JOHN DAY et al. v. CITY OF TRENTON, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1315-04T51315-04T5

JOHN DAY and APRIL CAIN,

Plaintiffs-Appellants,

v.

CITY OF TRENTON, LIEUTENANT

WILLIAM WITTMER, SERGEANT

PETER WEREMIJENKO, ROBERT ALBANOWSKI,

POLICE OFFICER JASON ASTBURY, POLICE

OFFICER NATHAN BOLOGNINI, POLICE

OFFICER VINCE MISTRETTA, POLICE

OFFICER GENE PALUMBO, and

POLICE OFFICER BRIAN

SUSCHKE,

Defendants-Respondents.

________________________________

 

Argued November 16, 2005 - Decided May 17, 2006

Before Judges Wefing, Fuentes and Graves.

On appeal from Superior Court of New

Jersey, Law Division, Mercer County,

Docket No. L-1580-02.

Stephen M. Latimer argued the cause for

appellants (Loughlin & Latimer, attorneys;

Mr. Latimer, on the brief).

Herbert I. Waldman argued the cause for

respondent Lieutenant William Wittmer

(Nagel Rice & Mazie, attorneys; Mr. Waldman,

of counsel and on the brief).

Kathleen C. Goger argued the cause for

respondent Sergeant Peter Weremijenko

(Singer & Goger, attorneys; Ms. Goger,

on the brief).

Emmett E. Primas, Jr., attorney for

respondent Robert Albanowski.

John Morelli, argued the cause for

respondents Jason Astbury, Nathan

Bolognini, Vince Mistretta, Gene

Palumbo, and Brian Suschke.

PER CURIAM

Plaintiffs John Day and April Cain appeal from the order of the Law Division dismissing their civil action against all of the named defendants. This cause of action arose out of an altercation that took place outside of Maxine's, a nightclub in Trenton. In their complaint, plaintiffs alleged: (1) deprivation of their Fourth and Fourteenth Amendment rights; (2) violation of 42 U.S.C.A. 1983 for false arrest and imprisonment; (3) malicious prosecution; and (4) racially- motivated assault and battery. With respect to defendant City of Trenton, plaintiffs maintained that it improperly and negligently trained its law enforcement officers, and negligently hired, retained and supervised its officers. Also, as part of this cause of action, Day alleged that defendant Wittmer defamed him by claiming that Day was intoxicated the night of the altercation and had a history of intoxicated violent episodes, which negatively affected Day's employment.

The trial court granted defendants' motion for summary judgment, finding that there were no material issues of fact in dispute, and defendants were entitled to qualified immunity with respect to all of the counts alleging violations of plaintiffs' civil rights. The court also concluded that the defamation claim was groundless as a matter of law. After reviewing the record before us, and in light of prevailing legal standards, we agree with the legal conclusions reached by the motion judge and affirm.

I

The Incident

We will summarize the salient facts from the record developed before the trial court. Plaintiffs are both African-Americans. On the night of the altercation at Maxine's, Day was a New Jersey State Trooper. He graduated from the police academy on July 28, 1988. He was an undercover detective with the narcotics unit assigned to Camden as of March 2002. He is six feet tall, and at the time of the incident weighed 270-275 pounds and exercised every other day.

Shortly after midnight, early in the morning of October 21, 2000, Day was driving his assigned undercover vehicle, a Ford F-150 pickup truck, while he was off-duty, in violation of rules against personal use. According to plaintiffs' amended complaint, they were driving near Maxine's when Day noticed a group of police cars in front of the club. The empty police cars were double parked lining the street. Day stopped at the club "with the intention of assisting the officers . . . ." He double parked his pickup truck and left the engine running. The driver's side was closest to Maxine's.

The following account of what transpired is taken from Day's deposition testimony, given September 2, 2003. A person, standing outside the club that Day knew, came over to the window of his truck and told him that the club had run out of liquor and the owner called the police to shut down the party. After the two had been speaking for an estimated thirty to forty-five seconds, Day heard defendant Wittmer shout, "[m]ove that fucking truck." At the time, Wittmer was in uniform standing at the door of the club, about twenty feet from Day's truck.

Day admitted that he did not respond or move, but waited for Wittmer to approach his vehicle. He did not obey the order to move because he "was going to let a fellow officer know that [he] was a trooper and [he] could help him if he needed [his] help." Five or six seconds later, Wittmer approached to within a foot of Day "mad as hell" and said, "Didn't I tell you to move this fucking truck." Day responded, "Excuse me, sir. I'm a detective in the State Police" and "Whoa. I'm a State Trooper, and I know the people that are having the party, and maybe I can help you. I can be of assistance." Wittmer responded with another expletive, telling Day that he did not need his help. Day was taken aback by this rude reaction from a fellow officer, and replied, "[w]hy are you talking to me like that? . . . I'm here to help you."

