Opinion
DOCKET NO. A-4598-11T4
02-11-2013
PAUL COLLURA, Plaintiff-Appellant, v. NEW JERSEY MOTOR VEHICLE COMMISSION, AUTOCARRY.COM, JOANNA HERNANDEZ, RICHARD HERNANDEZ, and ANTHONY CINDRICH, Defendants, and LODI POLICE DEPARTMENT, DETECTIVE JUSTIN BERTONE, and BOROUGH OF LODI, Defendants-Respondents.
Frederick E. Gerson argued the cause for appellant (Feitlin, Youngman, Karas & Gerson, LLC, attorneys; Mr. Gerson, on the briefs). Harry D. Norton, Jr., argued the cause for respondents (Norton, Sheehy & Higgins, P.C., attorneys; Mr. Norton, of counsel and on the brief; Kelly P. Corrubia, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano, Lihotz and Kennedy.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-10396-10.
Frederick E. Gerson argued the cause for appellant (Feitlin, Youngman, Karas & Gerson, LLC, attorneys; Mr. Gerson, on the briefs).
Harry D. Norton, Jr., argued the cause for respondents (Norton, Sheehy & Higgins, P.C., attorneys; Mr. Norton, of counsel and on the brief; Kelly P. Corrubia, on the brief). PER CURIAM
Plaintiff Paul Collura appeals from an order granting summary judgment to defendants, the Lodi Police Department (LPD), Detective Justin Bertone, and the Borough of Lodi (Borough) (collectively the Lodi defendants), and dismissing with prejudice his complaint alleging causes of action under 42 U.S.C.A. § 1983 against these defendants. On appeal, plaintiff argues the motion judge erred in concluding defendants' conduct was cloaked by qualified immunity, barring his entitlement to relief for the alleged violation of his Fourth Amendment rights in the 2009 warrantless seizure of his vehicle. We affirm.
Plaintiff's complaint also alleged causes of action against the New Jersey Motor Vehicle Commission, Autocarry.com (Autocarry), Joanna and Richard Hernandez, and Anthony Cindrich. Presumably the complaint was dismissed as to Mr. and Mrs. Hernandez, who originally purchased the vehicle from Autocarry after Cindrich failed to pay its transport fees. Further, we assume the MVC was also dismissed as a defendant. The record discloses a default judgment was entered against Cindrich on March 29, 2011, and defendant Autocarry ceased doing business in 2009.
I.
The circuitous events leading to the police seizure of plaintiff's car as disclosed in the motion record are as follows. On February 10, 2009, Anthony Cindrich appeared at the LPD to report his 1965 Chevrolet Impala (the vehicle) had been stolen. Cindrich provided the LPD with photographs, title, and the vehicle identification number (VIN), which Cindrich said he purchased years earlier on eBay from Aaron Cobb of Florence, Arizona. After he purchased the vehicle, Cindrich arranged for Autocarry.com (Autocarry) to transport it from Arizona to Autocarry's Lodi lot. Cindrich explained the vehicle was broken into in December 2005 and "went missing" in February 2006. At that time, neither he nor a representative of Autocarry reported the vehicle as stolen.
Cindrich told LPD he had discovered a Craigslist posting, advertising a 1965 Chevrolet Impala for sale in Fair Lawn and believed the car listed for sale was the vehicle stolen from him in 2006. LPD Sergeant Louis Abola recorded the information in a February 10, 2009 police report, stating:
Although [Cindrich] here has an abundant amount of paperwork that belongs to this car[,] he has not satisfied the fact that the particular car in Fair[ L]awn is his. If it is in fact the same car the victim believes that it was titled fraudulently. The victim would like to sign a complaint if an actor is found to be in possession of his auto if he in fact is still the legal owner of the vehicle.
Detective Bertone reviewed the report and began an investigation. He checked the Craigslist posting and determined the 1965 Chevrolet Impala listed for sale appeared to be the same vehicle described by Cindrich. The posting identified plaintiff as the seller of the vehicle.
