SANDERS v. JERSEY CITY et al
Filing
78
OPINION. Signed by Judge Kevin McNulty on 4/23/2021. (ld, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
JONATHAN SANDERS,
Plaintiff,
v.
JERSEY CITY; JERSEY CITY POLICE
DEPARTMENT; OFFICER M.
OTUNDO, OFFICER F. A. MONTERO,
OFFICER BAUER, OFFICER SALEH,
and JOHN DOES 1–10, individually
and in their official capacities as
Officers with the Jersey City Police
Department;
Civ. No. 18- 01057 (KM) (JBC)
OPINION
Defendants.
KEVIN MCNULTY, U.S.D.J.:
Jersey City Police Officers Morton Otundo, Francisco Montero, Albert
Bauer, and John Saleh responded to calls about a dog chasing people on the
street and the dog’s drunk owner, Jonathan Sanders. When the officers
confronted Mr. Sanders, a physical altercation ensued, concluding with
Sanders’s arrest. Having suffered serious injuries, Sanders sued the officers,
Jersey City, and the Jersey City Police Department, alleging constitutional and
tort claims. Officer Otundo (DE 65) and the other Defendants (DE 66)
separately move for summary judgment.1
1
Certain citations to the record are abbreviated as follows:
DE = docket entry
Compl. = Complaint (DE 1)
Otundo Br. = Officer Otundo’s Brief in Support of his Motion for Summary
Judgment (DE 65-14)
Defs. Br. = Remaining Defendants’ Brief in Support of their Motion for
Summary Judgment (DE 66-1)
I am as always respectful of the mission of the police, who are called
upon to make rational judgments with respect to persons who are not always
acting rationally—and, unlike a judge, to do so without the benefit of hindsight
and leisurely deliberation. Still, the summary judgment standard requires that
I withhold judgment when the evidence presents material, disputed issues of
fact. Finding such triable issues, I must deny defendants’ motions for summary
judgment in many respects. For the following reasons, then, the motions (DE
65, 66) are GRANTED IN PART and DENIED IN PART.
Opp. to Otundo Br. = Mr. Sanders’s Opposition to Officer Otundo’s Motion for
Summary Judgment (DE 70)
Opp. to Defs. Br. = Mr. Sanders’s Opposition to the remaining Defendants’
Motion for Summary Judgment (DE 69)
Azem Videos 1–5 = “Videos from Witness Azem” submitted to the Court as Ex. N
to the remaining Defendants’ Motion for Summary Judgment (See 66-5)
Bauer Dep. = Transcript of Deposition of Officer Bauer (DE 66-7, Ex. I)
Bldg. Video = “Sanders Video” submitted to the Court as Ex. N to Remaining
Defendants’ Motion for Summary Judgment (See 66-5)
Crim. Compl. = Criminal Complaint (DE 65-12)
Gardere Rep. = Report of Dr. Jeffrey R. Gardere (DE 69-25)
IA Rep. = Internal Affairs Report (DE 70-13)
Miller Dep. = Deposition Transcript of Mark Miller (DE 66-8, Ex. M)
Montero Dep. = Transcript of Deposition of Officer Montero (DE 70-10)
Muni. Ct. Doc. = Municipal Court Dismissal of Charges (DE 70-23)
Otundo Dep. = Transcript of Deposition of Officer Otundo (DE 66-7, Ex. K)
Otundo Rep. = Investigation Report of Officer Otundo (DE 65-9)
Saleh Dep. = Transcript of Deposition of Officer Saleh (DE 66-7, Ex. J)
Saleh Rep. = Report of Officer Saleh (DE 65-7)
Sanders Dep. = Transcript of Deposition of Mr. Sanders (DE 66-8, Ex. L)
Shane Rep. = Expert Report of Dr. Jon M. Shane (DE 69-18)
Torchinsky Rep. = Report of Dr. Warren M. Torchinsky (DE 69-21)
2
I.
BACKGROUND
There is no genuine dispute regarding how the events unfolded pre- and
post-altercation. But there are different versions of what occurred during the
altercation. I therefore trifurcate my discussion of the facts.
A. Pre-Altercation Events
On May 5, 2017, after drinking four or five margaritas with friends, Mr.
Sanders returned to his apartment building in Jersey City. (Sanders Dep. at
22:2–3, 24:1–16, 25:5–22.) Soon after, his dog (Magoo, a 65-pound
Staffordshire Terrier) escaped from his apartment. (Id. at 28:4–8, 31:18–19,
32:15–19, 34:19.) Sanders followed and found Magoo outside the doors to the
building. (Id. at 39:6–21.) Running from the doors to the street is a long
walkway flanked by greenery. (Id.) Magoo proceeded to the street, and Sanders
followed. (Id. at 43:23–42:8.) Magoo then chased or came frighteningly close to
some local residents. (DE 65-6.) These residents called 911 to report an
uncontrollable dog and intoxicated owner. (Id.)
Officers Bauer and Saleh responded. (Bauer Dep. at 41:21–25.) By then,
Mr. Sanders had gotten Magoo back near the door. (Sanders Dep. at 47:19–21,
50:4–22.) The officers proceeded up the walkway while yelling to Sanders to
leash his dog. (Azem Video 1 at 0:07–42; see also Saleh Rep at 1.) Sanders
yelled back at them, with a perceivable slur and combative tone, “he’s not
doing anything,” “he’s playing,” and—repeatedly—“shut the fuck up.” (Id.; Azem
Video 3 at 0:20, 0:38; Azem Video 4 at 0:00–20.) As the officers came further
up the walkway, Sanders approached them, saying “If you touch my dog—”
while the officers told him to sit down. (Azem Video 5 at 0:27–47.) Then, one
officer pushed him to sit down on a retaining wall. (Id.)
The officers talked with Mr. Sanders, as Magoo trotted around them.
(Bauer Dep. 44:9–12; Saleh Dep. at 62:5–12.) The officers did not observe
Magoo to be threatening. (Saleh Dep. at 42:11–15.) Nor did the officers then
observe anything suggesting that Sanders would get physical with them. (Id. at
43:15–23; Bauer Dep. at 44:13–45:10.)
3
Officers Otundo and Montero soon arrived and joined the conversation.
(Otundo Dep. at 74:6–16, 75:2–8; Bldg. Video at 0:00–0:30.) As Mr. Sanders’s
obstinacy continued, Otundo retrieved from his vehicle a citation book and
power cord to use as an improvised leash. (Otundo Dep. at 75:24–76:1, 77:6–
10.) Upon returning, Otundo said that he was going to issue a summons for
violating the City’s leash ordinance. (Otundo Rep. at 2.)
Considering the situation to be “safe,” Officers Bauer and Saleh walked
back to the street to speak with residents congregating there. (Saleh Dep. at
47:11–20, 51:6–53:20; see also Bauer Dep. at 45:11–19.) That left Officers
Otundo and Montero with Mr. Sanders and Magoo. (Id.)
B. Altercation
Between video footage and the participants’ accounts, no clear, complete
picture emerges of what happened next.
Video Footage
There is video footage (images, but no sound) from the building’s security
cameras. (Bldg. Video; IA Rep. at 14–15.) The video shows Mr. Sanders
standing and talking with Officers Otundo and Montero. (Bldg. Video at 0:00–
0:30.) Otundo attempted to leash Magoo, exciting the dog, who began jumping
around the three men. Sanders tried to gain control of Magoo with his right
hand, but with his left began pointing in Otundo’s direction. (Id. at 3:25–4:00).
Sanders bent to grab Magoo, while the officers stood calmly. (Id. at 4:00–4:40.)
While bent over, Sanders raised his left arm a foot or two. Otundo immediately
and forcibly pushed Sanders away, and Sanders fell to the ground. (Id. at 4:42–
48.)
Officer Otundo then attempted to restrain Mr. Sanders. At this point,
however, the video picture is partially obstructed by foliage. From what can be
seen, Otundo attempted to get Sanders’s hands behind his back. There was
some struggle between the two, and at one point, it can be seen that Sanders’s
hand was outstretched towards Otundo’s shoulder and neck area. (Id. at 4:40–
5:35.) Officer Montero walked around them calmly the entire time, snapping
4
his fingers at Magoo. Eventually, Otundo handcuffed Sanders, and Officers
Saleh and Baur returned. (Id. at 6:20–38.)
Officer Otundo’s Account
Officer Otundo described the event in a report written the same day and
later in a deposition.
According to the report, after Officer Otundo attempted to leash Magoo,
Mr. Sanders “brought his hand towards [Otundo’s] face . . . in a threatening
manner,” so Otundo “shoved his arm back towards his torso to create distance
and due to his highly intoxicated state, [Sanders] lost balance.” Otundo then
attempted to handcuff Sanders, but “he pulled the arm away and grabbed
[Otundo’s] neck in a choke hold.” Sanders used “his left arm to clutch
[Otundo’s] uniform shirt over the right shoulder.” Both officers gave commands
to stop, but Sanders kept his grip. He then let go and “rapidly punched”
Otundo in the face. During this altercation, both officers were in “a physical
struggle” with Magoo as well. Otundo then “punched [Sanders] three times” in
the face; as a result, “he was temporarily stunned”; and the two officers were
able to summon Officers Saleh and Baur. (Otundo Rep. at 2.)
According to the deposition, after Officer Otundo attempted to leash
Magoo, Mr. Sanders reached for Otundo’s gun, prompting Otundo to push him
away. (Otundo Dep. at 78:24–79:3.) When Otundo attempted to restrain him on
the ground, Sanders tried to “jab[]” him in the face a few times, so Otundo “hit”
him in response. Then, Sanders grabbed Otundo’s neck, and Otundo
responded with punches. (Id. at 79:4–12.) Sanders returned several punches.
(Id. at 84:16–17.) Otundo acknowledged that those punches cannot be seen on
video. Otundo also acknowledged that he never told Officer Montero he was
being choked or punched. (Id. at 153:23–25, 90:18–22, 191:14–23.)
Mr. Sanders’s Account
Mr. Sanders recalled having a conversation with the two officers and
suddenly “getting hit in the face.” (Sanders Dep. at 63:22–25.) He then
remembers being face down, “punched repeatedly,” and “called a ‘fuckin’
5
faggot.’” (Id. at 67:17–22.) He denies that he was told he was under arrest or
that he choked Officer Otundo. (Id. at 70:1–23, 74:4–8.) The next thing he
remembers is waking up in the hospital. (Id. at 71:7–10.)
Officer Montero’s Account
In a report provided a few months after the incident, Officer Montero
recounted the incident in terms similar to Officer Otundo’s. He stated that Mr.
Sanders “brought his hand towards P.O. Otundo’s face in a threatening
manner,” Otundo “shoved his arm back,” and, while on the ground, Sanders
“grabbed P.O. Otundo by the neck and used his left arm to clutch his uniform.”
(IA Rep. at 5.) Later, in a deposition for this case, Montero testified that he did
not recall the incident. (E.g., Montero Dep. at 55:1–9.)
C. Post-Altercation Events
Mr. Sanders’s Medical Treatment
Once Officer Otundo subdued and handcuffed Mr. Sanders, he was
placed under arrest and brought to a police station for processing by Officers
Otundo and Montero. (Otundo Dep. at 123:21–24:23.) It became clear,
however, that Sanders had serious facial injuries, so he was taken to a hospital
by ambulance, accompanied by the two officers. (Id. at 124:3–125:8; Montero
Dep. at 60:9–24.) He was handcuffed to a bed for the first 24 hours of what
would be a six-day hospital stay involving surgery. (Sanders Dep. at 71:7–10,
77:13–14.)
Mr. Sanders suffered a blowout fracture of his right eye socket as a
result Officer Otundo’s direct blow to the bone there, as well as a nasal
fracture. (Torchinsky Rep. at 3.) A mesh was implanted to prevent his eyeball
from falling into the sinus. (Id.) Besides physical injury, Sanders now has
crippling fears of the police or even walking his dog, requiring psychotherapy.
(Gardere Rep. at 8.) He received diagnoses of post-traumatic stress disorder
(“PTSD”), major depressive disorder, anxiety disorder, and body dysmorphic
disorder due to the trauma of the event and his changed appearance. (Id. at
22–23.)