At that point, defendant Albanowski appeared and told Wittmer that Day was a State Trooper. When Wittmer asked him for identification, Day told him that it was in the cab of the truck. He reiterated, however, that he was a detective with the State Police Investigation Section and stated his badge number. Day acknowledged that State Police regulations mandated that he carry his law enforcement credentials at all times, but chose not to carry them when working undercover. His identification, raid gear, reports and service weapon were thus in a tool box in the bed of the truck. He also had a Smith & Wesson .38 caliber handgun in his right pocket, in violation of State Police Regulations. Day testified that he was never asked for his driving credentials.

Notwithstanding Day's offer of assistance, Wittmer advised him that, "[i]f you don't move this truck, I'm going to lock you up." Although Day understood this statement to mean that if he did not move his vehicle he would be arrested, he contends that he was never actually told he was under arrest. Instead of complying, Day replied, "[w]ell, why would you lock me up if I'm here to help you." Within seconds, Day saw another officer shaking a can of Oleoresin Capiscum spray ("OC" or "pepper spray"), but discounted this as a bluff. The officer approached the truck window, between Wittmer and Albanowski, reached across Wittmer's left shoulder, and sprayed Day, causing him to turn his face to the right, toward his companion Cain.

Day gave the following description of what transpired next:

And I locked on the steering wheel, and I was, like, saying to myself, What the hell is going on? I was just holding on like this, and I just felt tugging on my arm, my neck. I just felt the tugging, the tugging, but I could see out of my right eye, and I could see [Cain] gasping.

The next thing I know, I see [Cain] being snatched out of the truck, and I'm going, like, Why is she being snatched out of the truck for? And the next thing I know, I'm holding, and holding, and, boom, then I was thrown on the ground.

* * * *

It was just like a football tackle. It felt like a bunch of bodies on me. And I turned around on my back, and they handcuffed me, and I just heard somebody say, Drag his ass, and they were just dragging me back like this.

At this point, Day claims that he felt punches and kicks to his torso and legs, though he did not know how many or from whom. He was then dragged to and placed in a "paddy wagon." He could not say whether defendants Palumbo, Suschke, Astbury, Bolognini or Mistretta had participated in the arrest or done anything improper to him. He also did not know where Wittmer was while he was being dragged, kicked and punched.

The only allegations Day made of improper treatment while at the police department came when he was speaking to another man in the cell whom he knew. Day claims that an unidentified person he thought was an officer, not in uniform:

stopped and he was like standing up, you know, in a mean way, and said: Shut the fuck up. You talk like them. Shut the fuck up.

I said: Talk like what?

You know what I'm talking about. You are a disgrace to the State Police. I don't know how you got in the State Police. Just shut the fuck up.

And I said: You don't know what I do for the State Police. You have no right to talk to me like that.

Day interpreted these comments as meaning "talk like an inner city black [person]." He did not hear any other racial epithets.

Upon his request, Day was taken to the St. Francis Hospital emergency room complaining of pain in his right knee, the back of his right leg, buttocks, lower back and thumbs, and of having been sprayed. He was diagnosed with a thigh sprain, and discharged on crutches. Nine days later, Day saw Dr. Prasad Chalasani of Excel Medical and Diagnostic Services, who diagnosed Day as suffering from herniated discs, sprains of and contusions to the right shoulder and wrists, sprained thumbs, right hip and right knee, and a tear of the medial collateral ligament, all of which he attributed to the incidents on October 21, 2000 "based upon the history [given] by the patient . . . ."

A magnetic resonance imaging ("MRI") report prepared by Dr. Jacob Lichy, dated November 7, 2000, indicated that there was a "subligamentous herniation of the L3-L4 with loss of signal and evidence of cracking and fissuring indicative of injury to the disc. There is also secondary straightening of the normal lordotic curve of the lumbar spine." A report dated November 13, 2000, indicated "[b]ilateral posterolateral herniation of the C3-C4 and C4-C5 discs. Straightening and reversal of the normal lordotic curve of the cervical spine."

