NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1229-19
T.S., K.H., and E.J.T., guardian ad litem for H.S., a minor,
Plaintiffs-Appellants,
v.
NEW JERSEY STATE POLICE, NEW JERSEY STATE TROOPER, CHRISTOPHER J. WRIGHT, NEW JERSEY STATE TROOPER, DAN CONNOLLY, LAW ENFORCEMENT MEMBERS OF THE MIDDLESEX COUNTY PROSECUTOR'S OFFICE, LAW ENFORCEMENT MEMBERS OF THE SOMERSET COUNTY PROSECUTOR'S OFFICE, LAW ENFORCEMENT MEMBERS OF THE MERCER COUNTY PROSECUTOR'S OFFICE, LAW ENFORCEMENT MEMBERS OF THE FRANKLIN TOWNSHIP POLICE DEPARTMENT, LT. J. HOLLAR #5280, DETECTIVE I G. SEFICK #5974, DETECTIVE D. MURAGLIA #6996, DETECTIVE I T. KELSHAW #6231, DSFC P. CIANO, #5133, DETECTIVE J. ASPROMONTI (MERCER COUNTY PROSECUTOR'S OFFICE), SGT. FRANCIS (MERCER COUNTY PROSECUTOR'S OFFICER), TROOPER PETERSON #6278, (NJSP TROOP "B" TACTICAL PATROL UNIT), and DSFC D E STRASSHEIM, DET. DOUGLAS SPRAGUE, (SAYREVILLE POLICE DEPARTMENT), OFFICER RICHARD BELOTTI, (SAYREVILLE POLICE DEPARTMENT), OFFICER MARK KURTZ, (MIDDLESEX COUNTY SHERIFF'S DEPARTMENT), OFFICER JOSEPH MORRIALE, (MIDDLESEX COUNTY SHERIFF'S DEPARTMENT), OFFICER FRANK SAUTNER, (MIDDLESEX COUNTY SHERIFF'S DEPARTMENT), DET. ROBERT MAZALEWSKI, (OLD BRIDGE POLICE DEPARTMENT), LT. RAY BASON, (MIDDLESEX COUNTY DEPARTMENT OF CORRECTIONS), and OFFICER KEVIN KOSA, (MIDDLESEX COUNTY DEPARTMENT OF CORRECTIONS),
Defendants-Respondents,
and
LAW ENFORCEMENT MEMBERS OF THE PISCATAWAY TOWNSHIP POLICE DEPARTMENT, DETECTIVE SMITH (PISCATAWAY POLICE DEPARTMENT), and DETECTIVE ORANCHAK (PISCATAWAY
A-1229-19 2 POLICE DEPARTMENT),
Defendants. _________________________________
Argued December 2, 2021 – Decided July 20, 2022
Before Judges Alvarez, Haas and Mitterhoff.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-3037-15.
Kevin T. Flood argued the cause for appellants T.S., K.H., and E.J.T. (Law Office of Kevin T. Flood, LLC, attorneys; Lon C. Taylor, of counsel and on the briefs; Kevin T. Flood, on the briefs).
Adam Robert Gibbons, Deputy Attorney General, argued the cause for respondents New Jersey State Police, SFC Christopher J. Wright, DSG Dan Connolly, Lt. James Hollar, DSG Glenn Sefick, Det. Douglas Muraglia, DSG Tom Kelshaw, DSFC Peter J. Ciano, Sgt Eric Peterson & DSFC D.E. Strassheim (Andrew J. Bruck, Acting Attorney General, attorney; Jane C. Schuster, Assistant Attorney General, of counsel; Adam Robert Gibbons, on the brief).
Michael R. Sarno, Deputy Attorney General, argued the cause for respondents Douglas Sprague, Richard Belotti, Mark Kurtz, Joseph Morriale, Frank Sautner, Robert Mazalewski, Ray Bason, Kevin Kosa and James Francis, (Andrew J. Bruck, Acting Attorney General, attorney; Jane C. Schuster, Assistant Attorney General, of counsel; Michael R. Sarno, on the brief).
Matthew P. Madden argued the cause for respondent Detective J. Aspromonti, Mercer County Prosecutor's
A-1229-19 3 Office (Madden & Madden, PA, attorneys; Matthew P. Madden, on the brief).
PER CURIAM
In this civil rights and tort action arising from the violation of a knock -
and-announce provision of a search warrant, plaintiffs T.S.,1 K.H., and E.J.T.,
guardian ad litem for H.S., appeal an October 9, 2019 order granting summary
judgment and dismissing plaintiffs' complaint with prejudice. After a careful
review of the record and applicable law, we reverse and remand for trial.
