EVANS v. NEWARK CITY, et al

Filing 255

OPINION. Signed by Judge Kevin McNulty on 3/16/2023. (mxw)

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

LEE EVANS,

Civ. No. 14-00120 (KM) (MAH)
Plaintiff,
OPINION

v.

CITY OF NEWARK, et al.,
Defendants.

KEVIN MCNULTY, U.S.D.J.:
In August 1978, five teenage boys from Newark disappeared. More than
thirty years later, in 2010, plaintiff Lee Evans and his cousin, Philander
Hampton, were charged with their murder. The charges came after Hampton
allegedly confessed to police that he and Evans forced the boys into the closet
of a home, nailed the closet shut, and set the house on fire.
Hampton pled guilty to the charges, while Evans was tried and acquitted
in 2011. Evans then filed this lawsuit against the police officers, prosecutors,
and supervisory personnel involved in his criminal case, alleging violations of
his constitutional and state law rights.
The defendants moved to dismiss the complaint in 2015 and were
partially successful. Now, the case primarily concerns Evans’s claim of
malicious prosecution against the police officers who investigated, and
ultimately obtained, the warrant pursuant to which Evans was arrested and
later tried. Those officers, as well as the other remaining defendants, have
moved for summary judgment. For the reasons set forth below, the motions for
summary judgment are granted in part and denied in part.

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I.

Background
A. Initial investigation
On August 20, 1978, five boys from Newark went missing and were never

seen again.1 (Newark St. ¶36; Resp. to Newark St. ¶36.) All of the boys were

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Certain key items from the record will be abbreviated as follows:
DE = Docket entry number in this case
Tietjen MSJ = Brief of Defendant Tietjen in support of summary judgment (DE
232)
Newark MSJ = Brief of the Newark Defendants in support of summary judgment
(DE 233)
Carrega MSJ = Brief of Defendant Carrega in support of summary judgment
(DE 234)
Opp. to Newark MSJ = Evans’s brief in opposition to the Newark Defendants’
motion for summary judgment (DE 243)
Tietjen St. = Tietjen’s statement of undisputed material facts (DE 232-2)
Newark St. = Newark Defendants’ statement of undisputed material facts (DE
233-2)
Carrega St. = Carrega’s statement of undisputed material facts (DE 234-3)
Resp. to Tietjen St. = Evans’s response to Tietjens’s statement of undisputed
material facts (DE 244-1)
Resp. to Newark St. = Evans’s response to the Newark Defendants’ statement of
undisputed material facts (DE 247)
Resp. to Carrega St. = Evans’s response to Carrega’s statement of undisputed
material facts (DE 246)
Tietjen Repl. = Brief of Defendant Tietjen in further support of summary
judgment motion (DE 252)
Pl. St. = Evans’s statement of disputed material facts (DE 245)
Tiet. 2008 Rep. = Tietjen’s 2008 supplementary investigation report (DE 235-3)
Tiet. 2010 Rep. = Tietjen’s 2010 supplementary investigation report (DE 235-9)
Hairston Rep. = 1978 report of Detective Everett Hairston (DE 234-5)
Carrega Rep. = Carrega’s 2011 continuation report (DE 234-15)
Sabur Rep. = 1998 investigation report of Detective Rashid Sabur (DE 233-9)
Arson Rep. = August 21, 1978, Newark Fire Department Report (DE 234-18)
Carrega Aff. = Carrega’s affidavit in support of arrest warrants (DE 234-34)
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Black males, ages 16 and 17. Their names were Randy Johnson, Ernest Taylor,
Melvin Pittman, Alvin Turner, and Michael McDowell. To this date, their
remains have not been located. (Newark St. ¶¶1, 6; Resp. to Newark St. ¶¶1, 6;
Carrega St. ¶1; Resp. to Carrega St. ¶1.)
On August 23, 1978, Newark Police Department (“NPD”) Detectives
Everett L. Hairston and John Scott-Bey were assigned to the missing-persons
matter involving the five boys. (Newark St. ¶7; Resp. to Newark St. ¶7.)
Hairston’s investigation report (the “Hairston report”) details several interviews
that police conducted with the boys’ family members and other individuals in
the days following their disappearance. I will summarize certain key
components of the Hairston report, noting points at which Evans disputes its
accuracy.2
According to the report, police learned from several family members that
the boys were with Evans on August 20, 1978. Alvin Turner’s mother stated
that her son was last seen riding in the back of Evans’s pickup truck, while
Ernest Taylor’s mother stated that she last saw her son, along with Melvin
Pittman, get into a pickup truck with two other boys already inside. She
believed that the pickup truck belonged to Evans. (Newark St. ¶¶4-5, 19; Resp.
to Newark St. ¶¶4-5, 19.)
Hampton St. = Hampton’s 2017 statement (DE 232-7, p. 369)
Hampton Aff. = Hampton’s 2020 affidavit (DE 232-7, p. 377)
Hadley Dep. = Deposition of Defendant Hadley (DE 233-11)
Tietjen Dep = Deposition of Defendant Tietjen (233-6, p. 2)
Evans Dep. = Deposition of Lee Evans (DE 233-6, p. 164)
Hampton Dep. = Volume II of deposition of Philander Hampton (233-7, p. 2)
Carrega Dep. = Deposition of Defendant Carrega (DE 233-10)
Laurino Dep. = Deposition of Robert Laurino (DE 235-10)
Cucinello Dep. = Deposition of Cheryl Cucinello (DE 234-28)
Cutler Int. = Transcript of 2008 interview of Robert Cutler (DE 234-14)
Evans also contends that the report should not be considered because it is
hearsay. I address this argument at page 34 n.9, infra.
2

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Randy Johnson’s mother stated that Evans dropped Johnson off near his
home at approximately 11:00 pm on August 20, 1978. (Newark St. ¶3; Resp. to
Newark St. ¶3.) Michael McDowell’s mother stated that she saw her son return
home in a truck driven by Evans on that date, but that he stayed for about five
minutes before leaving again in the same truck. (Newark St. ¶23; Resp. to
Newark St. ¶23.)
Police also learned that the missing boys, just prior to their
disappearance, had allegedly stolen marijuana from Evans. Robert Cutler, an
apparent friend of one or more of the boys, told investigators that on August
19, 1978, Melvin Pittman and Randy Johnson admitted to him that they broke
into the apartment of “Big Man”—referring to Evans3 —and stole a pound of
marijuana. According to Cutler, the five missing boys divided the marijuana
amongst themselves. (Newark St. ¶¶17-18; Resp. to Newark St. ¶¶17-18.)
After hearing about the stolen marijuana, several family members
searched the boys’ bedrooms and located small amounts of the substance,
which they turned over to police. (Newark St. ¶16 (marijuana found in Randy
Johnson’s room), ¶20 (marijuana found in Ernest Taylor’s room), ¶21
(marijuana found in Alvin Turner’s room); Resp. to Newark St. ¶¶16, 20. 21). It
does not appear that the detectives developed further physical or other
evidence connecting Evans to the marijuana recovered from the boys’ rooms.
(Pl. St. ¶7; Tietjen Dep. 115:23-116:2.)
The Hairston report reflects that on August 22, 1978, police interviewed
Evans. (Newark St. ¶11; Resp. to Newark St. ¶11.) According to the report,
Evans told police that the boys often helped him with construction work.
(Newark St. ¶11; Resp. to Newark St. ¶11.) He stated that he brought the boys
with him on several jobs on August 20 and returned with them at around

Evans testified at his deposition that “Big Man” was one of his nicknames.
(Evans Dep. 21:6-11.)
3

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11:00 p.m. A few days after the interview, Evans agreed to take a polygraph
test, which he reportedly passed. (Carrega St. ¶10; Resp. to Carrega St. ¶10.)
Notwithstanding the Hairston report, Evans denies telling detectives that
he dropped the boys off at home at 11:00 pm on August 20, 1978, although he
recalls speaking with detectives and agrees that some of the boys helped him
move boxes on the date in question. (Resp. to Newark St. ¶¶2, 12.) He
maintains, however, that he dropped the teenagers off at an ice cream shop at
around 2:30 or 3:30 p.m. (Id. ¶3.)
On October 19, 1978, Hairston and Scott-Bey interviewed Evans’s
second cousin, Philander Hampton.4 According to the Hairston report,
Hampton told the detectives that on August 20, 1978, he was at the home of
Maurice Olds—another of Evans’s cousins—with several of the missing boys.
Hampton stated that he, Olds, and a few of the missing boys got into Evans’s
truck and drove to Vailsburg Park, intending to play basketball. Hampton
returned home in Evans’s truck at around 7:00 p.m. and did not see Evans or
any of the missing boys later that night. (Newark St. ¶¶31-33; Resp. to Newark
St. ¶¶31-33.; Hairston Rep. 22-23.)
As reflected in the reports of other NPD officers, police interviewed nearly
150 witnesses in the first thirteen months of the investigation. At one point, a
psychic suggested that a fire was involved in the boys’ disappearance. Detective
Hairston checked reports of all fires that occurred in Newark in August 1978,
including one at a site corresponding to 256 Camden Street. No fatalities were
reported as a result of that fire. (Carrega St. ¶16; Resp. to Carrega St. ¶16; Pl.
St. ¶10.)
B. Cold case investigation
For decades, investigators continued following leads, to no avail. In 1998,
the NPD officially classified the case as a homicide. Detectives Keith Sheppard

The report refers to Hampton as Philand Williams, but there is no dispute that
the individual identified in the report as Philand Williams is Philander Hampton.
(Hairston Rep. 22-23; Pl. St. ¶9.)
4

