NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               ________________

                                      No. 17-2426
                                   ________________

                                    SAMY JECROIS

                                             v.

            MARK SOJAK; KENNETH KOLICH; HONEY SPIRITO;
        CHONDA ROSARIO; JOHN/JANE DOE(S) I-IV; HUDSON COUNTY,

                            Mark Sojak, Kenneth Kolich, Honey Spirito,
                                                              Appellants
                                  ________________

                     On Appeal from the United States District Court
                              for the District of New Jersey
                            (D.C. Civil No. 2-16-cv-01477)
                      District Judge: Honorable John M. Vazquez
                                   ________________

                                  Argued: April 25, 2018

              Before: AMBRO, SCIRICA, and SILER, JR.,* Circuit Judges

                              (Opinion Filed: June 6, 2018)


Melissa H. Raska
Assistant Attorney General of Counsel




*
 Hon. Eugene E. Siler, Jr., United States Court of Appeals for the Sixth Circuit, sitting
by designation.
Beth A. Ferlicchi
Christopher S. Porrino
Office of Attorney General of New Jersey
124 Halsey Street
P.O. Box 45029
Newark, NJ 07102

Benjamin H. Zieman [ARGUED]
Office of Attorney General of New Jersey
Division of Law Tort Litigation and Judiciary
25 Market Street
P.O. Box 116
Trenton, NJ 08625

Daniel M. Vannella
Office of Attorney General of New Jersey
Department of Law & Public Safety
Division of Law
Richard J. Hughes Justice Complex
25 Market Street, P.O. Box 112
Trenton, NJ 08625

     Counsel for Appellant

Louis C. Shapiro    [ARGUED]
1063 East Landis Avenue
Vineland, NJ 08360

     Counsel for Appellee

                                       ____________

                                        OPINION**
                                      ______________

SCIRICA, Circuit Judge

        In this civil rights action under 42 U.S.C. § 1983, plaintiff-appellee Samy Jecrois

asserts he was arrested without probable cause based on an allegation he sexually

**
  This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
                                              2
assaulted a fellow college student. Defendants-appellants, police officers Mark Sojak,

Kenneth Kolich, and Honey Spirito, appeal the District Court’s denial of their motion to

dismiss based on qualified immunity. Although the complaint-warrant (“application”)

for Jecrois’s arrest contained an error, we conclude that the application, with the error

corrected, nonetheless establishes probable cause for Jecrois’s arrest under New Jersey

law. Because the arrest was supported by probable cause, we will vacate the District

Court’s order denying the officers’ motion to dismiss and remand with instructions to

grant the motion.

                                             I.1

         On November 10, 2014, S.D., a freshman woman at Saint Peter’s University in

Jersey City, was allegedly sexually assaulted by Jecrois in his dorm room. The next day,

Campus Safety at Saint Peter’s contacted Sojak, a detective at the Hudson County

prosecutor’s office. Sojak arranged for S.D. to undergo a sexual assault examination, had

her provide a videotaped statement, and interviewed S.D.’s father.

         Based on the information gathered, Kolich, another detective with the prosecutor’s

office, authored a probable cause report. The report was approved by Spirito, Kolich’s

supervising officer. The same day the report was prepared, Sojak submitted an

application for Jecrois’s arrest to a Hudson County Superior Court Judge. Under New

Jersey law, officers are not required to submit an accompanying affidavit together with




1
    The following factual allegations are drawn from Jecrois’s Complaint.

                                              3
the application to obtain an arrest warrant. See New Jersey Court Rule 3:3-1(a)(1). But

the application itself must be sworn, as Sojak did in this case.

       In the application, Sojak listed the offense as a violation of New Jersey’s sexual

assault statute, N.J. Stat. Ann. § 2C:14-2(c)(1). That provision specifies:

       An actor is guilty of sexual assault if he commits an act of sexual
       penetration with another person under any one of the following
       circumstances:

              (1) The actor uses physical force or coercion, but the victim does
       not sustain severe personal injury . . . .

N.J. Stat. Ann. § 2C:14-2(c)(1). As support, the application included facts from S.D.’s

interview:

       Probable cause for the issuance of this warrant is the digitally recorded
       interview of the victim where she stated she was with the defendant in his
       dormatory (sic) room and the defendant attempted to kiss her and victim
       said no. The defendant then forcibely (sic) kissed the victim. The
       defendant then forcibely (sic) pulls down her pants and inserts his penis
       into her vagina against her will while the defendant is holding her arms
       down.

App. 192. It is unclear whether the Superior Court Judge was provided with the probable

cause report or S.D.’s videotaped statement—both of which provide greater detail and are

inculpatory in nature. The Judge approved the application, issued an arrest warrant, and

set bail at $250,000 cash/bond. Jecrois was later released on his own recognizance. All

charges against him were subsequently dismissed.

       Jecrois filed suit against Hudson County and the aforementioned officers, among

others, asserting a number of claims. In his Complaint, Jecrois alleged the officers

misrepresented S.D.’s statement in the application. In particular, Jecrois alleged S.D.


