SMITH v. MERCURI et al
Filing
63
OPINION. Signed by Judge Robert B. Kugler on 7/24/2019. (dmr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
TERRENCE SMITH,
HONORABLE ROBERT B. KUGLER
Plaintiff,
v.
Civil Action
No. 17-1278 (RBK/KMW)
DET. MATTHEW MERCURI and
RESERVE OFFICER CAMERON LUNG,
#9067
OPINION
Defendants.
APPEARANCES:
Derek A. Steenson, Esq.
1500 Walnut Street, #700
Philadelphia, PA 19102
Attorney for Plaintiff
Matthew B. Wieliczko, Esq.
Dean R. Wittman, Esq.
ZELLER & WIELICZKO, LLP
120 Haddontowne Court
Cherry Hill, NJ 08034
Attorneys for Defendant, Matthew Mercuri
J. Brooks DiDonato, Esq.
PARKER MCCAY P.A.
9000 Midlantic Drive, Suite 300
P.O. Box 5054
Mount Laurel, NJ 08054
Attorney for Defendant, Cameron Lung
KUGLER, District Judge:
I.
INTRODUCTION
Plaintiff Terrence Smith (“Plaintiff”) filed suit against the
City
of
Burlington
Department
(“BCPD”)
City
and
several
officers
-
Burlington
Detective
City
Matthew
Police
Mercuri
(“Detective Mercuri” or “Mercuri”), Reserve Officer Cameron Lung
(“Officer Lung” or “Lung”), and Officer Stephen Hesson (“Officer
Hesson” or “Hesson”) - following an incident that occurred on
February 23, 2015 at the Burlington Supermarket (hereinafter, “the
Market”). In short, Plaintiff claims that, while he was waiting
for a delivery truck to arrive at the Market, several BCPD officers
conducted an illegal pat-down search of him; that a struggle ensued
wherein the officers unnecessarily tripped Plaintiff and tackled
him to the ground; and that one officer unlawfully deployed a K-9
while Plaintiff was on the ground with two other officers on top
of him, and then again while Plaintiff was inside the Market. As
summarized below, surveillance video and audio captures almost the
entire encounter.
Plaintiff initially brought claims against Defendants City of
Burlington, Mercuri, Lung, and Hesson for the alleged deprivation
of
various
constitutional
rights.
All
allegations
against
Defendants City of Burlington County and Hesson were subsequently
dismissed, leaving only Defendants Mercuri and Lung remaining in
the case. Currently pending before the Court are motions for
summary judgment filed by those remaining Defendants. For the
reasons set forth below, Defendant Mercuri’s motion will be denied
in part and granted in part, while Defendant Lung’s motion will be
granted in its entirety.
2
II.
BACKGROUND
A.
Factual Background1
The Court begins with the summary judgment record. On February
23, 2015, at approximately 11:02 a.m., the Burlington City Police
Department received an anonymous call reporting that a tall, skinny
black male wearing a black coat was selling drugs at the Burlington
Supermarket. (Case Report [Docket Item 31, Ex. A] at 23.) Detective
Mercuri and his K-9 partner, Max, were dispatched to the Market to
investigate the call, along with Officer Lung. (Id.; Lung Dep.
[Docket Item 31, Ex. N] at 8:12-9:5.)
The incident in question was captured via a surveillance video
(without audio) inside the Market (hereinafter, “Market Video”).2
The Market Video depicts the entrance of the Market, from inside
the Market, including a view of the sidewalk through the glass
doors
and
Recorder
windows.
In
(hereinafter,
addition,
“Lung
Officer
MVR”)
Lung’s
provided
Mobile
audio
of
Video
the
1
For purposes of the instant motion and pursuant to Local Civil
Rule 56.1, the Court looks to the Complaint [Docket Item 1] when
appropriate, the Defendants’ Statement of Undisputed Material
Facts (“SUMF”) [Docket Item 32-1; Docket Item 46-4], Plaintiff’s
Responses to Statement of Material Facts (“RSMF”) [Docket Item 321; Docket Item 50-7], and related exhibits and documents.
2
The summary judgment record below contains information from
both the Market Video and Lung MVR, presented chronologically, by
looking at each source, concurrently. The Court notes that the
time stamp on the Market Video does not reflect the actual time on
the day of the incident, but the Lung MVR does. Accordingly, the
time shown in the Market Video and the Lung MVR do not match up.
3
interaction between Plaintiff and the officers. The Lung MVR also
contains video of the street, including a view of Detective
Mercuri’s police vehicle.
Plaintiff testified that, on the morning of February 23, 2015,
he was working under the table at the Market and playing lottery
tickets while waiting for a delivery truck to arrive. (Smith Dep.
[Docket Item 31, at Ex. O] at 23:1-25.) At the time, he was 6 feet,
7 inches tall, and weighed approximately 225 to 230 pounds. (Id.
at 70:21-71:13.)
The surveillance video shows Plaintiff standing in the front
of the store prior to the incident. (Market Video [Docket Item 31,
Ex. M] at 12:00:00-12:10:15.) Detective Mercuri first enters the
store and asks Plaintiff to step out onto the sidewalk to answer
some
questions.
(Id.
at
12:10:15.)
While
outside,
Detective
Mercuri can be heard telling Plaintiff that “someone called about
you
selling
drugs.”
(Lung
MVR
at
11:13:30-11:13:34.)
Shortly
thereafter, Detective Mercuri can be heard telling Plaintiff that
he is going to do a pat-down and asking if Plaintiff has any
weapons. (Lung MVR at 11:13:40-11:13-46.)
Surveillance video shows Plaintiff turning around, facing the
Market, and allowing Detective Mercuri to perform a pat-down
search. (Market Video at 12:11:10.) It is difficult to see where
Detective Mercuri’s hands are throughout the pat-down; however, at
one
point,
Detective
Mercuri’s
4
hand
can
be
seen
grabbing
Plaintiff’s front left pants pocket. (Id. at 12:11:24.) Plaintiff
alleges
that
at
this
time,
Detective
Mercuri
squeezed
and
manipulated his pocket approximately four times. (Compl. [Docket
Item 1] at ¶ 25.) Detective Mercuri can be heard asking about the
contents of Plaintiff’s pocket and instructing Officer Lung to
conduct
a
further
search.
(Lung
MVR
at
11:14:00-11:14:06.)
Plaintiff then turns around and faces the officers. (Market Video
at 12:11:32.) Plaintiff testified that he turned around because he
believed that the officers were “going beyond a pat-down.” (Smith
Dep. at 34:16-19.) By this time, Officer Hesson had arrived and
joined
the
other
officers.