We discern the following facts from the record. Plaintiffs were living with
their parents, E.H.,2 and S.S. in Piscataway, New Jersey. Their father became a
target in an Attorney General Task Force investigation of a drug distribution
ring during a thirteen-month wiretap initiative. On April 22, 2013, defendant
Christopher Wright, a New Jersey State Trooper, submitted search and arrest
warrant applications with an attached affidavit, citing the following violations:
Leader of Narcotics Trafficking Network, in violation of N.J.S.A. 2C:35-3, Maintaining/Operating a Narcotics Production Facility, in violation of N.J.S.A. 2C:35-4, Possession with Intent to Distribute a Controlled Dangerous Substance, in violation of N.J.S.A. 2C:35-5, Distribution of a Controlled
1 We use initials in caption and attorney selection to protect the identity of the children. 2 We use fictious initials so as not to confuse this party with one of the plaintiffs. A-1229-19 4 Dangerous Substance, in violation of N.J.S.A. 2C:35-5, Money Laundering, in violation of N.J.S.A. 2C:21-25, Endangering the Welfare of Children, in violation of N.J.S.A. 2C:24-4 and Conspiracy to commit the aforementioned crimes, in violation of N.J.S.A. 2C:5-2 ....
A judge granted the warrant requests, enabling the police to search
plaintiffs' home "after first knocking and announcing, and identifying
[themselves], and there[in] diligently search[ing] the entire premises for
evidence related to the specified crimes." Arrest warrants were obtained for
both parents.
On April 23, 2013, the task force deployed the Special Operations and
Response Team (SORT) to execute the warrant. SORT did not review the
warrant ahead of time but did review strategy at an initial briefing. The briefing
was the second of two arranged by Wright. It is unclear whether Wright attended
the second briefing; however, it is undisputed he never met with SORT. A report
written on April 26, 2013, by the Middlesex County Prosecutor's Office SORT
liaison, stated the meeting was to discuss the warrant's execution of a no-knock
warrant on the property.
SORT failed to knock and announce their presence, instead executing a
no-knock warrant. Plaintiffs' uncle, who slept on a pull-out couch in the living
room adjacent to SORT's point-of-entry, awoke to the sound of the officers
A-1229-19 5 breaking down the door. He was handcuffed and kept in the living room. In his
deposition he explained there was no knock, and as he is a light sleeper, he
would have awoken at the sound of a knock.
Plaintiff T.S., a then nineteen-year-old boy, was sleeping at the time of
the entry. The police entered his room on the second floor and pointed their
weapons at his head. They zip tied his hands and brought him to the living room.
Plaintiff K.H., a then seventeen-year-old boy, was also just waking up.
Like T.S., the police entered K.H.'s room on the second floor, pointed their guns
at his head, zip tied his hands, and brought him to the living room.
H.S. was eleven years old at the time of the event. Upon entering her
room, one officer pointed a gun at the child's face. The officers brought her to
the living room, but her hands were not zip tied.
Plaintiffs' parents were also brought to the living room and subsequently
arrested pursuant to the arrest warrant. Both T.S. and K.H. complained that the
zip ties were too tight, causing pain. Defendant Detective Sefick acknowledged
hearing their complaints of pain. K.H.'s entreaties to loosen the zip ties were
A-1229-19 6 ignored. Both boys3 remained cuffed in the living room for two hours while the
search was conducted.
SORT found twenty-nine bricks of heroin under E.H.'s, bed and packaging
bags on the garage couch, including one containing heroin. A report indicated
SORT found $445 and five "glassine clear bags located in [a] wooden box on
[the] floor of . . . [T.S.'s] room." It also indicated SORT found one "bag
containing [seven] clear glassine bags located in the upstairs closet in . . .
[K.H.'s] bedroom." The boys denied these items were in their rooms. In fact,
E.H., took responsibility for ownership of the drugs. The chain of custody was
unverifiable, as the author of the report did not collect the evidence personally
and could not remember who did.
T.S. and K.H. were charged in relation to the incident, in papers signed
by Wright. They were not charged in relation to the baggies allegedly located
in their rooms; rather, they were charged with possession of the controlled
dangerous substance (CDS) found under E.H.'s bed. T.S. was incarcerated for
eighteen days, while K.H. was incarcerated for eleven days. Eventually, the
charges were voluntarily dismissed by the Attorney General's Office because no
3 We use the term "boys" to refer to T.S. and K.H. for the sole purpose of distinguishing them from their sister, H.S., who is also a plaintiff in this case. A-1229-19 7 evidence ever implicated plaintiffs in the drug distribution ring , despite a
lengthy investigation during which approximately 20,000 phone calls were
monitored.
Because SORT knocked down the front door, T.S. and K.H. came back to
a burglarized home. Both described valuable items stolen from their home while
they were incarcerated.
On May 20, 2015, plaintiffs filed a complaint alleging various civil rights
and tort claims, naming the investigators involved because they did not know
the names of the officers who executed the warrant. Defendants Wright and Dan
Connolly, a New Jersey State Trooper, were the lead investigators. Defendant
J. Aspromonti, a detective with the Mercer County Prosecutor's Office, was
assigned to the wire-tap investigation and was present at the time of the warrant's
execution.
The police failed to write an official report until November 20, 2015, two-
and-a-half years after the raid. This report, authored by Sefick, indicated a no -
knock warrant was executed. The police failed to turn over the report as part of
their discovery obligations until January 14, 2016. Additionally, the report did
not provide the names of all officers who executed the warrant. It listed
defendants Oranchak and Smith, both detectives with the Piscataway Police
A-1229-19 8 Department, as officers on the team, however, these officers certified th ey were
executing another warrant at a different property during the raid in question.