6
Criminal Charges
Officers Otundo and Montero left the hospital and went to the police
station. (Montero Dep. at 60:9–24.) There, the two prepared an investigation
report and a criminal complaint. (Otundo Dep. at 73:14–17, 117:8–12.)
Montero swore out the criminal complaint, which charged Mr. Sanders with
aggravated assault, resisting arrest, and disorderly conduct. (Crim. Compl. at
3.) Otundo wrote an affidavit of probable cause to support the complaint. (Id. at
5.) The charges were eventually dismissed after the officers failed to appear in
court. (Muni. Ct. Doc. at 1; Sanders Dep. at 212:13–16.)
Internal Investigation
Following the incident, Officer Otundo faced disciplinary charges, which
the Police Department’s Internal Affairs unit (“IA”) investigated. (IA Rep.)
Otundo had previously faced similar charges, but none had resulted in a
finding against him. (Id. at 16.) In the incident with Mr. Sanders, the IA found
that he had used excessive force; they required reassignment to administrative
duties and further protocols should he resume patrol. (Id.; Miller Dep. at 58:3–
13.)
According to Mr. Sanders, the Department’s handling of Officer Otundo’s
cases is indicative of larger failures. Although the Department has a use-offorce policy and procedures for identifying and monitoring non-compliant
officers, the policies and procedures routinely go unenforced. (Shane Rep. at
29–30.) Statistical evidence shows a decline in dispositions of investigations.
(Id. at 34–35.) Further, investigations drag on for years, and officers are
permitted to remain on patrols while they are pending. (Id. at 37.) An expert on
policing opined that the Department’s practices fall below national standards.
(Id. at 39.) The Department responds that all complaints are investigated,
corrective actions are not taken until charges are sustained, and external
factors (like concurrent prosecutions or civil litigation) explain the long
resolution times. (Miller Dep. at 51:11–25, 55:3–9, 59:23–25, 146:5–48:17.)
7
D. Procedural History
Mr. Sanders sued the four officers, Jersey City, and the Jersey City Police
Department. (Compl.) He asserts the following claims:
•
Count 1: false arrest and imprisonment, in violation of the Fourth
Amendment, pursuant to 42 U.S.C. § 1983, against the officers;
•
Count 2: illegal search and seizure, in violation of the Fourth
Amendment, pursuant to § 1983, against the officers;
•
Count 3: excessive force, in violation of the Fourth Amendment,
pursuant to § 1983, against the officers;
•
Count 4: municipal liability, pursuant to § 1983 and the New Jersey Civil
Rights Act (“NJCRA”), N.J. Stat. Ann. § 10:6-2, against the City and
Department;
•
Count 5: violations of corresponding rights under the New Jersey
Constitution, pursuant to the NJCRA, against the officers;
•
Count 6: failure to intervene, in violation of the Fourth Amendment,
pursuant to § 1983, against the officers (except Otundo);
•
Count 7: conspiracy, pursuant to § 1983,2 against the officers;
•
Count 8: intentional and negligent infliction of emotional dismiss (“IIED”
and “NIED”), against the officers;
•
Count 9: malicious prosecution, pursuant to § 1983, against the officers;
•
Count 10: assault and battery, against the officers.
(Compl. ¶¶ 33–106.) He seeks compensatory and punitive damages, as well as
injunctive relief. (Id., Prayer.) Officer Otundo and the remaining Defendants
separately move for summary judgment. This Opinion will focus on three
Defendants: Officer Otundo, Officer Montero, and the City.3
Mr. Sanders clarifies in his briefs that his claims for conspiracy and malicious
prosecution are brought under § 1983. (Opp. to Defs. Br. at 17, 49.)
2
3
Some clutter:
The Complaint asserts the § 1983 and NJCRA claims against the officers in
both their individual and official capacities. (Compl. ¶ 4.) Such claims are permitted
only against persons in their individual capacities, not their official capacities. Downey
8
II.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 56(a) provides that summary judgment
should be granted “if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.”
See Kreschollek v. S. Stevedoring Co., 223 F.3d 202, 204 (3d Cir. 2000). 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). “[W]ith respect to an issue on
which the nonmoving party bears the burden of proof . . . the burden on the
moving party may be discharged by ‘showing’—that is, pointing out to the
v. Pa. Dep’t of Corrs., 968 F.3d 299, 309–10 (3d Cir. 2020) (§ 1983); Estate of Lagano v.
Bergen Cnty. Prosecutor’s Off., 769 F.3d 850, 856 (3d Cir. 2014) (NJCRA). I will
therefore dismiss the § 1983 and NJCRA claims for damages as against the officers in
their official capacities only, leaving the individual-capacity claims.
The Jersey City Police Department is not properly named as a defendant. A New
Jersey police department is a subdivision of municipal government, not a separate
legal entity with the capacity to sue or be sued. N.J. Stat. Ann. § 40A:14-118
(municipal police department is “an executive and enforcement function of municipal
government”); see Mitchell v. City of Jersey City, Civ. No. 15-6907, 2016 WL 1381379,
at *1 (D.N.J. Apr. 7, 2016); McGovern v. Jersey City, Civ. No. 98-5186 2006 WL 42236,
at *7 n.4 (D.N.J. Jan. 6, 2006) (police departments cannot be sued in conjunction with
municipalities because police departments are administrative arms of local
municipalities, not separate entities); see also Bonenberger v. Plymouth Township, 132
F.3d 20, 25 n.4 (3d Cir. 1997); Padilla v. Twp. of Cherry Hill, 110 F. App’x 272, 278 (3d
Cir. 2004); cf. Los Angeles County v. Humphries, 562 U.S. 29, 37 (2010) (Monell
requirements apply equally to damages and injunctive claims). For claims involving
the Department, the proper defendant is the City itself, which is separately named in
this complaint. I will therefore dismiss the Department as a redundant defendant,
while retaining the City. The correction is technical; the substance of the action is not
affected.
Finally, Mr. Sanders concedes that discovery has shown that Officers Baur and
Saleh were insufficiently involved in the incident. (Opp. to Defs. Br. at 4 n.1.) They
were speaking to residents on the street while the altercation occurred on the
walkway, and the two did not arrest Sanders or prepare the charging documents.
Accordingly, I will grant summary judgment in favor of Baur and Saleh on all counts.
9
district court—that there is an absence of evidence to support the nonmoving
party’s case.” Id. at 325.
Once the moving party has met that threshold burden, the non-moving
party “must do more than simply show that there is some metaphysical doubt
as to material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 586 (1986). The opposing party must present actual evidence that creates
a genuine issue as to a material fact for trial. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986); see also Fed. R. Civ. P. 56(c) (setting forth types of
evidence on which nonmoving party must rely to support its assertion that
genuine issues of material fact exist). “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).
III.
DISCUSSION
I first assess the constitutional claims asserted via § 1983 and the
NJCRA against Officers Otundo and Montero (Section III.A), then the state-law
tort claims against those officers (Section III.B), and finally the municipalliability claim against the City (Section III.C). In sum, I hold that genuine issues
of fact preclude summary judgment on the excessive-force claim against
Otundo and the failure-to-intervene claim against Montero. Similar factual
issues preclude summary judgment on the parallel state-law tort claims.
I am compelled by Supreme Court precedent to find that Officers Otundo
and Montero had probable cause to arrest and detain Mr. Sanders based on his
violation of the leash ordinance. Nonetheless, they are not entitled to summary
judgment on the malicious prosecution claim, because the leash ordinance was
never the basis for any formal charge, and there are triable issues as to
probable cause for the offenses that were charged.
10
A. Constitutional Claims against the Officers
Section 1983 and the NJCRA provide a cause of action to recover for
deprivations of constitutional rights. Walker v. City of Newark, Civ. No. 1916853, 2020 WL 3542502, at *6, 13 (D.N.J. June 30, 2020).4 Nonetheless,
qualified immunity, which Defendants invoke here, shields officials from
liability unless they violated clearly established rights. Williams v. City of York,
967 F.3d 252, 258 (3d Cir. 2020) (§ 1983); Morillo v. Torres, 117 A.3d 1206,
1213 (N.J. 2015) (NJCRA). A qualified-immunity defense fails if (1) “the officer
violated a constitutional right,” and (2) “the right was clearly established.” El v.
City of Pittsburgh, 975 F.3d 327, 334 (3d Cir. 2020); see Williams, 967 F.3d at
257 (each defendant must have violated a clearly established right to be held
liable).
I take up the remaining claims against Officers Otundo and Montero in
rough chronological order. Each officer asserts qualified immunity. Therefore,
in each instance, I consider first whether there was a constitutional violation,
and second whether any such violation was clearly established.
Excessive Force
Mr. Sanders alleges that Officers Otundo and Montero used excessive
force when arresting him. (Compl., Counts 3, 5.) I first consider whether the
record demonstrates that a constitutional violation occurred.
a. Constitutional Violation
The Fourth Amendment to the U.S. Constitution and Article I, paragraph
7 of the New Jersey Constitution both protect against “unreasonable searches
and seizures.” U.S. Const. amend. IV; N.J. Const. Art. 1, ¶ 7. That protection
prohibits police officers from using excessive force. El, 975 F.3d at 336 (Fourth
Amendment); Trafton v. City of Woodbury, 799 F. Supp. 2d 417, 436 (D.N.J.
Mr. Sanders’s NJCRA claim (Count 5) essentially alleges that all the federal
constitutional violations also amount to violations of the New Jersey Constitution. (See
Compl. ¶¶ 75–84.) NJCRA and § 1983 claims are construed in parallel. Trafton v. City
of Woodbury, 799 F. Supp. 2d 417, 443 (D.N.J. 2011).
4
11
2011) (New Jersey Constitution). To prevail on an excessive-force claim, “a
plaintiff must show [1] that a seizure occurred and [2] that it was unreasonable
under the circumstances.” Id. (citation omitted). On the first prong, “[a] seizure
requires the use of force with intent to restrain.” Torres v. Madrid, 141 S. Ct.
989, 998 (2021) (emphasis omitted). On the second prong, the question is
whether “the officers’ actions are objectively reasonable in light of the facts and
circumstances.” Williams, 967 F.3d at 259 (quotation marks and citation
omitted). I consider whether a reasonable officer would perceive Mr. Sanders to
pose an immediate threat, commit a serious crime, actively resist arrest, or
possess a weapon. El, 975 F.3d at 336. I also consider whether the force
employed was necessary to effect an arrest and otherwise proportional. Id.
i.
Officer Otundo
On the first prong, there can be no dispute that Officer Otundo effected a
seizure—he shoved Mr. Sanders to the ground and then physically subdued
him to make an arrest. On the second prong, genuine issues of material fact
exist as to whether the force used was reasonable. I identify them here.
First, there is a factual dispute over how a reasonable officer would
perceive Mr. Sanders’s arm movement and the need to respond physically.
In his deposition, Officer Otundo stated that he perceived that Mr.
Sanders was reaching for Otundo’s gun. (Otundo Dep. at 78:24–79:3.) Otundo
claimed in his contemporaneous report that he viewed the movement as
“threatening,” although he then made no specific mention of his gun. (Otundo
Rep. at 2.) This testimony, if credited, could dispose a jury in Otundo’s favor.
On the other hand, a juror could think, from the video, that Mr. Sanders
seemed only to be finding his balance, and that the movement of his arm was
involuntary or minor. Or a juror could credit Sanders’s testimony that his acts
were aimed at handling Magoo. (Sanders Dep. at 63:22–25.) Further, Officer
Montero remained calm and physically uninvolved through all this activity,
undermining any assessment of the situation as threatening and tense. Up
until that point, Sanders had been rowdy and unruly, but not physical; indeed,
Officers Bauer and Saleh had walked away, believing that the situation was
12
safe. (Saleh Dep. at 47:11–20, 51:6–53:20.) On this version of the events, a
juror could find that it was unreasonable for Otundo to perceive Sanders as
threatening or reaching for his gun.
The character of Mr. Sanders’s arm movement is material because key
factors for finding force reasonable are whether the suspect “pose[d] an
immediate threat to the safety of the officers” and was “violent or dangerous.”
El, 975 F.3d at 336; see also Johnson v. City of Philadelphia, 837 F.3d 343, 350
(3d Cir. 2016) (clear attempt to grab officer’s gun will support use of force).
