DAVIS v. EGG HARBOR TOWNSHIP et al
OPINION. Signed by Judge Renee Marie Bumb on 6/5/2017. (tf, )
[ECF No. 26]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
STEFFON L. DAVIS,
Civil No. 14-4213 (RMB/AMD)
EGG HARBOR TOWNSHIP, et al.,
David R. Castellani, Esq.
Castellani Law Firm, LLC
450 Tilton Rd.
Northfield, NJ 08225
Attorney for Plaintiff
Thomas B. Reynolds, Esq.
Reynolds & Horn, P.C.
750 Route 73 South
Suite 202 A
Marlton, NJ 08053
Attorney for Defendants
BUMB, United States District Judge:
THIS MATTER comes before the Court upon the filing of a
Motion for Summary Judgment by Defendants Egg Harbor Township,
Patrolman Bertino, Patrolman Mensch, Patrolman London, and
(Not. Mot. [ECF No. 26]).
For the reasons set
forth below, the Court will GRANT IN PART Defendants’ Motion and
DENY IN PART Defendants’ Motion.
The case arises from an altercation which occurred a few
minutes after one o’clock in the morning on July 6, 2012, when
Defendant Patrolman Bertino (“Patrolman Bertino”) conducted a
traffic stop of Plaintiff Steffon Davis (the “Plaintiff”) and
Plaintiff refused to obey several officers’ commands to exit his
(Def.’s Mot. Summ. J. Ex. J, at 1 (“Dashcam Tr.”) [ECF No.
Patrolman Bertino made the traffic stop in response to a
call from another motorist who claimed Plaintiff was chasing the
motorist at a high rate of speed and following too closely.
(Defs.’ Statement of Facts [ECF No. 26-5] & Pl.’s Resps. [ECF
No. 35] (“DSOF & PR”) ¶ 177).
As testified to by Sergeant Super,
the substance of which Plaintiff does not contest: “the dispatcher
advised us that he had two subjects on the phone saying they were
being chased by a subject - an unknown subject - in a vehicle.”
( See Def.’s Mot. Summ. J. Ex. F (“Super Dep.”), at 98:10-17).
Sergeant Super further testified he “recall[ed] or driving north
on Tremont Avenue.
A vehicle passed by me, later being
identified as the complainants[’] or the victims[’], and the next
vehicle coming - driving by me at a high rate of speed was Mr.
As I slowed down, I saw Officer Bertino’s
vehicle going in the same direction as Mr. Davis’.
I saw that Officer Bertino had activated his overheads
and was pulling over Mr. Davis’ car.
And I don’t recall if I
advised him or not that I was going to go get - stop and talk
to the complainant.
So, I just continued on, and I
stopped the complainant’s vehicle about a quarter mile down
the road” from where Patrolman Bertino had pulled over the
According to the transcript of the dashboard-mounted camera
on the responding police car, Patrolmen Bertino and Super
exchanged information via their radios.
(Dashcam Tr. at 2:21-
Plaintiff admitted he had been following the motorist,
however he explained that he was doing so because he believed
friends were in the car, and he was trying to catch up to them
According to the dashcam recording, Officer
Bertino can be heard questioning Davis about why he was
following the car in front of him, which the police had also
At first, Davis told the officer that one of his
“buddies” by the name “Sam” was in the car, but he did not know
his last name.
When Officer Bertino advised Davis
that there was no “Sam” in the car – presumably learning that
fact from Sergeant Super - Davis replied “they must have dropped
Referring to the direction the cars had
travelled, Officer Bertino then asked “So why make a big circle?
It doesn’t make any sense.”
From the questioning
caught on the recording, it is clear that Officer Bertino did
not believe – understandably – Plaintiff’s version of the facts.
In sum, throughout the traffic stop, Patrolman Bertino
continued to ask Plaintiff questions about why he had been
following the other vehicle, and Plaintiff continued to insist
he knew the occupants in the vehicle, although, as mentioned, he
gave several names of individuals who were not in the car.
(Dashcam Tr. at 6:3-8:14).
Patrolman Bertino also asked
Plaintiff if he had anything he was “not supposed to have inside
th[e] vehicle,” which Plaintiff denied.
(Id. at 8:15-19).
After this, Patrolman Bertino asked Patrolman Mensch, who was
positioned on the other side of the vehicle, “do you smell
(Dashcam Tr. at 9:5).
Patrolman Mensch can then be
seen on the video of the traffic stop leaning his head into the
passenger side window, but he did not give an audible response
to Patrolman Bertino.
(Pl.’s Opp. Summ. J. Ex. B (“Dashcam
Video”) at 1:17:10-1:17:15).1
Both Patrolmen Mensch and Bertino
later testified that they smelled marijuana.
(Def.’s Mot. Summ.
J. Ex. H (“Bertino Dep.”), at 26:11; Def.’s Mot. Summ. J. Ex. I
(“Mensch Dep.”), at 19:25-20:1).
could smell anything.
Plaintiff denied that they
(Def.’s Mot. Summ. J. Ex. B (“Davis
Dep.”), at 122:23-123:1; Dashcam Tr. 9:6-10).
Thereafter, Patrolman Bertino ordered Plaintiff to “[s]tep
out of the vehicle.”
(Dashcam Tr. 9:16-22, 10:17-18).
Citations to the Dashcam Video are given based on the timestamp
in the recording.
Plaintiff refused, stating, “For what?
of the vehicle.
I don’t have to step out
I have the credentials.”
(Id. at 10:19-21).
Patrolman Bertino ordered Plaintiff to step out of the vehicle
twice more, and Plaintiff refused twice more.
(Id. at 11:1-7).
Patrolman Mensch then asked twice, “Do you want to get arrested
for obstruction?” as he circled around to the driver’s side of
the vehicle, next to Patrolman Bertino.
Dashcam Video at 1:18:10-1:18:18.)
(Id. at 11:11-12;
Plaintiff was then ordered
twice to shut off his car, and was also asked if he wanted “to
get pepper sprayed.”
