United States District Court, D. New Jersey
MADELINE COX ARLEO United States District Judge
MATTER comes before the Court on Defendants City Of
Newark, Sheilah A. Coley, Samuel A. Demaio, and Det. Larry
Collins's (together, “Defendants”) motion for
summary judgment against Plaintiff John Newsome. ECF No. 71.
In this case, Newsome sues various members of the Newark
Police Department for constitutional violations after he was
mistakenly arrested and indicted for assault based on a
victim misidentification. Because the Court finds that
probable cause existed for his arrest, Defendants' motion
case begins with a violent assault. Around 9 p.m. on October
9, 2011, a group of people with baseball bats attacked
Jermain Bruce on a street in Newark, New Jersey. Defs.'
Statement of Undisputed Material Facts (“SMF”)
¶¶ 9-10. ECF No. 71-2; Lipshutz Cert. Ex. C,
Incident Rpt. 4. When police arrived on the scene, they found
Bruce bruised and handcuffed to a gate. Defs.' SMF ¶
11; Incident Rpt. 4. The attack happened down the street from
his home, an apartment above a daycare center. Defs.' SMF
¶ 9. Though hurt, Bruce could communicate some facts to
the officers. He told them that there were five attackers:
two men and three women. Id. ¶ 12. He could
identify one of them, a man named Adrian, but not the other
four. Id. He also told the officers why he believed
it happened: the five attackers worked at the daycare center
and jumped him because they thought he was responsible for a
recent break-in there. Id. Bruce spent the night in
the hospital and was released the next morning. Lipshutz
Cert. Ex. B, Audio Statement of Jermain Bruce dated Oct. 12,
2011 (“Audio Statement”) 14:18-15:10.
Larry Collins, a detective in the Newark police department,
was assigned to investigate the case. Id.
¶¶ 7-13. Three days after the attack, Collins took
an audio statement from Bruce at the police station.
Id. ¶ 14; Audio Statement 1:4-12. Bruce
reiterated much of what he had told the responding officers.
He said he was attacked by the daycare owner's son
Adrian, whom he described as “the fat one”; the
owner's three daughters, whose names he did not know; and
another man, all of whom he had seen daily at the daycare.
Id. ¶¶ 15, 16; Audio Statement 12:2-23. He
could not remember the other man's name but said the man
was the daycare owner's “husband” and the
other attackers' “father” and
“stepfather.” Id. ¶ 17; Audio
Statement 6:8-8:23. Bruce, a Black man in his 30s, described
the unknown man as light skinned, bald, and “a little
slimmer” than Adrian, though he could not guess the
man's age. Incident Rpt. 4; Audio Statement 16:11-17:15.
Bruce also said the man was “a little bit taller
than” Collins, who is 6'2”, and “a
little shorter than” Bruce, who is 6'5”.
Audio Statement 16:13-17:2.
also told Collins he could recognize the assailants if he saw
them again because he “see[s] them every day coming out
of the daycare center . . . .” Audio Statement
14:11-16. So Collins showed Bruce photographs in a mugshot
system called “HIDTA, ” which displays six
results at a time. Defs.' SMF ¶¶ 20-22. Collins
began by searching the system for mugshots of men named
Adrian. Id. ¶ 21. Bruce identified a photo of
Adrian Zimmerman. Id. ¶ 23.
then tried to find matches for the other male assailant.
Id. ¶ 24. He searched for people matching
Bruce's description of the man's physical attributes,
but Bruce reviewed “several hundred[ ]” photos
over about 15 to 30 minutes without recognizing the second
attacker. Id. ¶ 25; Lipshutz Cert. Ex. D,
Collins Dep. 48:6-49:21. Collins tried another tack. He
remembered that Bruce mentioned the daycare center several
times-the alleged break-in happened there, Bruce recognized
the attackers from there, and the attackers were related to
the daycare owner-so Collins looked for a link between the
unknown man and that location. Defs.' SMF ¶¶
26-27; Collins Dep. 51:8-52:10. He entered the daycare's
address into another system known as the Accurint
database. Defs.' SMF ¶ 28. It returned 33
names of people who have had a connection with the address at
some point. Id. ¶ 29. Collins cross-referenced
the names of any men on that list with their DMV records, and
showed Bruce the photos one at a time as the system retrieved
them. Collins Dep. 55:20-56:14, 72:1-3. It is unclear how
many DMV photos Bruce reviewed, but one was of Plaintiff John
Newsome. Collins Dep. 56:12-22; Defs.' SMF ¶ 32.
