MESA v. HUDSON COUNTY BOARD OF CHOSEN FREEHOLDERS et al

Filing 79

OPINION. Signed by Judge Katharine S. Hayden on 9/30/11. (DD, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
EDWARD MESA,
Plaintiff,
v.

Civ. Action No. 09-3576 (KSH)

HUDSON COUNTY BOARD OF CHOSEN
FREEHOLDERS, JEFFREY DUBLIN,
Chairman, HUDSON COUNTY SHERIFF’S
DEPARTMENT, CHIEF BARTUCCI,
SHERIFF LUZZI
Defendants.

OPINION

KATHARINE S. HAYDEN, U.S.D.J.
Plaintiff Edward Mesa (“plaintiff” or “Mesa”) brings his complaint alleging
that Hudson County officials and governmental entities violated his First
Amendment rights when he was removed from a meeting of the Hudson County
Board of Chosen Freeholders (“Freeholders” or “Board”) on April 24, 2008. Board
Chairman Jeffrey Dublin had ordered him removed after Mesa insisted on speaking
on a topic not under discussion and then refused to sit down. Mesa also complains
that two officers with the Hudson County Sheriff’s Department (“Sheriff’s
Department”) violated his First and Fourth amendment rights by removing him
from the meeting and allegedly using excessive force to restrain him from reentering.

1

All five defendants—the Hudson County Board of Chosen Freeholders,
Freeholders Chairman Jeffery Dublin, the Hudson County Sheriff’s Department, and
Sheriff’s Officer Chief John Bartucci (“Bartucci”) and Sheriff’s Detective John
Luzzi1—now move for summary judgment, arguing that Mesa’s removal did not
offend the First Amendment because he repeatedly disrupted the April 24
Freeholders’ meeting (“the meeting”) and further that the officers acted reasonably
to prevent further disturbance by him.

For the reasons explained below,

defendants’ motions for summary judgment (D.E. 59, 60, 61 and 66) are granted.
Background:
Edward Mesa is a retired Hudson County Sherriff’s Officer and active
participant in Hudson County politics.

He had attended between 10 and 20

meetings of the Hudson County Freeholders prior to the April 24, 2008 meeting.
(Def. Hudson Cty. Sheriff’s Department Statement of Material Facts (“SUMF”), D.E.
61, attach. 4 at ¶¶ 2−4.) Mesa, who had also attended meetings of the Union City
Council during the 1970s and 1980s, often spoke on economic issues and “the way
the county wastes money.” (Id. at ¶¶ 1−4; Dep. of Edward Mesa, (“Mesa Tr.”) at
266:5−6.) Mesa acknowledges that he is familiar with the structure and procedures
of Freeholders’ meetings, including their division into two different periods for
public comment, one of which is limited to discussing agenda items, and the other
which is open to general comments. (SUMF at ¶¶ 2−4.) Citizens can sign up to
speak during either period. (Id.)

1

The complaint incorrectly pleads Dublin and Luzzi as “Dubling” and “Lizza.”

2

Prior to the April 24 meeting, Mesa had spoken exclusively during the
general comment period; that night marked the first time he signed up to address an
agenda item. (SUMF ¶ 5−7; Mesa Tr. 265:20−21.) The meeting, chaired by Dublin,
began with a presentation on the budget by the Hudson County Executive, 2 although
neither the budget nor the County Executive’s presentation was on the board’s
agenda that night. (Id. at ¶ 6.) Mesa testified that there were no copies of the agenda
available when he arrived at the meeting, but he signed up to speak on an agenda
item anyway because “I knew what I was going to address.” (Id. ¶ 7; Mesa Tr.
302:22.) Mesa also testified that, despite his previous experiences speaking at
numerous Freeholders’ meetings, he was “confused” that night, explaining that “[if] I
was there [speaking] at the wrong time, so be it, but I thought I was there at the
right time.” (Mesa Tr. 307:2−4 and 309:22.) After the County Executive finished
talking and had left the room, a clerk announced that the public could address the
Board “on the agenda only.” (Tr. of Freeholders Meeting, April 24, 2008 (“Tr.”), at
38.)
When his name was called, Mesa went to the podium, and began, “(t)he
County Executive took off like a bat out of hell. I guess he don’t want to hear
anything.” (Id. at 39:4–6.) Mesa continued, “[h]is job should be here. He is talking
about hard times in Hudson County and he is talking about growth. ” At that point
Dublin cut in:
Excuse me. Is this on the agenda? Can you tell me what item?
Six other Freeholders were present that night: Doreen DiDomenico; Maurice Fitzgibbons; Thomas
Liggio; Jose C. Munoz; Bill O’Dea; and Eliu Rivera. (Apr. 24 Tr. at 1.) Also present of behalf of the
Freeholders were Edward Florio, board counsel, as well as the board clerk and administrator. (Id.)
2