Plaintiffs eventually obtained the names of some of the officers in an email
forwarded on February 21, 2018. From the report and subsequent discovery ,
plaintiffs were able to identify the following officers as involved in the warrant's
execution:
Lt. J. Hollar #5280, Detective I G. Sefick #5974, Detective D. Muraglia #6996, Detective I T. Kelshaw #6231, DSFC P. Ciano #5133, Detective J. Aspromonti (Mercer County Prosecutor's Office), Sgt. Francis (Mercer County Prosecutor's Office), Detective Smith (Piscataway Police Department), Detective [O]ranchak (Piscataway Police Department), Trooper Peterson #6278 (NJSP Troop "B" Tactical Patrol Unit), and DSFC D E Strassheim.
....
. . . Det. Douglas Sprague, Sayreville Police Department, Officer Richard Belotti, Sayreville Police Department, Officer Mark Kurtz, Middlesex County Sheriff's Department, Officer Joseph Morriale, Middlesex County Sheriff's Department, Officer Frank Sautner, Middlesex County Sheriff's Department, Det. Robert Mazalewski, Old Bridge Police Department, Lt. Ray Bason, Middlesex County Department of Corrections.
A-1229-19 9 On January 2, 2019, plaintiffs filed a fourth amended complaint to name
the officers involved. On May 9, 2019 and May 10, 2019, defendants filed
motions for summary judgment.
On August 1, 2019, plaintiffs filed a notice of cross-motion against DAG
Adam Gibbons and DAG Robert Preuss, to strike their answer and all pleadings,
for sanctions and attorney fees, and to relieve plaintiffs from the discovery
consent order because of defendants' continued willful non-compliance with
discovery requests. On August 2, 2019, the judge denied plaintiffs' motion,
stating, "[w]hile no opposition was filed, in the interests of judicial economy,
expediency, and in relation to the other pending motions, this motion was ruled
upon on the record."
On September 13, 2019, the judge held oral argument on the summary
judgment motions. On October 9, 2019, the judge granted summary judgment
and dismissed all of plaintiffs' claims in an order and written decision. This
appeal followed.
On appeal, plaintiffs raise the following arguments for our consideration:
POINT I
THE TRIAL COURT CONSISTENTLY ERRED IN IGNORING AND/OR MINIMIZING PLAINTIFFS' HARMS AND THEIR RIGHT TO BOTH COMPENSATORY AND NOMINAL DAMAGES
A-1229-19 10 AFFORDED THEM UNDER NJCRA/§1983. WHILE THE TRIAL COURT AGREED THAT PLAINTIFFS MADE A COLORABLE CLAIM THAT THE "KNOCK[-]AND[-]ANNOUNCE" SW WAS IMPROPERLY EXECUTED AS A "NO-KNOCK" SW, THE TRIAL COURT ERRED BY DISMISSING [K.H.] AND [H.S.'S] CONSTITUTIONAL CLAIMS . . . FOR SORT DEFENDANTS' VIOLATING THE "KNOCK[-]AND[-]ANNOUNCE" PROVISION OF THE WARRANT IN VIOLATION OF THE FOURTH AMENDMENT AS TO A) UNREASONABLE SEARCH (EXECUTION PHASE); B) UNREASONABLE AND EXCESSIVE FORCE (EXECUTION PHASE); AND C) EXCESSIVE FORCE[ (]SORT POINTING FIREARMS TO THE HEAD AND FACES OF PLAINTIFFS[)].
A. The Trial Court Erred By Dismissing [K.H.] And [H.S.'s] Unreasonable Search (Execution Phase) Claim By Declaring SORT's Violation Of The "Knock[-]And[- ]Announce" SW Caused No Harm Attributable To The Wrongful Execution Of The Warrant; And In Doing So, The Trial Court Ignored The Purpose Of The "Knock[-]And[-]Announce" Requirement, That Plaintiffs Had A Reasonable Expectation Of Privacy To Their Home, And That [K.H.] And [H.S.] Were Entitled To Compensatory And Nominal Damages Under NJCRA.
B. The Trial Court Erred By Dismissing Plaintiff[s] [K.H.] And [H.S.'s] Unreasonable And Excessive Force (Execution Phase) Claim By Ruling The Initial Decision To 'Employ' SORT Was Reasonable, When Plaintiffs' Cause Of
A-1229-19 11 Action Did Not Raise This Claim, But Rather The Subsequent Actions Of SORT Storming [The Property] In Violation Of The "Knock[-]And[-]Announce" SW Order Was Unreasonable And Excessive, And Claimants Were Thereby Entitled To Compensatory And Nominal Damages Under NJCRA/§1983.
C. The Trial Court Erred By Dismissing Plaintiff[s'] . . . Unreasonable And Excessive Force Claim- SORT Pointing Firearms To The Heads And Faces Of [T.S.] And H.S.- By Declaring SORTS' Actions Were Not Excessive Or Unreasonable But Rather Appropriate.
POINT II
THE TRIAL COURT ERRED IN DISMISSING [K.H.'S] EXCESSIVE FORCE CLAIM FOR INJURIES SUSTAINED TO HIS WRISTS FROM THE ZIP[-]TIES/HANDCUFFS BY SOLELY BASING ITS DECISION ON THE INJURY TO [HIM] AND DETERMINING IT WAS DE MINIMIS, RATHER THAN CONSIDERING THE TOTALITY OF THE CIRCUMSTANCES WHICH SHOWED THE FORCE WAS NOT OBJECTIVELY REASONABLE.
