The opinion
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Sontaan ote: AR No. 14-cv-7653 (KM)(MAH)
Plaintifis, OPINION & ORDER
v.
DETECTIVE SERGEANT M. GREGORY,
et al,
Defendants.
KEVIN MCNULTY, U.S.D.J.:
This constitutional tort action under 42 U.S.C. § 1983 arises from an
allegedly unconstitutional detention of the plaintiffs, Stanley Summerville and
Fombah Sirleaf, by several New Jersey State Troopers. By Order and Opinion
(DE 129) filed on August 29, 2019, I granted in part and denied in part the
motion for summary judgment on behalf of Officers Gregory and Ciano, and
also granted in part and denied in part the cross-motion for summary
judgment filed by the plaintiffs. What remains is a Fourth Amendment § 1983
claim, against defendant Gregory only, based on the alleged illegality of the
initial Terry stop and its unreasonable prolongation.
In essence, I found that Officer Gregory’s initial reasonable-suspicion
basis for the Terry stop of the plaintiffs presented issues of fact, precluding
summary judgment for either side on that issue. In doing so, I noted some
significant factual questions and inconsistencies as to what Gregory had
observed at the time he ordered the detention. | therefore proceeded to a
second issue. Irrespective of the permissibility of the original stop, I found that
the subsequent detention of the plaintiffs for 90 minutes exceeded
constitutional bounds. Defendant Gregory now moves for reconsideration on
that second issue. (DE 132) He clarifies in his reply that he means to press
these arguments primarily in the context of qualified immunity. (DE 136)
Local Rule 7.1(i) governs motions for reconsideration. Reconsideration is
granted sparingly, generally only in one of three situations: (1) when there has
been an intervening change in the law; (2} when new evidence has become
available; or (3) when necessary to correct a clear error of law or to prevent
manifest injustice. See North River Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d
1194, 1218 (3d Cir. 1995); Carmichael v. Everson, 2004 WL 1587894 (D.N.J.
May 21, 2004). “A motion for reconsideration is improper when it is used ‘to
ask the Court to rethink what it had already thought through—rightly or
wrongly.” Oritani Sav. & Loan Ass’n v. Fidelity & Deposit Co., 744 F. Supp.
1311, 1314 (D.N.J. 1990) (quoting Above the Belt v. Mel Bohannan Roofing, Inc.,
99 F.R.D. 99, 101 (E.D. Va. 1983)). Evidence or arguments that were available
at the time of the original decision will not support a motion for
reconsideration. Damiano v. Sony Music Entm’t, Inc., 975 F. Supp. 623, 636
(D.N.J. 1997); see also North River Ins. Co., 52 F.3d at 1218; Bapu Corp. v.
Choice Hotels Int’l, Inc., 2010 WL 5418972, at *4 (D.N.J. Dec. 23, 2010) (citing
P, Schoenfeld Asset Mgmt. LLC v. Cendant Corp., 161 F. Supp. 2d 349, 352
(D.N.J. 2001)).
Aware of the high threshold bar to such relief, defendant Gregory
contends that he did not have a fair opportunity to address the issue of the
unconstitutional prolongation of the detention, because it was not raised in the
plaintiffs’ cross-motion for summary judgment. (DE 132-1) In particular, says
Gregory, defense counsel did not have a chance to address and distinguish the
authorities cited in the Court’s Opinion, especially United States v. Place, 462
U.S. 696, 709 (1983).
The State’s argument bypasses some important procedural history. As
background, recall that the State’s theory was that this 90-minute detention
was a Terry stop, which by definition is a brief investigative detention based on
reasonable suspicion, falling short of the probable cause that would support a
full seizure. See Terry v. Ohio, 392 U.S. 1 (1968).
Point I of the State’s brief, submitted in support of defendants’ motion for
summary judgment, runs thus:
POINT I
THE INDIVIDUAL STATE POLICE OFFICER DEFENDANTS ARE
ENTITLED TO SUMMARY JUDGEMENT ON THE FIRST AND FOURTH
CAUSES OF ACTION OF PLAINTIFFS’ THIRD AMENDED COMPLAINT
BECAUSE THE SEIZURE OF PLAINTIFFS WAS REASONABLE UNDER
THE FOURTH AMENDMENT AND NOT MOTIVATED BY
A. THE INITIAL SEIZURE OF PLAINTIFFS WAS JUSTIFIED AS BASED
UPON REASONABLE SUSPICION □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□ LS
B. THE VALID INVESTIGATIVE DETENTION OF PLAINTIFFS DID NOT
RUN AFOUL OF THE FOURTH AMENDEMENT IN SCOPE OR
DURATION SO AS TO BECOME A DE FACTO ARREST REQUIRING
PROBABLE □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□ LF
(Def. Moving Brief on summary judgment (“State Brf.”), at p. 1 (table of
contents), DE 114-1 at 2). The structure of the State’s own argument, then,
was that (A) the initial seizure was valid, and (B) it did not thereafter exceed the
bounds of the Fourth Amendment in scope or duration. The responsibility-
shifting contention that issue (B) was absent from plaintiff's cross-motion
implies the State could not have addressed that issue, but in fact the State was
aware of and did address that issue.
