Larry Bumgarner v. Mary Benianati , 316 F. App'x 201 ( 2009 )

Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
3-6-2009
Larry Bumgarner v. Mary Benianati
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-1724
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 08-1724
_____________
LARRY BUMGARNER
v.
JANE ANN HART, individually; JAH MEETING PLANNERS, INC.,
a New Jersey corporation, also known as JAH MEETING PLANNERS
INTERNATIONAL, also known as JANE ANN HART MEETING
PLANNERS; DANDY.NET, an alleged Corporation of unknown
citizenship with offices in and doing business in New Jersey, also known
as DANDY CONNECTIONS, INC.; BIACORE CORPORATION, a
Swedish Corporation with offices in and doing business in New Jersey,
also known as BIACORE INTERNATIONAL AKTIEBOLAG; CITY
OF BRIGNTINE BEACH, a public entity; UNKNOWN NAMED
ATLANTIC CITY POLICEMEN; UNKNOWN NAMED CITY OF
BRIGANTINE BEACH POLICEMEN
(Camden New Jersey District No. 05-cv-03900)
LARRY BUMGARNER
v.
CITY OF ATLANTIC CITY, a public entity; MARY ANN BENIANATI,
an attorney; RONA ZUCKER KAPLAN, an attorney; ALAN I. KALB,
an attorney; COOPER LEVENSON, a legal firm; JANE ANN HART,
an individual; UNKNOWN NAMED ATLANTIC CITY POLICEMEN;
UNKNOWN NAMED CITY OF BRIGANTINE BEACH POLICEMEN,
and 0 unknown other named defendants; JOHN MILLER, Atlantic City
Policeman, Individually and as Employees of the Atlantic City Police
Department; MARK PIZZUTILLO, Atlantic City Policeman, Individually
and as Employees of the Atlantic City Police Department
(Camden New Jersey District No. 06-cv-00142)
John Miller and Mark Pizzutillo,
Appellants
_______________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Nos. 05-cv-3900 and 06-cv-142)
District Judge: Honorable Renee M. Bumb
_______________
Submitted Under Third Circuit LAR 34.1(a)
February 2, 2009
Before: RENDELL, JORDAN and ROTH, Circuit Judges.
(Filed: March 06, 2009)
_______________
OPINION OF THE COURT
_______________
JORDAN, Circuit Judge.
Officers John Miller and Mark Pizzutillo of the Atlantic City Police Department
(the “Officer Defendants”) appeal the order of the United States District Court for the
District of New Jersey denying their summary judgment motion. They had moved for
summary judgment on the basis of qualified immunity, but the District Court held that
they were not entitled to that protection because, when they seized a vehicle from pro se
appellee Larry Bumgarner, they did so without a warrant and in violation of clearly
established law. We conclude, however, that a reasonable officer under the
circumstances could have believed that the seizure was consistent with the Fourth
Amendment, and we will therefore reverse the judgment of the District Court.
2
I. Background
The underlying action, brought pursuant to 28 U.S.C. § 1983, Bumgarner v. City of
Atlantic City, et. al., No. 06-00124, has been consolidated with a copyright case also filed
by Bumgarner against Jane Ann Hart, Bumgarner v. Hart, No. 05-3900 (the “Copyright
Case”), in which neither Miller nor Pizzutillo are named defendants. Due to the
consolidation, this appeal has a lengthy and complex factual background. Because we
write primarily for the benefit of the parties, we will summarize only those facts relevant
to this appeal.
Bumgarner was an employee of JAH, a meeting planning business of which Jane
Ann Hart was the President and sole shareholder. In September 2003, Hart gave
Bumgarner the use of a 2003 Nissan Pathfinder that was leased to JAH. When he stopped
working for the company in July 2005, Bumgarner retained possession of the Pathfinder
despite demands from Hart that he return it.1 On August 5, 2005, Bumgarner filed his
complaint in the Copyright Case, alleging violations of the Copyright Act of 1976, 17
U.S.C. § 101, et. seq., and the Digital Millennium Copyright Act, 17 U.S.C. § 512. The
complaint in the Copyright Case mentions the Pathfinder but does not contain any claims
relating to it.
1
Bumgarner and Hart also had a personal relationship, which evidently ended
sometime at or near the time he left JAH’s employ.
