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Fletcher v. Camden County Prosecutor's Office


October 27, 2010


On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-8421-05.

Per curiam.


Telephonically Argued: June 15, 2010

Before Judges Cuff and C.L. Miniman.

This appeal is a classic case of being in the wrong place at the wrong time. Plaintiffs attempted to leave a motel just as the police arrived to intercept a large interstate transfer of marijuana. Plaintiffs contend the police treated them with undue and unnecessary force; the State argues the police's treatment of plaintiffs was entirely reasonable under the circumstances. The motion judge granted defendants' motion for summary judgment in its entirety. We affirm in part, and reverse in part, and remand for further proceedings.

Initially, we are constrained to observe that our review is hampered by two factors. First, the briefs and appendices do not demonstrate to our satisfaction that this court had been provided with the same record as the motion judge. We provided counsel an opportunity pre- and post-argument to review the motion record and provide to us everything submitted to the motion judge. We received some documents before oral argument and others after oral argument. Both counsel assure us we now have all documents submitted in support of and in opposition to defendants' summary judgment motion.

The second factor that inhibits our review is the absence of any findings of fact or conclusions of law in support of this order. In order to meaningfully perform our appellate review of the actions or decision of a motion judge, the judge must make sufficient findings and conclusions so that we may get a sense of what was decided and why. Curtis v. Finneran, 83 N.J. 563, 570 (1980). Most significantly, Rule 1:6-2 and Rule 1:7-4 require a trial judge to accompany all opinions with findings of fact and conclusions of law. See Pressler and Verniero, Current New Jersey Court Rules, comment 2.6 on R. 1:6-2 (2011) (referring to R. 1:7-4). "Rule 1:7-4 requires a judge to provide findings of fact and conclusions of law on every motion decided by a written order that is appealable by right." Fodero v. Fodero, 355 N.J. Super. 168, 179 (App. Div. 2002). Also, Rule 2:5-1(b) specifically mandates that findings and conclusions by a trial judge must be made, particularly when an appeal has been filed. Justice Pollock cogently stated in Curtis, supra, 83 N.J. at 570, "[n]aked conclusions do not satisfy the purpose of R. 1:7-4. Rather, the trial court must state clearly its factual findings and correlate them with the relevant legal conclusions." We are constrained to remind the motion judge of his obligation in this regard. Notwithstanding these omissions, we address the merits of the appeal.

In reviewing the order granting defendants' motion for summary judgment, we apply the same standard as the motion judge. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). A moving party is entitled to summary judgment if there is no genuine issue as to any material fact in the record. R. 4:46-2. In deciding a summary judgment motion, we must apply the standard articulated in Brill v. Guardian Life Insurance Co., 142 N.J. 520 (1995):

[A] determination whether there exists a "genuine issue" of material fact that precludes summary judgment requires the motion judge to 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. [Id. at 540.]

Therefore, we must assume plaintiffs' version of the facts is true and give plaintiffs the benefit of all favorable inferences. Id. at 536. However, a court "may pick and choose inferences from the evidence to the extent that 'a miscarriage of justice under the law' is not created." Ibid.; R. 4:49-1(a). To prevail on a summary judgment motion, defendants must show that plaintiffs' claims were so deficient as to warrant dismissal of their complaint. Butkera v. Hudson River Sloop "Clearwater," Inc., 300 N.J. Super. 550, 557 (App. Div. 1997).


The facts taken in the light most favorable to plaintiffs reveal that on April 16, 2004, plaintiff Rhasun Allah stopped by the Motel 6 in Maple Shade to visit his cousin, plaintiff Kerry Fletcher. Fletcher had been staying at the motel between the expiration of the lease on his apartment and the closing on a new home in Mount Ephraim. Allah arrived between 8:30 a.m. and 9:00 a.m. to visit Fletcher. Allah parked his car near the motel office. After a short visit, Fletcher offered to drive Allah to his car.

Unbeknownst to plaintiffs, the High Intensity Drug Trafficking Area (HIDTA) task force planned a major drug raid on a room at the motel. Their target was Dwayne Valentine, a suspected drug distributor. The HIDTA task force had received information that two unidentified individuals from Georgia would deliver a large shipment of marijuana to Valentine at the motel on April 16, 2004.

At approximately 9:15 a.m., Fletcher and Allah left Fletcher's room and entered Fletcher's car. Just as Fletcher started to back out of his parking space, the HIDTA team arrived at the motel. An SUV driven by defendant Sergeant Alva Grimes blocked Fletcher's path. Fletcher testified he was not immediately aware that his path had been blocked. He was aware, however, that his cousin was tapping his leg with some urgency.

