VENEZIALE v. DEICHMAN et al, No. 1:2014cv06015 - Document 50 (D.N.J. 2018)
Court Description: OPINION. Signed by Judge Joseph H. Rodriguez on 6/25/2018. (dmr)
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VENEZIALE v. DEICHMAN et al Doc. 50 UNITED STATES DISTRICT COURT DISTRICT OF NEW J ERSEY _________________ RYAN VENEZIALE ____ : : Plaintiff, : : v. : : TROOPER D. DEICHMAN, J R., : et al., : : Defendants. : _______________________ : Hon. J oseph H. Rodriguez Civil Action No. 14-60 15 OPINION This case arises from the arrest of Plaintiff Ryan Veneziale by two New J ersey State Police Officers on Septem ber 28, 20 12. Presently before the Court are the com peting sum m ary judgm ent m otions of the rem aining parties in this case: Plaintiff Ryan Veneziale (“Veneziale”) and Defendants Trooper Steven Stone (“Stone”), Sergeant Kion Wilson (“Wilson”), and the State of New J ersey. 1 A num ber of other claim s have been withdrawn and the claim s against Defendants J ohn Doe (1-5) will be dism issed. 2 The rem aining claim s against the individual defendants Stone and Wilson are for False Arrest (Count V), False Im prisonm ent (Count VI), and Excessive Force (Count I) under both 42 U.S.C. § 1983 and the New J ersey Civil Rights Act, N.J .S.A. 10 :6-1. The 1 Contemporaneous with the filing of this motion, the parties entered into a stipulation which withdrew all claims against Defendant Detective Daniel Deichman, Jr. without prejudice. [Dkt. No. 38]. 2 In addition, the stipulation of the parties withdrew the claims of malicious prosecution and those pursuant to the New Jersey Tort Claims Act without prejudice. [Dkt. No. 38]. As for the John Doe (1-5) defendants, Federal Rule 21 permits the Court to exclude the John and Jane Doe parties from an action when appropriate. Fed. R. Civ. P. 21; see Adams v. City of Camden, 461 F. Supp. 2d 263, 271 (D.N.J. 2006) (citing Hightower v. Roman, Inc., 190 F. Supp. 2d 740, 754 (D.N.J. 2002); Atlantic Used Auto Parts v. City of Philadelphia, 957 F. Supp. 622, 625 (E.D. Pa. 1997) (holding “fictitious party names may be used ‘at least until reasonable discovery permits the actual defendants to assume their places ...,’ however, ... ‘[f]ictitious names must eventually be dismissed, if discovery yields no identities.’ ”)). Plaintiff filed this action on September 26, 2014 and discovery was completed by February 28, 2017. [Dkt. No. 35]. The identity of the unnamed remaining defendants has not been found in the intervening years since this suit was filed and/or in the completion of the discovery period. Therefore, the Court finds that the interests of justice permit dropping the John Doe (1-5) defendants from this suit. 1 Dockets.Justia.com rem aining claim again st the State of New J ersey alleges Failure to Train in violation of both 42 U.S.C. § 1983 and the New J ersey Civil Rights Act, N.J .S.A. 10 :6-1 (Count IV). The Court has considered the written subm ission of the parties and the argum ents advanced at the hearing on Novem ber 1, 20 17. For the reasons stated on the record that day, as well as those that follow, Plaintiff Veneziale’s Motion for Sum m ary J udgm ent is den ied and the m otion of Defendants Wilson, Stone, and the State of New J ersey is granted in part and denied in part. I. Background On Septem ber 28, 20 12, Plaintiff Ryan Veneziale was a passenger in a car driven by Nicolas Geracito. Geracito was intoxicated and crashed the car into a tree on private property in Hainesport Township, New J ersey. Police Officers from the New J ersey State Police arrived on the scen e, including Stone and Wilson. The car was totaled, but both passengers survived. Geracito failed a field sobriety test an d was arrested at the scene. What happens next is recorded by police video cam eras which capture audio and video; however, there is a significant period of tim e where the parties can be heard, but they are outside the view of the cam era. Veneziale was questioned by Wilson and was asked for his driver’s license in order to the com plete the accident report. This interaction can only be heard. Based on subsequent activity, it could be that the parties where positioned just beyond the cam era view. The interaction between Veneziale and Wilson begins the chain of events that form the predicate for Plaintiff’s Com plaint. 2 There is no dispute that Plaintiff refused to give Wilson his driver’s license, despite being asked and directed m ultiple tim es to furnish it. The video/ audio depicts a frank, but tension filled conversation carried out in calm , m etered tones. Veneziale can be heard protesting that, because he was not driving the car, he was not obligated to turn his license over to the police. The audio/ video captures Veneziale saying “I wasn’t driving” in response to Wilson’s dem ands for the license. After Wilson inform s Veneziale that he is required to furnish his license even though he was not operating the vehicle, Plaintiff states that he “disagree[s].” At this point, although the words alone m ay suggest a conversational tone and there is no yelling, the frustration is palpable. Then, Stone intervenes and the situation escalates. Stone can be heard shouting at Veneziale and dem ands that he “get[s his] driver’s licen se out now[]” and warns Veneziale that this is his last chance to cooperate with the police. Veneziale retorts: “what are you going to do to m e?” Shortly after Veneziale’s retort, Wilson, Veneziale, and