3

Mesa: I am not going to tell you an item because I don’t take notes, sir.
Dublin: Then you have to sit down.
Mesa: I am not going to sit down. I want to speak.
Dublin: No.
Mesa: I am here to speak.
Dublin: I am in charge of this meeting, alright?
Mesa: I know, but I am your boss.
Dublin: You are not my boss. (Tr. at 39:11 to 40:3.)
The transcript indicates that Dublin addressed several officers in the room, saying,
“Sheriff, please.” (Id. at 40:4.) Mesa, however, did not sit down, and continued:
You are going to get a suit, I am telling you. You are going to have to
arrest me. Arrest me.
Dublin: Then I am asking you to speak on the agenda item and tell me which
item number.
Mesa: I am talking on the agenda.
Dublin: What number?
Mesa: I don’t have it.
Dublin: Than you cannot speak.
Mesa: I am talking about the increments on the taxes. It is not on there.
There is going to be an increment –
Dublin: It is not on the agenda. Give me an agenda item or you will sit down.
The budget is not on the agenda. (Id. at 40:9–41:5.)
At some point, Mesa began walking back to his seat,3 but he continued arguing with
Dublin:
You know something? You really amaze me.
Dublin: Thank you.
Mesa: You are a wonderful person.
Dublin: Thank you.
Mesa: You just want me to sit down and I am going to wait for the other one,
however, I think if I was in Africa you will be the guy that would put me
in the boat to America. (Id. at 41:7–17.)
Dublin, in response to this last comment, told the officers, “I want him out of
here. I want him out.” (Id. at 41:18–19.) Another board member, Freeholder O’Dea,

Mesa himself apparently has difficulty recalling the precise sequence of events. Compare Mesa Dep.
33:12 with Mesa Dep. 177:1–9.
3

4

interjected, “[i]t is free speech.” (Id. 41:22.) Mesa refused to leave, saying, “[y]ou
have to arrest me.” (Id. 41:24–25.) According to the transcript, an officer then
asked Mesa to “step outside,” and Mesa replied, “[a]re you arresting me? Are you are
arresting me?”
Mesa claims that he already was seated when he was approached by three
officers: John Bartucci, whom Mesa describes as a friend; Detective John Luzzi, who
did not know Mesa and was in plainclothes; and a third officer who is not named in
the amended complaint. (Mesa Tr. at 206:22 and 251:25.) Mesa testified that
Bartucci and Luzzi “grabbed me” and “had their hands on me,” but he acknowledges
that the officers neither dragged nor pushed him. (Mesa Tr. at 234:2−12; SUMF ¶
14.) Mesa testified that he told the officers, “I am going to sue you,” but this
comment does not appear in the meeting’s transcript. (Id. at 231:16; SUMF ¶ 15.)
According to Mesa, he and the officers walked about 25 feet into another room
where, he claims, Luzzi lifted Mesa’s right arm behind his back. Defendants dispute
this contention, as well as Mesa’s allegation that Bartucci ordered Luzzi to “[h]old
him tight, hold him tight” and “press him.” (Mesa Tr. at 242:18−19.) According to
Mesa, Luzzi “[was] pushing up, upward, where my arm can no longer go any further”
and held him in that position for two minutes before letting him go.