Detective Bertone interviewed Cindrich on February 23, 2009, and reviewed Cindrich's documents pertaining to the vehicle, including title issued by the New Jersey Motor Vehicle Commission (MVC), a special services title application for a certificate of ownership, an Arizona certificate of title issued to Cobb, an Arizona inspection certificate, and photographs of the vehicle taken in 2006 after it arrived at Autocarry's Lodi lot. When Detective Bertone inquired why Cindrich waited so long to report the vehicle's theft, Cindrich suggested he needed to gather all the documentation demonstrating his ownership. Detective Bertone conceded this raised a few "red flags" for which he was "somewhat" concerned, but he continued his investigation.
Detective Bertone searched MVC's records and learned that as of July 21, 2007, the vehicle was registered and titled to Joseph Scaduto. He found no information regarding plaintiff's ownership.
Posing as a potential buyer, Detective Bertone called plaintiff, and asked to look at the vehicle. Plaintiff provided the address where the vehicle was stored, and Detective Bertone advised he would be in touch to schedule an appointment to view the vehicle. Detective Bertone did not identify himself as a police officer because he feared plaintiff would dispose of the vehicle.
Detective Bertone and his supervisor checked the location revealed by plaintiff and observed it was a commercial building consisting of ten secured garages, rather than an open lot. Detective Bertone also called Scaduto to inquire about his ownership of the vehicle. Scaduto advised he sold the vehicle six to nine months earlier. Although he had agreed to come into the LPD station for further questioning, he did not keep his appointment. Detective Bertone then scheduled an appointment with plaintiff to view the vehicle.
On March 27, 2009, Detective Bertone held a briefing with his supervisor, other police personnel, and Richard Stryker of the MVC to discuss his proposed plan to meet plaintiff and check the vehicle's VIN. The plan was approved and put into place.
Detective Bertone, posing undercover as Cindrich's friend, went with Cindrich to meet plaintiff to buy a car grill that plaintiff also had advertised on Craigslist. Upon meeting plaintiff, Detective Bertone expressed interest in the vehicle, and plaintiff invited him and Cindrich to enter the garage where the vehicle was stored. Backup units from Lodi and Fair Lawn were in place, but out of sight, when plaintiff, Detective Bertone, and Cindrich arrived at the garage. With plaintiff's consent, Cindrich examined the vehicle's engine and Detective Bertone examined its interior, continuing the pretense he was interested in purchasing the vehicle. Detective Bertone opened the driver's door and observed the VIN on the door jamb, which matched the VIN on Cindrich's documentation. Moments after Detective Bertone confirmed the VIN matched, backup units arrived and apprised plaintiff of the LPD investigation.
Plaintiff was questioned following his waiver of Miranda rights. He said he bought the vehicle a few months earlier from Scaduto, in East Brunswick, after seeing a Craigslist posting in late September 2008. Scaduto had provided a certificate of title, but plaintiff did not register or title the car, rendering him unable to prove his ownership. Plaintiff was not arrested, but the vehicle was removed from the garage and taken to a designated police lot, after being impounded as stolen property.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
On April 13, 2009, Detective Bertone took a voluntary sworn statement from Cindrich. Cindrich's statement largely mirrored the factual recitation we have set forth. Cindrich also admitted he had not paid Autocarry's $1,200 shipment fee, having informed Autocarry he disputed the charges after the vehicle had been vandalized. Following Cindrich's receipt of title in January or February 2006, the vehicle "vanished" from Autocarry's lot, leading Cindrich to believe it had been stolen. Autocarry vacated its Lodi location sometime between 2006 and 2009. Cindrich affirmed he did not know Scaduto or plaintiff, apart from the knowledge acquired during the investigation.
Plaintiff, too, began to investigate the vehicle's ownership. He contacted Scaduto, seeking clarification about his acquisition of the vehicle. The following undisputed facts, taken from the motion judge's opinion, were discovered by plaintiff or the LPD after the vehicle's seizure:
Unbeknownst to Mr. Cindrich, the next known owner of the car was [d]efendant Richard Hernandez . . . . Mr. Hernandez bought the Impala from John of Autocarry.com . . . for approximately $500 . . . . The car was shipped to Mr. Hernandez through Autocarry.com. Mr. Hernandez put the Impala up for sale on eBay.com on January 27, 2007. Mr. Hernandez states that he did not have the car in his possession for very long before putting it up for sale and therefore believes that he bought the car from Autocarry.com around January 2007. When he purchased the car, Mr. Hernandez was told that it was an abandoned vehicle.