came across Newsome's name through an indirect match to
the daycare. The eleventh Accurint result showed that a woman
named Robin Newsome had some association with the daycare
address in June 2006, and that she now lives with John
Newsome in Glassboro, New Jersey, which is about 96 miles
from the daycare in Newark. See Lipshutz Cert. Ex.
E, Accurint Search Results I at bates stamp 45; Collins Dep.
Bruce saw the photo, he identified Newsome as the other male
attacker. Defs.' SMF ¶ 32. The photo showed a
light-skinned black man with a bald head. Id. ¶
35. Collins had Bruce sign and date the photo of Newsome.
Id. ¶ 36. Collins noticed that Newsome's
height in the DMV database (5'9”) did not match
Bruce's description (6'2” to 6'5”).
Id. ¶¶ 33-34. He also ran a background
check on Newsome and found he had no criminal history.
Collins Dep. 72:12-20.
then ran a new Accurint search with the Glassboro address and
Newsome's name appeared again, listing the location as
his probable current address. Defs.' SMF ¶ 37;
Lipshutz Cert. Ex. F, Accurint Search Results II at 1. Based
on what he learned that day, Collins believed he had probable
cause to arrest Newsome. Defs.' SMF ¶ 43; Collins
then wanted Bruce to identify the three women. Defs.' SMF
¶ 38. During their conversation that day, Collins
recognized that Bruce was in pain but felt that Bruce was
otherwise relaxed, calm, and seemed reliable. Collins Dep.
50:17-51:1. But at that point Bruce said he was in too much
pain to continue. Defs.' SMF ¶ 38. Collins told
Bruce to call back to finish the identification process, but
Bruce never did. Id. ¶ 40.
next day, October 13, 2011, Bruce called Collins to report
that Zimmerman was in the daycare, so Collins called local
officers who arrested Zimmerman without a warrant. Collins
Dep. 74:17-79:11, 94:6-18. Collins told Bruce to call if he
saw any other suspects, but again Bruce never did.
Collins prepared a warrant for Newsome's arrest.
Id. ¶ 44. At his deposition, Collins explained
the usual process for securing an arrest warrant: He would
take the typed warrant, cover letter, and any other integral
paperwork to the Essex County Prosecutor's Office where
he would explain the case to an assistant prosecutor; if the
assistant prosecutor agreed that probable cause for the
arrest existed, the prosecutor would sign the cover letter;
Collins would then take the documents to the court and
present them to the judge, who would decide whether the
warrant should issue. Collins Dep. 79:4-81:18. Meanwhile, the
reviewing prosecutor would fill out an internal screening
form indicating his or her probable cause determination, and
keep the form on file with the Prosecutor's Office for
its own records. Ocasio Aff. ¶¶ 4-5, ECF No. 71-24;
id. Ex. A, Screening Form.
claims that, on October 31, 2011, he presented the warrant,
cover letter incident report, audio statement, and signed
photograph of Newsome to an assistant prosecutor. Defs.'
SMF ¶¶ 45-46. The assistant prosecutor affirmed the
existence of probable cause to arrest Newsome and signed the
cover letter. Id.; Collins Dep. 81:19-82:5. However,
the Essex County Prosecutor's Officer searched its
records and does not have a probable cause screening form for
the Newsome arrest warrant. Ocasio Aff. ¶ 8. But
Collins's timesheets for that day show that he spent 30
minutes at “31 Green Street, ” which is the same
address as the Essex County Prosecutor's Office's
satellite office where prosecutors review search warrants for
probable cause. Lindsay Cert. Ex. B, Collins Activity Report
at 31, ECF No. 81-4; Ocasio Cert. ¶ 3.
that day, Collins appeared in person at the City of Newark
Municipal Court before the Hon. Dion Williams, J.M.C., with
the documents relating to Bruce's assault and made an
oral application for a warrant for Newsome's arrest.