Stone com e into the cam era view in a tussle. Stone places his forearm into the shoulder or back of Veneziale and appears to forcefully slam him to the ground. Upon im pact, Plaintiff’s m outh strikes the cem ent while his right side strikes the driver’s parked car. Veneziale can be seen hitting the front of a car and striking the ground with som e force. On two separate occasions, Veneziale in form s the officers of dam age to his teeth. Wilson and Stone contend that they all fell to the ground because Veneziale, who was intoxicated, lost his balance while he was actively resisting arrest. Veneziale contends that he was unnecessarily thrown to the ground by the frustrated officers, causing his face to strike the cem ent resulting in the fracture of his front teeth. The 3 video only depicts the parties as Veneziale hits the car and the ground. There is no video account to prove or disprove the parties’ accounts of how they all cam e into a struggle. The audio confirm s the parties’ assertion that no one verbally inform ed Veneziale that he was under arrest before he can be seen hitting the ground. Veneziale was handcuffed, taken to the hospital by am bulance, and then placed under arrest and charged with obstruction of justice, resisting arrest, and disorderly conduct. More charges were filed again st Veneziale because he was com bative during his transport from the hospital to the police station. During this ride, he allegedly spit blood on Stone, repeatedly unbuckled his seatbelt, struggled with Stone, and attem pted to kick Wilson, who was operating the vehicle. As a result, additional charges of aggravated assault on a police officer, attem pted escape, and throwing of bodily fluid charges were levied against him . These charges stem m ing from the transport are not relevant here. On April 9, 20 13, Veneziale applied for and was granted entry into a pre-trial diversion (“PTD”) program for both sets of charges. He successfully com pleted the program and both com plaints were dism issed. Plaintiff filed this action on Septem ber 26, 20 14. The Defendants’ chief claim is that Plaintiff’s Com plaint is barred by Heck v. Hum phrey, 512 U.S. 477 (1994), because successful com pletion of a pre-trial intervention/ diversion program is not a favorable term ination. For the reasons that follow, the Court disagrees as to Count I only. II. Standard of Review A court will grant a m otion for sum m ary judgm ent if there is no gen uine issue of m aterial fact and if, viewing the facts in the light m ost favorable to the non-m oving 4 party, the m oving party is entitled to judgm ent as a m atter of law. Pearson v. Com ponent Tech. Corp., 247 F.3d 471, 482 n.1 (3d Cir. 20 0 1) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)); accord Fed. R. Civ. P. 56 (c). Thus, this Court will enter sum m ary judgm ent only when “the pleadings, depositions, answers to interrogatories, and adm issions on file, together with the affidavits, if any, show that there is no genuine issue as to any m aterial fact and that the m oving party is entitled to judgm ent as a m atter of law.” Fed. R. Civ. P. 56 (c). An issue is “genuine” if supported by evidence such that a reasonable jury could return a verdict in the nonm oving party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is “m aterial” if, under the governing substantive law, a dispute about the fact m ight affect the outcom e of the suit. Id. In determ ining whether a genuine issue of m aterial fact exists, the court m ust view the facts and all reasonable inferences drawn from those facts in the light m ost favorable to the nonm oving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Initially, the m oving party has the burden of dem onstrating the absence of a genuine issue of m aterial fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the m oving party has m et this burden, the n onm oving party m ust identify, by affidavits or otherwise, specific facts showing that there is a genuine issue for trial. Id.; Maidenbaum v. Bally’s Park Place, Inc., 8 70 F. Supp. 1254, 1258 (D.N.J . 1994). Thus, to withstand a properly supported m otion for sum m ary judgm ent, the nonm oving party m ust identify specific facts and affirm ative eviden ce that contradict those offered by the m oving party. Andersen, 477 U.S. at 256-57. Indeed, the plain language of Rule 56(c) m andates the entry of sum m ary judgm ent, after adequate tim e for discovery and upon 5 m otion, against a party who fails to m ake a showing sufficient to establish the existence of an elem ent essential to that party’s case, and on which that party will bear the burden of proof at trial. Celotex, 477 U.S. at 322. In deciding the m erits of a party’s m otion for sum m ary judgm ent, the court’s role is not to evaluate the evidence and decide the truth of the m atter, but to determ ine whether there is a gen uine issue for trial. Anderson, 477 U.S. at 249. Credibility determ inations are the province of the finder of fact. Big Apple BMW, Inc. v. BMW of N. Am ., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992). III. Analysis The prim ary issue is whether Plaintiff’s claim s of False Arrest, False Im prisonm ent, and Excessive Force are barred by the holding in Heck v. Hum phrey, 512 U.S. 477 (1994), because none of the crim in al charges levied against him were favorably term inated. Both parties m ove for sum m ary judgm ent on the balance of the rem ain ing claim s. The