(Id. at

258:19−20.) Mesa also claims that Luzzi screamed at him, but he could not recall
what Luzzi said because “at this point I am on flashback . . . I am not connecting.”
(Id. at 243:2−3.)
Mesa’s complains that the incident “trigger[ed] a post-traumatic stress
syndrome relating to a similar violent incident” in 1986 involving an alleged assault
5

against him by Union City police. (Compl. ¶ 14.) Mesa testified that, while he felt
pain in his arm, he did not suffer bruising or any other physical injury, and did not
seek treatment by a physician for the pain he had suffered. (Id. at 262:16−263:4.)
Instead, Mesa claims he suffered “mind bruises” and felt “disoriented” because of the
flashbacks and “needed help.” (Mesa Tr. 287:10−13.) He drove that night to see a
psychiatrist. (Mesa Tr. 290:17−13 and 291:18–292:10.) Months later, in November
2009, Mesa traveled to Ecuador to cure himself with a treatment involving the
injection of “mother cells,” which he described as cells taken “from your chest. . . [to]
replace the ill cells and the dead cells.” (Id. at 330:1–331:21.)
After the incident, Mesa filed a complaint with the Internal Affairs Unit of the
Sheriff’s Department. (Mesa Dep. at 328:24–329:1.) The investigation determined
that Mesa’s complaint was “unfounded.” (SUMF ¶ 17.) In July 2009, Mesa filed his
federal lawsuit. The amended complaint (D.E. 15) asserts violations of the First,
Fourth and Fourteenth amendments. He alleges that Dublin and the Board of
Freeholders “deliberately and willfully infringed upon Plaintiff’s constitutional
rights to free speech, association and to petition the government for relief afforded
to him under the First Amendment.”4 (Compl. ¶ 16 and 19.) He also accuses the
Sheriff’s Department, Bartucci and Luzzi of violating his right to free from
unreasonable search and seizure and excessive use of force, and of violating his
right to exercise free speech. (Id. ¶ 25.)

Count one also seeks punitive damages based on “Mayor Turner’s willful and malicious conduct.”
Because “Mayor Turner” is not a named defendant and is not mentioned elsewhere in the complaint,
the Court assumes this reference was made in error. (Compl. ¶ 19.)
4

6

In a deposition, Dublin testified that he is responsible for maintaining order
at Freeholders’ meetings and that Mesa had refused to cooperate with his
instructions and was disturbing the meeting. Mesa was “out of order. He was yelling
into a [microphone] and we’re trying to run a public meeting.”

(Dublin Tr.

54:21−23; 58:12−19.) Dublin stated that he was asking Mesa for an agenda item “so
we could both stay on point [with] what was going on in the meeting . . . Not only is
it helpful to me, but it is also helpful to the rest of the colleagues because a lot times
there’s questions [on] an agenda item.” (Id. 43:16−44:4.) Dublin said that he finally
told the officers to remove Mesa because their exchange had become “personal”
when Mesa made an allegedly racist comment. (Tr.68:23−25.) Dublin, who is
African-American, testified that, “a racist comment shouldn’t be in a public forum.”
(Id. 66:22−23.) He explained that:
A comment like that shouldn’t have [ever] been said. Because not only
it hurt me, but there [were] other African-Americans sitting in that
audience also . . . If he wanted to talk politics, that was the right
setting. To talk about Africa and to talk about being on a ship and
going from this place to that place, I don’t that was the forum for that.”
(Dublin Tr. 67:13−23 and 69:1−5.)
The meeting transcript shows that, soon after Mesa’s ejection, Dublin told
those assembled: Mesa “understands the rules, he has been to several meetings. . . .
He couldn’t give me a specific agenda item so he didn’t – I asked him several times.
We are not going to allow people from the public telling us how to run the
meetings.”

(Tr. at 48:9–17.)

Some of the Freeholders spoke up, including

Freeholder O’Dea, who said that the “the implication was he was removed because
of that statement he made.” (Id. at 48:24–49:4.)

7

Mesa testified that he did not think that his comment was racist and that if
Dublin had taken offense, then “that is his problem.” (Mesa Tr. at 322:10−13.)
Mesa, who is of Cuban ancestry, explained that his comment was intended to
communicate that Dublin was “selling [his] own people . . . that he was selling me
and doing to me what those people were doing to those people that were brought
here to America” and was trying to “censor me.” (Mesa Tr. 178:7−15 and 184:1−2.)
Mesa admitted that Dublin repeatedly asked him to sit down and advised him that,
during that portion of the meeting, members of the public could speak on agenda
items only, and that Mesa understood what Dublin meant. (Mesa Tr. 171:15−172:5.)
Nonetheless, Mesa explained that he refused to sit down when asked because “I
wanted to speak. That is what I went there for,” and “I was not finished.” (Mesa Tr.
174:9−12 and 326:3−13.)
As indicated, all defendants filed motions for summary judgment.

