United States District Court, D. New Jersey, Camden Vicinage
August 25, 2005.
LARRY GLENN PERSON, SR. and BOBBIE ANN PERSON, Plaintiffs,
WILLINGBORO TOWNSHIP, et al., Defendants.
The opinion of the court was delivered by: ROBERT KUGLER, Magistrate Judge
[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] OPINION
Following two altercations with the police at his Willingboro
home on May 17, 2001 and February 2, 2002, plaintiff Larry Glenn
Person, Sr.*fn1 brought various claims against Willingboro
Township, the Willingboro Township Police Department, and Patrol
Officers James Zarzaca, William Smith, and William Spanier. On
December 10, 2004, this Court entered summary judgment in favor
of all defendants as to all claims, except for Person's claims for false arrest, false imprisonment, and
excessive force against defendants Zarzaca and Smith. Summary
judgment was denied as to those claims because the defendants'
motion papers failed to address them. Cf. Celotex Corp. v.
Catrett, 477 U.S. 317, 330 (1986) (observing that the burden of
establishing the nonexistence of a genuine issue of material fact
is on the party moving for summary judgment).
Defendants' motion for reargument was denied on January 31,
2005. However, in the interest of judicial economy, this Court
invited Zarzaca and Smith to file a second motion for summary
judgment as to the remaining claims against them. This matter now
comes before the Court upon Defendants' motion for summary
judgment*fn2 on all remaining claims. For the reasons
expressed in this opinion, Defendants' motion for summary
judgment will be granted.
I. FACTUAL BACKGROUND
Person resided at 10 Country Club Road in Willingboro, New
Jersey, for over twenty years. He lived there with his wife, Bobbie Ann Person, and had four adult children.
On February 2, 2002, Officer Zarzaca went to Person's residence
with a warrant to arrest Person's son Lee. As he pulled onto the
street, Zarzaca saw Lee outside the residence. When Zarzaca
reached the end of the driveway, Lee saw him and ran toward the
back of the house. Zarzaca saw Lee enter Person's residence
through a rear sliding glass door.*fn3
Zarzaca went to the front door, where he was confronted by
Person. Person, who was carrying a cane and was in poor health,
asked Zarzaca who he was looking for. At this point in the story,
the parties' version of the events changes.
A. PERSON'S VERSION
Zarzaca told Person that he was looking for Lee, and that he
had seen Lee go into the house. (Person Dep. 78:23-24.) Person,
who did not know that Lee was inside, told Zarzaca that Lee was not there and attempted to close the door. (Id.
79:202-2, 80:12-14.) Zarzaca pushed the door open, knocking
Person who was on the other side of the door to the
ground. (Id. 79:22-23, 83:2-9.) Though his body had been
positioned behind the door, Person did not intend thereby to
prevent the police from entering his house. (Id. 89:11-14.0
Zarzaca entered the house and began to direct other police
officers inside. (Person Dep. 81:9-15.) Person, who was wearing
only underwear, asked Zarzaca if the police had a warrant. (Id.
82:7-8, 92:17-18.) Zarzaca, who did have a warrant, said only
that the police didn't need one. (Zarzaca Dep. 49:21-23; Person
Dep. 82:14-16.) At that point in time, but no other, Person
"probably" used "foul and abusive" language toward the officers
and told them to get out of his house. (Person Dep. 86:3-21.) At
no point did Person put his hands on any officer. (Id.
Zarzaca walked down the hall and began to search a closet.
(Person Dep. 87:17-21.) Person followed Zarzaca, stood in front
of a bedroom door near the closet, and asked Zarzaca what he was
looking for. (Id. 88:5-9, 89:17-25.) In positioning his body in
front of the door, Person did not intend to prevent Zarzaca from
entering the bedroom. (Id. 89:6-14.) However, Zarzaca "jumped
up crazily" and told Person that he was under arrest for
obstruction. (Id. 89:25-90:1.) Zarzaca pulled Person down to the floor, put his knee across Person's body, and
handcuffed him. (Id. 90:7-9.)
Person, who had an injured foot, was unable to walk following
his arrest. (Person Dep. 92:22-23.) Along with another officer,
Zarzaca dragged Person out of the house and placed him in a
police car. (Id. 93:11-22.) These events caused Person
emotional distress, from which Person suffered severe
hypertension. (Pl.'s Ex. B.)
B. ZARZACA'S VERSION
Zarzaca told Person that he had a warrant for Lee's arrest, and
that he had seen Lee enter the house. (Zarzaca Dep. 62:16-18.)
Person, who was "screaming" and "very irate," told Zarzaca to
"[g]et the fuck out" and called Zarzaca a "white SOB." (Id.
62:19-20.) Zarzaca repeated several times that he had a warrant
for Lee's arrest and that he had seen Lee enter the house. (Id.
62:21-23.) Person tried to slam the door in Zarzaca's face, but
Zarzaca put his foot in the door and began to push it open.
(Id. 62:23-25.) Person grabbed Zarzaca and tried to push him
away, tearing the shoulder of Zarzaca's shirt in the process.
(Id. 63:1-3, 66:18-21.)