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and Rashid Sabur of the Homicide Cold Case Unit were assigned to investigate.
(Newark St. ¶¶36-41; Resp. to Newark St. ¶¶36-41.)
According to Sabur’s investigation report (“the Sabur report”), detectives
met in 1998 with the missing teens’ family members, many of whom expressed
their belief that Evans was involved in the boys’ disappearance. (Newark St.
¶42-43; Resp. to Newark St. ¶42-43.) Detectives also re-interviewed Robert
Cutler, who had been interviewed in 1978. Cutler recounted that Evans often
sold marijuana in the area and sometimes sold to the missing teenagers. Cutler
also stated that he had broken into Evans’s apartment with the missing
teenagers on at least ten separate occasions before their disappearance.
(Newark St. ¶¶46-47; Resp. to Newark St. ¶¶46-47.)
On February 15, 1999, Detectives Sabur and Sheppard spoke with
Maurice Olds. Olds denied having knowledge of the boys’ disappearance but
stated that the boys sold marijuana for Evans and that Evans knew that they
had burglarized his apartment. Olds also stated that he had heard that the
boys burned in a fire either on Hawthorn Avenue or Camden Street in Newark.
He could not recall where he obtained this information. (Newark St. ¶49; Resp.
to Newark St. ¶49; Sabur Rep. 8.)
The Sabur report reflects that on February 24, 1999, Sabur and
Sheppard interviewed Philander Hampton at the NPD station. Hampton initially
denied having any knowledge of or involvement in the boys’ disappearance, but
later stated, “If I confess to this shit, my life is over.” Hampton was released
after failed attempts to elicit any more information. (Newark St. ¶50; Resp. to
Newark St. ¶50; Sabur Rep. 10.) At his 2022 deposition, Hampton testified that
he did not remember meeting with Detectives Sabur and Sheppard or making
those statements. (Hampton Dep. 115:21-117:9.)
The Sabur report further reflects that Sabur met with Evans on April 16,
2008. At some point Evans asked how the investigation was going, and Sabur
stated that he knew that the missing teens had burglarized Evans’s home and
stolen large amounts of marijuana from him. Evans responded that the
“situation was bigger than him” and “he was only a middleman.” Evans
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currently denies making those statements. (Newark St. ¶¶52-54; Resp. to
Newark St. ¶¶52-54; Sabur Rep. 12-13.)
In 2007, the Essex County Prosecutor’s Office (ECPO) began to conduct
its own investigation, led by Defendant Detective Lieutenant Louis Carrega.
(Newark St. ¶58; Resp. to Newark St. ¶58.) Carrega testified at his 2020
deposition about Jack Eutsey, a retired Newark police detective who by 2007
had been hired by the ECPO. Carrega testified that Eutsey played a significant
role in the ECPO investigation. Eutsey never worked on the case while
employed by the NPD, but he harbored strong personal feelings about the case
having never been solved. According to Carrega, Eutsey felt that the
investigation by the NPD had been “fumbled from the beginning.” (Newark St.
¶¶60-61; Resp. to Newark St. ¶¶60-61.)
Carrega re-interviewed many of the same witnesses that Sabur had
interviewed a decade earlier. (Newark St. ¶84; Resp. to Newark St. ¶84.) In
particular, Carrega re-interviewed Robert Cutler, who again stated that he had
broken into Evans’s apartment shortly before the boys’ disappearance. (Cutler
Int., 9:3-12:25.) Carrega also located Maurice Olds in an attempt to interview
him, but Olds asked for “some time” to decide whether to give a statement and
never returned. When Carrega tried to locate Olds again, he learned that Olds
had passed away. (Newark St. ¶67; Resp. to Newark St. ¶67.)
In May 2008, Carrega requested assistance with the investigation from
the New Jersey State Police (NJSP) Missing Persons Unit. (Carrega St. ¶33;
Resp. to Carrega St. ¶33.) Defendant Detective William Tietjen was assigned to
help. (Tietjen St. ¶2; Resp. to Tietjen St. ¶2.) According to Tietjen’s investigation
report, Carrega and Tietjen met in May 2008 to discuss the case. Carrega
advised Tietjen that Evans, who remained a suspect in the case, still had ties to
the Newark area. Carrega also informed Tietjen that Evans had submitted to a
polygraph exam in 1978 and that the results were initially interpreted to mean
that Evans was being truthful about having no involvement in the boys’
disappearance. Later, however, a re-examination of the results indicated that
Evans had failed the polygraph. Carrega admitted at his deposition that he had
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no firsthand knowledge that Evans had failed the polygraph, but relied on the
representation of Eutsey, who had apparently learned this information from
Sabur. (Carrega St. ¶37; Resp. to Carrega St. ¶37; Tiet. 2008 Rep. 3; Newark
St. ¶74; Resp. to Newark St. ¶74.)
At some point, Carrega advised Tietjen that he was looking for Evans’s
cousin, Philander Hampton. Tietjen assisted by searching databases to see if
he could obtain any information on Hampton. (Tietjen St. ¶5; Resp. to Tietjen
St. ¶5.)
Sometime in May or June 2008, Defendant Detective Joseph Hadley of
the NPD Homicide Unit became involved in the investigation. (Newark St. ¶¶7576; Resp. to Newark St. ¶¶75-76.) There is a dispute among the witnesses as to
whether the ECPO or the NPD led the investigation from that point on. (Newark
St. ¶¶79-81; Resp. to Newark St. ¶¶79-81.)
C. Hampton’s confession
In November 2008, Carrega learned that Hampton had been arrested
pursuant to a traffic warrant and was being held at Essex County Jail. As
Hampton remained a person of interest in the case, Carrega arranged for
Hampton to be transported to the ECPO for an interview. (Carrega St. ¶¶43-44;
Resp. to Carrega St. ¶¶43-44; Newark St. ¶¶87-88; Resp. to Newark St. ¶¶8788.) Who was present for this interview, and what occurred during it, are both
highly contested.
With respect to the first question, it is undisputed that when Hampton
first arrived at the prosecutor’s office, only Carrega and Eutsey were present.
(Newark St. ¶91; Resp. to Newark St. ¶91.) According to Evans (relying on a
sworn statement from Hampton), at some point Tietjen and Hadley entered the
interview room and participated in the questioning. (Pl. St. ¶35.) According to
the defendants, Tietjen and Hadley were not involved in any questioning that
occurred at the prosecutor’s office, but were present during a recorded
statement that Hampton gave at the State Police Barracks later that day.
(Carrega Rep. 1-2; Newark St. ¶¶91-102; Tietjen St. ¶¶9-11.)

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With respect to the content of the interview, the defendants’ version is as
follows. Carrega and Eutsey questioned Hampton about his knowledge
regarding the disappearance of the five teenagers, and Hampton initially stated
that he had no information. (Carrega St. ¶46.) Carrega and Eutsey told
Hampton that they did not believe him and asked if he would be willing to
submit to a polygraph test. (Carreg Rep. 1-2.) Hampton agreed to do so.
(Carrega St. ¶46.) A polygraph test was conducted in a separate room by ECPO
Detective Thomas Kelly. (Carrega Rep. 2.) After the test, Kelly explained to
Hampton that the results revealed that he had been deceitful in his answers.
(Id.) Confronted with these results, Hampton stated, “OK, I guess it had to
come out someday, I’ll tell you what happened but you know it was Big Man
right?” (Id.) Carrega then asked if Hampton was willing to give a recorded
statement, and Hampton responded that he was. (Id.)
Carrega then contacted Tietjen and Hadley so that they could be present
for Hampton’s statement. (Id.) Carrega soon realized, however, that the video
recording equipment at the prosecutor’s office was not functioning. (Id.) By that
time, Tietjen and Hadley had arrived at the office, and Tietjen stated that the
recording equipment at the Newark State Police Barracks could be used
instead. Hampton consented to being transported there for the purpose of
providing a statement. (Id.)
En route to the barracks, Hampton, who was in a car with Carrega,
asked if Carrega wanted “to see where the kids were killed.” (Id.) Hampton then
directed Carrega to a location on Camden Street in Newark. Hampton stated
that he used to live on the top floor of a three-story house that was no longer
there, and that the missing boys were taken to that floor before they were
killed. (Id.) Upon hearing this, Carrega contacted ECPO’s crime scene unit. A
detective from the unit arrived and took photographs. Carrega and Hampton
then drove to the State Barracks, where Hampton was brought into an
interview room equipped with audio/visual equipment. (Id.) Hampton gave a

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recorded statement at that time in the presence of Carrega, Tietjen, and
Hadley. (Id.)
In the recorded interview, a transcript of which is in the record, Hampton
stated that Evans picked him up on August 20, 1978, with Maurice Olds and
two of the missing boys already in Evans’s truck. (Hampton St. 39:2-21; 49:1925.) Evans had already told Hampton that he intended to kill the five boys
because they had stolen marijuana from him. Hampton repeatedly indicated
that he did not believe Evans was serious; he thought Evans was only trying to
scare the boys. (Id. 40:12-14; 36:8-17; 51:23-52:1-9.)
Evans drove to the house on Camden Street where Hampton had lived
until that day, when he moved out. (Id. 14:11-21, 44:14-25.) Inside the house,
Evans passed Hampton a gun and told him to watch the boys until he got
back. (Id. 49:1-11.) Evans then went with Maurice Olds to pick up the other
three boys, after which he dropped Olds off at home. (Id. 49:15-21.) When
Evans returned with the three other boys, he forced all five boys into a closet
and nailed the closet shut. He poured gas all around the door and then asked
Hampton for a match. Hampton gave him a match, which Evans struck, and a
fire started. (Id. 54:7-18, 61:1-2.) Hampton and Evans then exited from the
house through the back entryway, and Evans drove Hampton home. (Id. 61:1017.) At the end of the interview, Hampton swore that everything he stated was
the truth and that he was not coerced into providing testimony. (Id. 74:1-19,
79:18-22.)
Evans’s version of the events leading up to Hampton’s recorded
statement differs significantly. Although Evans was not present for these
events, he relies on a sworn affidavit that Hampton executed in October 2020.
(Pl. St. ¶¶33-43.) According to the affidavit, after Hampton arrived at the
prosecutor’s office, Carrega and Eutsey told him that they knew that he had
helped Evans kill the boys in a fire on Camden Street. (Hampton Aff. ¶¶7-9.)
Hampton repeatedly responded that he knew nothing about the boys’
disappearance. (Id. ¶10.) Hadley and Tietjen arrived at the ECPO later on and

