YOUNG v. CORTUNE

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

STEVE YOUNG,

Plaintiff,

v.

Civil No. 17-329 (NLH/KMW)

AL CORTUNE, ANTHONY OPINION

DESIDERIO, DAVE SIEROTOWICZ,

AND JOHN DOES 1-10 IN THEIR

INDIVIDUAL AND OFFICIAL

CAPACITIES,

Defendants.

APPEARANCES:

ALLAN E. RICHARDSON

JACQUELINE M. VIGILANTE

THE VIGILANTE LAW FIRM

99 NORTH MAIN STREET

MULLICA HILL, NJ 08062

Attorney for Plaintiff Steve Young.

MATTHEW JON LYNCH

MICHAEL EZRA VOMACKA

STATE OF NEW JERSEY

OFFICE OF THE ATTORNEY GENERAL

DIVISION OF LAW

25 MARKET STREET

P.O. BOX 112

TRENTON, NJ 08625

Attorneys for Defendants Al Cortune, Anthony Desiderio,

Dave Sierotowicz.

HILLMAN, District Judge

This is 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.

BACKGROUND

This 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.

At the Hearing, Defendant Al Cartine1 served as a Sergeant-

at-Arms,2 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.

Jim 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

1 The parties agree that Cartine was pled incorrectly as Cortune.

The Court will refer to him in this Opinion by his proper name,

Cartine.

2 Plaintiff previously had provided testimony at a New Jersey

legislative hearing and does not recall having contact with

Cartine at the time. Besides this instance, it appears that

Plaintiff had never before had contact with Cartine.

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.

Afterwards, 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.)3 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.)

Senator 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

3 Section 22:2 of the Rules of the Senate of the State of New

Jersey states: “Citizens present who wish to be heard on a

matter under consideration by the committee shall

be afforded an opportunity to speak, subject to reasonable

limitations as may be set by the chair.”

he was not finished.4 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 next?”

At his 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.)

4 Plaintiff only admits he “continued to speak.” (Pl.’s SOMF ¶

34.) But, the recording of the hearing clearly shows he (1)

continued to speak, (2) spoke over Senator Ruiz, and (3) said he

had not finished speaking. This is not a disputed fact, as

Plaintiff does not point to anywhere in the record supporting

his view.

Following 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.5 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.

Outside 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

5 Defendants contest that this is not supported by the record.

Although Cartine does not testify concerning whether a member of

the Committee felt disrupted or threatened, he does testify that

he does not recall receiving a signal to remove Plaintiff from a

member of the Committee.

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

room6 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.

Afterwards, 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.

After 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

6 Plaintiff appears to deny, without citation to the record, that

he did not turn to go back into the hearing room. His

deposition testimony clearly shows, in his own words, that he

did attempt to do so. This is not a disputed fact.

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.

On 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,7 Plaintiff alleges a violation of the same

rights under the New Jersey Constitution by asserting a NJCRA

claim.

Discovery 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

7 The Court notes for the record that the Complaint skips from

Count III to Count V. Because this appears to be a

typographical error, Count V in the Complaint will be referred

to as Count IV by the Court.

shortly thereafter. Thus, Defendants’ Motion for Summary

Judgment is fully briefed and ripe for adjudication.

ANALYSIS

A. Subject Matter Jurisdiction

This Court has subject matter jurisdiction over this case

pursuant to 28 U.S.C. §§ 1332 and 1367.

B. Motion for Summary Judgment Standard

Summary 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).

An 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).

Initially, 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)).

Once 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 F.

App’x 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 257.

C. Motion for Summary Judgment

Defendants 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.8 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.

8 Considering that “federal and New Jersey law governing . . .

alleged constitutional violations are substantially similar”

this Court will analyze both under the federal standard.

Middleton v. City of Ocean City, No. 12-0605 (RBK/JS), 2014 U.S.

Dist. LEXIS 88368, at *18 n.4 (D.N.J. June 30, 2014). See, e.g.,

Hedges v. Musco, 204 F.3d 109, 121 (3d Cir. 2000). Thus,

Plaintiff’s NJCRA claim rises and falls with his federal claims.

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.

To 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.

a. Whether Young’s Ejection from the New Jersey State

House Hearing Room was a Violation of the First

Amendment

Defendants 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.

