EVER N HERNANDEZ v. STATE OF NEW JERSEY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

EVER N. HERNANDEZ,

Plaintiff-Appellant,

v.

STATE OF NEW JERSEY, NEW JERSEY

STATE POLICE (A DIVISION OF THE

STATE OF NEW JERSEY/DEPARTMENT

OF LAW AND PUBLIC SAFETY),

Defendants,

and

ERIC M. MAURO,

Defendant-Respondent.

___________________________________

September 29, 2015

Argued March 2, 2015 Decided

Before Judges Lihotz and Rothstadt.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-292-12.

Diego F. Navas argued the cause for appellant.

Thomas C. Bigosinski argued the cause for respondent (McElroy, Deutsch, Mulvaney & Carpenter, L.L.P., attorneys; Mr. Bigosinski, of counsel and on the brief).

The opinion of the court was delivered by

ROTHSTADT, J.A.D.

Plaintiff, Ever N. Hernandez, appeals from the Law Division's entry of summary judgment in favor of defendant, Eric M. Mauro, a New Jersey State Trooper, dismissing plaintiff's complaint. His complaint sought damages arising from his arrest and incarceration after defendant stopped a vehicle occupied by plaintiff and two other individuals. The arrest occurred when plaintiff, who was born in El Salvador, presented defendant with a non-government issued document, which contained pedigree information and was labeled an international driver's license. Plaintiff confirmed he presented the document as his identification and was arrested by defendant for exhibiting a false driver's license, a violation of N.J.S.A. 2C:21-2.1(c).

After spending months in jail and ultimately pleading guilty to a motor vehicle offense in exchange for dismissal of the criminal charge, plaintiff filed this action claiming he was arrested without probable cause, maliciously prosecuted, and subjected to discrimination, all in violation of federal law, 42 U.S.C.A. 1983 (Section 1983), the New Jersey Civil Rights Act (CRA), N.J.S.A. 10:6-1 to -2, and the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49.1 On summary judgment, the motion judge found defendant had probable cause to arrest plaintiff; defendant's objectively reasonable actions entitled him to qualified immunity against plaintiff's Section 1983 and CRA claims; plaintiff failed to demonstrate any necessary element of a malicious prosecution claim; and defendant's conduct lacked discriminatory intent, as required to establish an LAD violation.

On appeal, plaintiff argues the Law Division should not have granted summary judgment because defendant lacked probable cause to effectuate his arrest, defendant s objectively unreasonable actions prohibited entitlement to qualified immunity, and material issues of fact existed on each cause of action. Plaintiff also seeks restoration of his punitive damages claim. Defendant disagrees and contends no issues of material fact existed and he acted without malice. Defendant further asserts his objectively reasonable actions justified entitlement to qualified immunity and, even absent immunity, he had probable cause to arrest plaintiff.

We have considered these arguments in light of our review of the record and applicable legal principles. We affirm.

We discern the following facts and procedural history from the record, viewed in the light most favorable to plaintiff, the non-moving party. Robinson v. Vivirito, 217 N.J. 199, 203 (2014) (citations omitted). On January 15, 2010, plaintiff and another Spanish-speaking male were passengers in a pickup truck driven by plaintiff s co-worker, a Hispanic male. Defendant effectuated the vehicle s stop because it displayed a business advertisement without commercial license plates, a violation of N.J.S.A. 39:3-8.1, and had a broken taillight, a violation of N.J.S.A. 39:3-66.

During the stop, defendant observed plaintiff not wearing his seat belt and requested his identification. Plaintiff presented a document entitled "International Driver's License"2 and "Membership Card," which contained his photograph, name, address, birthplace, birthdate, physical characteristics, and signature. The document bore issuance and expiration dates and included a logo of the issuing entity, the International Automobile Drivers Company (IADC), but did not reference a government entity.

Plaintiff never previously provided the document to law enforcement, and had acquired it because his New Jersey driver's license expired and El Salvadorian passport "was about to expire." An IADC employee had advised plaintiff the document was not a valid driver's license, but was "valid for identification."

After receiving the document, defendant asked plaintiff whether it was his identification and being presented as such.3 Defendant also inquired whether plaintiff had any other forms of identification, to which plaintiff responded he did not.