Allah testified he saw an SUV block their path and observed a man exit the SUV and point a gun at them. At the time, he did not know the man pointing the gun at him was a police officer. He described the scene as follows:

And I tapped [Fletcher] on his leg with my left hand; I couldn't talk, but I was telling him, you know, don't move this car. You know, I was just -- I didn't say it verbally, but I was -- that's the reason why I was tapping him on leg, because I seen that someone had a gun pointed at us.

At the same time, Allah also observed people "scattering" and "scrambling" and "running in different directions" throughout the parking lot. As the officer, later identified as Sergeant Grimes, pointed a gun at Allah, another officer opened the passenger door, grabbed his arm and removed him forcefully from the car. This officer, later identified as defendant Lieutenant

M. Mangold, wore a jacket with law enforcement insignia on it. Once Allah was removed from the car, Mangold handcuffed him. Mangold escorted him to the front of the car by the driver's side. Defendant Grimes objected to the proximity of Allah and Fletcher, so Grimes "pulled" Allah to a car parked adjacent to Fletcher's car. Grimes intervened stating, "I'll take it from here," and ordered Allah to sit on the hood of the car. Allah testified he acquiesced but had difficulty mounting the hood due to his handcuffs and the tool belt he wore.*fn1 Allah testified that Grimes threatened him with physical harm, if he did not stay seated on the hood of the car. Allah recounted the exchange with Grimes as follows:

So I kept sliding off as he was putting me on there. And he said, do you think I'm playing with you? He says, get your ass up on the car. And I said, I got a tool belt on and I'm handcuffed, you know, I'm trying, you know. I got up on the car.

And, you know, I was kind of tilted awkwardly on the car and I slid off again. And he stepped up in my face and said, do you think I'm playing with you? He says, I'll kill you. I'll kill you out here, he says. Do you think I'm playing with you? He says, I'm not a rookie, he said, I've been doing this a long time and I can tell if somebody's lying to me and you keep rocking on the car like you want to run or something like that. I'll kill you, he said, I'll kill you, you know.

Allah recalls being questioned by both defendants Grimes and Mangold. As Allah tried to remain seated as instructed on the hood of an adjacent car, Grimes questioned him about his presence at the Motel 6 and his knowledge of Fletcher. Allah invited Grimes to reach into his pocket and inspect his driver's license because "you'll see, you know, I'm not the person you're looking for." Grimes recorded Allah's name and address in a notebook, and testified that he felt "very, very paranoid" due to the uncertainty of the situation.

Defendant Grimes admitted he exited the SUV from the driver's side with a "submachine gun," and pointed the gun at plaintiffs. Fletcher testified that as Grimes approached them, he screamed "Get the fuck out of the car." Fletcher stated that Grimes "snatched" him by his left arm as he worked to release his seat belt, "forcefully removed him from the vehicle," and "slam[med]" him into the side of the car door. Fletcher also testified that Grimes "rip[ped] both [of his] arms back," meaning Grimes "pulled them as hard as he could" in order to place handcuffs on him. This was the first time Fletcher realized that Grimes might be a police officer. Fletcher also testified Grimes pointed a gun at his back. When Fletcher attempted to ask Grimes why he was being detained, Grimes responded, "Shut the fuck up."

As Grimes had Fletcher pinned against the car, Grimes inquired why he was in the Motel 6 parking lot. Fletcher responded he was a guest, but Grimes did not believe him. Grimes informed Fletcher he should cooperate with him. Grimes asked for identification and removed Fletcher's wallet from his front pocket. Grimes then left Fletcher standing next to his car for two or three minutes.

Mangold was nearby and asked Fletcher what he had in his truck. Fletcher responded, "You are free to take a look at anything you want to." Mangold denied searching Fletcher's car because they had not executed a consent to search. Fletcher also testified he permitted the police to search his room.

After Grimes obtained both plaintiffs' drivers' licenses, he contacted the Gloucester Township Police Department to check for outstanding warrants. Allah testified that this process took ninety minutes. After the call, Grimes returned, removed the handcuffs, and informed Allah he was free to leave. Allah recounted the conclusion of this episode as follows:

And finally Mr. Grimes comes over and says, take him out of the handcuffs. They released me from the handcuffs and I said, well, you know, what's going on?

And then, if I'm not mistaken, I think [plaintiff Fletcher] was still in handcuffs, I think they still had him in handcuffs and I didn't get an answer for that.