Dr. John P. Nolan, Jr. examined Day on January 5, 2001. On this date, Day complained of pain in his right leg and lower back and some discomfort in his right shoulder. Dr. Nolan suggested therapy and a diagnostic arthroscopy on his right knee. This procedure, performed on January 18, 2001, revealed a lateral meniscus tear in the right knee.

Cain's deposition testimony relayed the same general sequence of events Day described. According to Cain, during the confrontation with Wittmer, approximately fifty boisterous people came streaming out of the club and several began throwing bottles at the police officers. Cain was also struck in the face with the pepper spray, and her eyes were burned, causing tearing. Although she was able to see the driver's side door opening and Day being pulled from the truck, she could not identify who was pulling him out. Cain never saw anyone strike or kick Day, nor did Day ever tell her that happened to him.

According to Cain, an unidentified police officer "snatched" her from out of the vehicle, and handcuffed her. Another officer then removed the handcuffs, and ordered her to take the truck and leave. She could not identify who took her from the truck or who handcuffed her. She did indicate that Wittmer did not speak to her, handcuff her, mace her, or have anything to do with her at all. She was handcuffed for "about five to seven minutes."

Cain was not injured. Only her "wrist was a little sore the next day." She indicated, however, that her Multiple Sclerosis symptoms were aggravated for two days after the altercation, but there have not been any long-term effects. Joseph Gaines, the individual Day spoke to outside Maxine's on the night of the incident was deposed. He testified to the following course of events:

Once again, after [Day] identified [himself], the guy was like, I don't give a fuck who you are, just get that truck out of here.

* * * *

And I'm like, this man is a state trooper, this man ain't breaking the law, nothing going on over here.

* * * *

Once one of them came, I guess to either extract him out of the window or extract the door open, however, trying to get the man out, they all bum rushed.

* * * *

That didn't work for them. Then they tried the door. Then eventually the door did come open. Somehow the door did come open and they dragged him out, boom. Slammed him.

* * * *

By this time I'm sitting there watching, stomp, kick the man, I just jetted off.

* * * *

This is what I would say, within an immediate area there had to be at least anywhere from one to five police officers, right? Within those one to five officers, all of them was trying to do whatever it is to get this man out of the car, restrain this man, do whatever it is they do to people. And that's exactly how it went.

Gaines was unable to say, however, which officer assigned to Maxine's that night actually engaged in violence against Day.

The account of events described by the defendants police officers differed dramatically from the descriptions given by Day, Cain and Gaines. In his official police report of the incident, Weremijenko gives the following factual summary:

As I arrived next to the truck I heard Lt. Wittmer say in a loud and clear voice that the driver (John Day, arrestee) was under arrest and ordered him out of the vehicle. I observed Day, an enormous man, wrap his hands around the steering wheel of the truck and shake his head from side to side refusing to exit the truck. Lt. Wittmer ordered Day several times to exit the truck yet he still refused. Lt. Wittmer took hold of Day's left arm and pulled on it in an attempt to remove Day from the truck . . . . [Due to the crowd getting out of control], I felt this arrest needed to be completed as soon as possible so I approached the vehicle and using my department issued pepper spray I shot an approximately one (1) second burst to the face area of Day. This was done from a distance of about four feet . . . . Realizing the spray was not working as it should, I went to the passenger side of the truck, opened the door and ordered the female out. She exited the vehicle and I entered it. I could see that Day still had his hands wrapped tightly around the steering wheel. I could see his muscle tensed in his right arm. I knew I had to force Day to release his grip and end this arrest. I applied the bottom of my foot to Day's right forearm and pushed down. This worked. Day released his grip and was removed from the truck.

Wittmer's report, filed on October 21, 2000, also portrays the police's response as deliberate and measured, escalating only in response to Day's refusal to comply with the directives of the officers at the scene.

[Day] then pointed to police cars double parked on the same side of the street to his front and rear. He stated that they were double-parked so what was the problem? . . . With the driver refusing to move his vehicle, I then asked for the driver's license and registration. He stated that he did not have them. I then detected a strong odor of a[n] alcoholic beverage on the driver's breath and noticed that his eyes were bloodshot. I then asked the driver again for his license and registration and he again stated that he did not have them. I then asked for the insurance ID card for the vehicle. The driver then stated that he was not going to show me anything, becoming very hostile and belligerent.

. . . The driver of the pickup truck was advised that he was under arrest. I the[n] opened the vehicle's driver's side door and asked the driver to step out. He refused and placed his hands on the steering wheel. I then placed my left hand on his wrist and pulled on it in an effort to lead the driver out of the vehicle. He refused to move and gave opposing force to my efforts to pull him out of the vehicle.