Zarzaca entered the house and walked down a hallway, followed
side-by-side by Person, who delivered a "constant barrage" of
racial slurs and curses. (Zarzaca Dep. 71:11-18.) As Zarzaca
reached for a doorknob, Person "smacked his hand away." (Id. 72:6-8.) Zarzaca, feeling that "enough is enough,"
told Person he was under arrest. (Id. 72:4-14.)
Zarzaca grabbed Person's wrist to handcuff him. (Zarzaca Dep.
72:20-21.) Person "fell to his knees" and "tried to play feeble,
like he couldn't stand anymore." (Id. 72:21-24.) Along with
another officer, Zarzaca dragged Person out of the house and
placed him in a police car. (Person Dep. 93:11-22.) Person
suffered superficial abrasions to his left knee, left flank, left
instep, and right knee in the process. (Defs.' Ex. R.)
A. SUMMARY JUDGMENT STANDARD
Summary judgment is only appropriate where the Court is
satisfied that "there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a matter
of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett,
477 U.S. 317, 330 (1986). A genuine issue of material fact exists
only if "the evidence is such that a reasonable jury could find
for the nonmoving party." Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986).
The burden of establishing the nonexistence of a "genuine
issue" is on the party moving for summary judgment. Celotex,
477 U.S. at 330. That party must satisfy a burden of production, which "requires the moving party to make a prima
facie showing that it is entitled to summary judgment." Id. at
331. Where the burden of persuasion at trial would be on the
nonmoving party, the moving party may satisfy its burden of
production by either (1) submitting affirmative evidence that
negates an essential element of the nonmoving party's claim; or
(2) demonstrating to the Court that the nonmoving party's
evidence is insufficient to establish an essential element of the
nonmoving party's case. Id.
If the moving party has not fully discharged its initial burden
of production, its motion for summary judgment must be denied.
Celotex, 477 U.S. at 332. If the moving party satisfies its
initial burden, the nonmoving party "must set forth specific
facts showing that there is a genuine issue for trial."
B. OFFICER SMITH
Smith argues that he is entitled to summary judgment because
the record contains no evidence that he was involved in Person's
arrest and no evidence that he used force against
Person.*fn4 (Defs.' Br. 15-16.) Person responds that Smith
"was present during the incident and should have known the arrest
should not have occurred." (Pl.'s Opp. 10.) Moreover, says
Person, Smith "also should have known the force employed
thereafter to be unreasonable as well." (Id.)
Although Smith was present at 10 Country Club Road during the
events of February 2, 2002, Person points to no facts that tend
to show Smith "should have known" about Person's arrest or the
force used against Person. Moreover, even if the facts could
support a finding that Smith should have known about the arrest
and/or force, Person cites no law for the proposition that a
police officer who merely should know that another officer will
commit an unlawful arrest or use excessive force is thereby
subject to liability under section 1983. Cf. Morse v. Lower
Merion Sch. Dist., 132 F.3d 902, 911 (3d Cir. 1997) ("[M]erely
negligent acts cannot support a claim under the state-created
danger theory of § 1983."); Sharrar v. Felsing, 128 F.3d 810,
821 (3d Cir. 1997) (affirming summary judgment on § 1983 claim in
favor of defendant police officer where record contained no
evidence that defendant knew of and acquiesced in subordinates'
unconstitutional actions). For these reasons, summary judgment
will be entered in favor of Smith as to all remaining claims.
C. OFFICER ZARZACA
Zarzaca argues that summary judgment ought to be granted in his
favor because he is entitled to qualified immunity.
In determining whether Zarzaca is entitled to qualified
immunity, this Court must first decide whether the facts alleged,
taken in the light most favorable to Person,*fn5 show that
Zarzaca's conduct violated a constitutional right. Saucier v.
Katz, 533 U.S. 194, 201 (2001). If the facts show the violation
of a constitutional right, "the next, sequential step is to ask
whether the right was clearly established." Saucier,
533 U.S. at 201. A right is clearly established where the "contours" of
the right are "sufficiently clear that a reasonable official
would understand that what he is doing violates that right."
Anderson v. Creighton, 483 U.S. 635, 640 (1987).
1. False Arrest and False Imprisonment*fn6
"[A] warrantless arrest by a law officer is reasonable under the Fourth Amendment where there is probable cause to
believe that a criminal offense has been or is being committed."
Devenpeck v. Alford, 125 S. Ct. 588, 593 (2004). "Whether
probable cause exists depends upon the reasonable conclusion to
be drawn from the facts known to the arresting officer at the
time of the arrest." Id. (citing Maryland v. Pringle,
540 U.S. 366, 371 (2003)). Probable cause exists where those facts
are "sufficient to warrant a prudent man in believing that the
(suspect) had committed or was committing an offense." See
Gerstein v. Pugh, 420 U.S. 103, 111 (1975) (quoting Beck v.
Ohio, 379 U.S. 89, 91 (1964)); see Sharrar,
128 F.3d at 817-18. Therefore, Person has made out a constitutional violation
"if there is sufficient evidence whereby a jury could reasonably
find that the police officers did not have probable cause to
arrest." See Sharrar, 128 F.3d at 818.