(See
Market
Video
at
12:11:32.)
Plaintiff can be heard questioning the officers regarding the
search of his pocket and whether they have permission to do so.
(Lung MVR at 11:14:08-11:14:12.)
Detective Mercuri and Officer Hesson are then seen grabbing
Plaintiff’s arms. (Market Video at 12:11:35.) Plaintiff can be
heard continuing to express concern about the search. (Lung MVR at
11:14:12-11:14:18.) Plaintiff testified that he was asking the
officers why they were “gripping” him. (Smith Dep. at 36:5-12.)
Plaintiff can be seen brushing Officer Lung’s hand away from
searching his pocket. (Market Video at 12:11:40.) Plaintiff and
the officers can be heard arguing throughout this encounter. (Lung
MVR at 11:14:18-11:14:32.)
5
Plaintiff then steps toward the officers again and Officer
Hesson moves in behind Plaintiff. (Market Video at 12:11:49.)
Immediately thereafter, a skirmish begins. (Id. at 12:11:50.)
Plaintiff can initially be seen struggling, as all three officers
grab hold of him. (Id.) Plaintiff testified that, prior to this
encounter, the officers did not tell him he was under arrest.
(Smith Dep. at 17-19.) Later in his deposition, Plaintiff testified
that, at the start of the struggle, he asked the officers to take
their hands off of him. (Id. at 86:6-12.)
Soon after the clash begins, Plaintiff and the officers move
a few feet away from the store, but Plaintiff quickly walks away,
pulling the group of officers back toward the doorway of the
Market. (Market Video at 12:11:54.) Plaintiff testified about this
moment:
Q. So what does the video depict at this point? This is
at 12:11:54.
A. In my mind I thought they were trying to pull me into
the alley.
Q. What were they trying to pull you into the alley to
do?
A. I don’t know. Like, I don’t think if it would have
got prettier if I was in the alley versus where I pulled
them at into the store. So my whole state of thought was
I need to stay in the view of the camera like. I need to
be where – if something bad is going to happen beyond
this that it can be seen.
(Smith Dep. at 38:3-15.) Detective Mercuri then releases his grip
and breaks away from the struggle. (Market Video at 12:11:59.)
6
Plaintiff, Officer Lung, and Officer Hesson move into the threshold
of the Market. (Id. at 12:12:00.) Plaintiff testified that he
“wasn’t trying to get away” at this time. (Smith Dep. at 39:1622.) Rather, Plaintiff again testified, it was his intention to
get into the store to avoid being taken into the alley by the
officers and out of sight of the video camera. (Id.)
Plaintiff can then be seen being pulled from inside the Market
and tackled to the ground by Officers Lung and Hesson. (Market
Video at 12:12:02.) The view of Plaintiff and Officer Lung is
largely obstructed once on the men are on the ground. (Id. at
12:12:05-12:12:14.) Plaintiff ultimately manages to force his way
back onto his feet and drag the officers back toward the Market’s
doors. (Id. at 12:12:15.) The officers then tackle Plaintiff so
that he is partially inside the Market with his legs on the outdoor
sidewalk. (Id. at 12:12:17.)
While this struggle ensued, Detective Mercuri returned to his
police vehicle and retrieved the K-9. (Lung MVR at 11:14:4111:14:53.) The K-9 exited the car and ran toward the scene, without
a leash, as Detective Mercuri followed behind. (Id. at 11:14:5311:14:56.) The K-9 arrives on the scene and first bites Officer
Lung, who, along with Officer Hesson, was on top of Plaintiff.
(Market Video at 12:12:19.) The K-9 quickly withdraws and returns
to Detective Mercuri. (Id. at 12:12:19-12:12:21) Plaintiff then
gets back on his feet inside the Market. (Id. at 12:12:24.)
7
While inside the Market, Officer Lung grabs Plaintiff. (Id.
at 12:12:24-12:12:30.) He then releases his grip on Plaintiff and
Detective Mercuri deploys the K-9 once again. (Id. at 12:12:31.)
At this time, Officer Hesson can be seen grabbing Plaintiff’s shirt
while the K-9 bites Plaintiff’s leg. (Id.) Plaintiff can be seen
holding his arms out. (Id. at 12:12:38-12:12:42.) The K-9 continues
to bite Plaintiff’s leg, on and off for several seconds, until
Plaintiff falls to the ground. (Id. at 12:12:42.) Plaintiff was
subsequently handcuffed by Officers Lung and Hesson.3 (Mercuri
Narrative [Docket Item 46, Ex. A] at 2.)
Plaintiff was then taken to the hospital under police custody.
(Smith Dep. at 63:6-25.) Plaintiff testified he had bite marks on
his ankle and leg following the encounter and that he still has
scars. (Id. at 64:12-17, 66:9-10.) Plaintiff further states that
he
has
occasional
pain
in
his
ribs,
which
manifests
itself
approximately twice a month. (Id. at 66:5-66:4.) In addition,
Plaintiff claims that he is unable to play basketball like he used
to. (Id. at 66:16-23.) As of the time of his deposition, Plaintiff
worked at the Bordentown Inn performing maintenance duties and
cooking. (Id. at 67:1-68:25.)
3
Plaintiff testified that he was kicked at some point during
the struggle but could not identify the officer responsible, the
exact number of kicks, or when it occurred. (Smith Dep. at 55:2056:6.) For its part, the Court has been unable to identify any
kicks in the video surveillance.
8
After Plaintiff was removed from the scene, another officer
returned to the Market to view the surveillance footage. (Mercuri
Narrative at 2.) According to officers, the video revealed that
Plaintiff threw an object behind the shelves during the incident.4
(Id.) Several officers searched the area and found a plastic
sandwich bag with eight individually wrapped packets of marijuana.
(Id.)
Detective Mercuri later prepared an Affidavit of Probable
Cause. (Aff. of Probable Cause [Docket Item 31, Ex. C] at 10.)
Plaintiff was initially charged in Superior Court of New Jersey,
Burlington
County,
Criminal
Part,
with
Aggravated
Assault
on
Police, Distribution of Marijuana, Resisting Arrest, Possession of
Marijuana, and Possession of CDS Paraphernalia. (Id. at 6-9.)
Plaintiff was then indicted by a grand jury on charges of Resisting
Arrest (Third Degree) and Aggravated Assault of a Law Enforcement
Officer. (Grand Jury Indictment [Docket Item 31, Ex. F] at 11-12.)