This was not the first time defendant had seen this type of document, as he previously attended a training program entitled "Document Fraud for Law Enforcement," which was presented by the New Jersey Motor Vehicle Commission (MVC) and the New Jersey Division of Criminal Justice. There, defendant received handouts entitled "Identifying Counterfeit Identity Documents" and "Training: Document Fraud for Law Enforcement." One page of the training materials contained a copy of a slide of a "Non-Valid International D.L." showing licenses issued by organizations including "IADC," which was stated to be a non-governmental entity. Defendant also previously arrested an individual in similar situations "[a]t least one [other] time."

Based on his training and experience, defendant arrested plaintiff and charged him with having "knowingly uttered a document, specifically by a fictitious governmental agency, which could be used as a means of identification of a person's identity," contrary to N.J.S.A. 2C:21-2.1(c), a third degree crime.4 Defendant believed because the document "purport[ed] to be an international driver's license, it also purport[ed] to be issued by a government entity." He identified the IADC was likely the document's issuing entity, but recognized the IADC was not a government agency.

Defendant suspected plaintiff may have been an undocumented alien based on an expired license found during a search incident to his arrest. The license indicated plaintiff was a non-resident alien, so defendant contacted the United States Immigration and Customers Enforcement agency (ICE), in accordance with an attorney general directive. During the stop, defendant never asked plaintiff about his immigration status, insulted plaintiff, or made derogatory remarks regarding individuals of Hispanic descent. Rather, defendant acted in a respectful and appropriate manner. Defendant had no further contact with plaintiff after the date of his arrest.

Information about defendant's training was supplied by Joseph Vasil, the coordinator of MVC Security Investigations assigned to the Fraudulent Document Training Unit, who developed and led defendant's training program. Heexplained foreign nationals who wish to drive in the United States are able to obtain in their home country a valid international driver s permit, which contains a translation of their driver s license into the nine different languages of the United Nations. In contrast, Vasil deemed plaintiff's IADC license to be a "novelty" license because the issuing entity cannot be clearly identified as a government agency, likening it to buying "a license as a back seat driver" inasmuch as it was an invalid form of identification. Vasil also clarified the difference between a counterfeit document "something taken from a genuine to make it look like genuine" and a non-valid document "something . . . issued by a non-governmental agency." Vasil confirmed he included in his training that IADC issued documents are not obtained from a government entity and expressly provide they are "non-government issued."

After his arrest, plaintiff did not post bail as he initially chose not to contact any relatives. He also did not speak to a lawyer or appear before a judge for four months. He remained in the Middlesex County jail until June 14, 2010, when he was transferred to the Hudson County jail and spent an additional eight days as a result of a warrant related to outstanding child support. After subsequently being held for another five days by ICE, plaintiff was released upon his father posting his bail. Plaintiff's false document charge was eventually dismissed pursuant to his guilty plea for failure to wear a seat belt, in violation of N.J.S.A. 39:3-76.2f.

In his ensuing complaint, plaintiff alleged defendant's actions related to his ethnicity. However, he later conceded "not hav[ing] any facts []or documents aside from the obvious fact that he is a Hispanic male to support the claim of racial discrimination."

The motion judge considered defendant's summary judgment motion, including the parties' oral arguments. The judge granted defendant's motion, finding defendant had probable cause to arrest plaintiff and, in any event, was entitled to qualified immunity against plaintiff's claims. In analyzing N.J.S.A. 2C:21-2.1(c), the judge stated

[A] violation occurs when an individual 1) knowingly exhibits, displays or utters a document that 2) falsely purports to be a driver's license, birth certificate or other document issued by a governmental agency, and that 3) could be used as a means of verifying a person's identity or age or any other personal identifying information.

The judge noted it was "undisputed that plaintiff['s conduct] satisfied elements one and three," and found the circumstances supported finding "probable cause to arrest plaintiff for [his] violation of N.J.S.A. 2C:21-2.1(c) . . . [because] defendant reasonably believed that plaintiff was in violation of the statute" at the time of arrest. In so finding, the judge considered defendant's training in document identification and IADC licenses being non-government issued. He concluded probable cause existed, but even if it did not, "there [were] no facts . . . lead[ing] to the conclusion that an objectionably reasonable police officer would not have believed" it existed.