(Dashcam Tr. 12:2-3.)
then ordered Plaintiff to “unlock the car right now and get
out,” after which the officers can be seen reaching into the car
and apparently attempting to unlock or open the driver-side
(Id. at 12:7-8; Dashcam Video at 1:18:50-1:19:02).
All this time, Plaintiff refused to get out of the car and
disputed that the officers were even allowed to reach into the
(Id. 12:9-12 (“I don’t have to get out, Sir.
not allowed to reach in my car, Sir.
Why are you touching
Plaintiff was also ordered to shut the car off, which
he refused to do.
As can be clearly heard in the recording,
Plaintiff was advised by Officer Bertino that he was under
arrest and to get out of the car.
(Dashcam Tr. at 12:21-22.)
Several officers yelled for Davis to get out of the car, yet
Davis remained noncompliant.
Davis yelled back that the cops
were “beating” him, although the video clearly captures that at
times the officers were not even near the car or Plaintiff as he
yelled he was being beaten.
At some point, Patrolman Mensch deployed pepper spray
against Plaintiff. (Defs.’ Mot. Summ. J. Ex. I (“Mensch Dep.”),
at 23:6-14). The recording is clear that Davis was not pepper
sprayed until he refused to get out of the car and he was asked
whether he wanted to get pepper sprayed.
testified to spraying Plaintiff “four or five times” throughout
The exact distance at which the
spray was deployed and when and why the deployments occurred are
The officers were eventually able to reach into the
car and unlock and open the driver’s side door of the vehicle.
(Dashcam Tr. at 13:6).
(During this time, Plaintiff continued
to speak hands-free with someone on a cellphone.)
of the incident appears to show that with the car door now open,
Patrolman Mensch brought his police canine to the driver-side
door and allowed the dog’s head into the driver-side door
opening, but the canine appears to remain outside the car.
(Dashcam Video at 1:20:00-1:21:48).2
When Plaintiff did not
respond to the canine, one of the officers tried to physically
It is around this time during the incident that another police
car parked across the street from the incident and produced a
glare from its emergency lights that obscures the remainder of
pull Plaintiff out of the car.
(Id. at 1:21:27).
Plaintiff can be heard talking to someone on his phone –
apparently – and yelling that he was being beaten up, although
it is clear there are no officers even near him at times when he
is screaming that he was being beaten.
While the officers were
struggling to remove Plaintiff from the car, Patrolman Mensch,
standing several feet away from the vehicle, drew his gun and,
pointing at Plaintiff, said “I am going to shoot you.” (Id.
1:20:05; Mensch Dep. at 27:23:25 (“Q. All right.
Do you recall
indicating to Mr. Davis that you were going to shoot him?
What was happening inside the car this whole time is
Officer London testified that during the altercation
in the car, Plaintiff “reached underneath th[e] seat no less
than 10 times and after he would disengage he’d reach back[.]”
(Defs.’ Mot. Summ. J. Ex. G (“London Dep.”), at 20:24-21:2).
London testified that he was “fairly certain there was a weapon
underneath th[e] seat and [Plaintiff] was trying to get it to
Id. at 21:2-5.
Similarly, Officer Bertino
testified that he could not see Plaintiff’s right hand because
“he was either holding on to the center console, so his hand was
out of view – or he was reaching back behind the passenger’s
seat, so at any given point he was holding on to something to
prevent me from getting out of the vehicle.”
(Bertino Dep. at
Officer Mensch testified he used the canine as a
deterrent effect because Plaintiff “was actively resisting
arrest and we were unsure if he was armed or not.
reaching underneath his seat and we had no idea what he was
(Mensch Dep. 16:23-25).
Officer Mensch further
testified that he pepper sprayed Plaintiff four or five times
because “it didn’t have the desired effect on him and he still
wasn’t listening to our commands.”
(Id. at 18:13-16).
Officer Mensch testified that he told Plaintiff he was going to
shoot him as “constructive authority,” meaning he “had reason to
believe that [he] might have to shoot [Plaintiff] because [he]
thought he was going to pull a gun out.”
(Id. at 30:3-7).
Against the officers’ consistent (and largely corroborated)
testimony, Plaintiff denies that he reached for something, other
than his phone or credentials.
He does admit, however, that he
had 44 grams of marijuana and a digital scale in the car along
with approximately $2,000 in cash.
He also testified that he
was pepper sprayed five times and Officer Mensch pointed a gun
Finally, Plaintiff testified that the dog “was on
[him],” a fact not at all corroborated by the video.
Ex. B, at
After being removed from the car, Plaintiff complained that
his leg was injured, he was in pain, and repeatedly asked for an
(Dashcam Video at 1:23:52).
An ambulance was
called, and during a time period after Plaintiff appears to have
been apprehended, the police officers continued to ask Plaintiff
questions about his story.
After being read his rights, an
unidentified officer asked Plaintiff if he could search his
vehicle, to which Plaintiff responded that the car was his
wife’s vehicle and that, either way, they could not search the
(Dashcam Video at 1:28:07-1:28:38; Dashcam Tr. at
Asked if there was a reason a narcotics dog would
find anything in the car, Plaintiff reiterated after a pause
that he needed an ambulance.
(Dashcam Video 1:28:48-1:28:54).
At some point after Plaintiff’s removal from the car,
Patrolman London searched Plaintiff’s car and grabbed a “fanny
pack” which was observed through the side rear door lying
underneath the rear portion of the passenger’s side front seat.
(Defs.’ Mot. Summ. J. Ex. G (“London Dep.”), at 18:16-24).
removed from the vehicle, Patrolman London testified that the
bag must have been partially opened, because he was able to
observe “a scale and leafy vegetation packed in plastic bags.”
(Id. at 18:22-19:4).
Patrolman London showed this to Sergeant
Super, who then advised him to “put it back in the car and close
the door,” which he did.
(Id. at 19:10-11).
that he conducted this search on the grounds of “community
caretaking,” because he was suspicious that the car “had a gun
inside of it” and was going to be released back to Plaintiff’s
(Id. at 21:12-15).
