# YOUNG v. CORTUNE

> District Court, D. New Jersey · June 27, 2019

URL: https://www.frixlaw.com/law-library/cases/10266364

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** June 27, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10266364. Public record. Not legal advice.