POINT III
THE TRIAL COURT IMPROPERLY DISMISSED PLAINTIFF [K.H.'S] FALSE ARREST CLAIM BY IMPROPERLY DETERMINING THERE WAS PROBABLE CAUSE FOR THE ARREST EVEN THOUGH DISPUTED FACTS EXISTED AS TO PROBABLE CAUSE, AND THEREFORE FAILED TO SUBMIT THE DISPUTED FACTS TO A JURY
A-1229-19 12 FOR THEIR DETERMINATION AS TO WHETHER PROBABLE CAUSE DID EXIST.
POINT IV
THE TRIAL COURT ERRED BY DISMISSING THE FALSE IMPRISONMENT CLAIM BY [K.H.'S], WITHOUT ANY FINDINGS OF FACT, CONCLUSIONS OF LAW, OR ANY MENTION WHATSOEVER OF THIS CLAIM IN ITS DECISION GRANTING SUMMARY JUDGMENT TO DEFENDANTS.
POINT V
THE TRIAL COURT ERRED BY DISMISSING THE MALICIOUS PROSECUTION CLAIMS [BROUGHT] BY [T.S.] AND [K.H.] UNDER THE TORT CLAIMS ACT (TCA) WHEN THE CLAIM WAS PLED UNDER THE NJCRA, AND FURTHER ERRED BY DISMISSING SAID CLAIM BY MAKING A FINDING OF PROBABLE CAUSE.
A. Malicious Prosecution Claims Were Improperly Dismissed Under The TCA, When They Were Clearly And Properly Pled Under The NJCRA In The Third Count Of The Fourth Amended Complaint.
B. Malicious Prosecution Claims By [T.S.] And [K.H.] Were Improperly Dismissed When The Trial Court Made A Finding As To Probable Cause When That Determination Should Have Been Submitted To A Jury; And Further, A Finding Of Probable Cause Does Not Necessarily Insulate A Malicious Prosecution Claim.
A-1229-19 13 POINT VI
IN DISMISSING PLAINTIFFS' CIVIL CONSPIRACY CLAIMS, THE TRIAL COURT ERRED BY 1) APPLYING THE WRONG STANDARD OF REVIEW ON SUMMARY JUDGMENT; 2) DISREGARDED ALL LAW AND THE OVERWHELMING UNDISPUTED FACTS IN THE RECORD SUPPORTING PLAINTIFFS' CIVIL CONSPIRACY CLAIM.
A. Trial Court Applied The Wrong Standard Of Review.
B. In Dismissing Plaintiffs' Civil Conspiracy Claim, The Trial Court Erred By Disregarding The Law And The Overwhelming Undisputed Facts In The Record Supporting This Claim.
POINT VII
IN DISMISSING PLAINTIFFS' FAILURE TO INTERVENE CLAIM, THE TRIAL COURT ERRED BY LIMITING IT TO THE UNLAWFUL ENTRY AND NOT THE NJCRA CLAIMS RELATING TO EXCESSIVE FORCE, UNLAWFUL ARREST, FALSE IMPRISONMENT, AND MALICIOUS PROSECUTION.
POINT VIII
IN DISMISSING PLAINTIFFS' FAILURE TO SUPERVISE CLAIM, THE TRIAL COURT ERRED IN A) APPLYING THE WRONG LAW, B) LIMITING THE CLAIM TO THE VIOLATION OF THE "KNOCK[-]AND[-]ANNOUNCE" SW ORDER, AND
A-1229-19 14 C) DISREGARDING COMPETENT EVIDENCE IN THE RECORD SUPPORTING SAID CLAIM.
POINT IX
THE TRIAL COURT ERRED BY DISMISSING PLAINTIFFS' CIVIL RIGHT CLAIMS WITHOUT ANY FINDINGS OF FACT OR CONCLUSIONS OF LAW AS TO DECLARATORY AND/OR INJUNCTIVE RELIEF (EQUITABLE RELIEF NOT BARRED BY QUALIFIED IMMUNITY).
POINT X
TRIAL COURT IMPROPERLY GRANTED QUALIFIED IMMUNITY BY SIMPLY STATING, "THEREFORE, AS PROBABLE CAUSE DID EXIST IN THIS CASE, QUALIFIED IMMUNITY IS APPLICABLE TO THE DEFENDANTS," RATHER THAN FIRST SUBMITTING THE FACTUALLY DISPUTED ISSUE OF PROBABLE CAUSE TO A JURY FOR ITS DETERMINATION IN ACCORDANCE WITH SCHNEIDER V. [4] SIMONINI ; AND FURTHER FAILING TO MAKE ANY FINDINGS OF FACTS AND CONCLUSIONS OF LAW AS TO ALL CONSTITUTIONAL CLAIM[S], NOT JUST THE ONES IMPACTED BY THE PROBABLE CAUSE DETERMINATION.