Those factors are especially important here because, at this point, other factors
did not strongly point to the use of force: Sanders was alone, outnumbered,
suspected of only minor non-violent crimes, unarmed, apparently alcoholimpaired, and not under arrest. See El, 975 F.3d at 336. The threat which
Sanders posed, then, turns on disputed perceptions of the situation, and is
therefore a matter for trial. See Rivas v. City of Passaic, 365 F.3d 181, 199 (3d
Cir. 2004) (cleaned up) (“[A] police officer . . . is not precluded from arguing that
he reasonably perceived the facts to be different from those alleged by the
plaintiff, but that contention must be considered at trial.”).
Second, there is a factual dispute over how Officer Otundo responded to
Mr. Sanders’s arm movement, and whether that response was proportional.
Otundo stated that he only pushed Sanders in an attempt to create distance.
(Otundo Rep. at 2.) Sanders’s fall, according to Otundo, was attributable to his
intoxicated state. (Id.) Alternatively, a juror could view the video and perceive
Otundo’s physical contact as a forcible shove, intended to level Sanders so he
could be restrained. Otundo’s account is a matter of credibility for the jury.
This dispute is material because, while the excessive-force standard
allows for “split-second judgments,” the bottom-line inquiry is whether “the
amount of force” was “necessary in a particular situation.” Williams, 967 F.3d
at 259. If a juror takes the view that Officer Otundo intended to forcibly push
Mr. Sanders to the ground, then the juror could view the amount of force as
unnecessary for an individual who posed no threat. Given a low-stakes
13
situation involving an unarmed man accused of only a leash-law infraction, a
juror could see Otundo’s assertion of complete, immediate, forcible control over
Sanders as an unreasonable response. Or not; but that is the nature of a
factual issue.
Third, there is a factual dispute over whether, during the on-the-ground
scuffle, Mr. Sanders actively resisted arrest and punched or choked Officer
Otundo. Those acts are proffered as the justification for Otundo’s punching
Sanders in the face three times. In his report, Otundo stated that he did so
because Sanders was choking him with one hand and grasping his shoulder
with the other. The report also stated that Otundo punched Sanders after
Sanders first punched Otundo. (Otundo Rep. at 2.) Otundo’s deposition
contains a more elaborate account. There, Otundo stated that Sanders tried to
“jab” fingers in Otundo’s face a few times, then Otundo “hit” Sanders, then
Sanders grabbed Otundo’s neck, and then Otundo responded with punches.
(See Otundo Dep. at 79:4–12.)
But the video, as Officer Otundo acknowledged, does not show any
punches or chokehold by Mr. Sanders. (Id. at 84:16–17.) The video does not
provide a clear and complete view, however, and therefore is not conclusive. It
does not document the level of physicality and aggression from Sanders to
which Otundo attested, but perhaps does not rule it out, either. Sanders can
be seen rolling around and possibly trying to get his arms free. Otundo’s neck
is visible for almost all of the time, and no hand can be seen on it, although,
the video does show Sanders grabbing Otundo’s shoulder. Corroborating the
more benign view, Officer Montero was within a few feet of the altercation but
apparently did not feel the need to get physically involved, and Otundo never
told Montero he was being choked or punched. (Otundo Dep. at 153:23–25,
90:18–22, 191:14–23.)
Mr. Sanders denied the allegations that the officers told him he was
being arrested, and denied that he grabbed Officer Otundo’s throat. (Sanders
Dep. at 70:1–23, 74:4–8.) He also recalls being called a “fuckin’ faggot”
14
repeatedly. (Id. at 67:17–22.) A juror, if it credited that testimony, could
conclude that repeated use of a slur while punching an arrestee perhaps
bespeaks a malign motive beyond that of self-defense or reasonable force.
All said, the reason that Officer Otundo threw punches remains unclear.
That factual issue is material because the punches constituted a quite
substantial use of force, evidenced by the serious injury that resulted. Now, if
Mr. Sanders was in fact trying to choke Otundo, that threat to safety could
justify punching Sanders to break the chokehold. But if Sanders did not choke
or punch him, Otundo only needed to subdue Sanders. Punches resulting in
broken bones and serious facial injury would be unnecessary and excessive,
especially if, as a juror could find, Sanders was not forcibly resisting arrest.
Given these material factual disputes, I cannot grant Officer Otundo
qualified immunity on the ground that no constitutional violation was shown.
ii.
Officer Montero
I next consider the first prong of qualified immunity—whether a
constitutional violation was shown—as to Officer Montero. Here, summary
judgment is a closer call. The video shows that, during the altercation, Montero
seemed to be occupied with distracting Magoo. Nonetheless, his feet cannot be
seen the whole time. Mr. Sanders contends that Montero kicked him while he
and Officer Otundo were on the ground. He points to (1) a use-of-force report
filed by Montero in which he checked boxes indicating that he used a
compliance hold, his hands/fists, and kicks (DE 69-20); and (2) testimony in
which Montero refused to answer questions about his use of force. (Opp. at
Defs. Br. at 26–27.)
Mr. Sanders’s testimony, credited as it must be on this motion, is
sufficient to raise a genuine dispute over whether Officer Montero kicked him.
It could perhaps be set aside as a sham if “blatantly contradicted” by the video
evidence, but the video, as noted is inconclusive. Cf. Scott v. Harris, 550 U.S.
372, 380 (2007) (courts need not accept a version of the facts “blatantly
contradicted” by a video). This dispute is material because the gratuitous use of
15
force when a person is already subdued is unreasonable. E.g., Noble v. City of
Camden, 112 F. Supp. 3d 208, 227 (D.N.J. 2015).
Given that material factual dispute, I cannot grant Officer Montero
qualified immunity on the ground that no constitutional violation was shown.
b. Clearly Established
The officers may still enjoy qualified immunity on the second, “clearlyestablished” prong. “To determine whether a right was clearly established, we
conduct a two-part inquiry. First, we must define the right allegedly violated at
the appropriate level of specificity.” See Peroza-Benitez v. Smith, --- F.3d ---, ---,
No. 20-1390, 2021 WL 1307883, at *4 (3d Cir. Apr. 8, 2021) (quotation marks
and citation omitted). In defining the right at this stage, I construe the facts
and resolve disputes in Mr. Sanders’s favor. Noble, 112 F. Supp. 3d at 227; see
Peroza-Benitez, 2021 WL 1307883, at *7–8; Tolan v. Cotton, 572 U.S. 650, 657
(2014) (per curiam). If, for example, even with facts resolved against the
officers, they still did not violate a clearly established right, then they would be
entitled to qualified immunity. See id. The right here, construing the disputed
facts in favor of Sanders, would be the right for a non-threatening individual to
be free from being shoved to the ground and repeatedly punched or kicked by
an officer while not resisting arrest.
The next step is to compare that right to case law existing at the time of
the incident (May 2017) and determine whether that law made it “sufficiently
clear” to “a reasonable official . . . that what he is doing violates that right.”
Peroza-Benitez, 2021 WL 1307883, at *4 (citation omitted). To make the issue
sufficiently clear, the prior case law must be sufficiently specific. District of
Columbia v. Wesby, 138 S. Ct. 577, 590 (2018). Case law precisely on point, of
course, is the quintessential example. But “a general constitutional rule
already identified in the decisional law may apply with obvious clarity to the
specific conduct in question, even though the very action in question has [not]
previously been held unlawful.” Hope v. Pelzer, 536 U.S. 730, 741 (2002);
accord Taylor v. Riojas, 141 S. Ct. 52, 53–54 (2020) (per curiam) (no qualified
16
immunity for corrections officers who forced an inmate to sleep in a sewage
covered cell because, while there were no sewage cases, “no reasonable
correctional officer could have concluded that ... it was constitutionally
permissible to house [an inmate] in such deplorably unsanitary conditions”);
Williams v. Bitner, 455 F.3d 186, 191 (3d Cir. 2006). I look first to Supreme
Court and Third Circuit precedent, then to any “robust consensus” from the
Courts of Appeals, and then to “district court cases.” Peroza-Benitez, 2021 WL
1307883, at *5 (citations omitted).
There is no Third Circuit case factually on point. Perhaps the closest
analogue is Couden v. Duffy, 446 F.3d 483 (3d Cir. 2006). There, officers, to
effect an arrest, threw a 14-year-old to the ground, repeatedly pushed his head
down, pointed guns at him, and sprayed him with mace. Id. at 490. The Third
Circuit held that this force was clearly unreasonable because the victim was
unarmed, did not resist, and posed no particular threat. Id. at 497.
Couden tends to suggest that the conduct here was unreasonable
because, in both cases, an officer used substantial force to subdue a person
who presented a minimal threat. Indeed, courts had agreed, prior to the events
here, that Couden stands for the general proposition that “[t]he gratuitous use
of force against an arrestee who has already been restrained violates the
Fourth Amendment.” Noble, 112 F. Supp. 3d at 228; see Anthony v. Seltzer,
696 F. App’x 79, 82 (3d Cir. 2017) (“[U]nder long-established Fourth
Amendment law, force may not legitimately be used against an individual who
is compliant and poses no ongoing threat to himself or others, or who is not
resisting arrest, even if he was initially non-compliant.”). The rule of Couden,
extended to the facts of this case, would dictate that shoving a person to the
ground and punching him three times in the face, or kicking him when he did
not present a threat or actively resist, is unconstitutionally excessive and
disproportionate.
The facts of Couden, as I say, are not precisely on point. There is
substantial case law from other Courts of Appeals, however, standing for the
17
same legal rule and applying it to more closely analogous facts. See, e.g., Kidis
v. Reid, 976 F.3d 708, 720 (6th Cir. 2020) (officer, in 2013, violated clearly
established rights when he punched intoxicated individual while he was on the
ground and officer was on top of him effecting arrest); Darden v. City of Fort
Worth, 880 F.3d 722, 732–33 (5th Cir. 2018) (officer, in 2013, violated clearly
established rights when he pushed individual down and repeatedly punched
and kicked him in the head when he was not actively resisting); Burnikel v.
Fong, 886 F.3d 706, 711–12 (8th Cir. 2018) (officers, in 2013, violated clearly
established rights when they repeatedly punched non-threatening individual,
who was on the ground and whose only resistance was attempting to cover his
face); Trammel v. Fruge, 868 F.3d 332, 343 (5th Cir. 2017) (officers, in 2013,
violated clearly established rights when they tackled a non-violent, intoxicated
individual to the ground after he pulled his arm away from an officer); O’Hara
v. City of New York, 570 F. App’x 21, 23–24 (2d Cir. 2014) (officers repeatedly
punched an “unarmed, non-menacing” individual in effecting an arrest);
Schreiber v. Moe, 596 F.3d 323, 332–33 (6th Cir. 2010) (officers pushed
unarmed, unthreatening individual to the ground and repeatedly punched
him); Sallenger v. Oakes, 473 F.3d 731, 740 (7th Cir. 2007) (officers repeatedly
punched a mentally ill individual to subdue him, who nonetheless had charged
officers and resisted arrest and verbal commands to comply).
Likewise, cases in this District agree that similar gratuitous application
of force when effecting an arrest is unreasonable. See Noble, 112 F. Supp. 3d at
228 (collecting five cases from this District); Helms v. Ryder, Civ. No. 14-2470,
2017 WL 1356323, at *6–7 (D.N.J. Apr. 12, 2017) (four punches while plaintiff
was on the ground).
Given the broad consensus of cases in the Courts of Appeals and this
District, I find that the right allegedly violated here was sufficiently established
at the time of the events. Thus, Officers Otundo and Montero are not entitled to
qualified immunity at this stage.
18
Indeed, the parties’ disagreement is not really about the law at all. The
officers are not claiming they could constitutionally beat a suspect for no
reason; rather, they deny that this is what occurred. Unresolved factual issues,
which must be tried, stand in the way of application of the qualified immunity
doctrine. The motions of Officers Otundo and Montero for summary judgment
on Count 3 and Count 5, to the extent based on excessive force, will therefore
be denied.
Failure to Intervene
Mr. Sanders alleges that Officer Montero failed to intervene and stop
Officer Otundo’s excessive use of force, a distinct constitutional violation. (See
Compl., Counts 5, 6.)
a. Constitutional Violation
“A police officer has a duty to take reasonable steps to protect a victim
from another officer’s use of excessive force, but only if there is a realistic and
reasonable opportunity to intervene.” El, 975 F.3d at 335 (cleaned up).5 Of
course, a failure-to-intervene claim requires a predicate use of excessive force.