Additionally, the judge found defendant was entitled to qualified immunity because a "reasonable police officer could believe probable cause existed to effectuate the arrest" when confronted with an invalid identification as presented by plaintiff. The judge further concluded plaintiff failed to prove the requisite elements of a malicious prosecution, LAD, and CRA claim. The judge explained, as to the alleged LAD violation, there were no facts in the record to establish any type of discriminatory conduct by defendant and "plaintiff has not put forth any genuine issue of material fact that he was deprived of a right or that his rights were interfered with by threats, intimidation, coercion, or force in violation of the [CRA]." Accordingly, the judge entered an order granting the motion. This appeal followed.

We begin by reciting the settled principles guiding our review of a summary judgment order. We review the disposition of a summary judgment motion de novo, applying the same standard used by the motion judge under Rule 4:46-2(c). Townsend v. Pierre, 221 N.J. 36, 49, 59 (2015); Davis v. Brickman Landscaping, Ltd., 219 N.J.395, 405-06 (2014). Therefore, we must analyze "the competent evidential materials submitted by the parties to identify whether there are genuine issues of material fact and, if not, whether the moving party is entitled to summary judgment as a matter of law." Bhagat v. Bhagat, 217 N.J.22, 38 (2014) (citing Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)). In so doing, we consider all facts in a light most favorable to the non-movant,Town of Kearny v. Brandt, 214 N.J. 76, 91 (2013), determining "whether the evidence presents a sufficient disagreement to require submission to a jury or . . . is so one-sided that one party must prevail as a matter of law." Brill, supra, 142 N.J. at 536 (citation and internal quotation marks omitted).

"Purely legal questions . . . are questions of law [22] particularly suited for summary judgment." Badiali v. N.J. Mfrs. Ins. Group, 220 N.J. 544, 555 (2015) (citation omitted); see alsoWildoner v. Borough of Ramsey, 162 N.J.375, 387 (2000) (noting "a defendant s entitlement to qualified immunity is a question of law to be decided . . . preferably on a properly supported motion for summary judgment or dismissal"). In our de novo review of questions of law, we accord no deference to the motion judge s "interpretation of the law and the legal consequences that flow from established facts." Manahawkin Convalescent v. O'Neill, 217 N.J. 99, 115 (2014); see also Selective Ins. Co. of Am. v. Hudson E. Pain Mgmt., 210 N.J.597, 605 (2012) (explaining when competing claims require us to "construe certain statutory provisions . . . [a] de novo standard of review applies").

The first count of plaintiff s complaint against defendant seeks relief under Section 1983, alleging violations of his constitutional rights. The complaint s fifth count seeks relief pursuant to the CRA, likewise asserting violations of his constitutional rights. Plaintiff contends the trial court erred in its legal conclusion entitling defendant to qualified immunity against these claims. We find no merit to his challenge.

"Section 1983 is not itself a source of substantive [40] rights, but rather a vehicle by which [federal] rights [elsewhere] conferred . . . may be vindicated." Tumpson v. Farina, 218 N.J. 450, 475 (2014) (citations omitted). To establish a claim under Section 1983, a plaintiff must show the defendant, typically a public official, "acted under color of state law and deprived him [or her] of a well-established federal constitutional or statutory right." Wildoner, supra, 162 N.J. at 385. New Jersey s analogue to Section 1983 is the CRA, Morillo v. Torres, 222 N.J. 104, 107-08 (2015), which provides a remedy for not only the violation of federal rights but also the violation of "substantive rights guaranteed by New Jersey s Constitution and laws." Gormley v. Wood-El, 218 N.J.72, 97 (2014); seeTumpson, supra, 218 N.J. at 474 (recognizing the CRA "is intended to provide what Section 1983 does not: a remedy for the violation of substantive rights" secured by our State (citations omitted)).

The doctrine of qualified immunity, which extends to actions under Section 1983 and the CRA, "shields law enforcement officers from personal liability for civil rights violations when the officers are acting under color of law in the performance of official duties." Morillo, supra, 222 N.J. at 107-08. For purposes of analyzing qualified immunity when advanced by a police officer against claims under the CRA and Section 1983, "the examination for both is the same." Id. at 116 (citing Gormley, supra, 218 N.J.at 113-15). Therefore, "we do not differentiate between those claims . . . [in] our examination of [defendant s] asserted affirmative defense" of qualified immunity. Ibid.