And I can remember asking him again, what's going on? And then I can't remember honestly if it was Mr. Grimes or if it was another gentleman that said, well, listen, you know, you know, that's it, that's enough and if you don't get the fuck out of here I'm going to lock you up for obstructing justice.

And then that was it. We got in the car and we -- you know, actually I can't remember if I got in the car or I walked to my truck. I can't remember from there, but that's basically what happened that day.

Fletcher stated Grimes removed the handcuffs and told him he was free to leave. He provided the following account of the conclusion of the encounter:

[Defendant Grimes] released the handcuffs from me and I asked him, What's all this about? He said, Oh, we are looking for two guys with drugs from Georgia but you guys aren't the guys. That's it.

Well, they let my cousin go, as well.

We got back in the car. I said, I'm going to get this guy's name here. I went back to him to get his name. He said, What? I said, Yeah. I want to get your name. He said, Get the fuck out of here, man, before I arrest you for obstruction of justice.

Get the fuck out of here.

Mangold and Grimes provided different accounts of plaintiffs' seizure. Grimes and Mangold were employed by defendant Camden County Prosecutor's Office (CCPO) at the time of the raid. Grimes had been supervising the investigation of Valentine over a four-month period.

On the afternoon of April 15, 2004, Grimes briefed Mangold, who had not previously been involved in the investigation, on the expected drug shipment, and inquired whether Mangold would be available for tactical support during the drug raid. Mangold stated he would be available. Tactical support, according to Mangold, is usually employed for high-risk and large-scale narcotics operations where weapons will likely be involved, and where extra manpower and surveillance is needed. For this operation, Mangold described the tactical mission as placing Valentine in a "pocket," meaning surrounding and monitoring him and any other countersurveillance working with Valentine.

As of April 15, Mangold recalled the HIDTA task force did not know exactly where Valentine would be receiving the drug shipment. That evening, Valentine was placed under surveillance at his Philadelphia residence; "he was in the pocket." According to Mangold and Lieutenant M. Nicholas, the HIDTA task force knew the operation would occur at the Motel 6 at approximately 10:00 a.m. on the morning of April 16, 2004.

Around 10:30 a.m., intelligence revealed that Valentine and/or some of his associates noticed the surveillance. Grimes ordered the moving surveillance team, comprised of approximately eight to twelve vehicles, to back off Valentine as he drove from Philadelphia to New Jersey. At the same time, Grimes ordered stationary, on-foot surveillance and a marked Maple Shade police car to survey the Motel 6 parking lot. They reported the presence of two vehicles in the lot with Georgia license plates. These two vehicles, a car and a pickup truck, were not parked next to each other. Mangold estimated about forty to fifty yards separated the vehicles. In fact, the record demonstrates that the cars were parked in front of separate buildings.

After a stop at a nearby Dunkin' Donuts, Valentine approached the Motel 6 parking lot and headed toward Room 245. Prior to Valentine's arrival at Room 245, the HIDTA task force only knew that Valentine would be meeting individuals from Georgia. Thereafter, the surveillance team noticed Valentine enter Room 245, emerge with another individual, and open the trunk of the car with a Georgia license plate.

At that point, defendant Grimes "gave a move-in call and [twenty-five to forty officers] converged on the scene." Some officers approached Valentine as he stood at the car with the Georgia plates. Grimes and Mangold, who were together in an unmarked SUV, converged on the other vehicle in the lot with Georgia plates.

Plaintiffs were parked next to the pickup truck with the Georgia plates. As Fletcher pulled his car out of its parking spot, Grimes drove the SUV in front of plaintiffs to prevent them from leaving the scene. Grimes later testified: "I thought there was a possibility this pickup truck was involved in our investigation and I wanted to make sure that pickup truck remained where it was at and detain any parties associated with the pickup truck." Mangold explained the combination of plaintiffs leaving the scene in the midst of "the takedown," and plaintiffs' vehicle being parked next to the pickup truck, led defendants to form a reasonable suspicion plaintiffs were involved in the underlying narcotics transaction.

Grimes admitted he confronted Fletcher, but denied touching him as he exited his car. He described Fletcher as "agitated" and inquisitive. Grimes stated he immediately responded by telling Fletcher that a narcotics investigation was underway. Grimes asked Fletcher to place his hands on the roof of the car for a pat down.

