’s majority, ante at 497-498:

In Valerius , a police officer was charged with conspiring to set up a scam with a fellow officer and two civilians whereby the sale of drugs by the civilians would be interrupted by the two police just as the buyer-victim handed over the money. Valerius and the other police officer would appear to make the arrest, confiscate the money and the illegal drugs, all purportedly for the purpose of gathering up evidence to be turned over to the municipality. However, the drugs and the funds ultimately were kept by the co-conspirators. After trial Valerius was acquitted of all charges.

The Valerius Court pointed out that the charges against Valerius involved his status as a police officer and his improper use of that status in the alleged incident; that if those charges were true, Valerius’s conduct amounted to a “perversion and prostitution of his duties and responsibilities as a police officer”; that a conviction would have established that his conduct neither arose out of nor was incidental to the performance of his duties; but that inasmuch as Valerius was acquitted, the municipality had no basis for concluding that he had engaged in conduct that constituted a perversion and prostitution of his police obligations. 84 N.J. at 596 . Then comes the embellishment on Van Horn :

Since the charges in the indictment alleged improper use of his status as a police officer and, since the jury, after the development of the underlying facts at trial, *520 rejected the truth of the charges, the matter would be included within the statutory language “arising out of or incidental to the performance of his duties.” [id. at 596-97 (emphasis added).]

As I understand Valerius—and understood it when I east my vote with the unanimous Court—in order to determine whether criminal proceedings against a police officer arise out of or are incidental to the performance of his duties as contemplated by N.J.S.A. 40A:14-155, courts look to whether the charges involved the officer’s police status and his use of that status, and whether the action against him resulted in his being exonerated. Given Moya’s acquittal, the last is not in issue here.

Let us backtrack a bit. Van Horn perceived that the statute was designed to protect police officers from the risk of incurring legal expenses in defending themselves against civil or criminal action initiated by the disgruntled “victims” of their law enforcement activities. 80 N.J. at 536-37 . So did Valerius. 84 N.J. at 597 . But in no sense did Moya become subject to criminal prosecution because of any risk to which his status as a police officer exposed him—lest it be the risk of being victimized by “rogue cops,” which hardly appears to have been the legislature’s concern. Moya was swept up in an official investigation, whereas Van Horn and Valerius instruct us that the legislature focused on an entirely different sort of problem: its uneasiness originated in the confrontations police have with the general public arising out of their conduct as police officers—with maintaining law and order. See Meyerson v. City of Bayonne, 185 N.J.Super. 437 (App.Div.1982).

Plainly, the charges against Moya did not spring from any asserted use of his status as a law enforcement officer. He was accused of acting, while off duty, in concert with certain on-duty officers. His status was not alleged to have been used. Perhaps his “know-how” and information were, but those are nothing more than the tools-of-the-trade of any sophisticated breaker and enterer. That circumstance is what leads me to the conclusion that the charge here was of the garden variety. I would not rewrite the statute to cover it.

I vote to reverse and enter judgment for defendant.

*521 SCHREIBER and POLLOCK, JJ., join in this opinion.

PASHMAN, J., concurring in the result.

For affirmance and remandment—Chief Justice WILENTZ and Justices PASHMAN, HANDLER and O’HERN—4.

For reversal—Justices CLIFFORD, SCHREIBER and POLLOCK—3.