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joined in the interview. While Carrega did most of the questioning, Hadley and
Tietjen questioned Hampton as well. (Id. ¶11.)
Hampton continued to deny knowledge, while the defendants continued
to say that they already knew what had happened. (Id. ¶12.) Hampton then
agreed to take a polygraph test to prove that he was telling the truth, but after
the test, he was told that he failed. (Id.) At this point, Carrega became more
aggressive. (Id. ¶13.) Carrega, and later Hadley and Tietjen as well, told
Hampton that if he did not implicate Evans, he would be charged. (Id. ¶14.)
After many hours of questioning, it became clear to Hampton that the officers
would not let him go unless he told them something about Evans. (Id. ¶15.)
Eventually, he repeated the story that the officers had told him—about the
boys dying in a fire—in order to get out of custody. (Id.) Hampton told the
officers that he would say what they wanted him to say but that it was a lie.
(Id.)
After he agreed to repeat the false story, Hampton was transported to a
police station in a car driven by Carrega. (Id. ¶16.) On the way there, Carrega
went through the story that he wanted Hampton to repeat on video. He
explained what questions he would ask Hampton and then coached Hampton
as to how he should respond. (Id.) The story consisted of the following
elements: (1) Evans wanted to kill the boys because they stole his marijuana;
(2) Evans and Maurice Olds picked up two of the boys and brought them to
Hampton’s apartment on Camden Street and picked Hampton up on the way;
(3) Evans gave Hampton a gun to watch the boys and then left before returning
with the other boys, placing all five in a closet, and nailing the closet shut; (4)
Evans had a can of gasoline that he poured around the apartment; and (5)
Hampton gave Evans the match that he used to ignite the gasoline and the
building burned down. (Id. ¶17.)
Carrega also indicated on the way to the police station that he wanted to
stop at the Camden Street address where Hampton had lived. Once Carrega
and Hampton arrived at the Camden Street location, Hadley and Tietjen met

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them there. The latter two asked Hampton questions about what the building
looked like, what floor he lived on, and how someone would enter and leave the
building. As they asked him these questions, they also told him the story they
wanted him to repeat about Evans bringing the boys there and starting a fire.
(Id. ¶18.) Hampton was subsequently taken to the police station where he
relayed the false story in a recorded interview. (Id. ¶19.)
D. Continued investigation
Reports authored by Tietjen and Hadley detail their investigative
activities following Hampton’s alleged confession.
According to Tietjen’s report, several days after Hampton’s confession,
Tietjen located an article published in the Newark Star-Ledger in August 1978.
The article described a large fire that occurred on Camden Street at 12:54 A.M.
on August 21, 1978. (Newark St. ¶67; Resp. to Newark St. ¶67; Tiet. 2008 Rep.
9.)
According to Hadley’s report, in April 2009, Hadley and Defendant
Detective Sergeant Darnell Henry met with an officer who had investigated the
case of the missing boys in 1978. The officer provided them with a copy of a
Newark Fire Department report dated August 21, 1978. The report contained
statements from witnesses, one of whom indicated that he saw two Black males
running from the second floor of the home on Camden Street before the
building went up in flames. (Arson Rep. 1-2.)
Hadley also reported that he, along with other detectives, conducted
interviews with potential witnesses in December 2008 and January 2009.
These witnesses, some of whom had been interviewed by Hairston and ScottBey decades earlier, confirmed that Evans was the last person to be seen with
the boys prior to their disappearance. (Hadley Rep.)
E. March 2010 meeting
On March 22, 2010, Carrega met with Acting Prosecutor Robert Laurino,
Director of the Prosecutor’s Homicide Unit Gregoria DeMattia, and Chief of
Detectives Anthony Ambrose. (Newark St. ¶127; Resp. to Newark St. ¶127.)
Laurino testified that this meeting was “essentially a charging conference,”
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during which he received input from the individuals involved in the
investigation and ultimately made the decision to seek arrest warrants for
Hampton and Evans. (Laurino Dep. 22:22-23:09). Tietjen’s continuation report
states that Tietjen and Hadley were also present at this meeting. (Tiet. 2010
Rep. 1-2.) Tietjen testified, however, that the decision to charge Hampton and
Evans was made prior to the March 22, 2010, meeting and that he was not
involved in the decision-making process. (Tietjen Dep. 299:19-300:12.) Hadley
also denied involvement in any meetings or discussions regarding the decision
to seek arrest warrants for Hampton and Evans. (Hadley Dep. 259:16-19.)
That same day, March 22, 2010, Carrega signed a sworn affidavit in
support of arrest warrants for Hampton and Evans. (Carrega Aff.) Superior
Court Judge Peter Vazquez issued the requested warrants, and the two were
subsequently arrested. (Newark St. ¶¶131-32; Resp. to Newark St. ¶¶131-32.)
F. Hampton’s plea and Evans’s murder trial
On August 30, 2011, Hampton agreed to plead guilty to five counts of
felony murder and to testify against Evans at his criminal trial. In return, the
prosecutor agreed to recommend that Hampton’s sentence not exceed ten
years, and to support his release on parole after two years. Hampton’s plea
agreement was placed on the record before Judge Patricia Costello. During the
plea hearing, Hampton testified to the same facts as he did in his November
2008 statement. He also confirmed that the statement was accurate and that
he had not been coerced into pleading guilty. (Carrega St. ¶¶90-102; Resp. to
Carrega St. ¶¶90-102.) Prior to pleading guilty, Hampton moved to suppress
his confession on the ground that the defendants did not properly administer a
Miranda warning, but Judge Costello ruled that no Miranda violation had
occurred. (Newark St. ¶¶133-35; Resp. to Newark St. ¶¶133-35.)
Evans’s trial for the murder of the five boys began on October 28, 2011.
(Carrega St. ¶104; Resp. to Carrega St. ¶104.) Hampton provided two days of
sworn testimony, during which he repeated much of what he told to
investigators in November 2008. In particular, he stated that he was with
Evans when Evans locked the boys in a closet, nailed the closet shut, and
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started a fire. (Carrega St. ¶¶105-106; Resp. to Carrega St. ¶¶105-106.) When
asked why he confessed, Hampton responded: “‘Cause it was wearin’ me out –
he was wearin’ me down. You know, I been with this on my mind for 32 years.”
(Carrega St. ¶107; Resp. to Carrega St. ¶107.)
On November 23, 2011, Evans was acquitted of all charges. (Carrega St.
¶112; Resp. to Carrega St. ¶112.) Hampton, meanwhile, served seven years in
jail for his role in the murder of the five boys. Hampton’s convictions were
never overturned, and it does not appear that he ever appealed his convictions.
(Newark St. ¶¶155-57; Resp. to Newark St. ¶¶155-57.)
G. Evans sues, Hampton recants
On November 21, 2013, Evans commenced this lawsuit against the
police, prosecutors, and supervisory personnel involved in his criminal case.
(Newark St. ¶158; Resp. to Newark St. ¶158.) Nearly a year later, Evans filed an
amended complaint containing eight counts. (DE 33.) On May 10, 2016, the
Court granted in part and denied in part the defendants’ motions to dismiss
the amended complaint. (DE 71.)
The Court’s decision on the motions to dismiss left intact Evans’s claims
of malicious prosecution against Defendants Henry, Hadley, Carrega, and
Tietjen, asserted under New Jersey common law, the New Jersey Civil Rights
Act (NJCRA), and 42 U.S.C. § 1983. As to these four defendants, a § 1983
conspiracy claim also survived. With respect to the other defendants, the
opinion left intact a § 1983 supervisory liability claim against Defendant Mayor
Cory Booker and Police Director Gary McCarthy, as well as a § 1983 Monell
claim against the City of Newark.
On June 6, 2017, Hampton provided a notarized statement to
Investigator Maxwell Martins. (Newark St. ¶162; Resp. to Newark St. ¶162.) In
the statement, Hampton indicated that his November 2008 confession was
fabricated. He claimed that the “people involved were Mr. Peter Guarino,5 Det.

5

Peter Guarino was an Assistant Prosecutor at the ECPO.
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Joe Hadley, Lt. Correglia [sic], Trooper Tietjen, and others that I cannot recall
their names.” (Newark St. ¶163; Resp. to Newark St. ¶163.)
On October 27, 2020, Hampton signed an affidavit detailing the manner
in which his November 2008 confession was coerced and fabricated. (Newark
St. ¶165; Resp. to Newark St. ¶165.) Evans’s version of what occurred during
the 2008 interview of Hampton, described above, is based on this affidavit.
Hampton also indicated in his 2020 affidavit that his testimony at Evans’s trial
was false as well. (Hampton Aff. ¶22.)
The parties completed fact discovery in March 2021. (DE 181.) In August
2022, three separate summary judgment motions were filed by the remaining
defendants. One motion was filed by Defendant Tietjen of the NJSP (DE 232);
another was filed by Defendant Carrega of the ECPO (DE 234); and a third was
filed by Defendants Hadley, Henry, and McCarthy of the NPD, as well as former
Mayor Booker. I will refer to this third set of defendants collectively as the
“Newark Defendants”. (DE 233.)
II.

Legal standard
Summary judgment is proper if “there is no genuine dispute as to any

material fact [and] the movant is entitled to a judgment as a matter of law.” See
Kreschollek v. S. Stevedoring Co., 223 F.3d 202, 204 (3d Cir. 2000) (quoting
Fed. R. Civ. P. 56(a)). In deciding a motion for summary judgment, a court
must construe all facts and inferences in the light most favorable to the
nonmoving party. Boyle v. County of Allegheny, 139 F.3d 386, 393 (3d Cir.
1998).
The moving party bears the burden of establishing that no genuine issue
of material fact remains. Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).
“A fact is material if—taken as true—it would affect the outcome of the case
under governing law. And a factual dispute is genuine if the evidence is such
that a reasonable jury could return a verdict for the nonmoving party.” M.S. by
and through Hall v. Susquehanna Twp. Sch. Dist., 969 F.3d 120, 125 (3d Cir.
2020) (quotation marks and citation omitted).

