MICHAEL LANG v. CITY OF JERSEY CITY DEPUTY POLICE
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0654-16T1
MICHAEL LANG,
Plaintiff-Respondent,
v.
CITY OF JERSEY CITY,
DEPUTY POLICE, and
CHIEF ROBERT COWAN,
Defendants,
and
CAPTAIN TOMMY COWAN,
Defendant-Appellant.
________________________________
Argued October 11, 2017 – Decided June 4, 2018
Before Judges Yannotti, Carroll, and Leone.
On appeal from Superior Court of New Jersey,
Law Division, Hudson County, Docket No.
L-3478-14.
Eric Magnelli argued the cause for appellant
(Brach Eichler LLC, attorneys; Matthew M.
Collins, of counsel and on the briefs; Eric
Magnelli, on the briefs).
Louis A. Zayas argued the cause for respondent
(Law Offices of Louis A. Zayas, LLC,
attorneys; Louis A. Zayas, of counsel and on
the brief).
PER CURIAM
Defendant Thomas Cowan appeals an August 31, 2016 order
denying summary judgment as to the remaining two counts of a
complaint brought by plaintiff, Officer Michael Lang. We granted
leave to appeal, and now reverse and remand for entry of summary
judgment.
I.
The following facts are undisputed and are taken from the
complaint and answer, the parties' statements of material facts,
and the documentary record.
Plaintiff is a patrol officer in the Police Department of the
City of Jersey City. At the time of the June 9, 2013 incident,
Thomas Cowan (pled as "Tommy Cowan") was a Captain in the
Department (hereinafter "Captain Cowan"). His brother, defendant
Robert Cowan (pled as "Deputy Police, and Chief Robert Cowan"),
was a Deputy Chief of the Department, later promoted to Chief
(hereinafter "Chief Cowan").
On June 8, 2013, plaintiff worked an evening shift that ended
between 10:00 p.m. and midnight, and then went to a tavern.
Beginning in the evening hours of June 8 and continuing into the
2 A-0654-16T1
pre-dawn hours of June 9, plaintiff consumed alcoholic beverages.
He could not remember the type or amount he consumed. He was
unable to remember what time he left the tavern, or the number or
identity of the bartenders. Plaintiff estimated he left the tavern
no earlier than 2:28 a.m. on June 9.
A surveillance video from a BP gas station showed plaintiff
driving his vehicle into the station's lot at approximately 3:17
a.m. Plaintiff engaged in a conversation with a cab driver.
Plaintiff had no recollection of the conversation and could not
identify any person shown on the video.
Plaintiff drove his vehicle out of the BP station at 3:26
a.m. He may have gone to his nearby home but only to park
momentarily in his driveway before he returned to the BP station
at 3:27 a.m.
Plaintiff entered the BP station's convenience store. He had
a confrontation with two female customers. They engaged in a
discussion which appeared to become heated on the surveillance
video. During this discussion, he was assaulted from behind by a
male customer who pushed or struck him with sufficient force that
he knocked over a candy display, hit his head on the wall, and was
taken to the floor inside the convenience store. Plaintiff drew
his firearm and pointed it at the male.
3 A-0654-16T1
Jersey City police officers arrived. A sergeant recognized
plaintiff was a police officer. A lieutenant arrived. Plaintiff
explained to the lieutenant and the sergeant that he had been
assaulted.
Captain Cowan arrived. He did not speak to plaintiff. The
lieutenant and sergeant, at the direction of Captain Cowan, charged
plaintiff with driving while intoxicated (DWI),
N.J.S.A. 39:4-50.
Plaintiff was transported from the BP station to the police
department to obtain a breathalyzer test. He refused to submit
to a test, and was charged with refusal to submit to a breath
test,
N.J.S.A. 39:4-50.2. The male assailant was charged with
simple assault.
In an informal departmental proceeding, plaintiff was found
guilty of using intoxicants while off-duty to a degree as to
discredit the police department. He lost three days of
comp/vacation time.
The Weehawken Municipal Court dismissed the DWI and refusal
charges after police officers would not cooperate with the
prosecutor and repeatedly failed to appear to testify.
Plaintiff filed a complaint in the Law Division against the
City, Captain Cowan, and Chief Cowan, alleging they violated the
4 A-0654-16T1
New Jersey Civil Rights Act (CRA),
N.J.S.A. 10:6-1 to -2.1 The
five counts alleged defendants violated the CRA by (1) retaliating
against him for his political affiliation, (2) "municipal
liability," (3) malicious prosecution, (4) false arrest, and (5)
abuse of process.
Defendants moved for summary judgment. In opinions and orders
dated August 31, 2016, the trial court dismissed all the counts
against the City and Chief Cowan. Regarding Captain Cowan, the
court dismissed the counts charging (1) retaliation, (2) municipal
liability, and (5) abuse of process. The court denied summary
judgment on the counts charging Captain Cowan with (3) malicious
prosecution and (4) false arrest. We granted Captain Cowan's
motion for leave to appeal that denial of summary judgment.
II.
"In reviewing a grant or denial of summary judgment, an
appellate court is bound by the same standard as the trial court
under Rule 4:46-2(c)." State v. Perini Corp.,
221 N.J. 412, 425
(2015). Summary judgment must be granted if "the pleadings,
depositions, answers to interrogatories and admissions on file,
together with affidavits, if any, show that there is no genuine
issue as to any material fact challenged and that the moving party
1
Plaintiff's complaint mistakenly cited "
N.J.S.A. 10:5-1 et seq.,"
which is the Law Against Discrimination.