court will address whether any claim s survive Heck scrutiny, then consider the balance of the claim s on the m erits. A. Scrutiny under Heck v. Hum phrey The Court finds that Plaintiff’s claim s of false arrest and false im prisonm ent are barred by Heck but, for the reasons that follow, the claim of excessive force is not barred by Heck. In Heck, the Suprem e Court stated: In order to recover dam ages for allegedly unconstitutional conviction or im prisonm ent, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff m ust prove that the conviction or sentence has been reversed on direct appeal, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for dam ages bearing that relationship to a con viction 6 or sentence that has not been so invalidated is not cognizable under § 1983. Thus, when a state prisoner seeks dam ages in a § 1983 suit, the district court m ust consider whether a judgm ent in favor of the plaintiff would necessarily im ply the invalidity of his conviction or sentence; if it would, the com plaint m ust be dism issed unless the plaintiff can dem onstrate that the conviction or sentence has already been invalidated. But if the district court determ ines that the plaintiff's action, even if successful, will not dem onstrate the invalidity of any outstanding crim inal judgm ent against the plaintiff, the action should be allowed to proceed, in the absence of som e other bar to suit. Id. at 48 6– 87. The reasoning underscoring the holding in Heck is that a favorable finding in a plaintiff’s civil case could have the effect of im plicitly invalidating the unfavorable outcom e in the crim in al proceedings. Holm es v. Cushner, No. CIV.A. 10 -5384, 20 12 WL 662410 8, at *5 (D.N.J . Dec. 19, 20 12). For this reason, a plea of guilty in a crim inal proceeding necessarily precludes a civil claim for dam ages if such a claim underm in es the integrity of the crim inal conviction. Gilles v. Davis, 427 F.3d 197, 20 8 – 0 9 (3d Cir. 20 0 5) (“Under Heck, a § 1983 action that im pugns the validity of the plaintiff's underlying conviction cannot be m aintain ed unless the conviction has been reversed on direct appeal, or im paired by collateral proceedings.”). Relevant here, participation in a pre-trial diversion/ intervention program is considered an unfavorable term ination and Heck preclusion m ay apply to som e of the civil claim s. Hendrix v. City of Trenton, 0 6CV-3942, 20 0 9 WL 520 5996, *4-5 (D.N.J ., Dec. 12, 20 0 9) (citing Gilles, 427 F.3d at 210 ). Defendants rely on several cases to support the conclusion that Plaintiff’s claim s of false arrest, false im prisonm ent and excessive force m ust fail under Heck because of Veneziale’s participation in New J ersey’s PTD program . That program required 7 Veneziale to take responsibility for his charges of resisting arrest, obstruction of the adm in istration of justice, an d disorderly conduct. See Def. Exs. M & N. The charged offenses relevant here are: 1. resisting arrest; eluding officer in violation of N.J .S.A. 2C:29-2a (1), 2. obstructing adm inistration of law in violation of N.J .S.A. 2C:29-1, and 3. disorderly persons offense pursuant to N.J . Stat. Ann. § 2C:332a (1). To prove a claim for unlawful arrest, Plaintiff m ust show that he was arrested without probable cause. Sharrar v. Felsing, 128 F.3d 8 10 (3d Cir. 1997). Probable cause exists where “ ‘the facts and circum stances within ... [the officers'] knowledge and of which they had reasonably trustworthy inform ation [are] sufficient in them selves to warrant a m an of reasonable caution in the belief that’ an offense has been or is being com m itted.” Schneider v. Sim onini, 163 N.J . 336, 749 A.2d 336, 349– 50 (N.J . 20 0 0 ) (citing Brinegar v. United States, 338 U.S. 160 , 175– 76, 69 S.Ct. 130 2, 93 L.Ed. 1879 (1949)). Probable cause is less than proof needed to convict, but m ore than m ere suspicion. Id. A police officer can defend a § 1983 claim by establishing: (1) that he or she acted with probable cause; or, (2) if probable cause did not exist, that a reasonable police officer could have believed it existed. Kirk v. City of Newark, 10 9 N.J . 173, 536 A.2d 229, 234 (N.J . 1988) (citing Anderson, 483 U.S. at 663– 64). New J ersey's resisting arrest statute does not m ake a distinction as between lawful and unlawful arrests. “It is not a defense to a prosecution under this subsection that the law enforcem ent officer was acting unlawfully in m aking the arrest, provided he was acting under color of his official authority and provided the law enforcem ent officer announces his intention to arrest prior to the resistance.” Id. 8 Here, by participating in the PTI program , Veneziale waived the defense associated with the fact that the officers in this case cannot be heard announcing the arrest prior to Veneziale striking the ground. He waived that defense because success on his claim s of false arrest and false im prisonm ent would im ply the invalidity of the outcom e of his m unicipal court adjudication through PTI and are therefore, barred under Heck. See Whaley v. Borough of Collingswood, No. CIV.A. 10 -4343, 20 12 WL 2340 30 8 , at *7 (D.N.J . J une 18, 20 12); see also Holm es v. Cushner, No. CIV.A. 10 -538 4, 20 12 WL 662410 8, at *5 (D.N.J . Dec. 19, 20 12). For the sam e reason s, his claim of false im prisonm ent is also barred under Heck. 3 The law governing application of Heck to Plaintiff’s excessive force civil claim s arising out of unfavorable term inations of resisting arrest and obstruction of justice crim in al charges is less clear in New J ersey. The disparity arises out of an interpretation of New J ersey’s elem ents for Veneziale’s crim inal offenses which were unfavorably term inated after successful conclusion of the PTD program , specifically for a resisting arrest charge. Defen dants principally4 rely on the New J ersey Appellate Division’s 3 Under New J ersey com m on law, the tort of false im prisonm ent is defin ed as when an actor im properly constrains a person's freedom of m ovem ent by force or by threats of force com m unicated through conduct or words. Maietta v. USPS, 749 F. Supp. 1344, 1366 (D.N.J . 