Day also faced criminal charges as a result of this incident. Pursuant to a negotiated plea agreement, Day pled guilty to failure to exhibit license and registration and double parking. The State Police also conducted an Internal Affairs ("IA") investigation. As a result of this incident, Day was charged with a number of violations of the rules and regulations governing the conduct of members of the State Police. At a Summary Disciplinary Hearing, he pled guilty and was suspended for thirty calendar days.

II

The Defamation Claim

Sometime after this incident, several newspaper articles reported what had occurred. Based on these newspaper stories, Day believed his character and reputation had been unfairly impugned. In response, Day contacted Reverend Al Sharpton, a well-known activist in the New York/New Jersey metropolitan area. Reverend Sharpton called a press conference with Cain outside Maxine's. Ironically, Cain had not alleged any ill-effect from the way the incident had been reported in the newspaper articles. The only residual affect she experienced from the incident was to make her distrustful of the Trenton Police.

Day also alleged that statements made by Trenton police officers to the State Police investigators about his alleged inebriated state on the night of the incident were malicious and intended to defame him. These statements were made by these officers in connection with the investigation conducted by the State Police, as part of the disciplinary charges filed against Day.

III

The Trial Court's Ruling

The trial court gave the following explanation in support of its decision to grant defendants' motion for summary judgment:

It was a pretty nasty scene it seems to me on October 21, 2000 in the City of Trenton at Maxine's. Earlier the police had a major issue on their hands with regard to a crowd that was probably fairly well intoxicated from all I can gather and very angry at the time.

And that's when the plaintiff comes up in this unmarked vehicle and parks in a place where he shouldn't be parked, right in the front of everything. . . . At least I'm sure that's a fair perception the police would view it at the time.

He identified himself. No question or doubt about that. No, he doesn't have to have his identification around his neck, that's not necessary. But there certainly was a colloquy and there certainly was a direction by the police for him to get out of there. They didn't need his help. Whether he was the Superintendent of the State Police, FBI, it really didn't matter.

They had things under control. There was a lieutenant on the scene, there's a sergeant on the scene, there were other police officers on the scene. They did not need him and certainly didn't need him there with his companion in a car that she shouldn't have been in or meeting him with a gun that he shouldn't have been carrying under the circumstances, it strikes me.

I think what they did was appropriate. I'm going to grant summary judgment across the board in this case. They had a problem on their hands and they had to take action. What they did was tell him, get out of here. Not once, not twice, but three times. He didn't get out of there. It was quite clear he wasn't going to get out of there.

He took some -- an action was taken by the Sergeant spraying and I'll accept the situation as developed by the plaintiff in the plaintiff's papers in his argument by his counsel that's appropriate under [Judson and] Brill. But even so, I believe [Wittmer's attorney] is right. Even so, the facts that we have I'd like to consider in this case are such that we do not have a genuine issue of material fact as to any violations of Mr. Day's rights as I view it.

. . . I see someone who is under arrest or is resisting arrest. We have other police officers who come into the fray and the situation must have been truly ugly and horrendous at the time. Anything could have happened and that's just the way it is with police work.

But what didn't happen is remarkable to me. What didn't happen is there weren't bruises and contusions, broken bones or things of that nature with regard to the plaintiff. He had some issues with his ACL (sic) and that easily could have happened as he was resisting arrest as he had to be pulled out of the truck by the police officers at the time . . . .

. . . [A]ll hell was breaking loose. That's quite clear at the time and I suspect all of their perceptions were somewhat clouded by what was going on. But the impact on the plaintiff, it strikes me, is to the effect that what they may have seen was not the brutal type of action on the part of the police or the covert action on the part of the police.

I think their response was reasonable overall. . . . I'm absolutely convinced that this is a case that doesn't have any merit.

And the same is true with the companion. She was sprayed. . . . But very shortly thereafter she was released. Even given the fact that she may have been handcuffed, it was just for a few moments. She didn't sustain any injury as a result of that I think. Proof of the pudding to all of that is the fact that she drove the car -- the vehicle away and she's allowed to do that. I don't know what more can be said about that. I don't think [it] gives rise to any of the claims set forth in the complaint.

IV

Legal Analysis

Under R. 4:46-2(c), summary judgment is appropriate 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. An issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of

fact. . . .