5 A-0654-16T1
is entitled to a judgment or order as a matter of law." R. 4:46-
2(c). The court must "consider whether the competent evidential
materials presented, when viewed in the light most favorable to
the non-moving party, 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, 540 (1995). "[T]he court must accept as true all the
evidence which supports the position of the party defending against
the motion and must accord [that party] the benefit of all
legitimate inferences which can be deduced therefrom[.]" Id. at
535 (citation omitted).
"Our review of a summary judgment ruling is de novo." Conley
v. Guerrero,
228 N.J. 339, 346 (2017). We must hew to that
standard of review.
III.
The CRA provides that a "person who has been deprived of any
substantive due process or equal protection rights, privileges or
immunities secured by the Constitution or laws of the United
States, or . . . the Constitution or laws of this State, . . . may
bring a civil action for damages and for injunctive or other
appropriate relief."
N.J.S.A. 10:6-2(c). The CRA "is a means of
vindicating substantive rights and is not a source of rights
itself." Gormley v. Wood-El,
218 N.J. 72, 98 (2014). The CRA "is
6 A-0654-16T1
modeled off of the analogous Federal Civil Rights Act, 42 U.S.C.A.
§ 1983," and thus cases applying "[s]ection 1983 may provide
guidance in construing our Civil Rights Act." Tumpson v. Farina,
218 N.J. 450, 474 (2014).
Plaintiff claims Captain Cowan violated the CRA and his
constitutional rights by ordering, without probable cause, that
he be arrested and charged with DWI. "[F]iling criminal charges
without probable cause, like an arrest without probable cause, is
a constitutional violation actionable under section 1983." Kirk
v. Newark,
109 N.J. 173, 185 (1988).
Plaintiff's remaining CRA counts claim Captain Cowan
committed malicious prosecution and false arrest. To show
malicious prosecution, a plaintiff must establish "that there was
an absence of probable cause." Brunson v. Affinity Fed. Credit
Union,
199 N.J. 381, 394 (2009). To show false arrest, a plaintiff
must prove he was "arrested without legal authority." Mesgleski
v. Oraboni,
330 N.J. Super. 10, 24 (App. Div. 2000). "A plaintiff
need not prove the lack of probable cause, but the existence of
probable cause will nevertheless defeat the action." Id. at 24-
25. Thus, "probable cause is an absolute defense to an allegation
of malicious prosecution or false arrest." Tarus v. Borough of
Pine Hill,
189 N.J. 497, 521 (2007) (citing Wildoner v. Borough
of Ramsey,
162 N.J. 375, 389 (2000)).
7 A-0654-16T1
Moreover, to obtain damages from Captain Cowan, plaintiff
must overcome his defense of qualified immunity. "The well-
established defense of qualified immunity interposes a significant
hurdle for plaintiffs seeking to recover for asserted violations
of civil rights at the hands of law-enforcement officials."
Morillo v. Torres,
222 N.J. 104, 116 (2015).
"The doctrine of qualified immunity 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. This protection extends to suits brought under
42 U.S.C.A. § 1983 and under New Jersey's analogue, the [CRA],"
which allege "arresting or charging an individual" without
probable cause. Id. at 107-08, 117.
"[M]embers of law enforcement must be permitted to perform
their duties without being encumbered by the specter of being sued
personally for damages, unless their performance is not
objectively reasonable." Id. at 108. "Thus, the defense's
protection is denied only to officers who are plainly incompetent
in the performance of their duties or who knowingly violate the
law." Ibid.
Determining if an officer "is entitled to qualified immunity
requires inquiries into whether: (1) the facts, '[t]aken in the
light most favorable to the party asserting the injury[] . . .
8 A-0654-16T1
show the officer's conduct violated a constitutional right'; and
(2) that constitutional 'right was clearly established' at the
time that [the officer] acted." Brown v. State,
230 N.J. 84, 98
(2017) (citations omitted). "[T]he right the official is alleged
to have violated must have been 'clearly established' in a . . .
particularized . . . sense: The contours of the right must be
sufficiently clear that a reasonable official would understand
that what he is doing violates that right." Kirk,
109 N.J. at
183-84 (quoting Anderson v. Creighton,
483 U.S. 635, 640 (1987)).
Therefore, "when a plaintiff asserts that he or she was unlawfully
arrested, a law enforcement officer can defend such a claim '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.'" Morillo,
222 N.J.
at 118-19 (quoting Kirk,
109 N.J. at 184).
IV.
"[T]he central issue in this appeal is whether there was
probable cause, or, alternatively, whether it was objectively
reasonable for the officers to believe that probable cause existed
at the time of plaintiff's arrest." Wildoner,
162 N.J. at 389.
Thus, we examine Captain Cowan's evidence, defendant's response,
and the trial court's ruling.
9 A-0654-16T1
A.
Probable cause "'is a well-grounded suspicion that a crime
has been or is being committed.'" State v. Marshall,
199 N.J.
602, 610 (2009) (citation omitted). "'Probable cause exists where
"the facts and circumstances within . . . [the officers'] knowledge
and of which they had reasonably trustworthy information [are]
sufficient in themselves to warrant a man of reasonable caution
in the belief that" an offense has been or is being committed.'"
Schneider v. Simonini,
163 N.J. 336, 361 (2000) (alterations in
original) (citation omitted).