In 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.

A 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 that is limited to

use by certain groups or dedicated solely to the discussion of

certain subjects.’” Id. (citing Pleasant Grove City v. Summum,

555 U.S. 460, 470 (2009)).

Here, the parties agree that the Hearing was a “limited

public forum.” The law supports that classification. See,

e.g., id. at 199 (finding “Erie County Council meeting was a

limited public forum” because “the meeting was held for the

limited purpose of governing Erie County and discussing topics

related to that governance”); Rowe v. City of Cocoa, 358 F.3d

800, 803 (11th Cir. 2004) (per curiam) (“As a limited public

forum, a city council meeting is not open for endless public

commentary speech but instead is simply a limited platform to

discuss the topic at hand.”). Here, the Hearing of the

Committee in the SHA was limited to discussion of the Act. This

Court agrees with the parties and finds this case involves a

limited public forum.

If a space is a limited public forum, the “government . . .

may restrict the time, place and manner of speech, as long as

those restrictions are reasonable and serve the purpose for

which the government created the limited public forum.” Id. at

199 (citing Pleasant Grove City, 555 U.S. at 468-69).

Additionally, “the governmental regulation of speech only need

be viewpoint-neutral and ‘reasonable in light of the purpose

served by the forum.’” Id. at 198 (citing Good News Club v.

Milford Cent. Sch., 533 U.S. 98, 107 (2001)). “A time, place,

and manner restriction on speech is reasonable if it is (1)

content-neutral, (2) narrowly tailored to serve an important

governmental interest, and (3) leaves open ample alternatives

for communication of information.” Id. at 199 (citing Ward v.

Rock Against Racism, 491 U.S. 781, 791-803 (1989)). These are

questions of fact. Id. at 202-03. There is, however “a First

Amendment violation if the defendant applied the [time, place,

and/or manner] restriction because of the speaker’s viewpoint.”

Id. (citing Monteiro v. City of Elizabeth, 436 F.3d 397, 404 (3d

Cir. 2006)).

The parties here agree (or at least Plaintiff does not

contest): Plaintiff’s removal was not based on the view he was

expressing – opposition to the Act. Therefore, the question is

not whether this was based on Plaintiff’s viewpoint, but whether

the removal was reasonable. Defendants cite two cases which

they claim are analogous and thus show there has been no First

Amendment violation: Galena and Eichenlaub v. Township of

Indiana, 385 F.3d 274 (3d Cir. 2004). Defendants also

distinguish this case from the most recent Third Circuit opinion

on the subject in Barna v. Board of School Directors of the

Panther Valley School District, 877 F.3d 136 (3d Cir. 2017), as

the removal was temporary, not permanent. Because of the nature

of the removal, the Court finds Barna is distinguishable from

this case and will not be considered. Plaintiff argues these

cases are all distinguishable and that a First Amendment

violation occurred. The Court will address Galena and

Eichenlaub in turn.

i. Whether Galena is Distinguishable

Galena concerned a meeting of the Erie County Council (the

“ECC”). 638 F.3d at 191. The ECC had adopted an administrative

code which gave the presiding officer the power to remove an

individual if he or she is “boisterous or makes offensive,

insulting, threatening, insolent, slanderous, or obscene

remarks.” Id. It also set an “order of business” for ECC

meetings which allowed for a “Hearing of the Public” at the

start of the meeting, after the Pledge of Allegiance, an

optional prayer or invocation, and roll call. Id. This was the

only time during which members of the public were permitted to

address the ECC. Id.

In the meeting – after the hearing of the public section of

the meeting had concluded, a council member moved to have a

proposed new ordinance skip the first reading and go directly to

a second reading. Id. at 193. The plaintiff in that case stood

up and stated he had an objection. Id. The presiding officer

told plaintiff he was out of order, but plaintiff stated again

that he had an objection. Id. The presiding officer again

warned the plaintiff that he was out of order, and stated that

if he spoke up a third time, he would be removed. Id.

Plaintiff again objected and the presiding officer ordered the

deputy officer present to remove the plaintiff. Id. All agreed

that the plaintiff’s demeanor was calm and that his objection

was not “insulting, threatening, insolent, slanderous, or

obscene.” Id. at 195.