Plaintiff
subsequently
pled
guilty
to
a
disorderly
person’s
offense for loitering. (Transcript of Trial, New Jersey v. Smith,
Indictment No. 15-07-7071 (N.J. Super. Ct. Apr. 26, 2016) [Docket
Item 31, Ex. L] at 24:1-29:15.) In April 2016, he was tried before
4
Defendants in their briefs do not reference a specific point
in the Market Video when this occurred, and the Court was unable
to independently confirm this account.
9
a Burlington County jury on the Resisting Arrest charge, and was
found not guilty. (Id. at 21:1.)
B.
Procedural History
On February 23, 2017, Plaintiff filed a Complaint in the U.S.
District Court for the District of New Jersey naming as Defendants
the City of Burlington, Detective Mercuri, Officer Lung, and
Officer Hesson. [Docket Item 1.] Count Three of the Complaint was
later dismissed by stipulation between the parties. [Docket Item
18.] All claims asserted against Defendants Hesson and the City of
Burlington were also dismissed by stipulation, pursuant to Fed. R.
Civ. P. 41(a). [Docket Items 55 & 56.]
The remaining Counts against Defendants Mercuri and Lung are
as follows: (1) violation of the Fourth and Fourteenth Amendments
of the U.S. Constitution under 42 U.S.C. § 1983 (Count One); and
(2) violation of the New Jersey Constitution and New Jersey Civil
Rights Act, N.J.S.A. § 10:6-2 (Count Two). (Compl. at ¶¶ 45-49.)
Specifically, Plaintiff alleges under each Count that he was:
deprived of the right to be free from unlawful detention; subjected
to an unlawful search and seizure; subjected to an excessive use
of force; deprived of the right to be secure in one’s person and
property;
deprived
of
the
right
to
be
free
from
malicious
prosecution; and deprived of his right to due process of law.5
5
Plaintiff and Officer Lung agree that the malicious
prosecution claims should be dismissed as to Officer Lung because
10
(Id.) To the extent possible, the Court addresses these poorlyplead categories of constitutional claims separately below.
After discovery was completed, Defendants Lung and Mercuri
filed the pending motions for summary judgment. [Docket Items 31
& 46.] Plaintiff timely opposed both motions [Docket Items 32 &
50], and both Defendants filed reply briefs. [Docket Items 39 &
57.] The summary judgment motions are now fully briefed and ripe
for disposition. The Court decides these motions without oral
argument pursuant to Fed. R. Civ. P. 78.
III. STANDARD OF REVIEW
At summary judgment, the moving party bears the initial burden
of demonstrating that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter
of law. Fed. R. Civ. P. 56(a); accord Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). Once a properly supported motion for
summary judgment is made, the burden shifts to the non-moving
party, who must set forth specific facts showing that there is a
genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 250 (1986). In reviewing a motion for summary judgment, the
court is required to examine the evidence in light most favorable
to the non-moving party, and resolve all reasonable inferences in
he did not initiate the prosecution of the plaintiff. (Pl.’s Opp’n
Br. [Docket Item 32] at 4.)
11
that party's favor. Scott v. Harris, 550 U.S. 372, 378 (2007);
Halsey v. Pfeiffer, 750 F.3d 273, 287 (3d Cir. 2014).
The fact that this case includes surveillance video footage
presents an “added wrinkle” to the usual standard which requires
courts “to view the facts and draw reasonable inferences ‘in the
light most favorable to the party opposing the [summary judgment]
motion.’” Scott, 550 U.S. at 378. Where there is video footage
related to the claims, the Court will not draw inferences that are
“blatantly” inconsistent with the video evidence. See id. at 380–
81 (“When opposing parties tell two different stories, one of which
is blatantly contradicted by the record, so that no reasonable
jury could believe it, a court should not adopt that version of
the facts for purposes of ruling on a motion for summary judgment
. . . [and thus, t]he Court of Appeals should not have relied on
such visible fiction; it should have viewed the facts in the light
depicted by the videotape.”)
A factual dispute is material when it “might affect the
outcome of the suit under the governing law,” and genuine when
“the evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Anderson, 477 U.S. at 248. The nonmoving party “need not match, item for item, each piece of evidence
proffered by the movant,” but must simply present more than a “mere
scintilla” of evidence on which a jury could reasonably find for
12
the non-moving party. Boyle v. Cty. of Allegheny Pennsylvania, 139
F.3d 386, 393 (3d Cir. 1998) (quoting Anderson, 477 U.S. at 252).
IV.
DISCUSSION
A.
Qualified Immunity
Qualified immunity is an affirmative defense that “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.” Taylor
v. Barkes, 135 S. Ct. 2042, 2044 (2015) (quoting Reichle v.
Howards, 132 S. Ct. 2088, 2093 (2012)). Qualified immunity will
not, however, act as a shield for “the official who knows or should
know he is acting outside the law.” Noble v. City of Camden, 112
F. Supp. 3d 208, 225 (D.N.J. 2015) (quoting Butz v. Economou, 438
U.S. 478, 506–07 (1978)). To overcome qualified immunity, the Court
must decide whether the facts alleged, taken in a light most
favorable
to
the
plaintiff,
make
out:
(1)
a
violation
of
a
constitutional right; and (2) that the constitutional right at
issue was “clearly established” at the time of a defendant’s
alleged misconduct. Saucier v. Katz, 533 U.S. 194, 201 (2001).
Although the question of qualified immunity is generally a
question of law, “a genuine issue of material fact will preclude
summary judgment on qualified immunity.” Giles v. Kearney, 571
F.3d 318, 326 (3d Cir. 2009); see also Curley v. Klem, 298 F.3d
271, 278 (3d Cir. 2002) (noting that “a decision on qualified
13
immunity will be premature when there are unresolved disputes of
historical fact relevant to the immunity analysis”). In other
words, the Court must deny summary judgment if, on a plaintiff’s
version of the facts, defendants violated the plaintiff’s clearly
established constitutional rights.
B.
Unlawful Search Claims
1.
The
Terry stops and the Fourth Amendment
Fourth
Amendment
protects
individuals
“against
unreasonable searches and seizures.” U.S. Const. amend. IV. In
general, “warrantless searches are presumptively unreasonable.”
Horton v. California, 496 U.S. 128, 133 (1990). However, there are
limited situations which present exceptions to this general rule.
