LANKFORD v. CITY OF CLIFTON, et al

Filing 55

OPINION. Signed by Judge Kevin McNulty on 6/29/2021. (nic, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

JAQUICE LANKFORD

Civ. No. 18-6643 (KM)(CLW)

PLAINTIFF,

OPINION

v.
CITY OF CLIFTON POLICE
DEPARTMENT; OFFICER ALAN
FIORILLA; OFFICER THOMAS
BUELL; OFFICER ANDREW
ALVAREZ; OFFICER JUAN VELEZ;
JOHN DOES 1-10, SUED
INDIVIDUALLY AND IN THEIR
OFFICIAL CAPACITIES
DEFENDANTS

KEVIN MCNULTY, U.S.D.J.: 1

1

Citations to certain items in the record will be abbreviated as follows.:

“DE” = Docket entry number in this case.
Compl. = Plaintiff’s Complaint (DE 1)
Buell MSJ = Thomas Buell’s Motion for Summary Judgment (DE 40-34)
Buell SOMF = Statement of Facts Accompanying Thomas Buell’s Motion for Summary
Judgment (DE 40-3)
Clifton MSJ = City of Clifton’s Motion for Summary Judgment (DE 41-2)
Clifton SOMF = Statement of Facts Accompanying City of Clifton’s Motion for
Summary Judgment (DE 41-1)
Pl.’s Buell Opp. = Plaintiff’s Brief in Opposition to Thomas Buell’s Motion for Summary
Judgment (DE 45)
Pl.’s Clifton Opp. = Plaintiff’s Brief in Opposition to the City of Clifton’s Motion for
Summary Judgment (DE 46)
Pl.’s SOMF = Plaintiff’s Statement of Facts (DE 45)
Pl.’s RSOMF Buell = Plaintiff’s Response to Thomas Buell’s Statement of Facts (DE 45)

1

This is a civil rights case. Plaintiff Jaquice 2 Lankford claims that officers
of the City of Clifton police department used excessive force when they struck
him with batons during his arrest. Against the individual officers Mr. Lankford
asserts claims pursuant to 42 U.S.C. § 1983, claiming false arrest, false
imprisonment, excessive force, deprivation of property without due process,
and a taking of property without just compensation. Against the City of Clifton
Police Department (the “Police Department”), 3 he brings claims pursuant to §
1983 for failure to property train and supervise the individual defendants. He
also appears to be bringing certain common law claims as well. 4
Pl.’s RSOMF City = Plaintiff’s Statement of Material Facts Accompanying its Opposition
to the City of Clifton’s Motion for Summary Judgment
Buell Reply = Thomas Buell’s Reply to Plaintiff’s Opposition (DE 51)
Clifton Reply = The City of Clifton’s Reply to Plaintiff’s Opposition (DE 52)
Clifton RSOMF = The City of Clifton’s Responsive Statement of Facts to Plaintiff’s
Statement of Facts (DE 52-1)
I apologize in advance if I have selected wrongly among inconsistent spellings of
the parties’ names by plaintiff’s counsel. Plaintiff’s first name is rendered as both
Jacquice (see Case Caption, Pl.’s Clifton Opp) and Jaquice (see Case Caption, Compl.).
One police defendant’s name is spelled as both Alvarez and Alverez. (see Case Caption,
Pl.’s Clifton Opp.; but see also id. at 1). The fourth officer to arrive on the scene is
identified as both Velez and Valdez. (see Case Caption, Pl.’s Clifton Opp.; but see also
id. at 9).
2

Technically, the proper defendant is the City of Clifton. A New Jersey police
department is not an independent entity with the capacity to sue and be sued, but
only “an executive and enforcement function of municipal government.” N.J. Stat.
Ann.. § 40A:14–118. The case law under Section 1983 uniformly holds that the proper
defendant is therefore the municipality itself, not Clifton. See Jackson v. City of Erie
Police Dep't, 570 F. App'x 112, 114 (3d Cir. 2014) (“We further agree with the District
Court that Clifton was not a proper party to this action. Although local governmental
units may constitute ‘persons' against whom suit may be lodged under 42 U.S.C. §
1983, a city police department is a governmental sub-unit that is not distinct from the
municipality of which it is a part.”) (citation omitted). See also Bonenberger v. Plymouth
Twp., 132 F.3d 20, 25 n. 4 (3d Cir. 1997) (Court “treat[s] the municipality and its
police department as a single entity for purposes of section 1983 liability”)). I therefore
refer to this defendant as “Clifton,” but there is no change in substance.
3

I say “appears” because Mr. Lankford’s complaint is unclear. It begins with a
“kitchen sink” paragraph, paragraph 1, which states that the claims “arise[] under the
Fourth, Fifth and Fourteenth Amendments . . . under federal law, specifically, 42
U.S.C. §§ 1983 and 1988; for intentional and/or negligent infliction of emotional
distress, conversion, loss of companionship, negligence, negligent supervision, gross
4

2

The City of Clifton and Officer Thomas Buell now move for summary
judgment against Mr. Lankford’s claims. I GRANT IN PART and DENY IN
PART the motions for summary judgment.
I.

BACKGROUND

A. Facts
. The following are the facts forth in the parties’ submissions. Where
relevant factual disputes exist, they are noted.
Jacquice Lankford was driving in Clifton, New Jersey on April 16, 2016.
(Buell SOMF ¶ 1.) Mr. Lankford’s car bore a temporary New Jersey license
plate. (Id.) Sergeant Alan Fiorilla of the Clifton Police Department was on patrol
in the area at the time. (Id. ¶ 2.) Mr. Lankford pulled into a gas station and
Sergeant Fiorilla followed him. (Id. ¶ 3.)
negligence, assault, false imprisonment, false arrest, and civil conspiracy.” (Compl. ¶
1.)
These very general allegations, moreover, do not distinguish between
constitutional and state law tort claims. Howell v. Cataldi, 464 F.2d 272, 278 (3d Cir.
1972) (“It becomes important to delineate that conduct which is actionable in state
courts as a tort, and that which is actionable in federal courts under § 1983. The two
rights of action do not always stand in pari materia. Some common law and statutory
torts, though actionable in a state forum, do not rise to constitutional dimensions. The
converse is equally true.”); see also Smith v. Spina, 477 F.2d 1140, 1143 (3d Cir. 1973)
(“a tort committed by a state official acting under state law is [not], in and of itself,
sufficient to show an invasion of a person’s right under the Act [§ 1983] . . . .” so there
was no federal jurisdiction over claims of negligence, res ipsa loquitur, and intentional
assault and battery which were claimed as § 1983 violations) (quoting Kent v. Prasse,
385 F.3d 406, 407 (3d Cir. 1967)).
At any rate, a number of these claims or theories are never to be heard from
again. The actual counts of the complaint which cite 42 U.S.C. § 1983 assert only two
theories: excessive force and failure to train. No count makes any reference to the
other theories except, again, under the heading of Section 1983 “General Allegations,”
which contains mentions of deprivation of property, Takings, false arrest, and false
imprisonment, with no further elaboration.
For the purposes of these motions, I will construe these claims as consisting of
excessive force and failure to train, as Officer Buell does in his motion for summary
judgment. (Mr. Lankford appears to acquiesce, and has lodged no objection in his
responding papers.) I also discuss false arrest and false imprisonment, because they
are suggested by the facts and allegations of records. As to the other defendants, I
leave open the question of whether Mr. Lankford’s method of pleading was sufficient to
put them on notice.

3

The parties dispute why Sergeant Fiorilla followed Mr. Lankford into the
police station. According to Sergeant Fiorilla, Mr. Lankford’s temporary license
tag appeared to be fraudulent. (Id.) The Sergeant radioed dispatch with
registration information for Mr. Lankford’s vehicle and learned that the
temporary plate was for a 2016 Toyota RAV4, not the 2004 Mercedes E-320
that Mr. Lankford was driving. (Id.) Mr. Lankford counters that Sergeant
Fiorilla did not follow him to investigate his license plate, but rather because he
had racially profiled Mr. Lankford. (Pl.’s RSOMF Buell ¶ 3.)
Sergeant Fiorilla parked his car at the gas station and approached Mr.
Lankford’s vehicle. (Buell SOMF ¶ 4.) Mr. Lankford had the hood of his vehicle
up and was standing near the front, speaking to the gas station attendant. (Id.)
Sergeant Fiorilla asked Mr. Lankford for his driving credentials, and Mr.
Lankford asked why and if he had done anything wrong. (Id.) Sergeant Fiorilla
claims to have told Mr. Lankford that he was stopping him for a traffic violation
and said that he would explain after Mr. Lankford produced his credentials.
(Id.) Mr. Lankford claims that Sergeant Fiorilla never mentioned any traffic
violation. (Pl.’s RSOMF Buell ¶ 4.)
Mr. Lankford took out his phone and said that he was going to record the
encounter. (Buell SOMF ¶ 5.) Sergeant Fiorilla claims that he asked Mr.
Lankford to return to his car, and Mr. Lankford refused. (Id.) Sergeant Fiorilla
then repeated his request and Mr. Lankford refused again. (Id.) Mr. Lankford,
for his part, states that Sergeant Fiorilla never asked him to return to his
vehicle. (Pl.’s RSOMF Buell ¶ 5.) Mr. Lankford then began to back away. (Buell
SOMF ¶ 5.) Sergeant Fiorilla grabbed Mr. Lankford’s right arm to guide him
back to the vehicle, and Mr. Lankford pulled away and attempted to return to
his vehicle. (Id.) Sergeant Fiorilla told Mr. Lankford he was under arrest, and
Mr. Lankford continued to attempt to pull away. (Id. ¶¶ 5, 13)
Sergeant Fiorilla warned Mr. Lankford that he was going to use pepper
spray. (Id. ¶ 6.) Mr. Lankford covered his face. (Id.) Fiorilla then took Mr. Lankford
to the ground and commanded him to stop resisting. (Id.) Sergeant Fiorilla
4

attempted to gain control of Mr. Lankford’s hands, which were underneath
Lankford’s body as he was lying face down, and Lankford refused to produce
them. (Id.) Sergeant Fiorilla claims that he sought to control Mr. Lankford’s
hands because he was concerned that Lankford had a weapon. (Id.) According to
a witness at the scene, Sergeant Fiorilla was screaming “give me your phone,
give me your phone.” (Pl.’s SOMF ¶ 12.) Both parties agree that this situation
resulted in a stalemate which persisted for approximately 10 minutes, during
which Mr. Lankford remained face down on the ground with his hands beneath
him while Sergeant Fiorilla sat on top of him and sought to gain control of his
hands. (Id.)
The parties dispute what happened next. According to Officer Buell, he
arrived at the scene, approached Mr. Lankford and Sergeant Fiorilla, and
unsuccessfully attempted to gain control of Mr. Lankford’s right hand by pulling
at his arm. (Buell SOMF ¶ 7.) Officers Juan Velez and Andrew Alvarez then
arrived at the scene. (Id.) The officers ordered Mr. Lankford to stop resisting and
display his hands, which he refused to do. (Id.) Officers Alvarez and Velez then
struck Mr. Lankford on the legs with their batons, after which Mr. Lankford
surrendered his hands and was handcuffed. (Id.) Officer Buell then transported
Mr. Lankford to the Clifton Police Department Headquarters. (Id.) This version of
events is supported by use of force reports prepared by Fiorilla, Alvarez and
Velez.
Mr. Lankford acknowledges that he has no personal knowledge as to the
identity of the officers at the scene or which officers struck him. (Id. ¶ 14.) He
does, however, offer a different account of what occurred, based on a statement
by an eyewitness bystander named Lindsey Fuchs Kennedy. (Pl.’s SOMF ¶ 11.)
According to Ms. Kennedy, after the 10-minute stalemate between Sergeant
Fiorilla and Mr. Lankford, Officer Alvarez arrived at the gas station, immediately
got out of his car, took out a baton, and began to strike Mr. Lankford. (Pl.’s SOMF
¶ 13; Pl.’s Buell RSOMF ¶ 16.) A second police cruiser driven by Officer Buell
then arrived. (Pl.’s SOMF ¶ 15.) Officer Buell got out of his car, spoke with the
5