Point I.B occupied some seven pages of the State’s opening brief. The
point’s first sentence reads as follows: “An otherwise valid investigative
detention can nevertheless violate the Fourth Amendment when the
circumstances surrounding the seizure convert the detention into a de facto
arrest. See U.S, v, Sharpe, 470 U.S. 675, 685-686 (1985).” (State Brf. 17, DE
114-1 at 25) In the paragraph almost immediately following, the State
explained what it meant:
Duration alone will not convert a valid Terry stop into an
unreasonable arrest. See Sharpe, 470 U.S. at 685-686. “In
assessing whether a detention is too long in duration to be justified
as an investigative stop, [courts] consider it appropriate to examine
whether the police diligently pursued a means of investigation that
was likely to confirm or dispel their suspicion quickly, during
which time it was necessary to detain the defendant.” United States
v. Sharpe, 470 U.S. 675, 686 (1985). Courts “should take care to
consider whether the police are acting in a swiftly developing
situation, and in such cases the court should not indulge in
unrealistic second-guessing.” Id. Indeed, courts have refused to
place a rigid time limit on the duration of investigatory seizures.
See United States v. Frost, 999 F.2d 737, 742 (3d Cir. 1993).
(Def. Brf. 17-18, DE 114-1 at 25-26)
The two cases cited by the State—Sharpe and Frost—cite and discuss
United States v. Place at length. Moreover, they do so at the very pinpoint pages
cited by the State in its brief. It cannot be maintained that the State overlooked
Place because the plaintiff did not cite it.
After briefly enumerating other factors that might render a stop unduly
intrusive, the State in its moving brief attempted to justify the 90-minute
duration of this stop. The brief noted that “[t]he entire detention lasted
approximately 90 minutes.” The first hour, said the State, was required to
investigate the plaintiffs’ association, if any, with Parker’s hand-to-hand drug
deal in the parking lot. This investigation, though 60 minutes long, is said to be
a quick and diligent inquiry, within the scope of Terry and Sharpe. The last 30
minutes, said the State, were justified by a separate investigation of Sirleaf’s
immigration status. (State Brf. 21-25, DE 114-1 at 28-32)
Bear in mind, of course, that the defendants sought summary judgment
dismissing the case, on substantive and related qualified-immunity grounds. It
was the State’s task, therefore, to establish that the detention was permissible
under Terry (or, alternatively, that a reasonable officer would have thought so).
As the State recognized in its moving brief, that requires a showing that the
stop was supported by reasonable suspicion and that it did not exceed the
bounds of a Terry stop in duration or scope.
That the plaintiffs’ response focused on issue A does not erase the State’s
discussion of issue B, the duration issue. The State had the opportunity to,
and did, discuss it. And the Court did not “overlook” the duration issue;
indeed, the State now seems to fault the Court for not overlooking it. My
Opinion discussed the issues, in order, just as the State’s summary judgment
motion presented them for decision.
Reconsideration is therefore inappropriate.!
1 To remove doubt, I will state that I have reviewed the arguments in the State’s
reconsideration motion. The motion consists entirely of legal arguments, largely by
extension from United States v. Place, already discussed in the Court’s earlier Opinion,
which held that a 90-minute detention of luggage was not permissible.
The State highlights Carrasca v. Pomeroy, 313 F.3d 828, 836 (3d Cir. 2002).
Carrasca primarily involved a claim of discriminatory enforcement, not a Fourth
Amendment claim. (I have dismissed the equal protection claim here.) The issue
regarding the check of immigration status was whether the plaintiffs could be stopped
and asked to produce their papers based on their appearance. Defendants there (as
defendants here do not} claimed they had a probable-cause basis to arrest the
plaintiffs. The court expressed doubt: “The violation of a park regulation may seem to
a fact finder to be an inadequate basis for further investigation, much less for
detention while handcuffed to chairs between two to four hours, depending on whose
version is accepted.” Jd. at 836. As to the Fourth Amendment issue, Carrasco
remanded, in the following terms: “Because it is far from clear that arresting,
handcuffing, and detaining Plaintiffs for four hours is carefully tailored to the Rangers’
underlying justification of Plaintiffs swimming after hours, the jury must make this
determination. It follows that Plaintiffs’ Fourth Amendment claims were not
appropriate for summary judgment” Jd. The Court of Appeals reversed the district
court’s perfunctory grant of qualified immunity, because, inter alia, “it is unlikely that
a reasonable police officer would believe that a Terry stop would justify detention
under chains for several hours.” fd. at 137.
None of this would change the analysis.
As to the initial stop, qualified immunity cannot be granted, if only because
serious jury issues remain as to what Officer Gregory observed before ordering the
detention. One permissible interpretation of the record is that Gregory did not in fact
observe the hand-to-hand transaction on which the order was ostensibly based.
The legality of the ensuing detention, whether prolonged or not, would depend
on the legality of the initial stop. As for the duration of the detention, my Opinion cites
ample case law to the effect that the detention cannot continue once its rationale is
exhausted, and that the daisy-chaining of possible suspicions cannot be used to
extend the detention further. (See Opinion Section III.A.3, DE 129) The State suggests
factual distinctions between this and other cases, but no case will be completely on
point, and the qualified-immunity case law does not require that. The existing case
law sets down principles that are sufficiently clear. (See id. Section III.C)
ORDER
Accordingly, for the foregoing reasons,
IT IS this 318t day of October, 2019
ORDERED that the motion (DE 132) of defendant Gregory for
reconsideration of the Court’s Order and Opinion (DE 129, 130) is DENIED.
HGN. KEVIN MCNULTY,