N.J. SUPERIOR COURT, APPELLATE DIVISION

Ramos v. Flowers

CIVIL RIGHTS — Freedom of Speech

New Jersey Law Journal

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Ramos v. Flowers, A-4910-10T3; Appellate Division; opinion by Waugh, J.A.D.; decided and approved for publication September 21, 2012. Before Judges Cuff, Waugh, and St. John. On appeal from the Law Division, Mercer County, Docket No. L-1248-08. D.D.S. No. 46-2-7734 [29 pp.]

Plaintiff Kelly Ramos is a documentary filmmaker. Defendant Herbert Flowers is a Trenton police officer. Ramos contends that, while filming the activities of the "Sex Money Murder" Bloods sect, one of the largest Bloods gang units in Trenton, as part of a project about the emergence of gangs in Trenton, he had five encounters with Trenton police, including three involving Flowers.

Ramos claims that, while filming an outdoor birthday party attended by several gang members, he had positioned his vehicle so that its headlights shone on the participants, and police arrested and charged him with, inter alia, obstructing traffic, improper parking and leaving an unattended vehicle running. In another incident, Ramos says he was filming on a public sidewalk when police demanded that he turn his camera off. In aother, while he was driving in Trenton and filming, police cited him for improperly parking within an intersection.

Next, Ramos says he was filming police "shutting down" a barbeque in a public park attended by known gang members. Police asked him to move across the street to film, which he did. However, when Flowers arrived, he told Ramos that "something would happen to him" if he did not stop filming.

Last, police responded to a call from the public library that known gang members were holding a meeting there. Ramos asserts that when he arrived at the library, Flowers told him he was interfering with a police investigation, grabbed his video camera and put it in his car, and threatened to arrest him.

Ramos filed a complaint under the Civil Rights Act, N.J.S.A. 10:6-1 to -2, based on allegations that Flowers interfered with his constitutional rights to free speech and assembly and his right to be free from unlawful search and seizure. Flowers filed a motion for summary judgment. The motion judge determined that Flowers was entitled to qualified immunity on the Civil Rights Act claims.

On appeal, Ramos argues that the motion judge erred in applying qualified immunity to actions brought under the Civil Rights Act and in dismissing his unlawful search and seizure claims.

Held: Qualified immunity is an affirmative defense under the Civil Rights Act but only as to claims for money damages, not to claims for injunctive relief. The right to engage in news gathering to create a documentary concerning a matter of public interest is protected by the First Amendment and the New Jersey Constitution and that right was clearly established in 2006 for qualified-immunity purposes. Therefore, Flowers was not entitled to a qualified immunity defense on summary judgment.

Flowers argues that he is entitled to the qualified-immunity defense applicable in cases brought under 42 U.S.C.A. § 1983, the federal equivalent of the CRA, and the immunities conferred by the Tort Claims Act.

Owens v. Feigin, 194 N.J. 607 (2008), surveyed the legislative history of the CRA and found no indication that the Legislature intended to apply the notice requirements of the TCA to actions brought under its provisions and concluded that they were inapplicable. The panel reaches a similar conclusion, saying there is nothing in the text of the CRA or its legislative history to suggest that the Legislature intended the TCA immunities to apply to actions brought under it.

As to whether the affirmative defense of qualified immunity applied in § 1983 cases is applicable to the CRA, the panel looks to its legislative history and notes that it was modeled on § 1983, the Massachusetts Civil Rights Act, MA ST 12 § 11H et seq., and the Maine Civil Rights Act, 5 Me. Rev. Stat. Ann. § 4681 et seq. It says there is no suggestion in the legislative history that the Legislature intended to circumvent the qualified-immunity defense applicable to § 1983 as a matter of judicial interpretation and application of common-law principles. Further, while neither of the state statutes specifically provides for the application of qualified immunity, courts have held that qualified immunity is applicable to both.

The panel therefore concludes that the Legislature anticipated that New Jersey courts would apply the well-established law concerning the affirmative defense of qualified immunity in adjudicating damage claims under the Act. The motion judges consideration of qualified immunity as an available defense to damage claims was, therefore, not error.

However, because doctrines of immunity have not been held to bar injunctive remedies in § 1983 cases, to the extent the judge applied qualified immunity in considering Ramos' prayer for injunctive relief, the judge erred.

As to whether Flowers' alleged interference with Ramos' efforts to create a documentary implicated Ramos' constitutional rights, the panel concludes that a documentary about a subject of public interest, such as urban gangs, is a form of investigative journalism and that preparing such a documentary is a form of news gathering. Thus, those activities are protected by the First Amendment and the New Jersey Constitution.

As to whether Flowers' qualified-immunity defense required dismissal of the monetary damages claim, that panel says that police officers may be shielded from liability for civil damages in a civil rights suit if their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Because the creation of a documentary concerning a matter of public interest is a form of news gathering and expressive speech, there was nothing new or novel about Ramos'filming of police activity. News footage of police activity has been a fairly regular feature of television news programs at least since the 1950s or 1960s. Therefore, a reasonable police officer in 2006 could not have believed he had the absolute right to preclude Ramos from videotaping any gang activities or any of their interaction with police for the purpose of making a documentary. The motion judge erred in holding otherwise.

As to Ramos' unlawful search and seizure claims, the panel says they go beyond the arrest on which the motion judge relied, and include the incidents at the barbecue and the library. Further, the panel says that it cannot review the judge's decision as to the arrest on the record before it. It therefore reverses the dismissal of count two and remands for further consideration.

For appellant — Patrick J. Whalen. For respondent — Stacy L. Moore, Jr. (Parker McCay, P.A.; Lisa Roberts Taylor on the brief). For amicus curiae American Civil Liberties Union of New Jersey — Jonathan M. Manes of the New York bar (Gibbons) (Gibbons and ACLU of NJ, attorneys; Manes, Lawrence S. Lustberg, Edward L. Barocas, Jeanne LoCicero and Alexander R. Shalom on the brief.)

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