London stated that he “never
smelled any marijuana,” nor did Patrolmen Bertino or Mensch
communicate to him that they had smelled marijuana.
Plaintiff was brought to Shore Medical Center where he was
examined and diagnosed with a “left ankle sprain.”
Summ. J. Ex. Q (“Medical Records”), at 3).
Tests found that
Plaintiff’s ankle had “[n]o acute fracture. No joint space
abnormality . . . Mild soft tissue swelling.”
Id. at 6.
Plaintiff was ultimately charged with “obstruction,
resisting arrest, aggravated assault, and possession of CDS with
intent to distribute.”
(Defs.’ Mot. Summ. J. Ex. K (“Superior
Court Indictment”), at 3:7-9).
Plaintiff and the state reached
a plea agreement, whereby Plaintiff pled guilty to “the fourth
degree crime of obstructing the administration of law.”
PR ¶¶ 303-04).
This guilty plea required Plaintiff to make
factual admissions that he refused to get out of his vehicle or
roll down his window when asked by police to do so.
Id. at ¶
305. In October 2013, the state court granted Plaintiff a civil
reservation on the charge, as part of his plea agreement.
(Def.’s Mot. Summ. J. Ex. O, at 9:15).
On July 2, 2014, Plaintiff filed the instant Complaint
against Egg Harbor Township, Patrolman Edward Bertino, Patrolman
Mark Mensch, Patrolman Jody London, Sergeant Charles Super and
John Doe Egg Harbor Township Police Officers 1-10 (collectively,
(Complaint [ECF No. 1]).
The Complaint alleged
that Defendants violated several of Plaintiff’s constitutional
rights under 42 U.S.C. § 19833 (Count 1), that Egg Harbor
Township had policies and customs that encouraged such
unconstitutional behavior (Count 2), that the officers’ actions
constituted a variety of state law torts (Count 3), that the
Defendants conspired to racially profile the plaintiff and
falsely testify in order to hide their illegal actions (Count
4), that the Defendants’ actions were so extreme that punitive
damages should be awarded (Count 5), that the traffic stop made
by Patrolman Bertino was the result of racial profiling (Count
6), and that Plaintiff should be entitled to damages (Count 7).
Defendants filed a motion for summary judgment on all
counts on January 9, 2016.
(Defs.’ Mot. Summ. J. [ECF No. 26]).
Plaintiff filed a brief in opposition to Defendants’ Motion for
Summary Judgment on February 29, 2016 but only addressed the
claims of excessive force and illegal search and seizure under
Specifically, as set forth by the Complaint in an unelaboratedupon list: freedom from unlawful search and seizure, freedom
from unlawful arrest and seizure, freedom from unreasonable,
unjustified and excessive force, freedom from the deprivation of
liberty and property without due process of law, free from
summary punishment, freedom from State created danger, and
freedom from arbitrary government activity which shocks the
conscience of a civilized community and society.
42 U.S.C. §1983.
(Pl.’s Opp. Summ. J. [ECF No. 35]).
clarification was requested by the Court, Plaintiff articulated
that it was conceding the following claims:
The policy-based cause of action against Egg Harbor
Township (Count 2)
The state and constitutional malicious prosecution
claims (Count 3)
The racial profiling cause of action (Count 4)
(Sep. 8, 2017 Ltr. [ECF No. 39]).4
The Court turns to
Defendants’ Motion for Summary Judgment on the remaining causes
Summary judgment shall be granted if “the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Although requested by the Court to identify which causes of
action “have been conceded by Plaintiff, which claims Plaintiff
seeks to defend against summary judgment, and which defendants,
if any, should be dismissed in light of those concessions,”
Plaintiff only noted its concession or defense of a subset of
claims. The Court notes that Plaintiff should have readily
conceded the claims for which there was no evidence long before
the Court directed him to do so, and Defendants engaged in
unnecessary litigation expending unnecessary resources.
Nonetheless, the Court takes Plaintiff at its word that the list
of claims he seeks to defend is: “the excessive force and
unlawful search and seizure claim against all individual
defendants, Bertino, Mensch and London, as well as the common
law assault claim.” Sep. 7, 2016 Ltr. [ECF No. 39]. The Court
construes all remaining claims to be abandoned. This includes
the conspiracy claims and any claims against Defendant Sergeant
Super, although the Court does find that Plaintiff has not
pointed to sufficient evidence to withstand summary judgment as
to Sergeant Super as described below.
Civ. P. 56(a).
A fact is “material” if it will “affect the
outcome of the suit under the governing law . . . .”
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
A dispute is
“genuine” if it could lead a “reasonable jury [to] return a
verdict for the nonmoving party.”
When deciding the existence of a genuine dispute of
material fact, a court’s role is not to weigh the evidence; all
reasonable “inferences, doubts, and issues of credibility should
be resolved against the moving party.”
Meyer v. Riegel Prods.
Corp., 720 F.2d 303, 307 n.2 (3d Cir. 1983).
However, a mere
“scintilla of evidence,” without more, will not give rise to a
genuine dispute for trial.
Anderson, 477 U.S. at 252.
a court does not have to adopt the version of facts asserted by
the nonmoving party if those facts are “utterly discredited by
the record [so] that no reasonable jury” could believe them.
Scott v. Harris, 550 U.S. 373, 380 (2007).
In the face of such
evidence, summary judgment is still appropriate “where the
record . . . could not lead a rational trier of fact to find for
the nonmoving party . . . .”
Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986).
The movant “always bears the initial responsibility of
informing the district court of the basis for its motion, and
identifying those portions of ‘the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any,’ which it believes demonstrate the
absence of a genuine issue of material fact.”
Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P.
Then, “when a properly supported motion for summary
judgment [has been] made, the adverse party ‘must set forth
specific facts showing that there is a genuine issue for
Anderson, 477 U.S. at 250 (quoting Fed. R. Civ. P.
The non-movant’s burden is rigorous: it “must point to
concrete evidence in the record”; mere allegations, conclusions,
conjecture, and speculation will not defeat summary judgment.