Joe Scaduto . . . purchased the Impala from Mr. Hernandez through the eBay.com listing. The car was purchased on January 31, 2007[,] for approximately $4,050 . . . . Mr. Hernandez shipped the car to Mr. Scaduto via Autocarry.com . . . . The shipment arrangements were made between John of Autocarry.com and Mr. Scaduto. Mr. Scaduto was informed that he needed to obtain title by Mr. Hernandez. Mr. Scaduto obtained title to the car on July 21, 2007.
Mr. Scaduto later sold the car to [p]laintiff . . . in September 2008 for approximately $4,800 . . . . [Plaintiff] bought the car after seeing it on Craigslist.com.
Hernandez obtained a new title by completing documentation showing the vehicle was abandoned.
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On December 9, 2009, plaintiff executed an indemnification agreement, affirming he would indemnify LPD or the Borough from any claims by Cindrich, if the vehicle were released to him. In a separate action, plaintiff was determined the rightful owner of the vehicle.
Plaintiff filed his complaint on December 28, 2010. Upon completion of discovery in 2012, the Lodi defendants moved for summary judgment. After considering oral argument, Judge Lisa Perez-Friscia rendered a written statement of findings and conclusions, accompanying the order granting defendants summary judgment. Plaintiff appeals.
II.
A.
The principles guiding our review of an order of summary judgment are well-established. Consideration of a request for summary judgment, as permitted by Rule 4:46-2(c), requires the court's review of "'the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any,'" to determine whether they "'show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law.'" Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 528-29 (1995) (quoting R. 4:46-2). When making such a review, a motion judge does not make credibility determinations or perform the typical weighing of evidence that a fact-finder would; rather, the judge analyzes and sifts through evidential materials to "determine 'the range of permissible conclusions that might be drawn.'" Id. at 531 (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 596, 106 S. Ct. 1348, 1361, 89 L. Ed. 2d 538, 558 (1986)). See also Millison v. E.I. du Pont de Nemours & Co., 101 N.J. 161, 167 (1985) (requiring a motion judge to make a "discriminating search" of the evidence). Inevitably, the judge must consider not just the quantum of proof, but the quality of evidence as well. Brill, supra, 142 N.J. at 534 (citations omitted).
Our review of a summary judgment order is de novo, Trinity Church v. Lawson-Bell, 394 N.J. Super. 159, 166 (App. Div. 2007), during which we employ the same standards used by the motion judge, Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). We first determine whether the moving party has demonstrated there exist no genuine disputes as to any material facts, and then we decide whether the application of the law was correct. Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230-31 (App. Div.), certif. denied, 189 N.J. 104 (2006).
B.
Plaintiff's complaint seeks relief pursuant to § 1983. The statute does not provide substantive rights, but allows a cause of action "'for vindicating [violations of] federal rights elsewhere conferred.'" Seeward v. Integrity, Inc., 357 N.J. Super. 474, 483 (App. Div. 2003) (quoting Graham v. Connor, 490 U.S. 386, 393-94, 109 S. Ct. 1865, 1870, 104 L. Ed. 2d 443, 454 (1989)). To establish a claim under § 1983, a plaintiff must prove the defendants, typically public officials, "acted under color of state law and deprived him [or her] of a well-established federal constitutional or statutory right." Wildoner v. Borough of Ramsey, 162 N.J. 375, 385 (2000).
When § 1983 claims "arise out of an alleged unlawful arrest, search, or seizure by a law enforcement officer[,]" the doctrine of qualified immunity may limit a plaintiff's right to recovery. Kirk v. City of Newark, 109 N.J. 173, 179 (1988). See also Pierson v. Ray, 386 U.S. 547, 557, 87 S. Ct. 1213, 1219, 18 L. Ed. 2d 288, 296 (1967) (allowing an official to defend against a § 1983 action by asserting a defense of qualified immunity). When defendants successfully establish qualified immunity, Schneider v. Simonini, 163 N.J. 336, 354, 359 (2000), cert. denied, 531 U.S. 1146, 121 S. Ct. 1083, 959 L. Ed. 2d 959 (2001), they obtain not a defense to liability, but rather an immunity from suit, Bayer v. Twp. of Union, 414 N.J. Super. 238, 263 (App. Div. 2010) (citing Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S. Ct. 2806, 2815, 86 L. Ed. 2d 411, 425 (1985)).