Nifas v. Coleman, 528 F. App’x 132, 135–36 (3d Cir. 2013). So the factual
disputes regarding the excessive-force claim should also preclude summary
judgment on the dependent, failure-to-intervene claim.
Nonetheless, I consider whether, even accepting the excessive-force facts
in the light most favorable to Mr. Sanders, no reasonable juror could conclude
that Officer Montero culpably failed to intervene.
The New Jersey Supreme Court has not addressed whether the New Jersey
Constitution also imposes a duty to intervene to prevent excessive force. But that
court has held that the Fourth Amendment provides a “floor of constitutional
protection”; the implication is that protections of the New Jersey Constitution may not
fall short of Fourth Amendment protections but may exceed them. State v. Hempele,
576 A.2d 793, 800 (N.J. 1990). So I conclude that any failure to intervene by Officer
Montero would violate the New Jersey Constitution, too, and permit an NJCRA claim
based thereon. See Trafton, 799 F. Supp. 3d at 443–44 (§ 1983 and NJCRA claims
arising from excessive force are treated the same).
5
19
To the extent Officer Otundo’s initial shove was excessive, there can be
no failure-to-intervene claim against Officer Montero. That shove happened
spontaneously and without warning, and there is no reasonable inference that
Officer Montero had the opportunity to prevent it. See El, 975 F.3d at 335.
I therefore confine the failure-to-intervene analysis to the subsequent
period when Officer Otundo allegedly used excessive force while on the ground
with Mr. Sanders. At that point, at least, the timeline does not rule out the
possibility that Montero had an opportunity to intervene, so the claim may
implicate disputes of fact. See Anderson v. Branen, 17 F.3d 552, 557 (2d Cir.
1994) (the reasonable-opportunity-to-intervene standard presents questions of
fact for a jury to decide). As to that period, some factual issues arise.
First, there is a factual dispute over what Officer Montero could perceive
about the altercation as it unfolded. That dispute is material because failureto-intervene liability requires that Montero saw or was aware of the use of
excessive force. See Smith v. Mensinger, 293 F.3d 641, 650–51 (3d Cir. 2002)
(citations omitted). Montero reported that he witnessed Mr. Sanders “grab[]
P.O. Otundo by the neck.” (IA Rep. at 5.) If that statement is credited, then a
juror could find that Montero only perceived Otundo to be acting in self-defense
or lawfully effecting an arrest; on that version of events, no duty to intervene
arose. On the other hand, a juror could conclude, based on, e.g., the video,
that Sanders did not punch or choke Otundo, and offered minimal resistance.
Indeed, Otundo admitted he never gave any indication to Montero during or
after the event that he had been punched or choked. (Otundo Dep. at 153:23–
25, 90:18–22, 191:14–23.) Throughout the events, the video demonstrates,
Montero walked around calmly within a few feet of the two men. A juror could
conclude that if an officer perceived a dangerous struggle, he would have done
something to reinforce his fellow officer. The same behavior, then, would be
consistent with a conclusion that (a) Montero, for whatever reason, did not
perceive that Otundo was under attack, or (b) Montero was indifferent to
Otundo’s application of unreasonable force.
20
Second, there is a factual dispute over whether Officer Montero was
otherwise occupied during the altercation. Anderson, 17 F.3d at 558. On one
hand, Officer Otundo’s investigation report and the affidavit of probable cause
attest that Officer Montero was in a “physical struggle” to keep Magoo away
from Otundo and Mr. Sanders. (Otundo Rep. at 2; Crim. Compl. at 4.) On the
other hand, the character of Magoo’s behavior during the altercation, as seen
on video, is a factual matter to be considered by the jury. At one point, Montero
appears to be pacing back and forth while snapping or moving his fingers, as
Magoo playfully jumped at them. That interpretation would tend to rebut the
notion that both officers had their hands full with dual threats.
Third, there is a factual issue as to when and how Officer Otundo
punched Mr. Sanders. That dispute is material because if the events unfolded
in rapid succession, then Officer Montero might not have had a realistic
opportunity to intervene. See O’Neill v. Krzeminski, 839 F.2d 9, 11 (2d Cir.
1988) (three rapid blows did not provide an opportunity to intervene). The video
does not clearly show when the punches occurred. In fact, Otundo himself
seems to have been somewhat inconsistent about when he punched Mr.
Sanders. (See Section III.A.1.a.i, supra.) Accordingly, there are factual disputes
precluding a finding of no constitutional violation on the failure-to-intervene
claim.
b. Clearly Established
On the second prong of qualified immunity, a police officer’s duty to
intervene to prevent excessive force was well-established by 2017. Smith, 293
F.3d at 650–51; Baker v. Monroe Township, 50 F.3d 1186, 1193 (3d Cir. 1995).
The Third Circuit has held that the right described in Smith and Baker is
sufficiently specific and clear to preclude qualified immunity. Garbacik v.
Janson, 111 F. App’x 91, 94 (3d Cir. 2004); see Weimer v. County of Fayette,
972 F.3d 177, 191 (3d Cir. 2020). If it is sufficiently clear that the partner’s
force was excessive, then the duty to intervene is likewise clear. See Rivera v.
Como, 733 F. App’x 587, 590–91 (3d Cir. 2018).
21
Thus, factual issues bar the application of qualified immunity to Officer
Montero on the failure-to-intervene claim. For these reasons, Officer Montero’s
motion for summary judgment on Count 6 and Count 5, to the extent based on
a failure to intervene, will be denied.
False Arrest and Imprisonment
Once Officers Otundo and Montero gained control of Mr. Sanders, they
formally placed him under arrest and detained him. Sanders alleges that, in
doing so, they violated his constitutional rights to be free from false arrest and
imprisonment. (Compl., Counts 1, 5.) False-arrest and false-imprisonment
claims require Sanders to show that there was (1) an arrest and detention,
(2) without probable cause. Harvard v. Cesnalis, 973 F.3d 190, 199, 202 (3d
Cir. 2020); accord State v. Gibson, 95 A.3d 110, 118 (N.J. 2014) (New Jersey
Constitution). There can be no dispute that there was a seizure, i.e., an arrest
and follow-on detention.6 The issue, then, is probable cause.
“An officer has probable cause to arrest a person 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.” Harvard, 973 F.3d at 199–
200 (quotation marks and citation omitted). “This totality-of-the-circumstances
inquiry is necessarily fact-intensive,” so “summary judgment for false arrest
There was a detention here because Mr. Sanders was put into a police vehicle,
taken to a booking station, then taken to a hospital, and handcuffed to the hospital
bed. Nicholson v. City of Los Angeles, 935 F.3d 685, 691 (9th Cir. 2019) (handcuffed
while at hospital); Gaines v. Pro. Sec. Consultants, No. CV 16-5130, 2017 WL
10562573, at *3 (C.D. Cal. Nov. 28, 2017) (same); see Torres, 141 S. Ct. at 1001
(seizure for Fourth Amendment purposes can occur when there is any “termination of
freedom of movement”).
6
Relatedly, although Officer Otundo was primarily involved in subduing and
handcuffing Mr. Sanders, Officer Montero still had sufficient personal involvement for
a false-arrest and false-imprisonment claim because he (1) helped take Sanders to the
vehicle immediately after the handcuffing, (2) took Sanders, with Otundo, to the police
station for booking, and (3) took Sanders from there to the hospital. (IA Rep. at 3, 5;
Otundo Dep. at 162:12–13.)
22
and false imprisonment is proper only if no reasonable juror could find a lack
of probable cause for any of the charged crimes.” Id. (quotation marks and
citation omitted). I consider (a) the offenses formally charged, (b) the offenses
suggested by the charging documents, and (c) the leash ordinance.
a. Charged Offenses
Mr. Sanders was charged with three offenses: (1) “aggravated assault on
law enforcement by punching with his right hand and grabbing Officer
Otundo[] . . . by the neck and squeezing it,” in violation of N.J. Stat. Ann.
§ 2C:12-1(a)(1); (2) “resisting arrest by not complying with . . . verbal
commands, grabbing and pulling [Officer Otundo] by his uniform shirt,” in
violation of § 2C:29-2(a)(1); and (3) “disorderly conduct by engagin[g] in a
physical confrontation with the arresting officer . . . and using offensive
language towards the public,” in violation of § 2C:33-2(a)(1). (Crim. Compl. at 3
(capitalization altered).)7
For false-arrest-type claims, I only consider whether the officers had
probable cause for these offenses before the officers began to attempt the
arrest. Groman v. Township of Manalapan, 47 F.3d 628, 635 (3d Cir. 1995); see
also Trafton, 799 F. Supp. 2d at 436. The arrest here began when Officer
Otundo moved on top of Mr. Sanders after the fall and attempted to restrain
him, as this was “application of physical force to the body of a person with
intent to restrain [which] is a seizure even if the person does not submit and is
not subdued.” See Torres, 141 S. Ct. at 1003. Anything after Sanders’s fall is
an artifact, not a cause, of the seizure.8
Defendants have submitted three versions of the criminal complaint. At DE 6512, there are two copies, one with handwriting amending the statutes cited and a
signature dated ten days later, possibly by a magistrate. At DE 66-6 (Ex. H), there is a
defendant’s copy. The copies without handwriting seem to include an additional
charge for obstruction of lawful government function. However, the document from the
municipal court dismissing the charges reflects the charges listed in the copy with
handwriting. I discuss the additional obstruction charge in the following section.
7
I consider whether Mr. Sanders’s conduct following the initiation of the arrest
(i.e., his actions during the altercation) provided probable cause for any offense in
8
23
Turning to the charged offenses, there are genuine issues of material fact
as to whether Officers Otundo and Montero possessed probable cause. First,
the assault offense provides that “[a] person is guilty of assault if the
person . . . [a]ttempts to cause or purposely, knowingly or recklessly causes
bodily injury to another.” N.J. Stat. Ann. § 2C:12-1(a)(1). Assault is
“aggravated” if against a police officer. Id. § 2C:12-1(b)(5)(a). The only possible
assault prior to the arrest was Mr. Sanders’s raised hand, to the extent it may
be regarded as threatening. There is a factual dispute as to probable cause for
assault because a juror could watch the video and think that a reasonable
person could only perceive Sanders’s hand movements as a product of his
intoxication and agitation. (See Section III.A.1.a.i, supra.) A juror could thus
find it unreasonable for Otundo to perceive such a slight movement from an
otherwise non-threatening individual as a threat to strike the officer.
Second, “the resisting arrest charge could not have provided probable
cause for the arrest.” Groman, 47 F.3d at 635; see also Trafton, 799 F. Supp.
2d at 436. Courts have viewed such retroactive justifications with a jaundiced
eye, and rightly so. Id.
Third, the disorderly-conduct offense provides that “[a] person is
guilty . . . if with purpose to cause public inconvenience, annoyance or alarm,
or recklessly creating a risk thereof he . . . [e]ngages in fighting or threatening,
or in violent or tumultuous behavior.” N.J. Stat. Ann. § 2C:33-2(a)(1). A juror
could readily conclude that, prior to the arrest, Mr. Sanders had not engaged in
any fighting or threatening and that his behavior was not violent or
tumultuous. As to fighting, there is no evidence of Sanders attempting to fight
the officers. As to threatening, Sanders did say “If you touch my dog,” leaving
the sentence unfinished. But he said that to Officers Bauer and Saleh before
Officers Otundo and Montero had even arrived. (Azem Video 5 at 0:27–47; IA
Rep. at 6.) As to violent or tumultuous behavior, there were no indications that
Section III.A.5.a.ii, infra. It did not, so even if that conduct should be considered in the
false-arrest or false-imprisonment context, it would not change my conclusion.
24
Sanders would get violent. (See Saleh Dep. at 47:11–20, 51:6–53:20.) True, as
noted above, a juror might (or might not) credit the statements of Otundo and
Montero that, just prior to the altercation, Sanders jabbed his fingers at
Otundo’s face or went for his gun. (IA Rep. at 5; Otundo Dep. at 79:4–12.) But
a juror could alternatively credit Sanders’s testimony or view his raised arm as
innocuous. (Section III.A.1.a.i, supra.) If that is the case, Sanders’s conduct
would fall short of criminality. See State v. Stampone, 775 A.2d 193, 197 (N.J.