One such exception is a Terry “stop and frisk.” See Terry, 392
U.S. at 20–22 (1968). Under Terry and its progeny, and consistent
with
the
Fourth
Amendment,
an
officer
may
conduct
a
brief
investigatory stop when they have reasonable, articulable, and
individualized suspicion that criminal activity is afoot. United
States v. Lowe, 791 F.3d 424, 434 (3d Cir. 2015). When assessing
whether reasonable suspicion exists, courts consider “the totality
of the circumstances – the whole picture.” United States v. Cortez,
449 U.S. 411, 417 (1981).
Since Terry, the Supreme Court has “firmly rejected the
argument ‘that reasonable cause for a[n investigative stop] can
only be based on the officer's personal observation, rather than
14
on
information
supplied
by
another
person.’”
Navarette
v.
California, 572 U.S. 393, 397 (2014) (quoting Adams v. Williams,
407 U.S. 143, 147 (1972)).
When police officers rely in part on tips from anonymous
informants to establish reasonable articulable suspicion, as here,
the “Supreme Court has made clear that ‘an informant’s veracity,
reliability and basis of knowledge . . . are highly relevant in
determining the value of his report.” United States v. Torres, 534
F.3d 207, 210 (3d Cir. 2008) (internal citations omitted). For
example, an anonymous tip can exhibit “sufficient indicia of
reliability
to
provide
reasonable
suspicion
to
make
[an]
investigatory stop” when police officers corroborate a tipster’s
specific and predictive information about a subject and their
movements. Alabama v. White, 496 U.S. 325, 327 (1990) (sustaining
an investigatory stop where officers corroborated an anonymous
caller’s specific and predictive information about the movements
of an individual allegedly transporting cocaine). On the other
hand, anonymous telephone tips that include only “an accurate
description
of
a
appearance”
are,
subject’s
readily
on
own,
their
observable
insufficient
location
to
and
establish
reasonable articulable suspicion. Florida v. J.L., 529 U.S. 266,
268-272 (2000) (ruling that an anonymous caller’s tip that “a young
black male standing at a particular bus stop and wearing a plaid
shirt was carrying a gun” was insufficient to establish reasonable
15
suspicion because “[a]ll the police had to go on in this case was
the bare report of an unknown, unaccountable informant who neither
explained how he knew about the gun nor supplied any basis for
believing he had inside information about [the subject]”).
The Third Circuit, taking these principles into account,
considers five-factors when assessing the reliability of a tip and
its propensity to establish reasonable articulable suspicion:
(1)
The tip information was relayed from the informant to
the officer in a face-to-face interaction such that the
officer had an opportunity to appraise the witness's
credibility through observation.
(2)
The person providing the tip can be held responsible if
her allegations turn out to be fabricated.
(3)
The content of the tip is not information that would be
available to any observer.
(4)
The person providing the information
witnessed the alleged criminal activity.
(5)
The tip predicts what will follow, as this provides
police the means to test the informant's knowledge or
credibility.
has
recently
Torres, 534 F.3d at 211 (citing United States v. Brown, 448 F.3d
239, 244 (3d Cir. 2006) (citations and internal quotation marks
omitted)). Other pertinent factors include “[the p]resence of a
suspect in a high crime area,” “[a] suspect's presence on a street
at a late hour,” “[a] suspect's nervous, evasive behavior, or
flight from police,” and a suspect's behavior “that conforms to
police officers' specialized knowledge of criminal activity.” Id.
(quoting Brown, 448 F.3d at 251).
16
2.
Plaintiff’s unlawful search claims
Plaintiff alleges that Detective Mercuri and Officer Lung
violated his Fourth Amendment rights when they subjected him to an
unlawful search. (Compl. at ¶ 46.) To that end, Plaintiff points
to two possible Fourth Amendment violations: (1) the unlawful
initiation
of
a
Terry
stop
without
reasonable
articulable
suspicion; and (2) the unlawful execution of the Terry stop (i.e.,
the manipulation of Plaintiff’s pocket after he was deemed to be
unarmed). (See Pl.’s Opp’n Br. [Docket Item 50-6] at 10-14.) The
Court addresses each in turn.
3.
Detective Mercuri is not entitled to qualified
immunity on the initiation of an unconstitutional
pat-down
claim
and
summary
judgment
is
inappropriate for that claim
a.
Deprivation of a constitutional right
With respect to Detective Mercuri and the initial pat-down,
Plaintiff argues that Mercuri did not have reasonable articulable
suspicion to initiate a Terry stop. (Pl.’s Opp’n Br. [Docket Item
50-6]
at
10-11.)
Although
Plaintiff
and
Defendants
have
two
different accounts of what transpired in the moments leading up to
the stop and frisk, the Court must adopt Plaintiff’s version of
events for the purpose of the pending motions. Under this version
of events, a reasonable jury could find that Detective Mercuri
illegally conducted the pat-down by relying solely on an anonymous
cell
phone
tip
indicating
that
17
someone
matching
Plaintiff’s
description was selling drugs in the Market, without independently
corroborating any details on his own.6 See J.L., 529 U.S. at 268272. Thus, on this record, material issues of fact exist as to
whether Detective Mercuri had reasonable articulable suspicion to
conduct the pat-down.
b.
Clearly established right
Having determined that a reasonable jury could find that
Detective
Mercuri
initiate
the
Plaintiff’s
lacked
pat-down,
reasonable
the
constitutional
established.
“To
sufficiently
be
clear
that
Court
right
clearly
every
articulable
at
next
considers
issue
established,
reasonable
suspicion
a
was
whether
previously
right
official
to
must
would
be
have
understood that what he is doing violates that right.” Taylor, 135
S. Ct. at 2044 (quoting Reichle, 132 S. Ct. at 2093)); see also
Spady v. Bethlehem Area Sch. Dist., 800 F.3d 633, 637 n.4 (3d Cir.
2015) (holding that a district court “may not deny a summary
judgment motion premised on qualified immunity without deciding
that the right in question was clearly established at the time of
the alleged wrongdoing”) (citation omitted).
In February 2015, the law was well-established that police
officers may not conduct a Terry stop and frisk without reasonable
6
The Court expresses no view on the merits nor any prediction
whether Plaintiff is likely or unlikely to prove these facts at
trial.
18
articulable suspicion. More specifically, it was well-established
that reasonable articulable suspicion is not established where
police officers act solely based on an anonymous telephone tip
that only contains a description of a subject’s readily observable
location and appearance and an uncorroborated allegation of drugdealing. See J.L. 529 U.S. at 272 (“An accurate description of a
subject's readily observable location and appearance is of course
reliable in this limited sense: It will help the police correctly
identify the person whom the tipster means to accuse. Such a tip,
however, does not show that the tipster has knowledge of concealed
criminal activity. The reasonable suspicion here at issue requires
that a tip be reliable in its assertion of illegality, not just in
its tendency to identify a determinate person.”); United States v.