The record reflects a consensus that plaintiffs were released about 11:30 a.m. Plaintiffs estimate they were detained about 90 minutes; Mangold insists they were detained for no more than fifteen minutes. We can infer from the record that plaintiffs were detained between forty-five and sixty minutes. Following their release, neither plaintiff had any further contact with any member of the HIDTA squad. No criminal charges were ever filed against either plaintiff.

Plaintiffs filed notices of tort claims, and Fletcher filed a complaint against Grimes and Mangold with the County Prosecutor. The CCPO conducted an internal investigation but found no basis to discipline any officer.


On September 22, 2005, Fletcher and Allah filed a six-count complaint against defendants CCPO, fictitious detectives and employees of the office, Camden City Police Department and fictitious officers and employees of this force, Sergeant Grimes of the CCPO and the City of Camden. Plaintiffs alleged unreasonable force during arrest and police brutality (Count One), false arrest (Count Two), assault and wrongful threats with a deadly weapon (Count Three), deprivation of constitutional rights (Count Four), conspiracy to maliciously prosecute them (Count Five), and liability against the public entities pursuant to 42 U.S.C.A. § 1983 due to systemic deficiencies and inadequate training.

In their March 7, 2007 amended complaint, plaintiffs substituted fictitious defendants with Lt. M. Mangold, Investigator Terry King, Investigator J. Dunlap, and Lt. M. Nicholas of the CCPO. Plaintiffs alleged that defendants' actions caused "grievous injuries" and a loss of liberty "without equal protection or due process of law." Following the conclusion of discovery, defendants filed a motion for summary judgment which was granted following oral argument.

A. Camden County Prosecutor's Office

We commence our discussion with the claims against defendant CCPO. In their complaint and amended complaint, plaintiffs seek recovery from all defendants, including the CCPO, on all claims asserted in their complaint. In their brief, however, plaintiffs specifically refer to this defendant only in passing in their Statement of Facts in which they relate the filing of a complaint with the prosecutor's office and then only in the portion of their brief in which they argue that the CCPO is liable under 42 U.S.C.A. § 1983 for its failure to properly train, supervise or discipline its officers; or its adoption of an official policy or custom that leads to constitutional violations; or its implicit authorization or approval or acquiescence in unconstitutional conduct by its officers. We, therefore, confine our discussion of the liability of defendant CCPO under this theory.

42 U.S.C.A. § 1983 provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

Admittedly, a municipality may be liable under this statute "when an official municipal 'policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy,' is the cause of the constitutional deprivation." Stomel v. City of Camden, 192 N.J. 137, 145 (2007) (quoting Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 2037-38, 56 L.Ed. 2d 611, 638 (1978)). The Camden County Prosecutor, however, is not a municipal employee and his office is not an agency of municipal government. County prosecutors are considered agents of the State when they perform their law enforcement and investigatory functions. Wright v. State, 169 N.J. 422, 451-52 (2001).

This distinction between municipal and state government is significant because the Supreme Court of the United States has held that "neither a State nor its officials acting in their official capacities are 'persons' under § 1983." Will v. Michigan Dep't of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 2312, 105 L.Ed. 2d 45, 58 (1989). This holding extends to "governmental entities that are considered 'arms of the State,'" Id. at 70, 109 S.Ct. at 2312, 105 L.Ed. 2d at 57 (quoting Mount Healthy Board of Education v. Doyle, 429 U.S. 274, 280, 97 S.Ct. 568, 50 L.Ed. 2d 471 (1977)), and "a suit against a state official in his or her official capacity." Id. at 71, 109 S.Ct. at 2312, 105 L.Ed. 2d at 58. Accord Fuchilla v. Layman, 109 N.J. 319, 323-24 (1988).*fn2

The motion judge properly granted summary judgment on Counts One, Two and Six of the Amended Compliant as those claims relate to CCPO because it is a law enforcement agency of the state. We, therefore, affirm this portion of the August 13, 2009 order.

B. Individual Defendants

In Counts One and Two, respectively, plaintiffs allege that the individual defendants used excessive force in effecting their seizure and also allege unlawful arrest. In doing so, plaintiffs assert defendants violated their Fourth Amendment rights. Although plaintiffs do not specifically invoke 42 U.S.C.A. § 1983, it is this statutory provision that provides the civil remedy for deprivations of federal constitutional rights. Parratt v. Taylor, 451 U.S. 527, 534-535, 101 S.Ct. 1908, 1912, 68 L.Ed. 2d 420, 428 (1981); Baker v. McCollan, 443 U.S. 137, 144 n.3, 99 S.Ct. 2689, 2694 n.3, 61 L.Ed. 2d 433, 442 n.3 (1979). See Orsatti v. N.J. State Police, 71 F.3d 480 (3d. Cir. 1995) (civil action seeking damages for arrest without probable cause brought pursuant to 42 U.S.C.A. § 1983).