other officers, then walked to Mr. Lankford, who was lying still on the ground
with Sergeant Fiorilla on top of him. Buell pulled out his baton, and struck Mr.
Lankford three times. (Id. ¶ 16.) Mr. Lankford then stopped resisting and was
placed under arrest. (Id.) As will be discussed in greater detail below, Ms.
Kennedy did not actually identify any officer by name—Mr. Lankford infers this
order of arrival based on Ms. Kennedy’s description of the officers’ appearances.
According to Mr. Lankford, he had no knowledge that the license plate was
fake and knew nothing about its origins. (Buell SOMF ¶ 9.) He explained that he
did not want to produce his driver’s license to Sergeant Lankford because his
license was suspended at the time of the incident due to outstanding child
support obligations. (Id.)
Mr. Lankford explained that he stopped at the gas station in order to check
the car’s oil because the oil sensor light had switched on. (Id. ¶ 10.) Plaintiff
recalls that he had walked to a vending machine to get some snacks and was
returning when he was approached by Sergeant Fiorilla. (Id. ¶ 11.) He claims
that he put his hands in the air and kept them there as Sergeant Fiorilla became
hostile and approached him. (Id. ¶ 12.) He acknowledges that Sergeant Fiorilla
asked for his documents three times and that he continually asked Fiorilla why
he had been stopped. (Id.) He also acknowledges that he did not follow Sergeant
Fiorilla’s commands to give up his hands once he was on the ground. (Id. ¶ 13.)
Sergeant Fiorilla confirms that he was on top of Mr. Lankford and trying
to gain control of his hands when Officer Buell arrived. (Id. ¶ 15.) He also
confirms that Officers Alvarez and Velez used baton strikes to Mr. Lankford’s
lower legs to gain control of his hands. (Id. ¶ 16.) Officer Alvarez states that he
struck Mr. Lankford with a baton approximately three or four times on the shin
while the officers were yelling commands to Mr. Lankford. (Id. ¶ 17.) Officer
Alvarez does not recall if Officer Velez struck Mr. Lankford, but Officer Velez
acknowledged using his baton on Mr. Lankford in his use of force report
submitted in connection with the incident. (Id.; DE 40-5 at 4 (Use of Force
Report, Officer Juan Velez).)
6

Mr. Lankford claims that Officer Buell then took him to police
headquarters. (Pl.’s SOMF ¶ 20.) He claims that on the way to the station and
while in police headquarters, Officer Buell began to call him racial epithets,
including “blackass” and the n-word. (Id. ¶ 21–22.) Officer Buell then walked Mr.
Lankford to a holding cell, and Mr. Lankford’s legs were bleeding. (Id. ¶ 23.) Mr.
Lankford asked to go to the hospital and Officer Buell responded “You’re a fuckin
asshole, you’ll be alright.” (Id. ¶ 24.) Mr. Lankford was taken to the hospital,
however, after officers noticed a pool of blood emanating from his legs and
clothes. (Id. ¶ 25.)
The Honorable J.M.C. Abdelmajeid Abdelhadi of Paterson Municipal Court
found that Mr. Lankford’s stop was unlawful because Sergeant Fiorilla lacked
reasonable suspicion of a motor vehicle infraction or criminal conduct. (Pl.’s
SOMF ¶ 6.) The Judge dismissed all charges. (Id.) In state court, Sergeant Fiorilla
testified that he observed Mr. Lankford’s car stopped at a light, behind two or
three other cars (DE 45-3 Probable Cause Hearing Transcript 1T5:2–6.)

He

claimed that as he drove past Mr. Lankford’s car, he noticed it lacked front
plates; as he proceeded past the vehicle, he turned his head and saw a temporary
tag on the back of the car with what seemed to be an unusual font for the tag’s
lettering, indicating fraud. (1T5:8–11.) Judge Abdelhadi explained that he did
not believe Sergeant Fiorilla’s explanation, for the following reasons: Sergeant
Fiorilla could not recall where the rear plates were located on Mr. Lankford’s
vehicle; Fiorilla had submitted a report which did not indicate that Mr.
Lankford’s car lacked a front plate; there were two cars in front of Mr. Lankford’s
vehicle, which would have obstructed Sergeant Fiorilla’s view; and it was not
plausible that Sergeant Fiorilla would have been able to observe some anomaly
in the lettering on Mr. Lankford’s plate while traveling between 25 and 35 miles
an hour past the car. (1T6:15–21, 7:4–5, 11–18, 8:13–22.) The Judge also noted
that the state never produced Mr. Lankford’s allegedly fraudulent tags, so he
could not further evaluate the claim that the lettering appeared fake. (1T9:1–4.)

7

Mr. Lankford’s expert, Captain Nicholas C. Sorrano, a retired New Jersey
State Police officer, reviewed the incident and concluded that Alvarez and Velez
failed to act in a professional manner and utilized excessive force. (Id. ¶ 21.) He
further concluded that Sergeant Fiorilla failed to properly supervise Alvarez and
Velez as they arrived. (Id. ¶ 22.) He criticized the officers’ failure to use physical
force, such as prying Mr. Lankford’s arms from beneath his body, before moving
on to mechanical force, such as beating Mr. Lankford with a baton. (Id.) Mr.
Sorrano did not evaluate Officer Buell’s behavior in his report.
Clifton Police Officers are hired after completing a certification process
which includes (1) reference checks with their relatives, neighbors, landlords,
employers, supervisors and co-workers, (2) criminal history background checks,
(3) educational records checks, (4) credit checks, (5) military records checks
where applicable, (6) motor vehicle driving records checks, (7) a physical exam,
(8) a psychological exam, (9) juvenile background checks, (10) fingerprinting, (11)
drug testing, (12) social media checks, (13) local law enforcement agency records
checks. (Clifton SOMF ¶ 10.) All of the officers involved in Mr. Lankford’s beating
successfully completed their police academy training, received training updates
on an annual basis, have never exhibited any dangerous propensities according
to their personnel records, and have successfully completed the Attorney
General’s semi-annual use of force training. (Id. ¶¶ 11–15.)
According to N.J. Advance Media’s Use of Force statistics, a Black person
is 122% more likely to suffer a use of force by police in the City of Clifton than a
White person is. (Id. ¶ 10.) Clifton’s population is 7% Black, but 30% of Sergeant
Fiorilla’s uses of force involved Black individuals, as did 12.5% of Officer Buell’s,
15.4% of Officer Alvarez’s, and 26.7% of Officer Velez’s. (Id. ¶ 12.)
B. Procedural History
Mr. Lankford filed a complaint on April 13, 2018 against the City of Clifton,
Clifton Police Department, Sergeant Fiorilla, and Officers Buell, Alvarez, and
Velez. (DE 1.) The Complaint is far from clear, see pp. 2–3 & n.3, supra, but
appears to cite the following claims:
8

•

Pursuant to Section 1983: (1) an unreasonable search and seizure;
(2) deprivation of liberty without due process; (3) deprivation of
property without due process; (4) excessive force; (5) false arrest; (6)
a Takings; (7) civil conspiracy; (8) Monell liability pursuant to a
failure to supervise and train;

•

Pursuant to New Jersey state tort law: (1) intentional infliction of
emotional distress; (2) negligent infliction of emotional distress; (3)
conversion; (4) loss of companionship; (5) negligence; (6) negligent
supervision; (7) gross negligence; (8) assault; (9) false imprisonment;
(10) false arrest; (11) civil conspiracy.

(See Compl. ¶¶ 1, 15.)
The defendants filed answers and crossclaims against one another (DE 3;
DE 5; DE 6; DE 7; DE 8.) The parties then conducted fact discovery.
Presently before the court are motions for summary judgment by
defendants Officer Buell and Clifton. (DE 40; DE 41.) Officers Alvarez, Velez, and
Sergeant Fiorilla have not filed motions for summary judgment in this matter.
II.

LEGAL STANDARD — MOTION FOR SUMMARY JUDGMENT
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);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In deciding a motion
for summary judgment, a court must construe all facts and inferences in the
light most favorable to the nonmoving party. See Boyle v. Cnty. of Allegheny
Pennsylvania, 139 F.3d 386, 393 (3d Cir. 1998) (citing Peters v. Delaware River
Port Auth. of Pa. & N.J., 16 F.3d 1346, 1349 (3d Cir. 1994)). The moving party
bears the burden of establishing that no genuine issue of material fact
remains. See Celotex, 477 U.S. at 322-23. “[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 district
court — that there is an absence of evidence to support the nonmoving party’s
case.” Id. at 325.
9

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., Ltd. v. Zenith Radio Corp., 475
U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). The opposing party
must present actual evidence that creates a genuine issue as to a material fact
for trial. Anderson, 477 U.S. at 248; 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).
Unsupported allegations, subjective beliefs, or argument alone, however,
cannot forestall summary judgment. See Lujan v. Nat’l Wildlife Fed’n, 497 U.S.
871, 888, 111 L. Ed. 2d 695, 110 S. Ct. 3177 (1988) (nonmoving party may not
successfully oppose summary judgment motion by simply replacing
“conclusory allegations of the complaint or answer with conclusory allegations
of an affidavit.”); see also Gleason v. Norwest Mortg., Inc., 243 F.3d 130, 138
(3d Cir. 2001) (“A nonmoving party has created a genuine issue of material fact
if it has provided sufficient evidence to allow a jury to find in its favor at trial.”).
Thus, if the nonmoving party fails “to make a showing sufficient to establish
the existence of an element essential to that party’s case, and on which that
party will bear the burden of proof at trial . . . there can be ‘no genuine issue of
material fact,’ since a complete failure of proof concerning an essential element
of the nonmoving party’s case necessarily renders all other facts immaterial.”
Katz v. Aetna Cas. & Sur. Co., 972 F.2d 53, 55 (3d Cir. 1992) (quoting Celotex,
477 U.S. at 322-23).
Moreover, the “mere existence of some alleged factual dispute between
the parties will not defeat an otherwise properly supported motion for summary
judgment; the requirement is that there be no genuine issue of material fact.”
Anderson, 477 U.S. at 247-48. A fact is only “material” for purposes of a
summary judgment motion if a dispute over that fact “might affect the outcome
of the suit under the governing law.” Id. at 248. A dispute about a material fact

10

is “genuine” if “the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Id.
III.

OFFICER THOMAS BUELL’S MOTION FOR SUMMARY JUDGMENT

Officer Buell moves for summary judgment on all of plaintiffs’ claims. I
GRANT IN PART and DENY IN PART his motion. Specifically, I grant the
motion as against Mr. Lankford’s excessive force and civil conspiracy claims
pursuant to Section 1983, and against his assault and civil conspiracy claims
under New Jersey tort law. I deny the motion as against the remainder of his
claims. Because neither side seems to address them at all, I will also issue an
Order to Show Cause directing the parties to give reason why I should not
dismiss Mr. Lankford’s claims for conversion, loss of companionship,
deprivation of property without due process, and Takings.
A. Mr. Lankford’s § 1983 Claims
Mr. Lankford brings a number of claims under Section 1983, 5 including
excessive force, civil conspiracy, false arrest, false imprisonment, deprivation of
property without due process, and a Taking. Officer Buell moves for summary
judgment on the excessive force and conspiracy claims, and I grant his motion.
1. Excessive Force
Mr. Lankford claims that Officer Buell is liable under 42 U.S.C. § 1983
for using excessive force in effectuating Lankford’s arrest. 6 Officer Buell
responds that he is protected by the doctrine of qualified immunity.
5

42 U.S.C. § 1983 states:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State . . . subjects, or causes to be subjected,
any citizen of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or immunities secured
by the Constitution and laws, shall be liable to the party injured in an
action at law . . . .

6
In his opposition, Mr. Lankford claims for the first time that Officer Buell is also
liable for failure to intervene against the use of excessive force of his fellow officers.
(Pl.’s Buell Opp. at 39–43.) This claim is not asserted in the complaint. A plaintiff may
not “argue that defendant is liable on a theory not even alluded to in the complaint.”

