PER CURIAM.
Plaintiffs Therese Brady and Stephen Corum appeal from the final judgment entered in this matter on July 22, 2011, and other orders entered during the course of this litigation. For the reasons that follow, we affirm.
We summarize the salient facts, which we glean from the evidence presented at trial. Plaintiffs reside in the Borough of Glen Ridge. On Saturday, May 26, 2007, at around 6:00 p.m., plaintiffs were celebrating the Memorial Day weekend in their backyard. They were listening to a radio program featuring patriotic, inspirational and religious music as well as poetry readings. Corum said that the music was being played at a very low volume.
Even so, after about ten minutes, Michael Cordera, who resided two houses away, came to plaintiffs' backyard gate. According to Corum, Cordera yelled to turn the radio down. Brady came out onto the deck at the rear of the house. She and Corum stated that Cordera made an obscene gesture, told them he was going to call the police, and left. Brady returned to the house and Corum resumed listening to the radio. He did not turn down the volume on the radio.
At 6:27 p.m., Cordera called the Glen Ridge Police Department and complained about excessive noise coming from plaintiffs' residence. Police officer Dean Gnardellis responded to the call. Gnardellis heard the music when he got off his motorcycle and removed his helmet. Gnardellis knocked on plaintiffs' front door several times but received no response. He walked to the back gate and asked Corum to come to the front of the property.
Corum went to the front door of the house. Brady was with him. Plaintiffs claimed that Gnardellis told them to turn down their religious music, but Gnardellis testified he merely asked plaintiffs to lower the volume of the music as a matter of courtesy, in order to ease the tensions with the neighbors. According to Gnardellis, Brady refused to lower the volume and told him he had not followed proper police procedure. Brady said that Gnardellis should have first responded to the complainant's address.
Brady told Gnardellis she wanted to speak to his supervisor. Gnardellis called Sergeant Paul Ranges and asked him to go to plaintiff's home. While they were waiting for Ranges to arrive, Gnardellis spoke with Brady about the music she was playing. He asked Brady if it was a religious channel, but she reportedly responded that it was a channel that played folk music. Gnardellis stated that he did not tell plaintiffs to turn down the music based on its content. A short time later, Ranges arrived at plaintiffs' residence. Ranges heard the music when he exited his vehicle. He stated that the music was loud but not excessive.
Nevertheless, Ranges asked plaintiffs to turn the volume down. He was prepared to leave but Brady stopped him and said she wanted to make a citizen complaint because Gnardellis told them to lower the volume of the radio due to the content of the broadcast. She claimed that Ranges refused to accept her complaint. Ranges said, however, that Brady did not ask to file a complaint and he did not refuse to take her complaint.
Gnardellis and Ranges went to Cordera's home. They advised him that the volume of plaintiffs' music did not violate the Borough's noise ordinance, but he could file a complaint if he wanted to. Cordera did not file a complaint. Meanwhile, plaintiffs went back inside their home. Around 7:15 p.m. or 7:30 p.m., Brady called the Borough's police department and asked to speak with a supervisor. She was put on hold.
Brady claimed that while she was waiting, she heard Cordera playing disco music at a high volume. Cordera testified that he was angry and "decided to fight fire with fire" by playing music at the same volume as plaintiffs' music and directing the sound at plaintiffs' property. Cordera asserted that, while he was playing his music, he heard Brady "screaming, lawsuit, pay day, lawsuit, pay day."
Brady stated that when the operator returned to the phone, she was told that a supervisor was not available. Brady left a message to have a supervisor return her call. She mentioned that she wanted to file a citizen complaint and did not want anyone back at her house that evening. Brady indicated that she wanted to tell a supervisor about Cordera's music but she did not want to file a complaint about it.
Brady also asked to speak with the chief of police. She was told he was on vacation but she could leave a voicemail message. Brady left "a rather friendly message" for the chief of police, asking him to contact plaintiffs at home and indicating that she wanted to file a complaint because plaintiffs did not believe they should be ordered to lower the volume of religious music because of its content.
Lieutenant Mark Dailey testified, however, that he spoke with Brady when she called and she complained about the officers who had responded to her home. Dailey said that he told Brady that the police are required to investigate noise complaints, but Brady was not pleased with that response. She asked to speak with the chief of police or the Borough's administrator, but they were not available. Brady also told Dailey she wanted an apology for having sent the officers to her home. Dailey said he would not apologize because the police were merely following procedures.