Roberson, 90 F.3d 75, 80 (3d Cir. 1996) (“[W]e hold that the police
do not have reasonable suspicion for an investigative stop when,
as here, they receive a fleshless anonymous tip of drug-dealing
that
provides
only
readily
observable
information,
and
they
themselves observe no suspicious behavior.”).
Adopting Plaintiff’s version of the events, as the Court must
do, the undersigned finds that an objectively reasonable officer
would have known that conducting a Terry stop based solely on an
anonymous telephone tip containing a subject’s readily observable
location and appearance, along with an uncorroborated allegation
of
drug-dealing,
is
unlawful
and
19
constitutes
an
unreasonable
search
under
the
Fourth
Amendment.
Accordingly,
the
Court
concludes that Detective Mercuri is not entitled to qualified
immunity at this time.7
c.
Summary judgment
The Court also denies Detective Mercuri’s motion for summary
judgment on Plaintiff's claims of an unconstitutional initiation
of a Terry stop. As noted above, there is a genuine dispute as to
whether the Terry stop was based solely on the anonymous tip and,
viewing the facts in the light most favorable to Plaintiff, a
reasonable
jury
could
reasonable
articulable
conclude
suspicion
that
when
Detective
he
Mercuri
searched
lacked
Plaintiff.
Therefore, summary judgment is not warranted on this claim against
Defendant Mercuri.
7
Because the question of qualified immunity is ultimately a
question for the Court, this conclusion may change based on the
facts found by the jury at trial. Curley, 499 F.3d at 214 (“The
jury was not bound at trial, and the District Court was not bound
post-trial, by our earlier statements involving a hypothetical set
of facts favoring Curley, since the facts and inferences actually
found by the jury were clearly different than those which we were
required to posit in Curley when considering the summary judgment
order.”).
20
4.
Detective Mercuri is not entitled to qualified
immunity on the execution of an unconstitutional
pat-down
claim
and
summary
judgment
is
inappropriate for that claim
a.
Having
Bounds on the execution of a Terry stop
previously
discussed
the
prerequisites
for
the
initiation of a Terry stop, the Court will now address the bounds
on the execution of a Terry search and its applicability to the
facts of this case. Because the brief, investigatory stop allowed
by Terry is based on reasonable suspicion rather than probable
cause,
the
search
itself
must
be
“limited
to
that
which
is
necessary for the discovery of weapons which might be used to harm
the officer or others nearby.” Terry 392 U.S. at 26; see also
Adams, 407 U.S. at 146 (“The purpose of this limited search is not
to discover evidence of crime, but to allow the officer to pursue
his investigation without fear of violence.”).
Although
the
primary
objective
of
a
Terry
search
is
protective, circumstances exist whereby police officers “may seize
contraband detected during the lawful execution of a Terry search.”
Minnesota
v.
Dickerson,
508
U.S.
366,
374
(1993).
One
such
circumstance is covered by the “plain view” doctrine. See id. at
375 (“[I]f police are lawfully in a position from which they view
an object, if its incriminating character is immediately apparent,
and if the officers have a lawful right of access to the object,
they may seize it without a warrant. If, however, the police lack
21
probable
cause
to
believe
that
an
object
in
plain
view
is
contraband without conducting some further search of the object i.e., if its incriminating character is not immediately apparent
- the plain-view doctrine cannot justify its seizure.”) (internal
citations and quotations omitted).
An offshoot of this doctrine, often referred to as “plain
feel,” deals with situations where officers feel contraband during
a
Terry
stop.
In
Dickerson,
for
example,
the
Supreme
Court
explained that it was permissible for officers to seize contraband
during a protective search as long as the search stays within the
bounds delineated by Terry. Id. at 373. In that case, an officer
conducted a Terry stop that revealed no weapons. Id. at 369.
However, the officer continued to search the subject’s jacket after
taking an interest in a small lump in his pocket. Id. The officer
subsequently
determined
that
the
lump
was
contraband
after
“squeezing, sliding and otherwise manipulating” the contents of
the
pocket.
Id.
at
378
(internal
quotation
marks
omitted).
Accordingly, the search was ruled inconsistent with Terry and the
“plain feel” doctrine because the officer had already determined
that the subject was unarmed and the “incriminating character of
the object was not immediately apparent to [the officer].” Id. at
379.
The appropriate question under Dickerson, therefore, “is not
the immediacy and certainty with which an officer knows an object
22
to be contraband or the amount of manipulation required to acquire
that knowledge, but rather what the officer believes the object is
by the time he concludes that it is not a weapon.” United States
v. Yamba, 506 F.3d 251, 258 (3d Cir. 2007). Keeping with the
purpose and rationale of Terry, an officer “is allowed to slide or
manipulate an object in a suspect’s pocket, consistent with a
routine frisk, until the officer is able reasonably to eliminate
the possibility that the object is a weapon.” Id. at 259. If the
officer believes the object is contraband before determining it is
not a weapon, the officer can conduct a more intrusive search and
ultimately seize the contraband, if any is found. Id. On the other
hand, an officer who determines that a subject is unarmed but still
proceeds to manipulate one’s outer clothing to determine whether
an object is contraband exceeds the bounds of Terry and violates
the Fourth Amendment. See Dickerson, 508 U.S. at 379.
b.
Deprivation of a constitutional right
Once again, the Court must adopt Plaintiff’s version of the
facts for the qualified immunity analysis. The version of facts
most favorable to Plaintiff is that Detective Mercuri determined
that Plaintiff was unarmed during the initial pat-down but returned
to Plaintiff’s pocket and manipulated its contents by squeezing
and manipulating the pocket approximately four times to determine
whether the object inside was contraband. Given these facts, a
reasonable jury could conclude that Detective Mercuri overstepped
23
the
bounds
of
Terry
by
unreasonably
manipulating
Plaintiff’s
pocket. Therefore, the Court finds that material issues of fact
exist as to whether Detective Mercuri’s execution of the Terry
stop was unreasonable and, therefore, violated Plaintiff’s Fourth
Amendment rights.
c.