The Third Circuit discussed a multitude or procedural and

substantive issues. But, of relevance to this case, the Third

Circuit held that regardless of whether the plaintiff “was

creating a disturbance” it was not a violation of the First

Amendment to enforce the administrative code of the ECC and

remove the plaintiff for voicing his objection at an

inappropriate time. Id. at 212-13. Moreover, the Third Circuit

opined that it is the “interruption of the order of business . .

. itself [that is] the disturbance” not the tone of voice or

demeanor of the speaker. Id. at 212.

Although Galena is helpful in constructing the puzzle of

whether this amounts to a First Amendment violation, the Court

finds it is factually distinguishable and not directly

controlling. Unlike in Galena, Defendants point to no rule that

would have allowed removal. Plaintiff was speaking during his

allotted time. The Court does note, however, that Plaintiff is

incorrect in pointing to the fact that there was no warning

here, no order from Senator Ruiz for removal, and that removal

technically occurred during a recess. In this Court’s

interpretation, the presence or absence of those facts had no

effect on the holding in Galena and should have no effect on

this case.

ii. Whether Eichenlaub is Distinguishable

Eichenlaub presents a different set of facts from Galena,

but still resulted in the same outcome. The Third Circuit

describes the factual background and its holding as follows:

The record of the September 14, 1999 meeting

discloses that [the plaintiff] was repetitive and

truculent, and that he repeatedly interrupted the

chairman of the meeting. Restricting such behavior is

the sort of time, place, and manner regulation that

passes muster under the most stringent scrutiny for a

public forum. Indeed, for the presiding officer of a

public meeting to allow a speaker to try to hijack the

proceedings, or to filibuster them, would impinge on the

First Amendment rights of other would-be participants.

We have no difficulty sustaining the decision to remove

David Eichenlaub on that basis.

To be sure, the chairman of the meeting sought to

restrict the discussion to topics of public interest and

requested that David Eichenlaub not discuss matters of

private concern. To the extent those restrictions were

not strictly content-neutral, the chairman’s actions

served the function of confining the discussion to the

purpose of the meeting. As we have observed, speech at

a citizen’s forum may be limited according to its

germaneness to the purpose of the meeting. At any rate,

the overwhelming, and wholly sufficient, motive to eject

David Eichenlaub from the meeting was the perfectly

sustainable and content-neutral desire to prevent his

badgering, constant interruptions, and disregard for the

rules of decorum.

We will affirm summary judgment for the defendants

on this claim.

Eichenlaub, 385 F.3d at 281-82 (emphasis added).

Plaintiff argues this case is distinguishable because he

did not use offensive language, was not threatened with removal

by Senator Ruiz, did not receive a prior warning from Senator

Ruiz, did not stray off topic, was not “repetitive and

truculent,” and was not disruptive. (Pl.’s Opp’n Br. 6.) But,

the Eichenlaub court did not find offensive language was used,

nor does it discuss whether a warning or threat of removal was

given. The absence of discussion of these facts shows they were

irrelevant to the Court’s holding. Although in Eichenlaub the

comments were not on topic, the Eichenlaub court specifically

disavowed that as the basis for its holding, instead finding the

disturbance he created was a “wholly sufficient” reason to

remove the plaintiff there. Id. at 281.9

So, the sole relevant distinctions Plaintiff presents are

that he was not “repetitive and truculent” and was not

disruptive. Plaintiff was certainly repetitive, repeating the

same point multiple times at the end of his testimony, and

9 Plaintiff also argues that these cases are distinguishable

because in the case law it was the presiding official, rather

than security, which ordered removal of the disruptive

individual. This is a distinction without a difference.

Plaintiff has not pointed this Court to case law which would

suggest a legislator be treated differently than a police

officer when analyzing an alleged First Amendment violation.

Instead, the First Amendment right is dependent upon the forum

and the speech at issue. Moreover, Defendants who removed

Plaintiff were physically present in the room and observed

Plaintiff’s behavior.

insisting that he was not finished with his statement.

Eventually, this prompted Senator Ruiz to say: “Mr. Young,

you’ve made your opinion very clear.” It would also be fair to

characterize Plaintiff as truculent. Plaintiff interrupted

Senator Ruiz multiple times, refused to stop his testimony, and

refused to leave. The Court finds there is no meaningful

distinction between Eichenlaub and this case on this point.