Qualified immunity insulates "'government officials performing discretionary functions generally . . . from liability . . . insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Ibid. (first alteration in original) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396, 410 (1982)). This exacting standard "interposes a significant hurdle for plaintiffs seeking to recover for asserted violations of civil rights at thehands of law-enforcement," ibid., as it accords "government officials breathing room to make reasonable but mistaken judgments by protect[ing] all but the plainly incompetent or those who knowingly violate the law." City & Cnty. of San Francisco v. Sheehan, ___ U.S. ___, ___, 135 S. Ct. 1765, 1774, 191 L. Ed. 2d 856, 867 (2015) (alteration in original) (citation and internal quotation marks omitted). The doctrine is applied "to civil rights claims brought against law enforcement officials engaged in their discretionary functions, including arresting or charging an individual based on probable cause to believe that a criminal offense has occurred." Morillo, supra, 222 N.J. at 117 (citations omitted).

Our determination of "[w]hether a police officer is entitled to qualified immunity . . . [requires] application of a two-prong test." Ibid. (citing Wood v. Moss, ___ U.S. ___, ___, 134 S. Ct. 2056, 2066-67, 188 L. Ed. 2d 1039, 1051 (2014)). The first prong considers "whether the facts alleged, '[t]aken in the light most favorable to the party asserting the injury,' show that the challenged conduct violated a statutory or constitutional right." Id. at 117-18 (alteration in original) (quoting Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 2156, 150 L. Ed. 2d 272, 281 (2001), and Wood, supra, ___ U.S. at ___, 134 S. Ct.at 2067, 188 L. Ed.2d at 1051). The second prong analyzes "'whether the right was clearly established.'" Id. at 118 (quoting Saucier, supra, 533 U.S.at 201, 121 S. Ct.at 2156, 150 L. Ed.2d at 281). In conducting this test, we are "free to address the two prongs in any order." Ibid.(citation omitted).

"The dispositive point in determining whether a right is clearly established is whether a reasonable officer in the same situation clearly would understand that his [or her] actions were unlawful." Ibid. (citing Saucier, supra, 533 U.S. at 202, 121 S. Ct. at 2156, 150 L. Ed. 2d at 282). "Law enforcement officers are not entitled to immunity 'if, on an objective basis, it is obvious that no reasonably competent officer would have concluded that a warrant should issue.'" Ibid. (quoting Wildoner, supra, 162 N.J. at 386).

Therefore, a law enforcement officer is permitted to defend against claims of unlawful arrest "'by establishing either that he or she acted with probable cause, or, even if probable cause did not exist, that a reasonable police officer could have believed in its existence.'" Id. at 118-19 (quoting Kirk v. Newark, 109 N.J.173, 184 (1988)). When "'officers of reasonable competence could disagree on the issue of probable cause, the doctrine of qualified immunity should be applied.'" Id. at 119 (quoting Connor v. Powell, 162 N.J.397, 409, cert. denied, 530 U.S. 1216, 120 S. Ct. 2220, 147 L. Ed. 2d 251 (2000)). Notably, when probable cause is not found and the motion judge is tasked to decide "whether a reasonable law enforcement officer would have believed that probable cause to arrest or charge did exist," the judge must determine "'whether the defendant has proven by a preponderance of the evidence that his or her actions were reasonable under the particular facts.'" Ibid.(quoting Schneider v. Simonini, 163 N.J.336, 360 (2000), cert. denied, 531 U.S. 1146, 121 S. Ct. 1083, 148 L. Ed. 2d 959 (2001)).

Accordingly, in properly resolving the legal issue of whether defendant has successfully asserted qualified immunity against plaintiff s claims, Wildoner, supra, 162 N.J.at 387, our analysis under the second prong focuses on whether defendant acted objectively reasonable in arresting plaintiff for exhibiting a false driver's license, in violation of N.J.S.A. 2C:21-2.1(c). See Morillo, supra, 222 N.J. at 120.