Thereafter, Ranges and Dailey responded to Brady's complaint about Cordera's music. They went to Cordera's home and asked if he had been playing music. Cordera replied that he had, but had turned the music off. The officers told Cordera that he had to learn to get along with his neighbors. Cordera replied that he had been trying to do that for several years "but nothing seemed to work."
At this point, plaintiffs had again come out onto their back deck. They denied that they had been drinking any alcoholic beverages, although Gnardellis testified that earlier he had seen a wine bottle on the deck with two half-filled glasses. At around 8:00 p.m., Ranges and Dailey arrived at plaintiffs' home. Brady claimed that they pounded on the door.
Corum walked to the front of the house, but he had trouble navigating the stairs, which he claimed was due to a medical condition that causes numbness in his legs. He acknowledged, however, that his unsteadiness could be construed as a sign of intoxication. Brady also had to use a handrail to maneuver down the steps. The officers thought plaintiffs were impaired because of their actions and comments, and because they detected the odor of alcohol on their breaths.
Brady said that three officers responded to her home: Gnardellis, Ranges and Dailey. Brady told Dailey she had not wanted the police to come to her home. She just wanted to leave a message. Dailey told her that, since he was there, they should discuss the matter. Brady said Gnardellis wrongfully told her to turn down the radio because of its religious content, and Ranges erred by refusing to accept her complaint about Gnardellis. The officers left after about a half an hour, and plaintiffs returned to their deck.
At 9:25 p.m., the police received an anonymous call reporting noise at plaintiffs' residence. The caller said that profanities were being screamed, such as "hail Hitler." Cordera testified that he heard plaintiffs yelling comments like "go back to Europe," "illegally immigrant," and "Heil Hitler." Cordera believed these comments were directed at his wife, who is of French origin. Cordera also testified that he heard profanities, comments about a lawsuit, and someone say "call the police now." Cordera thought that plaintiffs were inebriated. Cordera and Michael Donohue, a friend who was visiting at the time, were offended and called the police to complain about plaintiffs' behavior.
Ranges and Gnardellis were dispatched to plaintiffs' home, and Officer Matthew Koc was sent there about eighteen minutes later. Dailey also responded to the scene, after Brady asked for him. Corum noticed Gnardellis, Ranges and Dailey observing plaintiffs from their neighbor's yard, and he informed Brady of their presence. According to plaintiffs, the officers told them that the neighbors had complained and plaintiffs were going to have to shut up and go in the house for the night or be arrested. Plaintiffs complied. They said that they felt like prisoners in their own home.
The police denied ordering plaintiffs to go inside their home for the night or threatening them with arrest. The officers said they were merely responding to a complaint about the noise at plaintiffs' home. Dailey testified that, when he arrived, he told plaintiffs they had to keep the music at a low volume but Brady objected. According to Dailey, Brady rambled on about being a lawyer, that it was Memorial Day and Corum was a veteran. She said they had a right to listen to the national anthem. After about twenty minutes, Dailey told Brady there was nothing he could do for her. He advised Corum to take Brady inside and get some rest.
Later that night, Brady telephoned the mayor at his home. The mayor told Brady he could not help her and referred her to the chief of police. Brady thereafter left a message with the Borough's administrator. She also left several messages with the police chief. In the days and weeks that followed, Brady pursued her complaints about the actions of the police.
On May 27, 2008, plaintiffs filed a nine-count complaint in the Law Division against the Borough, the Borough's police department, the police officers, Chief of Police John Magnier, former Mayor Carl Bergmanson and Borough Administrator Michael Rohal. Plaintiffs alleged that: defendants violated their rights to free speech, privacy, liberty, and freedom from searches beyond the curtilage of their home, under New Jersey law and the New Jersey Constitution (count one); the police department, Gnardellis, Ranges, Dailey, Magnier and Bruno violated their federal constitutional rights contrary to 42
In November 2009, plaintiffs filed a motion seeking sanctions because defendants had not retained the recordings of the calls made to the police department during the incident. Judge Michael R. Casale refused to strike defendants' pleadings or exclude evidence that could have been refuted by the tapes, but agreed to provide the jury with an adverse inference, indicating the jury could presume that the evidence would have been unfavorable to defendants.
Thereafter, the parties filed cross-motions for summary judgment. Judge Sebastian P. Lombardi denied plaintiffs' motion and granted partial summary judgment to defendants. The judge dismissed all of plaintiffs' claims, except for: (1) the claim that Gnardellis and Ranges violated their constitutional rights to free speech; (2) the claim that Gnardellis, Ranges and Dailey retaliated against them for exercising their free speech rights; (3) the claim that Gnardellis, Ranges and Dailey seized them in violation of their constitutional rights; and (4) the claim that Gnardellis, Ranges, Dailey and the Borough falsely imprisoned them.