1990 ). New J ersey requires two elem ents for false im prisonm ent: (1) detention of the person against his or her will, and (2) a lack of proper legal authority or “legal justification.” Mesgleski v. Oraboni, 330 N.J . Super. 10 , 748 A.2d 1130 , 1138 (N.J . Super. Ct. App. Div. 20 0 0 ). For the sam e reasons that Heck bars the false arrest claim , this claim is also barred. False arrest and false im prisonm ent are different nam es for the sam e tort, not separate causes of action. Roth v. Golden Nugget Casino/ Hotel, Inc., 576 F. Supp. 262, 265 (D.N.J . 1983) (citin g Price v. Phillips, 218 A.2d 167, 169 (N.J . Super. Ct. App. Div. 1966)). 4 The Court also distin guishes this case from the facts in Feeney v. Powell, No. CIV. 0 6-1849 (RBK), 20 0 8 WL 2478385, at *4 (D.N.J . J une 17, 20 0 8 ), heavily relied upon by Defendants. In that case, the district court held that plaintiff’s excessive force claim was barred by Heck. Feeney was in dicted on several counts and ultim ately plead guilty to two counts of aggravated assault and one count of resisting arrest. In enterin g his plea, Feeney waived any claim to self-defense. Feeney, No. CIV. 0 6-18 49 (RBK), 20 0 8 WL 2478385, at *2. Feeney adm itted to assaulting the officers, usin g an am ount of force greater than that em ployed by the officers. The Court found that this adm ission im plied that the police officers’ use of force was justified and left no room for a viable Fourth Am en dm ent claim that would not underm ine his 9 decision in Bustam ante v. Borough of Param us, 413 N.J . Super. 276 (N.J . App. Div. 20 10 ) for the proposition that Plaintiff’s unfavorable term ination of his crim inal charge of resisting arrest defin itively precludes a civil suit against the arresting officers for excessive force. The issue in Bustam ante, whether a “plaintiff’s civil com plaint for dam ages under com m on law and § 1983 is barred as a m atter of law because of [plaintiff’s] guilty plea to resisting arrest[,]” was, at the tim e, a case of first im pression in the State of New J ersey. Id. at 579. After reviewing the split in the circuits regarding application of Heck preclusion to claim s of resisting arrest, the New J ersey Appellate Division found the Third Circuit’s interpretation as set forth in Nelson v. J ashurek, 10 9 F.3d 142, 145– 46 (3d Cir. 1997) to be persuasive. Applying the lim itations set forth in Nelson, the Bustam ante court concluded that perm itting the excessive force claim to go forward would im perm issibly underm ine the validity of the conviction for fourth degree resisting arrest. The court reasoned as follows: Returning to the issues before us, plaintiff pled guilty to resisting arrest as a fourth-degree offense. That presum ptively established that plaintiff knew defendants were law enforcem ent officers, that they were effectuating his arrest, that he purposely prevented, or attem pted to prevent, his arrest, and, fearing his arrest, fled. See State v. Sim m s, 369 N.J . Super. 466, 470 – 72, 8 49 A.2d 573 (App. Div. 20 0 4) (defining elem ents of the crim e); see also Model J ury Charge (Crim inal), “Resistin g Arrest—Flight Alleged” (20 0 7). However, “a person m ay resist excessive force used by the arresting officer, even if the arrest is otherwise legal.” Cannel, New J ersey Crim inal Code Annotated, com m ent 10 on N.J .S.A. 2C:3– 4 (20 0 9) (citing State v. Mulvihill, 57 N.J . 151, 156– 57, 270 A.2d 277 (1970 )); see also Sim m s, supra, 369 N.J . Super. at 472, 8 49 A.2d 573 (“[A]n officer effecting an arrest m ay use only such force as is reasonable under the circum stances....”). aggravated assault convictions. As will be discussed in further detail infra., there are questions of fact related to the m an ner of arrest and the force used in the course of Veneziale’s arrest that were absent in Feeney. As a result, Feeney is not persuasive on this point. 10 By pleading guilty, however, plaintiff forfeited any claim that defen dants used excessive force in effecting his arrest. See ibid. (“[I]f the officer uses excessive or unnecessary force ‘the citizen m ay respond or counter with the use of reasonable force to protect him self ....’ ”) (quoting Mulvihill, 57 N.J . at 156, 270 A.2d 277); see also Model J ury Charge (Crim inal), “J ustification—Self Defense Resisting Arrest” (1988) (m aking the defense available only if the officer used unlawful force to effectuate the arrest). Bustam ante, 413 N.J . Super. 