Super. Ct. App. Div. 2001) (slamming car door insufficient); State v. Davis,
2011 WL 2350039, at *2, 4 (N.J. Super. Ct. App. Div. June 3, 2011) (per
curiam) (flailing at officer insufficient).
All said then, issues of fact preclude my holding that Officers Otundo
and Montero had probable cause to arrest based on the three offenses charged.
b. Other Offenses Suggested by the Charging Documents
The criminal complaint equivocally refers to two other charges. First, one
version of the complaint included a fourth charge for obstruction of lawful
government function, N.J. Stat. Ann. § 2C:29-1(a). (Crim. Compl. at 2.) This
charge, however, is not on the copy seemingly signed by the magistrate, and is
not included in the municipal court’s list of dismissed charges. (Id. at 3; Muni.
Ct. Doc. at 1.) Second, the criminal complaint, in the charge of disorderly
conduct, stated that Mr. Sanders used “offensive language towards the public.”
(Crim. Compl. at 3.) The disorderly-conduct statute contains a subsection
proscribing such language, but that subsection was not cited as the basis for
the charge, and that charge is not cited in the dismissal. (Id.; Muni. Ct. Doc. at
1.)
Still, I can assess whether officers had probable cause to arrest even for
offenses not formally charged. See Devenpeck v. Alford, 543 U.S. 146, 153–55
(2004) (officers’ suspicions that suspect was impersonating a police officer
supported arrest, even if the suspect was only later charged with an unrelated
crime that was dismissed); Wright v. City of Philadelphia, 409 F.3d 595, 602 (3d
Cir. 2005) (“[I]t is irrelevant to the probable cause analysis what crime a
25
suspect is eventually charged with . . . .”); Barna v. City of Perth Amboy, 42
F.3d 809, 819 (3d Cir. 1994) (“Probable cause need only exist as to any offense
that could be charged under the circumstances.”). So I consider the two
offenses.
The officers lacked probable cause for obstruction of a lawful government
function. “[L]awfully performing an official function” refers to “a police officer
acting in objective good faith, under color of law in the execution of his duties.”
State v. Reece, 117 A.3d 1235, 1245 (N.J. 2015) (citation omitted). I assume,
then, that the officers’ efforts to get Mr. Sanders to comply with the leash
ordinance qualify. But obstruction “requires affirmative interference,” meaning
that the defendant made some “physical effort” to interfere with law
enforcement prior to the onset of arrest. State v. Fede, 202 A.3d 1281, 1287
(N.J. 2019). The “mere refusal to follow a police officer’s order” is not enough.
State v. Camillo, 887 A.2d 1151, 1155 (N.J. Super. Ct. App. Div. 2005); see also
Fede, 202 A.3d at 1287 (defendant’s refusal to unlock door when officers
attempted to enter house did not qualify). Mr. Sanders’s failure to leash his dog
would not support probable cause for the additional offense of obstruction. His
only physical act towards the two arresting officers prior to the (attempted)
arrest was his raised arm, but I have explained why a juror could find that
inoffensive. Thus, there is at best an issue of fact as to whether the obstruction
offense provided probable cause to arrest.
Neither could the offensive-language statue provide probable cause,
because the statute is unconstitutional and unenforceable. The statute makes
it an offense for someone to use “unreasonably loud and offensively coarse or
abusive language,” if it is uttered “in a public place, and with purpose to offend
the sensibilities of a hearer or in reckless disregard of the probability of so
doing.” N.J. Stat. Ann. § 2C:33-2(b). For Mr. Sanders’s obnoxious behavior and
profanity directed at officers of the law, there is no excuse. But the New Jersey
Superior Court, Appellate Division, barred enforcement of the “abusive
language” statute because it violates the First Amendment. State in Interest of
26
H.D., 501 A.2d 1016, 1018 (N.J. Super. Ct. App. Div. 1985); see also, e.g., State
v. Soo Hwan Kim, No. A-5958-11T2, 2014 WL 861582, at *1 (N.J. Super. Ct.
App. Div. Mar. 6, 2014) (per curiam) (reversing conviction under § 2C:33-2(b)
because the statute is unconstitutional). That being the case, the Third Circuit
has held that officers are not authorized to arrest for violations of § 2C:33-2(b).
Halpin v. City of Camden, 310 F. App’x 532, 534 (3d Cir. 2009). Thus, the
offensive-language statute could not provide probable cause.
c. Leash Ordinance
Finally, I must address whether Mr. Sanders’s violation of Jersey City’s
leash ordinance, although not mentioned in the criminal complaint, furnished
probable cause. (See Otundo Br. at 7, 15; Defs. Br. at 18.)9 I am compelled to
conclude that this infraction, though minor, did provide probable cause. I
therefore go on to discuss how the ordinance impacts Mr. Sanders’s claims
under (i) the Fourth Amendment and (ii) the New Jersey Constitution.
i.
Fourth Amendment
The Supreme Court has held that “even a very minor criminal offense”
may provide probable cause to arrest. Atwater v. City of Lago Vista, 532 U.S.
318, 354 (2001). That state law does not authorize arrest for a particular
Defendants barely preserved an argument that the leash ordinance provided
probable cause. Their briefs’ references to the ordinance are passing. (See Otundo Br.
at 7, 15; Defs. Br. at 18.) “Typically, arguments raised in passing but not squarely
argued, are considered waived.” Yates Real Estate, Inc. v. Plainfield Zoning Bd. of
Adjustment, 404 F. Supp. 3d 889, 913 n.28 (D.N.J. 2019) (cleaned up).
9
Nonetheless, I will consider the ordinance because Defendants have invoked a
probable-cause defense, “[p]robable cause need only exist as to any offense,” Barna,
42 F.3d at 819, the briefs at least mention the ordinance, and the record is clear that
at some point the officers planned to issue Mr. Sanders a summons for the leash-law
violation (Otundo Dep. at 75:24–76:1). It would not make sense to turn a blind eye to
the leash ordinance when it is all over the record. See Mesa v. Prejean, 543 F.3d 264,
272 n.2 (5th Cir. 2008) (considering offenses argued in the briefs and supported by the
record); cf. Tearpock-Martini v. Borough of Shickshinny, 756 F.3d 232, 238 (3d Cir.
2014) (“When an issue is properly before us, we are not limited to the particular legal
theories advanced by the parties, but rather retain the independent power to identify
and apply the proper construction of governing law.” (cleaned up)).
27
offense does not mean that such an arrest would violate the Fourth
Amendment. Virginia v. Moore, 553 U.S. 164, 176 (2008).
The leash ordinance provides that “no person who owns . . . any dog
shall suffer or permit it to be upon the public streets or in any of the public
places of the city unless such dog is accompanied by a responsible person and
is securely confined and controlled by one adequate leash.” Jersey City
Ordinance § 90-16.10 The ordinance carries a maximum penalty of a $2,000
fine, 90 days’ imprisonment, and/or 90 days’ community service. Id. § 1-25(A);
see id. § 90-22(B) (providing for the penalties in § 1-25).11 The officers received
calls about Magoo roaming the street, and, for the duration of their encounter
with Mr. Sanders, he declined to leash the dog. Accordingly, no reasonable
juror could find that the officers lacked probable cause for a violation of the
leash ordinance.
To be sure, Atwater left open the possibility that officers could effect an
arrest for a minor offense in such an “extraordinary manner” that they would
violate the Fourth Amendment. See 532 U.S. at 355 (citation omitted).
Nonetheless, the Atwater Court held that the plaintiff, who violated a seatbelt
Available at
https://library.municode.com/nj/jersey_city/codes/code_of_ordinances. “Municipal
ordinances that are available online . . . constitute public records and are subject to
judicial notice.” Hena v. Vandegrift, --- F. Supp. 3d ----, ----, No. 18-762, 2020 WL
1158640, at *25 (W.D. Pa. Mar. 10, 2020) (collecting cases).
10
There is a reasonable argument that, despite Atwater’s and Moore’s holdings,
the offense, however minor, must still be criminal, i.e., at least a misdemeanor as in
Atwater and Moore. See Lee v. Ferraro, 284 F.3d 1188, 1196 (11th Cir. 2002) (noting
argument but concluding that the offense was nonetheless criminal). But see Noviho v.
Lancaster County, 683 F. App’x 160, 162, 165 (3d Cir. 2017) (“summary offenses” in
Pennsylvania, which are graded below a misdemeanor and only impose a small fine,
can support an arrest); Primrose v. Mellott, 541 F. App’x 177, 181 (3d Cir. 2013)
(same). New Jersey, however, does not use the misdemeanor classification. Holloway
v. Att’y Gen. U.S., 948 F.3d 164, 175 (3d Cir. 2020) (citation omitted), cert. denied, --S. Ct. ----, 2021 WL 1520792 (U.S. Apr. 19, 2021). At least in other contexts, the Third
Circuit instructs that the maximum penalty available is more pertinent when
determining the seriousness of an offense. Id. The maximum penalty for the leash
ordinance exceeds the penalty in Atwater ($25–50 fine), so Atwater must apply.
11
28
law and was handcuffed and detained at the police station for an hour, did not
face an extraordinary arrest. Id. Mr. Sanders faced similar circumstances with
two exceptions: Officer Otundo used arguably excessive force, and Sanders was
detained for 24 hours, as evidenced by his handcuffing to a hospital bed. These
distinguishing circumstances, however, do not render the arrest
“extraordinary” within the meaning of Atwater.
First, courts have required that all such claims, to the extent they are
based on the force applied, be analyzed as excessive-force claims. Lee v.
Ferraro, 284 F.3d 1188, 1197–98 (11th Cir. 2002); see Ference v. Township of
Hamilton, 538 F. Supp. 2d 785, 803 (D.N.J. 2008). This follows from the
Supreme Court’s instruction that “all claims that law enforcement officers have
used excessive force . . . should be analyzed under the . . . ‘reasonableness’
standard.” Graham v. Connor, 490 U.S. 386, 395 (1989) (emphasis in original).
Thus, although the character of this arrest was surely disproportionate to the
offense, that disproportion does not render the arrest itself unconstitutional.
Next, although Mr. Sanders’s length of detention exceeded that in
Atwater, it was not unreasonable. Atwater held that a minor offense allows an
officer to make a custodial arrest. 532 U.S. at 354. A custodial arrest, in turn,
generally allows a detention for up to 48 hours before a magistrate must review
whether probable cause exists to merit continued detention. County of
Riverside v. McLaughlin, 500 U.S. 44, 56 (1991); see also Atwater, 532 U.S. at
352 (citing McLaughlin as a protection afforded to minor-offense detainees).
Sanders was detained for half that time. In any event, he has not argued that
his detention was unreasonably lengthy. McLaughlin, 500 U.S. at 56–57.
Thus, under Atwater and Moore, Mr. Sanders’s violation of the leash
ordinance provided Officers Otundo and Montero probable cause to arrest and
detain him, at least under the Fourth Amendment.12
It is not lost on me that only this very minor leash law violation stands between
these officers and a clearly established false-arrest violation. New Jersey law was clear
that Mr. Sanders had not otherwise committed an offense. Swearing at a police officer,
though disrespectful, cannot support an arrest. Halpin, 310 F. App’x at 534. New
12
29
ii.
New Jersey Constitution
The analysis is different to the extent Mr. Sanders brings his false-arrest
and false-imprisonment claims under the NJCRA. (See Compl., Count 5.) While
state-law designations of arrestable offenses are irrelevant for Fourth
Amendment claims, such designations are, of course, relevant to state
constitutional claims. Thus, I must decide if, under New Jersey law, the officers
could arrest Mr. Sanders.
By statute, officers may “upon view arrest any disorderly person or any
person committing a breach of the peace.” N.J. Stat. Ann. § 40A:14-152. New
Jersey courts have implied that this statute is coterminous with an officer’s
constitutional power to arrest. See State v. Brown, 14 A.3d 26, 34 (N.J. 2011)
(arrest was valid under Article I, paragraph 7, in part because officers had
authority to arrest under § 40A:14-152); see also, e.g., State ex rel. R.M., 974
A.2d 1110, 1113–14 (N.J. Super. Ct. App. Div. 2009).13 “There are two
preconditions to exercise of the power of arrest under this section: (1) the
offense must have occurred ‘upon view’ of the officer, and (2) the offender must
be either a ‘disorderly person’ or have committed a ‘breach of the peace.’” State
v. Hurtado, 529 A.2d 1000, 1007 (N.J. Super. Ct. App. Div. 1987) (Skillman, J.,
dissenting), rev’d on dissent, 549 A.2d 428 (N.J. 1988) (per curiam) (“The
judgment of the Appellate Division is reversed . . . substantially for the reasons
Jersey has long decriminalized public intoxication as such. See N.J. Stat. Ann.