The Fourth Amendment of the United States Constitution provides that "[t]he right of the people to be secure in their persons . . . against unreasonable searches and seizures, shall not be violated." U.S. Const. amend. IV. A claim of excessive force as an unreasonable seizure has two elements: a seizure and unreasonable conduct. Abraham v. Raso, 183 F.3d 279, 288 (3d Cir. 1999). A seizure occurs when an officer "restrains the freedom of a person to walk away." Tennessee v. Garner, 471 U.S. 1, 7, 105 S.Ct. 1694, 1699, 85 L.Ed. 2d 1, 7 (1985). In the context of a § 1983 claim, plaintiffs must establish that the complained of action occurred under color of state law and the action deprived them of a federal constitutional or federal statutory right.

Police officers performing functions associated with their position who perform an unreasonable search or seizure are neither strictly liable to the person nor immunized from liability for their actions. They may be shielded from liability for civil damages if "their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed. 2d 396, 410 (1982); Orsatti, supra, 71 F.3d at 483. Police officers are afforded qualified immunity to serve two competing interests. First, police officers need to be free to discharge their duties without fear of defending insubstantial claims. Second, the public has a need to vindicate a violation of their civil rights through a monetary award. Pearson v. Callahan, ___ U.S. ___, 129 S.Ct. 808, 815, 172 L.Ed. 2d 565, 573 (2009); Anderson v. Creighton, 483 U.S. 635, 638-39, 107 S.Ct. 3034, 3038, 97 L.Ed. 2d 523, 529-30 (1987). This protection exists "regardless of whether the police officer's error is 'a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact.'" Pearson, supra, ___ U.S. at ___, 129 S.Ct. at 815, 172 L.Ed. 2d at 573 (quoting Groh v. Ramirez, 540 U.S. 551, 567, 124 S.Ct. 1284, 1295, 157 L.Ed. 2d 1068, 1084 (2004)).

Judges are encouraged to resolve claims of qualified immunity "at the earliest possible stage of a litigation." Creighton, supra, 483 U.S. at 646 n.6, 107 S.Ct. at 3042 n.6, 97 L.Ed. 2d at 535 n.6. Summary judgment is an appropriate vehicle to address such claims.

To determine whether a government official is entitled to qualified immunity, a court applies the two-pronged analysis outlined in Saucier v. Katz, 533 U.S. 194, 200-01, 121 S.Ct. 2151, 2156, 150 L.Ed. 2d 272, 281 (2001). The initial inquiry asks whether "[t]aken in the light most favorable to the party asserting the injury," "the facts alleged show the officer's conduct violated a constitutional right[.]" Ibid. If so, the next step asks "whether the right was clearly established" at the time of the officer's alleged misconduct. Ibid.; see also Pearson, supra, ___ U.S. at ___, 129 S.Ct. at 816, 172 L.Ed. 2d at 573. In other words, "[q]ualified immunity is applicable unless the official's conduct violated a clearly established constitutional right." Pearson, supra, ___ U.S. at ___, 129 S.Ct. at 816, 172 L.Ed. 2d at 573 (citing Creighton, supra, 483 U.S. at 640, 107 S.Ct. at 3039, 97 L.Ed. 2d at 531).

Defendants do not contest that their actions were under color of state law. Defendants do not concede they handcuffed plaintiffs, however, for purposes of summary judgment, we must accept that plaintiffs were handcuffed and held at gunpoint and that such action constitutes a seizure. Defendants admit guns were drawn, and they detained plaintiffs, but insist they did so pursuant to a valid Terry*fn3 stop.

A "Terry stop" is an exception to the Fourth Amendment's warrant requirement that permits an officer to temporarily detain an individual for questioning if the "officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot . . . ." Terry, supra, 392 U.S. at 30, 88 S.Ct. at 1884, 20 L.Ed. 2d at 911 (Harlan, J., concurring). In such circumstances, the police officer may briefly stop the individual and make "reasonable inquiries" to dispel or confirm the officer's suspicions. Ibid.

