The opinion
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
SHEENA SLIPPI-MENSAH, 1:15-cv-07750-NLH-JS
Plaintiff, OPINION
v.
TROOPER J.M. MILLS #7412 and
TROOPER II A.M. SPARACIO
#6821,
Defendants.
APPEARANCES:
JOHN B. KEARNEY
KEARNEY & ASSOCIATES, P.C.
210 WHITE HORSE PIKE
HADDON HEIGHTS, NJ 08035
On behalf of Plaintiff
SUZANNE MARIE DAVIES
STATE OF NEW JERSEY
OFFICE OF THE ATTORNEY GENERAL
25 MARKET STREET
P.O. BOX 112
TRENTON, NJ 08625
On behalf of Defendants
HILLMAN, District Judge
This case concerns allegations of a traffic stop and arrest
without probable cause and racial profiling by two New Jersey
state troopers. Presently before the Court is the second motion
of Defendants for summary judgment in their favor. For the
reasons expressed below, Defendants’ motion will be granted.
BACKGROUND
On May 24, 2014, at about 3:30 a.m., Plaintiff, Sheena
Slippi-Mensah, was driving in the Bellmawr, New Jersey area on
I-76 and I-295. Plaintiff had been at a friend’s house and was
on her way home to her mother’s home in Deptford, New Jersey.1
According to the dash-cam video, body microphone audio, and
police reports, Defendants, Trooper J.M. Mills #7412 and Trooper
II A. M. Sparacio #6821 of the New Jersey State police, observed
Plaintiff failing to maintain a lane, speeding through a
construction zone, and travelling 82 mph in a 45 mph zone for
several minutes. The patrol car’s lights were activated, and
Plaintiff pulled over.2
After reviewing Plaintiff’s license and registration,
Defendants asked Plaintiff to get out of the vehicle to perform
a field sobriety test because Mills smelled alcohol in the car.
Plaintiff and Defendants walked to the front of Plaintiff’s car,
and Mills asked Plaintiff if she had been drinking. Plaintiff
stated that she had consumed half a beer. Plaintiff was asked
1 Plaintiff’s mother was watching her one-month old baby.
2 Because Plaintiff pulled over in an area with no shoulder,
Defendants directed Plaintiff to continue driving until both
vehicles could safely park on the side of the road. Plaintiff
complied.
to recite the alphabet from “D” to “V” without singing or
stopping. She was unable to do so after several attempts by
going to “Z” and stopping at “S”.
Defendants performed three additional sobriety tests on
Plaintiff.3 Sparacio performed the “horizonal gaze test,” where
Plaintiff was directed to follow a pen with just her eyes, and
Sparacio observed a lack of smooth pursuit in both eyes.
Defendants directed Plaintiff to do the “walk and turn test,”
where Plaintiff was instructed to walk nine steps heel to toe,
turn around and walk back nine steps heel to toe. Mills
observed that Plaintiff was unable to bring her heel to her toe
on several of the steps forward and back.
For the “one leg stand test,” Plaintiff was instructed to
stand with her heels together and lift either leg six inches off
the ground with her hands to her side while counting until
instructed to stop. Mills observed that Plaintiff was unable to
keep her balance and had to put her foot back on the ground
after only eight seconds. When she resumed the test, she lost
her balance again.
At that point, Defendants handcuffed Plaintiff and informed
3 All of the sobriety tests were performed in front of
Plaintiff’s car and not captured on video by the patrol car dash
camera. The audio of the tests were recorded, although the
parties’ voices are obscured sporadically by the sounds of
passing tractor-trailers and other vehicles.
her that she was being arrested for driving under the influence.