276, 295, 994 A.2d at 58 5– 86 (em phasis added). Bustam ante’s holding centered on the fact that the alleged excessive force in that case occurred during the arrest, as opposed to after the crim inal defendant was subdued. “[T]o the extent plaintiff's claim s in volved defendants' use of force in effectuating his arrest, as opposed to after he was in custody, they are barred because a favorable outcom e in the civil action would be inconsistent with the adm issions he m ade by pleading guilty.” Id. Som e courts in this district have applied Bustam ante’s rigid interpretation of Heck in the face of an unfavorable adjudication of a resisting arrest charge. See, e.g. Panarello v. City of Vineland, 160 F. Supp. 3d 734 (D.N.J . 20 16) (“Perm itting this claim to go forth presents the possibility that if the jury were to find for Panarello on this issue, this would be a finding that directly contravenes the conclusions of the fact-finder from the crim in al proceedin g, which Heck does not perm it.”); Santini v. Fuentes, 11-CV-639, 20 17 WL 3189449 (D.N.J . J uly 27, 20 17) (Because Plaintiff pled guilty to resisting arrest, “[a] finding that the Troopers violated Plaintiff’s constitutional rights through excessive force would render his plea invalid.”). Although the Bustam ante court lauded the reasoning in Nelson, the holdings differ; the Appellate Division distinguished the Third Circuit’s holdin g in Nelson on the grounds that Nelson involved violations of Pennsylvania’s crim inal code an d that the elem ents of New J ersey’s resisting arrest charge were different and would be 11 com prom ised by the very proofs a plaintiff needs to establish in the excessive force claim . The facts of this case do fit into the reasoning applied by the Bustam ante court. Rather, “the application of Heck in this case, . . . would im ply that once a person resists law enforcem ent, he has invited the police to inflict any reaction or retribution they choose, while forfeitin g the right to sue for dam ages.” VanGilder v. Baker, 435 F.3d 689, 692 (7th Cir. 20 0 6). A Fourth Am endm ent excessive force claim , under 42 U.S.C. §1983, calls for an evaluation of whether police officers’ actions are objectively reasonable in light of the facts and circum stances confronting him . 5 Graham v. Conner, 490 U.S. 386, 397 (1989). While the question of reasonableness is objective, the court m ay consider the severity of the crim e at issue, whether the suspect poses an im m ediate threat to the safety of the officers or others, and whether the suspect is actively resisting arrest or attem pting to evade arrest by flight. Id. at 396, 10 9 S. Ct. at 1872; see also Grom an, 47 F.3d at 634. “The calculus of reasonableness m ust em body allowance for the fact that ‘police officers are often forced to m ake split-second judgm ents—in circum stances that are tense, uncertain, and rapidly evolving—about the am ount of force that is n ecessary in a particular situation.’ ” Id. at 396– 97, 10 9 S. Ct. at 1871– 73; see also Sharrar, 128 F.3d at 8 20 – 21. In a claim for excessive force, “the central question is ‘whether force was applied in a good faith effort to m aintain or restore discipline, or m aliciously an d sadistically to cause harm .’” Brooks v. Kyler, 20 4 F.3d 10 2, 10 6 (3d Cir. 20 0 0 ) (quoting 5 Plaintiff also alleges that the Defendants violated the New Jersey Civil Rights Act. “The NJCRA is interpreted as analogous to § 1983,” Szemple v. Correctional Med. Servs., Inc., 493 Fed. Appx. 238, 241 (3d Cir. 2012), and a court “will analyze ... NJCRA claims through the lens of § 1983.” Trafton v. City of Woodbury, 799 F.Supp.2d 417, 444 (D.N.J. 2011); see Estate of Martin v. U.S. Marshals Serv. Agents, 649 Fed. Appx. 239, 245 n.4 (3d Cir. 2016) (holding that “it appears undisputed that Plaintiffs' claims under the New Jersey Constitution and the New Jersey Civil Rights Act trigger the same legal elements and principles as ... [the] federal causes of action [under Section 1983]”). 12 Hudson v. McMillian, 50 3 U.S. 1, 7 (1992)). Furtherm ore, appropriate attention should be given “to the circum stances of the police action, which are often ‘tense, uncertain, and rapidly evolving.’ ” Grom an v. Township of Manalapan, 47 F.3d 628, 634 (3d Cir. 1995) (quoting Graham , 490 U.S. at 396). See also Graham , 490 U.S. at 396 (“Not every push or shove, even if it m ay later seem unnecessary,” violates the constitution.). Veneziale’s underlying resisting arrest adjudication is not com prom ised by success on his excessive force claim . Here, Veneziale’s charge of resisting arrest is classified by the com plaint and sum m ons as a disorderly person’s offense, unlike the fourth degree offense of resisting arrest considered in Bustam ante. See Def. Ex. J ., Com plaint-Sum m ons 0 316-S-20 12-0 0 0 156. A reasonable jury could conclude that Veneziale was forcefully thrown to the ground for his verbal refusal to com ply, or even accepting the police officers’ version of events, that he resisted arrest when he flung his arm s pushed away, and that the force used was objectively unreasonable. This fin ding does not im pugn Plaintiff’s unfavorable adjudication on his resisting arrest and obstruction claim s even assum ing that he was actively resisting arrest. The m ann er of subduing Veneziale is still subject to constitutional scrutiny; an arrestee does not invite the use of unconstitutional force sim ply because he is engaged in unlawful activity. See Dyer v. Lee, 488 F.3d 876, 884 (11th Cir. 20 0 7) (“Heck was not intended to be a shield to protect officers from § 1983 suits. It was intended to protect habeas corpus an d prom ote finality and consistency. Provided those goals are m et, a § 198 3 