JOSEPH H. RODRIGUEZ, District Judge.
This matter is before the Court on Defendants' motion for summary judgment [Dckt. Entry #17]. Plaintiff Earl Whaley filed a complaint against the Borough of Collingswood, the Borough of Woodlyne [sic], Director and/or Chief of the Collingswood Police Department Thomas Garrity, Jr., Detective Sgt. Edward Correll and Officer Brian Eidmann, stating claims for excessive force, unlawful arrest, warrantless entry of his home, and malicious prosecution in violation of the Fourth and Fourteenth Amendments. Plaintiff also states claims for violations of his First Amendment rights by virtue of his being punished for protected speech. At issue is whether a finding for Plaintiff on his Section 1983 claims would necessarily imply the invalidity of his convictions for resisting arrest and aggravated assault, and therefore bar those claims under
On August 25, 2008, at approximately 1:00 a.m., Plaintiff Earl Whaley was playing cards with friends at a table on his front porch at his home in Woodlynne, N.J. Defendant Officer Brian Eidmann of the Collingswood Police Department was on patrol and driving down Plaintiff's street; through an agreement between the municipalities, the Collingswood Police Department policed Woodlynne. Officer Eidmann states that as he drove past the house, he heard loud noise coming from the porch. After making an initial pass and driving around the block, Eidmann states that he drove back and stopped in front of Whaley's house. Eidmann approached the front steps and asked those present on the porch to keep the noise down, stating that there had been complaints from neighbors regarding the noise, though Eidmann now admits there had been no complaints. Plaintiff replied that no one was screaming and told Eidmann to go about his business; Plaintiff used profanity when doing so. Eidmann again told Plaintiff to keep the noise down and Plaintiff again made profanity-laced comments that Eidmann should "go about [his] fucking business" and that no one was screaming. Plaintiff also told Eidmann not to come onto his front porch. The porch was enclosed by screens and was accessed through a closed screen door. Eidmann told Plaintiff that if he had to come back because of the noise, Plaintiff would be arrested. Most of the facts as to exactly what happened next are in dispute to some degree.
After Eidmann's statement about arresting Plaintiff if he had to come back because of the noise, Eidmann began to walk away until Plaintiff responded that Eidmann "fucking talk too much" and told Eidmann to "go about your fucking business." Eidmann then notified Dispatch that he would be taking an individual into custody. According to Eidmann, he decided to arrest Plaintiff for disorderly conduct due to Plaintiff's continuing noncompliance with his instructions to reduce the noise. Plaintiff, however, points to Eidmann's statements to another police officer on the scene after these incidents in which Eidmann claims Plaintiff said "fuck you" as Eidmann was walking away and that as a result of what Plaintiff said, Eidmann decided to arrest Plaintiff (there is no meaningful dispute that Plaintiff did not in fact say "fuck you"). In any event, Eidmann then opened the screen door and entered onto the front porch.
The parties dispute what happened next. Eidmann states that he twice told Plaintiff to get up and that he was under arrest. According to Eidmann, Plaintiff ignored him and continued to sit and play cards. Eidmann then pulled the chair out from under Plaintiff in order to arrest him, but Plaintiff did not fall to the ground. Eidmann claims that Plaintiff stood up and took an aggressive stance about 9" away from Eidmann. Eidmann asserts that he told Plaintiff to turn around so he could handcuff him. Plaintiff turned but when Eidmann touched Plaintiff's hand to handcuff him, Plaintiff turned back around, pushed Eidmann, and said "you ain't cuffin me motherfucker." Eidmann again told Plaintiff to turn around and put his hand on his shoulder to turn him, and Plaintiff pushed him again. To defend himself, Eidmann claims, he then struck Plaintiff in the face. It is claimed that Plaintiff then knocked Eidmann's radio off his shoulder, and when Eidmann went to retrieve it, Plaintiff punched him several times in the back of the head. An altercation ensued, and eventually both men fell out the door and down the steps. Eidmann claims Plaintiff then stood up and proceeded to punch and kick him while he was on the ground. Plaintiff then fled the premises. Eidmann was unable to pursue him because he blacked out. Eidmann suffered a number of injuries, including intermittent numbness in fingers on his right hand and injuries to his right shoulder.