11

“The doctrine of qualified immunity insulates government officials who
are performing discretionary functions ‘from liability for civil damages insofar
as their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.’” James v. City of
Wilkes-Barre, 700 F.3d 675, 679 (3d Cir. 2012) (quoting Harlow v. Fitzgerald,
457 U.S. 800, 818, 102 S. Ct. 2727, 73 L.Ed.2d 396 (1982)). The U.S. Supreme
Court has established a two-part analysis that governs whether an official is
entitled to qualified immunity. See Saucier v. Katz, 533 U.S. 194, 201, 121 S.
Ct. 2151 (2001). That two-part analysis inquires as to (1) whether the facts put
forward by the plaintiff show a violation of a constitutional right; and (2)
whether the right at issue was clearly established at the time of the alleged
misconduct. Id.; James, 700 F.3d at 679. Even if there are fact questions as to
the first, constitutional-violation prong, the court is required to decide the
second, i.e., whether the right was clearly established. See Spady v. Bethlehem
Area Sch. Dist., 800 F.3d 633, 638 (3d Cir. 2015) (“[W]hile issues of fact may
preclude a definitive finding on the question of whether the plaintiff’s rights
have been violated, the court must nonetheless decide whether the right at
issue was clearly established.”). Because this is a motion for summary
judgment, the court considers the facts in the light most favorable to the
plaintiffs. Couden v. Duffy, 446 F.3d 483, 492 (3d Cir. 2006).
The first prong of the qualified immunity analysis asks whether a
constitutional violation has occurred. Here, Mr. Lankford asserts a claim of
excessive force. Excessive force claims arise from the Fourth Amendment’s
protection against unreasonable seizures. Groman v. Township of Manalapan,
47 F.3d 628, 633 (3d Cir. 1995) (citing Graham v. O’Connor, 490 U.S. 386,
394–95 (1989)). “[T]he central question is ‘whether force was applied in a good

Holland v. Macerich, 2011 WL 6934969 at *4 (D.N.J. Dec. 29, 2011) (quoting Watson v.
Potter, 2009 WL 424467 at *4 n.2 (N.D. Ill. Feb. 19, 2019)); see also McMahon v.
Salmond, 573 Fed. Appx. 128, 135 (3d Cir. 2014) (where claim was not pled in the
complaint, plaintiff may not raise it for the first time in his opposition to summary
judgment). I therefore do not consider this failure-to-intervene theory.

12

faith effort to maintain or restore discipline, or maliciously and sadistically to
cause harm.’” Brooks v. Kyler, 204 F.3d 102, 106 (3d Cir. 2000) (quoting
Hudson v. McMillan, 503 U.S. 1, 7 (1992)). The Court must determine whether
the use of force in question was objectively reasonable in light of the facts and
circumstances confronting an officer, which requires an evaluation of the
severity of the crime at issue, whether the suspect poses an immediate threat
to the safety of the officers or others, and whether the suspect is actively
resisting arrest or attempting to evade arrest by flight. Graham, 490 U.S. at
397. Appropriate consideration must be given to the “circumstances of the
police action, which are often ‘tense, uncertain, and rapidly evolving.’” Groman,
47 F.3d at 634.
The second prong of the qualified immunity analysis asks whether the
constitutional rule which was allegedly violated was “clearly established” at the
time of the officer’s conduct. The “clearly established” prong of the qualified
immunity analysis “shields officials from civil liability so long as their conduct
‘does not violate clearly established statutory or constitutional rights of which a
reasonable person should have known.’” James v. N.J. State Police, 957 F.3d
165, 169 (3d Cir. 2020) (quoting Mullenix v. Luna, 577 U.S. 7, 11 (2015)).
“Clearly established means that, at the time of the officer’s conduct, the law
was sufficiently clear that every reasonable official would understand that what
he is doing is unlawful.” Id. (quoting District of Columbia v. Wesby, 138 S. Ct.
577, 589 (2018)). The inquiry is “an ‘objective (albeit fact-specific) question,’
under which ‘[an officer]’s subjective beliefs . . . are irrelevant.’” Id. (quoting
Anderson v. Creighton, 483 U.S. 635, 641 (1987)).
“In rare cases, a plaintiff may show that a right is clearly established if
the ‘violation [is] obvious.’” Id.; see also Brosseau v. Haugen, 543 U.S. 194, 199
(2004). In “most cases,” however, “a plaintiff must show that a right is clearly
established because ‘the violative nature of particular conduct [was] clearly
established.” James, 957 F.3d at 169 (quoting Ziglar v. Abbasi, 137 S. Ct.
1843, 1866 (2017)) (emphasis in original). In such cases, “settled law” must
13

“squarely govern[] the specific facts at issue,” id. (cleaned up), such that the
plaintiff must “identify a case where an officer acting under similar
circumstances as [the defendant officer] was held to have violated the
[constitutional provision at issue].” White v. Pauly, 137 S. Ct. 548, 552 (2017);
see also James, 957 F.3d at 169–70. Such settled law may be drawn from
“binding Supreme Court and Third Circuit precedent or from a ‘robust
consensus of cases of persuasive authority in the Courts of Appeals.’” James,
957 F.3d at 170 (quoting Bland v. City of Newark, 900 F.3d 77, 84 (3d Cir.
2018)). Thus, the court “first look[s] to factually analogous precedents of the
Supreme Court and the Third Circuit” and then “examine[s] persuasive
authorities, such as . . . nonprecedential opinions and decisions from other
Courts of Appeals.” Id.
I conclude that Mr. Lankford has not brought forth sufficient evidence to
survive summary judgment on his excessive force claim. First, I consider
whether Mr. Lankford has established a constitutional claim that Officer Buell
used excessive force by striking Mr. Lankford with his baton. As to that issue, I
conclude that Mr. Lankford has presented sufficient evidence to create a
disputed issue of fact. Second, however, I conclude that striking the suspect
with a baton, assuming it occurred, would not violate “clearly established” law
with respect to a person who was actively resisting arrest. Third, I reject Mr.
Lankford’s argument that any use of force by Officer Buell was excessive per se
because Sergeant Fiorilla had stopped Lankford without probable cause.
i. Dispute as to whether Buell struck Lankford with a Baton
The use-of-force reports submitted by Officers Velez, Fiorilla, and Alvarez
are mutually consistent: Sergeant Fiorilla, the first to arrive at the scene,
initiated Mr. Lankford’s arrest; then Officer Buell arrived and attempted to gain
control of Mr. Lankford’s right arm; and then Officers Velez and Alvarez arrived
and subdued Lankford by striking his legs with batons.
Mr. Lankford sets out a different version of events which rests on the
testimony of Lindsey Fuchs Kennedy, a bystander witness. Ms. Kennedy recalls
14

that she observed Sergeant Fiorilla force Mr. Lankford to the ground and then
remain on top of him for approximately five to ten minutes. (DE 45-4,
Deposition of Lindsey Fuchs Kennedy, 3T19:1–3, 20:1–7.) She recalls that then
another officer arrived and struck Mr. Lankford’s legs with a baton between
three and four times. (3T21:11–18.) After that, a third officer arrived and used
a baton on Mr. Lankford’s legs. (3T23:11–17, 25:12–17.) She described the
third officer as “an older police officer,” (3T29:6–11), who appeared to be
between six feet and six-foot-two in height (3T29:9–24, 3T30:3–6), with blond
or gray hair (3T33:7–8.) She described him as taller than the other officers, and
stated that he was not “Italian featured” like the other officers. (3T32:20–21;
3T79:18–20.) Plaintiff states that this third officer who struck his legs must
have been Officer Buell.
Ms. Kennedy’s description does substantially match the description of
Officer Buell given by his fellow officers. Sergeant Fiorilla described Buell as
approximately six foot one, in his forties or fifties, with short hair, and balding.
(DE 45-2, Deposition of Alan Fiorilla, 4T35:6–20, 36:13–14.) Officer Alvarez
described Officer Buell as between six two and six three, with gray or balding
hair, and approximately forty or forty-five years of age. (DE 45-2 (Exh. E)
5T34:16–22.) 7
There are bases on which Ms. Kennedy’s version of the events could be
challenged. An ordinary bystander, she did not know the officers by name. She
did not identify the third officer as balding (which, according to his fellow
officers, Officer Buell is), and Officer Velez, like Buell, is between six-foot two
and three, so it is possible to argue that she conflated the two. (4T38:17–20.)
During her cross-examination, Ms. Kennedy admitted that she had given a
statement previously which aligned with the police officers’ version of the story;
that she had an imperfect memory of the details regarding who used force; that
she primarily recalled the use of force rather than the appearance of the
7
Officer Alvarez, in contrast, was described as approximately five-foot five or six,
making a mistake unlikely. (4T37:13–14.)

15

officers who used the force; and that the officers with batons may have arrived
nearly simultaneously. (3T72:19–73:19.)
So the question is not whether the police officers struck Lankford with
batons; they did. The only question is whether Lankford was struck by Velez
and Buell, or by Velez and Alvarez. Velez and Alvarez both admit having done
so. If their admissions are correct, then Buell’s motion for summary judgment
should be granted. The question on summary judgment, however, is not
whether the weight of the evidence favors one account or the other. On
summary judgment, Mr. Lankford need only meet the low threshold that
“evidence exists from which a rational person could conclude” that his version
of events “is correct.” Trs. Of the B.A.C. Local 4 Pension Fund v. Demza
Masonry, LLC, 2021 WL 323780 at *3 (D.N.J. Jan. 31, 2021) (quoting EBC, Inc.
v. Clark Bldg. Sys., Inc. 618 F.3d 253, 262 (3d Cir. 2010)).
Ms. Kennedy’s testimony provides such evidence. While a jury could very
easily discount her version of events on this narrow issue, it could alternatively
credit her testimony and conclude that Officer Buell, not Alvarez, struck Mr.
Lankford with a baton. There is a material dispute of fact on this issue.
ii.

Whether Buell’s alleged use of the baton constituted excessive
force, and whether such a claim was “clearly established”
As explained above, to establish a claim against Officer Buell, Mr.

Lankford must prove first, that Buell used force which was excessive by Fourth
Amendment standards, and second that it was “clearly established” at the time
of the incident that the force was excessive. Saucier, 533 U.S. at 201. Even if
Officer Buell used a baton to strike Mr. Lankford’s legs, I conclude that
summary judgment is appropriate because it was not clearly established at the
time that this would constitute excessive force under the circumstances.
“To prevail on a Fourth Amendment excessive-force claim, a plaintiff
must show that a seizure occurred and that it was unreasonable under the
circumstances.” El v. City of Pittsburgh, 975 F.3d 327, 336 (3d Cir. 2020)
(quoting Lamont v. New Jersey, 637 F.3d 177, 182–83 (3d Cir. 2011)). The
Court considers “factors including ‘the severity of the crime at issue, whether
16

the suspect[s] pose[] an immediate threat to the safety of the officers or others,
and whether [they are] actively resisting arrest or attempting to evade arrest by
flight,” as well as “the physical injury to the plaintiff, ‘the possibility that the
persons subject to the police action are themselves violent or dangerous, the
duration of the action, whether the action takes place in the context of effecting
an arrest, the possibility that the suspect may be armed, and the number of
persons with whom the police officers must contend at one time.’” Id. at 336.
For purposes of summary judgment, I now, as I must, take the facts in
the light most favorable to the plaintiff. Doing so, I assume the following:
Sergeant Fiorilla approached Mr. Lankford without a legitimate basis, and
demanded that he produce a driver’s license. (Pl.’s SOMF ¶¶ 5–6.) Lankford
then responded “what did I do wrong?” repeatedly. (Id.) Mr. Lankford put his
hands in the air and began to record Sergeant Fiorilla on his cellphone. (Id. ¶
6.) Sergeant Fiorilla then pulled out (but did not discharge) his mace spray and
began to grab Mr. Lankford’s clothing. (Id. ¶ 8.) He slammed Mr. Lankford to
the ground and put his knee on Lankford’s back. (Id.) Lankford placed his
hands on his face and kept them there. (Id. ¶ 9.) The two then “exchange[d]
heated words.” (Id. ¶ 10.) Sergeant Fiorilla sat on Mr. Lankford’s back and
repeatedly demanded that Lankford surrender his phone, which Lankford did
not do. (Id. ¶ 12.)
This standoff continued for approximately ten minutes, during which Mr.
Lankford continued to resist Sergeant Fiorilla’s commands to give up, i.e.,
openly display, his hands. (Pl.’s RSOMF Buell ¶ 13.) Officer Alvarez then
arrived at the scene, immediately got out of his car, took out a baton, and
began to hit Mr. Lankford’s legs. (Id. ¶ 13.) Officer Buell then arrived and
conferred with the other officers. (Id. ¶ 16.) Officer Buell then walked over to
Mr. Lankford, drew his baton, and struck Mr. Lankford three times on his legs.
(Id.) At that point plaintiff displayed his hands to the officers. Officer Buell then
transported Mr. Lankford to the police station and called him by racial
epithets, which included the n–word. (Id. ¶¶ 21–22.)
17