5

The

individual defendants assert that they are entitled to qualified immunity, and both
the Freeholders Board, which filed jointly with Dublin, and the Hudson County
Sheriff’s Department argue that they are immune from suit under Monell v.
Department of Soc. Services, 436 U.S. 658 (1978).

This Court has jurisdiction

because Mesa ’s alleges constitutional violations brought pursuant Title 42 U.S.C. §
1983.
Legal Standard:
Plaintiff argues that several defendants’ motions for summary judgment should be summarily
denied for failure to provide separate statement of undisputed material facts. (D.E. 71 at 5.) After
reviewing the relevant filings, the Court is satisfied that all defendants have either furnished
individual Rule 56.1(a) statements of material facts or else have expressly adopted the statements of
other defendants and therefore no defendant has violated the rule.
5

8

Summary judgment is only appropriate “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). In deciding a
motion for summary judgment, the court must draw “all reasonable inferences from
the underlying facts in the light most favorable for the non-moving party.” Battaglia
v. McKendry, 233 F.3d 720, 722 (3d Cir. 2000). The role of the court is not to “weigh
the evidence and determine the truth of the matter but to determine whether there
is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
“A factual dispute is material if it bears on an essential element of the plaintiff’s
claim, and is genuine if a reasonable jury could find in favor of the nonmoving
party.” Fakete v. Aetna, Inc., 308 F.3d 335, 337 (3d Cir. 2002) (citations omitted).
Discussion:
i. Dublin
A public official who excludes a citizen from a public meeting “must conform
[his] conduct to the requirements of the First Amendment.” Montiero v. City of
Elizabeth, 436 F.3d 397, 404 (3d Cir. 2006). However, the standards applied to
determine “whether a State has unconstitutionally excluded a private speaker from
use of a public forum depend on the nature of the forum.” Good News Club v. Milford
Cent. Sch., 533 U.S. 98, 106 (2001) (citing Perry Ed. Assn. v. Perry Local Educators'
Assn., 460 U.S. 37, 44 (1983)).
In a public forum, which includes “public streets, parks, and other public
areas traditionally devoted to assembly and debate,” Galena v. Leone, 638 F.3d 186,
9

198 (3d Cir. 2011), the State’s “restrictions on speech are subject to [strict
scrutiny].” Id. The State may “impose reasonable restrictions on the time, place, or
manner of protected speech, provided the restrictions are justified without
reference to the content of the regulated speech.” Ward v. Rock Against Racism, 491
U.S. 781, 791 (1989) (internal citations omitted).

However, viewpoint-based

restrictions violate the First Amendment “regardless of whether they also serve
some valid time, manner [or] interest.” Montiero, 436 F.3d at 404. (citing Good
News Club, 533 U.S. at 106).
Restrictions on speech in a “limited public forum” are subject to less
stringent scrutiny. Good News Club, 533 U.S. at 106 (2001). A State is “not required
to and does not allow persons to engage in every type of speech” in a limited public
forum, and it may be justified in “‘in reserving [the forum] for certain groups or for
the discussion of certain topics.’” Id. (quoting Rosenberger v. Rector and Visitors of
Univ. of Va., 515 U.S. 819, 829 (1995)). Under the Supreme Court’s “refined test” for
reviewing restrictions on speech in limited public forums, “content-based restraints
are permitted, so long as they are designed to confine the ‘forum to the limited and
legitimate purposes for which it was created.’” Eichenlaub v. Township of Indiana,
385 F.3d 274, 280 (3d Cir. 2004) (quoting Rosenberger, 515 U.S. at 829).

A

“governmental entity creates a limited public forum when it provides for a forum
that is limited to use by certain groups or dedicated solely to the discussion of certain
subjects.” Galena, 638 F.3d at 198 (emphasis added) (internal quotation marks and
citation omitted). In the case of a municipal or other local government meeting, the
matters discussed “may be limited to issues germane to town government,” and a
10