suit is not barred by Heck.”). Adm itting to certain unlawful conduct, including resisting arrest, in the course of an arrest does not autom atically forfeit the right to 13 challenge the conduct of the police in the course of the arrest. See VanGilder, 435 F.3d at 692 (“Put another way, police subduing a suspect could use as m uch force as they wanted-and be shielded from accountability under civil law-as long as the prosecutor could get the plaintiff convicted on a charge of resisting. This would open the door to undesirable behavior and gut a large share of the protections provided by § 1983.”). The facts of this case fall m ore squarely within the Third Circuit’s unpublished holding in Garrison v. Porch, 376 F. App'x 274, 278 (3d Cir. 20 10 ), which was filed approxim ately one m onth before Bustam ante but not considered by the New J ersey Appellate Division in fashioning its decision, Nelson, and Lora-Pena v. F.B.I., 529 F.3d 50 3, 50 6 (3d Cir. 20 0 8) and finds that Ven eziale’s resisting arrest adjudication does not preclude an excessive force claim against the arresting police officers in this case, even where an adm ission of guilty flows from the PTD adjudication. Nelson instructs that excessive force claim s can survive a Heck challenge in certain circum stances. Nelson, 10 9 F.3d at 145– 46. In Nelson, the Third Circuit found that a resisting arrest conviction does not preclude a civil claim for excessive force, explaining that “there undoubtedly could be ‘substantial force’ which is objectively reasonable and ‘substantial force’ which is excessive and unreasonable.” Nelson, 10 9 F.3d at 145. The Court reasoned that a reasonable juror could find that despite actively resisting arrest, the crim in al defendant was subjected to unreasonable an d/ or an excessive am ount force by the arresting police officer. Id. at 146. Likewise, in Lora-Pena, the Third Circuit found that the plaintiff’s Delaware convictions for resisting arrest and assaulting the arrestin g police officers would not be inconsistent with a finding that the officers, during a lawful arrest, used 14 excessive (or unlawful) force in response to plaintiff’s unlawful actions. Lora-Pena v. F.B.I., 529 F.3d 50 3, 50 6 (3d Cir. 20 0 8). Albeit involving underlyin g Delaware and Pennsylvania crim inal cases, the logic of Lora-Pena and Nelson has been extended by courts in this district with respect to New J ersey convictions for resisting arrest, especially where the issue of excessive force was not adjudicated at the crim in al trial level. For exam ple, in Weber v. Rodriguez, No. CIV. 0 7-20 97 RBK/ KMW, 20 11 WL 2555358 , at *4 (D.N.J . J une 27, 20 11) the plaintiff was convicted of resisting arrest and aggravated assault in violation of N.J . Stat. Ann. §§ 2C:29– 2(a)(3)(a) and 2C:12– 1(b)(5), a violation of the third degree for resisting arrest. The question of excessive force, in this post- Bustam ante case, during the course of the arrest was not put before the jury. The New J ersey District Court reasoned that, like the law enforcem ent officers in Lora– Pena, it was possible that the arresting officers could have reacted to the plaintiff's crim in al conduct with excessive force. Id. As a result, the district court concluded that the plaintiff's conviction in state court was not inconsistent with a finding that arresting police officer defendants used excessive force to effectuate the arrest of the resisiting defendant. Id.; see also J ones v. City of Vineland, No. 13-7132 (NLH), 20 16 WL 130 5251, at *8 (D.N.J . Apr. 4, 20 16) (noting the reasonableness of the use of force is not necessary dispensed with at the crim in al conviction stage for charges of resisting arrest); Holm es v. Cushner, No. CIV.A. 10 -5384, 20 12 WL 662410 8, at *5 (D.N.J . Dec. 19, 20 12) (“While the Court appreciates the Defendants' argum ent, it nonetheless finds that Plaintiff's resisting arrest conviction does not necessarily preclude her excessive force claim against Cushner.”). 15 Such a circum stance was also present in Garrison, where the Third Circuit held, in an unpublished opinion, that a New J ersey conviction for resisting arrest does not necessarily preclude an arrestee for recovering dam ages on a § 1983 excessive force claim . Garrison, 376 F. App'x at 278 . In Garrison, the plaintiff pled guilty to sim ple assault on a police officer and resisting arrest. The Third Circuit held that the fact that the crim in al defen dant assaulted the arrestin g police officer did not preclude a civil action against the arresting officer for excessive force, where the defendant suffered fractured vertebrae. Garrison, 376 F. App'x at 277– 78. The Court explained that the crim in al charge for sim ple assault and the civil claim for excessive force did not offend Heck because there is no logical inconsistency in the two claim s. “The fact that Garrison's threatened or attem pted use of force was unlawful does n ot autom atically m ean that there is no use of force that [the defendant officer] could have used in response which could have risen to the level of unreasonable and excessive.” Id. at 278 . The Third Circuit noted the acceptance of this conclusion by other courts: “[O]ther courts of appeals ... have generally held that the m ere fact of a conviction for assault or sim ilar conviction arising out of the sam e incident does not autom atically preclude recovery on an excessive force claim brought under § 1983.” Id. (em