The facts, then, as they relate to Officer Buell, 8 are that he arrived on a
scene after the suspect had been detained, to find that the suspect had been
resisting arrest for over ten minutes, and had refused to produce his hands to
the officers despite repeated commands and even numerous baton strikes.
Officer Buell then struck Mr. Lankford three times in the legs. Mr. Lankford
was thereby subdued, and Officer Buell stopped using force. When transferring
Mr. Lankford to the police station, Buell allegedly used racial epithets. The
question is whether, under the law at the time, the force was excessive.
First, I consider whether the force used was reasonable under the
circumstances.
Certain of the relevant factors weigh against such a conclusion. For
instance, I must consider whether the officer was outnumbered; here, there
were initially a single police officer and a single suspect, and the ratio quickly
grew to three officers against one suspect. El, 975 F.3d at 336. Officer Buell
also had little reason to believe Mr. Lankford was violent or posed an
immediate threat. When he arrived, Lankford was already on the ground with
Sergeant Fiorilla on top of him. Mr. Lankford’s resistance was more passive
than violent, and the arrival of additional officers would tend to reduce, though
not eliminate, the likelihood of more active resistance. It is not clear to what
extent Officer Buell would have known about Mr. Lankford’s conduct prior to
his arrival, although plaintiffs’ version of events indicates that Officer Buell
conferred with his fellow officers before using his baton.
The severity of the suspected crime is no more than moderate. Legitimate
reasons for driving a car with a false license plate are few, and doing so
suggests at least an intent to conceal one’s identity or to disguise that a car
was stolen. Still, the underlying offense does not involve, e.g., violence or
dangerous narcotics. For what it is worth, it is unclear from either side’s

Section 1983 creates liability only to the extent that an officer was personally
involved in the conduct which violated the constitution. See Rode v. Dellarciprete, 845
F.2d 1195, 1207 (3d Cir. 1988).
8

18

statement of facts whether Officer Buell was aware of the grounds for Sergeant
Fiorilla’s arrest of Mr. Lankford at all.
Other factors, however, weigh in favor of finding that the use of force was
not constitutionally excessive. Mr. Lankford had been actively resisting police
efforts to place him under arrest for ten minutes, despite the officers’ repeated
commands that he surrender. Furthermore, it appeared that application of
lesser force had been and likely would continue to be unsuccessful. Sergeant
Fiorilla had already been attempting to bring Mr. Lankford into compliance for
10 minutes using his hands, his body weight, and verbal commands. El, 975
F.3d at 336. In that situation, the law does not require that the officer sit atop
the defendant and hope that he eventually gives up.
The reasonableness of an officer’s use of force often presents a factual
issue for the jury. Sanders v. Jersey City, 2021 WL 1589464 at *7 (D.N.J. Apr.
23, 2021); see also Rivas v. City of Passaic, 365 F.3d 181, 199 (3d Cir. 2004). A
jury could reasonably conclude that Officer Buell used a reasonable amount of
force, striking a resisting suspect only in the legs, with the evident purpose of
effecting the arrest, not causing injury. On the other hand, a jury could take
into account that Officer Buell resorted to the baton without exhausting less
violent means, such as using the combined physical strength of all the officers
to pry Lankford’s hands from beneath his body. See Graham, 490 U.S. at 396
(officers have the right to use some physical force to effect an arrest). Case law
suggests that Buell’s actions, as alleged, stayed within constitutional bounds.
See infra. As I say, however, this is ordinarily a fact issue, so I err on the side of
ruling that Mr. Lankford has made out a prima facie case of excessive force
under applicable constitutional standards.
Moving to the second qualified-immunity issue, however, I find that
summary judgment is appropriately entered in Officer Buell’s favor on the
question of whether the impermissibility of Buell’s use of force was “clearly
established.” The two poles of the analysis are fairly clear: Police may use force,
including baton strikes, to subdue a resisting suspect, Byrd v. Cumberland
19

County, 2020 WL 3496915 at *11–12 (D.N.J. June 29, 2020); they may not,
however, strike a subdued, “handcuffed suspect who is face down and not
resisting arrest.” Colon v. City of Paterson, 2014 WL 4441503 at *3 (D.N.J.
Sept. 9, 2014) (police may not use force on individual who has “completely
given up resistance”).
In Santini v. Fuentes, the Third Circuit considered facts similar to these,
albeit in a nonprecedential case. 739 F. App’x 718 (3d Cir. 2018). There, a fight
broke out between two individuals at a milk farm. Id. at 719. Police responded
and conducted interviews of a number of farm employees. Id. One interviewee
was Santini, who had witnessed the fight. Id. During the interview, Santini
repeatedly put his hands in his pockets. (He said they were cold from milking
cows all day.) Id. The interviewing officer repeatedly shouted at Santini to keep
his hands out of his pockets. Id. Santini eventually became frustrated with the
officer’s shouting and walked away. Id. The officer then grabbed Santini’s wrist,
and the two men fell to the ground, where they wrestled. Id. Other officers then
intervened, holding Santini’s hands behind his back, punching him, beating
him with batons, using pepper spray, and demanding that he stop resisting. Id.
They immediately ceased such measures, however, once Santini was
handcuffed. Id.
The Third Circuit construed the constitutional question as being whether
the police were permitted to beat a non-suspect who walked away from an
investigatory discussion, failed to comply with an officer’s request to keep his
hands visible, and then resisted arrest. Id. at 721. The Court concluded that
the officers did not use excessive force, because Santini repeatedly failed to
comply with the officer’s order to keep his hands visible and then resisted
arrest; it was at that point that the officers beat him, immediately ceasing when
he had been subdued. Id.
One might criticize the investigating officer in Santini for permitting a
mere interview to escalate into a physical struggle. Once the fight began,
however, the officers were entitled to subdue the suspect, because he was
20

resisting and because he had refused to produce his hands in response to
commands. Santini considered it crucial that the officers stopped using force
“as soon as Santini was in handcuffs,” explaining that on those facts, “there
are no cases directly on point that suggest this conduct is unlawful.” Id. at 721.
The court appeared to endorse the use of batons, then, as a means to a
legitimate end: i.e., if a suspect is still resisting and has not yet been subdued.
Id. A fortiori, a reasonable officer in Buell’s position could have come to the
same conclusion. 9
Here, Officer Buell used his baton three times on the legs of a resisting
suspect. No significant injuries seem to have resulted, and Buell stopped using
the baton when the suspect ceased resisting. That use of force is not clearly
prohibited by precedent, and indeed appears to fall squarely within the
analysis of Santini. Though Santini is non-precedential, I find it significant that
it identified “no cases directly on point” suggesting that the officers’ conduct
was unlawful. Id. at 721.
Similarly, in Glover v. City of Jersey City, a district court case, officers
believed they had observed the plaintiff engage in a drug transaction and then
flee. 2018 WL 6191890 (D.N.J. Nov. 28, 2018). The police pushed the plaintiff
against a wall and threw him to the floor. Id. at 2. The plaintiff put his hands
out to brace himself for the fall, and the officer began to “man handle” him. Id.
Another officer then arrived and struck the plaintiff with his baton, after which
the plaintiff attempted to block his face. Id. An officer then twisted the
plaintiff’s arm behind his back and cuffed him. Id. The plaintiff acknowledged
that when he “went to the ground to try to protect myself, I guess they thought
I was trying to resist or whatever. But I was just trying to stop myself from the
fall.” Id. at 3.

Of course the level of force, even on a resisting suspect, might be excessive if
calculated to cause injury beyond what is required to effect the arrest. Here, however,
the baton strikes were confined to the suspect’s legs and do not seem to have caused
any serious injury.
9

21

Judge Salas concluded that because the plaintiff had not yet been
subdued and did not claim to have been handcuffed or cooperating at the time
of the use of force, and because, as the plaintiff admitted, the officers believed
he was resisting arrest, it was not clearly established that the officer could not
use a baton to subdue him. Id. at 6 (“at the time of the arrest in question there
was no case law establishing that officers cannot use some force, including
briefly using a baton to strike the legs of an arrestee who appears to be
resisting, in an attempt to handcuff the suspect before he is fully cooperating
with the arrest.”).
It might be objected that Santini and Glover, the most closely analogous
cases, date from 2018, two years after Mr. Lankford’s 2016 arrest. That
objection might be well taken if the issue were whether the officers could prove
that their actions were clearly permitted by then-existing precedent. But the
qualified-immunity issue is the opposite: whether the plaintiff can establish
that a violation was clearly established by then-existing precedent. These two
cases, though dating from 2018, are relevant to demonstrate that an officer
would not have erred, on these facts, in thinking that his conduct was
constitutionally permissible; four federal judges, on similar facts, thought so.
And in so holding, Santini and Glover fell in line with well established, pre-2016
precedent that set the ground rules for police use of force. See Byrd, 2020 WL
3496915 at *11–12 (use of force against already-subdued suspects is clearly
established as violating the constitution, but use of baton against resisting
suspect is not clearly established as excessive); see also Green v. New Jersey
State Police, 246 F. App’x 158, 163 (3d Cir. 2007) (agreeing that “there is no
‘case law holding that police officers cannot use force against a subject in an
attempt to subdue him’” but holding that when an individual was already
handcuffed police could not “hit him on the head twice with a flashlight” or
“kick him” on the ground).
Thus far, then, I cannot find that it was clearly established that Officer
Buell used excessive force.
22

We come, then, to the claim of Mr. Lankford that, after the arrest, while
driving Lankford to police headquarters, Officer Buell addressed him using vile
racial epithets. It must be remembered, however, that this is a claim of
excessive force in connection with the arrest. Whatever other issues such postarrest language might raise, it does not retroactively recalibrate the level of
force that was appropriate to effect the arrest. Indeed, even the use of such
language during an arrest has been held to be irrelevant to an excessive-force
claim. See Thompson v. Howard, 2015 WL 5039395 at *8 (W.D. Pa. Aug. 26,
2015) (quoting Hudson v. Goob, 2009 WL 789924 at *12 (W.D. Pa. Feb. 23,
2009) (“The rule is that if the physical force used is not itself excessive, i.e., is
reasonable, then, merely adding verbal threats or racial epithets cannot
transform an otherwise non excessive use of force into an unconstitutional use
of excessive force.”)); Christian v. Orr, 2011 WL 710209 at *14 n.51 (E.D. Pa.
Mar. 1, 2011) (“[B]ias is not relevant to an excessive force analysis”)); see also
Williams v. Sandel, 433 Fed. Appx. 353, 362 (6th Cir. 2011) (“Nor does
Williams’s allegation about a racially charged comment transform the officers’
force into excessive force.”); Johnson v. City of Ecorse, 137 F. Supp. 2d 886,
892 (E.D. Mich. 2001); Thompson v. City of Galveston, 979 F. Supp. 504, 509
(S.D. Tex. 1997). The reasoning in these cases appears to be that the issue in
an excessive force claim is whether the force used was greater than what was
justified by the circumstances; whether an officer had a racist motive does not
alter the analysis of whether the circumstances justified the amount of force
used.
A caveat: In my view, a racial motive might cast doubt on the sincerity of
an officer’s assessment of the situation as one requiring force. For example,
“repeated use of a slur” in the course of an arrest may “bespeak[] a malign
motive beyond that of self-defense or reasonable force” and thus might be
relevant in a qualified immunity analysis. See Sanders, 2021 WL 1589464 at
*8. In Sanders, however, the question was whether an officer reasonably
interpreted the plaintiff’s arm movement as threatening; his use of a slur
23

indicated that the officer might have been untruthful, or at least biased in his
perception, about perceiving the plaintiff’s arm movement as a threat.
That, however, is not this case. No one disagrees that Mr. Lankford was
physically resisting arrest, and no one disputes that Officer Buell accurately
perceived that Lankford was doing so. As to an excessive force claim—and
again, that is the claim here—Buell’s alleged expressions of racial bias are not
relevant to the analysis of whether striking Mr. Lankford’s leg with the baton
exceeded the constitutional bounds of appropriateness in subduing a resisting
arrestee.
iii.