                                              4
never said he forcibly kissed her and that “[t]he arrest warrant falsely equated the sense

of timing of the alleged holding down of [S.D.’s] arms with the act of penetration.” App.

47. Instead, as stated in Jecrois’s Complaint, “[a]ccording to [S.D.], the ‘trying’ by

[Jecrois] to hold down [S.D.’s] arms allegedly occurred before her pants and panties

came down, when [Jecrois] was attempting to pull them down and [S.D.] was trying to

pull them back up.” 

filed a motion to dismiss, seeking, inter alia, the dismissal of

claims against the officers on the basis of qualified immunity. The District Court

dismissed all claims against Hudson County and several claims against the officers. But

it denied the motion as to the following claims against the officers: Count I, a § 1983

claim for unreasonable search and seizure under the Fourth and Fourteenth Amendments

and a violation of the Due Process Clause of the Fourteenth Amendment; Count II, a

violation of Article I, Section 7 of the New Jersey Constitution for an unreasonable

search and seizure; Count VI, a § 1983 malicious prosecution claim; Count VII, a

common law malicious prosecution claim; Count VIII, common law false arrest and

imprisonment claim; Count IX, a negligent supervision claim against Spirito; and Count

X, a negligence claim.

       The District Court determined it could not dismiss the false arrest and malicious

prosecution claims against the officers based on qualified immunity because Jecrois

adequately pled the officers lacked probable cause to arrest and prosecute him for sexual

assault. The District Court also concluded the right to be free from arrest without

probable cause was clearly established at the time of Jecrois’s arrest. The officers filed a

                                             5
notice of appeal “to the extent that the District Court denied Defendants’ motion to

dismiss . . . on the basis of qualified immunity . . . , including the denial of the motion to

dismiss all claims against the Defendants.” App. 2.

                                              II.2

       The officers challenge the District Court’s denial of their motion to dismiss on the

basis of qualified immunity. Specifically, the officers assert there was probable cause to

support issuance of the arrest warrant. We agree. Because the application supports a

finding of probable cause, we conclude the officers did not violate Jecrois’s rights.3

       Qualified immunity shields “all but the plainly incompetent or those who

knowingly violate the law.” Borrell v. Bloomsburg Univ., 

, 162 (3d Cir.

2017) (quoting Malley v. Briggs, 

, 341 (1986)). Officials are protected from

“civil liability so long as their conduct ‘does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.’” Mullenix v.




2
 The District Court had jurisdiction over Jecrois’s § 1983 claims under 28 U.S.C.
§ 1331. We have jurisdiction under 28 U.S.C. § 1291 over the District Court’s denial of
Jecrois’s motion to dismiss to the extent it turns on an issue of law based on the collateral
order doctrine. See Plumhoff v. Rickard, 

, 2018–20 (2014); Mitchell v.
Forsyth, 

, 530 (1985). “We exercise de novo review of a district court’s
denial of a motion to dismiss on qualified immunity grounds as it involves a pure
question of law.” George v. Rehiel, 

, 571 (3d Cir. 2013). “[W]e must
accept plaintiff’s allegations as true and draw all inferences in his or her favor.” 

we conclude no violation of rights occurred, we need not reach the officers’
remaining arguments. They alternatively contend that (1) probable cause existed for the
lesser offense of sexual contact under New Jersey law, entitling them to qualified
immunity or (2) the law on this issue was not clearly established at the time of Jecrois’s
arrest.

                                               6
Luna, 

, 308 (2015) (quoting Pearson v. Callahan, 

, 231

(2009)).

       “[S]ince false arrest and malicious prosecution hinge on probable cause, the

constitutional violation question . . . turns on whether ‘a reasonable officer could have

believed that probable cause existed to arrest’ the plaintiff at that time.” Andrews v.

Scuilli, 

, 697 (3d Cir. 2017) (quoting Blaylock v. City of Philadelphia, 

, 411 (3d Cir. 2007)). When an arrest is made pursuant to a valid warrant, the

inquiry is based on whether “the officer, with at least a reckless disregard for the truth,

made false statements or omissions that create[d] a falsehood in applying for a warrant,”

and (2) “whether those assertions or omissions were material, or necessary, to the finding

of probable cause.” 

original) (quoting Dempsey v. Bucknell Univ., 

, 468–69 (3d Cir. 2016)). The District Court concluded Jecrois plausibly alleged

that the officers acted with reckless disregard for the truth when they submitted the

application. Because the officers do not challenge that conclusion on appeal, we limit our

discussion to whether the “false statements or omissions” were material.

       To determine materiality, a court “must identify any improperly asserted or

omitted facts and, if it determines there were reckless misrepresentations or omissions,

‘excise the offending inaccuracies and insert the facts recklessly omitted’ from the

affidavit.” 