Clearly Established Right
The Court next considers whether Plaintiff’s constitutional
right at issue was previously established. As discussed above, in
February 2015, the law was well-established that police officers
may not manipulate an object in a subject’s pocket to determine
its character after initially determining that the subject is
unarmed. See Dickerson, 508 U.S. at 379 (“[T]he officer's continued
exploration of respondent's pocket after having concluded that it
contained no weapon was unrelated to the sole justification of the
search under Terry” and is therefore unconstitutional) (internal
citations, quotation marks and brackets omitted); Yamba, 506 F.3d
at 259 (describing that if an officer goes beyond what is necessary
to determine that a suspect is armed the search is no longer valid
under Terry); see also
United States v. Mattarolo, 209 F.3d 1153,
1158 (9th Cir.2000) (“Had the officer continued to manipulate the
object beyond what was necessary to ascertain that it posed no
threat, he would have run afoul of the Supreme Court's holding in
. . . Dickerson.”). Adopting Plaintiff’s version of facts, an
objectively reasonable officer would have known that it is unlawful
24
to continue to manipulate the contents of a subject’s pocket to
ascertain an object’s character after previously determining that
the
subject
is
unarmed.
Therefore,
the
Court
concludes
that
Detective Mercuri is not entitled to qualified immunity on this
claim.
d.
Detective
Summary Judgment
Mercuri’s
motion
for
summary
judgment
on
Plaintiff's claim of an unconstitutional execution of the Terry
stop is likewise denied. Again, there is a material dispute as to
whether Detective Mercuri continued to manipulate the object in
Plaintiff’s
pocket
to
ascertain
its
character
even
after
determining that Plaintiff was unarmed. Since a reasonable jury
could credit Plaintiff’s version of the facts, summary judgment is
inappropriate.
5.
Officer Lung is entitled to summary judgment on all
unlawful search claims against him
Plaintiff concedes that Defendant Lung was unable to actually
search his pocket because Plaintiff prevented him from doing so,
and that Lung did not himself initiate or conduct the pat-down of
Plaintiff.
(See
Pl.’s
RSMF
[Docket
Item
32-1]
at
¶
12;
see
generally Pl.’s Opp’n Br. [Docket Item 32-2].) Rather, Plaintiff’s
opposition brief singles out Detective Mercuri as the individual
responsible for the pat-down and the video evidence corroborates
this account. (See generally Pl.’s Opp’n Br. [Docket Item 32-2] at
25
5-8.) Moreover, Plaintiff does not plead an alternative theory of
liability with regards to Officer Lung’s conduct, such as failure
to intervene. See, e.g., Hartman v. Gloucester Twp., 2014 WL
2773581, at *14 (D.N.J. June 19, 2014)
(“To make out a prima facie
case of failure to intervene, a plaintiff must prove that an
officer had a duty to intervene, the officer had a realistic and
reasonable opportunity to intervene, and that the officer failed
to intervene”) (citing Smith v. Mensinger, 293 F.3d 641, 650–51
(3d Cir. 2002)). On this record, the Court finds as a matter of
law that no reasonable jury could find Defendant Lung unlawfully
searched Plaintiff and he is, therefore, entitled to summary
judgment on those claims. See Hayward v. Salem City Bd. of Educ.,
2016 WL 4744132, at *4 (D.N.J. Sept. 12, 2016) (explaining that,
in the summary judgment context, “[b]ecause it is undisputed that
[the defendant] did not conduct the strip search himself, his
Fourth
Amendment
liability
can
only
arise
from
failing
to
intervene”).
C.
Excessive Force Claims
1.
Excessive force
“To state a claim for excessive force as an unreasonable
seizure under the Fourth Amendment, a plaintiff must show that a
‘seizure’ occurred and that it was unreasonable.” Brower v. County
of Inyo, 489 U.S. 593, 599 (1989), quoted in Abraham v. Raso, 183
F.3d 279, 288 (3d Cir. 1999); see also Graham v. Connor, 490 U.S.
26
386, 395 (1989) (“[A]ll claims that law enforcement officers have
used excessive force—deadly or not—in the course of an arrest,
investigatory stop, or other ‘seizure’ of a free citizen should be
analyzed
under
the
Fourth
Amendment
and
its
‘reasonableness’
standard.”). “The use of excessive force is itself an unlawful
‘seizure’ under the Fourth Amendment.” Couden v. Duffy, 446 F.3d
483, 496 (3d Cir. 2006). The parties do not dispute that a seizure
occurred here.
To determine the reasonableness of a seizure, the court asks
whether the officer's conduct was “objectively reasonable” in
light of the totality of the circumstances, without regard to the
underlying intent or motivation. Graham, 490 U.S. at 397 (citing
Terry v. Ohio, 392 U.S. 1, 21 (1968)); Kopec v. Tate, 361 F.3d
772, 776 (3d Cir. 2004). The “objective reasonableness” inquiry
requires an examination of the “facts and circumstances of each
particular case, including the severity of the crime at issue,
whether the suspect poses an immediate threat to the safety of the
officers or others, and whether he is actively resisting arrest or
attempting to evade arrest by flight.” Graham, 490 U.S. at 396.
Additional
factors
include
“the
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
27
officers must contend at one time.” Rivas v. City of Passaic, 365
F.3d 181, 198 (3d Cir. 2004) (quoting Sharrar v. Fising, 128 F.3d
810, 822 (3d Cir. 1997)). In the Third Circuit, courts take into
account “all of the relevant facts and circumstances leading up to
the time that the officers allegedly used excessive force.” Rivas,
365 F.3d at 198 (citing Abraham v. Raso, 183 F.3d 279, 291 (3d
Cir. 1999)). The Court should not apply “the 20/20 vision of
hindsight,” but should instead consider the “perspective of a
reasonable officer on the scene.” Id.; see also Kopec, 361 F.3d at
777.
2.
Plaintiff’s excessive force claims
Plaintiff alleges that Detective Mercuri and Officer Lung
violated his constitutional rights when they used excessive force
during the struggle. (Compl. at ¶¶ 46, 49.) Plaintiff’s argument
focuses primarily on the deployment of the K-9 by Detective
Mercuri. (See Pl.’s Opp’n Br. [Docket Item 32-2] at 9; Pl.’s Opp’n
Br. [Docket Item 50-6] at 10-14.) However, Plaintiff also argues
that
Officer
Lung’s
involvement
in
the
encounter
constitutes
excessive force. (Pl.’s Opp’n Br. [Docket Item 32-2] at 9-10). The
Court addresses the claims against each defendant in turn.
28
3.
Detective Mercuri is not entitled to qualified
immunity on the excessive force claim involving the
K-9, and summary judgment on that claim is not
warranted
a.