Assuming defendant lacked probable cause to arrest plaintiff, we conclude while plaintiff's arrest could be construed to be in violation of his constitutional rights, defendant meets the second prong. Seeid.at 118-19; Schneider,supra, 163 N.J.at 360. As noted, defendant observed plaintiff not wearing a seat belt and requested his identification. The document plaintiff presented as identification bore an IADC logo, which reasonably suggested to defendant, based on his training, was a "novelty" license issued by a non-governmental entity. Even if, as plaintiff asserts, N.J.S.A. 2C:21-2.1(c)requires a government agency to issue the false license at issue, defendant's mistake as to the statutorily required elements was reasonable, thus entitling him to the affirmative defense of qualified immunity. See Morillo, supra, 222 N.J. at 118-19.

Accordingly, we have no cause to disturb the motion judge's determination of defendant's entitlement to qualified immunity.

We also agree with the motion judge that even if immunity did not apply, plaintiff's claims were not sustainable because defendant acted under a reasonable belief that he had probable cause to arrest plaintiff. "Probable cause exists if at the time of arrest 'thefacts and circumstances within [the officer's] knowledge and of which [the officer] had reasonably trustworthy information were sufficient to warrant a prudent man [or woman] in believing that the [suspect] had committed or was committing an offense.'" Wildoner, supra, 162 N.J.at 389 (first and fourth alteration in original) (quoting Beck v. Ohio, 379 U.S. 89, 91, 85 S. Ct. 223, 225, 13 L. Ed. 2d 142, 145 (1964)).

Plaintiff asserts defendant lacked probable cause to effectuate his arrest because "the thrust of [N.J.S.A. 2C:21-2.1(c)] is to . . . criminal[ize] . . . simulat[ing] an official government document," which does not implicate his presentation of the document. While plaintiff acknowledges there is no dispute the document is invalid as identification, he contends it does not "rise to the definition" set forth in the statute. He argues these deficiencies highlight "a difference of opinion" regarding the existence of probable cause such that summary judgment was improperly entered. Critically, plaintiff's arguments are advanced on the premise that the document "purport[ing] to be issued by a government agency" is a showing required by the statute. Defendant disagrees and argues plaintiff s statutory interpretation is incorrect, averring a violation of the statute does not require the false document purport to be issued by a government agency. Defendant asserts he therefore had probable cause to arrest plaintiff. We conclude, notwithstanding whether defendant was entitled to qualified immunity, he had probable cause to effectuate plaintiff's arrest.

As plaintiff s position requires us to construe N.J.S.A. 2C:21-2.1(c), we review the statute with "the goal of . . . ascertain[ing] and effectuat[ing] the Legislature's intent." State v. Olivero, 221 N.J. 632, 639 (2015) (citations omitted). In so doing, we are directed to

first look to the plain language of the statute, "which is typically the best indicator of intent." In re Plan for the Abolition of the Council on Affordable Hous., 214 N.J.444, 467 (2013). Statutory language is to be interpreted "in a common sense manner to accomplish the legislative purpose." N.E.R.I. Corp. v. New Jersey Highway Auth., 147 N.J.223, 236 (1996). When that language "'clearly reveals the meaning of the statute, the court's sole function is to enforce the statute in accordance with those terms.'" McCann v. Clerk of Jersey City, 167 N.J.311, 320 (2001) (quoting SASCO 1997 NJ, LLC v. Zudkewich, 166 N.J.579, 586 (2001)).

However, "[i]f the plain language of a statute is not clear or if it is susceptible to more than one plausible meaning," the Court may look to extrinsic evidence such as legislative history to determine legislative intent. Marino v. Marino, 200 N.J.315, 329, (2009). In discerning legislative intent, the Court may consider "not only the particular statute in question, but also the entire legislative scheme of which it is a part." Kimmelman v. Henkels & McCoy, Inc., 108 N.J.123, 129 (1987).

[Where a] statute is penal[,] it must . . . be strictly construed. State v. D.A., 191 N.J.158, 164 (2007). "The strict construction doctrine, and its corollary, the doctrine of lenity, mean[] that words are given their ordinary meaning and that any reasonable doubt . . . is decided in favor of [the defendant.]" Ibid.(quotation omitted). The rule of lenity, however, is not invoked simply because there are competing judicial interpretations of the statutory language. "It does not invariably follow, that every time someone can create an argument about the meaning of a penal sanction, the statute is impermissibly vague, or that the lowest penalty arguably applicable must be imposed." State v. Regis, 208 N.J.439, 452 (2011). Instead, the rule of lenity is applied only if a statute is ambiguous, and that ambiguity is not resolved by a review of "all sources of legislative intent." [D.A., supra, 191 N.J.at 165]. "A court may look to extrinsic evidence to clarify an ambiguity and divine legislative intent in the context of a penal statute." Ibid.

