# DelaCruz v. Borough of Hillsdale/Concurrence-dissent Long

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* Case Syllabus
* Opinion of the Court
* Concurrence/Dissent Long
Justice LONG, concurring in part and dissenting in part.
I am in full agreement with the Court's conclusion that 42 U.S.C. § 1983 renders a police officer's subjective good faith irrelevant to an assessment of liability for false arrest or false [p169] imprisonment. I part company from my colleagues in connection with their additional determination that the verbal threshold, embodied in N.J.S.A. 59:9-2(d), applies to plaintiffs' state claims involving false arrest.
Under the verbal threshold, a plaintiff may not recover damages against a public entity for pain and suffering resulting from any injury that is not permanent and substantial. Brooks v. Odom, 150 N.J. 395, 406, 696 A.2d 619 (1997). As this case demonstrates, false arrest, unless coupled with other tortious conduct, is unlikely to cause permanent injury. As a result, under the majority's view, most false arrests will go unremedied. I do not believe that was what the Legislature intended. Although the Tort Claims Act does not clearly exclude false arrest claims from the ambit of the verbal threshold, that does not end the inquiry. As Chief Justice Weintraub observed:
   It is frequently difficult for a draftsman of legislation to anticipate all situations and to measure his words against them. Hence cases inevitably arise in which a literal application of the language used would lead to results incompatible with the legislative design. It is the proper function, indeed the obligation, of the judiciary to give effect to the obvious purpose of the Legislature, and to that end "words used may be expanded or limited according to the manifest reason and obvious purpose of the law. The spirit of the legislative direction prevails over the literal sense of the terms."
   Alexander v. New Jersey Power & Light Co., 21 N.J. 373, 378 [[[122 A.2d 339]]] (1956); Wright v. Vogt, 7 N.J. 1, 6 [[[80 A.2d 108]]] (1951); Glick v. Trustees of Free Public Library, 2 N.J. 579, 584 [[[67 A.2d 463]]] (1949).
   [New Capitol Bar & Grill Corp. v. Div. of Employment Sec., 25 N.J. 155, 160, 135 A.2d 465 (1957).]
With that teaching in mind, it seems clear that the failure of the Legislature specifically to carve false arrest out of the verbal threshold was an oversight. The essential purpose of the Tort Claims Act is to insulate governmental entities from having to answer for minor incidents and injuries. Ordinarily, the requirements of permanency and substantiality denote the kind of seriousness the Act was intended to remedy. That is simply not the case with false arrest.
[p170] The injury at the heart of false arrest is different in kind. It is the deprivation of liberty, an unspeakable personal and societal affront by the government against the people, that, standing alone, cannot be tolerated. It is, by its very nature, substantial and serious whether or not it has permanently affected the victim. As Judge Fuentes observed in the Appellate Division opinion below:
   One who is wrongfully deprived of freedom does not necessarily suffer from a denial of the necessities for maintaining a physical existence. Nor can the signs of unlawful confinement be detected by conducting a physical examination of the victim. As noted by the Supreme Court of California in Sullivan v. County of Los Angeles, 12 Cal. 3d 710, 117 Cal. Rptr. 241, 527 P.2d 865, 868 (1974), "[i]n a false imprisonment case, the 'injury' suffered by an individual is the illegal confinement itself rather than any detriment occurring after imprisonment . . . ." One who is wrongfully deprived of freedom sustains an intangible injury, the magnitude of which cannot be measured or assessed in physical terms. Although this injury may, in some cases, also cause psychological or emotional trauma, a victim of false arrest/false imprisonment need not experience such trauma to have a legally compensable claim.
   [DelaCruz v. Borough of Hillsdale, 365 N.J. Super. 127, 150, 838 A.2d 498 (App.Div.2004).]
By its opinion, this Court leaves that violation essentially unremedied and undeterred save for cases that, by happenstance, involve permanent injury resulting from separately actionable claims of excessive force. I do not read the Tort Claims Act in that confined way; nor do I believe that the Legislature, which took pains to underscore its continued abhorrence of false arrest in N.J.S.A. 59:3-3, intended that execrable official act to go unremedied. As we have said, "a right without a remedy is a mere shadow." State by Parsons v. Standard Oil Co., 5 N.J. 281, 295, 74 A.2d 565 (1950), aff'd, 341 U.S. 428, 71 S.C.t. 822, 95 L. Ed. 1078 (1951). No "court of conscience" should permit such a result. In re Mossavi, 334 N.J. Super. 112, 122, 756 A.2d 1076 (Ch. Div. 2000). For those reasons, I dissent.