POINT XI
THE TRIAL COURT ABUSED ITS DISCRETION IN DISMISSING[,] WITHIN ONE DAY OF ITS FILING, PLAINTIFFS' AUGUST 1, 2019 NOTICE OF CROSS MOTION AGAINST STATE DEFENDANTS AND THEIR ATTORNEYS, [DEPUTY ATTORNEY
4 163 N.J. 336 (2000). A-1229-19 15 GENERAL] ADAM GIBBONS AND ROBERT PREUSS, SEEKING SEVERAL FORMS OF RELIEF INCLUDING SANCTIONS AND ATTORNEY'S FEES FOR THE CONTINUED WILLFUL NONCOMPLIANCE WITH THEIR DISCOVERY OBLIGATIONS IN THIS MATTER WHICH INVOLVES MINORITY PLAINTIFFS CLAIMING THEIR CIVIL RIGHTS WERE VIOLATED BY LAW ENFORCEMENT.
We review a trial court's grant of summary judgment de novo, applying
the same standard as the trial court. Conley v. Guerrero, 228 N.J. 339, 346
(2017). Summary judgment must be granted "if the pleadings, depositions,
answers to interrogatories and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material fact challenged and
that the moving party is entitled to a judgment or order as a matter of law."
Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224
N.J. 189, 199 (2016) (quoting R. 4:46-2(c)). If a rational jury could resolve
disputed material facts in plaintiffs' favor, the motion must be denied. With this
well-established standard in mind, we conclude genuine fact issues precluded
summary judgment on each of plaintiffs' claims and it was therefore error to
summarily dismiss the action. We address these claims in turn.
A-1229-19 16 Unreasonable Search Claims
Plaintiffs first argue the motion judge erroneously concluded they did not
have standing to bring a civil rights claim premised on the violation of the
knock-and-announce provision of the search warrant. The judge held "[t]he only
person that possibly may have a claim under these facts is the non-party uncle.
He is the only one that can argue that he was exposed to 'severe fright and
humiliation' that was the cause of this unannounced entry."
In determining whether a violation of the knock-and-announce rule is
actionable, courts apply the following three-step test:
(1) Congress intended the statute to "benefit the plaintiff"; (2) "the right assertedly protected by the statute is not so 'vague and amorphous' that its enforcement would strain judicial competence"; and (3) "the statute must unambiguously impose a binding obligation on the States."
[Tumpson v. Farina, 218 N.J. 450, 475 (2014) (quoting Blessing v. Freestone, 520 U.S. 329, 340-41 (1997)).]
Civil damages under civils rights acts are the sole remedy for knock-and-
announce violations. Hudson v. Michigan, 547 U.S. 586, 598 (2006). There are
three rationales underlying officers' obligation to knock and announce their
presence before entering:
(i) "decreasing the potential for violence"; (ii) "protection of privacy"; and (iii) "preventing the
A-1229-19 17 physical destruction of property." As to the first of these, it has been cogently noted that an "unannounced breaking and entering into a home could quite easily lead an individual to believe that his safety was in peril and cause him to take defensive measures which he otherwise would not have taken had he known that a warrant had been issued to search his home." As to the second, notice minimizes the chance of entry of the wrong premises by mistake and the consequent subjecting of innocent persons to "the shock, fright or embarrassment attendant upon an unannounced police intrusion." . . . The third purpose is equally valid, for quite obviously a person should ordinarily "be allowed the opportunity to voluntarily admit the officer into his home" instead of suffering damage to his property.
[State v. Rodriguez, 399 N.J. Super. 192, 199 (App. Div. 2008) (quoting State v. Johnson, 168 N.J. 608, 616 (2001)).]
Here, it is undisputed that SORT acted as if they had been issued a no-
knock warrant. The search warrant they were executing, however, required them
to first "knock and announce" their presence. Plaintiffs alleged that they were
subjected to violence when the officers unexpectedly entered their rooms when
they were sleeping and woke them while pointing a firearm at their heads. This
surprise entry allegedly, and perhaps unsurprisingly, caused plaintiffs to suffer
significant shock and fear. The destruction of the front door facilitated the theft
of valuable items from the apartment and made it impossible for plaintiffs, two
of whom were minors, to safely return to their home. Thus, SORT's conduct vis
A-1229-19 18 a vis plaintiff arguably invoked all three rationales underpinning the officers'
duty to knock and announce. We thus conclude the motion judge erred in
dismissing these constitutional claims for lack of standing.
Excessive Force Claims
Plaintiffs next take issue with the judge's dismissal of plaintiffs' excessive
force claims. In that regard, the judge found "the employment of the
SWAT/SORT team was reasonable as the target residence was the subject of
serious C.D.S. crimes and the target residence occupants were subject to arrest
warrants." The judge found no issue with the SORT team temporarily pointing
their weapons at plaintiffs during their initial sweep of the home. The judge
also determined "[a]ny injury that was sustained by [p]laintiffs was de minimis"
and did not amount to excessive force.