Importantly, Terry carved out a set of circumstances where an officer may conduct an investigatory stop of an individual based upon "reasonable suspicion," a standard less stringent than "probable cause." United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 750, 151 L.Ed. 2d 740, 749 (2002). A reviewing court "must look at the 'totality of the circumstances' of each case to see whether the detaining officer has a 'particularized and objective basis' for suspecting legal wrongdoing" of the detained individual. Ibid. That is, the officer must demonstrate more than an "inchoate and unparticularized suspicion or 'hunch'" to justify a temporary detention. Terry, supra, 392 U.S. at 27, 88 S.Ct. at 1883, 20 L.Ed. 2d at 909. More specifically, the officer must have "some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity." United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 695, 66 L.Ed. 2d 621, 628 (1981).

Here, plaintiffs argue their initial detention was unreasonable on several grounds. Namely, plaintiffs criticize defendants for inadequately planning the drug takedown, detaining plaintiffs at a location far away from the actual criminal activity, and having no information linking plaintiffs to the crime. Defendants respond that the circumstances underlying plaintiffs' detention renders the stop "entirely legitimate." Specifically, defendants Grimes and Mangold note the HIDTA task force had very little information regarding who would be meeting Valentine at the Motel 6 for the narcotics transaction. The task force only knew an unknown number of individuals would be coming from Georgia and bringing with them a large quantity of marijuana. Thus, when defendants Grimes and Mangold converged on the scene, they focused on the vehicles bearing Georgia license plates, one of which was parked next to Fletcher's car. Further, defendants insist their focus on plaintiffs as persons involved in the crime was not unreasonable, because defendants did not have prior knowledge of who would be meeting Valentine.

The initial Terry stop did not violate plaintiffs' Fourth Amendment rights. The reasonable suspicion inquiry considers the officers' background and training, and permits them "to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person." Arvizu, supra, 534 U.S. at 273, 122 S.Ct. at 750-51, 151 L.Ed. 2d at 749-50 (internal quotation omitted). Moreover, the constitutionality of the detention must be judged "in light of the information available to [defendants] at the time they acted." Maryland v. Garrison, 480 U.S. 79, 85, 107 S.Ct. 1013, 1017, 94 L.Ed. 2d 72, 81 (1987).

Here, the record supports a finding that defendants Grimes and Mangold had reasonable suspicion to believe plaintiffs were involved in the underlying narcotics crime. They knew a large shipment of marijuana was arriving in New Jersey from Georgia. They did not know, however, the exact quantity of the shipment. It was not unreasonable, therefore, for the officers to suspect that the second vehicle bearing Georgia license plates might be involved in the shipment. Moreover, plaintiffs proximity to the second Georgia vehicle and their attempt to leave at the very moment the raid commenced raised a reasonable suspicion they may be involved with Valentine. Finally, Grimes' and Mangold's prior experiences informed them of the potential dangers associated with a drug interdiction assignment. On the other hand, viewing the facts as we must in a summary judgment context, the reasonableness of the initial stop does not absolve police officers from liability when the stop is unreasonably extended and accompanied by undue force.

The scope of a "Terry stop" is rather limited. Dunaway v. New York, 442 U.S. 200, 210, 99 S.Ct. 2248, 2255, 60 L.Ed. 2d 824, 834 (1979). A "Terry stop" may transform into an unlawful seizure under the Fourth Amendment if the detention lasts "longer than is necessary to effectuate the purpose of the stop." Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 1325, 75 L.Ed. 2d 229, 238 (1983). See also State v. Dickey, 152 N.J. 468, 478 (1998). "[T]he investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer's suspicion in a short period of time." Royer, supra, 460 U.S. at 500, 103 S.Ct. at 1325-26, 75 L.Ed. 2d at 238. Notably, the government has the burden "to demonstrate that the seizure it seeks to justify on the basis of a reasonable suspicion was sufficiently limited in scope and duration to satisfy the conditions of an investigative seizure." Id. at 500, 103 S.Ct. at 1326, 75 L.Ed. 2d at 238.

In terms of the duration of the investigatory stop, the Court has declined to set forth a bright line rule to measure when a permissible "Terry stop" transforms into an unlawful de facto arrest. Unites States v. Sharpe, 470 U.S. 675, 685-86, 105 S.Ct. 1568, 1575, 84 L.Ed. 2d 605, 615 (1985). Here, plaintiffs allege their detention lasted for approximately one and one-half hours. Detention for this period of time is generally understood to extend beyond the parameters of Terry. Compare Sharpe, supra, 470 U.S. at 687-88, 105 S.Ct. at 1576, 84 L.Ed. 2d at 616-17 (finding a twenty-minute detention a lawful investigatory stop, for there was no unnecessary delay and the officers acted diligently), with United States v. Place, 462 U.S. 696, 709-10, 103 S.Ct. 2637, 2645-46, 77 L.Ed. 2d 110, 122-23 (1983) (holding a "prolonged" ninety-minute detention beyond the scope of Terry because the officers failed to minimize the intrusion on the individual's Fourth Amendment rights).