"When determining whether probable cause exists, courts must
consider the totality of the circumstances, and they must deal
with probabilities." Ibid. (citing Illinois v. Gates,
462 U.S. 213, 230-31 (1983)). Proof beyond a reasonable doubt, or even by
a preponderance, is not required; "'only the probability, and not
a prima facie showing, of criminal activity is the standard of
probable cause.'" Gates,
462 U.S. at 235 (citation omitted); see
Schneider,
163 N.J. at 361; see also State v. Gamble,
218 N.J.
412, 428 (2014).
"[W]hether, under the circumstances, a reasonable police
officer could have believed that probable cause existed . . . .
is a standard of objective reasonableness, which is a lesser
standard than required for probable cause." Schneider, 163 N.J.
10 A-0654-16T1
at 365. "The only time that standard is not satisfied is when,
'on an objective basis, it is obvious that no reasonably competent
officer would have concluded that'" probable cause existed. Id.
at 366 (citation omitted); see Morillo,
222 N.J. at 108. "If
officers of reasonable competence could disagree on the issue of
probable cause, the doctrine of qualified immunity should be
applied." Morillo,
222 N.J. at 119 (quoting Connor v. Powell,
162 N.J. 397, 409 (2000)).
In his deposition, Captain Cowan testified he made the
decision to arrest plaintiff for DWI "[b]ecause of information
[he] had received from [Sergeant Mark Shaw and Lieutenant Patricia
Cassidy] as well as [his] viewing of the surveillance video."
Thus, we examine their information and the video. See State v.
Fioravanti,
46 N.J. 109, 122-23 (1965) (ruling that probable cause
can be based on "the total knowledge of all the policemen"); see
also State v. Crawley,
187 N.J. 440, 457 (2006).
Sergeant Shaw certified to the following, which was also in
his report completed the morning of June 9. He responded to a
radio call and arrived at the BP station after 3:30 a.m., spoke
to an officer, and was told plaintiff had been involved in an
altercation, had been assaulted, and had drawn his duty weapon.
Shaw approached plaintiff and smelled the odor of alcohol on his
breath. Shaw asked plaintiff for his account of the altercation,
11 A-0654-16T1
but he could not provide a coherent account of the incident. Shaw
again asked plaintiff for his account of the incident. Plaintiff
became belligerent and raised his voice. He slurred his words and
again failed to provide a coherent account of the incident.
Shaw certified that he reached "the unequivocal opinion" that
plaintiff "was intoxicated and under the influence of alcohol at
the time" based on his observation of plaintiff's demeanor, his
behavior, and the strong odor of alcohol on his breath, which were
consistent with the other symptoms of intoxication noted in his
report.
Shaw stated in his report and later certified as follows. He
asked plaintiff to sit in the front seat of a police car, but
plaintiff asked to search his own car for his cellphone. Shaw
realized plaintiff had driven to the BP station in his personal
vehicle. Shaw summoned the tour commander, Lieutenant Cassidy,
who arrived at about 3:51 a.m.
Lieutenant Cassidy certified to the following, which was also
in her report completed the morning of June 9. Sergeant Shaw
reported plaintiff had been involved in an altercation involving
intoxicated persons, had been assaulted, and had to draw his duty
weapon. Cassidy spoke to plaintiff, who said he was involved in
a verbal altercation with a group at the convenience store and was
12 A-0654-16T1
assaulted. He refused medical attention, and had no sign of
injury.
Cassidy certified Shaw also reported his determination that
plaintiff was under the influence of alcohol. Cassidy certified
that plaintiff's face was flushed and he smelled of alcohol. Based
on his appearance, and her years of experience in the narcotics
unit detecting persons under the influence of substances, Cassidy
concluded "without a doubt" that plaintiff "was under the influence
of intoxicating beverages."
Shaw and Cassidy certified and reported that Cassidy called
Captain Cowan, who was City Captain for that shift. When Captain
Cowan responded to the scene, he consulted with Shaw. Captain
Cowan, Shaw, and Cassidy viewed the videotape showing plaintiff
driving into the BP station.
The surveillance video confirmed that plaintiff drove into
the BP station twice. It also corroborated that plaintiff was
under the influence. Plaintiff drove into the BP station right
behind a cab, turned left simultaneously with the cab, and pulled
close in front of the cab as if to cut it off. Plaintiff braked
suddenly, started forward, braked suddenly again for no obvious
reason, and then drove head on at a car entering the station,
again braking suddenly, and forcing it to back up.
13 A-0654-16T1
On the video, after spending eight minutes arguing with the
cab driver and walking sometimes unsteadily around the BP station's
lot without getting gas or going into the convenience store,
plaintiff drove away only to return within two minutes, parking
his vehicle at an angle in a driving lane. He entered the
convenience store with an unsteady gait, animatedly gesturing with
his hands, and soon confronted a male and female for no apparent
reason. Plaintiff gestured wildly in the ensuing argument, making
no apparent effort to end the argument.2
This information was sufficient to establish probable cause
to believe plaintiff "operate[d] a motor vehicle while under the
influence of intoxicating liquor."
N.J.S.A. 39:4-50(a). That
statute does not require a driver to be "'absolutely "drunk," in
the sense of being sodden with alcohol.'" State v. Johnson,
42 N.J. 146, 164 (1964) (citation omitted). Rather, it addresses a
"condition, short of intoxication," id. at 165, "which so affects
the judgment or control of a motor vehicle operator as to make it
improper for him to drive on the highway," State v. Bealor,
187 N.J. 574, 589 (2006) (citation omitted). All that is needed to
convict is "a substantial deterioration or diminution of the mental
2
The video shows plaintiff continued to argue and stagger after
he was assaulted, but we find probable cause without needing to
consider his post-assault behavior on the video.