Deprivation of a Constitutional Right
Plaintiff primarily bases his excessive force claim against
Detective Mercuri on the deployment of the K-9 during the struggle.
(Pl.’s Opp’n Br. [Docket Item 50-6] at 9-10.) Under Plaintiff’s
version of events, Detective Mercuri first ordered the K-9 to make
an apprehension while Plaintiff was lying face down on the ground
with two officers on top of him, but the K-9 mistakenly attacked
Officer Lung. Then, while Plaintiff remained stationary, Detective
Mercuri ordered the K-9 to attack Plaintiff again. Detective
Mercuri continued to allow the K-9 to bite Plaintiff’s leg while
Plaintiff stood with his hands in the air.8 Given these facts, a
reasonable jury could find that Defendant Mercuri’s use of the K9 at various points was disproportionate to the threat Plaintiff
posed to the officers, if any, and unnecessary to effectuate his
8
Plaintiff
emphasizes
that
only
twenty-eight
seconds
transpired from the first attempt at subduing Plaintiff to the
deployment of the K-9. (Pl.’s Opp’n Br. [Docket Item 50-6] at 9;
see also Market Video at 12:11:50-12:12:18.) And only nine seconds
separated the start of the struggle and Detective Mercuri’s
departure from the group to retrieve the K-9. (Market Video at
12:11:50-12:11:59.) Moreover, Detective Mercuri did not use a
leash when he first retrieved the K-9 from his police vehicle.
(Lung MVR at 11:14:53-11:14:56.)
29
arrest.9
Accordingly,
a
jury
could
reasonably
conclude
that
Detective Mercuri’s use of the K-9 was unreasonable. See e.g.,
Stadler v. Abrams, 2018 WL 3617967, at *1 (D.N.J. July 30, 2018)
(case where jury found that an officer’s use of K-9 against subject
constituted excessive force).
b.
Clearly Established Right
Having determined that a jury could find that the Detective
Mercuri’s use of force was unreasonable, the Court next considers
whether Plaintiff’s constitutional right at issue was clearly
established. In February 2015, the law was well-established that
police officers may not use serious force on a suspect who is not
actively resisting arrest or no longer poses a direct threat to
officers or public safety, even if the suspect posed a threat at
the time force was initiated on them. See Lamont v. New Jersey,
693 F.3d 177, 184 (3d Cir. 2011) (“Even where an officer is
initially justified in using force, he may not continue to use
such force after it has become evident that the threat justifying
the force has vanished.”); Lytle v. Bexar County, Tex., 560 F.3d
404,
413
(5th
Cir.
2009)
(“[A]n
exercise
of
force
that
is
reasonable at one moment can become unreasonable in the next if
9
Although Plaintiff concedes that he initially resisted the
efforts of the officers, there is a dispute as to whether he was
resisting at the time Detective Mercuri deployed the K-9. See
Couden, 446 F.3d at 497 (finding excessive force as a matter of
law where plaintiff was not “resisting arrest or attempting to
flee” at the “time the force was used”).
30
the justification for the use of force has ceased”); see also
Alicea v. Thomas, 815 F.3d 283, 288 (7th Cir. 2016) (stating that
the use of force “is only reasonable when it is proportional to
the threat posed. If an officer's threat perception changes, so
too should her force calculus.”)
This principle was also clearly established in dog bite cases.
See Campbell v. City of Springboro, 700 F.3d 779, 789 (6th Cir.
2012) (denying qualified immunity to an officer who “allowed a
‘bite and hold’ dog, whose training was questionable, to attack
two suspects who were not actively fleeing and who, because of
proximity, showed no ability to evade police custody”); Watkins v.
City of Oakland, 145 F.3d 1087, 1093 (9th Cir. 1998) (holding that
it was “clearly established that excessive duration of the bite
and improper encouragement of a continuation of the attack by
officers
could
constitute
excessive
force
that
would
be
a
constitutional violation”); Castellani v. City of Atl. City, 2017
WL 3112820, at *15 (D.N.J. July 21, 2017) (finding that an officer
who deployed a dog on a suspect who was already subdued by five
officers had violated a clearly established right and was not
entitled to qualified immunity). For these reasons, Detective
Mercuri is not entitled to qualified immunity as to Plaintiff’s
excessive force claims against him involving the K-9.
31
c.
Summary Judgment
The Court also denies Detective Mercuri’s motion for summary
judgment on Plaintiff's excessive force claim against him. As
discussed above, viewing the facts in the light most favorable to
Plaintiff, a reasonable jury could conclude that Detective Mercuri
used excessive force when he deployed the K-9 while Plaintiff was
on the ground and then again while Plaintiff was standing in the
store. In both instances, a reasonable jury could determine that,
at the time the K-9 was deployed, Plaintiff was no longer a threat
to the officers, resisting their attempts at making an arrest, or
evading them. Accordingly, a reasonable jury could find that the
force used by Detective Mercuri was excessive and summary judgment
will be denied as to this claim.
4.
Officer Lung is entitled to summary judgment with
respect to all excessive force claims against him
With respect to Defendant Lung, Plaintiff concedes that he
blocked Lung’s initial attempt to search his pocket after Detective
Mercuri’s pat-down, and that he “resist[ed] the attempts” of the
officers, including Lung, to bring him to the ground after the
search. (Pl.’s RSMF [Docket Item 50-7] at ¶¶ 29-30.)10 Still,
10
At his deposition, Plaintiff described his actions at the
start of the struggle:
Q. What were you physically doing with your body?
A. I would say to the point to where – when they were
gripping me up and I asked them to take their hands off
32
Plaintiff argues that issues of material fact exist as to the force
used by Officer Lung and that a jury should decide them. (Pl.’s
Opp’n Br. [Docket Item 32-2] at 9) But the bulk of Plaintiff’s
argument focuses on the use of the K-9 under Detective Mercuri’s
control, as discussed above, rather than Officer Lung’s conduct.
(Id.) Plaintiff, for example, does not argue that Officer Lung
used excessive force when he brought Plaintiff to the ground. See
id. at 9-10.
Officer Lung, meanwhile, argues that the force he employed
was only the amount necessary to overcome Plaintiff’s physical
resistance and to effectuate the arrest. (Def. Lung’s Br. [Docket
Item 31-1] at 10.) In support of this position, Officer Lung states
that his actions were consistent with the New Jersey Attorney
General’s Use of Force policy. (See N.J. Att’y Gen. Use of Force
Policy [Docket Item 31, Ex. P] at 3) (describing that physical
force including “wrestling a resisting subject to the ground” and
“striking with the hands or feet” is appropriate when “necessary
to overcome a subject’s physical resistance to the exertion of the
law
enforcement
officer’s
authority.”).