In addition, the lawfulness of a "Terry stop" may be influenced by the presence of weapons and the use of handcuffs. Although, "[t]here is no per se rule that pointing guns at people, or handcuffing them, constitutes an arrest[,]" under the totality of the circumstances, the use of guns and handcuffs, in consideration with the length of the detention, can amount to "a very substantial invasion of the [individual's] personal security." Baker v. Monroe Twp., 50 F.3d 1186, 1193 (3d Cir. 1995) (reversing summary judgment in favor of officers who had detained a mother and her teenage children as they approached a residence where officers were about to execute a search warrant). Here, neither party disputes that defendant Grimes pointed a "submachine gun" at Fletcher as he initially approached plaintiff's vehicle. While we recognize that Grimes disputes that he poked the gun into Fletcher's back and that he pointed a gun at him throughout the detention, we must assume in this procedural context that defendants Grimes and Mangold handcuffed plaintiffs and they remained restrained throughout the detention.

Furthermore, plaintiffs argue defendants' use of excessive force violated their Fourth Amendment rights. Plaintiffs testified that defendant Grimes and defendant Mangold forcefully removed them from the vehicle.*fn4 Defendants did so by pointing automatic weapons at them, grabbing their arms, pinning them against a vehicle, and placing them in restraints and holding them at gunpoint while police checked their identification.

As stated previously, the first inquiry in determining whether defendants are entitled to qualified immunity for their conduct asks whether "[t]aken in the light most favorable to [plaintiffs]," "the facts alleged show [defendants'] conduct violated a constitutional right[.]" Saucier, supra, 533 U.S. at 201, 121 S.Ct. at 2156, 150 L.Ed. 2d at 281. Here, summary judgment is not proper because, viewing the facts in the light most favorable to plaintiffs, they were dragged at gunpoint from their car, handcuffed and held at gunpoint for ninety minutes. Defendants have not "demonstrate[d] that the seizure [they] seek[] to justify on the basis of a reasonable suspicion was sufficiently limited in scope and duration to satisfy the conditions of an investigative seizure." Royer, supra, 460 U.S. at 500, 103 S.Ct. at 1326, 75 L.Ed. 2d at 238.

The next step in the qualified immunity analysis requires the judge to determine if the constitutional right invoked by plaintiffs was clearly established at the time. "'If, and only if, the court finds a violation of a constitutional right,'" will the court move to the second step of the qualified immunity analysis. Curley v. Klem, 499 F.3d 199, 207 (3d Cir. 2007) (quoting Scott v. Harris, 550 U.S. 372, 377, 127 S.Ct. 1769, 1774, 167 L.Ed. 2d 686, 692 (2007)). This second question asks "whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Saucier, supra, 533 U.S. at 202, 121 S.Ct. at 2156, 150 L.Ed. 2d at 282. The doctrine of qualified immunity, however, acknowledges that an officer may make reasonable mistakes as to the legal constraints of particular police conduct. Id. at 205, 121 S.Ct. at 2158, 150 L.Ed. 2d at 284; Curley, supra, 499 F.3d at 207. Thus, "[i]f the law did not put the officer on notice that his conduct would be clearly unlawful, summary judgment based on qualified immunity is appropriate." Saucier, supra, 533 U.S. at 202, 121 S.Ct. at 2156-57, 150 L.Ed. 2d at 282.

Here, defendants argue that even if plaintiffs' Fourth Amendment rights were violated by the detention, the rights were not "sufficiently clear that a reasonable official would understand that what he is doing violates that right." Creighton, supra, 483 U.S. at 640, 107 S.Ct. at 3039, 97 L.Ed. 2d at 531. Defendants insist plaintiffs had not clearly established the right to be free from an investigatory detention as they attempted to depart from the scene of a major drug interdiction under suspicious circumstances. That may be true, but plaintiffs had a known right to be detained in the least intrusive fashion. Notably, defendants fail to address what would be reasonable police conduct once they realize the detained individuals are unarmed. See, e.g., Baker, supra, 50 F.3d at 1193 (testimony that the use of handcuffs would generally be inappropriate prior to arrest, especially when the officers do not feel threatened by the detained individuals or do not fear the individuals will flee). On the other hand, plaintiffs submitted an expert opinion from a retired New York City senior police officer who opined that police may have been "well within their rights to investigate [plaintiffs'] possible involvement in the drug transaction," but plaintiffs should not have been detained more than ten to fifteen minutes.