14 A-0654-16T1
faculties or physical capabilities . . . due to intoxicating
liquor." Ibid. Probable cause requires "less than the proof
needed to convict" for DWI. State v. Moskal,
246 N.J. Super. 12,
21 (App. Div. 1991).
Plaintiff exuded a strong odor of alcohol on his breath, his
face was flushed, he slurred his words, and he was incoherent and
belligerent. The video showed him driving erratically, walking
unsteadily, and arguing repeatedly.
These common symptoms of intoxication gave probable cause
that plaintiff was under the influence. Numerous cases have found
probable cause based on some or all of these symptoms. See, e.g.,
Karins v. Atl. City,
152 N.J. 532, 559 (1998) (the driver
"staggered, slurred his speech, and smelled of alcohol"); State
v. Monaco,
444 N.J. Super. 539, 542, 548 (App. Div. 2016) (the
driver drove up on the curb and had "the odor of alcoholic
beverage," and slurred speech); Moskal,
246 N.J. Super. at 20 (the
driver's "face was extremely flush and his eyes were drooping and
red," there was "a strong odor of alcohol on his breath," and he
admitted drinking); State v. Grant,
196 N.J. Super. 470, 474, 476
(App. Div. 1984) (the driver "had difficulty with his balance, his
eyes were bloodshot, his face flushed and there was a strong odor
of alcohol emanating from his breath"); see also State v. Morris,
262 N.J. Super. 413, 421-22 (App. Div. 1993) (finding "ample
15 A-0654-16T1
evidence" to support conviction where the driver had "a strong
odor of alcohol on his breath," his speech was slurred, and he
became belligerent to the officers, and an officer felt he was
intoxicated "without a doubt").3
Moreover, after speaking with and observing plaintiff, both
Sergeant Shaw and Lieutenant Cassidy opined that plaintiff was
under the influence "without a doubt," with Cassidy citing her
years of experience in the narcotics unit detecting persons under
the influence. In determining probable cause, "'the common and
specialized experience and work-a-day knowledge of police
[officers] must be taken into account.'" Wildoner,
162 N.J. at
390 (alteration in original) (citation omitted); see, e.g., State
v. Corrado,
184 N.J. Super. 561, 564-65, 567 (App. Div. 1982); see
also Bealor,
187 N.J. at 585. "The observations and opinion of
experienced officers, having no reason to be biased against
defendant, could reasonably be found persuasive[.]" Johnson,
42 N.J. at 166.4
3
"A defendant need not have displayed each and every one of these
symptoms in order to be found guilty of an 'under the influence'
violation." Richmond & Burns, N.J Municipal Court Practice §
25:5-2(a) at 608 (2017); see Johnson,
42 N.J. at 166-67.
4
The observations by Shaw and Cassidy were later corroborated by
the breathalyzer operator's report. Officer Sarmiento observed
that even hours after the incident plaintiff still had the odor
of alcohol on his breath, and his speech was boisterous, rambling,
16 A-0654-16T1
Our Supreme Court has rejected "the proposition that a police
officer who reasonably believes she has probable cause must conduct
further investigation." Kirk,
109 N.J. at 188. Nonetheless,
plaintiff complains he was not asked to perform field sobriety
tests. However, as shown by the cases cited above, such testing
is not required to establish probable cause. See, e.g., Karins,
152 N.J. at 559 (noting the officer "did not conduct a field
sobriety test and did not charge Karins with DWI, but that does
not mean that he lacked probable cause to do so"); Monaco,
444 N.J. Super. at 546, 548-49 (App. Div. 2016) (affirming the trial
court's finding "that probable cause existed, even absent the
field sobriety tests"); State v. George,
257 N.J. Super. 493, 496-
97 (App. Div. 1992) (finding the "arrest was clearly justified"
because the driver's "breath disclosed a heavy odor of alcohol"
and he admitted drinking, even though he performed the field
sobriety tests "without error"). Field sobriety tests simply
allow an officer to look for "common factual indicia that a person
is under the influence of intoxicating liquor," and here several
such indicia had already been observed. State v. Morton,
39 N.J.
512, 515 (1963).
and incoherent. Plaintiff told Sarmiento that he had no injury,
and Sarmiento observed none. Because Sarmiento's observations
occurred after arrest and were unknown to Captain Cowan, we do not
rely on them to find Captain Cowan had probable cause.
17 A-0654-16T1
The evidence presented by Captain Cowan was sufficient to
establish probable cause. In any event, the evidence satisfied
the "lesser standard" that "a reasonable police officer could have
believed that probable cause existed." Schneider,
163 N.J. at
365. "It cannot be said as a matter of law that no reasonably
competent officer would have believed that probable cause existed
to charge plaintiff with [DWI]." Morillo,
222 N.J. at 108.
B.
"[O]nce [Captain Cowan] presented sufficient evidence in
support of the motion" for summary judgment, namely the video and
the certifications and reports of Shaw and Cassidy, plaintiff as
"the opposing party must 'demonstrate by competent evidential
material that a genuine issue of fact exists[.]'" Globe Motor Co.
v. Igdalev,
225 N.J. 469, 479-80 (2016) (citation omitted). "By
its plain language, Rule 4:46-2 dictates that a court should deny
a summary judgment motion only where the party opposing the motion
has come forward with evidence that creates a 'genuine issue as
to any material fact challenged.'" Brill,
142 N.J. at 529
(citation omitted).