Officer
Lung
further
argues that New Jersey law does not permit a citizen “to resist
arrest by one he knows or has good reason to believe is an
me, I would say – I was – if you want to say it’s
resisting, that’s what I was doing like.
(Smith Dep. 86:6-12; see also Market Video at 12:11:50.)
33
authorized police officer engaged in the performance of his duties,
whether or not the arrest is illegal under the circumstances
obtaining.” State v. Mulvihill, 57 N.J. 151, 155 (1970) (citing
State v. Koonce, 89 N.J. Super. 169, 184 (App. Div. 1965)).
The video clearly shows (see Market Video at 12:11:40), and
Plaintiff concedes (see Pl.’s RSMF [Docket Item 50-7] at ¶¶ 2930), that Plaintiff blocked Officer Lung’s attempted search of
Plaintiff’s pocket and that Plaintiff resisted Officer Lung’s
attempts to subdue him. Moreover, the video shows that Plaintiff
dragged Officers Lung and Hesson across the sidewalk, and in and
out of the Market, during the course of the struggle. (Market Video
at 12:11:54-12:12:17.) After carefully reviewing the videos and
additional evidence in the record, the Court concludes that no
reasonable fact-finder could find that Officer Lung’s use of force
was excessive. See, e.g., Brown v. City of Jersey City, 2015 WL
586022, at *5 (D.N.J. Feb. 10, 2015), aff'd in part, Brown v.
Makofka, 644 F. App'x 139 (3d Cir. 2016) (“A plaintiff who actively
resists arrest, in the manner Plaintiff demonstrated on video
(folding his hands and grasping his vest to prevent the Officers
from handcuffing him), exposes himself to the possibility that
some amount of force may be used against him to effectuate that
arrest.”). Therefore, Officer Lung’s motion for summary judgment
shall be granted as to the issue of excessive force.
34
D.
Malicious Prosecution Claims
Detective
Plaintiff's
Mercuri
malicious
also
moves
prosecution
for
summary
claim.
(Def.
judgment
Mercuri’s
on
Br.
[Docket Item 46-5] at 28; Def. Mercuri’s Reply Br. [Docket Item
57] at 5.) To prevail on a malicious prosecution claim under 42
U.S.C. § 1983, a plaintiff must demonstrate that: (1) the defendant
initiated a criminal proceeding; (2) the criminal proceeding was
terminated
initiated
in
the
without
plaintiff's
probable
favor;
cause;
(3)
(4)
the
the
proceeding
defendants
was
acted
maliciously or for a purpose other than bringing the plaintiff to
justice, and (5) the plaintiff suffered a deprivation of liberty
consistent with the concept of seizure as a consequence of a legal
proceeding. Johnson v. Knorr, 477 F.3d 75, 82 (3d Cir. 2007).
Detective Mercuri is entitled to summary judgment on this
claim because Plaintiff is unable to meet the third element, since
the
Third
Circuit
has
held
that
a
grand
jury
indictment
or
presentment “constitutes prima facie evidence of probable cause to
prosecute.” Rose v. Bartle, 871 F.2d 331, 353 (3d Cir. 1989). As
noted above, Plaintiff was indicted by a grand jury on charges of
Resisting Arrest (Third Degree) and Aggravated Assault of a Law
Enforcement Officer. (Grand Jury Indictment at 11-12.) Moreover,
while “prima facie evidence may be rebutted by evidence that the
presentment was procured by fraud, perjury or other corrupt means,”
Plaintiff does not present any such evidence here. Rose, 871 F.2d
35
at 353. Accordingly, summary judgment is appropriate for Detective
Mercuri on the malicious prosecution claim.
E.
Punitive Damages
Detective Mercuri further argues that, based on the evidence
in the record, he is entitled to summary judgment on Plaintiff's
claims for punitive damages. (Def. Mercuri’s Br. at 29.) Under 42
U.S.C. § 1983 and New Jersey's Punitive Damages Act, N.J.S.A.
2A:15–5.12, a defendant whose conduct is motivated by evil motive
or demonstrates a reckless disregard toward others' rights may be
subjected to punitive damages. See Smith v. Wade, 461 U.S. 30, 56
(1983) (a jury may award punitive damages when a “defendant's
conduct is shown to be motivated by evil motive or intent, or when
it involves reckless or callous indifference to the federally
protected rights of others”); see also N.J.S.A. 2A:15–5.12(a).
Thus, as the Court of Appeals has explained:
[F]or a plaintiff in a section 1983 case to qualify for
a punitive award, the defendant's conduct must be, at a
minimum, reckless or callous. Punitive damages might
also be allowed if the conduct is intentional or
motivated by evil motive, but the defendant's action
need not necessarily meet this higher standard. This
point is made clear by the Supreme Court's language in
Wade: “[A] jury may be permitted to assess punitive
damages in an action under § 1983 when the defendant's
conduct is shown to be motivated by evil motive or
intent, or when it involves reckless or callous
indifference to the federally protected rights of
others.”
36
Savarese v. Agriss, 883 F.2d 1194, 1204 (3d Cir. 1989) (internal
citation omitted); see also Kounelis v. Sherrer, 529 F.Supp.2d
503, 534 (D.N.J. 2008).
On this record, the Court finds that a jury could find that
Detective Mercuri’s deployment of the K-9 demonstrated, at least,
a reckless indifference toward Plaintiff's constitutional rights.
See Kounelis, 529 F.Supp.2d at 534. Moreover, should the jury also
find
that
Detective
Mercuri
lacked
reasonable
articulable
suspicion to conduct a Terry stop or overstepped the bounds of
Terry while executing the pat-down, and that he engaged in the
seizure and use of force in question rashly and with a disregard
for the limitations the Fourth Amendment imposes, that same jury
could impose punitive damages without finding personal animus or
enmity. See Savarese, 883 F.2d at 1204. Thus, the Court will deny
Detective Mercuri’s motion for summary judgment as to Plaintiff's
claim for punitive damages on these claims.
V. CONCLUSION
For the foregoing reasons, the Court will grant in part and
deny in part Detective Mercuri’s motion for summary judgment and
grant Officer Lung’s motion for summary judgment in its entirety.
The accompanying Order will be entered.
July 24, 2019_
Date
s/ Robert B. Kugler_______
ROBERT B. KUGLER
U.S. District Judge
37
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