[Olivero, supra, 221 N.J.at 638-40 (first, fifth, and sixth alterations in original).]

Applying these principles, we conclude the language of N.J.S.A. 2C:21-2.1(c) is not ambiguous and, when read in a "common sense manner,"Olivero, supra, 221 N.J.at 639, focuses on penalizing a person's conduct without regard to the origin of the subject document provided in response to an officer's request. The statute's plain language does not read, as plaintiff purports, "falsely purports to be a driver's license issued by a governmental agency"; rather, it explicitly states "falsely purports to be a driver's license, . . . or other document issued by a governmental agency." N.J.S.A.2C:21-2.1(c); seeOlivero, supra, 221 N.J.at 639. To be guilty of exhibiting a false license, the statute does not require the "license" be government issued. SeeN.J.S.A.2C:21-2.1(c). Moreover, even though the IADC is not a government agency, the document nevertheless appears to be a driver's license.

As we have recently observed concerning other portions of the statute, it mandates

proof that the document or writing possessed or made by [a criminal] defendant is of a kind "which falsely purports" to be a driver's license, birth certificate, or some other document issued by a governmental agency that could be used for identification purposes. N.J.S.A.2C:21-2.1(b) and (d) (emphasis added). Inanimate objects do not "purport" to do anything; people do. The statute thus clearly is targeted at defendants who "knowingly" possess or make forms of identification that are of a kind deliberately fashioned by a person whether it be defendant himself or a third party in a manner designed to "falsely purport" that those items are legitimate, government-issued forms of identification.

[State v. Borjas, 436 N.J. Super.375, 391 (App. Div.) (second emphasis added), certif. denied, 220 N.J.208 (2014).]

Upon producing the IADC license as his identification, plaintiff "falsely purported" to a law enforcement officer the document was a legitimate form of identification, namely his driver's license. The document contained many characteristics of a driver's license its size, pedigree information, issued and expiration dates, and inclusion of the bearer's signature which indicated plaintiff produced the document intending defendant's reliance on it as plaintiff's driver's license and identification.

Under these circumstances, we conclude defendant had probable cause to believe plaintiff violated N.J.S.A.2C:21-2.1(c) and, therefore, entry of summary judgment was appropriate. SeeAlfano v. Schaud, 429 N.J. Super.469, 478 (App. Div.) (holding summary judgment is appropriate when an officer s actions were objectively reasonable), certif. denied, 214 N.J.119 (2013).

The presence of probable cause also justified the motion judge's dismissal of plaintiff's claim for malicious prosecution, which is subsumed in the first and fifth counts of plaintiff's complaint. Malicious prosecution provides a remedy for harm caused by the institution or continuation of a criminal action that is baseless. LoBiondo v. Schwartz, 199 N.J. 62, 89 (2009). To prove a malicious prosecution claim, a plaintiff must establish "(1) a criminal action was instituted by this defendant against this plaintiff; (2) the action was motivated by malice; (3) there was an absence of probable cause to prosecute; and (4) the action was terminated favorable to the plaintiff." Id.at 90 (citing Lind v. Schmid, 67 N.J.255, 262 (1975)). Further, "each element must be proven, and the absence of any . . . element[] is fatal to the success[]" of the claim. Ibid.(citations omitted).

Plaintiff argues summary judgment on his malicious prosecution claim was improperly granted because he demonstrated the first and fourth required elements and the remaining elements should be decided by a jury. We disagree.

Defendant is entitled to summary judgment, not only because of his immunity discussed above, but also because plaintiff has failed to demonstrate "the existence of the necessary elements to sustain a malicious prosecution claim." Van Engelen v. O'Leary, 323 N.J. Super. 141, 156 (App. Div.), certif. denied, 162 N.J. 486 (1999). Even if we accept the first and fourth elements as established, plaintiff is unable to prove the remaining elements, as he fails to show defendant's actions were "actuated by malice." Ibid. (internal quotation marks omitted). As previously explained, we are satisfied plaintiff was arrested with probable cause.5 See Lind, supra, 67 N.J. at 263 (explaining "[t]he essence of the cause of action is lack of probable cause, and the burden of proof rests on the plaintiff . . . [to] establish a negative, namely, that probable cause did not exist"). As "two of the four critical elements of the asserted cause of action [are] missing, there [is] no basis to maintain the complaint and thus, for that reason as well, summary judgment" is appropriate. Van Engelen, supra, 323 N.J. Super. at 156.