Defs.' SMF ¶ 48; Collins Dep. 86:3-8. Collins
asserts that he told Judge Williams why he believed probable
cause existed for the arrest. Defs.' SMF ¶ 49. He
also told Judge Williams about “the basis of the case,
” that he took an audio statement taken from Bruce and
provided the transcript, explained “how the
identification [of Newsome] was made, ” and gave Judge
Williams the photograph of Newsome that Bruce signed. Collins
Dep. 101:3-25. Collins maintains that he made these
statements under oath on the record in Judge Williams's
courtroom before the judge and other court staff.
Id. 102:1-23. However, like the probable cause
screening form, the audio recording of Collins's
application before Judge Williams is missing from the
Municipal Court's records. Lindsay Cert. Ex. D, Letter
from Newark Municipal Court to Mr. Lindsay, ECF No. 81-6.
Williams issued the warrant, a copy of which is in the
record. Lipshutz Cert Ex. G, Warrant dated Oct. 31, 2011
(“Arrest Warrant”). He signed the warrant and
checked the box stating “Probable cause is found for
the issuance of this complaint” and authorized any
officer of the peace to arrest Newsome. Id.
November 1, 2011, Newsome was arrested at work in Bridgeton,
New Jersey. Id. ¶ 51. The next day, Collins
picked up Newsome from the Cumberland County Correctional
Facility and took him to the precinct in Newark. Id.
¶¶ 52-54. There, Newsome told Collins that he knew
the daycare because his “wife's father happens to
own that building that the daycare center is in.”
Id. ¶¶ 55-56, 67 n.2; Lipshutz Cert. Ex.
H, Newsome Dep. 45:5-17. In other words, although Newsome was
not married to the woman who owned the daycare, he was
married to the woman whose father owned the building. After
four days in jail, Newsome was released on bail. Id.
February 7, 2012, Collins testified before the Grand Jury
regarding Newsome's involvement in Bruce's attack.
Id. ¶ 57. Collins testified that Bruce
identified the male attacker as the “boyfriend”
of the daycare owner and that he used Bruce's description
of the attacker to select the photo of John Newsome.
Id. ¶ 58. Collins also testified that Bruce
identified Newsome as one of the men who assaulted him.
Id. ¶ 59. The Grand Jury returned a five-count
indictment against Newsome and Zimmerman for conspiracy to
commit aggravated assault, aggravated assault, unlawful
possession of a weapon, possession of a weapon for an
unlawful purpose, and criminal restraint. Id. ¶
October 12, 2012, the Superior Court of New Jersey, Essex
County, held a Wade hearing to determine the
validity of the identification. Id. ¶ 61. At
the hearing, Collins testified that Bruce was
“[a]bsolutely positive” that the photo of Newsome
was the second male attacker. Id. ¶ 62;
Lipshutz Cert. Ex. L, Wade Hearing Tr. 29:2-13.
Collins also testified that it was appropriate to show
individual photos to Bruce because Bruce knew the unknown
male attacker, having seen him at the daycare before and
believing he was related to the other attackers and the
daycare owner. Defs.' SMF ¶¶ 63-64. Collins
explained that if it had been a stranger-on-stranger crime,
he would have used a photo array and another detective with
no involvement in the case would have presented the array to
Bruce. Wade Hearing Tr. 32:1-6. Collins explained
that these were the acceptable procedures “under the
published guidelines, ” id. 30:1-11, though he
admitted he did not know the “guidelines for eyewitness
identification . . . word-for-word.” Id.