More importantly, there is also no meaningful distinction

as to whether Plaintiff was disruptive. The standard for

whether an individual is disruptive or created a disturbance is

low. As this Court stated supra, “[t]he interruption of the

order of business is itself the disturbance.” Galena, 638 F.3d

at 212. Thus, a mere interruption in the order of business is

in itself enough to allow removal. Plaintiff created a

disturbance. He interrupted Senator Ruiz on multiple occasions

while she was attempting to ask him to finish his statement and

move on to the next speaker. When asked to finish up his

comments, he refused. At the end of this statement, as Senator

Ruiz states she is about to take a recess, Plaintiff can be

heard saying “I’m not leaving.” Plaintiff created a disturbance

because his actions delayed Senator Ruiz’s ability to call the

next speaker and hear more testimony. This is sufficiently

similar to the behavior in Eichenlaub to warrant a finding that

it was permissible to remove Plaintiff from the hearing.

Plaintiff’s First Amendment retaliation claim suffers a

similar fate. For Plaintiff’s retaliation claim to survive

summary judgment, he must show: “(1) constitutionally protected

conduct, (2) retaliatory action sufficient to deter a person of

ordinary firmness from exercising his constitutional rights, and

(3) a causal link between the constitutionally protected conduct

and the retaliatory action.” Mirabella v. Villard, 853 F.3d

641, 649 (3d Cir. 2017) (quoting Thomas v. Indep. Twp., 463 F.3d

285, 296 (3d Cir. 2006) (citation omitted)). As is discussed

supra, because there was no First Amendment violation Plaintiff

cannot show that he was engaged in constitutionally protected

conduct. See Startzell v. City of Phila., No. 05-5287, 2007

U.S. Dist. 4082, at *39-40 (E.D. Pa. Jan. 18, 2007) (dismissing

First Amendment retaliation claim on summary judgment for

failure to show constitutionally protected conduct after

deciding no First Amendment violation existed).

Accordingly, this Court will grant Defendants’ Motion for

Summary Judgment in this respect and dismiss all of Plaintiff’s

First Amendment claims.

b. Whether Young’s Arrest Violated the Fourth Amendment

Trooper Defendants10 argue that Plaintiff’s Fourth Amendment

claims must be dismissed because probable cause existed to

arrest and detain Plaintiff. Plaintiff argues there was no

probable cause for his arrest on either of the charges. Thus,

it appears the parties agree the sole question for this Court to

determine is whether probable cause existed. As Trooper

Defendants point out “[a] finding of probable cause is therefore

a complete defense to [the Fourth Amendment] constitutional

claims, and, accordingly would entitle [Trooper] Defendants to

qualified immunity” on all Fourth Amendment claims. Goodwin v.

Conway, 836 F.3d 321, 327 (3d Cir. 2016).

As the Third Circuit has stated:

Probable cause to arrest requires more than mere

suspicion; however, it does not require that the officer

have evidence sufficient to prove guilt beyond a

reasonable doubt. See United States v. Glasser, 750

F.2d 1197, 1205 (3d Cir. 1984). Rather, 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. United States v. Cruz, 910 F.2d

1072, 1076 (3d Cir. 1990) (citing Dunaway v. New York,

442 U.S. 200, 208 n.9 (1979)).

Orsatti v. N.J. State Police, 71 F.3d 480, 482-83 (3d Cir.

1995).

10 As Cartine was not involved in the arrest of Plaintiff, it is

only the Trooper Defendants that this claim has been asserted

against.

There are two offenses which this Court must examine under

the probable cause standard: defiant trespass, N.J. Stat. Ann.

2C:18-3(b)(1), and obstructing administration of law or other

governmental function, N.J. Stat. Ann. 2C:29-1. The Court will

determine as to each, in turn, whether Trooper Defendants had

probable cause to arrest and detain Plaintiff.

i. Whether Trooper Defendants Possessed Probable

Cause to Arrest and Detain Plaintiff for Defiant

Trespass

Defiant trespass is defined under New Jersey law as

follows:

A person commits a petty disorderly persons offense if,

knowing that he is not licensed or privileged to do so,

he enters or remains in any place as to which notice

against trespass is given by:

(1)Actual communication to the actor; or

N.J. STAT. ANN. 2C:18-3(b)(1).