Excessive force and lack of probable cause
Mr. Lankford asserts that Officer Buell’s use of force was excessive per

se, because there was no probable-cause basis for his arrest. Lankford claims
the officers arrested him without probable cause, for reasons of racial bias, so
that any amount of force used to effectuate his unlawful arrest was excessive
by definition. While the theory has some surface attractiveness, it has been
rejected, in order to preserve the distinction between a claim of excessive force
and one of false arrest, which does not have undue force as an element. 10 No
constitutional excessive force claim, let alone a clearly established one, flows
from the lack of probable cause as such.
There is good support for Mr. Lankford’s theory that his arrest lacked
probable cause. Indeed, the criminal case against Mr. Lankford was dismissed
by Judge Abdelhadi of Paterson Municipal Court for lack of probable cause. In
dismissing the criminal case, Judge Abdelhadi rejected Sergeant Fiorilla’s
explanation of how he came to suspect that Mr. Lankford’s license plate was
fake, noting that Fiorilla claimed to have noticed that the license plate had an
unusual font, while driving at 30 miles per hour in the opposite direction of
Lankford’s car, which was third in line behind other cars at a stop light. The

The false arrest claim is discussed below. As to that claim, Officer Buell’s
motion for summary judgment is denied.

10

24

state judge also shrewdly noted that the police never produced the license
plate, or a photo of it, to show that it bore an unusual font.
Because it was not necessary to the dismissal decision, Judge Abdelhadi
did not explicitly endorse Mr. Lankford’s alternative explanation for the stop,
i.e., that he was an African-American man driving a Mercedes. Neither,
however, did the Judge reject the possibility of bias. (See Tr. of Probable Cause
Hearing, Paterson Municipal Court, 1T8:7–8, 9:22–10:3 (stating that he did
“not want to make that leap and make a finding as to why in fact the officer
stopped this particular defendant” but finding inconsistencies in Sergeant
Fiorilla’s testimony “very troubling” and “not that credible”).)
Judge Abdelhadi’s decision is not binding here. See Murphy v. Bendig,
232 Fed. Appx. 150, 152 (3d Cir. 2007) (in a federal § 1983 case, the issue of
probable cause is not collaterally estopped by criminal court’s prior decision)
(citing Smith v. Holtz, 210 F.3d 186, 199 n.18 (3d Cir. 2000)). I do, however,
find Judge Abdelhadi’s reasoning persuasive as a plausible, well-reasoned
evaluation of the facts. Like Judge Abdelhadi, a jury could conclude that the
stop in this case lacked probable cause, whether or not resulting from racial
bias.
To repeat, on a motion for summary judgment I must construe disputed
facts in Mr. Lankford’s favor. But to repeat further, the claim I am now
analyzing is one of excessive force, not false arrest. Contrary to Mr. Lankford’s
assertions, the absence of probable cause does not establish a per se excessive
force claim.
“In a case where police effect an arrest without probable cause . . . but
use no more force than would have been reasonably necessary if the arrest or
the detention were warranted, the plaintiff has a claim for unlawful arrest or
detention but not an additional claim for excessive force.” Holmes v. City of
Wilmington, 79 F. Supp. 3d 497, 506 (D. Del. 2015) (quoting Cortez v.
McCauley, 478 F.3d 1108, 1126 (10th Cir. 2007)). “A claim for excessive force,
which is merely a concomitant to a contested arrest but is not based on some
25

actual allegation of unreasonable force, must be dismissed.” Id. (citing Van
Brackle v. Pa. Parole Bd., 1996 U.S. Dist. LEXIS 13998, 1996 WL 544229 at *3
(E.D. Pa. Sept. 26, 1996)).
Indeed, the Third Circuit has repeatedly “rejected similar efforts to
bootstrap excessive force claims and probable cause challenges” and thus
refused to apply a rule which holds that “force applied was excessive per se
because the initial arrest was illegal.” Snell v. City of York, 564 F.3d 659, 672
(3d Cir. 2009); see also Bodine v. Warwick, 72 F.3d 393, 400 & n.10 (3d Cir.
1995) (“merely because a person has been falsely arrested does not mean that
excessive force has been used”).
Thus, Mr. Lankford cannot prove excessive force merely by showing that
the officers lacked probable cause. He must instead show that the police
actually used force beyond what would be appropriate to effectuate an arrest.
For the reasons stated above, summary judgment is granted in Officer
Buell’s favor on the excessive force claim, on qualified immunity grounds.
2. Civil Conspiracy
Mr. Lankford brings a claim of civil conspiracy pursuant to Section 1983.
The elements of a conspiracy are that two or more persons conspire to
deprive a person of constitutional rights, one or more of the conspirators
performs any overt act in furtherance of the conspiracy, and the overt act
injures the plaintiff or deprives him of any rights or privileges of a citizen of the
United States while the conspirators acted under color of state law. Barnes
Foundation v. Twp. of Lower Merion, 22 F.3d 151 (3d Cir. 2001). 11 To prove
such a claim, a plaintiff must show the existence of a conspiracy and a
deprivation of civil rights in furtherance of the conspiracy by a party to the
conspiracy. Jackson-Gilmore v. Dixon, 2005 WL 3110991 (E.D. Pa. Nov. 17,

To the extent that Mr. Lankford asserts a civil conspiracy under New Jersey
state law, the elements are essentially the same, so his state claim stands or falls with
the federal-law analysis in this section. Banco Popular N.A. v. Gandi, 184 N.J. 161
(N.J. 2005) (civil conspiracy requires agreement between parties to inflict wrong
against or injury upon another and an overt act which results in damages).
11

26

2005). The plaintiff must establish the period of the conspiracy, the object of
the conspiracy, and certain overt acts of the alleged conspirators taken to
achieve that purpose. Hankin Family P’Ship v. Upper Merion Twp., 2012 WL
43599 (E.D. Pa. Jan. 6, 2012).
The parties dispute whether Mr. Lankford has adduced sufficient
evidence in support of his claim of a conspiracy. To establish a conspiracy,
Lankford points to two pieces of evidence: (1) Officer Buell spoke with Officers
Alvarez and Fiorilla when he arrived on the scene, and (2) the officers
submitted use-of-force reports which were in conflict with the testimony of
Lindsey Fuchs Kennedy.
“The mere occurrence of several meetings between [defendants does] not
establish a meeting of the minds” for purposes of a conspiracy claim. Jones v.
Dalton, 867 F. Supp. 2d 572, 585 (D.N.J. 2012). See Fiorigilio v. City of Atlantic
City, 996 F. Supp. 379, 387–88 (D.N.J. 1998) (rejecting claim of conspiracy
based on meetings between defendants where “plaintiff admits he has no
personal knowledge about what the defendants talked about during the alleged
meeting” and “has absolutely no evidence suggesting that defendants set out to
retaliate against him”). Thus, a jury may not reasonably infer from the mere
fact that individuals met that they reached a conspiratorial agreement. Id. Mr.
Lankford’s claim that there was a conspiracy because Officer Buell and Officer
Alvarez spoke to one another, then, rests on “speculation and conjecture,” id.
at 389, and would not permit a jury finding of conspiracy.
To suggest that the officers conspired, Mr. Lankford also points to an
inconsistency: In Ms. Kennedy’s account, Officer Buell was the second officer
who used his baton on Mr. Lankford’s legs, but the three officers’ use-of-force
reports all state that the second officer was Velez. That inconsistency, says
Lankford, is evidence of a conspiracy among the officers to conceal the true
facts.
That use-of-force reports conflict with other evidence may, in some
contexts, support an inference of conspiracy. In Ewing v. Cumberland County, a
27

district court found it likely that five corrections officers had engaged in a
conspiracy because their use-of-force reports all downplayed the amount of
force they used, contrary to objective evidence in the record that they had given
the plaintiff a severe beating. 152 F. Supp. 3d 269, 301 (D.N.J. 2015). But the
Ewing court found other corroborating evidence, such as the testimony of a
nurse in the correctional facility that one of the officers told her that she “knew
what to say” if people began to ask questions, and the “nearly identical”
language in the use-of-force reports, including (in four of five) “the same
misspelling of the word ‘irate.’” 152 F. Supp. 3d at 301. Mr. Lankford points to
no comparable corroborating evidence here. While the three officers’
descriptions of their conduct are generally consistent, Mr. Lankford points to
no indicia of a cooperative fabrication.
In any event, the conspiracy scenario makes little sense. Mr. Lankford
alleges that the use-of-force reports falsely shift responsibility for the baton
strikes from Officer Buell to Officer Velez. The claim, then, is that these officers
admitted that three of them participated in the use of force, simply swapping
the identities of one of the participants. If this is a conspiracy to cover up the
facts, it is a strangely limited one. Indeed, the conspiracy would only plausibly
succeed if the innocent Officer Velez went along with it and agreed to accept
the blame; yet Mr. Lankford claims that the agreement occurred when Buell
arrived and spoke with the other officers, well before Officer Velez even arrived.
None of this is to say that police officers could never agree to shift blame
among themselves, rather than exculpate themselves. For example, they might,
in solidarity, decide to spare an officer who already had numerous complaints
against him or might be subject to more severe disciplinary action for some
reason. Nothing in this record, however, suggests any such possible motive
with respect to Officer Buell. From this record, the only identifiable distinction
between Velez and Buell is that Officer Buell, after the arrest, allegedly used a
racial slur to insult Mr. Lankford; one could theorize that the officers sought to
distance their actions from any such racial motive. But this theory, too, does
not fit the facts: the agreement to enter the conspiracy allegedly occurred when
28

Officer Buell spoke with Officer Alvarez at the scene, well before he uttered any
slur. Plaintiff simply has not brought forth sufficient facts to raise a factual
issue as to whether a conspiracy occurred.
At this late stage, on summary judgment, Mr. Lankford is required to
offer more than insinuations; he must, through citations to evidence of record,
set forth a prima facie case of civil conspiracy. Because he has failed to do that,
I GRANT Officer Buell’s summary judgment motion on the civil conspiracy
claim.
3. Remaining Section 1983 Claims
Mr. Lankford also appears to be asserting claims for false arrest, false
imprisonment, deprivation of property without due process, and a Taking of
property without just compensation, pursuant to Section 1983. 12
a. False arrest/imprisonment
Mr. Lankford points to sufficient evidence to create a dispute as to
whether he suffered a false arrest and/or false imprisonment. “The proper
inquiry in a section 1983 claim based on false arrest . . . is not whether the
person arrested in fact committed the offense but whether the arresting officers
had probable cause to believe the person arrested had committed the offense.”
Groman, 47 F.3d at 634 (quoting Dowling v. City of Philadelphia, 855 F.2d 136,
141 (3d Cir. 1988)). “[W]here the police lack probable cause to make an arrest,
the arrestee has a claim under § 1983 for false imprisonment based on a
detention pursuant to that arrest.” Id. at 636 (citing Thomas v. Kippermann,
846 F.2d 1009, 1011 (5th Cir. 1988)).
Mr. Lankford has brought forth sufficient evidence to create a dispute of
fact as to whether there was probable cause for his arrest and subsequent
As noted above, Mr. Lankford’s complaint is quite confusing as to what claims
he is truly pursuing. The false arrest and false imprisonment claims, however, appear
in the same paragraph, and in the same context, as Mr. Lankford’s civil conspiracy
claim. He also argues affirmatively, in connection with the excessive force claims, that
the officer lacked probable cause for his arrest. I will therefore find that he has,
however unclearly, expressed an intent to assert a § 1983 claim of false arrest or
imprisonment.
12