3
On September 13, 2005, Hart again demanded that Bumgarner return the
Pathfinder or, alternatively, assume the registration, insurance, and lease payments. She
also advised him that if he failed to respond, she would file a criminal complaint reporting
the vehicle stolen. Bumgarner failed to return the vehicle. On September 19, Hart filed a
counterclaim in the Copyright Case, seeking possession of the Pathfinder, and a criminal
complaint with the City of Brigantine, New Jersey, alleging that Bumgarner committed
“theft by purposely obtaining or retaining” the Pathfinder. Hart also filed a statement
with the Brigantine police in support of her criminal complaint, alleging that Bumgarner
retained the vehicle and had told her he had no plan to return it. A letter from the
Brigantine Municipal Court advising Hart that a probable cause hearing was scheduled
for October 6 was sent to her on September 21. Bumgarner is listed on the letter as a
copy addressee.
The probable cause hearing before the Brigantine Municipal Court took place as
scheduled on October 6, 2005. Bumgarner did not appear at the hearing but conceded at a
later deposition that he had been aware of it. The hearing resulted in a summons being
issued against Bumgarner for “operations of a motor vehicle without permission of
owner” in violation of N.J. Stat. Ann. 39:4-48. (App. at 201.) This was a downgraded
charge from the theft complaint filed by Hart. The summons contains a “probable cause
determination for issuance of process” and the signature of the judicial officer in charge
4
of the probable cause hearing. (Id.) The summons was addressed to Bumgarner and also
contains the date, November 17, 2005, on which his appearance in court was required.
The next day, October 7, Hart saw the Pathfinder parked in the lot of Harrah’s
Casino in Atlantic City. She contacted the Atlantic City Police Department, and Officers
Miller and Pizzutillo responded. Hart showed the Officers the summons as well as the
vehicle registration papers and proof of insurance, which were both in her name. Casino
security found Bumgarner, who was then working at Harrah’s, and brought him to the
parking lot. Bumgarner claims that Officer Miller rejected his attempts to demonstrate
that he was lawfully in possession of the Pathfinder and that he crumpled a piece of
evidence and threw it on the ground. He also claims that Miller threatened to arrest him if
he did not turn over the keys. It is undisputed that Bumgarner eventually gave the keys to
the Pathfinder to Miller who returned them to Hart. Hart then returned the vehicle to the
dealer.
On January 11, 2006, Bumgarner filed a pro se complaint in which he alleged
violations of the Fourth Amendment and 28 U.S.C. § 1983 and named as defendants the
City of Atlantic City, The City of Brigantine, the Officer Defendants, Hart, JAH, and
Hart’s Counsel, Cooper Levenson April Niedelman & Wagenheim, P.A., and associated
individual attorneys, April Niedelman & Wagenheim, P.A., Mary Ann Beninati, Rona
Zucker Kaplan, and Alan Kalb (the “Cooper Defendants”). The case was initially
assigned to United Stated District Judge Freda Wolfson, before whom the Copyright Case
5
was also pending. Judge Wolfson had issued several rulings in the Copyright Case,
including a June 21, 2006 Order in which she stated, inter alia, that “[t]he Atlantic City
Police Assisted Hart’s lawful repossession of the vehicle.” (App. 280.) Both the
Copyright Case and the § 1983 action were reassigned to Judge Renee Bumb on July 5,
2006.
On February 2, 2007, Judge Bumb heard argument and orally granted summary
judgment against Bumgarner on all of his claims against all defendants. Bumgarner filed
a Rule 60(b) motion and, on June 7, 2007, Judge Bumb vacated the February 2 nd Order.
In the June 7 th Order, Judge Bumb stated that she had mistakenly concluded that a finding
by Judge Wolfson in the Copyright Case estopped Bumgarner from asserting his claims in
the instant action. Because the “Court overlooked the fact that the Order was not a final
adjudication on the merits of the claims Plaintiff asserted” in his complaint, Judge Bumb
held that dismissal was not warranted. Bumgarner v. Hart, 2007 WL 1672401, at *5 (D.
N.J., Jun. 7, 2007).2
2
The June 7 th Order did dismiss claims against the City of Brigantine on the basis that
plaintiff had failed to allege that the Officer Defendants had acted pursuant to a policy or
custom, as required under Monell v. Dept. of Social Servs. of City of New York, 436 U.S.
658, 690-695 (1978). The Court also deemed as filed an amended complaint that
Bumgarner had previously attempted to file in the § 1983 action. See Bumgarner, 2007
WL 1672407 at *10. The amended complaint personally identified the Officer
Defendants. The June 7 th Order further directed that the § 1983 action, which had been
docketed as 06-142, remain closed and that all proceedings now be consolidated under the
Copyright Case docket, No. 05-3900. The amended complaint was therefore filed as part
of the latter case.
