United States District Court, D. New Jersey
E. RICHARDSON, JACQUELINE M. VIGILANTE THE VIGILANTE LAW FIRM
Attorney for Plaintiff Steve Young.
MATTHEW JON LYNCH, MICHAEL EZRA VOMACKA STATE OF NEW JERSEY
OFFICE OF THE ATTORNEY GENERAL Attorneys for Defendants Al
Cortune, Anthony Desiderio.
L. HILLMAN, U.S.D.J.
a 42 U.S.C. § 1983 and New Jersey Civil Rights Act
(“NJCRA”) case concerning First Amendment, First
Amendment retaliation, false arrest, and false imprisonment
claims arising from an incident at the New Jersey State
House. Presently before the Court is Defendants' Motion
for Summary Judgment. For the reasons expressed below, this
Court will grant Defendants' Motion for Summary Judgment
and dismiss this action.
Court takes its facts from the statements of material facts
presented by the parties. This Court will note disagreement
where relevant. Plaintiff Steven Young is the president and
founder of the South Jersey chapter of the National Action
Network (“NAN”). On March 10, 2016, Plaintiff
attended a hearing (the “Hearing”) held by the
State Senate Budget and Appropriations Committee (the
“Committee”) on the topic of the potential
takeover of Atlantic City by the State of New Jersey. The
Committee was chaired by New Jersey State Senator Teresa
Ruiz. The Hearing was held in the State House Annex (the
“SHA”). The SHA is open to the public, subject to
some restrictions found in the New Jersey Senate's rules.
Plaintiff signed up to speak during the public comment period
at the Hearing.
Hearing, Defendant Al Cartine served as a Sergeant-at-Arms,
Defendant Anthony Desiderio served as a New Jersey State
Trooper, and Defendant David Sierotowicz served as New Jersey
State Trooper and supervisor of the SHA complex security
unit. In her opening remarks on the issue of the proposed
takeover of Atlantic City in relation to the Municipal
Stabilization and Recovery Act (the “Act”),
Senator Ruiz both noted that many individuals had submitted
testimony and that people must be mindful and respectful of
differences in opinion.
Walsh was the first individual to give testimony. Walsh
raised concerns about the legislation, compared the takeover
to that of Flint, Michigan, and argued the legislation would
stifle democracy and democratic control in municipalities.
The crowd applauded and Senator Ruiz asked the individuals
present to refrain from applause or other overt noises. Walsh
was told to finish his statement by Senator Ruiz
approximately five minutes into his testimony and finished
his testimony about two minutes later. Thereafter, Senator
Stephen M. Sweeney provided statements in support of the
legislation. Next, Bob McDevitt testified in favor the
legislation for approximately two minutes and fifteen seconds
and was asked questions by various New Jersey State Senators.
Finally, the New Jersey State Senators discussed the bill.
Plaintiff was called to testify. Plaintiff testified that
they were at war, that the state government “stabbed us
too many times, ” that Plaintiff's group knows
“how to fight, ” and that if the state government
thought “they would stab them in their back and take
their money and nothing would happen, that was not going to
happen.” (Defs.' SOMF ¶¶ 28-30.) After
Plaintiff had spoken for approximately six minutes and thirty
seconds, Senator Ruiz said “[t]hank you, Mr.
Young.” (Defs.' SOMF ¶ 31.) In response,
Plaintiff stated he was not finished, and then stated
“we don't have no justice, there won't be no
peace, and you can take that any way you want to take
it.” (Defs.' SOMF ¶ 32.)
Ruiz stated to Plaintiff that this was an emotional topic,
reminded him “there was no room for disrespect, ”
and asked him to wrap up his comments. (Defs.' SOMF
¶ 33.) Plaintiff continued to speak, spoke over Senator
Ruiz, and said he was not finished. Senator Ruiz called for a
recess after Plaintiff had testified for approximately seven
minutes and forty seconds. As she was calling for a recess,
Plaintiff stated: “I'm not leaving. So what's
deposition, Sierotowicz did not recall what Plaintiff said at
the hearing, whether Plaintiff said anything threatening,
whether Plaintiff encouraged others to take action, or
whether anyone else in the Hearing made threats or threatened
to take action. At some point, Desiderio showed up to the
Hearing because he was told things “started to get a
little hostile with the different speakers and the committee
chair.” (Def's Resp. SOMF ¶ 11.) Desiderio did
not recall at his deposition whether Plaintiff made any
threats or used threatening language, but remembered
Plaintiff was loud because he spoke into a microphone.