§§ 26:2B-29, 26:2B-16. Mere failure to comply with an officer’s demands is not a
crime. Camillo, 887 A.2d at 1155. Disorderly conduct is not established simply by a
person’s cursing, yelling, or ineffectually flailing at an officer. Stampone, 775 A.2d at
197–98; Davis, 2011 WL 2350039, at *2, 4.
All said then, even cursory knowledge of the offenses would indicate that a nonthreatening, albeit intoxicated, cursing, and uncooperative, person had committed no
crime. Where the lack of criminality is so clear, qualified immunity will not defeat
liability. See Peroza-Benitez, 2021 WL 1307883, at *5 (“A public official does not get
the benefit of one liability-free violation simply because the circumstance of his case is
not identical to that of a prior case.” (quotation marks and citation omitted)).
Regardless, the NJCRA allows a plaintiff to sue for deprivations of statutory
rights. Harz v. Borough of Spring Lake, 191 A.3d 547, 555–56 (N.J. 2018).
13
30
expressed in the dissenting opinion of Judge Skillman.”); see also, e.g., Marion
v. Borough of Manasquan, 555 A.2d 699, 704 (N.J. Super. Ct. App. Div. 1989)
(applying the Hurtado dissent as the governing standard). The officers here
witnessed Mr. Sanders’s defiant refusal to obey the leash ordinance. The
harder question is whether that refusal converted Sanders’s leash-law violation
to a “disorderly persons” offense or a “breach of the peace.”
“Violation of a municipal ordinance is not a disorderly persons offense.
Consequently, the police officers’ power to detain plaintiffs . . . depends solely
upon whether the violation of the ordinance can be considered a ‘breach of the
peace.’” Marion, 555 A.2d at 704.14 A “breach of the peace” is not defined, but
the traditional definition includes “engaging in an affray” and “being intoxicated
and yelling on a public street.” Hurtado, 529 A.2d at 1007 (citation omitted).
Hurtado also suggested that “deliberate defiance of the officer” could be a
breach of the peace, but “a simple act of insolence towards authority” does not
suffice. Id. In so suggesting, Hurtado implied that the analysis does not focus
just on whether the ordinance itself involves a breach of the peace but
encompasses whether the arrestee violated the ordinance in a manner that, in
addition, beached the peace. See id. (“Defendant’s actions in throwing litter on
the street [in violation of a littering ordinance] . . . cannot reasonably be found
to have constituted a ‘breach of the peace.’” (emphasis added)); accord State v.
There is contrary authority. In State v. Vonderfecht, the Appellate Division held
that the arresting power is not confined to disorderly persons offenses but extends to
disorderly persons generally. 665 A.2d 1145, 1147 (N.J. Super. Ct. App. Div. 1995). As
such, courts review the “conduct of the offender.” Id. Based on that reasoning, the
court held that a person who committed a petty disorderly person offense, a grade
lower than disorderly person offenses, was a “disorderly person” under § 40A:14-152.
Id. The New Jersey Supreme Court adopted Vonderfecht’s holding that officers can
arrest for petty disorderly persons offenses. State v. Dangerfield, 795 A.2d 250, 260
(N.J. 2002). What is more, a court in this District, applying those precedents, held that
a person who violated a municipal ordinance was a disorderly person under § 40A:14152. Ference, 538 F. Supp. 2d at 802–03.
14
I, however, need not reconcile Vonderfecht, Dangerfield, and Hurtado and decide
whether Mr. Sanders could also qualify as a disorderly person because I conclude that
he could be arrested for breaching the peace.
31
Vonderfecht, 665 A.2d 1145, 1147 (N.J. Super. Ct. App. Div. 1995) (“[T]he only
focus is upon the conduct of the offenders . . . .”).
Officers Otundo and Montero had probable cause to believe that Mr.
Sanders breached the peace. His repeated refusals to obey the leash ordinance
crossed from “a simple act of insolence towards authority” to a “deliberate
defiance of the officer.” Hurtado, 529 A.2d at 1007. Further, his refusals were
in the context of an extended, loud, confrontation with the officers. Id. He was
“intoxicated and yelling on a public street” before and during this encounter.
Id. This is not to say that an officer can arrest someone solely for being loud,
drunk, and noncooperative (at least in New Jersey). See n.12, supra. Rather, as
I read Hurtado, there must be an underlying violation of an ordinance
accompanied by peace-breaching behavior. Thus, because Sanders violated the
leash ordinance and did so in a way that breached the peace, the officers could
reasonably believe that an arrest was supported by New Jersey law.
Accordingly, Sanders cannot succeed on his NJCRA claim based on false arrest
or imprisonment.
For these reasons, Officers Otundo’s and Montero’s motions for summary
judgment on Count 1 and Count 5, to the extent based on false arrest and
imprisonment, will be granted.
Illegal Search and Seizure
Mr. Sanders pleads a claim for “illegal search and seizure.” (Compl.,
Count 2.) His briefs indicate that this claim is essentially a recasting of his
false-arrest and false-imprisonment claim. (Opp. to Otundo Br. at 16–17.)
Indeed, these are all just different ways of seeking recovery for a FourthAmendment seizure. See Dorval v. State, Civ. No. 20-5997, 2021 WL 236625, at
*3 n.4 (D.N.J. Jan. 25, 2021). Thus, the claim should be defeated by a showing
of probable cause. See Cresci v. Kazan, Civ. No. 19-19928, 2020 WL 5700754,
at *3 (D.N.J. Sept. 24, 2020).
Even if Mr. Sanders were claiming that Officers Otundo and Montero
unlawfully searched him, that claim would fail. To be sure, the record shows
32
that Otundo and Montero took Sanders to “[p]rocessing” (Otundo Dep. at
124:5–25:2), and a juror could infer that such processing included searches of
Sanders’s person, as is customary. See Illinois v. Lafayette, 462 U.S. 640, 643–
44 (1983). In addition, the officers returned to the hospital the next day to
fingerprint him. (Sanders Dep. at 81:7–13.) Nonetheless, arrests for even minor
offenses permit booking searches and fingerprinting. See Moore, 553 U.S. at
176–77 (arrests for minor offenses allow for searches incident to arrest
including at booking); Maryland v. King, 569 U.S. 435, 461 (2013) (searches
incident to arrest can include fingerprinting); State v. Daniels, 924 A.2d 582,
591 (N.J. Super. Ct. App. Div. 2007) (searches incident to arrest for minor
offenses permissible under Article I, paragraph 7). Because the initial arrest
was lawful, so were routine subsequent searches. Moore, 553 U.S. at 176–77.
For these reasons, Officers Otundo’s and Montero’s motions for summary
judgment on Count 2 and Count 5, to the extent based on an unconstitutional
search, will be granted.
Malicious Prosecution
After Mr. Sanders was taken to the hospital, Officers Otundo and
Montero prepared a criminal complaint. Mr. Sanders alleges that they are thus
liable for malicious prosecution. (See Compl., Counts 5, 9.)
a. Constitutional Violation
Constitutional protections against unreasonable seizures also mean that
officials cannot initiate criminal processes without probable cause. See
Johnson v. Knorr, 477 F.3d 75, 82–83 (3d Cir. 2007) (Fourth Amendment);
Middleton v. City of Ocean City, Civ. No. 12-0605, 2014 WL 2931046, at *5 n.4
(D.N.J. June 30, 2014) (Article I, paragraph 7).15 A malicious-prosecution claim
has five elements:
There is also a common-law tort for malicious prosecution. LoBiondo v.
Schwartz, 970 A.2d 1007, 1022 (N.J. 2009). But Mr. Sanders’s briefs treat his
malicious-prosecution claim as constitutional, so I follow suit. I also assume, given
that Count 5 alleges that all alleged federal constitutional violations are also state
constitutional violations, that he also brings that claim under the NJCRA.
15
33
(1) the defendants initiated a criminal proceeding;
(2) the criminal proceeding ended in the plaintiff’s favor;
(3) the proceeding was initiated without probable cause;
(4) the defendants acted maliciously or for a purpose other than
bringing the plaintiff to justice; and
(5) the plaintiff suffered deprivation of liberty consistent with the
concept of seizure as a consequence of a legal proceeding.
Harvard, 973 F.3d at 203 (cleaned up). Defendants only move for summary
judgment based on Mr. Sanders’s ability to prove the first, third, and fourth
elements. (Defs. Br. at 7, 13; Otundo Br. at 24.)16
i.
Initiation of Criminal Proceedings
Officer Otundo argues that he never initiated a criminal proceeding
against Mr. Sanders because Officer Montero signed the criminal complaint.
(Otundo Br. at 24.) “In most cases, a prosecutor rather than a police officer
initiates a criminal prosecution,” so the prosecutor is the proper defendant.
Fought v. City of Wilkes-Barre, 466 F. Supp. 3d 477, 507 n.6 (M.D. Pa. 2020)
(cleaned up). Particularly as to minor offenses, however, charging complaints
may be drafted by officers in this state. The record does not provide any details
of Mr. Sanders’s proceedings beyond the criminal complaint and dismissal.
Regardless, “[i]f the officers influenced or participated in the decision to
institute criminal proceedings, they can be liable for malicious prosecution.”
Halsey v. Pfeiffer, 750 F.3d 273, 297 (3d Cir. 2014). As a result, an officer can
be liable for what the officer includes in (or omits from) an affidavit for probable
Regardless, the second element is satisfied “if the criminal case was disposed of
in a way that indicates the innocence of the accused,” such as “a discharge by a
magistrate at a preliminary hearing.” Allen v. N.J. State Police, 974 F.3d 497, 502–03
(3d Cir. 2020) (quotation marks and citation omitted). So the dismissal by the
municipal court would suggest a favorable termination. As to the fifth element, Mr.
Sanders was handcuffed while in the hospital for nearly 24 hours following the arrest,
during and after when the officers filed the criminal complaint. He also had to make
court appearances. Thus, he suffered a seizure in connection with the charges. See
Gallo v. City of Philadelphia, 161 F.3d 217, 223 (3d Cir. 1998) (arrest and mandatory
appearance in court to answer for charges amounted to seizure for a maliciousprosecution claim).
16
34
cause and the manner in which the officer drafts a criminal complaint. See
Harvard, 973 F.3d at 203.
Given that, the first element of malicious prosecution is satisfied as to
Officer Otundo. He worked with Officer Montero to draft the criminal
complaint, and they discussed and decided together what offenses to charge.
(Otundo Dep. at 72:1–73:17.) Moreover, the affidavit of probable cause was
written by Otundo. (Crim. Compl. at 4.) Thus, Otundo cannot defeat summary
judgment based on the first element.
ii.
Probable Cause
Both officers move for summary judgment on the ground that there was
probable cause. For the malicious-prosecution claim, the probable cause
analysis differs from the false-arrest context. Whereas false-arrest claims
require me to assess probable cause up to the moment of arrest, maliciousprosecution claims require me to assess whether the officers had probable
cause as to each offense charged. See Johnson, 477 F.3d at 85 (maliciousprosecution liability lies if probable cause was lacking for any offense charged).
That principle has two consequences here. First, the officers’ probable
cause to arrest Mr. Sanders for violating the leash ordinance does not insulate
them from the malicious-prosecution claim. See id. Second, I must consider
whether Mr. Sanders’s conduct during the altercation (i.e., even after the arrest
was initiated) supported the charges eventually brought. See Harvard, at 201
n.4, 202–03 (explaining that, in a case where a person was arrested for driving
under the influence, the Court would not consider a drug evaluation performed
at the police station when assessing probable cause for the arrest but could
consider it for the malicious-prosecution claim).