6
The Officer Defendants subsequently moved for summary judgment, asserting,
among other things, that they were entitled to qualified immunity. In an Order and
Opinion dated February 29, 2008, the District Court denied their motion,3 stating that
“even though Plaintiff’s possessory interest in the Pathfinder was disputed, such interest
deserved constitutional protection. Because Defendants seized the Pathfinder without a
warrant, such seizure was unreasonable and in violation of Plaintiff’s Fourth Amendment
rights.” Bumgarner v. Hart, 2008 WL 576998, at *3 (D. N.J. Feb. 29, 2008) The Court
also denied the Officer Defendants’ claim to qualified immunity on the basis that “[a]
reasonable officer would have asked to see a warrant before seizing the Pathfinder.
Because ... the Officer Defendants did not act reasonably in seizing the Pathfinder
without a warrant, they are not entitled to qualified immunity.” Id. at *4. Miller and
Pizzutillo timely appealed.
3
The denial was in conjunction with the denial of summary judgment motions filed by
other defendants.
7
II. Discussion 4
Qualified immunity operates “to ensure that before they are subjected to suit,
officers are on notice their conduct is unlawful.” Hope v. Pelzer, 536 U.S. 730, 739
(2002). While qualified immunity protects officers during the course of their duties, that
protection is forfeited when an officer’s conduct violates “clearly established statutory or
constitutional rights of which a reasonable person would have known.” Wilson v. Layne,
526 U.S. 603, 614 (1999) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
Whether a right was clearly established at the time of the alleged violation is an objective
inquiry which we decide as a matter of law. See Bartholomew v. Pennsylvania, 221 F.3d
425, 428 (3d Cir. 2000).
There is no rigid procedure that courts must follow in determining whether
qualified immunity is warranted. See Pearson v. Callahan, 555 U.S. –, –S.Ct.–, 2009 WL
128768, at *9 (Jan. 21, 2009) (noting that while the two-step inquiry set forth in Saucier
v. Katz, 533 U.S. 194 (2001), “is often appropriate, it should no longer be regarded as
mandatory”). Rather, courts may follow the two-step analysis set forth in Saucier v. Katz,
4
The District Court had jurisdiction pursuant to 28 U.S.C.§ 1331. Orders denying
qualified immunity fall within the collateral order doctrine. See Scott v. Harris, 127 S. Ct.
1769, 1773 n.2 (2007) (citation omitted) (“[W]e have held that an order denying qualified
immunity is immediately appealable even though it is interlocutory; otherwise, it would
be effectively unreviewable.”); Miller v. Clinton County, 544 F.3d 543, 547 (3d Cir.
2008) (“A denial of qualified immunity is a “final judgment” subject to immediate appeal
within the meaning of 28 U.S.C. § 1291.”). We exercise plenary review over orders
denying summary judgment on qualified immunity grounds. Doe v. Groody, 361 F.3d
232, 237 (3d Cir. 2004). In so doing, we view the facts in the light most favorable to the
nonmoving party. Kopec v. Tate, 361 F.3d 772, 775 (3d Cir. 2004).
8
looking first to whether “a constitutional right would have been violated on the facts
alleged ...” and, if so, then to whether the right was “clearly established.” 533 U.S. at
200-01. Alternatively, a court may look directly to whether the law prohibiting a
defendant’s conduct was clearly established, without determining whether there was a
constitutional violation under the circumstances presented. Pearson, 2009 WL 128768, at
*13 (“Our decision does not prevent the lower courts from following the Saucier
procedure; it simply recognizes that those courts should have the discretion to decide
whether the procedure is worthwhile in particular cases.”).
We choose to approach the qualified immunity issue here by asking whether the
law was so clearly established that the Officer Defendants’ conduct would have appeared
unlawful to an objectively reasonable officer.5 Walter v. Pike County, 544 F.3d 182, 191
(3d Cir. 2008). That inquiry considers not just whether the officer’s actions were
reasonable in light of clearly established law but also the information possessed by the
officer. See Anderson v. Creighton, 483 U.S. 635, 641(1987) (We consider whether “a
reasonable officer could have believed [his conduct] was lawful, in light of clearly
established law and the information the [officer] possessed.”). We conclude that, under
5
We note that, as to Officer Pizzutillo, there is a significant question as to whether
Bumgarner has satisfied the state action element of a § 1983 claim. See Abbott v.
Latshaw, 164 F.2d 141 (3d Cir. 1988) (“[M]ere presence of police at the scene of a
private repossession does not, alone, constitute state action.”). It is uncontested that he
was a mere spectator during the repossession. As Bumgarner confirmed at his deposition,
Officer Pizzutillo just “stood moot [sic]. He stood there and he didn’t say a word and he
let it go down.” (App. at 111). Because we determine that Officer Pizzutillo is entitled to
qualified immunity, we need not determine whether he was a state actor.
9
the circumstances, it would not have been apparent to an objectively reasonable officer
that seizing the vehicle was unlawful.