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A court’s role in deciding a summary judgment motion is “circumscribed
in that in that it is inappropriate for a court to resolve factual disputes and to
make credibility determinations.” Big Apple BMW, Inc. v. BMW of N. Am., Inc.,
974 F.2d 1358, 1363 (3d Cir. 1992). Those are issues for the jury. The critical
question at the summary judgment stage is whether there is a need for a trial
so that the jury can consider disputed facts or credibility questions. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). If yes, the motion must be
denied.
III.

Discussion

A handful of threshold issues warrant discussion at the outset. To start,
the defendants6 offer two arguments as to why Hampton’s 2017 statement and
2020 affidavit would be inadmissible at trial and thus cannot be considered at
the summary judgment stage. First, they argue that both documents contain
hearsay statements that cannot be introduced at trial because Hampton is not
a competent witness. (Carrega MSJ 28-22; Tietjen Repl. 2-5.) Second, they
contend that the 2020 affidavit is a sham affidavit. (Carrega MSJ 34-41;
Newark MSJ 19-21.)
Separately, the defendants argue that Evans is barred from bringing his
malicious prosecution claim by two distinct but related doctrines: collateral
estoppel and the Heck doctrine. I will address the arguments related to the
admissibility of the 2017 statement and 2020 affidavit before turning to
whether Evans is barred from bringing a malicious prosecution claim on
grounds of collateral estoppel or Heck. Finally, I will address the defendants’
argument that Evans’s claim under the New Jersey Civil Rights Act (NJCRA)
must be dismissed because malicious prosecution is not a constitutional claim
under New Jersey law.

Although they filed separate motions for summary judgment, the defendants
generally make the same arguments and have aligned interests. I therefore will refer to
the defendants collectively for the most part. Where it makes sense to do so, I will refer
to the defendants individually.
6

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A. Are Hampton’s 2017 statement and 2020 affidavit inadmissible
as hearsay?
“It is well settled that only evidence which is admissible at trial may be
considered in ruling on a motion for summary judgment.” Countryside Oil Co.,
Inc. v. Travelers Ins. Co., 928 F. Supp. 474, 482 (D.N.J. 1995). Indeed, Fed. R.
Civ. P. 56(c) provides that a party may argue that certain material in the record
“cannot be presented in a form that would be admissible in evidence” and that,
as a result, the material cannot be relied on to create or negate a genuine
factual dispute.
Nonetheless, material that is “capable of being admissible at trial” can be
considered on a summary judgment motion. Petruzzi's IGA Supermarkets, Inc.
v. Darling-Delaware Co., 998 F.2d 1224, 1234, n. 9 (3d Cir. 1993) (emphasis
added). To take the most obvious example, an affidavit itself is an out-of-court
statement, but it is commonly considered as a proffer of what the affiant would
testify to at trial. More broadly, even if evidence is not admissible in the form
submitted by the party on summary judgment, it may be considered if it could
meet the requirements for admissibility at trial. For instance, “hearsay evidence
produced in an affidavit opposing summary judgment may be considered if the
out-of-court declarant could later present that evidence through direct
testimony, i.e. ‘in a form that would be admissible at trial.’” Williams v. Borough
of W. Chester, Pa., 891 F.2d 458, 465, n. 12 (3d Cir. 1989).
Of course, the defendants are correct that Hampton’s 2017 statement
and 2020 affidavit are not by themselves admissible at trial. Both documents
are, and contain, out-of-court statements that would be offered to prove the
truth of what they assert: most pertinently, that Hampton was coerced into
giving a false confession in November 2008. See Fed. R. Evid. 801(c). The
underlying question is whether Hampton, as declarant, could present this
evidence on the witness stand at trial. The answer is no, according to the
defendants, because Hampton lacks a present recollection of his 2008
statement and thus is not competent to testify about it. (Carrega MSJ 33.)

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Under Federal Rule of Evidence 601, every witness is presumed to be
competent to testify. A witness may not be competent, however, if the witness
does not have personal knowledge of the matter about which he or she will
testify. See Fed. R. Evid. 602. “Knowledge as required by Rule 602 includes
‘awareness of objects or events,’ comprised of (1) sensory perception; (2)
comprehension about what was perceived; (3) present recollection; and (4) the
ability to testify about what was perceived.” Keiser v. Borough of Carlisle, No.
1:15-CV-450, 2017 WL 4075057, at *5 (M.D. Pa. Sept. 14, 2017) (quoting C.
Wright and V. Gold, 27 Federal Practice and Procedure § 6023 (West 1990)).
During his deposition, Hampton testified that he could not remember
many of the particulars of his allegedly coerced confession. For example, when
initially asked if he remembered giving a statement to Carrega in 2008, he
stated multiple times that he did not. (Hampton Dep. 121:12-20, 130:15-18,
134:3-5, 15-17.) He similarly testified that he had no memory of having a
conversation with Tietjen or of Tietjen asking him any questions on the day of
his confession. (Id. 224:23-25, 227:8-10.) While he did recall speaking with
Hadley at some point, he said he currently had “no clue” what the conversation
was about. (Id. 124:11-125:6.)
Similarly, when presented with his 2017 statement -- in which he
asserted that his confession was fabricated and that the people involved
included Hadley, Carrega, and Tietjen -- Hampton testified that he could not
remember if he had actually told the investigator that. (Id. 166:23-167:25.) He
testified that he “might have” done so, but he could not recall. (Id.)
On the other hand, Hampton testified that he did remember signing his
2020 affidavit and confirming its accuracy. (Id. 186:19-187:5.) When plaintiff’s
counsel read aloud portions of the 2020 affidavit and asked Hampton if what
she read was true, Hampton confirmed that it was. (Id. 188:1-197:15.) In
particular, he confirmed that Carrega fabricated a statement and that Carrega
and the other detectives, including Hadley and Tietjen, coerced Hampton into
giving that statement. (Id. 192:12-20, 194:1-24.)

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It should be noted that whether a witness is competent to testify is left to
the discretion of the district court. See United States v. Lake, 150 F.3d 269,
273 (3d Cir. 1998). The Advisory Committee Notes to Rule 601 provide that this
“[d]iscretion is generally exercised in favor of allowing the testimony.” As the
Notes explain, “[t]he question is one particularly suited to the jury as one of
weight and credibility, subject to judicial authority to review the sufficiency of
the evidence.” Thus, as another court in this Circuit has observed, the Federal
Rules of Evidence “largely convert issues of competency into ones of
credibility.” United States v. Bevans, 728 F. Supp. 340, 347 (E.D. Pa.
1990), aff'd, 914 F.2d 244 (3d Cir. 1990).
It cannot be denied that Hampton provided conflicting testimony at his
deposition. At points he insisted that he could not remember his 2008
confession at all, while at other points he represented that he could. In light of
this conflicting testimony, the issue is one of credibility rather than
competency. Whether Hampton can remember his 2008 confession is a
question that will appropriately be put to a jury should the case proceed to
trial.
Hampton consistently testified that he could not remember giving his
2017 statement, rendering its admissibility highly problematic.7 Evans seems
to concede as much; his opposition briefs suggest that he is relying solely on
Hampton’s 2020 affidavit to support his argument that Hampton will testify, in
admissible form, that his 2008 confession was coerced. I will therefore treat the
content of the 2020 affidavit, but not the 2017 statement, as material that is
“capable of being admissible at trial.” Petruzzi's, 998 F.2d at 1234.
B. Is Hampton’s 2020 affidavit a sham affidavit?
The defendants argue that even if Hampton is a competent witness, the
Court still may not consider the 2020 affidavit when ruling on the summary
judgment motions because it is a sham affidavit.

I do not opine as to whether his lack of memory could be used as impeachment
material.
7

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Under the “sham affidavit doctrine,” “‘a party may not create a material
issue of fact to defeat summary judgment by filing an affidavit disputing his or
her own sworn testimony without demonstrating a plausible explanation for
the conflict.’” Jiminez v. All American Rathskeller, Inc., 503 F.3d 247, 251
(2007) (quoting Baer v. Chase, 392 F.3d 609, 624 (3d Cir. 2004)). In a seminal
case on the doctrine, the Second Circuit observed that “‘[i]f a party who has
been examined at length on deposition could raise an issue of fact simply by
submitting an affidavit contradicting his own prior testimony, this would
greatly diminish the utility of summary judgment as a procedure for screening
out sham issues of fact.’” Jiminez, supra, at 252 (quoting Perma Research &
Development Co. v. Singer Co., 410 F.2d 572, 577-78 (2d Cir. 1969)). The sham
affidavit doctrine is thus a means of “sorting the wheat from the chaff.”
Jimenez, supra, at 253.
The main reasoning behind the doctrine is that the “‘deposition of a
witness will usually be more reliable than his affidavit.’” Jimenez, supra
(quoting Perma Research, 410 F.2d at 578). Depositions carry an increased
level of reliability given that they are adversarial in nature and provide the
opportunity for cross-examination. Jimenez, supra (citing Darnell v. Target
Stores, 16 F.3d 174, 176 (7th Cir. 1994). Affidavits, by contrast, are typically
drafted by counsel and often consist of “‘efforts to patch up a party’s deposition
with his own subsequent affidavit.’” Jimenez, supra (quoting Russell v. AcmeEvans Co., 51 F.3d 64, 67-68 (7th Cir. 1995)).
The defendants maintain that Hampton’s 2020 affidavit contradicts his
November 2008 statement to investigators, his testimony at his plea hearing,
and his testimony at Evans’s trial. They claim that the affidavit is being
introduced solely for the purpose of defeating summary judgment and therefore
qualifies as a sham affidavit. (Carrega MSJ 36-37.)
In concluding that an affidavit is a sham affidavit, a judge essentially
determines that no reasonable jury could accord it evidentiary weight. See
Jimenez, 503 F.3d at 253. I cannot make such a conclusion here, particularly