29

detention. (See Section A.1.iii, supra.) Moreover, Officer Buell does not appear
to address false arrest/imprisonment in his motion for summary judgment. To
the extent Buell intended to do so, however, summary judgment is DENIED as
to § 1983 claims of false arrest and false imprisonment.
b. Property deprivation and per quod claims
I turn to Mr. Lankford’s claims of deprivation of property and Takings
under Section 1983, and his claims of conversion and loss of companionship
under New Jersey tort law. The summary judgment motion understandably
does not address these claims, which are barely asserted. I have reviewed the
factual submissions and found no evidentiary basis for them. In the interest of
streamlining this case for trial, I give notice that I am considering granting
summary judgment in Officer Buell’s favor on these claims sua sponte, subject
to any supplemental submission a party wishes to make within 10 days. See
Gibson v. Mayor and Council of City of Wilmington, 355 F.3d 215, 222 (3d Cir.
2004).
B. Whether the NJTCA’s Immunities Protect Officer Buell Against
the State Law Claims
As mentioned supra, I interpret the Complaint as asserting certain New
Jersey tort law claims against Officer Buell. Buell counters that he is protected
by certain immunities set forth in the New Jersey Tort Claims Act. I disagree.
1. Good Faith Immunity
Under N.J.S.A. 59:3-3, “[a] public employee is not liable if he acts in good
faith in the execution or enforcement of any law. Nothing in this section
exonerates a public employee from liability for false arrest or false
imprisonment.” “Good faith” under that statute means either “objective
reasonableness” or “subjective good faith.” Hayes v. Mercer County, 217 N.J.
Super. 614, 622 (App. Div. 1987); see also Alston v. City of Camden, 168 N.J.
170, 178 (N.J. 2001). This is a disjunctive analysis: an employee may be
immune under either test, and need not satisfy both. Leang v. Jersey City Bd.
of Educ., 198 N.J. 557, 582–83 (N.J. 2009); Alston v. City of Camden, 168 N.J.
170, 186 (N.J. 2001).
30

Under the objective reasonableness test, courts “appl[y] the same
standards of objective reasonableness that are used in federal civil rights
cases,” namely, qualified immunity under 42 U.S.C. § 1983. N.E. v. J.V. v.
DYFS, 449 N.J. Super. 379, 404 (App. Div. 2017); see also Wildoner v. Borough
of Ramsey, 162 N.J. 375, 387 (N.J. 2000).
I have already concluded that Officer Buell is entitled to qualified
immunity under Section 1983 on the excessive force and civil conspiracy
claims. Parallel state tort law claims arising from the same conduct would
ordinarily give rise to good faith immunity as well. See Ianuale v. Borough of
Keyport, 2018 WL 5005005 at *12 (D.N.J. Oct. 16, 2018) (“Because Plaintiffs’
New Jersey state common law assault and battery, malicious prosecution,
invasion of privacy, and abuse of process tort claims arise from the same
alleged conduct as Plaintiff’s § 1983 claims, the NJTCA’s good faith immunity
provision applies to bar Plaintiff’s tort claims against Officer Defendants.”); see
also Trafton v. City of Woodbury, 799 F. Supp. 2d 417, 445 (D.N.J. 2011)
(“Therefore, if the alleged tort and alleged constitutional violation arise out of
the same conduct, and the Court concludes that no constitutional violation
occurred because the public employee’s actions were objectively reasonable,
the NJTCA’s good faith provision applies and bars prosecution of the tort
claim.”). This immunity would apply to Mr. Lankford’s assault and civil
conspiracy claims because they closely parallel his Section 1983 claims. It
would also encompass Mr. Lankford’s negligence claims and his loss-ofcompanionship claim to the extent they concern Officer Buell’s use of force.
The N.J.S.A. § 59:3-3 immunity, however, is not complete; it is
“qualified.” As relevant here, under N.J.S.A. § 59:3-14(a), the immunity does
not extend to a state employee’s conduct which constitutes a “crime, actual
fraud, actual malice, or willful misconduct.” See Leang, 198 N.J. at 582–83,
586 (“we agree . . . that the ‘actual malice’ standard applies and, if plaintiff can
meet it, that proof would make the immunity protection inapplicable’”). To the
extent a jury could find malice, the good faith immunity would not apply.
31

“To pierce section 3-3’s qualified immunity, a plaintiff must prove more
than ordinary negligence.” Canico v. Hurtado, 144 N.J. 361, 365 (N.J. 1996). If
the immunity is pierced, however, a plaintiff may bring negligence claims
against a public employee. As the New Jersey Appellate Division explained in
Dunlea v. Belleville, “The New Jersey act . . . provides immunity to public
employees engaged in law enforcement notwithstanding their negligence, so
long as they act in ‘good faith.’” 349 N.J. Super. 506, 511 (App. Div. 2002)
(emphasis added) (quoting Marley, 193 N.J. Super. at 294–95); see also Tice v.
Cramer, 254 N.J. Super. 641, 649 (App. Div. 1992) (“The ‘initial inquiry is
whether any immunity applies,’ and if not, should liability attach.”). Thus, if
there remains a factual issue as to whether Officer Buell acted in good faith,
those claims are not barred from the jury’s consideration.
I find there is evidence in the record that Officer Buell acted with “actual
malice,” and thus lacked good faith, because he is alleged to have addressed
Mr. Lankford using a racial slur. “In the context of alleged use of excessive
force, the [New Jersey Supreme] Court has suggested that it can be attributed
to ‘actual malice’ or ‘willful misconduct’ when it ‘involv[es] deliberate and totally
outrageous behavior.’” In re Rodriguez, 423 N.J. Super. 440, 452 (App. Div.
2011) (quoting Moya v. City of New Brunswick, 90 N.J. 491, 504 n.8 (N.J.
1982)). The Rodriguez court found the “actual malice” standard in the New
Jersey Tort Claims Act largely tracked that of the term as used in the punitive
damages statute, which requires “an intentional wrongdoing in the sense of an
evil-minded act.” Id. (quoting N.J.S.A. 2A:15-5.10). 13
“Racial discrimination . . . is, in and of itself, outrageous conduct, an
expression of malice.” Johnson v. Ryder Truck Rentals, Inc., 264 N.J. Super.
312, 317 (Law Div. 1993); Timber Properties, Inc. v. Chester Twp., 205 N.J.
Super. 273, 286 (Law Div. 1984) (actual malice can be proven where the

To be clear, the use of racial epithets would not be relevant to the issue of
whether the force used was excessive, as established above. It could, however, be
relevant to the issue of malice.
13

32

individual undertook an action solely to harm the plaintiff). Officer Buell’s use
of the racial slur—assuming, as I must for purposes of this motion, that it
occurred— would indicate that he bears ill will towards individuals of Mr.
Lankford’s race and could support an inference that he sought to harm
Lankford on that basis, negating good faith. Furthermore, the use of a slur
such as the n–word would be outrageous and completely contrary to a police
officer’s proper role. I thus cannot grant summary judgment, because issues of
fact bar a finding that the good faith immunity protects Officer Buell’s conduct.
The good faith immunity, furthermore, does not apply to claims of
intentional false arrest/ imprisonment, or intentional infliction of emotional
distress. N.J.S.A. 59:3-3 (“Nothing in this section exonerates a public employee
from liability for false arrest or false imprisonment.”); see also Gattas v. City of
Jersey City, 2010 WL 892187 at *7 (D.N.J. Mar. 5, 2010) (good faith immunity
inapplicable to intentional infliction of emotional distress). Thus, those
particular claims would survive the application of good faith immunity to
Officer Buell’s conduct, regardless of whether he displayed actual malice.
I thus turn to Officer Buell’s second defense, which is based on the
NJTCA’s verbal threshold.
2. The NJTCA’s “Verbal Threshold”
The Tort Claims Act contains a so-called “verbal threshold” provision
which limits claims for pain-and-suffering damages. That provision is N.J.S.A.
59:9-2(d):
No damages shall be awarded against a public entity or public
employee for pain and suffering resulting from any injury;
provided, however, that this limitation on the recovery of damages
for pain and suffering shall not apply in cases of permanent loss of
bodily function, permanent disfigurement or dismemberment
where the medical treatment expenses are in excess of $3,600.00.
The point of this provision is to “weed out claims for ‘subjectively measured
damages for pain and suffering, which are not compensable by the Tort Claims
Act.’” Nieves v. Officer of the Public Defender, 241 N.J. 567, 580 (N.J. 2020).
That exception does not apply to “willful or other outrageous misconduct
33

excepted under N.J.S.A. 59:3-14.” Id.; see also Leang v. Jersey City Bd. of
Educ., 198 N.J. 557, 584 (N.J. 2009).
As discussed above, Mr. Lankford has provided sufficient evidence for a
jury to conclude that Officer Buell engaged in “willful or other outrageous
misconduct” by demonstrating “actual malice” via his alleged use of racial slurs
against Mr. Lankford. N.J.S.A. 59:3-14. If a jury were to find that Buell did
engage in such conduct and that it demonstrates actual malice, the verbal
threshold would not apply. Summary judgment is therefore not appropriate.
C. Assault
Officer Buell moves for summary judgment against Mr. Lankford’s state
law tort claim of assault. The parties agree that “[p]olice officers are privileged
to commit a battery pursuant to a lawful arrest, but the privilege is negated by
the use of excessive force.” Groman v. Township of Manalapan, 47 F.3d 628,
634 (3d Cir. 1995) (citing Edwards v. City of Phila., 860 F.2d 568, 572 (3d Cir.
1988)). Mr. Lankford claims Officer Buell was not privileged to assault him in
this case because the arrest Officer Buell was helping effectuate was not
“lawful”; as explained above, Mr. Lankford claims Sergeant Fiorilla stopped him
for reasons of racial bias and lacked probable cause.
Case law is sparse as to whether an absence of probable cause renders
an arrest “unlawful” such that police officers are no longer privileged to commit
battery. New Jersey courts appear not to have reached the issue directly. But
see Zalewski v. Gallagher, 150 N.J. Super. 360, 371 (App. Div. 1977) (“This
jury specifically found that Gallagher had used excessive force in arresting
Leslie and in overcoming Leslie’s resistance to that arrest. He had committed
an assault and battery . . . .”). New York state law, on the other hand, holds
that “[i]f an arrest is determined to be unlawful [because it lacks probable
cause], any use of force against a plaintiff may constitute an assault and
battery, regardless of whether the force would be deemed reasonable if applied
during a lawful arrest.” Sulkowska v. City of New York, 129 F. Supp. 2d 274,
295 (S.D.N.Y. 2001). Third Circuit precedents, particularly Groman and
34

Edwards, go no farther than to hold that excessive force removes an officer’s
privilege to commit battery or assault, without reaching the probable cause
issue. And courts have not found that the absence of probable cause makes
out a per se claim of excessive force, see Section III.A.1.i, supra; see also Snell,
564 F.3d at 672–73.
Perhaps the most straightforward approach is set out in the Restatement
(Second) of Torts § 118. The Restatement states that “[t]he use of force against
another for the purpose of effecting his arrest and the arrest thereby effected
are privileged if all the conditions stated in §§ 119–132, in so far as they are
applicable, exist.” In Comment a., the Restatement (Second) makes clear that
“this Subject does not consider the question whether the arrest is made under
such circumstances as to . . . render invalid the judicial proceedings in the
course of which the arrest is made.” That is, the probable cause inquiry and
the assault/ battery inquiries are separate from one another.
Restatement (Second) §§ 121 clarifies that a peace officer may make an
arrest where he or she “reasonably suspects” that an individual has committed
a felony, a breach of the peace, or an “affray.” 14 See also id. §§ 119–20. Under
this approach, the question would be whether Officer Buell, upon arriving at
the scene, believed that Mr. Lankford was committing a crime, breaching the
peace, or committing an affray. This approach differs from Mr. Lankford’s
proposal in that it does not depend on whether Officer Buell’s reasonable
determination resulted from an unlawful initial arrest by Sergeant Fiorilla.
The Restatement (Second) approach seems like a reasonable middle
ground between the New York approach and one which immunizes officers
from liability for assaults regardless of whether the officer actually believed a
crime has been committed. The New York approach seems likely to create tort
liability out of reasonable mistakes—for example, where an officer arrested an

“The fighting of two or more persons in some public place to the terror of the
people. Black’s Law Dictionary, What is AFFRAY?,
https://thelawdictionary.org/affray/.
14