Orsatti v. N.J. State Police, 71 F.3d 480, 484 (3d Cir. 1995);
Jackson v. Danberg, 594 F.3d 210, 227 (3d Cir. 2010) (citing
Acumed LLC v. Advanced Surgical Servs., Inc., 561 F.3d 199, 228
(3d Cir. 2009)) (“[S]peculation and conjecture may not defeat
As best this Court can discern, Plaintiff brings three
causes of action against the Defendants.
cause of action is for excessive force as a result of the pepper
spray and display of a firearm in violation of the Fourth
Amendment. Plaintiff’s second cause of action is for
unreasonable search and seizure in violation of the Fourth
Amendment, both as to Patrolman London’s search of his vehicle
and as to the length of his detention.
Plaintiff’s third and
final cause of action is a common law assault claim.
pp. 7-9; Ltr. [ECF No. 39]).5
A. The Heck Doctrine
The Heck Doctrine precludes a plaintiff from pursuing a
civil claim under 42 U.S.C. § 1983 that would directly
contradict a previous holding in criminal court.
Humphrey, 512 U.S. 477 (1994).
Recognizing that “civil tort
actions are not appropriate vehicles for challenging the
validity of outstanding criminal judgments,” the Supreme Court
in Heck held that if “a judgment in favor of the plaintiff would
necessarily imply the invalidity of his conviction . . . [the]
complaint must be dismissed.”
Id. at 485-87.
Nevertheless, Fourth Amendment claims under § 1983, such as
claims of excessive force and unreasonable search and seizure,
do not automatically “demonstrate the invalidity of [an]
outstanding criminal judgment.”
Id. at 487.
See also Gibson v.
Superintendent of N.J. Dep’t of Law & Pub. Safety Division of
State Police, 411 F.3d 427, 449 (3d Cir. 2005) (holding that the
court should use a fact-based inquiry to determine if a
particular Fourth Amendment claim would necessarily undermine a
plaintiff’s outstanding conviction, based on footnote seven of
As noted, supra, Plaintiff’s complaint alleged many causes of
action which were ultimately abandoned by Plaintiff at the
summary judgment stage. Pursuant to Plaintiff’s concessions, as
memorialized in the September 8, 2016 letter from his counsel,
Plaintiff is pursuing only the three causes of action described.
Heck), overruled on other grounds by Dique v. New Jersey State
Police, 603 F.3d 181, 188 (3d Cir. 2010); Flood v. Schaefer, 367
F. App’x 315, 319 (3d Cir. 2010) (holding that Heck doctrine did
not preclude a § 1983 action because “it [was] analytically
possible for [the plaintiff] to claim that [the defendants]
subjected him to unconstitutional conditions even if a statement
he made during the same time period was voluntary”).
context of excessive force, this is because “law enforcement
officers can effectuate a lawful arrest in an unlawful manner.”
Suarez v. City of Bayonne, 566 F. App’x 181, 185 (3d Cir. 2014)
(internal alterations and quotation marks omitted); see also
Lora Pena v. F.B.I., 529 F.3d 503, 505-506 (3d Cir. 2008) (“We
are not suggesting that [the plaintiff] will be able to recover
damages, only that the rationale of Heck does not present an
absolute bar to his [excessive force] claim.”).
the context of illegal searches under § 1983, such a search may
not necessarily invalidate a conviction due to “doctrines like
independent source and inevitable discovery, . . . and
especially harmless error.”
Heck, 512 U.S. at 487 n.7.
Plaintiff accepted a plea agreement for “the fourth degree
crime of obstructing the administration of law.”
DSOF & PR ¶
303. A person commits this offense when they obstruct “a public
servant from lawfully performing an official function.”
N.J.S.A. § 2C:29-1(a).
This guilty plea required him to make
the factual admissions that he refused to get out of his vehicle
and roll down his window when asked by police to do so.
PR ¶ 305.
Considering Heck’s application to the remaining viable
causes of action,6 the Heck doctrine does not bar Plaintiff’s
claim for excessive force.
Like in Nelson v. Jashurek,
Plaintiff’s argument is that Defendants could have “effectuated
a lawful arrest in an unlawful manner,” by way of excessive
109 F.3d 142, 145 (3d Cir. 1997).
conceded in his plea agreement that he resisted arrest.
However, he contends that the amount of force used to secure his
arrest was nevertheless excessive.
These are not
incompatible occurrences and the Heck doctrine therefore does
not preclude Plaintiff’s cause of action for excessive force.7
Although Defendants purport to seek total dismissal of the
Complaint under the Heck doctrine, their arguments largely focus
on false arrest and false imprisonment, (Def.’s Br. 8), slander,
(id.), conspiracy, (id.), and malicious prosecution, (id. at 9).
Nevertheless, the Defendants’ argument does speak broadly enough
to reach all of Plaintiff’s § 1983 causes of action, including
excessive force and unlawful search and seizure.
Defendants’ argument relying on language from N.J.S.A. § 2C:291(a) is unavailing. (Defs.’ Rep. Br. 15). Defendants rely on
State v. Reece, 222 N.J. 154, 171 (2015) for its explanation of
the phrase “lawfully performing an official function,” which it
describes as acting “in objective good faith, under color of law
in the execution of his duties.” Id. (citing State v. Crawley,
187 N.J. 440, 460-61 (2006)). Whether the police officers were
acting lawfully in investigating Plaintiff’s conduct and asking
Plaintiff to step out of the car, however, is an issue unrelated
to the force they subsequently applied to Plaintiff in
Likewise the legality of Patrolman London’s search of
Plaintiff’s car subsequent to his arrest has no bearing on his
criminal conviction, as all acts required to sustain the
conviction – mainly Plaintiff’s refusal to exit the vehicle –
occurred prior to the search.
(London Dep. at 18:16-24
(explaining that the search occurred as the vehicle was about to
be turned back over to Plaintiff’s mother on the scene).
differently, even if the search that yielded the marijuana were
invalidated or deemed unconstitutional, the offense to which
Plaintiff pled guilty would not be invalidated or even
The Heck doctrine, however, does clearly bar Plaintiff’s
claim for unlawful search and seizure as it relates to the term
of his detention.