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in light of the fact that Hampton was deposed two years after executing the
2020 affidavit, and was questioned at length about its substance.
Because Hampton was deposed after he executed the 2020 affidavit, each
of the defendants’ attorneys had an opportunity to conduct cross-examination
regarding the affidavit and its contents. As discussed above, Hampton affirmed
the accuracy of the affidavit at his deposition. True, Hampton also testified at
times that he could not remember the events detailed in the affidavit, but
Hampton’s deposition testimony may be used at trial to discredit him in front
of the jury. The jury can then decide whether to accord the affidavit any
evidentiary weight.
I also note that Hampton has put forth an explanation as to why his
2020 affidavit contradicts his prior sworn testimony. See Jimenez, 503 F.3d at
254 (a contradictory affidavit is not a sham if the affiant offers a “satisfactory
explanation” for the conflict between the prior testimony and the affidavit). The
affidavit itself states that Hampton agreed to give a false statement because the
defendants promised that he would not be charged if he did so. With respect to
pleading guilty and testifying at Evans’s trial, the affidavit indicates that he
agreed to do both in exchange for a favorable sentencing recommendation from
the prosecutor. The affidavit states, “I knew that if I did not go along with the
story, I would lose my deal and possibly spend the rest of my life in prison.”
(Hampton Aff. ¶22.)
The defendants reject this explanation on the ground that Hampton
never alleged that his confession was coerced during the time he spent in
prison. Rather, Hampton completed his sentence, and only after Evans sued
did Hampton change his story. (Newark MSJ 20.) Whether Hampton’s
explanation is “satisfactory,” however, is a question I need not and should not
decide, as it goes to the heart of Hampton’s credibility, which will be central to
any trial of this case. At any rate, the timing of his deposition defeats the
argument that his 2020 affidavit may be disregarded as a sham, produced after
the fact to defeat summary judgment. Such arguments may, however, be made
to the jury.
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C. Is Evans’s claim barred by collateral estoppel?
The defendants argue that Hampton (and derivatively Evans) is
collaterally estopped from claiming that Hampton’s confession was coerced.
Although Hampton challenged the admissibility of his confession in his
criminal case under Miranda, he did not challenge its admissibility on the
ground that it was coerced, despite having the opportunity to do so. Moreover,
in the course of denying his Miranda challenge, the Superior Court Judge ruled
that Hampton’s confession was knowing and voluntary. The defendants
maintain that Hampton may not now relitigate this issue, and that therefore,
neither can Evans. (Newark MSJ 22-23.)
“Collateral estoppel operates to bar ‘successive litigation of an issue of
fact or law actually litigated and resolved in a valid court determination.’”
Nationwide Mut. Fire Ins. Co. v. George V. Hamilton, Inc., 571 F.3d 299, 310 (3d
Cir. 2009) (quoting New Hampshire v. Maine, 532 U.S. 742, 748-49 (2001)).
Congress has instructed federal courts to give preclusive effect to State court
judgments whenever the courts of the State from which the judgment was
entered would do so. Delaware River Port Auth. v. Fraternal Ord. of Police, 290
F.3d 567, 572-573 (3d Cir. 2002) (citing Allen v. McCurry, 449 U.S. 90, 96
(1980)). As a result, “[a] federal court looks to the law of the adjudicating state
to determine its preclusive effect.” Delaware River, supra, at 573 (citing
Greenleaf v. Garlock, Inc., 174 F.3d 352, 357 (3d Cir.1999)).
In New Jersey, “courts apply a five-pronged test to determine whether
collateral estoppel should bar relitigation of an issue: (1) the issue must be
identical; (2) the issue must have actually been litigated in a prior proceeding;
(3) the prior court must have issued a final judgment on the merits; (4) the
determination of the issue must have been essential to the prior judgment; and
(5) the party against whom collateral estoppel is asserted must have been a
party or in privity with a party to the earlier proceeding.” Delaware River, supra
(quoting In re Estate of Dawson, 641 A.2d 1026, 1034-35 (N.J. 1994)). Even
assuming arguendo that the first four elements of this test are met, collateral

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estoppel does not bar Evans’s claim because he was neither a party to
Hampton’s criminal proceeding nor in privity with Hampton at the time of the
proceeding.
The notion that collateral estoppel only bars the claim of a party to the
earlier proceeding, or a party in privity with a party to the earlier proceeding,
arises from principles of due process. Nationwide, 571 F.3d at 310. Every
litigant is entitled to a day in court and to be heard. State v. K.P.S., 221 N.J.
266, 277–78 (2015). To protect this basic right, courts will not apply collateral
estoppel to a party who did not have a “‘full and fair opportunity to litigate the
issue.’” Id. (Quoting Zirger v. Gen. Accident Ins. Co., 144 N.J. 327, 338 (1996)).
While the collateral estoppel concept of “privity” is ill-defined,
Nationwide, 571 F.3d at 310, the New Jersey Supreme Court has suggested
that the determinative question is whether one party was the “virtual
representative” of the other, in the sense that the former could control the
arguments of the latter. K.P.S., 221 N.J. at 278. In a somewhat analogous case,
the Court held that privity did not exist between two co-defendants where each
“was represented by his own attorney, each submitted a separate brief, and
each had the right to advance arguments with supporting authority
emphasizing his individual viewpoint.” Id. at 278-79.
Here, there is no evidence in the record that Hampton was Evans’s
“virtual representative” during Hampton’s criminal proceeding. Indeed, there is
no indication that Evans had any involvement in or control over Hampton’s
litigation of his criminal case. Consequently, Evans did not have a “full and fair
opportunity to litigate” the issue of whether Hampton’s confession was coerced.
I therefore conclude that collateral estoppel does not bar Evans from litigating
this issue now.
D. Is Evans’s § 1983 claim barred by the Heck doctrine?
In Heck v. Humphrey, 512 U.S. 477 (1994), the Supreme Court held that
in order to recover damages pursuant to § 1983 for an allegedly
unconstitutional conviction or term of imprisonment, a plaintiff must prove

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that the conviction or sentence has been invalidated. Id. at 486-87. Under what
has come to be known as the “Heck preclusion doctrine”, a plaintiff cannot
maintain a § 1983 claim if the success of that claim would necessarily imply
the invalidity of a prior conviction or sentence. Jefferson v. Lias, 21 F.4th 74,
86 (3d Cir. 2021).
The defendants argue that Evans’s § 1983 malicious prosecution claim is
barred by Heck because it would necessarily imply the invalidity of Hampton’s
criminal conviction. Evans’s claim can succeed only if he proves that Hampton
was coerced into confessing, the defendants say. But that same evidence would
be inconsistent with Hampton’s conviction, which was based entirely on his
confession having been found to be truthful and voluntary. (Newark MSJ 2327; Carrega MSJ 42-45; Tietjen MSJ 32-35.)
As Evans points out, the Heck decision concerned the relationship
between a prisoner’s § 1983 suit and his own criminal conviction. While he was
serving a fifteen-year sentence for manslaughter, Heck brought a § 1983 action
against prosecutors and police on the ground that they engaged in an unlawful
investigation that led to his arrest, knowingly destroyed exculpatory evidence,
and used an unlawful voice identification procedure at his trial. Heck, 512 U.S.
at 478-79. The Court concluded that because Heck’s conviction had not been
overturned or otherwise invalidated, his suit for damages could not succeed.
Evans thus argues that the Heck doctrine only bars a § 1983 claim that, if
successful, would imply the invalidity of the plaintiff’s own conviction or
sentence; it does not apply here, where a successful claim would imply the
invalidity of an accomplice’s conviction. (Opp. to Newark MSJ 22-24.)
The defendants rely on a Ninth Circuit decision to support extension of
the Heck bar to the § 1983 claims of an accomplice. In Beets v. County of Los
Angeles, 669 F.3d 1038 (9th Cir. 2012), a police officer fatally shot a man who
was driving a truck toward him, prompting the parents of the deceased driver
to bring a § 1983 action against the officer on the ground of excessive force. Id.
at 1040. Prior to the commencement of the civil suit, the passenger in the truck

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was convicted of aiding and abetting the driver’s assault on the officer. Id. at
1040-41. The Ninth Circuit concluded that Heck barred the parents’ § 1983
claim because its success would necessarily imply the invalidity of the
passenger’s criminal conviction. Id. at 1046-48.
The Beets Court reasoned that the jury that convicted the passenger of
aiding and abetting the driver’s assault had necessarily found facts that would
be inconsistent with a successful claim by the driver’s parents. Beets, 669 F.3d
at 1045. In particular, the jury found that the passenger acted willfully against
a police officer who was lawfully performing his duties and not using excessive
force. Id. Consequently, any recovery by the drivers’ parents on the ground that
the officer used excessive force would be contrary to the jury’s determination.
Id.
The Third Circuit has yet to consider this precise application of Heck.
However, in Eberhardinger v. City of York, 782 F. App'x 180 (3d Cir. 2019), the
Court recognized in a footnote that Heck “has been applied to bar a third
party’s § 1983 suit only where the convict was the third party’s accomplice.” Id.
at 183, n. 2. (Emphasis in original.) The Court cited Beets, as well as a Sixth
Circuit decision holding that Heck does not apply to third-party § 1983 claims.
See Hayward v. Cleveland Clinic Found., 759 F.3d 601, 616 (6th Cir. 2014). In
the Sixth Circuit decision, the § 1983 plaintiffs were not the accomplices of the
convicted person.
The footnote in Eberhardinger suggests that the Third Circuit might
follow the lead of Beets and Hayward if presented with the opportunity. In
other words, the Third Circuit might decide that Heck bars the § 1983 suit of a
third party where that third party is the convicted person’s accomplice.
Nonetheless, the circumstances at issue here involve a factual wrinkle that has
not, as far as this Court is aware, been addressed. Namely, Evans himself was
acquitted of the criminal charges he faced for the murder of the five boys.
Evans’s acquittal is thus already at odds with Hampton’s conviction. And if
Evans were to succeed on his malicious prosecution claim, it would be entirely