Plaintiff admitted the video accurately depicted the events
at the BP station. In his deposition, plaintiff testified he had
no reason to dispute anything in the reports of Shaw and Cassidy,
or to believe they were biased against him. He admitted that he
18 A-0654-16T1
was drinking before he drove to the BP station, and that he "had
alcohol on [his] breath." He conceded he did not have any reason
to dispute that his "words were slurred" or his "speech was
rambling, incoherent and boisterous."5
Instead, plaintiff tries to create a genuine issue of material
fact by citing evidence unknown to Shaw, Cassidy, and Captain
Cowan. However, to determine whether "'[p]robable cause exists'"
we look to "'"the facts and circumstances within . . . [the
officers'] knowledge and of which they had reasonably trustworthy
information"'" at the time of the arrest. Schneider,
163 N.J. at
361 (alterations in original) (citation omitted). Courts
"'"consider the totality of the information available to the
officer at the time of the conduct" to evaluate whether a
constitutional defect exists. "Information acquired subsequently
cannot be used to either bolster or defeat the facts known at the
time."'" State v. Myers,
442 N.J. Super. 287, 294 n.2 (App. Div.
2015) (citation omitted). Similarly, courts addressing qualified
immunity consider whether, given "the specific facts known by the
official, he or she could reasonably believe that probable cause
5
To the extent plaintiff's admissions in his deposition were
contradicted by his general denials of Captain Cowan's statement
of material facts, plaintiff failed to "specifically dispute[]"
those facts or support his denials "by citation [to the motion
record] demonstrating the existence of a genuine issue as to the
fact." R. 4:46-2(b).
19 A-0654-16T1
existed." Kirk,
109 N.J. at 186; see Schneider,
163 N.J. at 376.
Thus, plaintiff cannot defeat probable cause or qualified
immunity by procuring, three years after the DWI incident,
certifications from three officers who had been drinking with him
at the tavern. Those officers were not at the BP station and the
information in their certifications was unknown to Shaw, Cassidy,
and Captain Cowan.
In any event, the certifications do not rule out that
plaintiff was under the influence by the time he drove to, from,
and back to the BP station after 3:15 a.m. Officer Thompson
certified that he had a few beers with plaintiff until Thompson
left at about 1:30 a.m., that "[a]t that time, [he] observed Mr.
Lang to be sober and coherent," and that he "did not have any
concerns about Mr. Lang operating a motor vehicle at that time."
However, plaintiff remained at the tavern drinking for at least
another hour. Officer Young said plaintiff did not appear to be
intoxicated or engaging in belligerent behavior, but Young did not
state when on June 9 he made those observations. Officer Keheller
certified that "[w]hen he left the bar early in the morning hours
of June 9, 2013, Mr. Lang did not appear to be intoxicated and
definitely was not confrontational or belligerent in anyway," but
Keheller similarly does not specify when early in the morning
hours he made those observations.
20 A-0654-16T1
Similarly, plaintiff cannot defeat probable cause or
qualified immunity with a report signed six months after the
incident regarding his doctor's visit four days after the incident.
Plaintiff told the doctor he had a constant headache, dizziness,
nausea, and difficulty concentrating after the assault, and the
doctor diagnosed a "head concussion." However, Lieutenant Cassidy
saw no sign of injury on plaintiff, and plaintiff rejected medical
attention. Plaintiff conceded Cassidy, Shaw, and Captain Cowan
had no information that he had a concussion, and testified he
never requested medical care from any officer.
Plaintiff also cites a report generated almost three years
after the incident by his DWI consultant, who conceded he could
not consider "the evidence of concussion since the officer was not
aware of same prior to arrest." Nonetheless, the consultant, who
stated he was neither a legal expert nor a medical doctor, opined
that materials from the "Advanced Roadside Impaired Driving
Enforcement" class states "head trauma" may cause individuals to
appear to be impaired by alcohol. However, there was no evidence
any of the officers had taken that course, knew that information,
or knew if plaintiff had head trauma. That was not clear from the
video, and was contradicted by plaintiff's refusal of medical
attention.
21 A-0654-16T1
"A party cannot defeat a motion for summary judgment merely
by submitting an expert's report in his or her favor. In order
for such a report to have any bearing on the appropriateness of
summary judgment, it must create a genuine issue of material fact."
Brill,
142 N.J. at 544 (citation omitted). Whatever their
relevance at a DWI trial to show plaintiff was not in fact under
the influence, plaintiff's reports did not create a genuine issue
of material fact about probable cause because they were based on
subsequently-acquired information unknown to Cassidy, Shaw, and
Captain Cowan. We must "reject plaintiff's attempt to view the
probable cause determination through the harsh and unforgiving
glare of hindsight." Brunson,
199 N.J. at 398.
Plaintiff next tries to create a genuine issue of material
fact by citing the absence of other evidence of intoxication.
However, the absence of additional evidence is irrelevant as the
evidence known to Captain Cowan was sufficient to establish
probable cause as well as qualified immunity.
Plaintiff cites that Captain Cowan testified in his
deposition that when he arrived he "observe[d] Officer Lang" but
"did not observe him stumbling" or observe any other symptoms of
intoxication. However, Captain Cowan did not speak to plaintiff
and there was no evidence he was in a position to detect any such
22 A-0654-16T1
symptoms or see plaintiff walking. Nor did Captain Cowan claim
to be relying on his own observation of plaintiff.
Plaintiff stresses that the reports of the first patrol
officers to respond to the BP station did not mention that
plaintiff was intoxicated.6 However, the reports contained
evidence of potentially intoxicated behavior by plaintiff.