meeting chairman can “confine the discussion to the purpose of the meeting” even if
the restrictions on speech are not content-neutral. Eichenlaub, 385 F.3d 280−81.
However, restrictions on speech in a limited public forum “must be viewpoint
neutral and must be ‘reasonable in light of the purpose served by the forum.’” Id. at
280 (quoting Good News Club, 533 U.S. at 106-07).
In either type of forum—whether a public or limited public forum—a
governmental body “may confine [meetings] to specified subject matter” and
remove a speaker who is disruptive or who otherwise fails to address the topic at
issue in order to maintain “orderly progression.” Jones v. Heyman, 888 F.2d 1328,
1329 (11th Cir. 1989) (reversing the district court’s decision finding a First
Amendment violation where a mayor ordered a speaker removed from a city
meeting for, among other things, not addressing the topic under discussion,
questioning the mayor’s “authority to run the session” and telling the mayor that he
was not “big enough” to expel him from the meeting). Restricting “repetitive” and
“truculent” behavior “is the sort of time, place, and manner regulation that passes
muster under the most stringent scrutiny for a public forum,” and an officer chairing
a public meeting need not allow “a speaker to try to hijack the proceedings.”
Eichenlaub, 385 F.3d at 281; see also Olasz v. Welsh, 301 Fed. App’x 142, 145 (3d Cir.
2008) (upholding summary judgment where the district court found that a city
council president did not violate the First Amendment in repeatedly silencing a
fellow councilmember and declaring him “out of order” because the councilmember
was engaging in “badgering, constant interruptions, and disregard for the rules of
decorum.”).
11

Here, Mesa acknowledges that he signed up to speak on an agenda item at the
April 24 meeting; he understood the difference between the meeting’s two comment
periods; the meeting was confined to the discussion of agenda items when he rose to
speak; and he understood what Dublin meant when Dublin told him that the budget
was not on the agenda that night and that he needed to identify an agenda item in
order to speak at that moment. Although Mesa claims that he was confused as to
what whether the County Executive’s presentation was on the agenda and that there
were no copies of the agenda available, he also acknowledges that he did not
request a copy from the Board’s clerk and that, regardless, he was determined to
speak during the agenda period. As he stated, “I knew what I was going to address.”
By his own admission, Mesa was well versed in the procedures and protocols of
Freeholders’ meetings and he acknowledges knowing that he could have spoken
later, but he was unwilling to wait. Mesa’s assertion that he made a “reasonable
mistake” (D.E. 69 at 22) is belied by his repeated refusal to stop speaking after being
informed by Dublin that the budget was not on the agenda and warned that he had
to identify an agenda item or else sit down. As he told Dublin, “I want to speak. . . I
came here to speak.”
Mesa argues that he was not disruptive, but the record establishes otherwise.
His assertions that he was silenced and “bullied” are belied by his own provocative
words reflected in the transcript of the meeting. Mesa stood up and accused the
County Executive of exiting “like a bat out of hell,” a comment that set the tone for
his subsequent combative remarks. In response to Dublin, Mesa stated: “I am not
going to tell you an item”; “I am not going to sit down. I want to speak”; “I am your
12

boss”; and “You are going to get a suit, I am telling you. You are going to have to
arrest me. Arrest me.” These repeated outbursts are the kind of “truculent” and
“disruptive” behaviors that justify removing a citizen from a public meeting to
maintain order and decorum, Jones v. Heyman, 888 F.2d at 1329, and to prevent a
speaker from “hijacking” a meeting.

Eichenlaub, 385 F.3d at 280−81.

Dublin

showed patience in repeatedly asking Mesa to speak on an agenda item and heed
the meeting’s rules; Dublin reasonably could have ordered Mesa to be removed at
this point, before Mesa ever made the “Africa” comment.
In this sense, Mesa’s final comment cannot be read apart from the exchange
that preceded it.

The comment indisputably had no relevance to the county

business under discussion and marked yet another interruption, this one with racial
overtones.

Mesa makes much of Dublin’s testimony that he asked to have Mesa

removed because he found Mesa’s Africa remark racist and he claims that Dublin’s
response suggests “nothing more than a pretext to chill unfavorable speech for his
own political self-interest.” (D.E. 71 at 2.)