Accordingly, summary judgment on the issue of qualified immunity for defendants Grimes and Mangold is premature. First, viewing the record in the light most favorable to plaintiffs under the two-pronged test set forth in Saucier, defendants' detention of plaintiffs was too long and not conducted in the least intrusive manner. Under the second prong of the qualified immunity analysis, the factual record did not allow the motion judge to hold as a matter of law that defendants' conduct did not violate a clearly understood constitutional right.

Although summary judgment is the preferred mechanism to address qualified immunity claims, here, a definitive qualified immunity decision cannot issue given the nature and extent of the disputed facts. Those facts include the length of the detention, the use of weapons to effectuate and continue the detention, and the use of handcuffs.

Finally, we have addressed the qualified immunity issue only regarding defendants Grimes and Mangold. Nicholas, who served as the "operation supervisor" for the drug raid, explained he was there to collect information from Grimes and Mangold after the scene was secured. However, Nicholas had minimal involvement with plaintiffs and lacked personal knowledge of the encounter between plaintiffs and the other individual defendants. Plaintiffs presented insufficient evidence to establish any liability of defendant Nicholas. Therefore, the judge properly dismissed the § 1983 claims against Nicholas.


Plaintiffs also asserted a state law claim predicated on the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 10A-6, to redress the excessive force used by defendants Mangold and Grimes. Defendants insist the CCPO is absolutely immune, and defendants Mangold and Grimes enjoy qualified, if not absolute immunity. Defendants also argue that plaintiffs' claims fail to satisfy the terms of N.J.S.A. 59:9-2, the so-called verbal threshold provision. We address this issue first.

The TCA allows recovery of damages for injury caused by a public employee or public entity only if the injured person meets the statutory conditions concerning type of injury and amount of expenses incurred to treat the injury. N.J.S.A. 59:9-2(d) provides:

No damages shall be awarded against a public entity or public employee for pain and suffering resulting from injury; provided, however, that this limitation on the recovery of damages for pain and suffering shall not apply in cases of permanent loss of a bodily function, permanent disfigurement or dismemberment where the medical treatment expenses are in excess of $3,600.00.

To withstand a motion for summary judgment, plaintiffs must produce objective medical evidence of injury and document the requisite amount of medical expenses. Knowles v. Mantua Twp. Soccer Ass'n, 176 N.J. 324, 335 (2003). Plaintiffs have failed to produce any evidence of injury, mental or physical, or any treatment.

Plaintiffs argue, however, that the TCA threshold requirements do not apply because defendants Mangold and Grimes engaged in criminal wrongdoing or willful misconduct. Willful misconduct or criminal conduct does not render a public entity liable for the misdeeds of an employee, N.J.S.A. 59:2-10, and falls outside the scope of the TCA, thereby rendering the threshold provision of the TCA inapplicable. However, to establish willful misconduct, plaintiffs must establish more than an absence of good faith and much more than negligence. Rather, plaintiffs must establish that the public employee "knowingly perform[ed] a forbidden act." Hill v. Algor, 85 F. Supp. 2d 391, 411 (D.N.J. 2000).

While the manner in which the detention was executed may raise questions about the good faith of defendant officers, plaintiffs have produced no evidence that their conduct implicates more than an absence of good faith or knowing performance of a forbidden act, the standard required to establish willful misconduct.

We have already held that the initial stop was reasonable. The remaining issue is whether the nature of the detention measured by time and the force employed to effectuate and continue the detention were reasonable. On the record before the motion judge, plaintiffs did not adduce the quality of evidence to remove defendants' conduct from the scope of the TCA. Having failed to satisfy the N.J.S.A. 59:9-2 threshold, the motion judge properly granted summary judgment in favor of defendants Mangold, Grimes, and the CCPO on plaintiffs' TCA claims and common law claims for improper detention and excessive force.

In summary, we hold that the CCPO is absolutely immune from suit; therefore, summary judgment as to CCPO is affirmed. Similarly, the judge properly granted summary judgment on plaintiffs TCA and common law claims. On the other hand, summary judgment on plaintiffs § 1983 claims as to defendants Mangold and Grimes was premature and summary judgment is reversed as to these claims. Summary judgment in favor of defendant Nicholas is affirmed.

Affirmed in part; reversed in part, and remanded.

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