Officers Bustamente and Szymanski reported that they found
plaintiff "having a verbal confrontation with a group of people"
and that the officers had to separate plaintiff and the group.
Officer Hennessey's report stated that plaintiff was "screaming
excitedly," and that when the officers tried to calm plaintiff
down "he kept on yelling that he was assaulted and he wanted the
people arrested."
Plaintiff notes the patrol officers' reports did not indicate
that the four customers said plaintiff was intoxicated. However,
the reports contained the customers' numerous allegations of
potentially intoxicated behavior by plaintiff, including being
6
Those reports were submitted only by Chief Cowan in support of
his summary judgment motion, and were not listed among the exhibits
the trial court considered in ruling on Captain Cowan's motion.
Were we to consider them, we would also have to consider the other
evidence submitted only by Chief Cowan that supported probable
cause, including Captain Cowan's testimony that Cassidy told him
plaintiff was "drunk" and "highly intoxicated" and she had to get
between Shaw and plaintiff "[d]ue to Officer Lang's belligerence
with Sergeant Shaw."
23 A-0654-16T1
disrespectful, arguing, and pushing the females. The male
assailant told Lieutenant Cassidy that plaintiff "was harassing
the group from the time they entered the convenience store," that
plaintiff got "up in the [girls'] faces, real close to them," and
that plaintiff denied being a police officer when asked.7
Thus, the patrol officers' reports contained further evidence
that plaintiff was not in control of himself. If plaintiff's
alcohol consumption "'tend[ed] to deprive him of that clearness
of intellect and control of himself which he would otherwise
possess,'" he was under the influence. Johnson,
42 N.J. at 165
(citation omitted). Thus, even assuming Captain Cowan was aware
of what the patrol officers would later write in their reports,
the reports added to and did not subtract from the already-
sufficient evidence giving probable cause that plaintiff was under
the influence.
In any event, plaintiff's opposition, based on subsequently-
acquired information unknown to Captain Cowan, Cassidy, and Shaw,
and the absence of other information, was immaterial as it did not
alter that there was probable cause under "the facts known to
[Captain Cowan] at the time." See Brill,
142 N.J. at 543
7
The State alleges at least one of the customers' statements to
police alleged plaintiff was "drunk," but that statement was not
part of the summary judgment record.
24 A-0654-16T1
(rejecting opposition to summary judgment based on facts which
were "irrelevant"). Therefore, plaintiff's opposition failed to
create a genuine issue of material fact undermining that there was
probable cause, let alone that "a reasonable police official could
have believed in its existence." Morillo,
222 N.J. at 119 (quoting
Schneider,
163 N.J. at 360).
Plaintiff also argues that summary judgment was not possible
because he claimed Captain Cowan was motivated by malice toward
him. However, the issues of whether there was probable cause, or
whether there was qualified immunity, "[b]oth require application
of the objective reasonableness standard of the Fourth Amendment
without regard to the law enforcement officer's underlying motive
or intent." Schneider,
163 N.J. at 366. An arrest "is reasonable
'regardless of the individual officer's state of mind, as long as
the circumstances, viewed objectively, justify [the arrest]. The
officer's subjective motivation is irrelevant.'" State v. Brown,
205 N.J. 133, 146 (2011) (citations omitted). Similarly, the
officer's "subjective beliefs about the [arrest] are irrelevant"
to qualified immunity, for which "absence of malice" is not an
element. Schneider,
163 N.J. at 354-55 (quoting Anderson,
483 U.S. at 641).8
8
In any event, the trial court rejected his claims of malice as
unsupported in granting summary judgment on other counts.
25 A-0654-16T1
"[I]f the opposing party [contesting a summary judgment
motion] offers . . . only facts which are immaterial or of an
insubstantial nature," then "he will not be heard to complain if
the court grants summary judgment, taking as true the statement
of uncontradicted facts in the papers relied upon by the moving
party, such papers themselves not otherwise showing the existence
of an issue of material fact." Brill,
142 N.J. at 529 (quoting
Judson v. Peoples Bank & Trust Co.,
17 N.J. 67, 75 (1954) (Brennan,
J.)). As no genuine issue of material fact was shown by plaintiff
or by the reports on which Captain Cowan relied, "the proper
disposition is summary judgment." Ibid. (quoting Judson,
17 N.J.
at 75).
C.
The trial court found the reports of Sergeant Shaw and
Lieutenant Cassidy evidenced that plaintiff was under the
influence, citing the odor of alcohol on his breath, and his
slurred words, incoherent speech, and belligerence. The court
acknowledged that plaintiff's deposition failed to contest some
of these symptoms. The court noted the video showed plaintiff
"exhibiting unusual and unexplained behavior." The court
recognized that the certifications from the officers drinking with
plaintiff in the tavern either were "not contemporaneous with
plaintiff's driving to the BP station" or did not say precisely
26 A-0654-16T1
when their observations were made. The court concluded the video
and the reports of Shaw and Cassidy provided more evidence of
intoxication than was found sufficient for probable cause in
George. The court indicated that if believed, "the evidence of
probable cause" was "overwhelming."9
Nevertheless, the trial court denied Captain Cowan summary
judgment on the false arrest and malicious prosecution counts
because it could not "determine the truthfulness of those reports
and observations on the motion record." However, a trial "'judge's
function is not . . . to weigh the evidence and determine the
truth of the matter but to determine whether there is a genuine
issue for trial.'" Brill,
142 N.J. at 540 (citation omitted). As
plaintiff failed to raise a genuine issue of material fact, summary
judgment should have been granted.