Qualified immunity will bar legal action for redress resulting from alleged unlawful conduct by a public official if that conduct was objectively reasonable when undertaken. Kirk, supra, 109 N.J. at 186-87. See also Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396, 410 (1982) (holding an official's action is considered objectively reasonable, unless the conduct violates "clearly established statutory or constitutional rights of which a reasonable person would have known"). An official will enjoy qualified immunity if "his [or her] conduct was justified by an objectively reasonable belief that it was lawful." Connor v. Powell, 162 N.J. 397, 409 (2000) (internal quotation marks and citations omitted). Thus, qualified immunity will attach if a reasonable public official could have believed his or her action was lawful "'in light of clearly established law and the information the . . . officer[] possessed.'" Schneider v. Simonini, 314 N.J. Super. 583, 593 (App. Div. 1998) (quoting Anderson v. Creighton, 483 U.S. 635, 641, 107 S. Ct. 3034, 3040, 97 L. Ed. 2d 523, 532 (1987)), aff'd, 163 N.J. 336 (2000), cert. denied, 531 U.S. 1146, 121 S. Ct. 1083, 148 L. Ed. 2d 959 (2001). However, qualified immunity is "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." Kirk, supra, 109 N.J. at 180 (citing Wood v. Strickland, 420 U.S. 308, 322, 95 S. Ct. 992, 1000, 43 L. Ed. 2d 214, 225 (1975)).
These issues require legal determinations that may be properly decided on a motion for summary judgment. Wildoner, supra, 162 N.J. at 387. See also Plummer v. Dep't of Corr., 305 N.J. Super. 365, 372 (App. Div. 1997) (noting "[t]he issue of objective reasonableness ordinarily should be decided by summary judgment, governed by federal substantive law") (internal quotation marks and citations omitted). Our review of such a determination is de novo.
III.
On appeal, plaintiff's attack on the application of qualified immunity focuses on whether the Lodi defendants' conduct was objectively reasonable. He first argues his Fourth Amendment rights were violated because the Lodi defendants did not demonstrate, prior to effectuating the seizure of his vehicle, a reasonable belief that probable cause and exigent circumstances were present excusing the need for a warrant. Before analyzing whether qualified immunity barred plaintiff's suit, we consider the principles supporting plaintiff's claimed constitutional infringement.
The Fourth Amendment assures citizens are "secure . . . against unreasonable searches and seizures." U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7. See also State v. Smith, 212 N.J. 365, 387 (2012). In protecting these constitutional rights, "'the touchstone of the [F]ourth [A]mendment is reasonableness.'" State v. Zapata, 297 N.J. Super. 160, 171 (App. Div. 1997) (quoting State v. Bruzzese, 94 N.J. 210, 217 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984)), certif. denied, 156 N.J. 405 (1998). See also State v. Maristany, 133 N.J. 299, 304 (1993) (holding the Fourth Amendment "impose[s] a standard of reasonableness on the exercise of discretion by government officials to protect persons against arbitrary invasions"). The same is true of the warrantless seizure of property. State v. Hempele, 120 N.J. 182, 218-19 (1990).
Warrantless searches and seizures by police are presumptively unreasonable and are prohibited unless they fall within a recognized exception to the warrant requirement. State v. Pineiro, 181 N.J. 13, 19 (2004). The State has the burden of proving the validity of a warrantless search. State v. Wilson, 178 N.J. 7, 12-13 (2003). In State v. Hill, 115 N.J. 169, 173- 74 (1989), the New Jersey Supreme Court identified eleven exceptions to the warrant requirement. Plaintiff's argument on appeal limits the police justification for the warrantless seizure to the "automobile exception."