We reach the same conclusion as to the fourth count of plaintiff's complaint, which alleges defendant's violation of the LAD. As previously noted, the motion judge dismissed this claim because there was no evidence of any discriminatory conduct by defendant. Arguing to the contrary, plaintiff contends defendant s discriminatory intent is inferred from "circumstances surrounding the arrest." He posits "defendant was well aware that he was dealing with an undocumented alien" and was required to have plaintiff contact immigration authorities following the charge of a third degree violation. Plaintiff further contends the lack of probable cause evidences defendant s intent "to discriminate against the plaintiff due to his Hispanic background and nationality and that he knew his actions might result in the deportation of plaintiff." We find no merit to these arguments.

The LAD prohibits discrimination based on an individual s race or origin, N.J.S.A.10:5-3, and requires proof of an intent to discriminate. SeeEl-Sioufi v. St. Peter's Univ. Hosp., 382 N.J. Super. 145, 179 (App. Div. 2005) (noting "because . . . the invidious nature of discrimination . . . may [make it] possible to infer an intent to discriminate, not every offensive remark, even if direct, is actionable").

Plaintiff not only fails to present any evidence of defendant's intent to discriminate, but concedes "the trial court was correct in pointing out that the defendant did not use any racial slurs[,] degrade the plaintiff[,] or do anything obviously discriminatory." Indeed, plaintiff admitted lacking facts and support other than his understood heritage to support a claim of discrimination. Plaintiff further recognizes defendant acted respectfully and appropriately while he arrested plaintiff, which is corroborated by the stop's video recording. Also, as indicated by the motion judge, the other passengers accompanying plaintiff both spoke Spanish, yet were released without incident As the motion judge correctly concluded, "at no time was there any indication that defendant displayed any intent to discriminate based on race or national origin." SeePetersen v. Twp. of Raritan, 418 N.J. Super. 125, 132 (App. Div. 2011). There was no reason to deny entry of summary judgment based on plaintiff's bare conclusions lacking factual support. Seeibid.

Insofar as plaintiff seeks restoration of his punitive damages claim, he is without redress because of defendant's entitlement to qualified immunity and the existence of probable cause to arrest. See Bernstein v. State, 411 N.J. Super. 316, 335 (App. Div. 2010) (finding "insufficient evidence to present a claim for punitive damages to the jury" because plaintiff "failed to establish [requisite conduct] for [his] tort claims[] or a constitutional violation under [Section] 1983").

We conclude the motion judge correctly entered summary judgment in favor of defendant and properly dismissed plaintiff's complaint.

Affirmed.

1 Stipulations of dismissal were entered on the second and third counts of plaintiff's complaint against Mauro and all claims against defendants State of New Jersey and New Jersey State Police.

2 This designation is stated in several languages.

3 A dashboard camera recorded the parties' interaction.

4 The statute provides, in pertinent part

A person who knowingly exhibits, displays or utters a document or other writing which falsely purports to be a driver s license, birth certificate, or other document issued by a governmental agency and which could be used as a means of verifying a person s identity or age or any other personal identifying information is guilty of a crime of the third degree.

[N.J.S.A. 2C:21-2.1(c).]

5 Plaintiff cannot establish the fourth element on the basis of the charge's dismissal pursuant to his guilty plea, as the dismissal does not constitute successful termination in his favor. See Mondrow v. Selwyn, 172 N.J. Super. 379, 384-85 (App. Div.) ("If the charge is withdrawn or the prosecution abandoned pursuant to an agreement of compromise with the accused, the termination is viewed as indecisive and insufficient to support the cause of action. Having compromised for his [or her] peace in the criminal proceeding, the accused may not later contend that the proceedings terminated in his [or her] favor") (citations omitted), certif. denied, 84 N.J. 449 (1980).