In essence, Mesa seeks to convert his

own obstreperous behavior into a First Amendment violation by Dublin, despite the
evidence that he was the person making a racially-tinged insult.
Moreover, Mesa’s racial argument is a red-herring: his words, whether
pejorative or not, marked yet another interruption in a series of interruptions
demonstrating his refusal to abide by the meeting’s established rules—rules that
Mesa himself knew, understood and was repeatedly warned about. Whatever was
in Dublin’s mind at the moment of Mesa’s ejection, the record before the Court
makes clear that Dublin was following through on his previous warnings in order to
13

keep the discussion focused on the agenda issues before the Board. As Dublin
consistently testified, the agenda comment period was not the “right forum” for
Mesa’s remarks. 6
Dublin’s actions were reasonable in light of the circumstances and cannot be
said to offend the Constitution. In analyzing the nature of the forum at issue, Mesa
simply states—without further discussion—that when he spoke during the
meeting’s agenda comment period, he was speaking in a traditional public forum.
However, the Court finds that, under relevant precedent, the portion of the
Freeholders’ meeting in question—and arguably the whole meeting—was a limited
public forum because the discussion was restricted to the specific government
business on the meeting’s agenda. See Eichenlaub, 385 F.3d at 281 (finding that the
“citizen’s forum portion” of a city meeting was a limited public forum because,
although open to all citizens, “even the public discussion section. . . was designed to
be limited to matters pertaining to town government” and was not “the equivalent
of a municipal theater. . . a public park or street”); Galena, 638 F.3d at 198−99
(explaining that a meeting of the Erie County Council “was a limited public forum
inasmuch as the meeting was held for the limited purpose of governing Erie County
and discussing topics related to that governance” and in such a forum “to avoid
infringing on First Amendment rights, the governmental regulation of speech only
need be viewpoint-neutral and ‘reasonable in light of the purpose served by the
forum’”) (quoting Good News Club, 533 U.S. at 107)).
To this end, Dublin stated in his deposition that, had Mesa made the same remark during the
general public comment period, he did “not know” if at that time he would have asked the officers to
escort Mesa out. (Dublin Dep. at 79:18−80:2.)
6

14

Accordingly, in a limited public forum, such as during comment on agenda
items at the Freeholders’ meeting, “content-based restraints are permitted, so long
as they are designed to confine the forum to the limited and legitimate purposes for
which it was created.” Eichenlaub, 385 F.3d at 280 (internal quotation marks and
citation omitted). The record is clear that the restriction on Mesa’s speech had
nothing to do with Mesa’s viewpoint on the budget—or, for that matter, his
viewpoints on Africa or slavery. Dublin never objected to Mesa’s particular opinions
or views; rather, he objected to the discussion of a matter that was not on the
agenda—whether it was race, Africa or the budget—and therefore was not
appropriately raised at that time. Dublin sought to “confin[e] the discussion to the
purpose of the meeting,” even if the restriction on Mesa’s speech was not strictly
content-neutral. Eichenlaub, 385 F.3d 280−81.
Viewing the record in the most favorable light to Mesa, the Court finds that
Mesa has not shown sufficient facts to establish a First Amendment violation and
therefore summary judgment must be granted on the First Amendment claim.
ii. Hudson County Board of Freeholders:
The Court must grant summary judgment as to Mesa’s First Amendment
claim against the Board because, for the reasons stated above, no First Amendment
violation occurred.
iii. Officers Bartucci and Luzzi:
Mesa’s complaint asserts that Bartucci’s and Luzzi’s conduct violated his
Fourth Amendment rights “to be free from excessive use of force.” (Compl. ¶ 25.)

15

The use of excessive force constitutes “an unlawful ‘seizure’ under the Fourth
Amendment.” Graham v. Connor, 490 U.S. 386, 395, (1989). In order to prevail on
his excessive force claim, Mesa must show “show that a seizure occurred and that it
was unreasonable under the circumstances.” Lamont v. New Jersey, 637 F.3d 177,
182—83 (3d Cir. 2011) (quoting Brower v. County of Inyo, 489 U.S. 593, 599 (1989).
The Supreme Court has held that “all 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 must be analyzed under the Fourth Amendment[‘s]
‘reasonableness’ standard.”

Graham, 490 U.S. at 395 (citation omitted).

The

question is “whether under the totality of the circumstances the officer’s actions are
objectively reasonable in light of the facts and circumstances confronting them,
without regard to their underlying intent or motivations.” Kopec v. Tate, 361 F.3d
772, 776 (3d Cir. 2004) (internal citations omitted). This fact-specific inquiry
requires a “careful balancing of ‘the nature and quality of the intrusion on the
individual’s Fourth Amendment interests’ against the countervailing governmental
interests at stake.” Graham, 490 U.S. at 395 (citing Tennessee v. Garner, 471 U.S. 1, 8
(1985)).