Under the automobile exception, a warrantless search and seizure of property found in an automobile by police will be upheld if "the stop is unexpected[,]" the totality of the circumstances satisfactorily justifies a finding of probable cause to believe "the vehicle contains contraband or evidence of a crime[,]" and "exigent circumstances exist[,]" making it impracticable to obtain a warrant. State v. Pena-Flores, 198 N.J. 6, 28 (2009). Pena-Flores, and similar cases addressing the automobile exception, dealt with a vehicle stopped for an observed motor vehicle infraction. Id. at 12. As the events unfolded, the driver was arrested, leaving the question of whether the vehicle could then be searched and/or seized without a warrant. Id. at 12-14, 30-32. The Court's "attempt in [its Pena-Flores] opinion to sketch the parameters of exigent circumstances must be understood within that factual complex." State v. Minitee, 210 N.J. 307, 322 (2012).
In this matter, plaintiff maintains any warrantless seizure of an automobile must satisfy the parameters of the automobile exception articulated in Pena-Flores. Because the Lodi defendants failed to prove either probable cause or exigent circumstances, he argues, the seizure of the vehicle was invalid and a violation of his Fourth Amendment rights. We reject plaintiff's premise suggesting the seizure could be valid only if the prongs of the automobile exception were met, and specifically note the facts of Pena-Flores are so distinguishable from this matter, its legal principles are not dispositive or applicable. As we noted, Pena-Flores considered searches and seizures arising following routine traffic stops. We are examining a consensual inspection of property in an on-going undercover police investigation.
The facts here show Detective Bertone was lawfully present in the storage garage at the invitation of plaintiff. Further, plaintiff gave his given permission to allow inspection of the vehicle. Detective Bertone's investigation had yielded particular, objective information that the car in the garage matched the vehicle reported as stolen. The VIN of plaintiff's vehicle was readily visible on the side door panel. Detective Bertone confirmed the VIN matched the documentation of Cindrich's allegedly stolen vehicle. Finally, plaintiff could not prove he held valid title to the vehicle. Contrary to plaintiff's contention, Detective Bertone was not obligated to reveal he was a police officer, and the undercover nature of the police action does not defeat Detective Bertone's lawful presence. See State v. Anglada, 144 N.J. Super. 358, 363 (App. Div. 1976) (holding the Fourth Amendment does not protect individuals from exposure resulting from their "misplaced trust in persons about whom they knew nothing").
These facts overwhelmingly demonstrate the Lodi defendants had probable cause to believe the vehicle in plaintiff's possession was the car Cindrich reported as stolen. Although elusive, "[p]robable cause means less than legal evidence necessary to convict though more than mere naked suspicion." State v. Smith, 212 N.J. 365 (2012) (internal quotation marks and citations omitted). "'Probable cause is a flexible, nontechnical concept.'" State v. Pineiro, 369 N.J. Super. 65, 70 (App. Div.) (quoting State v. Kasabucki, 52 N.J. 110, 116 (1968)), certif. denied, 181 N.J. 285 (2004). "It involves a 'conscious balancing of the governmental need for enforcement of the criminal law against the citizens' constitutionally protected right of privacy.'" Ibid. (quoting Kasabucki, supra, 52 N.J. at 116). Viewing the totality of the undisputed facts, we concur with Judge Perez-Friscia that the facts presented to the Lodi defendants at the time of seizure satisfied this standard.
Plaintiff maintains probable cause alone would not justify the vehicle's seizure as the police must also demonstrate exigent circumstances or apply for a warrant. We disagree. These facts do not demonstrate a police intrusion into a constitutionally protected area because plaintiff invited Detective Bertone into the garage to inspect the vehicle as a prospective purchaser. Therefore, there was no Fourth Amendment search. Pineiro, supra, 369 N.J. Super. at 73.