35

individual based on what appeared to be probable cause but was later
determined to be the fruit of the poisonous tree. To extend immunity without
any regard to the legitimacy of the detention, on the other hand, seems to
incentivize lawlessness. I believe the New Jersey Supreme Court would adopt
the Restatement (Second) approach, so I apply it here.
Here, Officer Buell came upon Mr. Lankford resisting Sergeant Fiorilla’s
orders to produce his hands for an extended period of time. He could
reasonably have gone to his fellow officer’s aid without first conducting an onthe-spot interview regarding probable cause. He could reasonably have
concluded that Mr. Lankford was committing the crime of resisting arrest or an
affray. His efforts to subdue Mr. Lankford, therefore, were privileged under the
Restatement test, and do not constitute assault and battery.
D. Negligent and Intentional Infliction of Emotional Distress
Mr. Lankford has set forth a prima facie case of intentional infliction of
emotional distress. To prevail on such a claim, he must establish that Officer
Buell’s conduct (1) was extreme and outrageous, (2) was intentional or
reckless, (3) caused emotional distress, and (4) that distress was severe. Chuy
v. Philadelphia Eagles Football Club, 595 F.2d 1265, 1273 (3d Cir. 1979); see
also Buckley v. Trenton Saving Fund Society, 111 N.J. 355, 366–67 (N.J. 1988).
For conduct to be “extreme and outrageous,” New Jersey courts require
that the conduct have been “so outrageous in character, and so extreme in
degree, as to go beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized community.” Ingraham v. OrthoMcNeil Pharmaceutical, 422 N.J. Super. 12, 21 (App. Div. 2011). Courts refer to
it as an “elevated threshold” which is “satisfied only in extreme cases.” Id.
(quoting Griffin v. Tops Appliance City, Inc., 337 N.J. Super. 15, 23 (App. Div.
2001)).
Here, Officer Buell allegedly engaged in two “outrageous” acts: first, he
used his baton to strike Mr. Lankford’s leg three times, and second, he used

36

various racial slurs, including the n–word, against Mr. Lankford. I find that
only the second is potentially regarded as “extreme and outrageous.”
As discussed, Officer Buell’s use of his baton did not violate clearly
established law concerning use of force on resisting suspects. The Officer could
reasonably have determined that Mr. Lankford had been resisting arrest for
over 10 minutes despite numerous efforts by two other officers to bring him
under control. In such a circumstance, an officer “is privileged to commit a
battery.” Groman, 47 F.3d at 634. At any rate, the baton strikes would not have
been so lacking in justification as to rise to the level of outrageousness.
Plaintiff argues that Officer Buell was not privileged to commit a battery
in this instance because the arrest was unlawful, because the officers lacked
probable cause. 15 But even if that were true, Officer Buell could have
reasonably believed that his use of force was privileged in these circumstances,
as there is no evidence in the record to indicate that he was aware of Sergeant
Fiorilla’s motive for arresting Mr. Lankford. Furthermore, all parties agree that
Mr. Lankford had been resisting arrest for over ten minutes. Officer Buell thus
appears to have done nothing more than simply use force to subdue a resisting
arrestee. Striking a suspect in the legs is not outrageous or disproportionate in
that context. The use of force by a police officer under such circumstances is,
as a matter of law, not “so outrageous in character” or “extreme in degree” as to
justify sending a claim of intentional infliction of emotional distress to a jury.
In contrast, it is well established in New Jersey that the direct use of “an
atrocious racial slur to refer to an African-American” by an individual in
authority meets the “elevated threshold” required to make this an “extreme
case.” Ingraham, 422 N.J. Super. at 21 (discussing Taylor v. Metzger, 152 N.J.
490, 508–21 (N.J. 1998)). In Metzger, a county sheriff’s officer was called a
racial slur by her boss, the county sheriff. Id. at 494–95. The New Jersey

As discussed, New Jersey law is inconclusive on this issue but the best
approach seems to be to ask whether Officer Buell reasonably believed a crime or
breach of the peace was occurring rather than engaging in a probable cause inquiry.
15

37

Supreme Court concluded that “[a] racial slur uttered by a sheriff directed
against a subordinate officer is not, as a matter of law, a mere insult or
triviality. A reasonable jury could reasonably conclude that defendant’s
conduct was atrocious and intolerable.” Id. at 509–10. The court concluded
that the use of the slur “stepped beyond our civilized community’s bounds of
decency” and so “[a] jury should determine whether defendant’s remark was
outrageous or merely an insult.” Id. at 510.
Metzger “d[id] not hold that a single racial slur spoken by a stranger on
the street could amount to extreme and outrageous conduct”; the plus factor in
that case consisted of “the power dynamics of the workplace.” Id. at 511. By the
same reasoning, the use of racial slurs by an arresting officer, who represents
the government and is empowered with significant discretion in enforcing the
law, could rise to the level of outrageousness. Such an insult, in such a
context, could reasonably be found to have a significant impact on the psyche
of an individual, who might infer that he was seen as less than a full citizen in
the eyes of the law.
So not every insult, even a racial one, is actionable; what transforms this
particular insult is the power dynamic, one involving a suspect in the absolute
control of the police. See Wigginton v. Servidio, 324 N.J. Super. 114, 131 (App.
Div. 1999) (a tortfeasor’s “position of authority and power” over a plaintiff may
contribute to a finding of extreme and outrageous conduct). Officer Buell was
not a mere passerby who used a racial slur against Mr. Lankford. He was a
police officer, representing the government and is empowered with enforcing
our society’s laws. He said the slurs not in passing, but immediately after Mr.
Lankford had received a beating (whether justified or not) from the police. Buell
allegedly uttered the slurs while Lankford was in his physical control, in the
course of telling Mr. Lankford that he could never win a case against Clifton.
The effect of such language, at least in Mr. Lankford’s version of the events,
was not only to insult Lankford on the basis of his race, but to send a message:

38

that he was beaten on account of his race, and that because of his race he
would never be able to obtain redress. 16
The use of racial slurs by a police officer immediately after a suspect was
subdued by force, in the context of a questionable arrest and statements that
the suspect would never receive justice, is outrageous and shocking. On an
interpretation of the facts most favorable to Lankford, it could constitute
intentional infliction of emotional distress.
I also find the evidence sufficient to satisfy the requirement that such
distress be severe. Metzger, 152 N.J. at 515; Buckley, 111 N.J. at 366–67.
“Severe emotional distress is a severe and disabling emotional or mental
condition which may be generally recognized and diagnosed by trained
professionals.” Turner v. Wong, 363 N.J. Super. 186, 200 (App. Div. 2003)
(citing Metzger, 152 N.J. at 515). The “emotional distress must be sufficiently
substantial to result in either physical illness or serious psychological
sequelae.” Id. (citing Aly v. Garcia, 333 N.J. Super. 195, 204 (App. Div. 2000)).
“Whenever an intentional infliction of emotional distress claim arises out of
conduct that also constitutes invidious discrimination on the basis of ‘race’ . . .
the average person standard must be adopted to reflect those characteristics of
the plaintiff that are the focus of the alleged discrimination.” Id. (quoting
Metzger, 152 N.J. at 516–17).
“[A]ggravation, embarrassment, an unspecific number of headaches, and
the loss of sleep” is not sufficient distress as a matter of law to be “severe.”
Buckley v. Trenton Sav. Fund Soc., 111 N.J. 355, 366 (N.J. 1988); see also
16

In his deposition, Lankford described it this way:
I know when I was arrest[ed], they were saying a bunch of racial things,
so that basically comes from how I felt anyway. You know, I mean, they
shouldn’t be calling me out my name anyway, you know . . . . when we
got to the precinct, when we got to the precinct and I was in the back, I
was talking to him too. I’m just like, you want to pay for this. He called
me a [n–word] and everything. So like how am I supposed to feel about
that? . . . . He basically was saying, I got fuckin’ lawyers too. He said
you’ll never win his case.

(2T119:19–120:9).

39

J.L.D. v. Estate of Gannon, 2016 WL 8677315 at *24 (D.N.J. July 29, 2016)
(“anxiety, sleep loss, lack of trust, damaged relationships, tinnitus, headaches,
and the like” are insufficient to prove severe damages). Nor are a plaintiff’s bare
statements that he was “distressed, anguished, humiliated, and troubled.”
Gattas, 2010 WL 892187 at *8. On the other hand, where a plaintiff “lived in
fear that propelled her to purchase a bullet-proof vest,” received treatment for
anxiety, underwent psychotherapy for as long as she could afford to do so,
suffered from mood changes, insomnia, nightmares, and flashbacks, and was
ultimately diagnosed with PSTD, she established severe emotional distress.
Metzger, 152 N.J. at 514.
Whether a plaintiff ever sought medical attention is relevant to the
severity of emotional distress. Fleming v. United Parcel Services, Inc., 255 N.J.
Super. 108, 166 (Law Div. 1992). Evidence of such treatment, or expert
testimony suggesting severe emotional trauma, however, is not “necessary for a
plaintiff to prevail on an IIED claim.” Kounelis v. Sherrer, 529 F. Supp. 2d 503,
532 (D.N.J. 2008) (citing Bolden v. SEPTA, 21 F.3d 29, 34 (3d Cir. 1994)); see
also Esposito v. Little Egg Harbor Twp., 2012 WL 1495468 at *7 (D.N.J. Apr. 27,
2012) (plaintiff’s claim did not fail for lack of medical evidence, but rather lack
of any evidence from which a reasonable jury could find severe emotional
distress). Rather, expert testimony is only required when “the matter to be
dealt with is so esoteric that jurors of common knowledge and experience
cannot form a valid judgment.” Butler v. Acme Markets, Inc., 89 N.J. 270, 283
(N.J. 1982).
In his deposition Mr. Lankford describes his emotional injuries as
relating to his fear of arbitrary arrest or physical beatings at the hands of the
police because of his race. He explained that he is now afraid of police and “If I
can avoid them, I will avoid them. If I was to get stopped today, even in an
Uber, I’d panic. I wouldn’t know what to do. I would think he would just going
to fuck with me for no reason. I wouldn’t know how to react to that type of
situation, so I just try to stay away from them.” (DE 45-3, Deposition of
40