32:14-16. Collins also testified that he subsequently (though
he does not say when) spoke to the daycare owner, who said
she did not know Newsome. Id. 35:4-9. Collins said
he later learned that Newsome was related to the building
owner. Id. 31:6-11.
had no other role in the case besides investigating to secure
the arrest warrant and testifying before the grand jury and
during the Wade hearing. Collins Dep. 89:1-90:8.
the Superior Court never ruled on the Newsome identification,
see State v. Zimmerman, No. A-5770-14T1, at 2 n.2
(N.J. Sup. Ct. App. Div. May 23, 2017) (per curiam)
(available on this Court's docket at ECF No. 85-2),
probably because of what happened next. After the hearing,
the Assistant Essex County Prosecutor (the “AP”)
spoke with Newsome's attorney about a possible
misidentification. Defs. SMF ¶ 76; Lipshutz Cert. Ex. O,
Morris Dep. 29:16-30:16. The issue came to the AP's
attention because Bruce made inconsistent statements
after Newsome's arrest and indictment. Morris
Dep. 26:23-28:3. Several months earlier, in August 2012,
Newsome and an investigator hired by Newsome's attorney
went to Bruce's home, and Bruce signed a handwritten
statement that he was “absolutely positive”
Newsome was not the unknown attacker. Defs.' SMF ¶
68-71. But on October 11, 2012, the day before the
Wade hearing, Bruce told a detective with the Essex
County Prosecutor's Office that Newsome was the attacker.
Id. 72-74. There is no evidence that Collins knew
about either statement. But when the AP learned about them,
he reached out to Adrian Zimmerman's attorney about a
potential misidentification. Id. ¶ 77; Morris
Dep. 27:15-18, 31:11-32:1. After speaking with Zimmerman, the
attorney told the AP that Zimmerman denied Newsome's
involvement in the attack and did not know who Newsome was.
on Zimmerman's statement, the AP reviewed the transcript
of Bruce's audio statement. Defs. SMF ¶ 79. The AP
learned that Bruce referred to the second male assailant as
Adrian's “stepfather” and at that point
realized that all of the attackers were members of the same
family. Id. ¶ 80. At the AP's directive,
another detective identified Zimmerman's stepfather as
Herbert Elijah. Id. ¶¶ 82, 83.
Elijah's photo looked similar to Newsome's, including
a bald head, similar facial features, and skin tone. Morris
Dep. 35:2-36:2. When Bruce saw the photo, he confirmed that
Elijah was the second attacker. Id. 36:24-37:3. So
Morris prepared a dismissal of the indictment against Newsome
and eventually obtained a superseding indictment against
Elijah. Defs. SMF ¶ 87; Morris Dep. 37:7-12.
years later, Zimmerman and Elijah went to trial. Id.
¶ 88. Bruce testified that he initially identified
Newsome as the unknown attacker but was mistaken.
Id. ¶¶ 89, 91. He said he did so because
Newsome and Elijah looked alike. Id. ¶ 90.
October 2013, Newsome brought this lawsuit against Detective
Collins, the City of Newark, Newark Chief of Police Sheilah
Coley, Director of Police Samuel Demaio, and Detective Paul
Sarabando. Newsome brought claims for (1) false arrest and
malicious prosecution under 42 U.S.C. § 1983 against
Collins (Counts One and Two); (2) supervisory liability under
42 U.S.C. § 1983 against the City of Newark, Chief
Coley, and Director Demaio (Count Three); and (3) false
arrest, false imprisonment, and malicious prosecution under
New Jersey law against Collins and the City of Newark (Count
Five). Previously, the Court dismissed Counts Four and Six,
which were against Detective Sarabando for malicious
prosecution, based on prosecutorial and qualified immunity.
See Opinion and Order dated Sept. 25, 2014 (Cecchi,
J.), ECF No. 39.
filed the instant motion for summary judgment on all
to Fed.R.Civ.P. 56(c), a motion for summary judgment will be
granted if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with
available affidavits, show that there is no genuine dispute
as to any material fact and that the moving party is entitled
to judgment as a matter of law. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247 (1986); Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986). “[S]ummary
judgment may be granted only if there exists no genuine issue
of material fact that would permit a reasonable jury to find
for the nonmoving party.” Miller v. Ind.