These claims were tried before a jury. At the close of the evidence, Judge James S. Rothschild, Jr., granted judgment for defendants on all claims other than plaintiffs' retaliation claim. The jury then returned a verdict for defendants on that claim.
Plaintiffs later filed a motion for a new trial. The trial judge entered an order dated July 22, 2011, denying the motion. On July 22, 2011, the judge entered judgment for defendants in accordance with its rulings during the trial and the jury's verdict. This appeal followed.
Plaintiffs raise the following issues for our consideration:
We turn first to plaintiffs' contention that Judge Lombardi erred by denying their motion for summary judgment on their 42
Summary judgment may be granted when the evidence before the trial court on the motion, viewed in a light most favorable to the non-moving party, indicates that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.
42
We are convinced that Judge Lombardi correctly determined that plaintiffs had not presented sufficient evidence to support their claim against the Borough under 42
The judge additionally noted that there was no evidence that the Borough had a policy permitting its police officers to violate First or Fourth Amendment rights, nor was there any evidence that the Borough condoned any unconstitutional actions on the part of the police. The Borough's noise ordinance did not regulate noise on the basis of content, and it was not unconstitutionally vague because it specifically defined the conduct that constituted a violation.
The judge also pointed out that there was no evidence that the officers' investigation of the noise complaint in this matter was the result of any unconstitutional policy on the part of the Borough. The fact that the Borough did not discipline the officers for the alleged misconduct did not establish the Borough had a policy of condoning unconstitutional actions.
In addition, the judge stated that the officers did not violate plaintiffs' Fourth Amendment rights against unreasonable searches by observing plaintiffs in their backyard. On their first visit, the officers accessed the curtilage of plaintiff's home in order to speak with them about their neighbor's noise complaint. The judge found that officers' entry onto plaintiffs' property to address the noise complaint was lawful. The judge also determined that plaintiffs did not have reasonable expectations of privacy when the police observed them from the back gate.
We are convinced that the record supports the judge's determination and the judge correctly found that plaintiffs' claims against the Borough under 42
Next, plaintiffs argue that Judge Casale erred in his ruling on their motion for discovery sanctions based on defendants' failure to maintain the recordings of the calls to the police concerning the events of May 26, 2007. Plaintiffs contend that, rather than directing that an adverse inference would be given at trial, the judge should have struck defendants' answer and barred them from presenting evidence in response to plaintiffs' claims that could have been refuted by the police tapes. We cannot agree.
Judge Casale concluded that, under the circumstances, defendants should have known there was a reasonable possibility that litigation would result from the officers' response to the complaints of noise at plaintiffs' residence and, therefore, defendants had a duty to preserve the tapes of the calls to the police department. The judge also found that plaintiffs were prejudiced by the destruction of the tapes because the tapes were the "best evidence" available concerning the complaints and the response to those complaints.
The judge determined that an adverse inference charge would adequately address any prejudice to plaintiffs from the destruction of this evidence, noting that the spoliation was revealed during discovery, and that the adverse inference charge would "level[] the playing field" for the parties at trial. The judge's order stated "that an adverse instruction will be given to the jury which presumes that the evidence [d]efendants destroyed, relating specifically to the Glen Ridge police call tapes, would have been unfavorable to the [d]efendants[.]".
The court may impose sanctions for the spoliation of evidence.
We are satisfied Judge Casale did not abuse his discretion by choosing an adverse inference as the sanction for defendants' failure to preserve the police call tapes. While the loss of the tapes deprived plaintiffs of evidence that might have corroborated their version of the events, the adverse inference charge permitted the jury to infer that police tapes contained information that was not favorable to defendants. We are convinced that the sanction chosen by the judge leveled the playing field between the parties and the judge did not abuse his discretion by refusing to impose other sanctions.
Plaintiffs additionally contend that the trial judge erred by entering judgment for the defendant police officers on plaintiffs' claims under 42
When reviewing the grant of a motion for judgment, we consider whether the evidence presented at trial, together with all legitimate and reasonable inferences that may be deduced therefrom, could sustain a judgment in favor of the party opposing the motion. If reasonable minds could differ, the motion should be denied.