An excessive force claim turns on whether the officers' actions were
objectively reasonable under the circumstances, regardless of intent. Velazquez
v. City of Camden, 447 N.J. Super. 224, 241 (App. Div. 2016). Excessive force
claims have been recognized in
cases involved an officer drawing a weapon on an unarmed child. See, e.g., Motley v. Parks, 432 F.3d 1072, 1089 (9th Cir. 2002) (en banc) (finding excessive force where officer trained a firearm on an infant during a sweep of a gang member's house); Holland v. Harrington, 268 F.3d 1179, 1192-93 (10th Cir. 2001)
A-1229-19 19 (finding excessive force where officers "continu[ed] to hold the children directly at gunpoint after the officers had gained complete control of the situation"); McDonald v. Haskins, 966 F.2d 292, 294-95 (7th Cir. 1992) (finding excessive force where officer held a gun to the head of a nine-year-old child who was not suspected of any crime during a search of the child's family home).
[Stiegel v. Peters Twp., 600 Fed. Appx. 60, 65-66 (3d Cir. 2014) (alteration in original).]
In examining excess force, courts consider the following factors: "the
severity of the crime at issue, whether the suspect poses an immediate threat to
the safety of the officers or others, and whether he is actively resisting arrest or
attempting to evade arrest by flight." Graham v. Connor, 490 U.S. 386, 396
(1989). The key question in weapons-drawing excessive force claims is whether
the officer reasonably perceived danger. Ibid.
The first Graham factor weighs in defendants' favor given the seriousness
of the drug trafficking and related crimes giving rise to the search warrant.
However, there is no allegation that anyone in the apartment, let alone plaintiffs,
attempted to flee. In addition, whether plaintiffs posed an imminent threat to
the officers' safety is far from clear. At the time of the raid, all three children
were asleep. We conclude a jury should determine whether the officers ' use of
force with a firearm was objectively reasonable under the circumstances.
A-1229-19 20 We also conclude that the judge erred in dismissing the excessive force
claims based on his assessment that the boys' injuries from being zip tied were
too de minimis to support a claim. Contrary to the judge's reasoning, "excessive
force is not determined by injury alone." Graham-Smith v. Wilkes-Barre Police
Dep't, 739 Fed. Appx. 727, 732 (3d Cir. 2018). Extreme pain due to excessively
tight handcuffs is cognizable as excessive force, and "demonstrat[ing] . . .
expression or signs of discomfort at the time [the plaintiff] was handcuffed" is
evidence supporting the claim. Gilles v. Davis, 427 F.3d 197, 208 (3d Cir.
2005). To prove such an excessive force claim, plaintiffs need only "contend[]
that [they] offered any reason for the defendants to believe that [they] had been
in pain." Finnemen v. SEPTA, 267 F. Supp. 3d 639, 648 (3d Cir. 2017).
Plaintiffs can prove this knowledge by showing they repeatedly asked for the
cuffs to be loosened. Whiting v. Bonazza, 545 Fed. Appx. 126, 130 (3d Cir
2013).
Here, the boys continually complained that the zip ties were too tight.
Sefick acknowledged hearing their complaints of pain during the two hours they
remained restrained. K.H.'s pleas to loosen the cuffs went unanswered. The
boys' subjective pain, evidenced by their unanswered requests to loosen the ties,
is sufficient to raise a jury question on the use of force.
A-1229-19 21 Civil Conspiracy Claims
Plaintiffs assert the motion judge erred in dismissing plaintiffs' civil
conspiracy claims. The judge found "[t]here are no independent facts included
in the [p]laintiffs' Fourth Amended Complaint to support this count . . . . even if
this [c]ourt were to allow the count to survive this fatal handicap, [p]laintiffs
have no facts based on competent evidentiary materials that create a genuine
issue of material fact."
Liability for civil conspiracy accrues when the defendants reached an
understanding to act, under color of state law, to deprive the plaintiff of a
constitutional right. Jutrowski v. Twp. of Riverdale, 904 F.3d 280, 293-94 (3d
Cir. 2018). A cover up or "'conspiracy of silence' among officers is actionable
as a . . . conspiracy because the coordinated officer conduct 'impede[s] an
individual's access to courts' and renders 'hollow' a victim's right to redress in a
court of law." Id. at 294 (alteration in original) (quoting Vasquez v. Hernandez,
60 F.3d 325, 328-29 (7th Cir. 1995)). This can include failure to disclose the
identities of the officers who committed the offense. Ibid.
Plaintiffs must show a meeting of the minds to prove civil conspiracy.
Cole v. Encapera, 758 Fed. Appx. 252, 257 (3d Cir. 2018). As the Jutrowski
court explained:
A-1229-19 22 [b]ecause "inferring mental state from circumstantial evidence is among the chief tasks of factfinders," Kedra v. Schroeter, 876 F.3d 424, 444 (3d Cir. 2017) (citing United States v. Wright, 665 F.3d 560, 569 (3d. Cir. 2012)), an allegation of conspiracy can only be overcome at summary judgment when "the moving parties' submissions foreclose[] the possibility of the existence of certain facts from which 'it would be open to a jury . . . to infer from the circumstances' that there had been a meeting of the minds," [Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986) (citing Adickes v. S. H. Kress & Co., 398 U.S. 144 (1970))].
[Jutrowski, 904 F.3d at 295.]