With those differences in mind, I find that a juror could conclude that
probable cause was lacking as to all charges. For starters, I have already
concluded that a juror could find that probable cause was lacking for the
offenses charged (or even passively referenced in the complaint) based on
events occurring up until the arrest. (Section III.A.3.a–b, supra.) I now further
conclude that there are factual disputes as to Mr. Sanders’s conduct during
35
and after the arrest that are material to the issue of whether the officers had
probable cause to charge him. See Halsey, 750 F.3d at 300 (factual disputes as
to probable cause preclude summary judgment on a malicious-prosecution
claim).
Recall that, viewing the record most favorably to Mr. Sanders, a juror
could view the video and perceive little to no physical force or resistance
coming from Sanders. Indeed, the video shows no punches or choking from
him. Rather, Officer Otundo was on top of Sanders nearly the entire time. Still
further, Officer Montero never felt the need to get involved, which suggests that
Sanders was not resisting. (Again, the officers have testified otherwise, but I
cannot resolve that factual dispute on summary judgment.)
First, on the assault charge, the minimal or non-existent physical force
coming from Mr. Sanders in the video means that he did not “[a]ttempt to
cause or purposely, knowingly or recklessly cause[] bodily injury to another.”
N.J. Stat. Ann. § 2C:12-1(a)(1); see Groman, 47 F.3d at 635 (“[S]hould a jury
decide that Groman did not hit Kirkland, it could determine that Kirkland
lacked probable cause to arrest him on the aggravated assault charge.”).
Second, on the resisting-arrest charge, Mr. Sanders must have
“purposely prevent[ed] or attempt[ed] to prevent a law enforcement officer from
effecting an arrest.” N.J. Stat. Ann. § 2C:29-2(a)(1). Mr. Sanders denies that he
was even told he was under arrest. (Sanders Dep. at 70:1–23.) From his point
of view, he says, he was simply being assaulted. In addition, a juror could view
the video and perceive that, although Sanders did not immediately submit to
arrest, any physical response from him while on the ground was a result of
shock from the sudden shove or self-defense in response to excessive force. See
State v. Simms, 849 A.2d 573, 577 (N.J. Super. Ct. App. Div. 2004) (“[I]f the
officer uses excessive or unnecessary force the citizen may respond or counter
with the use of reasonable force to protect himself . . . .” (quotation marks and
citation omitted)). For those two reasons, a juror could find that he did not
purposefully prevent an arrest.
36
Third, a juror could find that the disorderly-conduct charge is deficient in
two ways. To start, the person must “[e]ngage[] in fighting or threatening, or in
violent or tumultuous behavior.” N.J. Stat. Ann. § 2C:33-2(a)(1). Mr. Sanders’s
limited physicality during the altercation, as seen in the video, falls short of
such conduct. Even if he had engaged in such conduct, he must have done so
with a “purpose to cause public inconvenience, annoyance[,] or alarm” or
“recklessly creat[ed] a risk thereof.” Id. Taking an adversarial position to the
police officers, even a physical one, does not evince a public-facing purpose. As
the Appellate Division explained, a “testy exchange” with a police officer does
not qualify for the disorderly-conduct offense because the defendant’s actions
are directed at the officer—not the public. Stampone, 775 A.2d at 197.
Accordingly, a juror could find that there was not probable cause for the
disorderly-conduct charge.
In sum, a juror could find probable cause lacking on each crime charged.
iii.
Malice
Officer Montero argues that Mr. Sanders cannot show malice. (Defs. Br.
at 6–7.) But “malice may be inferred from want of probable cause.” Dorval,
2021 WL 236625, at *8 (quoting Brunson v. Affinity Fed. Credit Union, 972 A.2d
1112, 1120 (N.J. 2009)). As a result, fact issues precluding a finding on
probable cause will generally also preclude a finding on malice. Bartlebaugh v.
City of Camden, Civ. No. 05-0121, 2007 WL 4415066, at *2 (D.N.J. Dec. 13,
2007).
And there is extrinsic evidence of malice. Mischaracterizing events in an
affidavit can show malice. Harvard, 973 F.3d at 203–04. Here, the affidavit
describes Mr. Sanders choking Officer Otundo, but Sanders flatly denies that
characterization, and the video does not show any choking. (Crim. Compl. at 4;
Sanders Dep. at 74:4–8.) Further, the affidavit describes a tense situation in
which the officers not only were dealing with Mr. Sanders but also “in a
physical struggle” with Magoo who “was getting agitated and began to take
biting attempts.” (Crim. Compl. at 4.) But a juror could watch the video and see
Magoo playfully hopping around the officers. Moreover, Otundo was never in a
37
“physical struggle” with Magoo; he was occupied with Sanders. Thus, a juror
could conclude that the officers mischaracterized the events in a way that
supported Otundo’s use of force. Such self-serving mischaracterization—if
accepted by a finder of fact—would permit a finding of malice. Harvard, 973
F.3d at 203–04.
In addition, Mr. Sanders testified that Officer Otundo cursed at him and
used a homophobic slur while punching him. (Sanders Dep. at 67:17–22.) A
juror who credited that testimony could conclude that the officers’ decision to
pursue charges was motivated in part by animosity toward Sanders, “a purpose
other than bringing [him] to justice.” Harvard, 973 F.3d at 203. This, too,
creates a factual issue precluding a finding on malice.
To recap, Officers Otundo’s and Montero’s arguments for summary
judgment on the malicious-prosecution claim fail because there are factual
issues. As such, I cannot rule on summary judgment that there was no
constitutional violation.
b. Clearly Established
The Third Circuit has held that the right to be free from prosecution
absent probable cause is clearly established. Andrews, 853 F.3d at 705; Gallo
v. City of Philadelphia, 161 F.3d 217, 220 n.4 (3d Cir. 1998). For the reasons
given at note 12, supra, and supplemented in this section, the lack of probable
cause, based on Mr. Sanders’s version of the facts, would have been clear to
any reasonable officer. Thus, Officers Otundo and Montero violated a clearly
established right.
For these reasons, Officers Otundo’s and Montero’s motions for summary
judgment on Count 9 and Count 5, to the extent based on malicious
prosecution, will be denied.
Conspiracy
Mr. Sanders alleges that Officer Otundo and Montero’s joint work on the
criminal charges amounts to a § 1983 conspiracy. (Compl., Count 7.) To prevail
on that claim, he “must prove that persons acting under color of state law
38
reached an understanding to deprive him of his constitutional rights. This
requires that the state actors took concerted action based on an agreement to
deprive the plaintiff of his constitutional rights, and that there was an actual
underlying constitutional violation . . . .” Harvard, 973 F.3d at 207 (quotation
marks and citation omitted). To defeat summary judgment, a plaintiff need only
point to circumstantial evidence of an agreement and concerted action.
Jutrowski v. Township of Riverdale, 904 F.3d 280, 295 (3d Cir. 2018). This
includes conversations between the officers, distorted stories in police reports,
and time available to reach an agreement. Id. at 295–97.
Mr. Sanders produced such evidence here. Officers Otundo and Montero
drove back from the hospital to the police station together and then jointly
worked on the criminal charges. They had conversations about what offenses
to charge. (Otundo Dep. at 72:1–73:17, 195:7–196:14.) The affidavit of probable
cause was written by Otundo, while Montero signed the criminal complaint,
making the charging instrument a partner project. (Crim. Compl. at 3, 4.)
There is thus circumstantial evidence of an agreement and concerted action.
Moreover, a juror could find that the object of their efforts was to deprive Mr.
Sanders of his right to be free from prosecution absent probable cause,
because the charges were lacking in probable cause and the facts alleged in the
criminal complaint were (on one permissible view of the facts) distorted. (See
Section III.A.5.a.ii–iii, supra.)
Finally, taking the facts in Mr. Sanders’s favor, the officers violated Mr.
Sanders’s clearly established rights by bringing the charges. (Section III.A.5.b,
supra.) Doing so in concert does not change the qualified immunity analysis.
See Cope v. Encapera, 758 F. App’x 252, 257 (3d Cir. 2018) (facts showing that
clearly established rights were violated precluded summary judgment on
accompanying conspiracy claim). Regardless, it was clearly established that
officers cannot conspire to maliciously prosecute individuals. E.g., Molina v.
City of Lancaster, 159 F. Supp. 2d. 813, 820 (E.D. Pa. 2001); Cipolla v. County
of Rensselaer, 129 F. Supp. 2d 436, 456 (N.D.N.Y. 2001).
39
For these reasons, Officers Otundo’s and Montero’s motions for summary
judgment on Count 7 will be denied.
B. Individual State Tort Claims
I now turn to the claims that arise purely under state law: (1) assault
and battery, and (2) IIED and NIED.
Assault and Battery
Mr. Sanders alleges that Officers Otundo and Montero are liable for
assault and battery based on the altercation and his arrest. (See Compl., Count
10.) “A person is subject to liability for the common law tort of assault if: (a) he
acts intending to cause a harmful or offensive contact with the person of the
other . . . , or an imminent apprehension of such a contact, and (b) the other is
thereby put in such imminent apprehension.” Leang v. Jersey City Bd. of Educ.,
969 A.2d 1097, 1117 (N.J. 2009) (quotation marks and citation omitted). “The
tort of battery rests upon a nonconsensual touching,” id., “even if harmless,”
Russo Farms, Inc. v. Vineland Bd. of Educ., 675 A.2d 1077, 1087 (N.J. 1996)
(citation omitted). Although arrests may involve force that would qualify as an
assault or battery, an officer is only liable if the force was excessive. Panarello
v. City of Vineland, 160 F. Supp. 3d 734, 767 (D.N.J. 2016) (citing State v.
Williams, 148 A.2d 22, 28–29 (N.J. 1959)); see also, e.g., Hill v. Algor, 85 F.
Supp. 2d 391, 411 (D.N.J. 2000). So the analysis for assault and battery tracks
the analysis for excessive force. Id. There are genuine disputes of fact as to
whether the officers used excessive force (Section III.A.1.a, supra), so I cannot
grant summary judgment on the assault and battery claims. Mantz v. Chain,
239 F. Supp. 2d 486, 507 (D.N.J. 2002).
For these reasons, Officers Otundo’s and Montero’s motions for summary
on Count 10 will be denied.
IIED and NIED
Mr. Sanders alleges claims for IIED and NIED. (Compl., Count 8.)
Officers Otundo and Montero argue that they have immunity under the New
40
Jersey Tort Claims Act (“NJTCA”), N.J. Stat. Ann. § 59:9-2(d), and Mr. Sanders
lacks evidence on the elements. (Otundo Br. at 23; Defs. Br. at 41–45.)
a. NJTCA
Officer Montero invokes the NJTCA, which provides that “[n]o damages
shall be awarded against a . . . public employee for pain and suffering resulting
from any injury; provided, however, that this limitation . . . shall not apply in
cases of permanent loss of a bodily function, permanent disfigurement or
dismemberment where the medical treatment expenses are in excess of
$3,600.00.” N.J. Stat. Ann. § 59:9-2(d). He argues that this provision, called
the “verbal threshold,” bars emotional-distress damages and thus Mr.
Sanders’s IIED and NIED claims. (Defs. Br. at 41–42.)17 Reliance on the verbal
threshold is misplaced for two reasons.
First, the verbal threshold does not grant immunity from IIED claims.
Leang, 969 A.2d at 1115. This is so because the NJTCA elsewhere “strip[s]
away immunity for acts of willful misconduct.” Id. at 1113 (citing N.J. Stat.
Ann. § 59:3-14(a)). “Willful misconduct” is more than “simple negligence” but
less than “intentional infliction of harm.” Alston v. City of Camden, 773 A.2d
693, 185 (N.J. 2001). As a result, “the elements of the [IIED] cause of action
place the claim outside of the scope of the qualified immunity and the verbal
threshold protection otherwise available to defendants.” Leang, 969 A.2d at
1115. If Mr. Sanders can create a genuine dispute of material fact on those
elements, then the verbal threshold does not apply.
Second, as to both claims, the verbal threshold does not apply to
“permanent psychological injury, when properly documented.” Nieves v. Office
of the Pub. Defender, 230 A.3d 227, 237 (N.J. 2020). For example, the verbal
Officer Montero only claims immunity under the NJTCA for this reason, and
Officer Otundo does not claim immunity at all. The defendant has the burden to prove
immunity under the NJTCA. Faragella v. Jersey City, Civ. No. 17-3604, 2020 WL
5812798, at *15 (D.N.J. Sept. 30, 2020) (citing Leang, 969 A.2d at 1112). Thus, I do
not consider any other potential bases for immunity provided by the NJTCA, such as
whether the NJTCA generally provides immunity for an NIED claim.