Trooper Defendants argue probable cause existed for

Plaintiff’s arrest under this New Jersey state statute.

Plaintiff admits that he was put on notice by Trooper Defendants

that he was no longer permitted to remain in or re-enter the

Hearing. Plaintiff argues, however, that because he was not in

the Hearing and did not ever re-enter the Hearing, there is no

probable cause for defiant trespass.

Therefore, the sole issue for this Court is whether Trooper

Defendants could only properly arrest Plaintiff for defiant

trespass if he actually re-entered the Hearing rather than just

attempted to do so. The Court notes Plaintiff cites no case

law, but relies only on the plain text of the statute. The

Court cannot find there was probable cause here to arrest

Plaintiff for defiant trespass. The Court finds that defiant

trespass requires, by its plain text, the individual to “enter

or remain[]” in a place where he or she is not permitted.

Plaintiff was only put on notice that could not remain in the

Hearing after he was removed and was in the hallway directly

outside. After he was removed, he neither re-entered the

Hearing or “remained” in the Hearing. Thus, the Court cannot

find probable cause as to this offense.

Trooper Defendants’ argument is unavailing. None of the

cases cited by Trooper Defendants concerns a situation where an

individual attempted to re-enter a prohibited place but was

arrested by police before he or she did so. Trooper Defendants

only cite cases where the individual re-entered or remained in a

prohibited place. Moreover, Trooper Defendants are incorrect

that “failure to obey a police order can justify an arrest for

defiant trespass.” (Defs.’ Reply Br. 5.) State v. Taylor does

not support this proposition, as it was examining a violation of

a Newark ordinance which forbid interference with a police

officer engaging in the lawful discharge of his or her duty.

118 A.2d 36, 48-49 (N.J. Super. Ct. App. Div. 1955). Tsitsoulis

v. Township of Denville is also distinguishable, as it was clear

the plaintiff there had re-entered a prohibited place. No.

2:07-4544, 2009 U.S. Dist. LEXIS 119369, at *2-8, 11-26 (D.N.J.

Dec. 23, 2009).11

Accordingly, this Court cannot grant Trooper Defendants

summary judgment on these grounds.

ii. Whether Trooper Defendants Possessed Probable

Cause to Arrest and Detain Plaintiff for

Obstructing Administration of Law or Other

Governmental Function

Obstructing administration of law or other governmental

function is defined as follows:

A person commits an offense if he purposely obstructs,

impairs or perverts the administration of law or other

governmental function or prevents or attempts to prevent

a public servant from lawfully performing an official

function by means of flight, intimidation, force,

violence, or physical interference or obstacle, or by

means of any independently unlawful act. This section

does not apply to failure to perform a legal duty other

than an official duty, or any other means of avoiding

compliance with law without affirmative interference

with governmental functions.

N.J. STAT. ANN. 2C:29-1.

Trooper Defendants argue there was probable cause and

points to State v. Hernandez, 768 A.2d 1062 (N.J. Super. Ct.

App. Div. 2001). Plaintiff argues there is no probable cause as

he did not obstruct, impair, or pervert the administration of

11 The quote pulled by Trooper Defendants is presented out of

context, as the argument over obeying police orders is whether

or not the plaintiff had actually been prohibited from being on

school grounds. This separate argument is also unavailing.

justice nor did he prevent or attempt to prevent a public

servant from performing his duties through “flight,

intimidation, force, violence, physical interference or obstacle

or by any other unlawful means.” (Pl.’s Opp’n Br. 9.)

Trooper Defendants are correct that there was probable

cause here. In Hernandez, the basis for the defendant’s

obstruction charge was as follows:

Defendant stated . . . that the police “wouldn’t let me

go in my house” while arresting his brother and directed

him to leave the area. Defendant acknowledged that he

continued to curse at the police, did not leave the area,

and did not follow the instructions from the police.

768 A.2d at 1066. In examining whether there was a factual

basis for defendant’s guilty plea, the court there found the

above facts sufficed. Id.