In reviewing a motion for summary judgment, the trial court must "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party in consideration of the applicable evidentiary standard, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). Therefore, the court must assume plaintiff's version of the facts is true and give plaintiff the benefit of all favorable inferences. Id. at 536. But "when the evidence 'is so one-sided that one party must prevail as a matter of law,' . . . the trial court should not hesitate to grant summary judgment." Id. at 540 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986)).

We review a grant of summary judgment de novo, using the same standard as the trial court under R. 4:46-2(c). Turner v. Wong, 363 N.J. Super. 186, 198-99 (App. Div. 2003). Thus, we must determine whether a genuine issue of material fact is present and, if not, evaluate whether the trial court's ruling on the law was correct. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).

We start our analysis by noting that plaintiffs did not oppose the summary judgment motions made by the City of Trenton or Bolognini. Thus, because appeals as of right from a final judgment contemplates a judgment entered involuntarily against the unsuccessful party, Winberry v. Salisbury, 5 N.J. 240, 255, cert. denied, 340 U.S. 877, 71 S. Ct. 123, 95 L. Ed. 638 (1950); Cooper Med. Ctr. v. Boyd, 179 N.J. Super. 53, 56 (App. Div. 1981), plaintiffs are now precluded from contesting the judgment affecting these two defendants.

Plaintiffs' remaining claims against the police-officer defendants involved violations of 42 U.S.C.A. 1983 (unreasonable force) and violation of their rights against unreasonable detention under the Fourth and Fourteenth Amendments. Also remaining are Day's claims against Wittmer for defamation and tortious interference, in violation of state law and the Fourth and Fourteenth Amendments.

We begin by noting that, contrary to plaintiffs' assertions, there are no material issues of fact in dispute. Wittmer's statement of facts submitted to the trial court in support of his motion for summary judgment accepted Day's version of events. Wittmer admits that he was aware that Day was a trooper before asking for his identification, and that Day was not intoxicated at the time. These facts do not prevent the dismissal of plaintiffs' claims as a matter of law. Whether Day identified himself as a State Trooper is irrelevant, because he was not at liberty to disobey the officers' orders. Finally, Day's guilty plea for failing to produce driving credentials, precludes him from challenging here the officers' legal authority to detain him at the scene.

Because qualified immunity brings immunity from suit rather than providing a defense to liability, it is well-settled that a court should decide the applicability of this doctrine as early in the proceedings as possible. Saucier v. Katz, 533 U.S. 194, 200-01, 121 S. Ct. 2151, 2156, 150 L. Ed. 2d 272, 281 (2001); Wildoner v. Borough of Ramsey, 162 N.J. 375, 387 (2000).

Pursuant to 42 U.S.C.A. 1983,

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 . . . 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, suit in equity, or other proper proceeding for redress . . . .

Here, there is no question the defendant officers acted under the color of law. The next inquiry is whether the "conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States." Parratt v. Taylor, 451 U.S. 527, 535, 101 S. Ct. 1908, 1913, 68 L. Ed. 2d 420, 428 (1981). Plaintiffs claimed that they were the victims of excessive police force. Such a claim is properly analyzed under the Fourth Amendment. Abraham v. Raso, 183 F.3d 279, 288 (3d Cir. 1999).

The United States Supreme Court described qualified immunity in actions arising under 1983 in Harlow v. Fitzgerald, 457 U.S. 800, 817-18, 102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396, 410 (1982) (citations omitted):

[W]e conclude today that bare allegations of malice should not suffice to subject government officials either to the costs of trial or to the burdens of broad-reaching discovery. We therefore hold that government officials performing discretionary functions generally 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 would have known.

Reliance on the objective reasonableness of an official's conduct, as measured by reference to clearly established law, should avoid excessive disruption of government and permit the resolution of many insubstantial claims on summary judgment.

Our Supreme Court adopted this "objective reasonableness" standard in Kirk v. City of Newark, 109 N.J. 173, 182 (1988). The Court has "also recognized that the [United States] Supreme Court has interpreted Section 1983 'to limit the rights of plaintiffs and to encourage disposition of the actions as a matter of law, at least when these actions arise out of an alleged unlawful arrest, search, or seizure by a law enforcement officer.'" Wildoner, supra, 162 N.J. at 386-87 (quoting Kirk, supra, 109 N.J. at 179). "The same standard of objective reasonableness that applies in Section 1983 actions also governs questions of good faith arising under the Tort Claims Act, N.J.S.A. 59:9-3." Id. at 387 (citations omitted). In Schneider v. Simonini, 163 N.J. 336, 355 (2000) (quoting Kirk, supra, 109 N.J. at 184) our Supreme Court indicated:

A police officer being sued for violating a clearly established constitutional or statutory provision is entitled to judgment if the police officer can successfully prove: (1) that he or she acted with probable cause; or, (2) "even if probable cause did not exist, that a reasonable police officer could have believed in its existence."