We note initially that there is no merit to plaintiffs' contention that the trial judge was bound by the earlier decision of the motion judge, denying summary judgment on these claims. The law of the case doctrine requires a trial judge to respect earlier legal decisions made in the case, but the judge has the discretion to revisit those decisions.
As we noted previously, plaintiffs alleged that the officers violated their First Amendment rights by ordering them to turn down their music based on its religious content. They further alleged that the officers violated their Fourth Amendment rights by unlawfully confining them to their home, when the officers told them to go inside and remain there for the evening.
"Section 1983 provides a cause of action for a person who has been deprived of his or her well-established federal constitutional or statutory rights by any person acting under the color of state law."
We are satisfied that Judge Rothschild correctly determined that the defendant police officers were entitled to judgment on the claim that they violated plaintiffs' First Amendment rights. The judge noted that the neighbor's complaint was based on the volume of plaintiffs' music, not its content. The judge pointed out that there was no evidence that Cordera or the police were concerned about the content of the music, even though one of the officers may have asked whether plaintiffs were playing religious music. The judge determined that the actions of the police, "whether right or wrong, was caused by the loudness, the volume [of the music]." The record supports that determination.
We are additionally satisfied that Judge Rothschild correctly determined that the police officers were entitled to judgment on plaintiffs' Fourth Amendment claim. The judge noted that, on the evening of May 26, 2007, the officers were confronted with a dispute about the volume at which plaintiffs were playing their music. Several officers had responded to the complaint.
The judge said that, in light of the circumstances, the officers' direction that plaintiffs go inside their home and remain there for the evening was a "reasonable attempt to deescalate the situation." The judge observed that law enforcement officers have the discretion to try to prevent such disputes from worsening, and in this matter they acted reasonably in doing so.
The judge correctly found that the officers were entitled to qualified immunity from the claimed violation of plaintiffs' Fourth Amendment rights. As the judge determined, a reasonable person in plaintiffs' position would not believe that the officers were seizing them or placing them under house arrest. The judge also correctly noted that under the circumstances, no reasonable police officer would believe that it was unlawful to tell plaintiffs to go inside their home, after having spent several hours attempting to resolve the escalating dispute between plaintiffs and their neighbors.
Plaintiffs also asserted a claim against the Borough, the police department and the police officers for false imprisonment. "False arrest, or false imprisonment, is the constraint of the person without legal justification. The tort requires an arrest or detention of the person against his or her will; and lack of proper legal authority or "legal justification."
We are convinced that Judge Rothschild correctly determined that there was no factual basis for plaintiffs' false imprisonment claim. The judge aptly observed that the plaintiffs "were neither arrested nor imprisoned." The judge correctly determined that plaintiffs' claim failed as a matter of law.
Plaintiffs additionally argue that Judge Rothschild erred by denying their motion for a new trial. Among other things, plaintiffs argued that the jury's verdict on their First Amendment retaliation claim was against the weight of the evidence. Plaintiffs contend that they proved they were exercising their right to free speech when they made complaints about the police, and proved that their "speech was chilled" when the police refused to take their complaints, came to their home and ordered them into the house for the evening. Plaintiffs asserted that the jury did not make its decision on the weight of the evidence but rather upon hearsay and prejudicial remarks that had no bearing on the First Amendment retaliation claim.
The judge found no merit in this claim. In his written opinion explaining the reasons for denying plaintiffs' motion for a new trial, the judge noted that the "real basis" for the jury's decision was its analysis of the conduct of plaintiffs and of the police. The judge noted that the jury heard extensive evidence, including live testimony of the officers involved in the incident. The judge wrote:
The judge also stated that the jury appeared to be "a thoughtful group which stayed alert and asked meaningful questions." The judge added that while Brady came across as "an intelligent, well motivated plaintiff pro se attorney, the jury could have viewed her as someone who, perhaps because of her legal training and experience, was interested in converting a relatively minor dispute between two neighbors into a lawsuit."
While not sacrosanct, a jury's verdict "is entitled to great deference."
In ruling on the motion for a new trial, the judge may not substitute his or her judgment for that of the jury merely because the judge would have reached a different conclusion.
We are satisfied that the record fully supports the judge's determination that the jury's verdict on plaintiffs' retaliation claim was reasonable. The jurors chose to believe defendants' version of events rather than the version provided by plaintiffs. In doing so, the jury carried out its responsibility "to assess the credibility of the witnesses and [determine] the weight to be given to their testimony."
We have considered plaintiffs' other contentions and conclude that they are without sufficient merit to warrant discussion in a written opinion.
Affirmed.