This case is analogous. Plaintiff was escorted from the

Hearing and instructed specifically by Trooper Defendants that

he could not return. Plaintiff continued to assert it was his

First Amendment right to be present in the Hearing. Then, he

stated he was going to return to the Hearing and turned to go

back in. While he did not curse as Hernandez did, his conduct

was in clear violation of Trooper Defendants’ orders. If that

conduct was enough in Hernandez to serve as a factual basis for

a guilty plea, it is enough here to show probable cause.

Accordingly, there was probable cause to arrest and detain

Plaintiff on this charge. As long as probable cause exists as

to one charge, a false arrest and imprisonment charge must fail.

See, e.g., Boyd v. City of Jersey City, No. 15-26 (ES/MAH), 2018

U.S. Dist. LEXIS 99025, at *12 (D.N.J. June 13, 2018)

(dismissing false arrest and imprisonment claims because the

court found there was probable cause that the plaintiff had

committed obstruction under N.J. Stat. Ann. § 2C:29-1). Thus,

the Court will grant Defendants’ Motion for Summary Judgment in

this respect and will dismiss all of Plaintiff’s Fourth

Amendment claims.

c. Whether Defendants Violated Clearly Established Law

Even though this Court finds there were no constitutional

violations committed by any Defendant, the Court will also

examine the second prong of qualified immunity. The Third

Circuit recently addressed the “clearly established” prong in

assessing qualified immunity. See Sauers v. Borough of

Nesquehoning, 905 F.3d 711, 719 (3d Cir. 2018). In it, the Third

Circuit explained:

A right is clearly established when the law is

“sufficiently clear that every reasonable official would

have understood that what he is doing violates that

right.” Reichle v. Howards, 566 U.S. 658, 664 (2012)

(internal quotation marks, citation, and alteration

omitted). That does not require a prior precedent with

indistinguishable facts, “but existing precedent must

have placed the statutory or constitutional question

beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741

(2011). Existing precedent is sufficient to place a

constitutional question beyond debate and to defeat

qualified immunity only if it is “controlling authority

in [the relevant] jurisdiction,” Wilson v. Layne, 526

U.S. 603, 617 (1999), or if “a ‘robust consensus of cases

of persuasive authority’ in the Court of Appeals” has

settled the question, Mammaro v. N.J. Div. of Child Prot.

& Permanency, 814 F.3d 164, 169 (3d Cir. 2016) (quoting

Taylor v. Barkes, 135 S. Ct. 2042, 2044 (2015)).

When qualified immunity is at issue, context matters.

The “inquiry ‘must be undertaken in light of the specific

context of the case, not as a broad general

proposition.’” Mullenix v. Luna, 136 S. Ct. 305, 308

(U.S. 2015) (quoting Brosseau v. Haugen, 543 U.S. 194,

198 (2004) (per curiam)). When courts fail to take into

consideration the “particularized” facts of a case, they

permit plaintiffs “to convert the rule of qualified

immunity . . . into a rule of virtually unqualified

liability simply by alleging violation of extremely

abstract rights.” White v. Pauly, 137 S. Ct. 548, 552

(U.S. 2017) (alteration in original) (quoting Anderson

v. Creighton, 483 U.S. 635, 639-40 (1987)).

Sauers, 905 F.3d at 719.

The Court will examine in turn, assuming there were

violations of the First and Fourth Amendment, whether the rights

were “clearly established.”

i. Whether the First Amendment Right was Clearly

Established

Even though this Court finds that there has been no First

Amendment violation, the Court will consider whether that right

was clearly established. Defendants argue it was not clearly

established, stating the question as whether “an individual has

a constitutional right to disrupt a public hearing by refusing

to end his remarks and speaking over the hearing chairperson as

she attempts to restore order to the proceedings.” (Defs.’ Mot.

for Summ. J. 16.) Defendant argues there is no case law on-

point that placed the conduct in question beyond doubt.

Plaintiff counters it was clearly established, saying he had

“the right to free speech before government and to petition

government.” (Pl.’s Opp’n Br. 11.)

First, the Court notes that Defendants are correct, there

appears to be no Supreme Court precedent or robust consensus

that the temporary removal of a disruptive individual by an

officer may violate the First Amendment. In fact, the Third

Circuit recently found in Barna that there was no robust

consensus as to permanent removal of a disruptive individual.