Plaintiff tells a different story. According to Plaintiff, Eidmann entered the porch and told Plaintiff to get up twice within one second and immediately pulled the chair out from under him. Both Plaintiff and an audio recording from Eidmann's patrol car indicate that Eidmann did not tell Plaintiff that he was under arrest prior to pulling out the chair. Plaintiff disputes that he continued playing cards and states that after Eidmann told him to get up the first time, he said "yeah, alright;" this can be heard on the audio recording from Eidmann's police cruiser. In addition, Plaintiff denies taking an "aggressive stance" and contends that, contrary to Eidmann's account, Eidmann pushed him first. Plaintiff also denies saying "you ain't cuffin' me motherfucker," and asserts that he stated "cuff me" several times; this can also be heard on the audio recording. Plaintiff claims that he thought Eidmann's purpose was to beat him up, not to arrest him, so he fought back. Plaintiff denies punching the back of Eidmann's head on the porch and denies punching and kicking Eidmann after the two men fell down the front steps. Plaintiff turned himself in at the police station 19 hours after the incident.
Plaintiff was charged with two counts of resisting arrest (by force and by flight), aggravated assault on a police officer, and disorderly conduct. Following a bench trial, he was convicted on both counts of resisting arrest and of assault on a police officer and acquitted on the disorderly conduct charge. Plaintiff appealed and his convictions were affirmed. Plaintiff filed this Complaint on August 24, 2010. Defendant Borough of Woodlynne was dismissed on July 1, 2011. The remaining Defendants filed the present motion for summary judgment on September 20, 2011.
"Summary judgment is proper if there is no genuine issue of material fact and if, viewing the facts in the light most favorable to the non-moving party, the moving party is entitled to judgment as a matter of law."
An issue is "genuine" if supported by evidence such that a reasonable jury could return a verdict in the nonmoving party's favor.
Initially, the moving party has the burden of demonstrating the absence of a genuine issue of material fact.
In deciding the merits of a party's motion for summary judgment, the court's role is not to evaluate the evidence and decide the truth of the matter, but to determine whether there is a genuine issue for trial.
Plaintiff's Constitutional claims are governed by 42 U.S.C. § 1983. A plaintiff may have a cause of action under 42 U.S.C. § 1983 for certain violations of his or her constitutional rights. Section 1983 provides in relevant part:
Thus, a plaintiff must demonstrate two essential elements to maintain a claim under section 1983: (1) that the plaintiff was deprived of a "right or privileges secured by the Constitution or the laws of the United States" and (2) that the plaintiff was deprived of his rights by a person acting under the color of state law.
A municipality is not liable under 42 U.S.C. § 1983 on a respondeat superior theory.
The doctrine of qualified immunity provides that "government officials performing discretionary functions . . . are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person should have known."
For a right to be clearly established, "[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right."
Defendants first argue that Plaintiff's claims are barred by
A finding in favor of Plaintiff has the potential of calling into question his convictions for aggravated assault on a police officer and resisting arrest. The Court therefore "must consider" whether Plaintiff's action "will necessarily imply the invalidity" of those convictions.
Plaintiff was charged and convicted for violation of N.J.S.A. 2C:12-1b(5)(a), aggravated assault on a police officer, third degree. Under that provision
N.J.S.A. 2C:12-1b (2006). Pursuant to subsection a., a person is guilty of simple assault if he
N.J.S.A. 2C:12-1a (2006). A citizen is entitled to use self-defense to protect himself from an officer's use of unreasonable force.
In the context of fighting back during an arrest, self-defense will only serve as a defense to a charge of assault if the person arrested uses no greater force than is reasonably necessary to protect against the excessive force. "If he employs such greater force, then he becomes the aggressor and forfeits the right to claim self-defense to a charge of assault and battery on the officer."
Here, the trial court in Plaintiff's criminal proceeding found that the State had proven the elements of aggravated assault beyond a reasonable doubt. The court also determined that Plaintiff's self-defense claim as to the aggravated assault charge was precluded and the State had "disproven beyond a reasonable doubt that [Plaintiff's] conduct was a product of justifiable self-defense." Def.'s Br., Ex. "G" at 17 ("Tr. Ct. Op." (Wells, J.)). The court additionally found that the State had "proven beyond a reasonable doubt that Eidmann did not use substantially more force than was necessary to affect the arrest of [Plaintiff]" and that Eidmann did not use "excessive force, but rather attempted to use the amount of force necessary merely to accomplish the arrest."
Plaintiff was charged with and convicted of two counts of resisting arrest, by force and by flight, pursuant to N.J.S.A. 2C:29-2, which provides:
N.J.S.A. 2C:29-2a. New Jersey's resisting arrest statute does not make a distinction as between lawful and unlawful arrests. Rather, "[i]t is not a defense to a prosecution under this subsection that the law enforcement officer was acting unlawfully in making the arrest, provided he was acting under color of his official authority and provided the law enforcement officer announces his intention to arrest prior to the resistance."