Hosp., 843 F.2d 139, 143 (3d Cir. 1988). All facts and
inferences must be construed in the light most favorable to
the non-moving party. Peters v. Del. River Port
Auth., 16 F.3d 1346, 1349 (3d Cir. 1994).
assert several reason why they are entitled to summary
judgment. They focus mostly on why Collins's false arrest
and malicious prosecution claims fail, and argue that a
holding in Collins's favor precludes liability against
the City of Newark, Chief Coley, and Director DeMaio. As
such, the Court will address Collins's arguments first.
argues that he is entitled to qualified immunity for the
false arrest and malicious prosecution claims. That is, he
argues that Newsome has not demonstrated that a deprivation
of his constitutional rights occurred; and, if a deprivation
occurred, the rights were not clearly established at the time
of the violation. Wilson v. Russo, 212 F.3d 781, 786
(3d Cir. 2000) (citations omitted). Because the Court
determines that Newsome has not shown that a deprivation
occurred, the Court will end its analysis there.
Section 1983 False Arrest Claim against Collins (Count
assess claims of false arrest, the court must determine
whether “the arresting officers had probable cause to
believe the person arrested had committed the offense.”
Dowling v. City of Philadelphia, 855 F.2d 136, 141
(3d Cir. 1988).
claims that his Fourth Amendment rights were violated when he
was arrested without probable cause. He admits he was
arrested pursuant to a warrant, but challenges the probable
cause determination underlying the warrant for three reasons:
(1) Bruce was an unreliable witness; (2) the photo
identification of Newsome was unreliable; and (3) Collins
overlooked exculpatory evidence. Newsome claims that if
Collins applied for the warrant without Bruce's
statements or photo identification and with the exculpatory
evidence, the warrant would not have issued.
The Probable Cause Determination
Fourth Amendment prohibits police from making an arrest
except “upon probable cause, supported by Oath or
affirmation.” U.S. Const. amend. IV. “Probable
cause exists if there is a ‘fair probability' that
the person committed the crime at issue.” Wilson v.
Russo, 212 F.3d 781, 789 (3d Cir. 2000) (quoting
Sherwood v. Mulvihill, 113 F.3d 396, 401 (3d Cir.
1997)). Put another way, “probable cause to arrest
exists when the facts and circumstances within the arresting
officer's knowledge are sufficient in themselves to
warrant a reasonable person to believe that an offense has
been or is being committed by the person to be
arrested.” Orsatti v. N.J. State Police, 71
F.3d 480, 483 (3d Cir. 1995).
officer seeking an arrest warrant on the basis of probable
cause must follow a two-step process: First, the officer
swears out an affidavit providing a summary of the events
giving rise to probable cause. Dempsey v. Bucknell
Univ., 834 F.3d 457, 469 (3d Cir. 2016); see also
Schneider v. Simonini, 163 N.J. 336, 363 (2000)
(“When a search or seizure is made pursuant to a
warrant, the probable cause determination must be made based
on the information contained within the four corners of the
supporting affidavit, as supplemented by sworn testimony
before the issuing judge that is recorded
contemporaneously.”). In doing so, the officer
“is not free to disregard plainly exculpatory evidence,
even if substantial inculpatory evidence (standing by itself)
suggests that probable cause exists.” Wilson,
212 F.3d at 790 (citation and quotes omitted). Rather, the
officer must “include in the affidavit all information
‘any reasonable person would know that a judge would
want to know' in making a probable cause
determination.'” Reedy v. Evanson, 615
F.3d 197, 213 (3d Cir. 197) (quoting Wilson, 212
F.3d at 783). Second, “the officer presents the
affidavit to a neutral magistrate, who conducts his own
independent review of the evidence to determine whether it
does, in fact, establish probable cause, and, if so, issues a
warrant.” Dempsey, 834 F.3d at 469.
officer can be sued for false arrest even if the officer
arrested the person pursuant to a warrant. See
Sherwood, 113 F.3d 399. In such cases, the plaintiff
must show that (1) the officer recklessly or deliberately
made false statements or omissions in applying for a warrant,
and (2) “those assertions or omissions were material or
necessary to the finding of probable cause.”
Dempsey, 834 F.3d at 468-69 (quoting
Wilson, 212 F.3d at 786; Sherwood, 113 F.3d