(quoting Wilson v. Russo, 

, 789 (3d

Cir. 2000)). The court should then “assess whether the reconstructed affidavit would

establish probable cause.” 

reconstruction here, we note two things about Jecrois’s allegations of

misrepresentation. First, as the District Court concluded, while Jecrois objects to the

characterization of the kiss as “forcible,” he states in his Complaint that he asked or tried

to kiss S.D., and she said “no.” Thus, the kiss, as characterized in Jecrois’s Complaint,

would have been without S.D.’s consent. Second, as pled in the Complaint, S.D. alleged

Jecrois “[held] down [S.D.’s] arms . . .when [Jecrois] was attempting to pull [her pants]

down and [S.D.] was trying to pull them back up . . . .” App. 47. We will reconstruct the

application in light of those averments:

       Probable cause for the issuance of this warrant is the digitally recorded
       interview of the victim where she stated she was with the defendant in his
       dormatory (sic) room and the defendant attempted to kiss her and victim
       said no. The defendant then forcibely (sic) kissed the victim. The
       defendant then forcibely (sic) pulls down her pants, [holds her arms down
       while she tries to pull them up,] and inserts his penis into her vagina
       against her will while the defendant is holding her arms down.

App. 192 (with additions and strikethroughs added). As noted previously, the probable

cause report and S.D.’s full statement are inculpatory. But, because it is unclear if those

items were presented to the Judge, we will focus our analysis on the application.

       We assess the reconstructed application in light of the standard for probable cause

and the elements of sexual assault under New Jersey law. “Because probable cause exists

where there is merely a ‘fair probability’ that the arrestee committed a crime, we need not

identify ‘the same type of specific evidence of each element of [an] offense as would be

needed to support a conviction.’” 

(alteration in original)

(quoting Adams v. Williams, 

, 149 (1972)). “[S]tatements of a victim

witness are typically sufficient to establish probable cause in the absence of

                                              8
‘[i]ndependent exculpatory evidence or substantial evidence of [a] witness’s own

unreliability’ that ‘outweigh[s]’ the probable cause that otherwise exists.” 

(alterations in original) (quoting 

)).

       Under New Jersey law, “physical force in excess of that inherent in the act of

sexual penetration is not required for such penetration to be unlawful” and to constitute a

violation of the sexual assault statute. See In re M.T.S., 

, 1277 (N.J. 1992).

Rather, the act of penetration itself, if “engaged in by the defendant without the

affirmative and freely-given permission of the victim to the specific act of penetration,”

satisfies the physical force or coercion element of sexual assault. Id.; see also New

Jersey v. Garron, 

, 264 (N.J. 2003) (stating “the act of sexual penetration

itself[] without [the victim’s] consent[] would be sufficient to establish the physical force

or coercion required to support a sexual assault conviction”). The focus of the inquiry is

whether “a reasonable person would have believed that the alleged victim had

affirmatively and freely given authorization to the act,” and this can be demonstrated

“through physical actions rather than words.” In re 

.

       Jecrois argues the officers “cannot rely on the affirmative consent alternative

explanation” because “[v]iolence and force were the only things the State alleged in the

Sojak arrest warrant.” Response Br. at 34. Jecrois’s argument misses the mark. A

violation of § 2C:14-2(c)(1) requires “physical force” or “coercion.” That element can be

established through use of force extrinsic to the act of penetration or through penetration

itself if consent is not affirmatively and freely given. M.T.S. simply clarified what the

“physical force” requirement entailed—it did not create distinct crimes.

                                              9
       Assessing the reconstructed application in light of M.T.S., several facts indicate

S.D. did not affirmatively and freely give her permission. First, the application states that

S.D. responded to Jecrois’s attempt or request to kiss her by saying “no.” App. 192.

Nonetheless, according to the application, Jecrois ignored her statement of non-consent

and kissed her. Second, as Jecrois’s Complaint states and the reconstructed application

includes, Jecrois allegedly pulled S.D.’s pants down during the course of the interaction.

When she attempted to pull them back up, he physically stopped her from doing so.

Finally, the application recites that an act of penetration, against S.D.’s will, occurred.

       Those statements were based on S.D.’s interview, which was conducted by Sojak

and recorded. The recorded interview was likewise referenced in the application.

Furthermore, in addition to taking S.D.’s statement, Sojak had S.D. undergo a sexual

assault examination and interviewed her father.4

        We conclude the reconstructed application supports a finding of probable cause,

particularly because we need not identify “the same type of specific evidence of each

element of [an] offense as would be needed to support a conviction,” 

(alteration in original) (quoting 

). Because probable cause

existed to arrest Jecrois for sexual assault under New Jersey law, we conclude the officers

did not violate Jecrois’s rights.


4
  We agree with the District Court that S.D’s alleged statement to her father that
“[Jecrois] did the whole thing . . . I let him do it” is not a material omission. According
to Jecrois’s Complaint, S.D. also told her father that Jecrois “forcibly forced himself upon
her” and that she did not fight him because she “didn’t know what he had.” App. 41.
S.D.’s statement that she “let him do it” is not exculpatory. In fact, in context, we agree
with the District Court that the statements are inculpatory.

                                              10
                                             III.

       For the foregoing reasons, we will vacate the District Court’s order denying the

officers’ motion to dismiss on the basis of qualified immunity and remand with

instructions to grant the motion as to all of the federal and state law claims.




                                             11