We recognize that when considering summary judgment, like a
judgment notwithstanding a verdict,10 trial courts may not usurp
"the jury's task of assessing the credibility of the witnesses."
Sons of Thunder v. Borden, Inc.,
148 N.J. 396, 415 (1997).
9
In granting summary judgment to Chief Cowan, the trial court
ruled: "Based on the undisputed material facts in the record, and
excluding all facts not sufficiently supported or immaterial under
the summary judgment standard, it can be reasonably inferred by
this court that there was probable cause for plaintiff's arrest."
10
"[T]he essence of the inquiry in each is the same." Brill,
142 N.J. at 536.
27 A-0654-16T1
"[W]here men of reason and fairness may entertain differing views
as to the truth of testimony, whether it be uncontradicted,
uncontroverted or even undisputed, evidence of such a character
is for the jury." Ibid. (quoting Ferdinand v. Agricultural Ins.
Co. of Watertown,
22 N.J. 482, 494 (1956)); see Akhtar v. JDN
Props. at Florham Park, LLC,
439 N.J. Super. 391, 399 (App. Div.
2015).
"However, credibility is not a jury question when testimony
is reliable and uncontradicted." Johnson v. Salem Corp.,
97 N.J.
78, 93 (1984). "'[W]here the uncontradicted testimony . . . is
unaffected by any conflicting inferences to be drawn from it and
is not improbable, extraordinary or surprising in its nature, or
there is no other ground for hesitating to accept it as the truth,
there is no reason for denying'" summary judgment. Ibid. (quoting
Ferdinand,
22 N.J. at 498); see Strumph v. Schering Corp.,
256 N.J. Super. 309, 324 (App. Div. 1992) (Skillman, J., dissenting),
rev’d o.b. dissent,
133 N.J. 33 (1993).
Plaintiff conceded he had no basis to dispute the video or
the reports of Sergeant Shaw and Lieutenant Cassidy. Their
observations were not conflicting or improbable, nor was there any
other ground for hesitating to accept their truth. Moreover,
"courts have consistently held that another law enforcement
officer is a reliable source and that consequently no special
28 A-0654-16T1
showing of reliability need be made as part of the probable cause
determination." 2 Wayne R. LaFave, Search & Seizure, § 3.5(a) at
332 & n.11 (5th ed. 2012); see, e.g., United States v. Ventresca,
380 U.S. 102, 111 (1965) ("Observations of fellow officers of the
Government engaged in a common investigation are plainly a reliable
basis for a warrant applied for by one of their number."); State
v. Gillman,
113 N.J. Super. 302, 305-06 (App. Div. 1971) ("the
observations of fellow law enforcement officers constitute a
reliable basis in the assessment of whether probable cause to
arrest exists").
Accordingly, Captain Cassidy was "'reasonable in accepting
the information as true.'" State v. Goodwin,
173 N.J. 583, 598
(2002) (citation omitted); see, e.g., Groman v. Twp. of Manalapan,
47 F.3d 628, 635 & n.10 (3d Cir. 1995) (ruling that summary
judgment was appropriate as the arresting officers relied on
information from another officer which was "sufficient for them
to have believed probable cause existed," even if that officer's
information was untrue).
The trial court also stated that "[t]he determination of
probable cause is for the jury if there is a genuine issue of
material fact for that jury to resolve." "[W]here there are
disputed genuine issues of fact upon which the probable cause
issue depends, then the issue of probable cause to arrest is a
29 A-0654-16T1
question for the factfinder." Wildoner v. Borough of Ramsey,
316 N.J. Super. 487, 498 (App. Div. 1998), rev'd,
162 N.J. 375 (2000).
However, "probable cause can be decided on summary judgment by the
judge if 'no genuine issue as to any material fact' or 'credibility
conflicts[ ]' exist." Tarus v. Borough of Pine Hill,
381 N.J.
Super. 412, 426 (App. Div. 2005) (citations omitted), aff'd in
part, rev'd in part on other grounds,
189 N.J. 497, 521 (2007).
In any event, qualified immunity should have been decided on
summary judgment. "Qualified immunity 'is an immunity from suit
rather than a mere defense to liability' [and] is effectively lost
if the case is allowed to go to trial." Wildoner,
162 N.J. at 387
(citations omitted). Therefore, "the issue of qualified immunity
is one that ordinarily should be decided well before trial, and a
summary judgment motion is an appropriate vehicle for deciding
that threshold question of immunity when raised. The issue is one
for the court to determine." Morillo,
222 N.J. at 119 (citing
Schneider,
163 N.J. at 355-56, 359). Even if there is no probable
cause, "it is for the judge to 'decide whether the defendant has
proven by a preponderance of the evidence that his or her actions
30 A-0654-16T1
were reasonable under the particular facts.'" Morillo,
222 N.J.
at 119 (quoting Schneider,
162 N.J. at 360).11
Thus, the "rule" is that the trial court should decide whether
an officer has qualified immunity on summary judgment. Brown v.
State,
230 N.J. 84, 98-99 (2017). The only exception is where a
plaintiff raises a genuine issue regarding "the who-what-when-
where-why type of historical fact issues." Id. at 99 (quoting
Schneider,
163 N.J. at 359). As plaintiff failed to raise such a
material issue of historical fact, the trial court should not have
deferred the issue to the jury. "When no material historical or
foundational facts are in dispute, . . . 'the trial judge must
then decide the legal issue of whether probable cause existed and,
if not, whether a reasonable police official could have believed
in its existence.'" Morillo,
222 N.J. at 119 (quoting Schneider,
163 N.J. at 360).
The trial court expressed concern there was "no explanation
on the record why [Jersey City] police officers allegedly 'failed
11
Our Supreme Court has rejected the argument that "the question
of objective reasonableness[] should be submitted to the jury."