Plaintiff specifically contends that an
unlawful search occurred under these circumstances: “Plaintiff
submits that the request that he exit the vehicle after the call
has been cleared and no criminal complaints were requested by
the other vehicle was a [sic] unreasonable search and seizure.”
(Pl.’s Br. 15).
It was these instructions which Plaintiff
refused to follow that form the basis for his guilty plea for
obstruction of the administration of law.
In deciding whether
to accept Plaintiff’s guilty plea, he was asked “[w]hen they
effectuating his compliance with that order, as well as the
associated search and seizure.
asked you to get out of your vehicle, did you refuse to get out
of your vehicle?” to which Plaintiff answered affirmatively.
DSOF & PR ¶ 305.
Likewise, Plaintiff was asked whether he
refused to roll down his window, which he also answered in the
This guilty plea would be collaterally
attacked by permitting a Plaintiff to go forward with a cause of
action for unlawful seizure based on this conduct because the
obstruction charge stemmed from the challenged portion of the
Accordingly, the Court rules that Plaintiff’s § 1983 claims
for excessive force, unlawful search of his vehicle, and common
law assault survive the application of the Heck doctrine.8
Summary judgment is therefore improper as to these causes of
action on this ground.
To the extent Plaintiff claims that
Bertino’s order that he leave the car constituted an unlawful
seizure, this claim, too, is barred by Heck, and therefore
summary judgment shall be granted on that cause of action.
B. Excessive Force
All of the Defendants assert that they are entitled to
qualified immunity with regard to Plaintiff’s cause of action
for excessive force.
Qualified immunity is a doctrine that
Defendants do not discuss the common law assault claim, which
does not arise under 42 U.S.C. § 1983, with respect to the Heck
doctrine, although the Court notes that that claim arises from
the same events as the claim for excessive force.
shields government officials from civil damages liability unless
the official violated a statutory or constitutional right that
was clearly established at the time of the challenged conduct.
Reichle v. Howards, 566 U.S. 658, 132 S. Ct. 2088, 2093 (2012).
“In order to determine whether a government official is entitled
to qualified immunity, two questions are to be asked: (1) has
the plaintiff alleged or shown a violation of a constitutional
right, and (2) was the right at issue ‘clearly established’ at
the time of the defendant’s alleged misconduct?”
Atlantic City, 1:14-cv-06282-NLH-AMD, 2017 WL 2256961, at *4
(D.N.J. May 23, 2017) (citing Pearson v. Callahan, 555 U.S. 223,
The Supreme Court has held that courts are
permitted “to exercise their sound discretion in deciding which
of the two prongs of the qualified immunity analysis test should
be assessed first.”
Pearson, 555 U.S. at 236.
i. Violation of a Right
The Court turns first to Plaintiff’s claim of excessive
force and, under the qualified immunity analysis, whether the
record evidence demonstrates a constitutional violation.
Graham v. Connor the Supreme Court established that all claims
of constitutionally excessive force used by officers should be
analyzed “under the Fourth Amendment and its ‘reasonableness’
Graham v. Connor, 490 U.S. 386, 395 (1989); Johnson
v. Phila., 837 F.3d 343, 349 (3d Cir. Sep. 20, 2016) (“A claim
that a police officer used excessive force is properly analyzed
under the Fourth Amendment’s ‘objective reasonableness’
In determining whether or not an officer has used
excessive force, a court must examine the facts and
circumstances of each individual case, including “the severity
of the crime at issue, whether the suspect posed an immediate
threat to the safety of the officers or others, and whether the
suspect was actively resisting arrest or attempting to evade
arrest by flight.
Id. at 396.
In Sharrar v. Felsing, the Third
Circuit provided additional factors for consideration:
[t]he possibility that the persons subject to the
police action are themselves violent or dangerous, the
duration of the action, whether the action takes place
in the context of effecting an arrest, the possibility
that the suspect may be armed, and the number of
persons with whom the police officers must contend at
Santini v. Fuentes, 795 F.3d 410, 417 (3d Cir. 2015) (citing
Sharrar v. Felsing, 128 F.3d 810, 822 (3d Cir. 1997)).
Courts are to evaluate the requisite objective
reasonableness from the perspective of the officer at the time,
and not with the benefit of hindsight.
Santini, 795 F.3d at
This is because officers are often required to make
“split-second judgments – in circumstances that are tense,
uncertain, and rapidly evolving – about the amount of force that
is necessary in a particular situation.”
Graham, 490 U.S. at
Whether an officer used excessive force should
frequently remain a question for the jury.
Kopec v. Tate, 361
F.3d 772, 777 (3d Cir. 2004) (quoting Abraham v. Raso, 183 F.3d
279, 290 (3d Cir. 1999)).
First, Plaintiff contends that Patrolman Mensch’s drawing
and pointing his gun at him was excessive force in violation of
the Fourth Amendment.
The pointing of a weapon can amount to
constitutionally excessive force, depending on the circumstances
Couden v. Duffy, 446 F.3d 483, 497 (3d Cir.
2006) (citing Robinson v. Solano Cnty., 278 F.3d 1007, 1015 (9th
Cir. 2002) (finding the law sufficiently established in 2002 to
recognize the “general principle that pointing a gun to the head
of an apparently unarmed suspect during an investigation” can
constitute excessive force, “especially where the individual
poses no particular danger”)).
Plaintiff also contends that the
use of pepper spray constituted excessive force.
application of pepper spray may also potentially state a claim
for constitutionally excessive force.
Brown v. City of
Huntsville, Ala., 608 F.3d 724, 739 (11th Cir. 2010); see also
Headwaters Forest Defense v. County of Humboldt, 276 F.3d 1125,
Cir. 2002) (holding that summary judgment on the use
of pepper spray was not warranted when the pepper spray was not
necessary to safely and quickly arrest plaintiffs); Park v.