phasis added). The Court went on to explain that even though “the fact that Garrison was acting in an unruly and threatening m anner certainly factors into the totality of the circum stances and m ay have justified a greater use of force than would have been reasonable had Garrison been peaceful and cooperative, it certainly did not dispen se with the reasonablen ess requirem ent altogether.” Id. 16 Defendant here argues that because Veneziale did not plead self defense at the crim in al level with respect to his resisting arrest claim and as reasoned in Bustam ante, he is precluded from pursuing the excessive force claim . The Third Circuit explicitly rejects such an argum ent in Garrison and that logic extends here. The plaintiff in Garrison acknowledged that he assaulted the police officer before excessive force was em ployed to arrest him . Essentially the claim was that the police officer’s response to Garrison’s assault em ployed a degree of force “greater than was reasonably necessary to subdue him an d place him under arrest.” Id. The Court reasoned that the availability of a self-defen se affirm ative defense was irrelevant because the initial assault was not com m itted in self-defense; it was an offensive act to which the response was excessive. 6 However, due to the nature of Garrison's factual claim s as alleged in his com plaint and pleadin gs, the issue of self-defense is irrelevant. Garrison has not claim ed that his act of sim ple assault was com m itted to protect him self. He acknowledges that he assaulted Porch before Porch allegedly used excessive force. He claim s that after his act of assault, Porch then responded by using a degree of force that was m uch greater than was reasonably n ecessary to subdue him and place him under arrest. This is clearly a claim of excessive force in response to an assault, and the theoretical availability of a self-defense claim in other sim ple assault cases is of no relevance to the present case. Garrison, 376 F. App'x at 278. 6 This fact further distinguishes this case from Panarello, where the district court validated its conclusion that plaintiff waived his excessive force claim by failin g to assert self-defense. Panarello, 160 F. Supp. 3d at 756– 57. In support, the district court cited N.J . Stat. Ann. § 2C:3-4, which provides in relevant part that a crim inal arrestee m ay “resist an arrest which the actor knows is bein g m ade by a peace officer in the perform ance of his duties, although the arrest is unlawful, unless the peace officer em ploys unlawful force to effect such arrest[.]” Id. Reasoning that Panarello’s failure to in voke that defen se explicitly validated the police officer’s use of force as lawful, the district court found that Heck barred plaintiff’s Fourth Am endm ent claim . Id. The facts here differ- there was either nothing to resist as the parties m utually fell or the police em ployed force seem ingly out of nowhere, or in response to Veneziale’s fightin g posture and flailing, the police used force to subdue Veneziale before they inform ed him he was under arrest. Under any of these circum stances, the affirm ative defense of self-defense does not apply. Veneziale claim s unlawful force was used to throw him to the ground before officers told him he was under arrest. 17 Here, Ven eziale resisted arrest by, according to him , refusing to give the officers his license; his charge reflects disorderly persons’ conduct as opposed to fourth degree resisting arrest considered in Bustam ante. He argues that the respon se by the officers to his uncooperative, resisting behavior durin g his arrest was excessive under the law and that his resisting arrest adjudication does not foreclose his excessive force claim . This reasoning is consistent with that set forth by the Third Circuit in Garrison. As a result Veneziale’s claim for excessive force is not barred by Heck. Id. at 278. The claim s for false arrest and false im prisonm ent are barred under Heck and sum m ary judgm ent is granted in favor of Defendants as to those claim s as set forth in Counts V and VI, and denied as to Count I, excessive force. Having found that Veneziale’s excessive force claim survives scrutiny under Heck, the Court turns to the question of whether qualified im m unity attaches to the police officer defendants at this tim e. B. Qualified Im m unity Plaintiff’s constitutional claim of excessive force is governed by Title 42 U.S.C. § 198 3, which provides a civil rem edy against any person who, under color of state law, deprives another of rights protected by the United States Constitution. See Collins v. City of Harker Heights, 50 3 U.S. 115, 120 (1992). The parties agree, n otwithstanding the Heck argum ents, that as pled, the Com plaint states a cognizable claim under Section 198 3 because Plaintiff alleges a “deprivation of a constitutional right and that the constitutional deprivation was caused by a person acting under the color of state law.” Phillips v. County of Allegheny, 515 F.3d 224, 235 (3d Cir. 20 0 8) (citing Kneipp v. Tedder, 95 F.3d 1199, 120 4 (3d Cir. 1996); William s v. Borough of West Chester, Pa., 8 91 F.2d 458, 464 (3d Cir. 1989). There is no dispute to these facts. 