Laquice Lankford, 2T154:1–6 (emphasis added).) He further explained that he
felt “[m]istreated, singled out, just treated inhumane, man, like, just crazy.”
(2T154:10–11.) He explained that when he is pulled over, he will “panic. I don’t
know if I want to tell them the truth. I don’t know if I want to run. I don’t even,
-- I don’t know what’s going to happen at that point,” and he explains that feels
“like if I made the wrong move, like it was going to go south for me, basically.”
(2T128:9–17, 130:3–5.) He explains that his experience left him “terrified of
cops now” and that the experience “left [him] shooken up.” (2T130:11–14.)
Lastly, he explains that during the beating he “was just thinking, like, I might
not even make it out this situation. I was just like, I fucked up this this time.
Like, I thought about my kids. I thought about, you know, my loved ones. I just
thought — I felt like I was going to die. I’m like a blow to the head is about to
come. I just thought — I couldn’t believe they was doing this to me. I’m a grown
man. I couldn’t believe I was getting beat like that.” (2T153:8–15.) Mr. Lankford
explained that he did not seek medical treatment for his feelings of panic and
stress, but only because he could not afford it. (2T128:23–129:6.)
Mr. Lankford’s feelings of panic and fear in the presence of police are
sufficient to send the issue of “severe emotional distress” to the jury. Lankford
has not simply alleged in a conclusory fashion that he has “sustained severe
emotional distress,” Esposito, 2012 WL 1495468 at *7, or merely claimed to be
anxious and to have headaches, J.L.D., 2016 WL 8677315 at *24. He describes
“severe psychological sequelae” such as panic, terror, changing his behavior to
avoid the police, and feeling as though it is possible that he would be killed if
he is pulled over in the future. Turner, 363 N.J. Super. at 200. A jury could
reasonably find severe emotional distress on these facts.
The element of proximate cause is also satisfied by this evidence. True,
the most obvious and direct cause of Mr. Lankford’s distress would be his
physical treatment, rather than the verbal slurs he heard afterwards. But the
slurs could have amplified the emotional effect of the physical beating by
implying that, because of his race, he would just have to take it, now and in
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the future. A jury could conclude otherwise, but it could reasonably find in Mr.
Lankford’s favor on those facts.
For the same reason, I do not dismiss Mr. Lankford’s claim of negligent
infliction of emotional distress. Officer Buell asserts that this claim fails
because Mr. Lankford has not suffered severe emotional distress, has not
provided expert witnesses in support of this claim, has not claimed that Officer
Lankford violated any police duty, and did not proximately cause his injuries.
All of these arguments fail for the reasons explained supra.
E. Punitive Damages
I cannot, on summary judgment, rule out punitive damages for the
Section 1983 claims of false arrest/imprisonment and the remaining state law
claims.
Punitive damages are available in Section 1983 claims where the plaintiff
can show a “malicious intention to deprive respondents of their rights or to do
them other injury.” Carey v. Piphus, 435 U.S. 247, 257 n.11 (1978); see also
Smith v. Wade, 461 U.S. 30, 56 (1983). Here, Officer Buell’s use of a racial slur,
if accepted by a jury, could support an inference of malicious intent to deprive
Mr. Lankford of his constitutional rights. Ryder Truck Rentals, Inc., 264 N.J.
Super. at 317 (“racial discrimination fits well within the parameters established
by the New Jersey courts which set forth the circumstances that warrant
punitive damages”).
As for the state law claims, in New Jersey a plaintiff must prove “by clear
and convincing evidence” that the harm suffered by the plaintiff was “actuated
by actual malice or accompanied by a wanton and willful disregard of persons
who foreseeably might be harmed by those acts or omissions.” N.J.S.A. 2A:155.12(a). I find, given Officer Buell’s use of a racial slur, that there is evidence
that he had actual malice towards Mr. Lankford.
Whether punitive damages can be established is of course an open
question. The state of the evidence, however, indicates that plaintiff may be
able to carry his burden, so summary judgment is not appropriate.
F. Conclusion: Officer Buell
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The plaintiff and Officer Buell have proffered clashing versions and
interpretations of the facts. The Court’s task on summary judgment is not to
resolve disputed issues but to determine whether, giving the facts the
interpretation most favorable to the plaintiff, there is an issue for the jury. I
GRANT the motion for summary judgment against Mr. Lankford’s claims for
excessive force and civil conspiracy pursuant to Section 1983 and against his
claims for assault and civil conspiracy 17 under New Jersey law. Otherwise,
however, Officer Buell’s motion is DENIED.
IV.

CLIFTON’S MOTION FOR SUMMARY JUDGMENT
Mr. Lankford brings claims against Clifton (1) based on Section 1983 for

deliberate indifference in failing to adequately train or supervise the officers
involved in Mr. Lankford’s arrest and beating, pursuant to a custom or practice
of racialized policing; and (2) for negligent supervision under New Jersey state
law. I GRANT summary judgment to Clifton on both of these claims.
A. Section 1983 Monell Claim
Mr. Lankford seeks to impose liability on Clifton under Monell v.
Department of Social Services for its allegedly unconstitutional customs and
practices. “A municipality cannot be held liable [pursuant to § 1983] for the
unconstitutional acts of its employees on a theory of respondeat superior.”
Thomas v. Cumberland County, 749 F.3d 217, (3d Cir. 2014) (citing Monell v.
Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978)). A plaintiff can, however, prove a
violation by demonstrating that his or her “violation of rights was caused by the
municipality’s policy or custom.” Id. (citing Monell, 436 U.S. at 690–91).
Liability may be imposed when a municipality’s “policy or custom itself violates
the Constitution or when the policy or custom, while not unconstitutional
itself, is the ‘moving force’ behind the constitutional tort of one of its

17 As noted above in footnote 9, Mr. Lankford’s New Jersey tort law civil
conspiracy claim fails for the same reason as his Section 1983 conspiracy claim.

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employees.” Id. (quoting Colburn v. Upper Darby Twp., 946 F.2d 1017, 1027 (3d
Cir. 1991)).
Mr. Lankford claims that Clifton violated his rights by failing to train its
officers. When the alleged policy “concerns a failure to train or supervise
municipal employees, liability under section 1983 requires a showing that the
failure amounts to ‘deliberate indifference’ to the rights of persons with whom
those employees will come into contact.” Thomas, 749 F.3d at 222 (quoting
Carter v. City of Phila., 181 F.3d 339, 357 (3d Cir. 1999)). “Deliberate
indifference is a stringent standard of fault, requiring proof that a municipal
actor disregarded a known or obvious consequence of his action.” Id. at 223
(quoting Bd. of Cnty. Comm’rs of Bryan Cnty., Okl. v. Brown, 520 U.S. 397, 410
(1997)). Ordinarily, “a pattern of similar constitutional violations by untrained
employees” is “necessary ‘to demonstrate deliberate indifference for purposes of
failure to train.’” Id. (quoting Connick v. Thompson, 536 U.S. 51, 62 (2011)).
“Without notice that a course of training is deficient in a particular respect,
decisionmakers can hardly be said to have deliberately chosen a training
program that will cause violations of constitutional rights.” Id. Relatedly, an
“identified deficiency in a city’s training program must be closely related to the
ultimate injury”; in other words, “the deficiency in training [must have] actually
caused” the constitutional violation. Id. (quoting City of Canton, Ohio v. Harris,
489 U.S. 378, 391 (1989)).
The sole proffered factual basis for Mr. Lankford’s Monell claim is a set of
statistics maintained by NJ Advance Media’s Use of Force Database which
indicates that officers within Clifton in general, and the individual defendants
in particular, use force at a disproportionate rate against Black suspects as
compared to White suspects. (DE 46 at 6–12.) Mr. Lankford claims that this
evidence shows that Clifton has a policy or custom of racialized policing and
that the data was sufficient to put it on notice that its training programs were
insufficient to root out this custom. I conclude Mr. Lankford has not
established facts which prove a prima facie case under Monell.
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First, Mr. Lankford does not allege or establish any particular deficiency
in Clifton’s training program. See Bangura v. City of Philadelphia, 338 Fed.
Appx. 261, 266 (3d Cir. 2009) (dismissing Monell claim where “Bangura did not
allege any facts to support an inference that the City of Philadelphia follows a
deficient policy . . . she did not identify the City’s policy on child custody
disputes, or set forth any other facts that would suggest an absence thereof”);
see also Rios v. City of Bayonne, 2015 WL 2400756 at *2 (D.N.J. May 19, 2015)
(dismissing Monell claim where plaintiff failed to identify specific training
policy, state why it was inadequate, or propose an alternative policy); Labo v.
Borger, 2005 WL 1971867 at *4 (rejecting claim because “Plaintiff cannot point
to any actual inadequate training”). Indeed, apart from citing statistics
regarding the use of force, Mr. Lankford provides only “generalities, not facts”
as to the Clifton Police’s training program, making no mention of the presence
or absence of any racial bias training or the specifics of the organization’s use
of force training. Rios, 2015 WL 2400756 at *2; see also McTernan v. City of
York, 564 F.3d 636, 658 (3d Cir. 2009) (“[t]o satisfy the pleading standard” for
a Monell claim a plaintiff “must identify a custom or policy, and specify what
exactly that custom or policy was”).
Indeed, Clifton explains that its officers undergo use-of-force training
consistent with the New Jersey Attorney General’s Use of Force policy. (Clifton
MSJ at 15.) The mere existence of such a program, of course, does not mean it
is sufficient. But it is still Mr. Lankford’s burden to identify a deficiency with
Clifton’s training program which is responsible for the officers’ claimed
misconduct, or at least to identify the absence of a training program that would
have prevented it. He cannot simply identify a racial disparity with respect to
arrests, and posit that some undefined defect in the training program must be
the cause.
Second, Mr. Lankford provides no “pattern of similar constitutional
violations by untrained employees” or any other evidence which indicates that
Clifton should have been “on notice” of its allegedly deficient training program.
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Thomas, 749 F.3d at 223; Labo, 2005 WL 1971867 at *4 (“The evidence
presented reveals no previous incidents of a similar nature involving any police
officers to which the Defendants were indifferent”); see also Castellani v. City of
Atl. City, 2017 WL 3112820 at *22 (D.N.J. July 20, 2017); Worral v. City of Atl.
City, 2013 WL 4500583 at *1 (D.N.J. Aug. 30, 2013). Such a pattern would
have to be centered on the excessive use of force which is at the heart of the
claims here; that is, Lankford would have to show that Clifton was deliberately
indifferent to the risk that its officers, because of their poor training, would use
excessive force against Black individuals.
The data provided by Mr. Lankford are too general to support such a
claim. The data compile instances of use of force, but do not state whether
those uses of force were justified or excessive. The data furthermore provide no
information as to whether there are any cases factually comparable to this one.
Thomas, 749 F.3d at 223. They do not place Clifton on notice of any
substantial risk that individuals of Mr. Lankford’s race would suffer
constitutional violations because of its officers’ conduct.
Third, Mr. Lankford additionally fails to identify what alternative policy
could have averted the alleged constitutional violation which he suffered at the
hands of the police officers. See City of Canton, 489 U.S. at 391; see also Labo
v. Borger, 2005 WL 1971867 at *4 (D.N.J. Aug. 15, 2005) (rejecting Monell
claim where plaintiff “failed to show that a different policy . . . would have
prevented the harm”). Indeed, he does not mention any alternative policy at all,
even in conclusory terms, much less identify a specific type of training that
would have prevented the officers from violating his constitutional rights in this
instance. As in Castellani, here the undisputed facts demonstrate that Clifton
officers do undergo use-of-force training. Mr. Lankford does not identify any
deficiency in that training that Clifton was aware of but ignored.
Mr. Lankford’s opposition sometimes lapses into a straightforward claim
that Clifton had a policy of using excessive force against Black individuals,
untethered to any claim of deficient training or supervision. No such claim is
46

pled in the complaint. Holland, 2011 WL 6934969 at *4. In any event, Mr.
Lankford provides no evidence at all that Clifton police officers were regularly
using excessive force against Black individuals or that Clifton had a policy of
encouraging them to do so.
Summary judgment is therefore awarded to Clifton on the Monell claim.
B. Negligent Supervision
To prove a prima facie case of negligent supervision, Mr. Lankford must
show: (1) that the employer “knew or had reason to know of the particular
unfitness, incompetence, or dangerous attributes of [the employees] who were
involved,” (2) “could reasonably have foreseen that such qualities created a risk
of harm to other persons,” and (3) the employer’s negligence “proximately
caused plaintiff[‘s] injuries.” Smith v. Harrah’s Casino Resort of Atlantic City,
2013 WL 6508406 at *3 (N.J. App. Div. Dec. 13, 2013); see also Di Cosala v.
Kay, 91 N.J. 159, 173–74 (N.J. 1982).
This claim fails for many of the same reasons that Mr. Lankford’s Section
1983 claim failed. Mr. Lankford simply provides no evidence that indicates that
Clifton should have concluded that the officers involved in this case were unfit,
incompetent, or dangerous in any way. His sole evidence for this proposition is
the N.J. Advance Media Use of Force report, which only shows that the officers
used force, not that their uses of force were unjustified. His reference to the
percentages of use of force by each officer against Black individuals also falls
short of showing bias. One confounding variable, the city notes, is that the data
do not show whether particular officers patrol areas of the city more heavily
populated by minorities. 18 The officers’ disproportionate use of force, then,
might simply reflect their patrol patterns rather than any actual pattern of
discrimination. The larger point, however, is that these aggregate statistics do

This is not to say, of course, that a municipality could not be held responsible
for failure to supervise a police officer who has a history of using force against
minorities more frequently. Rather, it is only to say that to satisfy his burden on
summary judgment, Mr. Lankford must bring forth evidence that actually
demonstrates that is the case.
18

47

not demonstrate the proposition for which they are cited: i.e., that the City’s
negligent supervision led to the events at issue here.
In sum, I GRANT summary judgment to Clifton as to all of Mr.
Lankford’s claims against the city.
V.

Conclusion
For the reasons set forth above, I will grant in part and deny in part

Officer Buell’s motion for summary judgment and grant Clifton’s motion for
summary judgment.
Dated: June 29, 2021
/s/ Kevin McNulty
____________________________________
Kevin McNulty
United States District Judge

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