Shiflett, 250 F.3d 843, 852-53 (4th Cir. 2001) (affirming the
lower court ruling that two disbursements of pepper spray from a
range of 18 inches against a clearly unarmed person who was
specifically told she was not under arrest constituted excessive
In determining the issue of qualified immunity as to each
claim of a constitutional violation, the Court must view the
evidence in the light most favorable to the Plaintiff.
Court turns to the pepper spray force.
Regarding the severity
of the crime factor, Plaintiff was pulled over for a non-violent
This factor, viewed alone, weighs against the
application of the pepper spray by Officer Mensch.
whether Plaintiff was actively resisting arrest, Officer Mensch
testified that he applied the pepper spray before Plaintiff was
advised that he was under arrest.
The more relevant inquiry
here, however, as discussed below, is whether Plaintiff was
Although it is unclear if Plaintiff asserts it as part of his
claim, (Pl.’s Br. 14), the Court finds that Plaintiff’s removal
from the car by his ankle and arm to be objectively reasonable
under the circumstances, given Plaintiff’s abject refusal to
exit the vehicle and the other circumstances confronting
officers at the scene. Moreover, Plaintiff has scarcely
criticized the use of canine force in this case – which appears
to have had no or incidental physical contact between Plaintiff
and the dog. Courts have been reticent to find the application
of canine force for intimidation purposes to be unreasonable.
See Navratil v. Parker, 726 F. Supp. 800, 803 (D. Colo. 1989)
(“[t]he mere presence of a police dog, while intimidating, is
not excessive force.”); Franklin v. Borough of Carteret Police
Dep’t, Civ. A. No. 10-1467 (JLL), 2010 WL 4746740 (D.N.J. Nov.
15, 2010) (screening a pro se complaint and determining that,
consistent with Navratil, the complaint should not proceed past
screening where “the plaintiff [did not] assert that the police
dog was used as any more than an instrument of intimidation.”).
refusing to follow a lawful command.
Clearly, Plaintiff was
refusing to so obey commands – he concedes as much.
There is no
genuine dispute that Officer Mensch gave Plaintiff notice that
he might get pepper sprayed if he did not comply with the
Indeed, Officer Mensch can clearly be heard
asking Plaintiff if he wanted to get pepper sprayed, in addition
to being asked if he wanted to get arrested for obstruction.
This factor supports the application of pepper spray, at least
As to the possibility that Plaintiff was armed or the
officers had reason to believe that Plaintiff was armed, this is
a fact in dispute.
Plaintiff testified that he did not reach
for anything; the officers all testified, however, that they saw
It is unclear at what point in the altercation
vis-à-vis the application of the pepper spray that the officers
saw Plaintiff reaching.
Relatedly, the possibility that the
police officers might be in danger, thus justifying the force,
is also in dispute or unclear.
The record is silent or
ambiguous as to whether Plaintiff kept his hands on the wheel
and whether the engine was still running.
Moreover, it is clear
that Plaintiff had failed to obey the officers’ orders for a
considerable period of time, a factor that weighs in support of
the application of pepper spray.
As for the number of persons
with whom the police officers had to contend with, it was only
the Plaintiff, although it is clear that even four officers
could not get Plaintiff to comply and, as such, this factor
weighs in favor of the application of the pepper spray.
Finally, and perhaps most critically, is the obvious
question that Plaintiff has not properly confronted:
would have been reasonable?
It was clear that Plaintiff was not
going to abide by the officers’ orders to exit the car.
Plaintiff concedes as much.
Thus, the Defendants had two
walk away – an unrealistic choice – or enforce
In this Court’s view, considering the factors above
that weigh in favor of force, the initial application of pepper
spray was objectively reasonable.
Whether the subsequent
applications of the pepper spray, however, constituted excessive
force will depend upon a jury’s resolution of the above factors
that are in dispute, principally, whether the Defendants
reasonably believed that Plaintiff posed a threat to their
safety, or whether each subsequent application of pepper spray
was necessary to get Plaintiff to comply.
Finally, Plaintiff alleges that Patrolman Mensch’s
brandishing his firearm and pointing it directly at Plaintiff,
threatening to shoot if Plaintiff did not comply, constituted
In this Court’s view, resolution of this issue
must be put to the jury.
If the jury credits the testimony that
Plaintiff was reaching for something, causing Defendants to fear
for their safety, for example, the pointing of the gun might
very well be objectively reasonable.
Indeed, in the audio
recording an officer or officers can be heard yelling that
Plaintiff was reaching.
Defendants consistently emphasize that
the force used was not excessive because Plaintiff was reaching
for what could have been a gun.
may well agree.
(Defs.’ Rep. Br. 2-4).
Indeed, Defendants remark: “[I]t is undisputed
that Plaintiff was reaching for something under the passenger’s
seat during the struggle.”
however, has disputed this testimony.10
Accordingly, the excessive force claim - the successive
applications of pepper spray and the brandishing of a service
weapon by Patrolman Mensch survive summary judgment.11
summary judgment will be denied as to the claim of excessive
The Court notes that it does not appear from the video that
Plaintiff was even able to see the firearm. This, however,
would seem to go the issue of damages, but only if the jury
finds a constitutional violation and qualified immunity does not
This is not to say that a reasonable fact-finder will find
excessive force was used. To a certain degree, Plaintiff has
survived summary judgment only on the narrow path of his own
testimony that he did not reach behind the seat, which is
largely contradicted by all officers involved. A jury may well
disbelieve Plaintiff and instead believe that he was reaching
behind the seat, particularly where contraband was located there
after the arrest.
force against Patrolman Mensch.12
Because Plaintiff has failed
to introduce any evidence that any of the other Defendants used
excessive force, summary judgment as to Plaintiff’s remaining
claims of excessive force against the other officers will be
Estate of Smith v. Marasco, 430 F.3d 140, 151 (3d Cir.
2005) (“In order to prevail on a § 1983 claim against multiple
defendants, a plaintiff must show that each individual defendant
violated his constitutional rights.”).