17
41
threshold does not bar damages for PTSD resulting from a physical invasion of
the person. Collins v. Union Cty. Jail, 696 A.2d 625, 630, 631 (N.J. 1997). Mr.
Sanders has presented medical evidence of body dysmorphic disorder, PTSD,
depression, and anxiety as a result of physical injury, disfigurement, and
trauma. Thus, the verbal threshold does not apply.
b. IIED
An IIED plaintiff must show “(1) intentional conduct; (2) the conduct was
extreme and outrageous; (3) the conduct proximately caused plaintiff’s
emotional distress; and (4) the emotional distress was severe.” DeAngelis v. Hill,
847 A.2d 1261, 1272 (N.J. 2004). Generally, factual issues precluding
summary judgment on an excessive-force claim would preclude summary
judgment on the first, second, and third elements of IIED. E.g., Esposito v. Little
Egg Harbor Township, Civ. No. 08-3725, 2012 WL 1495468, at *6 (D.N.J. Apr.
27, 2012); Day v. Jackson Township, Civ. No. 10-4011, 2013 WL 394151, at *9
(D.N.J. Jan. 30, 2012); Iglesia v. City of Glassboro, Civ. No. 04-3034, 2007 WL
1723478, at *5–6 (D.N.J. June 13, 2007).
On the first element, the “[d]efendant must intend both to do the act and
to produce emotional distress” or the defendant must “act[] recklessly in
deliberate disregard of a high degree of probability that emotional distress will
follow.” Ingraham v. Ortho-McNeil Pharm., 25 A.3d 1191, 1195 (N.J. Super. Ct.
App. Div. 2011) (quotation marks and citation omitted). As to Officer Otundo, a
juror could find that he intentionally punched Mr. Sanders in the face. (Section
III.A.1.a.i, supra.) As a result, a juror could find that he either intended to
produce emotional distress or acted recklessly in that regard because punches
to the head are obviously traumatic. As to Officer Montero, a juror could find
that he kicked Sanders or knowingly failed to intervene to prevent harm to
Sanders. (Section III.A.2.a.ii, supra.) Accordingly, he deliberately disregarded a
high risk that Sanders would suffer trauma as a result of (in his version) being
set upon by not one but two policemen.
42
On the second element, excessive force and the knowing failure to
prevent it can be considered extreme and outrageous conduct. Marshall v.
Keansburg, Civ. No. 13-0533, 2013 WL 6095475, at *10 (D.N.J. Nov. 30, 2013);
see also, e.g., McDonald v. County of Sonoma, No. 20-cv-04183, --- F. Supp. 3d
----, ----, No. 2020 WL 7319400, at *11 (N.D. Cal. Dec. 11, 2020) (collecting
cases).
On the third element, Mr. Sanders has produced medical documentation
that his psychological injuries are direct the result of the disfigurement and
trauma caused by the punches. (Torchinsky Rep. at 3; Gardere Rep. at 22–23.)
On the fourth element, severe emotional distress means “a mental
condition of a type which may be generally recognized and diagnosed by
clinicians.” See Aly v. Garcia, 754 A.2d 1232, 1237 (N.J. Super. Ct. App. Div.
2000); see also Clark v. Nenna, 244 A.3d 291, 295 (N.J. Super. Ct. App. Div.
2020). Mr. Sanders has produced evidence of such clinical diagnoses. (Gardere
Rep. at 22–23.)
Thus, summary judgment is inappropriate on the IIED claim.
c. NIED
An NIED claim requires that “(1) a duty of reasonable care was owed by
the defendant to the plaintiff, (2) that duty was breached, (3) the plaintiff
suffered severe emotional distress, and (4) the breach was a proximate cause of
injury.” G.D. v. Kenny, 984 A.2d 921, 933 (N.J. Super. Ct. App. Div. 2009)
(quotation marks and citation omitted), aff’d, 15 A.3d 300 (N.J. 2011). As to
the first element, the New Jersey Supreme Court has recognized that police
officers owe a duty to arrestees to exercise “reasonable care to preserve the life,
health, and safety of the person in custody.” Del Tufo v. Township of Old Bridge,
685 A.2d 1267, 1272 (N.J. 1996). As to the second element, there are factual
disputes as to whether the officers here breached that duty by using excessive
force or failing to intervene, so summary judgment is inappropriate. See
Roccisano v. Township of Franklin, Civ. No. 11-6558, 2013 WL 3654101, at *11
(D.N.J. July 12, 2013) (factual issues on excessive-force claim created factual
43
issues on breach for negligence claim). The third and fourth elements are
essentially the same as for the IIED claim, which are satisfied. See Innes v.
Marzano-Lesnevich, 87 A.3d 775, 797 (N.J. Super. Ct. App. Div. 2014); see also
Wright-Phillips v. United Airlines, Inc., Civ. No. 20-14609, 2021 WL 1221111, at
*16 (Apr. 1, 2021). Accordingly, the officers are not entitled to summary
judgment on the NIED claim.
For these reasons, Officer Otundo’s and Officer Montero’s motions for
summary on Count 8 will be denied.
C. Municipal-Liability Claims
Mr. Sanders brings a claim against Jersey City,18 alleging that its
practices failed to prevent Officer Otundo’s excessive force. (Compl., Count 4.)
A municipality may be liable under § 1983 and the NJCRA if its “policy or
custom inflicted the [constitutional] injury in question.” Estate of Roman v. City
of Newark, 914 F.3d 789, 798 (3d Cir. 2019) (cleaned up); see also Khalil v.
City of Paterson, Civ. No. 18-3241, 2018 WL 6168191, at *9 (D.N.J. Nov. 26,
2018) (same municipal-liability principles apply to NJCRA). Custom “can be
proven by showing that a given course of conduct, although not specifically
endorsed or authorized by law, is so well-settled and permanent as virtually to
constitute law.” Roman, 914 F.3d at 798 (citation omitted).
A municipality may also be liable if the plaintiff shows that his
constitutional injuries “were caused by a failure or inadequacy by the
municipality that reflects a deliberate or conscious choice.” Forrest v. Parry,
930 F.3d 93, 105 (3d Cir. 2019) (quotation marks and citation omitted). This
claim encompasses allegations that a city failed “to train, supervise, and
discipline its police officers.” Id. (citation omitted). A plaintiff must show
“(1) municipal policymakers know that employees will confront a particular
situation, (2) the situation involves a difficult choice or a history of employees
mishandling, and (3) the wrong choice by an employee will frequently cause
The Complaint also alleges this claim against the Police Department, which has
been dismissed from the case See n.3. The City is the proper defendant.
18
44
deprivation of constitutional rights.” Id. at 106. There is a “close relationship
between policy-and-custom claims and failure-or-inadequacy claims.” Id.
In support of his municipal-liability claim, Mr. Sanders points to
evidence that Officer Otundo had faced multiple, similar complaints, so a juror
could infer that the City knew about his constitutional violations yet failed to
prevent them from reoccurring. He also points to statistical evidence and other
investigations to show that the City fails to promptly investigate and resolve
excessive-force complaints. (Opp. to Defs. Br. at 31–49.) The City gives
essentially two reasons why it is entitled to summary judgment on the
municipal-liability claim. However persuasive they may be, they do not
establish that there is no factual issue presented.
First, the City argues that its handling of complaints against Officer
Otundo is not enough to show a larger custom. Further, the City argues,
Otundo never had any charges against him sustained until this matter. (Defs.
Br. at 32–34, 37.) Still, multiple complaints against an officer that led to no
consequences may allow an inference that a municipality knew or should have
known of an officer’s propensity to use excessive force but failed to deal with it.
Beck v. City of Pittsburgh, 89 F.3d 966, 973–74 (3d Cir. 1996). The inference is
not inescapable, of course, but it is for the jury to decide whether the City’s
apparent toleration for an officer’s misconduct contributed to Mr. Sanders’s
treatment here. Bielevicz v. Dubinon, 915 F.2d 845, 851 (3d Cir. 1990).
Accordingly, such evidence precludes summary judgment. See Forrest, 930
F.3d at 108–09. The City proffers a competing explanation of why complaints
against Otundo were not sustained and he was permitted to continue on
patrol. But the issue is a factual one, involving “the substance of the
[Department’s] investigatory procedures. Whether those procedures had
substance [is] for the jury’s consideration.” Beck, 89 F.3d at 974.
Next, the City argues that statistics of declining resolution rates for
excessive-force complaints are not enough because they can be explained by
“external factors” and Mr. Sanders has not shown that all those complaints
45
were substantiated. (Defs. Br. at 34–35.) But Mr. Sanders provided a sampling
of investigation reports and has pointed to similarities in both the force
complained of and how they were minimally investigated. (Opp. to Defs. Br. at
44–47 (citing DE 69-27).) I take no position on whether such statistics, alone,
would suffice. But in combination with complaints against the particular officer
involved, they may contribute to the creation of a triable factual issue. See City
of Canton v. Harris, 489 U.S. 378, 390–91 (1989) (“That a particular officer may
be unsatisfactorily trained will not alone suffice to fasten liability on the
city . . . .”); Merman v. City of Camden, 824 F. Supp. 2d 581, 591 (D.N.J. 2010).
Again, the City appropriately proffers its own interpretations and explanations,
but there is enough here to send the issue of a custom or failure to discipline to
the jury. Id.; see Beck, 89 F.3d at 975–76 (“As for drawing inferences from the
evidence regarding the adequacy of the investigatory process, . . . it is not
beyond the ken of an average juror to assess what a reasonable municipal
policymaker would have done with the information in this case.” (cleaned up)).
At bottom, an evidentiary package consisting of a history of complaints
against the officer responsible for a plaintiff’s injury, statistical evidence of
resolution of other complaints, sample complaints, and an expert report
opining that a police department’s practices fell below standards is precisely
the sort of evidence the Third Circuit has held is sufficient to withstand
summary judgment on a municipal-liability claim. See Forrest, 930 F.3d at
108–09; Thomas v. Cumberland County, 749 F.3d 217, 225 (3d Cir. 2014).
For these reasons, the City’s motion for summary judgment on Count 4
is denied.19
The City also argues that a municipality cannot be liable for punitive damages
under § 1983 and the NJCRA. (Defs. Br. at 45.) That is correct. Smith v. Borough of
Dunmore, 633 F.3d 176, 183 (3d Cir. 2011) (§ 1983); N.J. Stat. Ann. § 59:9-2(c)
(NJCRA). But Mr. Sanders concedes that he will not seek punitive damages against the
City. (Opp. to Defs. Br. at 57.) To the extent the City seeks to strike punitive damages
demands against the individual officers, summary judgment is premature. The
determination can await the logically prior determination of whether they are liable at
all. For § 1983 and NJCRA claims against individuals, “a defendant whose conduct
19
46
IV.
CONCLUSION
For the reasons set forth above, Officer Otundo’s motion for summary
judgment (DE 65) is granted in part and denied in part. Specifically, it is
granted as to the false-arrest, false-imprisonment, and illegal-search claims
under § 1983 (Counts 1 and 2), and also the NJCRA claim (Count 5) to the
extent it is based on false arrest, false imprisonment, and illegal search. The
motion is otherwise denied.
The remaining Defendants’ motion for summary judgment (DE 66) is
granted in part and denied in part. Specifically, summary judgment is granted
to Officer Bauer, Officer Saleh, and the Jersey City Police Department on all
claims asserted against them. Summary judgment is granted to Officer
Montero as to the false-arrest, false-imprisonment, and illegal-search claims
under § 1983 (Counts 1 and 2), and also the NJCRA claim (Count 5) to the
extent it is based on false arrest, false imprisonment, and illegal search. The
motion is otherwise denied. A separate order will issue.
Dated: April 23, 2021
/s/ Kevin McNulty
___________________________________
Hon. Kevin McNulty
United States District Judge
demonstrates a reckless or callous indifference toward others’ rights may be liable for
punitive damages.” Walker, 2020 WL 3542502, *4. There are factual disputes here
over the nature of Officers Otundo’s and Montero’s actions and their mindsets, so
summary judgment regarding punitive damages is inappropriate. Artis v. McCann, Civ.
No. 11-3613, 2013 WL 2481251, at *6 (D.N.J. June 10, 2013).
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