At Plaintiff's criminal trial, the trial court did not reach any of the constitutional issues Plaintiff raised in his defense and specifically declined to address whether or not probable cause existed for the arrest. The court found that it did "not need to resolve whether probable cause could be established to justify a warrantless search, seizure or arrest" because once Eidmann announced that Plaintiff was under arrest it did not matter whether or not the arrest was illegal or unlawful; under New Jersey law, a defendant may not resist even an unlawful arrest. Tr. Ct. Op. 12. The court similarly concluded that it need not reach and determine the issue of "the right to free speech and/or other constitutionally protected conduct" as such determinations were not "absolutely imperative" to the disposition of Plaintiff's case.
Even if Eidmann entered the porch or arrested Plaintiff unlawfully, Plaintiff had a legal obligation to submit to the arrest and was not entitled to resist. Tr. Ct. Op. 11 (citing
Defendants next argue that even if
Plaintiff's claims for unlawful arrest, malicious prosecution and unlawful entry are governed by the Fourth Amendment, which provides:
The Court will address each claim in turn.
To prove a claim for unlawful arrest, Plaintiff must show that he was arrested without probable cause.
The existence of probable cause is generally a factual issue for the jury.
Plaintiff argues that there was no probable cause to arrest him and asserts that Eidmann's reason for arresting Plaintiff was Plaintiff's swearing at Eidmann, which, Plaintiff contends, was not unlawful (See Part "2," infra). Eidmann's subjective motivation for the arrest, however, is irrelevant under the objective standard required for a qualified immunity analysis of the unlawful arrest claim.
At oral argument, Defendants argued that the appellate court found that Eidmann's decision to arrest Plaintiff was "reasonable and therefore constitutional." The appellate court's opinion does not support such a conclusion, however, as the court did not explicitly address probable cause for Plaintiff's arrest or reach the constitutional issue. Rather, the Appellate Division applied New Jersey law, as discussed in
Nevertheless, the state courts' findings regarding Plaintiff's conviction limit Plaintiff's ability to state a claim for unlawful arrest. It is well established that federal courts must give state-court judgments issue preclusion effect in subsequent actions under 42 U.S.C. § 1983.
Here, the state courts made findings of fact that were essential to the courts' conclusions that Eidmann acted with the required "good faith" under New Jersey law such that Plaintiff was required to submit to Eidmann's arrest regardless of whether Plaintiff felt the arrest was justified. The trial court found that Eidmann heard loud noise coming from the porch and that upon Eidmann's request to keep the noise down, Eidmann was met with "immediate resistance" from Plaintiff and continued "noncompliance." Tr. Ct. Op. 5, 6. The Appellate Division found that "Eidmann's conduct in approaching the porch and asking the group to quiet down at 1:00 a.m. was consistent with his duties as a police officer."
It is not the place of this Court to relitigate the factual issues determined by the state courts during Plaintiff's criminal proceedings. The Court therefore gives preclusive effect to the state trial and appellate courts' findings that Plaintiff failed to comply with Eidmann's instructions, that such instructions were reasonable, and that Plaintiff had a legal duty to comply. Plaintiff's noncompliance could constitute a disorderly persons offense under New Jersey law. Accordingly, the Court concludes that a reasonable officer facing the situation encountered by Eidmann could have believed that probable cause existed to arrest Plaintiff for his noncompliance. In addition, viewing the facts most favorably to Plaintiff, insofar as they are consistent with the state courts' factual findings, the evidence would not reasonably support a finding that probable cause did not exist where it has been found that Plaintiff had a duty to obey Eidmann's instructions and failed to do so. Accordingly, summary judgment will be granted as to Plaintiff's claim for unlawful arrest.
To establish malicious prosecution under § 1983, a Plaintiff must establish that: (1) the defendant initiated a criminal proceeding; (2) the plaintiff suffered a deprivation of liberty consistent with the concept of seizure as a consequence of a legal proceeding; (3) the criminal prosecution resulted in plaintiff's favor; (4) the proceeding was initiated without probable cause; and (5) the defendant acted maliciously or for a purpose other than bringing the plaintiff to justice.
In his written response, Plaintiff did not contest Defendants' motion with respect to the malicious prosecution claim and conceded at oral argument that the claim is lacking in support. In any event, Plaintiff cannot maintain a claim for malicious prosecution where his criminal proceeding was initiated with probable cause. Accordingly, summary judgment will be granted as to Plaintiff's malicious prosecution claim.
In the context of a claim for unlawful entry or search, the "capacity to claim the protection of the Fourth Amendment depends . . . upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place."
"One's home is sacrosanct, and unreasonable government intrusion into the home is `the chief evil against which the wording of the Fourth Amendment is directed.'"