Desiderio did not believe Plaintiff's language was
offensive. Cartine remembered that Plaintiff was
“unruly . . . screaming at the chair” during his
testimony, but could not recall the substance of
Plaintiff's statements when asked at his deposition.
(Pl.'s SOMF ¶ 17.)
the call for a recess, Cartine went to get Sierotowicz and
Desiderio (the “Troopers”) and told Sierotowicz
that Plaintiff had to leave. Sierotowicz told Plaintiff he
had to leave. The Troopers escorted Plaintiff out of the
Hearing. There is no evidence that Senator Ruiz specifically
requested Cartine to involve the Troopers. Cartine does not
recall receiving a verbal or non-verbal request from Senator
Ruiz, or anyone else, to remove Plaintiff from the
Hearing. Sierotowicz believed that Senator Ruiz
banging her gavel signaled her intention to have Plaintiff
stop his testimony and leave the Hearing. Desiderio admits he
received no verbal or non-verbal instructions to remove
Plaintiff from the Hearing.
of the hearing room, Plaintiff spoke with the Troopers.
Sierotowicz told Plaintiff that Cartine had asked for
Plaintiff's removal from the Hearing. Sierotowicz decided
Plaintiff could not re-enter the hearing room and told
Plaintiff that once someone is removed, they could not
re-enter. Either Desiderio or Sierotowicz told Plaintiff (1)
he could not return to the hearing room and (2) he would be
arrested if he returned to the hearing room. Plaintiff asked
the Troopers why he could not return to the hearing room, who
said he was not allowed to do so, and informed them they were
violating his rights to freedom of speech and assembly.
(Defs.' Mot. for Summ. J., Ex. A 102:14-104:3.) Then he
turned to go back into the hearing room and he was
arrested by Desiderio, handcuffed by the Troopers, and
escorted to the entrance of the SHA. Plaintiff did not
re-enter the hearing room.
Plaintiff was brought to a police car, driven to a processing
unit, and fingerprinted. He waited for approximately one or
two hours, was released, and told he would be sent a summons
in the mail. Plaintiff was charged under N.J. Stat. Ann.
§ 2C:29-1(a) (obstructing the administration of law or
other governmental function) and N.J. Stat. Ann. §
2C:18-3(b) (trespass). Defendants did not know what defiant
trespass was at the time of Plaintiff's arrest. These
charges were later dismissed. Since the Hearing, Plaintiff
has observed another hearing and attended the vote on the
Act. Both were without incident.
the Committee was reconvened, Senator Ruiz stated “that
they had a lot of testimony and that she was not trying to
hamper anyone's comments, but that she did have to stick
to a timeframe.” (Defs.' SOMF ¶ 50.) Senator
Ruiz heard testimony from Don Guardian, the Mayor of Atlantic
City, Keith Bennet, George Borrick, Linda Steele, a Mr.
Abdul, and a Ms. Bawker with some supporting and others
opposing the bill.
January 17, 2017 Plaintiff filed this case. The Complaint
contains four counts. These counts fall generally under the
First and Fourth Amendment. Under Count I, Plaintiff alleges
Defendants violated his First Amendment right to free speech
and assembly. Under Count II, Plaintiff alleges Defendants
violated his First Amendment right by arresting him in
retaliation for his exercise of those rights. Under Count
III, Plaintiff alleges Defendants violated his Fourth
Amendment right by committing a false arrest and forcing his
false imprisonment. These counts are all asserted under 42
U.S.C. § 1983. In Count IV,  Plaintiff alleges a
violation of the same rights under the New Jersey
Constitution by asserting a NJCRA claim.
ensued, culminating in Defendants' Motion for Summary
Judgment filed on September 14, 2018. This was opposed by
Plaintiff in November 2018 and Defendants' reply followed
shortly thereafter. Thus, Defendants' Motion for Summary
Judgment is fully briefed and ripe for adjudication.
Subject Matter Jurisdiction
Court has subject matter jurisdiction over this case pursuant
to 28 U.S.C. §§ 1332 and 1367.
Motion for Summary Judgment Standard
judgment is appropriate where the Court is satisfied that
“‘the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits if any,' . . . demonstrate the absence of a
genuine issue of material fact” and that the moving
party is entitled to a judgment as a matter of law.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986) (citing Fed.R.Civ.P. 56).
issue is “genuine” if it is supported by evidence
such that a reasonable jury could return a verdict in the
nonmoving party's favor. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A fact is
“material” if, under the governing substantive
law, a dispute about the fact might affect the outcome of the
suit. Id. “In considering a motion for summary
judgment, a district court may not make credibility
determinations or engage in any weighing of the evidence;
instead, the non-moving party's evidence ‘is to be
believed and all justifiable inferences are to be drawn in
his favor.'” Marino v. Indus. Crating Co.,
358 F.3d 241, 247 (3d Cir. 2004) (citing Anderson,
477 U.S. at 255).
the moving party bears the burden of demonstrating the
absence of a genuine issue of material fact.
Celotex, 477 U.S. at 323 (“[A] party seeking
summary judgment always bears the initial responsibility of
informing the district court of the basis for its motion, and
identifying those portions of ‘the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any,' which it
believes demonstrate the absence of a genuine issue of
material fact.”); see Singletary v. Pa. Dep't
of Corr., 266 F.3d 186, 192 n.2 (3d Cir. 2001)
(“Although the initial burden is on the summary
judgment movant to show the absence of a genuine issue of
material fact, ‘the burden on the moving party may be
discharged by “showing”-that is, pointing out to
the district court-that there is an absence of evidence to
support the nonmoving party's case' when the
nonmoving party bears the ultimate burden of proof.”
(citing Celotex, 477 U.S. at 325)).
the moving party has met this burden, the nonmoving party
must identify, by affidavits or otherwise, specific facts
showing that there is a genuine issue for trial.
Celotex, 477 U.S. at 324. A “party opposing
summary judgment ‘may not rest upon the mere
allegations or denials of the . . . pleading[s].'”
Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir.
2001). For “the non-moving party to prevail, [that
party] must ‘make a showing sufficient to establish the
existence of [every] element essential to that party's
case, and on which that party will bear the burden of proof
at trial.'” Cooper v. Sniezek, 418
Fed.Appx. 56, 58 (3d Cir. 2011) (citing Celotex, 477
U.S. at 322). Thus, to withstand a properly supported motion
for summary judgment, the nonmoving party must identify
specific facts and affirmative evidence that contradict those
offered by the moving party. Anderson, 477 U.S. at
Motion for Summary Judgment
present one overall issue for the Court to decide on their
Motion for Summary Judgment: whether the doctrine of
qualified immunity should be applied to them on all
claims. The doctrine of qualified immunity is
meant to protect government officials from suit when
“their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable
person would have known.” Pearson v. Callahan,
555 U.S. 223, 231 (2009) (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)). The Court is
tasked with balancing two interests: “the need to hold
public officials accountable when they exercise power
irresponsibly and the need to shield officials from
harassment, distraction, and liability when they perform
their duties reasonably.” Id.
determine whether a government official is entitled to
qualified immunity at the summary judgment stage, a court
should address two questions: (1) has the plaintiff alleged
or shown a violation of a constitutional right, and (2) is
the right at issue “clearly established” at the
time of the defendant's alleged misconduct?
Pearson, 555 U.S. at 236. Courts are
“permitted to exercise their sound discretion in
deciding which of the two prongs of the qualified immunity
analysis should be addressed first.” Id. The
Court will address the prongs in order for each claim.
Whether Young's Ejection from the New Jersey State
House Hearing Room was a Violation of the First
argue that there was no violation of Plaintiff's First
Amendment rights in removing him from the Hearing. Defendants
assert Plaintiff's behavior and the fact that the Hearing
was a limited public forum allowed them to remove him.
Plaintiff argues his removal was a violation of his First
Amendment rights because, among other things, Senator Ruiz
did not indicate to Defendants that Plaintiff must be removed
and Plaintiff did not threaten anyone.
cases concerning alleged First Amendment violations, the
level of protection afforded by the First Amendment hinges on
the classification of the forum. Galena v. Leone,
638 F.3d 186, 197 (3d Cir. 2011) (“When a First
Amendment free speech challenge arises from a restriction on
speech on government owned or controlled property . . . the
classification of the forum determines the contours of the
First Amendment rights that a court recognizes when reviewing
the challenged governmental action.”). There are three
types of public forums: “(1) the traditional public
forum; (2) the designated public forum; and (3) the limited
public forum.” Id.
traditional public forum includes locations such as
“public streets, parks, and other public areas
traditionally devoted to assembly and debate.”
Id. at 198 (citing Ark. Educ. Television
Comm'n v. Forbes, 523 U.S. 666, 677 (1998)). A
“government entity creates a designated public forum
when it intentionally designates property that traditionally
has not been regarded as a public forum for use as a public
forum.” Id. (citing Christian Legal
Soc'y Chapter of the Univ. of Cal., Hastings Coll. of Law
v. Martinez, 561 U.S. 661, 679 n.11 (2010)). Finally, a
“governmental entity creates a limited public forum
when it provides for ‘a forum ...