In investigating crimes, "[t]he police are not required to turn away from evidence that comes to their attention through the exercise of their unaided senses[.]" Kevin G. Byrnes, Arrest, Search & Seizure, The Law of Police-Citizen Encounters, § 10.3 (2012-2013). This principle was reinforced by our Supreme Court's comment in Bruzzese, supra, which stated: "We do not believe that a police officer lawfully in a viewing area must close his eyes to suspicious evidence in plain view." 94 N.J. at 237-38. Additionally, we have explained:
"[T]o justify [a] warrantless seizure[,] . . . not only must the officer be lawfully located in a place from which the object can be plainly seen, but he or she must also have a lawful right of access to the object itself." Horton v. California, 496 U.S. 128, 136-37, 110 S. Ct. 2301, 2308, 110 L. Ed. 2d 112, 123 (1990); see also Soldal v. Cook [Cnty.], 506 U.S. 56, 65-69, 113 S. Ct. 538, 545-47, 121 L. Ed. 2d 450, 461-63 (1992); [State v. O'Herron, 153 N.J. Super. 570, 574-75, (App. Div. 1977), cert. denied, 439 U.S. 1032, 99 S. Ct. 637, 58 L. Ed. 2d 695 (1978)]; 1 [Wayne R.] LaFave, [Search & Seizure] § 2.2(a) at 399-401 [(3d ed. 1996)]. Consequently, a police officer may seize an item revealed by a plain view observation only if the officer has probable cause to believe that the item is contraband or evidence and the seizure can be made without intruding into any constitutionally
protected area or the intrusion can be made in conformity with the Fourth Amendment.
[Pineiro, supra, 369 N.J. Super. at 73-74.]
Here, the police, lawfully in the garage, inspected the vehicle after obtaining plaintiff's permission. The seizure resulted when "the facts available to the officer would 'warrant a man of reasonable caution in the belief' . . . that certain items may be . . . stolen property[.]'" Bruzzese, supra, 94 N.J. at 237-38 (quoting Texas v. Brown, 460 U.S. 730, 742, 103 S. Ct. 1535, 1543, 75 L. Ed. 2d 502, 514 (1983)). See also State v. Johnson, 171 N.J. 192, 207 (2002). Where "officers have lawfully intruded into a constitutionally protected area [in which] they observed the items in question," such as when "the initial lawful intrusion is by consent" no warrant is required for the plan view observation and subsequent seizure. O'Herron, supra, 153 N.J. Super. at 574 (citations omitted).
Turning to a determination of whether qualified immunity applies, we find the overall good faith of the police conduct was amply demonstrated. When assessing the reasonableness of police conduct, we balance "'the State's interest in effective law enforcement against the individual's right to be protected from unwarranted and/or overbearing police intrusions.'" State v. Privott, 203 N.J. 16, 25-26 (2010) (quoting State v. Davis, 104 N.J. 490, 504 (1986)).
Plaintiff's vehicle was not seized to gather evidence of a crime, but rather because the investigation suggested the vehicle itself was stolen property. This reasonable belief was reinforced by plaintiff's inability to produce proof of ownership, and by Detective Bertone's knowledge that the last registered owner, Scaduto, evaded police efforts to talk to him. The police considered the possibility plaintiff was actually an innocent party, which explains why he was not arrested. Further, later discovered facts, revealing Cindrich may have lost ownership, cannot now be used to suggest the police conduct was unreasonable.
Following our review of this record, we conclude as did Judge Perez-Friscia, the totality of the facts and circumstances of the State-citizen encounter reveals the police had probable cause to believe plaintiff was in possession of stolen property. See Smith, supra, 212 N.J. at 388 (affirming probable cause requires a well-grounded suspicion that criminal conduct has occurred) (citations omitted). Detective Bertone's conduct in seizing the allegedly stolen property was "justified by an objectively reasonable belief" the seizure was lawful. Connor, supra, 162 N.J. at 409 (internal quotation marks and citations omitted). No facts support Detective Bertone "reasonably should have known that his . . . action would violate plaintiff's clearly established constitutional rights" or that he
"maliciously intended to deprive plaintiff of those rights." Kirk, supra, 109 N.J. at 180. Accordingly, qualified immunity attaches and the Lodi defendants are immune from suit. See Maudsley v. State, 357 N.J. Super. 560, 585 (App. Div. 2003) (stating "qualified immunity protects 'all but the plainly incompetent or those who knowingly violate the law'") (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S. Ct. 1092, 1096, 89 L. Ed. 2d 271, 278 (1986)).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION