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Newsome v. City of Newark

United States District Court, D. New Jersey

August 31, 2017

JOHN NEWSOME, Plaintiff,
v.
CITY OF NEWARK, et al., Defendants.

          OPINION

          MADELINE COX ARLEO United States District Judge

         THIS 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 is GRANTED.

         I. Background

         This 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.

         Defendant 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.

         Bruce 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.

         Collins 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.[1] 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.

         Collins 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. 69:18-71:25.

         When 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.

         Collins 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 Dep. 73:24-74:5.

         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.

         The 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. Id. 94:12-21.

         Meanwhile, 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.

         Collins 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.

         Later 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.

         Judge 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.

         On 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. 47:5-49:2.

         On 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. ¶ 60.

         On 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.

         Collins 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.

         Apparently, 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. Id.

         Based 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.

         Two 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.

         In 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.

         Defendants filed the instant motion for summary judgment on all remaining counts.

         II. Legal Standard

         Pursuant 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).

         III. Analysis

         Defendants 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.

         Collins 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.

         A. Section 1983 False Arrest Claim against Collins (Count 1)

         To 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).

         Newsome 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.

         1. The Probable Cause Determination

         The 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).

         An 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.

         An 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 at ...


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