Schneider,
163 N.J. at 358. "A defendant's entitlement to
qualified immunity based on objectively reasonable conduct 'is a
question of law to be decided [as] early in the proceedings as
possible, preferably on a properly supported motion for summary
judgment or dismissal.'" N.E. ex rel. J.V. v. State Dep't of
Children & Families, Div. of Youth & Family Servs.,
449 N.J. Super. 379, 404 (App. Div. 2017) (quoting Wildoner,
162 N.J. at 387).
31 A-0654-16T1
to cooperate' with the Weehawken Municipal Prosecutor" and failed
to appear in court, and what efforts were made to compel their
compliance with subpoenas. While non-cooperation by police
officers with prosecutors and subpoenas is disturbing, it is no
basis to deny summary judgment to Captain Cowan. If the officers
in question were plaintiff's fellow patrol officers, their
information was not the basis of Captain Cowan's decision to arrest
or his summary judgment motion. There is no evidence Lieutenant
Cassidy or Sergeant Shaw were subpoenaed and failed to appear or
cooperate. Even if they did so, that would not create a genuine
issue of material fact regarding whether Captain Cowan properly
relied on their information under either a probable cause or
qualified immunity analysis.
V.
Plaintiff claims that Captain Cowan was collaterally estopped
from litigating whether there was probable cause because of the
ruling of the Weehawken Municipal Court which found no probable
cause and dismissed the criminal case.12 However,
"'[f]or the doctrine of collateral estoppel
to apply to foreclose the relitigation of an
issue, the party asserting the bar must show
that: (1) the issue to be precluded is
identical to the issue decided in the prior
proceeding; (2) the issue was actually
litigated in the prior proceeding; (3) the
12
The Municipal Court did not view the surveillance video.
32 A-0654-16T1
court in the prior proceeding issued a final
judgment on the merits; (4) the determination
of the issue was essential to the prior
judgment; and (5) the party against whom the
doctrine is asserted was a party to or in
privity with a party to the earlier
proceeding.'"
[N.J. Div. of Youth & Family Servs. v. R.D.,
207 N.J. 88, 115 (2011) (citations omitted).]
"A fundamental tenet of collateral estoppel is that the
doctrine cannot be used against a party unless that party either
participated in or was 'in privity with a party to the earlier
proceeding.'" State v. K.P.S.,
221 N.J. 266, 277 (2015) (citation
omitted). Captain Cowan was not a party in the criminal action,
nor was he in privity to the State which prosecuted that action.
"The concept of privity applies '"only when the party is a virtual
representative of the non-party, or when the non-party actually
controls the litigation."'" Id. at 278 (citations omitted). The
State was not representing Captain Cowan, and there is no evidence
he controlled the State's prosecution of the litigation. See id.
at 278-79 (holding that co-defendants appealing the denial of
their joint motion to suppress are not in privity). There was no
evidence Captain Cowan had control of "the legal theories and
proofs to be advanced [on] behalf of the party to the action [as
well as] control over the opportunity to obtain review." Allen
v. V & A Bros., Inc.,
208 N.J. 114, 139 (2011) (quoting Restatement
33 A-0654-16T1
(Second) of Judgments § 39 (Am. Law Inst. 1982)). Indeed, Captain
Cowan was not even present at the suppression hearing.
Plaintiff argues the Weehawken municipal prosecutor
represented the interests of Jersey City's Captain Cowan. Even
assuming "[t]hat the parties may have similar interests in the
outcome of the litigation," that "does not of itself establish
privity of interest between them for purposes of issue preclusion."
Stegmeier v. St. Elizabeth Hosp.,
239 N.J. Super. 475, 487-88
(App. Div. 1990).
In any case, as the trial court found, collateral estoppel
did not preclude consideration of qualified immunity, as that
issue was not "'"identical to the issue decided in the prior
proceeding,"'" or "actually litigated in the prior proceeding."
R.D.,
207 N.J. at 115 (citations omitted). As set forth above,
qualified immunity involves a lesser standard than probable cause.
Finally, collateral estoppel "'will not be applied when it
is unfair to do so.'" Allen,
208 N.J. at 138 (citation omitted).
It would be unfair to apply it to Captain Cowan as he "'did not
have an adequate opportunity to obtain a full and fair adjudication
in the prior action,'" and "'could not have obtained review of the
prior judgment.'" Ibid. (citation omitted). Thus, Captain Cowan
was not precluded from arguing that his decision to arrest
34 A-0654-16T1
plaintiff was supported by probable cause or protected by qualified
immunity.
VI.
Thus, the trial court should have granted summary judgment
because there was probable cause for plaintiff's arrest, and
because a reasonable police officer could have believed there was
probable cause in any event. As "probable cause is an absolute
defense to an allegation of malicious prosecution or false arrest,"
Tarus,
189 N.J. at 521, and as qualified immunity immunized Captain
Cowan from such claims regardless, the counts of plaintiff's
complaint alleging false arrest and malicious prosecution should
have been dismissed.13 Accordingly, we reverse the trial court and
remand for entry of summary judgment on those counts and dismissal
of plaintiff's complaint.
Reversed and remanded. We do not retain jurisdiction.
13
We need not reach Captain Cowan's argument that plaintiff also
failed to show the malice required for malicious prosecution.
35 A-0654-16T1
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