Clearly Established Law
The Court also holds that the second prong of the qualified
immunity analysis cannot be resolved at summary judgment as
there are facts that will need to be resolved by a jury.
fact that no specific case has confronted these facts is not
See Wade v. Colaner, Civ. A. No. 06-3715 (FLW), 2010
WL 1490590, at *11 (D.N.J. Apr. 13, 2010) (“The Court need not
cite to a specific case to properly find that the law on this
point is ‘clearly established.’”).
As the Third Circuit has
In the context of excessive force claims, we have
relied on the factors set forth in Graham and Sharrar
in evaluating whether an officer made a reasonable
The Court does not similarly find that Patrolman London’s
conduct was objectively unreasonable. Although Patrolman London
very briefly deployed his pepper spray, he did so only once and
for a very brief period because his can immediately
malfunctioned. On that fact alone the Court finds that no
excessive force claim survives summary judgment as to Defendant
mistake. We have stated that these factors are ‘wellrecognized,’ and that when an officer applies them in
‘an unreasonable manner, he is not entitled to
Green v. New Jersey State Police, 246 Fed. Appx. 158, 162-63 (3d
Here, granting all proper inferences to Plaintiff,
i.e., that he was not reaching for something, the application of
successive, close-range force, as testified to by Plaintiff, may
constitute excessive force.
See generally Wade, 2010 WL
1490590, at *10 (“[I]n such circumstances, the Court finds that
it would be unreasonable for troopers to believe that Colaner’s
actions in striking Plaintiff and subsequently using pepper
spray in response to Plaintiff’s refusal to comply with
Colaner’s instructions to lie on the ground would not constitute
The nature of Plaintiff’s conduct in the
car is central to any determination of qualified immunity.13
Each successive application of force may have been necessary and
therefore was reasonable.
The Court will resolve the issue of
qualified immunity by way of special interrogatories.
these factual issues can be resolved by a jury the Court will
return to the issue of qualified immunity if necessary.
Because of the issues of fact that must be determined by a
jury prior to a determination” of qualified immunity, “this
decision is not an immediately appealable collateral order.”
Fried v. Tetzlaff, Civ. A. No. 11-cv-2578 (RMB/KMW), 2014 WL
2861098, at *7 n.9 (D.N.J. June 24, 2014).
C. Common Law Assault
“In New Jersey, a person is subject to liability for the
common law tort of assault if: (a) he acts intending to cause a
harmful or offensive contact with the person of the other, or an
imminent apprehension of such contact, and (b) the other is
thereby put in such immediate apprehension.”
Vineland, 160 F. Supp. 3d 734, 767 (D.N.J. Feb. 8, 2016)
(quoting Leang v. Jersey City Bd. of Educ., 198 N.J. 557, 591
However, “[w]here, . . . an offender offers physical
resistance to arrest or to the maintenance of custody, the
officer need not retreat but on the contrary may become the
aggressor and use such force as is necessary to overcome
State v. Williams, 29 N.J. 27, 39 (1959); Mantz v.
Chain, 239 F. Supp. 2d 486, 507 (D.N.J. Dec. 30, 2002).
“[w]here a police officer uses excessive force in effectuating
an arrest, that officer may be liable for assault and battery.”
Hill v. Algor, 85 F. Supp. 2d 391, 411 (D.N.J. 2000).
the issue of whether the force used by Officer Mensch was
constitutionally excessive remains disputed beyond summary
judgment, the Court will also deny summary judgment as to
Plaintiff’s claim of assault as to Patrolman Mensch, but no
The Court does not reach the issue of good faith immunity on
this cause of action. See Matos v. City of Camden, Civ. A. No.
To the extent Defendants seek to limit pain and suffering
damages as to this cause of action pursuant to N.J.S.A. § 59:92(D), summary judgment in Defendants’ favor is warranted.
No damages shall be awarded against a public entity or
public employee for pain and suffering resulting from
any injury; provided, however, that this limitation on
the recovery of damages for pain and suffering shall
not apply in cases of permanent loss of a bodily
function, permanent disfigurement or dismemberment
where the medical treatment expenses are in excess of
N.J.S.A. § 59:9-2(D).
Plaintiff has not addressed this argument
and has not presented any evidence to meet the requisite
evidentiary showing that his injuries fall within the statute’s
As such, Defendant Mensch is entitled to summary
judgment on this issue.
See, e.g., Edwards v. N.J. Human
Servs., No. CV125524MASDEA, 2016 WL 7013464, at *7 (D.N.J. Nov.
30, 2016) (“The Court, therefore, grants summary judgment in
favor of Defendants on the issue of pain and suffering damages
arising from Plaintiff's state law claims against Sexton, in his
06-205 (NLH), 2009 WL 737101, at *8 (D.N.J. Mar. 18, 2009)
(holding that the court could not reach the issue of good faith
immunity under N.J.S.A. § 59:3-3 for the same reasons it could
not resolve the issue of qualified immunity under 42 U.S.C. §
1983). Likewise, the remaining types of state-law immunity
Defendants point to are inapplicable in light of the abandoned
Finally, Plaintiff has brought a claim asserting that
Patrolman London violated his constitutional rights by illegally
searching his car after the arrest.
The Fourth Amendment
guarantees the “right of the people to be secure in their
persons, houses, papers and effects, against unreasonable search
U.S. Const. amend IV.
“Thus, a search or
seizure conducted without a warrant or probable cause may form
the basis of a § 1983 claim based on the Fourth Amendment.”
Castro v. Perth Amboy Police Dept., 2014 WL 229301, at *2
(D.N.J. Jan. 21, 2014) (citing Reedy v. Evanson, 615 F.3d 197
(3d Cir. 2010)).
Defendants offer little supporting argument to
dismiss this claim other than that Patrolmen Bertino and Mensch
smelled marijuana emanating from the car.
It is true that the
presence of marijuana or the smell of marijuana emanating from a
car gives an officer probable cause to believe there is evidence
of a crime to justify a search.
See, e.g., State v. Guerra, 93
N.J. 146, 148 (1983) (holding that probable cause existed where
police “detect[ed] a strong odor of raw unburned marijuana
emanating” from within the car during a traffic stop).
here, there is no evidence that Officer London was aware that
Patrolman Bertino and Officer Mensch had smelled marijuana.
fact, Defendants do not argue that their detection of marijuana
can be imputed to Patrolman London’s search of the car.
Dep. at 19:12-19 (“No, sir.
I smelled nothing but OC spray from
the moment I got on location to the time I left.”); id. 21:9-15
(“After hearing Sergeant Super’s conversation with [Plaintiff’s]
mom as soon as he was removed from the scene, the vehicle was
going to be released to her and I just at the time thought that
was the registered owner of the vehicle.
Not knowing who the
parties were, out of community caretaking I wasn’t going to let
her get into a vehicle that I believe had a gun inside of it”)).
Patrolman London – who testified that he was unable to
smell anything on the scene but pepper spray – testified that he
ultimately carried out the search because he was searching the
car for a gun before the car was turned over to a relative of
(London Dep. at 21:9-15).
He called this
This basis for a search was criticized
by Sergeant Super, who called the search “inappropriate.”
(Super Dep. at 121:10).
Indeed, upon presenting the evidence on
the scene to Sergeant Super, London testified that he was
instructed to “put it back in the car and close the door.”
(London Dep. at 19:7-11).
Likewise, Defendants’ expert, Steven
N. Horn, called the search “impermissible.”
(Defs.’ Mot. Summ.
J. Ex. Q (Expert Report of Steven N. Horn), at 51 (referring to
London’s search as “impermissible”)).
Only after Patrolman
London had searched the vehicle and replaced the marijuana did
Patrolman Mensch’s canine give a positive alert for narcotics.
(Mensch Dep. at 35:1-15).15
Thus, Defendants appear to concede that Officer London’s
search of the car was unlawful.
Beyond that, Defendants do not
offer any argument with regard to qualified immunity.
Officer London testified that he believed under the “community
caretaking” standard he was permitted to search the car,
Defendants do not advance a qualified immunity argument here.
Indeed, it appears Defendants concede there is no such basis –
and so the Court need not engage in such analysis.
also appear to suggest that the search would have been conducted
anyway (in fact, they obtained a search warrant) and so “no
harm, no foul.”
That may very well be true, but it does not
excuse a constitutional violation.
It does, however, go to
Plaintiff’s damages, if any, as Plaintiff can hardly be said
under such circumstances to have sustained any real injury.16
The Court observes that Plaintiff spends no time addressing
the search of the car, perhaps recognizing that such claim is
hardly disputed. Plaintiff also appears to abandon his claim
relating to the length of detention.
Because it appears undisputed between the parties that
Plaintiff suffered no actual injury as a result of the unlawful
search (indeed, Plaintiff may well have avoided being criminally
charged with possession of the drugs and drug paraphernalia for
this reason), a jury may find an award of nominal damages
proper. See, e.g., Carey v. Piphus, 435 U.S. 247, 266 (1978).
In that case, although a “prevailing party under such scenario,
Plaintiff may not be entitled to an award of attorney’s fees.
See, Velius v. Twp. of Hamilton, 466 F. App'x 133, 140–41 (3d
Accordingly, in the record before it, the Court finds that
summary judgment as to the unlawful search cause of action shall
be denied as to Defendant Patrolman London only.
The Court, having reviewed the parties’ contentions, rules
that summary judgment is DENIED as to Plaintiff’s cause of
action against Patrolman Mensch for excessive force and common
Summary judgment is also DENIED as to Plaintiff’s
cause of action for unlawful search against Patrolman London.17,18
Cir. 2012)(“We read Farrar [v. Hubbs, 506 U.S. 103 (1992)] to
grant district courts substantial discretion to decide whether
no fee or some fee would be reasonable, as long as they
acknowledge that a nominal damages award is presumptively a
technical victory that does not merit an award of attorney’s
fees”); Carroll v. Clifford Twp., 625 F. App'x 43, 46 (3d Cir.
2015)(holding the district court’s denial of attorney’s fees was
proper for a prevailing plaintiff awarded nominal damages under
§ 1983 because the court gave primary consideration to the
disparity between damages awarded and the damages sought, and
the damages awarded were a “minute fraction of those that were
sought.”) It is evident to the Court from the Complaint through
the briefing that Plaintiff has only anemically pursued such
claim here and that fact may be relevant should Plaintiff
The Court additionally denies without prejudice Defendants’
motion for summary judgment on the issue of punitive damages.
(Defs.’ Br. 39-40). While the Court sees NO record evidence to
support an award for punitive damages, and Plaintiff does not
substantively oppose the motion, “the issue of punitive damages
is generally a question of fact for the jury.” Elmiry v.
Wachovia Corp., Civ. A. No. 04-3621 (PGS), 2007 WL 4117260, at
*16 (D.N.J. Nov. 16, 2007) (quoting Fisher v. Volz, 496 F.2d
333, 347 (3d Cir. 1974)). Defendants may request a revisiting
of the issue at trial.
Finally, summary judgment in favor of Defendants is GRANTED as
to Plaintiff’s causes of action for common law assault,
excessive force, and unlawful search and seizure. All other
causes of action against all other Defendants are conceded.
appropriate Order follows.
DATED: June 5, 2017
s/Renée Marie Bumb
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE
The Court additionally denies Defendants’ motion for summary
judgment based on immunity for discretionary functions pursuant
to N.J.S.A. § 59:3-2. Defendants make only a very vague
assertion of this immunity’s application, which seems minimal.
See Tice v. Cramer, 133 N.J. 347, 366 (1993) (noting that the
immunity is intended to apply to “discretion exercised at the
highest levels of government in matters of policy or planning”
and that police officer’s on-scene duties were “infinitely
distant from high-level policy or planning decisions” and “to
label this kind of determination by a public employee
‘discretionary,’ and therefore immune would end all public
employee liability . . . .”); see also Pucca v. City of Long
Branch, Civ. A. No. 12-4640 (FLW), 2015 WL 1346170, at *7
(D.N.J. Mar. 25, 2015) (citing Tice for this proposition).
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