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consistent with the jury’s conclusion in his own criminal case. The real
inconsistency, then, is between the results of the two criminal cases. Where the
plaintiff’s own acquittal is consistent with the theory of his civil suit, it makes
little sense to bar that same suit as being inconsistent with someone else’s
conviction; that would press the Heck doctrine beyond its reasonable rationale.
It is also worth noting that the Heck rule is already incorporated in the
elements of a malicious prosecution claim. To prevail on a malicious
prosecution claim under § 1983, a plaintiff must show that the criminal
proceeding ended in his or her favor. Zimmerman v. Corbett, 873 F.3d 414, 418
(3d Cir. 2017). This requirement avoids parallel litigation over issues of
probable cause and guilt, and prevents a convicted individual from mounting a
collateral attack on his or her conviction through the vehicle of a civil suit.
Heck, 512 U.S. at 484. Indeed, the Supreme Court’s decision in Heck was in
part motivated by the recognition that this same requirement should apply to
other § 1983 claims that present similar concerns for finality and consistency.
Id. at 486 (“We think the hoary principle that civil tort actions are not
appropriate vehicles for challenging the validity of outstanding criminal
judgments applies to § 1983 damages actions that necessarily require the
plaintiff to prove the unlawfulness of his conviction or confinement, just as it
has always applied to actions for malicious prosecution.”) (Emphasis added.)
One could reasonably conclude that the Heck doctrine, as such, is redundant
as to malicious prosecution claims, which contain their own quasi-Heck
requirement to ensure finality and consistency. See Poventud v. City of New
York, 750 F.3d 121, 131 (2d Cir. 2014) (“In the context of § 1983 malicious
prosecution cases, Heck's bar is coextensive with the favorable termination
requirement.”)
There is another factual wrinkle that weighs against applying Heck in the
present circumstances: Hampton is no longer in custody. In Heck, the Supreme
Court discussed the overlap between the federal habeas corpus statute, which
requires a state prisoner to exhaust state remedies before challenging his or

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her confinement, and § 1983, which contains no exhaustion requirement. 512
U.S. at 480-81. Recognizing the potential for conflict between these two
provisions, the Court concluded that a § 1983 claim is not cognizable where
the underlying conviction or confinement is still valid. In a later decision, five
justices of the Supreme Court proposed, in dicta, a sort of division of labor
between the two provisions: Heck, they stated, does not bar the § 1983 claim of
a former prisoner who is no longer in custody and thus has no means of
challenging his conviction through a habeas petition. Spencer v. Kemna, 523
U.S. 1, 21, 25, n. 8 (1998) (Souter, J., concurring), (Ginsburg, J., concurring),
(Stevens, J., dissenting). As Justice Souter explained, a former prisoner is
entitled to seek relief under § 1983 “without being bound to satisfy a favorabletermination requirement that it would be impossible as a matter of law for him
to satisfy.” Id. at 21.
Although the Third Circuit has yet to rule on this issue, district courts
within the Second Circuit have adopted the Spencer Justices’ division-of-labor
view. See Opperisano v. P.O. Jones, 286 F. Supp. 3d 450, 458 (E.D.N.Y. 2018)
(noting that while “district courts within the Second Circuit have reached
different conclusions as to whether a claimant may bring a section 1983
damages claim when the claimant is no longer in custody . . . many district
courts routinely allow section 1983 claims to proceed whenever habeas relief is
unavailable”). Applying this view here, because Hampton is no longer in
custody and has no means of invalidating his conviction, Heck would not bar
Hampton from pursuing a § 1983 action alleging that his conviction was
unlawful. By the same token, Heck should not bar Evans from pursuing a
§ 1983 claim out of some concern that Evans’s success would imply the
invalidity of Hampton’s conviction.
In sum, even if the Third Circuit were to apply the Heck doctrine to the
§ 1983 claims of an accomplice—which it has yet to do—there are good reasons
not to apply Heck here. Chief among them is that Evans was acquitted of all
charges related to the underlying alleged crime, and thus there would be no

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inconsistency between Evans’s malicious prosecution claim, should it succeed,
and the termination of his own criminal proceeding. I therefore conclude that
Evans’s § 1983 malicious prosecution claim is not barred by Heck.
E. Must Evans’s NJCRA claim be dismissed?
The defendants argue that Evans’s NJCRA claim fails because malicious
prosecution is not a constitutional claim under New Jersey law as it is under
federal law. (Tietjen MSJ 30-31.) Evans offers no argument in response. It
appears that the defendants are correct.
Section 1983 and the NJCRA are usually interpreted in parallel, often
with little discussion or analysis. Martin v. Unknown U.S. Marshals, 965 F.
Supp. 2d 502, 548 (D.N.J. 2013), aff'd sub nom. Est. of Martin v. U.S. Marshals
Serv. Agents, 649 F. App'x 239 (3d Cir. 2016). Nevertheless, the New Jersey
Supreme Court has identified “two distinct differences” between the two
statutes. Tumpson v. Farina, 218 N.J. 450, 477 (2014). As relevant here, the
Court has observed that while § 1983 “provides remedies for deprivation of
both procedural and substantive rights,” the NJCRA “provides remedies only
for the violation of substantive rights.” Tumpson, supra.
A malicious prosecution claim is grounded in a denial of procedural due
process. The claim requires a showing that a criminal proceeding was initiated
against the plaintiff without probable cause, and that the plaintiff was deprived
of his or her liberty as a result. That is the essence of a procedural due process
claim. See Hill v. Borough of Kutztown, 455 F.3d 225, 233–34 (3d Cir. 2006)
(citing Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir. 2000)) (“To state a claim
under § 1983 for deprivation of procedural due process rights, a plaintiff must
allege that (1) he was deprived of an individual interest that is encompassed
within the Fourteenth Amendment's protection of ‘life, liberty, or property,’ and
(2) the procedures available to him did not provide ‘due process of law.’”)
In Falat v. Cnty. of Hunterdon, No. A-2479-15T1, 2018 WL 3554139, at
*7 (N.J. Super. Ct. App. Div. July 25, 2018), the New Jersey Appellate Division
noted that “malicious prosecution under New Jersey law has developed

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through case law, and it is not a constitutional claim as it is under federal law.”
The Court thus concluded that the plaintiff’s NJCRA claim for malicious
prosecution was properly dismissed and could not be legally salvaged by an
amended complaint. In line with this decision and with the New Jersey
Supreme Court precedent discussed above, I conclude that Evans cannot
pursue a malicious prosecution claim under the NJCRA, but only under § 1983
and New Jersey common law. I will therefore grant summary judgment
dismissing Count 4.
*

*

*

Having addressed those threshold issues, I proceed to the defendants’
arguments that there is insufficient evidence in the record to support Evans’s
claims. Before doing so, however, I note that Evans has conceded that his
claims against Defendant Henry of the NPD lack evidentiary support.8 In
addition, Evans has conceded that summary judgment must be granted as to
his Monell claim against the City of Newark as he did not obtain meaningful
discovery on the issue. (Opp. to Newark MSJ 25.) Finally, as to the motion for
summary judgment on the claim of supervisory liability against former Mayor
Booker and Police Director McCarthy, Evans did not offer any argument in
opposition. I will therefore treat this claim, as well as the Monell claim and all

In his opposition brief to the Newark Defendants’ summary judgment motion,
Evans expressly notes that “[a]lthough Defendant Henry was present at the New
Jersey State Police Barracks when Hampton made his 2008 video-recorded statement,
the transcript does not reflect that he participated in the interview.” Evans also notes
that “Hampton does not identify Henry in his 2020 affidavit or his 2022 deposition
testimony as having participated in his interrogation at the Essex County Prosecutor’s
Office.” (Opp. to Newark MSJ 8, n. 2.) Thus, Evans argues only that a reasonable jury
could find that Defendant Hadley maliciously prosecuted Evans; he does not appear to
dispute that no reasonable jury could find that Henry engaged in malicious
prosecution.
8

With respect to the claim of conspiracy, Evans does not expressly state that
there is no evidence to support this claim against Henry, but he implies as much. He
does not mention Henry’s name at all in his argument, focusing solely on “Carrega,
Hadley, and Tietjen.” (Opp. to Newark MSJ 24.)
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claims against Defendant Henry, as having been voluntarily withdrawn. The
remaining analysis proceeds on that basis.
F. Malicious prosecution
To succeed on a § 1983 malicious prosecution claim, a plaintiff must
establish by a preponderance of the evidence that “(1) the defendants initiated
a criminal proceeding; (2) the criminal proceeding ended in [his] favor; (3) the
defendants initiated the proceeding without probable cause; (4) the defendants
acted maliciously or for a purpose other than bringing the plaintiff to justice;
and (5) [he] suffered deprivation of liberty consistent with the concept of seizure
as a consequence of a legal proceeding.” Zimmerman, 873 F.3d at 418. Under
New Jersey common law, a malicious prosecution tort claim consists of these
first four elements, but the plaintiff need not show the fifth, i.e., that he
suffered a deprivation of liberty. Trabal v. Wells Fargo Armored Serv. Corp., 269
F.3d 243, 248 (3d Cir. 2001).
The defendants do not dispute that the criminal proceeding against
Evans ended in his favor, nor do they dispute that he suffered a deprivation of
liberty. Rather, Tietjen and Hadley argue that the record does not support a
finding that they personally initiated a criminal proceeding against Evans, as
Carrega, not they, signed the affidavit in support of Evans’s arrest warrant.
(Tietjen MSJ 13; Newark MSJ 12.) Tietjen and Hadley further argue, as does
Carrega, that there is insufficient evidence to support a finding that they acted
without probable cause and with malice. (Tietjen MSJ 6-11, 29-30; Carrega
MSJ 12-18; Newark MSJ 11.) I will address these arguments in turn.
i.