Under this exacting standard, we conclude the judge should not have
granted summary judgment on plaintiffs' civil conspiracy claim. The evidence
of the years-long delay in issuing a report and the failure to identify the officers
involved in the execution of the warrant until five years after the raid rationally
(but not conclusively) supports an inference that there was a conspiracy to cover
up deficiencies in the search and shield the involved officers. We find
defendants failed to "foreclose[] the possibility of the existence of certain facts
from which 'it would be open to a jury . . . to infer from the circumstances' that
there had been a meeting of the minds." Ibid. (quoting Anderson, 477 U.S. at
249). Thus, the conspiracy claims should not have been dismissed.
A-1229-19 23 Failure to Intervene Claims
Next, plaintiffs contend the judge erred in dismissing plaintiffs' failure to
intervene claim. With respect to this decision, the judge held the officers were
not liable for failure to intervene because "the speed in which the warrant was
executed" deprived the officers of a reasonable opportunity to intervene.
"'[A] police officer has a duty to take reasonable steps to protect a victim
from another officer's use of excessive force,' but only 'if there is a realistic and
reasonable opportunity to intervene.'" El v. City of Pittsburgh, 975 F.3d 327,
335 (3d Cir. 2020) (alteration in original) (quoting Smith v. Mensinger, 293 F.3d
641, 650-51 (3d Cir. 2002)). Multiple-stage events generally give rise to a
genuine issue of fact. Ibid. Where the violation is brief, however, there is not
a reasonable opportunity to intervene. Ricks v. Shover, 891 F.3d 468, 479 (3d
Cir. 2018). That defendant officers are "in the vicinity" is typically enough to
overcome a motion for summary judgment because the "extent of each officer's
participation is thus a classic factual dispute to be resolved by the fact finder."
Smith, 293 F.3d at 650.
We conclude the judge was too narrowly focused on the moment of entry
into the apartment and the timeframe while the apartment was being secured.
He did not consider the series of events leading up to the raid. Evidence in the
A-1229-19 24 record shows that there were two briefings about the warrant's execution
immediately preceding the raid. Sefick's belated report indicated the discussions
centered on execution of a no-knock warrant. However, Wright, who obtained
the warrant, arranged the briefings, and attended at least the first, never
disabused anyone of their understanding of the operation.
Contrary to the judge's finding, this operation was not brief. Rather, it
unfolded over multiple stages, from a complex investigation leading to search
warrants at multiple locations, to mobilizing SORT, to conducting two briefings
to discuss the warrant's execution, to the allegedly faulty execution in which: a
no-knock entry was conducted in violation of the warrant; the chain of custody
of evidence was not maintained for the two-hour-long search; and plaintiffs were
arrested for possession of CDS after E.H., admitted their ownership. There were
many defendants involved at each of these stages who had the ability and
opportunity to intervene to avoid these deficiencies. Therefore, the claim should
not have been dismissed.
Failure to Supervise Claims
Plaintiffs also contend the judge erred in dismissing their failure to
supervise claims. The judge dismissed those claims for the same reason he
dismissed the failure to intervene claims, reasoning the supervising officers did
A-1229-19 25 not have time to act due to "the speed in which the warrant was executed."
Again, the judge was narrowly focused on the moment of entry.
To hold a municipality liable for the constitutional violations of its
employees or agents, a plaintiff can show that the municipality's failure to train
or its policy caused an injury, and that the failure to train or policy arose from
"deliberate indifference to constituents' constitutional rights." Wright v. City of
Phila., 685 Fed. Appx. 142, 145 (3d Cir. 2017). "Additionally, 'the identified
deficiency in a city's training program must be closely related to the ultimate
injury;' or in other words, 'the deficiency in training [must have] actually caused'
the constitutional violation." Thomas v. Cumberland Cnty., 749 F.3d 217, 222
(3d Cir. 2014) (alteration in original) (quoting City of Canton, Ohio v. Harris,
489 U.S. 378, 391 (1989)). This is known as Monell liability. See Monell v.
Dep't of Soc. Servs., 436 U.S. 658, 694 (1978).
Deliberate indifference is a stringent bar, and policy makers must have
"actual or constructive notice that a particular omission in their training program
causes city employees to violate citizens' constitutional rights." Connick v.
Thompson, 563 U.S. 51, 61 (2011). "[I]n certain situations, the need for training
'can be said to be "so obvious," that failure to do so could properly be
characterized as "deliberate indifference" to constitutional rights' even without
A-1229-19 26 a pattern of constitutional violations." Thomas, 749 F.3d at 223 (quoting
Canton, 489 U.S. at 390 n.10). One example is where "city policymakers know
to a moral certainty that their police officers will be required to arrest fleeing
felons," but the municipality does not train officers on the use of deadly force.
Canton, 489 U.S. at 390 n.10.
Despite this stringent standard, we find it was error to grant summary
judgment. Executing search warrants is one of SORT's core tasks, so a jury
could decide that the officers' inability to distinguish between knock-and-
announce and no-knock warrants constitutes failure to train in and of itself.
Coupled with the other deficiencies in the execution of the warrant, there is
sufficient evidence to withstand summary judgment as to a pattern and practice
of inadequate training.