Defendants drove Plaintiff to the Bellmawr state police station,
arriving at 4:03 a.m. After being at the station for 20
minutes, Sparacio conducted two breathalyzer tests.4 The results
showed a blood alcohol content of .00. At 5:00 a.m., Defendants
called for a Drug Recognition Expert (“DRE”) due to their
suspicion that Plaintiff was under the influence, but no DRE was
available. At 5:09 a.m., a female police officer from Mantua
Township arrived at the station to observe Plaintiff as she
provided a urine sample, after which time Plaintiff was
4 The New Jersey Supreme Court has explained the procedure for a
breathalyzer test:
When a person has been arrested, based on probable cause
that the person has been driving while intoxicated, he or
she is transported to the police station to provide a
sample for the Alcotest. The Alcotest, consisting of a
keyboard, an external printer, and the testing device
itself, is positioned on a table near where the test
subject is seated.
Operators must wait twenty minutes before collecting a
sample to avoid overestimated readings due to residual
effects of mouth alcohol. The software is programmed to
prohibit operation of the device before the passage of
twenty minutes from the time entered as the time of the
arrest. Moreover, the operator must observe the test
subject for the required twenty-minute period of time to
ensure that no alcohol has entered the person's mouth while
he or she is awaiting the start of the testing sequence. In
addition, if the arrestee swallows anything or
regurgitates, or if the operator notices chewing gum or
tobacco in the person's mouth, the operator is required to
begin counting the twenty-minute period anew.
State v. Chun, 943 A.2d 114, 128–29 (N.J. 2008).
permitted to call her mother.5 At 6:03 a.m., Plaintiff left the
station with her mother.
Plaintiff was issued three tickets for operating a motor
vehicle under the influence of liquor or drugs, speeding, and
unsafe lane change. On January 14, 2015, the Bellmawr Municipal
Court dismissed all charges against Plaintiff. As a condition
of the dismissal, Plaintiff, who was represented by counsel,
signed an “affidavit of probable cause,” which provided, in
part:
2. I am signing this affidavit to document my agreement
to stipulation of probable cause for the traffic stop on
May 24, 2014, in exchanged for the dismissal of all of the
criminal charges/tickets. . . .
6. [My attorney and I] discussed the consequences of
stipulating to probable cause as a condition to dismissing
all of the tickets.
7. My attorney explained that a stipulation to probable
cause will have a very serious impact on any future
litigation for violation of civil rights and allegations of
racial profiling. I understood that I would probably not be
able to move forward with a civil rights lawsuit suit.
8. I understood that if I do not sign this affidavit, the
case would be relisted for trial in approximately two
weeks.
9. I have considered the above and I am willing to
stipulate to probable cause if all of the tickets/charges
are dismiss[ed].
(Docket No. 33-3 at 39-40.)
5 The results of Plaintiff’s urine sample did not reveal the
presence of illegal drugs. (Docket No. 33-3 at 39.)
Plaintiff has asserted claims against Defendants for
violations of the New Jersey Civil Rights Act, N.J.S.A. 10:6-
2(c), and the Fourth Amendment to the U.S. Constitution for
false arrest and racial profiling. Plaintiff claims that
Defendants pulled her over simply because they observed through
open windows a young female African-American driving a new
Cadillac.
Currently pending is Defendants’ second motion for summary
judgment. In Defendants’ first motion for summary judgment,
Defendants argued that Plaintiff’s claims were barred by Heck v.
Humphrey, 512 U.S. 477, 481-85 (1994) or the doctrine of
judicial estoppel because of the “affidavit of probable cause”
Plaintiff signed in conjunction with the dismissal of the
charges against her. Defendants also argued that if the Court
determined that Plaintiff’s claims were not barred, Plaintiff
had not presented any evidence, other than her own perception,
that she was arrested because she is African-American, rather
than being arrested based on probable cause that she was driving
impaired, speeding, and veering between lanes.
In considering Defendants’ first motion for summary
judgment, the Court issued an Order to Show Cause as to why
Defendants should not be estopped from relying on the “affidavit
of probable cause” signed by Plaintiff in conjunction with the
Bellmawr Municipal Court hearing and the dismissal of the
charges against her because it violates public policy as set
forth in New Jersey Supreme Court Advisory Committee on
Professional Ethics, Opinion 6616 and Opinion 7147. (Docket No.
44.)