At the time of the seizure, the Officer Defendants were presented both with
documents indicating that Hart owned the Pathfinder and with a court-issued summons
setting forth on its face a finding by a judicial officer that there was probable cause to
believe that Bumgarner was in “operation of a motor vehicle without permission of [the]
owner.” (App. at 201.) A reasonable officer, standing in a parking lot, presented with
evidence of ownership of a vehicle and a court’s finding of probable cause to conclude
that the person possessing the vehicle was doing so in derogation of the owner’s rights,
reasonably could have understood that taking the vehicle from the party in possession and
returning it to the owner was not a violation of the Fourth Amendment. Indeed, Judge
Wolfson, a United States District Judge, had concluded as much in the Copyright case.
She found that “[t]he Atlantic City police assisted Hart’s lawful repossession of the
vehicle.” (App. at 280.) She too relied on the summons and the probable cause finding,
stating that Hart “seized the 2003 Pathfinder pursuant to a lawful determination by the
Brigantine Municipal Court that probable cause existed to believe Plaintiff was operating
it unlawfully.” (App. at 282.) Those statements by Judge Wolfson may not have been
binding on Judge Bumb; however, when reasonable jurists arrive at differing conclusions
10
as to the lawfulness of an officer’s conduct, it is difficult to say that the conduct in
question violated clearly established law.6
New Jersey Statutory law is a further a source from which the Officer Defendants
could have reasonably concluded that their conduct was lawful. New Jersey courts have
observed that the “seizure of a motor vehicle ... when [the motor vehicle commission] has
reason to believe that the motor vehicle has been stolen or is otherwise being operated
under suspicious circumstances” is permissible under Title 39:4-47, N.J. Stat. Ann. See
State v. Jones, 301 A.2d 185 (N.J. Dist. Ct. 1973). While the statute references a seizure
by the motor vehicle commission, it has been applied to warrantless seizures by police
officers. See State v. Dickey, 706 A.2d 180, 188-89 (N.J. 1998) (applying § 39:5-47 to a
traffic stop by a police officer); New Jersey Practice Series, 32 NJPR § 16.81 (stating that
“Several New Jersey statutes authorize the police to seize motor vehicles operated over
the highways of this State” and citing Title 39:5-47).7 The Officer Defendants here had
6
It is also possible that the Officer Defendants may have thought that their conduct was
constitutionally justified on the basis that, when police believe that a vehicle itself is
contraband, a warrantless seizure of the vehicle is permitted and does not contravene the
Fourth Amendment. See Florida v. White, 526 U.S. 559, 565 (1999) (upholding
warrantless seizure of vehicle from public parking lot where “the automobile, as opposed
to its contents, is the contraband that the police seek to secure”). The Officer Defendants
were presented with evidence, in the form of the vehicle registration papers and
insurance, that Bumgarner was not the owner of the vehicle and, more importantly, they
were presented with evidence of a complaint, contained in the summons, that he was not
properly in possession of the vehicle. From this they could have reasonably concluded
that the vehicle itself was contraband.
7
In addition, the failure of a vehicle operator to produce a valid driver’s license,
registration, proof of insurance, or proof of ownership may be sufficient to support
11
reason to believe that the Pathfinder was “being operated under suspicious
circumstances.” Not only had Hart shown the officers a valid registration and proof of
insurance, both of which were in her name and reflected ownership of the vehicle, but she
presented a summons containing a probable cause finding that the vehicle was being
operated without her permission and in violation of New Jersey law.
As we have long recognized, “qualified immunity ... ‘provides ample protection to
all but the plainly incompetent or those who knowingly violate the law.’” Blackhawk v.
Pennsylvania, 381 F.3d 202, 215 (3d Cir. 2004) (quoting Malley v. Briggs, 475 U.S. 335,
341 (1986)). Because a reasonable officer could have concluded that, under the
circumstances, seizing the Pathfinder was not a violation of the Fourth Amendment, the
District Court improperly denied the Officer Defendants’ summary judgment motion.
Having decided that the Officer Defendants did not act in violation of clearly established
law, we need not determine whether there was a constitutional violation under the
particular facts presented. The Officer Defendants are entitled to a grant of summary
judgment on the basis of qualified immunity.
seizure of the vehicle, at least as a matter of New Jersey law. See N.J. Stat. Ann. 39:4-47;
State v. Cooper, 2006 WL 1229342, at *5 (N.J. Super. App. Div., May 9, 2006).
12
III. Conclusion
For the foregoing reasons, we will reverse the order of the District Court to the
extent that it denied Pizzutillo and Miller summary judgment and will order entry of
summary judgment in their favor.
13