"'If officers of reasonable competence could disagree on this issue, immunity should be recognized.'" Schneider, supra, 163 N.J. at 380 (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S. Ct. 1092, 1096, 89 L. Ed. 2d 271, 278 (1986)). "[T]he qualified immunity standard is intended to protect 'all but the plainly incompetent or those who knowingly violate the law.'" Ibid. Moreover, "[q]ualified immunity operates . . . to protect officers from the sometimes 'hazy border between excessive and acceptable force . . . .'" Saucier, supra, 533 U.S. at 206, 121 S. Ct. at 2158, 150 L. Ed. 2d at 284, (quoting Priester v. Riviera Beach, 208 F.3d 919, 926-27 (11th Cir. 2000)).

When considering the totality of the circumstances, including: (1) severity of the underlying offense; (2) immediacy of the threat to the officers or others' safety; (3) the possibility that the individual is violent or dangerous or may be armed; (4) whether it is in the context of an arrest; (5) whether the individual is resisting arrest; (6) duration of the action; and (7) the number of persons with whom the police officers must contend at one time, the Court cautioned that:

The "reasonableness" of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight . . . . "Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers," violates the Fourth Amendment. The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments -- in circumstances that are tense, uncertain, and rapidly evolving -- about the amount of force that is necessary in a particular situation.

[Graham v. Connor, 490 U.S. 386, 396-97, 109 S. Ct. 1865, 1872, 104 L. Ed. 2d 443, 455-56 (1989) (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.), cert. denied, 414 U.S. 1033, 94 S. Ct. 462, 38 L. Ed. 2d 324 (1973)).]

Even if mistaken, if an officer reasonably "believed that a suspect was likely to fight back, for instance, the officer would be justified in using more force than in fact was needed." Saucier, supra, 533 U.S. at 205, 121 S. Ct. at 2158, 150 L. Ed. 2d at 284. The Third Circuit has held that where the plaintiff, "who could recognize all of the defendant officers, [but] was unable to identify which police officers were in the police car with him at the time of the alleged abuse," there is "no evidentiary basis on which to hold these defendants liable." Sharrar v. Felsing, 128 F.3d 810, 821 (3d Cir. 1997).

With these standards in mind, we are satisfied that the police-officer defendants who interacted with plaintiffs at the scene are entitled to qualified immunity. In reaching this conclusion, we are in complete agreement with the motion judge who noted the danger caused by Day's unexpected and uninvited intervention at the scene. The officers were concerned with managing a volatile and fluid situation, involving a crowd of unruly patrons exiting a drinking establishment.

Day, an apparent civilian driving an unmarked truck, in the company of a civilian woman, was nothing more than an interloper. The Trenton police had the legal right to demand that he leave the scene. When he refused, the officers had an objectively reasonable basis to detain him and subdue him for their own safety. Accepting plaintiffs' version of events, the force use by the officers to effectuate the arrest was objectively reasonable. DelaCruz v. Borough of Hillsdale, 183 N.J. 149, 165-66 (2005).

Finally, the defamation claims were properly dismissed, because: (1) the complaint was filed on May 10, 2002, more than one year after the alleged defamatory statements were uttered (N.J.S.A. 2A:14-3); (2) Day has failed to show that Wittmer acted with actual malice; and (3) the statements made by Trenton police officers to State Police investigators in connection with the disciplinary charges filed against Day enjoy an "absolute privilege or immunity." Baglini v. Lauletta, 338 N.J. Super. 282, 297 (App. Div.) (quoting Rainier's Dairies v. Raritan Valley Farms, Inc., 19 N.J. 552, 564 (1955)), certif. denied, 169 N.J. 607 (2001).

 
Affirmed.

The "actual malice" standard requires Day to show that that defendants published the statement knowing it was false or with reckless disregard as to whether it was false, meaning the publisher acted with a high degree of awareness that the statement was probably false. DeAngelis v. Hill, 180 N.J. 1, 13-14 (2004). Here, Day concedes that the heightened actual malice standard, applicable to public officials and limited purpose public figures, applies to him. See Verna v. Links at Valleybrook Neighborhood Ass'n, 371 N.J. Super. 77, 95 (App. Div. 2004).

(continued)

(continued)

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A-1315-04T5

May 17, 2006