A-1229-19 27 Probable Cause
In dismissing T.S.' and K.H.'s unlawful arrest claims 5 and malicious
prosecution claims, 6 the judge relied on his finding of probable cause. In support
of his finding of probable cause, the judge stated, "[s]uspected C.D.S. was found
in a common area. In [p]laintiff's [K.H.'s] room, [seven] glassine bags that is
commonly used in distribution of drugs was found. In [p]laintiff's [T.S.'] room,
[five] clear glassine bags were found and also $445[] in cash."
"Common-law malicious prosecution requires showing, in part, that a
defendant instigated a criminal proceeding with improper purpose and without
probable cause." McDonough v. Smith, 139 S. Ct. 2149, 2156 (2019). Further,
to show false arrest, a plaintiff must prove he was "arrested without legal
authority[.]" Mesgleski v. Oraboni, 330 N.J. Super. 10, 24 (App. Div. 2000).
5 For T.S.s' and K.H.'s unlawful arrest claims, the judge granted summary judgment for defendants Aspromonti, Smith, and Oranchak, finding that they were not involved at the time. The judge erred because there is evidence in the record placing all three of them at the scene. During Pizzuro's deposition he confirmed Smith and Oranchak were in the NJSP Assignment List as part of the warrant execution team for 189 Hillside but could not confirm whether they were present. 6 For T.S.s' and K.H.'s malicious prosecution claims, the judge granted summary judgment for defendants Francis and SORT because they "played no role in instituting or initiating the criminal proceedings." The judge erred because there is evidence in the record placing them at the scene, including the official report released on November 20, 2015. A-1229-19 28 "A plaintiff need not prove the lack of probable cause, but the existence of
probable cause will nevertheless defeat the action." Id. at 24-25. Thus,
"probable cause is an absolute defense to an allegation of malicious prosecution
or false arrest[.]" Tarus v. Borough of Pine Hill, 189 N.J. 497, 521 (2007).
Probable cause "is a well-grounded suspicion that a crime has been or is
being committed." State v. Nishina, 175 N.J. 502, 515 (2003) (quoting State v.
Sullivan, 169 N.J. 204, 211 (2001)). Probable cause "requires only a probability
or substantial chance of criminal activity, not an actual showing of such
activity[,]" and officers are not required to clear a high bar. District of Columbia
v. Wesby, 138 S. Ct. 577, 586 (2018) (quoting Illinois v. Gates, 462 U.S. 213,
243-44 n.13 (1983)).
Probable cause is typically determined by a judge, however, disputes
about the factual underpinning of the finding are to be decided by a jury.
Schneider, 163 N.J. at 360. The Supreme Court has articulated a specific process
for resolving such disputes as it relates to probable cause:
when disputed historical facts are relevant to either probable cause or the existence of a reasonable, but mistaken, belief concerning its existence, the trial court must submit the disputed factual issue to the jury in the form of special interrogatories for resolution by the jury. After receipt of the jury's answers, the trial judge must then decide the legal issue of whether probable cause existed and, if not, whether a reasonable police
A-1229-19 29 official could have believed in its existence. Regarding the reasonableness of the belief, in the absence of probable cause, the judge must decide whether the defendant has proven by a preponderance of the evidence that his or her actions were reasonable under the particular facts.
[Ibid.]
Here, a finding of probable cause was improper because there were
disputes about the location and ownership of the drugs and paraphernalia. First,
there is evidence in the record calling into question the accuracy of the evidence
log, as the chain of custody is unverifiable. Additionally, E.H., took
responsibility for ownership of the drugs and both boys deny possessing the
items. Because no chain of custody was maintained and no one could identify
who removed items, if any, from the boys' rooms, it appears doubtful the State
can prove where the baggies were located. Indeed, lacking any competent
evidence, it is unclear whether testimony about baggies being in the boys' rooms
would be admissible based solely on a stale police report. They were not
charged with possession of paraphernalia, but only with the possession of CDS
as to which their father had already admitted ownership.
At a minimum, there is a genuine fact issue whether drug paraphernalia
was in the boys' rooms which, if resolved in plaintiffs' favor, would defeat
probable cause. The judge necessarily resolved the competing factual assertions
A-1229-19 30 in defendants' favor to support his finding of probable cause. He then relied on
the disputed finding of probable cause to grant defendants qualified immunity. 7
Even assuming the admissibility of the hearsay police report, there remain
significant and genuine disputes of fact underpinning the judge's probable cause
determination. Pending the jury's resolution of the critical facts, summary
judgment on the malicious prosecution and the judges according the officers
qualified immunity was premature and an error.
Plaintiffs' Cross-Motion
With respect to the denial of plaintiffs' cross-motion for sanctions based
on discovery violations, we are hampered in our review due to the judge's failure
to make appropriate factual findings and legal conclusions, as required by Rule
1:7-4(a). "Meaningful appellate review is inhibited unless the judge sets forth
the reasons for his or her opinion." Salch v. Salch, 240 N.J. Super. 441, 443
(App. Div. 1990). Thus, we must reverse and remand on that issue to accord the
judge an opportunity to provide his reasons for denying the motion.
7 "The doctrine of qualified immunity operates to shield 'government officials performing discretionary functions generally . . . 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.'" Morillo v. Torres, 222 N.J. 104, 116 (2015) (alteration in original) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). A-1229-19 31 Reversed and remanded. We do not retain jurisdiction.
A-1229-19 32