Barna v. Bd. of Sch. Dirs. of the Panther Valley Sch. Dist., 877

F.3d 136, 142-44 (3d Cir. 2017). As discussed supra, the case

law that has been presented to this Court suggests it is

permissible to remove a disruptive individual from a

governmental function. The Court finds here that Defendant has

presented case law, based on the uncontested facts, that show

the right at issue here was not clearly established. Plaintiff

has not countered with Supreme Court precedent or a robust

consensus of persuasive authority.

Moreover, while the Court recognizes that, in general,

Plaintiff’s statement is correct, it does not lead to the

ineluctable conclusion that qualified immunity is improper here.

Plaintiff’s statement of his “clearly established” right is

merely a general recitation of what is guaranteed by the First

Amendment. What is required here is “‘sufficient precedent at

the time of action, factually similar to the plaintiff’s

allegations, to put defendant on notice that his or her conduct

is constitutionally prohibited.’” Mammaro, 814 F.3d at 169

(quoting McLaughlin v. Watson, 271 F.3d 566, 572 (3d Cir.

2001)).

The case cited by Plaintiff, Mirabella v. Villard, is

neither factually analogous, nor did it find the right argued by

Plaintiff qualified as “clearly established.” 853 F.3d 641 (3d

Cir. 2017). The Mirabella case involved emails between the

“Chairperson of the Board of Supervisors” for Montgomery

Township, Pennsylvania, the Montgomery Township Solicitor, and

the plaintiffs where plaintiffs threatened suit and the Township

threatened to pursue sanctions in the putative litigation. Id.

at 646-47. Although in Mirabella there was both a First

Amendment retaliation and free speech claim, that is where the

similarities end. Id. at 648. Moreover, the Court only found

one of the three theories of rights was “clearly established” at

the time. Id. at 649, 653.

Accordingly, this Court finds that even if there was a

constitutional violation in this case under the First Amendment

or retaliation theories, the rights complained of were not

clearly established. Thus, the First Amendment claims must be

dismissed.

ii. Whether the Fourth Amendment Right was Clearly

Established

Even though this Court finds that there has been no Fourth

Amendment violation, the Court will consider whether that right

was clearly established. Trooper Defendants argue the question

which must be answered by clearly established law “is whether

there was clearly established law as of March 10, 2016 showing

that an individual had a constitutional right to not be arrested

for attempting to re-enter a public hearing, from which he had

been ejected, after being warned he would be arrested if he

continued.” (Defs.’ Mot. for Summ. J. 16.) Plaintiff counters

that it is clearly established that a “police officer who

arrests a person without probable cause may be liable in a civil

rights suit for damages.” (Pl.’s Opp’n Br. 11.) Plaintiff

provides no further case law on-point.

Trooper Defendants have pointed to an absence of case law

that could show the right at-issue here under similar

circumstances. Plaintiff has failed to provide any Supreme

Court case law or a robust consensus of the Courts of Appeals.

As the Supreme Court has stated, “[t]he general proposition, for

example, that an unreasonable search or seizure violates the

Fourth Amendment is of little help in determining whether the

violative nature of particular conduct is clearly established.”

Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011). As state supra,

there must be “‘sufficient precedent at the time of action,

factually similar to the plaintiff’s allegations, to put

defendant on notice that his or her conduct is constitutionally

prohibited.’” Mammaro, 814 F.3d at 169 (quoting McLaughlin, 271

F.3d at 572). Plaintiff has provided no factually similar cases

from any court, much less the Supreme Court or Courts of

Appeals, which would unravel the issue in this case.

Accordingly, this Court must dismiss the Fourth Amendment

claims asserted because Plaintiff has failed to show the law was

clearly established at the time of the incident. Thus, this

Court finds Defendants have satisfied both prongs of the

qualified immunity analysis as to all claims and all claims,

under § 1983 and the NJCRA, must be dismissed.

CONCLUSION

Based on the foregoing analysis, this Court will grant

Defendants’ Motion for Summary Judgment and will dismiss this

action in its entirety.

An appropriate Order will be entered.

Date: June 26, 2019 s/ Noel L. Hillman

At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.