18 At issue is whether the Defendants are entitled to qualified im m unity. The doctrine of qualified im m unity provides that “governm ent officials perform ing discretionary functions . . . are shielded from liability for civil dam ages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person should have known.” Harlow v. Fitzgerald, 457 U.S. 8 0 0 , 8 18 (1982). Thus, governm ent officials are im m une from suit in their individual capacities unless, “taken in the light m ost favorable to the party asserting the injury, . . . the facts alleged show the officer’s conduct violated a constitutional right” and “the right was clearly established” at the tim e of the objectionable conduct. Saucier v. Katz, 533 U.S. 194, 20 1 (20 0 1). Courts m ay exercise discretion in deciding which of the two prongs of the qualified im m unity analysis should be addressed first in light of the circum stances in the particular case at hand. Pearson v. Callahan, 555 U.S. 223, 236 (20 09). This doctrin e “balances two im portant interests—the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassm ent, distraction, and liability when they perform their duties reasonably” and it “applies regardless of whether the governm ent official’s error is a m istake of law, a m istake of fact, or a m istake based on m ixed questions of law and fact.” Id. (internal quotation om itted). Properly applied, qualified im m unity “protects ‘all but the plainly incom petent or those who knowingly violate the law.’” Ashcroft v. al-Kidd, 131 S. Ct. 20 74, 20 8 5 (20 11) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). For a right to be clearly established, “[t]he contours of the right m ust be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Saucier, 533 U.S. at 20 2 (quoting Anderson v. Creighton, 483 U.S. 19 635, 640 (1987)). That is, “[t]he relevant, dispositive inquiry in determ ining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Couden v. Duffy, 446 F.3d 483, 492 (20 0 6). “If the officer’s m istake as to what the law requires is reasonable,” the officer is entitled to qualified im m unity. Couden, 446 F.3d at 492 (internal citations om itted). Further, “[i]f officers of reasonable com petence could disagree on th[e] issue, im m unity should be recognized.” Malley, 475 U.S. at 341 (1986). See also Brosseau v. Haugen, 543 U.S. 194, 198 (20 0 4) (The general touchstone is whether the conduct of the official was reasonable at the tim e it occurred.) Finally, because qualified im m unity is an affirm ative defense, the burden of proving its applicability rests with the defen dant. See Beers-Capital v. Whetzel, 256 F.3d 120 , 142, n.15 (3d Cir. 20 0 1). The Court finds that there are questions of fact, related to whether the officers’ conduct was objectively reasonable in light of the situation confronting them which preclude qualified im m unity from attaching at this tim e. Stone testifies that in addition to Veneziale’s verbal uncooperativeness, Ven eziale appeared to “square up” to him “as if he were about to fight[.]” Stone Dep., ¶ 17. Sgt. Wilson, on the other hand, did not observe Plaintiff “square up” or take any fighting position, but instead claim s that Veneziale attem pt to walk away. Wilson Dep. ¶ 16. Because the video depicts only an audio account of the force used, there are credibility determ inations related to the series of events that caused Veneziale’s fall and underscore the nature of the force used. Even if Veneziale “squared up,” a reasonable jury could conclude that the force used was excessive. Qualified im m unity does not attach under the circum stances of this case. Sum m ary judgm ent is denied. 20 C. Failure to Train Finally, sum m ary judgm ent is granted as to County IV, a claim of failure to train against the State of New J ersey. The United States Suprem e Court has held that “neither a State nor its officials acting under their official capacities are ‘persons' under § 198 3.” Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989). See also Didiano v. Balicki, 488 Fed. Appx. 634, 638 (3d Cir. 20 12) (finding state prison and its adm in istrator in her official capacity, as arm s of the state, did not fall within the definition of a “person” for purposes of the New J ersey Civil Rights Act; statutory definition explicitly stated that the word “person” included the State of New J ersey only in the lim ited circum stance of certain property disputes, which were not applicable). As such, an em ployee of the state nam ed as a defendant in a civil rights action m ay be held liable only if that person has personal involvem ent in the alleged wrongs and is sued in their personal capacity. See Hafer v. Melo, 50 2 U.S. 21, 31 (1991) (“state officials, sued in their individual capacities, are ‘persons' within the m eaning of § 1983”). Liability under § 198 3 m ay not be based on the doctrine of respondeat superior. See Durm er v. O'Carroll, 991 F.2d 64, 69 n.14 (3d Cir. 1993). Sum m ary judgm ent is granted as to Count IV, which is plead against only the State of New J ersey, because the State is not a “person” subject to suit under § 1983. IV. Co n clu s io n For the reasons stated on the record and those set forth above, sum m ary judgem ent is granted in favor of Defendants as to Counts IV (failure to train), V (false arrest), and VI (false im prisonm ent). Sum m ary judgm ent is den ied as to Count I, which alleges a claim of excessive force against the individual police officers Stone and Wilson. 21 An appropriate Order shall issue. Dated: J une 25, 20 18 s/ J oseph H. Rodriguez Hon. J oseph H. Rodriguez, UNITED STATES DISTRICT J UDGE 22
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