The protections of the Fourth Amendment extend not only to a person's home, but also to the curtilage surrounding the property.
Here, Plaintiff's front porch was protected curtilage of the home. The porch is screened in, attached to the home and accessed by a screen door. At least on the night of the incident in question, Plaintiff put the porch to use in a manner consistent with the activities of home life, here, sitting at a table and playing cards. While it may be the case that the porch had a lowered expectation of privacy by virtue of its being visible through the screens which enclosed it, as well as the fact that visitors must access it in order to call on Plaintiff, it is undisputed that prior to the arrest, Plaintiff explicitly (and in explicit language) instructed Eidmann not to enter onto the porch. In doing so, Plaintiff withdrew any implied and more generalized consent to enter the porch that may have existed otherwise. Eidmann was thus excluded from the porch and did not have consent to enter. Accordingly, without probable cause and exigent circumstances, Eidmann's warrantless entry to arrest Plaintiff would have been unlawful under the Fourth Amendment. This is all the more true given that Eidmann arrested Plaintiff for a minor offense.
Although there may have been probable cause to arrest Plaintiff, Defendants point to no evidence of any exigency that would have justified Eidmann's entry without a warrant in order to arrest Plaintiff for a disorderly persons offense. Thus, viewing the facts in the light most favorable to Plaintiff, Eidmann's warrantless entry for the purpose of effecting a warrantless arrest of Plaintiff for a minor offense constituted a Fourth Amendment violation. Moreover, the law at the time the incident occurred was sufficiently clear to place a reasonable officer on notice that such an entry, contrary to an explicit denial of consent and absent any exigency, violated the law.
Plaintiff contends that he had a constitutionally protected right to object to and make comments about Officer Eidmann's conduct and that Eidmann punished Plaintiff in violation of the First Amendment by arresting him for using profane language. In support of this contention, Plaintiff relies on the statements Eidmann made at the scene to another officer which suggested that Eidmann decided to arrest Plaintiff because Plaintiff said "fuck you." Plaintiff denies making that statement, but admits using profanity in his comments to Eidmann.
The First Amendment protects a significant amount of verbal criticism and challenge directed at police officers.
While "fighting words" are not protected speech, profane words alone, unaccompanied by any evidence of violent arousal, are not "fighting words" and are therefore protected speech.
Plaintiff's First Amendment claim rests on resolution of the question of probable cause. As discussed above, if probable cause existed to believe Plaintiff had committed a crime, there can be no inquiry into Eidmann's subjective motivation for arresting Plaintiff, and there could be no claim for a First Amendment violation arising out of Plaintiff's arrest, even if Plaintiff's speech was protected. Stated another way, if probable cause existed to arrest Plaintiff for criminal conduct, Plaintiff may not maintain his claim that he was instead arrested for protected speech.
During the pendency of Plaintiff's criminal proceedings, the state courts found that Plaintiff had a duty to comply with Eidmann's instructions and failed to do so. This was a sufficient objective basis for probable cause, regardless of Eidmann's subjective intent or motive for making the arrest.
Defendants also move for summary judgment on Plaintiff's claims against the municipal defendants. In order to succeed on these claims, Plaintiff must show a sufficient causal connection between a municipal policy or custom, or a failure to train, and the alleged constitutional violation. As detailed above, Plaintiff's only remaining claim is the alleged unlawful entry in violation of the Fourth Amendment. Accordingly, to survive summary judgment, Plaintiff bears the burden of identifying facts and evidence establishing Collingswood's liability for Eidmann's alleged unlawful intrusion.
Plaintiff does not point to any evidence of a policy or custom of the Borough of Collingswood, or any failure to train on its part, that caused the alleged Fourth Amendment violation, nor does Plaintiff even allege any basis for municipal liability on that claim. Plaintiff looks only to an interview between Detective Sergeant Edward Cottrell and Plaintiff in attempt to infer a policy or practice of the Collingswood Police Department to arrest citizens for protected speech. Without addressing the sufficiency of those arguments, the Court finds that the Borough of Collingswood cannot be liable for an alleged First Amendment violation where one did not occur. Similarly, Plaintiff offers no evidence of supervisory liability with respect to his unlawful intrusion claim nor any evidence or arguments as to the individual liability of Detective Sgt. Cottrell or Police Chief Thomas Garrity, Jr. Accordingly, summary judgment will be granted in favor of the Borough of Collingswood, Thomas Garrity, Jr., and Edward Cottrell.
For the reasons discussed above, Defendants' Motion for Summary Judgment will be GRANTED IN PART and DENIED IN PART. The appropriate orders shall issue.
Furthermore, a dismissal under