Could a reasonable jury find that Tietjen and Hadley initiated a
criminal proceeding against Evans?
The Third Circuit has instructed that if an officer “influenced or

participated in the decision to institute criminal proceedings,” that officer can
be liable for malicious prosecution. Halsey v. Pfeiffer, 750 F.3d 273, 297 (3d
Cir. 2014) (citing Sykes v. Anderson, 625 F.3d 294, 308–09, 317 (6th Cir.
2010)). Based on the evidence in the record, a reasonable jury could find that
both Tietjen and Hadley initiated a criminal proceeding against Evans by either
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participating in or influencing the decision to charge Evans with the murder of
the five boys.
The record indicates that on March 22, 2010—earlier on the same day
that Carrega presented his affidavit in support of the arrest warrants to the
Superior Court—a meeting was held at the Essex County Prosecutor’s Office.
Present at the meeting were Prosecutor Laurino, other senior officials from the
ECPO, and Defendants Tietjen, Carrega, and Hadley. Defendant Henry and
another NPD detective were also present. (Tiet. 2010 Rep. 1-2.) The record
contains conflicting evidence as to what occurred at this meeting.
Tietjen’s investigative report states generally that “[t]he purpose of the
meeting was to discuss the progress of the investigation and the authorization
of arrest warrants for both Lee A. Evans and Philander Hampton.” (Id. at 2.) At
his deposition, Tietjen testified that the decision to initiate charges against
Evans and Hampton had already been made by the time of the meeting and
that he had no knowledge of who made the decision or what led to it. (Tietjen
Dep. 299:19-300:12.) Similarly, Hadley testified that he was not part of any
meetings or discussions that involved deciding whether to seek the arrest
warrants. (Hadley Dep. 259:16-19.)
On the other hand, according to Prosecutor Laurino, the March 2010
meeting was “essentially a charging conference.” (Laurino Dep. 22:23-23:5.)
Laurino—who made the final decision to seek the warrants (Id. 19:17-21.)—
testified that during the meeting they “went through the evidence” and he “got
everybody’s opinion and as to the case and then ultimately decided to go
forward with the – the prosecution as there is sufficient probable cause to go
forward to do so.” (Id. 23:5-9.) When asked if there were any prior meetings on
the subject of seeking arrest warrants, Laurino stated that although he had
materials to review in advance and ask questions about, the March 2010
meeting “was the formal sit-down that we had prior to actual charging.” (Id.
25:11-22.) While Laurino was not able to recall the exact day of the meeting or

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all of the individuals who attended, he confirmed that Tietjen’s report provided
an “accurate rendering of . . . [the] charging conference.” (Id. 24:9-25:10.)
Viewing this evidence in its entirety, there is a genuine dispute of fact as
to what occurred at the March 2010 meeting. A reasonable jury could find,
based on Laurino’s testimony, that the meeting was a discussion that resulted
in Laurino’s decision to seek an arrest warrant for Evans. A reasonable jury
could also find that Hadley and Tietjen participated in or influenced that
decision, as they were both present at the meeting and had knowledge of the
investigation, and Laurino stated that he “got everybody’s opinion” at the
meeting as to whether there was probable cause to move forward.
Cumulatively, this evidence is sufficient to support a conclusion that Hadley
and Tietjen were personally involved in initiating a criminal proceeding against
Evans.
ii.

Could a reasonable jury find that Carrega, Tietjen, and Hadley
acted without probable cause and with malice?
“Probable cause to arrest exists when the facts and circumstances within

the arresting officer's knowledge are sufficient in themselves to warrant a
reasonable person to believe that an offense has been or is being committed by
the person to be arrested.” Orsatti v. New Jersey State Police, 71 F.3d 480, 483
(3d Cir. 1995) (citing United States v. Cruz, 910 F.2d 1072, 1076 (3d Cir.
1990)). Put differently, “probable cause exists if there is a ‘fair probability’ that
the person committed the crime at issue.” Wilson v. Russo, 212 F.3d 781, 789–
90 (3d Cir. 2000) (citing Sherwood v. Mulvihill, 113 F.3d 396, 401 (3d Cir.
1997)).
To demonstrate a lack of probable cause where, as here, an officer
applied for and was issued a warrant by a judge, a plaintiff must show “(1) that
the police officer ‘knowingly and deliberately, or with a reckless disregard for
the truth, made false statements or omissions that create a falsehood in
applying for a warrant;’ and (2) that ‘such statements or omissions are
material, or necessary, to the finding of probable cause.’” Wilson, 212 F.3d at
786-787 (quoting Sherwood,113 F.3d at 399). “An assertion is made with
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reckless disregard when ‘viewing all the evidence, the affiant must have
entertained serious doubts as to the truth of his statements or had obvious
reasons to doubt the accuracy of the information he reported.’” Wilson, supra,
at 788 (quoting United States v. Clapp, 46 F.3d 795, 801, n. 6 (8th Cir.1995)).
And an assertion is material if, after excising the inaccuracies or inserting the
recklessly omitted information, the warrant affidavit would not establish
probable cause. Wilson, supra, at 789.
I begin with the involvement of Carrega, who drafted the affidavit. The
affidavit contains the following paragraph regarding Hampton’s confession:
On November 13, 2008, Philander Hampton was
interviewed by Lt. Louis Carrega, ECPO, Det. Joseph
Hadley, NPD and Det. Trooper William Tietjen, NJSP.
Hampton stated to officers that he resided on the third
floor of 256 Camden Street aforesaid and that he
moved out on Saturday, August 19, 1978. Hampton
stated that he participated in the murder of the five
missing boys and that he was assisting his cousin Lee
Evans, who he knew wanted to kill the boys. Philander
Hampton stated that he held two of the boys at gun
point at 256 Camden Street while Lee Evans rounded
up the other three boys. Hampton stated that the five
boys were then put in a closet, the closet was nailed
shut and the room was doused with gasoline. Lee
Evans lit the house on fire. Hampton further stated
that he and Lee Evans ran out from the back of the
house.
(Carrega Aff. ¶11.)
Construing the disputed facts in favor of Evans, which I must do at this
stage, this paragraph contains an obvious omission: that Hampton repeatedly
denied involvement in or knowledge of the boys’ disappearance and merely
agreed to repeat a false story fed to him by the investigating officers. Assuming
as I must on this motion that the story was concocted, the omission of that fact
would undoubtedly be reckless, as Carrega participated in the interview and
would have known that the affidavit was inaccurate.

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I next consider whether Tietjen and Hadley, despite not having actually
drafted the affidavit, may also be liable for this omission. As discussed in Part
F.i, supra, a reasonable jury could find that Tietjen and Hadley influenced or
participated in the decision to seek arrest warrants for Hampton and Evans.
The record suggests that both officers attended the “charging conference” in
March 2010, after which Prosecutor Laurino made the ultimate decision to
pursue the warrants. (Laurino Dep. 19:17-21, 22:23-23:5.) In addition, Laurino
testified that at the time he sought charges against Evans, he was unaware of
any allegations that Hampton’s confession was coerced. (Id. 33:14-19.) A
reasonable jury could infer from this evidence that, despite knowing that
Hampton’s confession was fabricated, Tietjen and Hadley did not share this
information with Laurino at the charging conference. Thus, although they did
not draft the affidavit in support of Evans’s arrest warrant, a reasonable jury
could nonetheless find that Tietjen and Hadley made a reckless omission.
Carrega argues in the alternative that any omission would not have been
material, as the officers had probable cause to arrest Evans even without
Hampton’s confession. (Carrega MSJ 17-18.) The affidavit states that several
witnesses, including close family members of the missing boys, said that they
last saw the boys with Evans on the night of their disappearance. (Carrega Aff.
¶¶7-9.) The affidavit also states that Evans admitted to picking up at least
three of boys on that date so that they could help him move boxes. (Id. ¶6.)
Finally, the affidavit notes that there was a fire at 256 Camden St. on the date
of the boys’ disappearance, and that neighbors observed two Black males
fleeing the building immediately before the fire began. (Id. ¶10.)9
Evans argues that much of this information is hearsay, as it is gleaned from
police reports and a fire report that were authored in 1978 by individuals that are
either unknown or deceased. Whatever its merits, the hearsay argument is irrelevant
for purposes of evaluating the probable cause possessed by the police. Police may rely
on hearsay evidence to supply the probable cause necessary to make an arrest. See
Franks v. Delaware, 438 U.S. 154, 164–65 (1978) (Fourth Amendment does not
require “that every fact recited in the warrant affidavit is necessarily correct, for
probable cause may be founded upon hearsay and upon information received from
informants . . . .”); United States v. Mathis, 357 F.3d 1200, 1205 (10th Cir. 2004)
9