As the Court has noted, “[n]ot every push or shove, even if it may later

seem unnecessary in the peace of a judge's chambers, violates the Fourth
Amendment,” but rather:
reasonableness . . . must be judged from the perspective of a
reasonable officer on the scene, rather than with the 20/20 vision of
hindsight. . . . The calculus of reasonableness must embody allowance
for the fact that police officers are often forced 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 396–97.
16

The reasonableness determination “traditionally is a question of fact for the
jury.” Abraham v. Raso, 183 F.3d 279, 290 (3d Cir. 1999) (citing White v. Peirce
County, 797 F.2d 812, 816 (9th Cir. 1986)). However, “defendants can still win on
summary judgment if the district court concludes, after resolving all factual disputes
in favor of the plaintiff, that the officer’s use of force was objectively reasonable
under the circumstances.” Id. (citing Scott v. Henrich, 39 F.3d 912, 915 (9th Cir.
1994)).
Here, the disagreement between Mesa and Dublin at the meeting unfolded
quickly and there is no question that: Mesa insisted on speaking after being told it
was not the right time; that he repeatedly refused to sit down; and that he used
insulting and combative language, including challenging Dublin and the officers to
arrest him. Given this escalating situation, in which Mesa acted in an unruly manner
while Dublin struggled to maintain order, it was “objectively reasonable” for
Bartucci and Luzzi to follow Dublin’s order to escort Mesa from the room. Accepting
Mesa’s claims as true, the officers held his arms as they walked him from the
meeting room and once out of the room, Bartucci said, “[h]old him tight” and “press
him,” while Luzzi held Mesa’s arm behind his back for up to two minutes.
Using such tactics to keep a disruptive and truculent Mesa from re-entering
the meeting room cannot be said to have been objectively unreasonable under the
circumstances. Mesa was acting in a confrontational fashion, and he admits that the
officers neither dragged nor pushed him, and they did not handcuff him. Mesa also
concedes that he did not suffer any bruising or physical injury from the armhold he

17

described, only that the situation “trigger[ed] a post-traumatic stress syndrome”
related to an earlier incident.
Accepting Mesa’s facts, the Court finds that the officers’ actions, which were
designed to control Mesa temporarily while the meeting went on, were objectively
reasonable in light of Mesa’s conduct and the appropriate requests of the chair that
he be removed and kept away. Graham, 490 U.S. at 396–97; Kopec, 361 F.3d at 776.
The individual officers argue they are protected by qualified immunity, but
an analysis of how that doctrine might apply is unnecessary because the Court is
satisfied that the officers acted reasonably and therefore no constitutional violation
occurred. Lamont, 637 F.3d 182—83 (quoting Brower v. County of Inyo, 489 U.S.
593, 599 (1989)).
iii. Hudson County Sheriff’s Department:
Because Mesa cannot show an underlying violation of his constitutional
rights by either officer, he cannot establish a basis for holding the Sheriff’s
Department’s liable. See Holman v. City of York, 564 F.3d 225, 23 n.12 (3d. Cir. 2009)
(noting that plaintiff’s “municipal liability claims would have inevitably failed at the
summary judgment stage, since we conclude that no constitutional deprivation
occurred.”); see also Knight v. Carmike Cinemas, 2011 U.S. Dist. LEXIS 93460, at *3031 (D. Del. Aug. 22, 2011) (“Plaintiff has not alleged an underlying constitutional
violation, much less deliberate conduct by the City of Dover or any causal link.
Therefore, Plaintiff has not stated a Monell claim against the City.”).
iv. Claims against the individual defendants in their official capacities:

18

Mesa’s claims against the individual defendants in their official capacities are
dismissed because these claims are “duplicative of plaintiff’s claims against the
municipality itself” and therefore should be treated as a suit against the entity itself.
Strickland v. Mahoning Tp., 647 F. Supp. 2d 422, 428 (M.D. Pa. 2009) (holding that
“an official-capacity suit is generally merely another way of pleading an action
against an entity of which an officer is an agent.”) (quoting Kentucky v. Graham, 473
U.S. 159, 165 (1985)).
Conclusion:
For the reasons stated above, the Court grants defendants’ motions for
summary judgment (D.E. 59, 60, 61 and 66) as to all claims in Plaintiff’s amended
complaint (D.E. 15). An appropriate order will be entered.

September 30, 2011

/s/ Katharine S. Hayden
Katharine S. Hayden, U.S.D.J.

19