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Montgomery v. De Simone

October 16, 1998

ROSEMARY MONTGOMERY, APPELLANT
v.
JEFFREY DE SIMONE, PTL. A/K/A JOSEPH DE SIMONE, PTL; TOWNSHIP OF BRICK; COUNTY OF OCEAN; BRICK TOWNSHIP POLICE DEPARTMENT; JOHN DOE, INDIVIDUALLY AND AS AN EMPLOYEE OF THE BRICK TOWNSHIP POLICE DEPARTMENT



Appeal from the United States District Court for the District of New Jersey (D.C. Civ. No. 95-cv-00528)

Before: Mansmann, Roth and McKEE, Circuit Judges.

The opinion of the court was delivered by: Mansmann, Circuit Judge.

Argued March 24, 1998

OPINION OF THE COURT

Rosemary Montgomery appeals from the entry of summary judgment against her in her suit brought pursuant to 42 U.S.C. § 1983 which arises out of the events surrounding her arrest on September 30, 1992. Montgomery alleges that Officer Jeffrey De Simone did not have probable cause to stop and arrest her for speeding and drunk driving. She accordingly brought several section 1983 claims against Officer De Simone, including a claim based on malicious prosecution.

In this appeal, we are asked to determine whether Montgomery's convictions, which were overturned upon de novo review, conclusively establish probable cause and necessarily negate any possibility that Montgomery could establish her section 1983 malicious prosecution claim. We hold that they do not. Accordingly, because we find that Montgomery has raised a genuine issue of material fact as to probable cause, we will reverse the district court's grant of summary judgment in favor of Officer De Simone on Montgomery's section 1983 malicious prosection claim and will remand this case for further proceedings.

In addition, we find that, as a matter of law, the two year limitations period for Montgomery's section 1983 false arrest and false imprisonment claims began to run on the night of Montgomery's arrest and that her claims against the municipal defendants fail because Montgomery's allegations are insufficient to establish municipal liability. Accordingly, we will affirm the district court's order dismissing those claims.

I.

On September 30, 1992, Officer Jeffrey De Simone stopped Rosemary Montgomery, arrested her and charged her with speeding, driving while intoxicated, and refusing to take a breathalyzer test. At Montgomery's municipal hearing, Officer De Simone testified that he stopped Montgomery because she was traveling at approximately 55 m.p.h. in a 40 m.p.h. zone. De Simone testified that he estimated Montgomery's speed prior to the stop based on his own observation and a radar reading. According to De Simone, when he stopped Montgomery he detected a strong odor of alcohol on her breath. De Simone testified that Montgomery had difficulty locating her license in her wallet, could not open the glove box and became frustrated when De Simone opened the glove box with ease. According to De Simone, Montgomery could not recite the alphabet when asked to do so and failed two field sobriety tests. De Simone stated that Montgomery's eyes were "watery," her speech was "slightly slurred," and that "she was swaying and staggering" when standing and walking.

De Simone further testified that during the stop, a second car pulled up to ask directions. De Simone then instructed Montgomery to drive her car across the road to a vacant parking lot so that he might attend to the second car. He subsequently drove to where she was parked and took her to the police station. At the police station De Simone advised Montgomery for the first time that she was under arrest, read her her Miranda rights, and asked her to take a breathalyzer test. Montgomery refused the test.

Montgomery's testimony at her municipal trial painted a dramatically different picture of the events surrounding her arrest. According to Montgomery, she had just returned from a transcontinental flight and had met a friend for dinner. She testified, and her friend corroborated, that she did not have any alcoholic beverages with dinner. She further testified, and her friend corroborated, that she ordered one Irish coffee after dinner and that the bartender had refilled her same cup with regular coffee after she finished most of the Irish coffee. Montgomery's friend further testified that Montgomery did not appear to be intoxicated and that they parted company at approximately 11:20 p.m.

Montgomery testified that after leaving her friend's house, she had been stopped at a red light which was located less than one tenth of a mile from the intersection where De Simone testified she was traveling at 55 m.p.h. In her deposition in this case, Montgomery further testified that she could not have been exceeding the speed limit in that short distance in her Hyundai and that she knows she was not speeding. She also testified that De Simone lied at her municipal trial.

At her municipal trial, Montgomery testified that she did have trouble finding her license for De Simone because it was mixed in with receipts from her overseas trip. She also testified that she had trouble opening the glove compartment because it always sticks but that she eventually opened it herself without the help of De Simone. According to Montgomery, she recited the alphabet correctly when asked but De Simone never asked her to leave her vehicle for sobriety tests.

Montgomery testified that at one point during the stop De Simone stated "I shouldn't be doing this but would you pull across to behind Wall Street and wait for me?" Montgomery testified that she was unaware of anyone stopping and asking for directions. After she waited in the parking lot for about five to ten minutes, De Simone pulled up behind her with no overhead lights on. De Simone got out of the car and his demeanor changed. De Simone asked Montgomery if she liked policemen and if she dated them. Montgomery testified that she was very uncomfortable and tried to change the subject and that De Simone then offered her a ride home. She told De Simone that he would have to leave his jurisdiction to give her a ride and he then offered to take her to the station to make a phone call. Montgomery testified that De Simone's demeanor again changed and he became sullen. When they arrived at the station, De Simone advised Montgomery for the first time that she was under arrest and read her her rights. Another of Montgomery's friends picked her up at the police station around 2:00 a.m. and testified that Montgomery did not appear drunk and that Montgomery told her that she had only had two Irish coffees that night.

The municipal court Judge found that there was probable cause for the stop and the arrest for drunk driving based entirely upon De Simone's testimony. In addition, after hearing all the testimony offered, the municipal Judge found Montgomery guilty of speeding, drunk driving, and refusing to take a breathalyzer test. Montgomery appealed her convictions.

On February 4, 1994, a trial de novo was held in the Superior Court of New Jersey. The court reversed Montgomery's convictions entering not guilty verdicts on all charges. The Superior Court Judge expressed doubt as to whether Montgomery was speeding, given her testimony that she had been stopped at a light just a short distance from where De Simone claimed she was exceeding the speed limit. In addition, the Judge expressed doubt as to whether De Simone actually thought Montgomery was drunk given that De Simone ...


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