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Carrega also argues that additional facts, not included in the affidavit,
further supported probable cause. Primarily, several witnesses—including
Evans himself—told police that the missing boys had broken into Evans’s
apartment to steal marijuana prior to their disappearance. This information,
says Carrega, established Evans’s motive for killing the boys. (Carrega MSJ 17.)
The totality of this probable-cause evidence (subtracting Hampton’s
confession) is thus that Evans was with the boys on the day of their
disappearance, that the boys stole marijuana from Evans at some point, and
that there was a fire on the day of the boys’ disappearance, from which two
Black males were seen running. This evidence is certainly enough to arouse
suspicion, but probable cause “requires more than mere suspicion.” Orsatti, 71
F.3d at 482. I cannot conclude that the evidence so clearly establishes probable
cause that no reasonable jury could find otherwise. See Halsey, 750 F.3d at
302 (evidence that plaintiff failed polygraph exam coupled with the fact that he
had the opportunity to commit the crimes and failed to contact police did not
conclusively establish probable cause).
A reasonable jury could also find that the officers acted with malice. In
the context of a malicious prosecution claim, malice is a term of art, which
includes “lack of belief by the actor himself in the propriety of the prosecution.”
Lee v. Mihalich, 847 F.2d 66, 70 (3d Cir. 1988) (abrogated on other grounds).
“The element of malice may be inferred from lack of probable cause.” Morales v.
Busbee, 972 F. Supp. 254, 261 (D.N.J. 1997). “As a result, fact issues
precluding a finding on probable cause will generally also preclude a finding on
malice.” Sanders v. Jersey City, , Civ. No. 18-01057, 2021 WL 1589464 at *21
(D.N.J. Apr. 23, 2021).
Here, because a reasonable jury could find that the officers knew that
Hampton’s confession was fabricated, a jury could infer that the officers did not
(“[H]earsay from unknown or unnamed individuals has been recognized as acceptable
support for a finding of probable cause.”); Hart v. Parks, 450 F.3d 1059, 1066 (9th Cir.
2006) (“Police may rely on hearsay and other evidence that would not be admissible in
a court to determine probable cause.”).
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believe in the propriety of the prosecution. It is also telling that key government
actors did not believe that there was probable cause to arrest Evans absent
Hampton’s confession. Both Laurino and Assistant Prosecutor Cucinello, who
tried the case against Evans along with Assistant Prosecutor Guarino, testified
at their depositions that without Hampton’s confession probable cause did not
exist. (Laurino Dep. 62:19-24; Cucinello Dep. 151:21-152:12.) This at least
suggests that fair-minded jurors could find the same.
In sum, a reasonable jury could find that Carrega, Tietjen and Hadley
made a reckless, material omission that led to the initiation of criminal
proceedings against Evans without probable cause, and that the element of
malice is met. Accordingly, I will deny the defendants’ motion for summary
judgment on the malicious prosecution claims, asserted in Counts 3 and 5
under New Jersey common law and § 1983.10
G. Conspiracy
The defendants also move for summary judgment on Evans’s § 1983
conspiracy claim, asserted in Count 8. They argue that there is insufficient
evidence in the record to support the claim. (Tietjen MSJ 35.)
“To prevail on a conspiracy claim under § 1983, a plaintiff must prove
that persons acting under color of state law ‘reached an understanding’ to
deprive him of his constitutional rights.” Jutrowski v. Twp. of Riverdale, 904
Tietjen and Hadley also argue that there is insufficient evidence of their
personal involvement in obtaining a false confession from Hampton. They note that at
his deposition, Hampton could not identify any acts that either of them took
individually to coerce his confession. (Tietjen MSJ 18-19; Newark MSJ 28-29.)
Regardless of whether this assessment of the record is correct, Evans does not need to
show that Tietjen and Hadley were personally involved in coercing Hampton’s
confession in order to succeed on his malicious prosecution claim. Coercing a
confession is not an element of such a claim. Evans merely must show that Tietjen
and Hadley initiated proceedings against him without probable cause and with malice,
because they knew of or recklessly disregarded the falsity of the confession. For
purposes of this motion, it must be assumed that both officers were present during
the interview of Hampton and witnessed any alleged coercion that would have
rendered the confession unreliable.
10

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F.3d 280, 293–94 (3d Cir. 2018) (quoting Adickes v. S.H. Kress & Co., 398 U.S.
144, 150-52 (1970)). Such rights include those protected by the Due Process
Clause of the Fourth Amendment, one of which is the right to be free from a
malicious prosecution. See Jutrowski, supra, at 294.
Once it is established that the object of the conspiracy was the
deprivation of a federally protected right, “the plaintiff ‘must provide some
factual basis to support the existence of the elements of a conspiracy:
agreement and concerted action.’” Jutrowski, 904 F.3d at 295 (quoting
Capogrosso v. Supreme Court of N.J., 588 F.3d 180, 184–85 (3d Cir. 2009)). In
the absence of direct proof of an agreement, a “meeting of the minds” or joint
understanding can be inferred from circumstantial evidence. Jutrowski, supra
(citing Startzell v. City of Philadelphia, 533 F.3d 183, 205 (3d Cir. 2008)).
To be sure, “inferring mental state from circumstantial evidence is among
the chief tasks of factfinders.” Jutrowski, supra. (Citation omitted.) For this
reason, the Third Circuit has cautioned that “an allegation of conspiracy can
only be overcome at summary judgment when the moving parties’ submissions
foreclose the possibility of the existence of certain facts from which it would be
open to a jury to infer from the circumstances that there had been a meeting of
the minds.” Jutrowski, supra. (Citations omitted; cleaned up.)
Although the evidence is by no means overwhelming, a reasonable jury
could infer the existence of an agreement between Carrega, Tietjen, and
Hadley. The three officers were all present during Hampton’s interview at the
Essex County Prosecutor’s Office and during the charging conference with
Laurino. Despite the fact that they each would have known that the confession
was fabricated, none of them shared this information with Laurino. A jury
could infer from these circumstances that the three officers overtly or tacitly
agreed to give false information or omit true information to bring about the
arrest of Evans. See Adickes, 398 U.S. at 158-59.
Indeed, if a jury credits Hampton’s recantation, which they are entitled to
do, then the conclusion that there was some agreement between Carrega,

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Tietjen, and Hadley is difficult to deny. The alternative would be that each
officer independently decided to supply Laurino with false information
regarding Hampton’s confession. Such a coincidence seems unlikely.
Construing the evidence in Evans’s favor, the circumstances also suggest
concerted action, as Carrega, Tietjen, and Hadley all failed to disclose to
Laurino that Hampton’s confession was falsified. For reasons similar to those
expressed above, that is sufficient to permit a jury finding for Evans on the
concerted action element of a conspiracy claim.
I will therefore deny summary judgment on Count 8.
H. Qualified immunity
Tietjen and Carrega offer the affirmative defense of qualified
immunity as an alternative ground for summary judgment. They argue that
they are immune from Evans’s claims against them both under federal law and
New Jersey law.
I begin with qualified immunity under federal law. “The doctrine of
qualified immunity protects government officials ‘from liability for civil damages
insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.’”
Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982)). “A Government official's conduct violates clearly
established law when, at the time of the challenged conduct, ‘[t]he contours of
[a] right [are] sufficiently clear’ that every ‘reasonable official would [have
understood] that what he is doing violates that right.’” Ashcroft v. al-Kidd, 563
U.S. 731, 741 (2011) (quoting Anderson v. Creighton, 483 U.S. 635, 640
(1987)). While a case directly on point is not required, “existing precedent must
have placed the statutory or constitutional question beyond debate.” Ashcroft,
supra.
“The Third Circuit has held that the right to be free from prosecution
absent probable cause is clearly established.” Sanders, 2021 WL 1589464, at
*21 (citing Gallo v. City of Philadelphia, 161 F.3d 217, 220 n. 4 (3d Cir. 1998)).

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By 2010, and surely long before, any reasonable officer would have known that
by fabricating evidence for use in a criminal prosecution, a state actor would
violate a defendant’s constitutional rights. See Halsey, 750 F.3d at 296; Napue
v. People of State of Ill., 360 U.S. 264, 269 (1959) (recognizing that “a State may
not knowingly use false evidence, including false testimony, to obtain a tainted
conviction, implicit in any concept of ordered liberty.”) It would have been
similarly obvious that conspiring to fabricate evidence for use in a prosecution
violates a defendant’s constitutional rights as well. The defendants are
therefore not entitled to qualified immunity on the § 1983 malicious
prosecution and conspiracy claims.
As to the state law malicious prosecution claim, the New Jersey Tort
Claims Act (TCA) immunizes public employees from liability for actions taken
“in good faith in the execution or enforcement of any law.” See N.J. Stat. Ann.
59:3-3. In order to benefit from this immunity, “a public employee must
demonstrate either that he acted with objective reasonableness or establish
that he acted with subjective good faith.” Villari v. Twp. of Wall, No. CIV. A. 060004 FLW, 2009 WL 2998135, at *14 (D.N.J. Sept. 15, 2009).
In assessing objective reasonableness under the TCA, “the court applies
the same standards . . . that are used in federal civil rights cases.” N.E. for J.V.
v. State Dep't of Child. & Fams., Div. of Youth & Fam. Servs., 449 N.J. Super.
379, 404 (App. Div. 2017). In other words, “[o]bjective reasonableness will be
established if the actor's conduct did not violate a clearly established
constitutional or statutory right.” Id. at 405 (citing Gormley v. Wood–El, 218
N.J. 72, 113 (2014)). Having already determined that the officers’ actions did
violate a clearly established constitutional right, I conclude that the defendants
are not entitled to qualified immunity under the TCA on the grounds of
objective reasonableness.
As mentioned, however, “[a] defendant who cannot establish that his or
her conduct was objectively reasonable may still invoke qualified immunity if
his or her actions were carried out in good faith.” N.E. for J.V., 449 N.J. Super.

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at 405. A public employee who establishes that he or she acted in good faith is
entitled to a grant of summary judgment. Id.
As discussed in Part F.ii, supra, there is evidence in the record that the
defendant officers acted with malice in initiating a criminal prosecution against
Evans. In light of that evidence, I cannot conclude that the officers have
established that they acted in subjective good faith. See N.E. for J.V., 449 N.J.
Super. at 407 (“A public employee's good faith under N.J.S.A. 59:3–3 is to be
judged in relation to whether his act violated N.J.S.A. 59:3–14 in that it
involved crime, actual fraud, actual malice, or willful misconduct.”) (Citation
omitted. Cleaned up.) That presents an issue of fact for the jury.
Accordingly, the defendants are not entitled to qualified immunity on the
state law malicious prosecution claim.
IV.

Conclusion
The motions for summary judgment (DE 232, 233, 234) are granted in

part and denied in part. Specifically, summary judgment is granted as to
Counts 4, 6 and 7, and as to the claims asserted against Defendant Henry in
Counts 3, 5 and 8. Still remaining are the following defendants and counts:
Count 3 (common law malicious prosecution) against Defendants Hadley,
Carrega and Tietjen;
Count 5 (§ 1983 malicious prosecution) against Defendants Hadley,
Carrega and Tietjen;
Count 8 (§ 1983 conspiracy) against Defendants Hadley, Carrega and
Tietjen.
An appropriate order will issue.
Dated: March 16, 2023
/s/ Kevin McNulty
______________________________
KEVIN MCNULTY
United States District Judge

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