Zarzaca argues that the facts demonstrate probable cause to
arrest Person under a New Jersey law that provides:
A person commits an offense if he purposely
obstructs, impairs or perverts the administration of
law or other governmental function or prevents or
attempts to prevent a public servant from lawfully
performing an official function by means of flight,
intimidation, force, violence, or physical
interference or obstacle, or by means of any
independently unlawful act.
N.J.S.A. § 2C:29-1(a). A defendant may be convicted of
obstruction under this provision where he curses at police and refuses to follow police instructions as the officers attempt to
make an arrest. See State v. Hernandez, 338 N.J. Super. 317
323 (App.Div. 2001).
Even under Person's version of events, he "probably" used "foul
and abusive" language toward police officers and twice positioned
himself between Zarzaca and a door as Zarzaca attempted to arrest
Lee. Under these facts, particularly in light of Hernandez,
Zarzaca could reasonably conclude that Person was violating
section 2C:29-1(a). Because Zarzaca therefore had probable cause
to arrest Person for obstruction, Person has not made out a
constitutional violation and Zarzaca is entitled to qualified
immunity for the arrest on that basis. Cf. Wright v. City of
Philadelphia, 409 F.3d 595, 600 (3d Cir. 2005) (analyzing
constitutional issue as first step of the qualified immunity
Moreover, even assuming a jury could permissibly find that no
probable cause existed, and therefore that the arrest of Person
was unconstitutional, Zarzaca is entitled to qualified immunity
because the right was not clearly established. See Saucier,
533 U.S. at 201. At the time Person was arrested for obstruction,
he had already positioned himself such that the police could not
open the front door without pushing him or knocking him down. He
had already used foul and abusive language toward the police.
Under these facts, Zarzaca could reasonably conclude that Person had positioned himself in front of the
bedroom door to prevent Zarzaca from entering the bedroom to look
for Lee, and could therefore reasonably conclude that he had
probable cause to arrest Person for obstruction under section
2C:29-1(a). Because Zarzaca could reasonably believe that
probable cause existed, Person's right not to be arrested was not
clearly established. Therefore, Zarzaca is entitled to qualified
immunity for the arrest under either step of the qualified
2. Excessive Force
Excessive force claims are analyzed under the Fourth
Amendment's "objective reasonableness" standard. See Graham v.
Connor, 490 U.S. 386, 388 (1989). Thus, although "[p]olice
officers are privileged to commit a battery pursuant to a lawful
arrest," Groman, 47 F.3d at 634, the force used must be
"[E]ach case alleging excessive force must be evaluated under
the totality of the circumstances." Sharrar, 128 F.3d at 822.
"Factors to consider in making a determination of reasonableness
include the severity of the crime at issue, whether the suspect
poses an immediate threat to the safety of the officers or
others, and whether he actively is resisting arrest or attempting
to evade arrest by flight." Kopec v. Tate, 361 F.3d 772, 776-77
(3d Cir. 2004) (citing Graham, 490 U.S. at 396). The court may also consider "the possibility that the
persons subject to the police action are violent or dangerous,
the duration of the action, whether the action takes place in the
context of effecting an arrest, the possibility that the suspect
may be armed, and the number of persons with whom the police
officers must contend at one time." Id. at 777 (citing
Sharrar, 128 F.3d at 822). The presence and extent of physical
injury to the plaintiff is also relevant. See Sharrar,
128 F.3d at 822.
"`Not every push or shove, even if it may later seem
unnecessary in the peace of a judge's chambers,' is
constitutionally unreasonable." Sharrar, 128 F.3d at 821
(quoting Graham, 490 U.S. at 396). "Rather, `the calculus of
reasonableness must embody allowance for the fact that police
officers are often forced to make split-second judgments in
circumstances that are tense, uncertain, and rapidly evolving
about the amount of force that is necessary in a particular
situation.'" Id. (quoting Graham, 490 U.S. at 3969-7).
Viewing these facts in the light most favorable to Person, this
Court cannot hold that the amount of force used by Zarzaca was
objectively reasonable as a matter of law. Therefore, Zarzaca is
not entitled to qualified immunity under the first step of the
analysis. However, as stated above, a reasonable officer could
have believed that Person was committing obstruction, and thus could have believed that Person would not
comply if told to turn around and place his hands behind his
back. Therefore, it would not have been clear to a reasonable
officer that pulling Person to the floor and placing a knee on
Person's back in order to handcuff him would be an unreasonable
use of force. Moreover, given that Person had been walking with
no apparent difficulty before the arrest, a reasonable officer
could have believed that Person was malingering when he later
refused to walk. Therefore, it would not have been clear to a
reasonable officer that dragging Person outside to a squad car in
a manner that caused Person to suffer only superficial
abrasions*fn7 would be an unreasonable use of
force.*fn8 Because it would not have been clear to a reasonable officer
that the amount of force Zarzaca used against Person was
unreasonable, Person's right was not "clearly established."
Therefore, Zarzaca is entitled to qualified immunity on the
excessive force claim.
Summary judgment will be entered in favor of Zarzaca and Smith
as to all claims remaining in this case. The accompanying Order
shall issue today.
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