Both Defendants and Plaintiff responded, and the Court
issued a second Order to Show Cause. (Docket No. 47.) The
Court found that Defendant had failed to convince this Court on
the present record that their reliance on the Affidavit of
Probable Cause did not violate both the spirit and letter of New
Jersey Supreme Court Advisory Committee on Professional Ethics,
Opinion 661 and Opinion 714. The Court denied without prejudice
Defendants’ summary judgment motion, and directed the parties to
appear for “a hearing so that the Court may determine what
action the Court should take regarding Defendants’ continued
reliance in civil litigation on an affidavit apparently obtained
in violation of the Opinions of the New Jersey Supreme Court
Advisory Committee on Professional Ethics regarding municipal
prosecutors.” (Id. at 3.)
In response to the Court’s second Order to Show Cause,
Defendants filed a letter indicating that they wished to
6 Municipal Prosecutor Conditioning Plea Bargain Upon Defendant's
Execution of Civil Release Form, 1992 WL 257820, at *1.
7 Conditioning Entry of a Plea or Entry into Pretrial
Intervention on Defendant's Release from Civil Liability and
Hold-Harmless Agreement, 2008 WL 4790546, at *1.
withdraw their Heck argument relying on the affidavit of
probable cause, and refile their motion for summary judgment
without that argument.8 (Docket No. 49.) The Court granted
8 Despite the State’s withdrawal of its reliance on the affidavit
of probable cause, the Court pauses to reiterate its grave
concern that some six years after the N.J. Supreme Court
Advisory Committee on Professional Ethics reaffirmed its
determination that obtaining such waivers violates Rule of
Professional Conduct 3.4(g), that at least one municipal court
in this state continues to engage in such practices. The Court
quotes from N.J. Ethics Opinion 714, Conditioning Entry of a
Plea or Entry into Pretrial Intervention on Defendant's Release
from Civil Liability and Hold-Harmless Agreement, 2008 WL
4790546:
Accordingly, in response to the inquiry, the Committee
confirms that RPC 3.4(g) prohibits a prosecutor from
conditioning entry of a plea or entry into pretrial
intervention in a criminal, quasi-criminal, or motor
vehicle matter on the defendant's release from civil
liability and agreement to hold harmless any person or
entity such as the police, the prosecutor, or a
governmental entity. The prohibition applies in all
situations, including when the defendant's release
from liability and agreement to hold harmless is
initially offered by defense counsel.
Id. at 2. That appears to be precisely what happened here. The
Court expresses its dismay that the Office of the Attorney
General would seek to rely for its defense on a document
obtained in apparent violation of the Rules of Professional
Conduct. The Court would have hoped they would have taken the
opposite tack and reassured this Court and the public that such
conduct is not countenanced by those state authorities with at
least some authority, even if only a moral one, over such
practices in the municipal courts. The State’s reliance on the
suspect affidavit hints of a wider systemic problem or, at a
minimum, a failure to provide adequate guidance to municipal
officials on the ethical implications of attempts to obtain such
waivers by municipal court prosecutors. To the extent such a
practice is widespread in New Jersey municipal courts, it may
well be a worthy subject for further investigation and reform by
the New Jersey state judiciary as it has done in other areas of
Defendants’ request and adjourned the hearing. (Docket No. 50.)
Defendants refiled their motion as indicated, and Plaintiff
has opposed Defendants’ motion.
DISCUSSION
A. Subject matter jurisdiction
Plaintiff has brought her claims pursuant to 42 U.S.C. §
1983, as well as the New Jersey constitution. This Court has
jurisdiction over Plaintiff’s federal claims under 28 U.S.C. §
1331, and supplemental jurisdiction over Plaintiff’s state law
claims under 28 U.S.C. § 1367.
B. Standard for summary judgment
Summary judgment is appropriate where the Court is
satisfied that the materials in the record, including
depositions, documents, electronically stored information,
affidavits or declarations, stipulations, admissions, or
interrogatory answers, demonstrate that there is no genuine
issue as to any 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, 330 (1986); Fed. R. Civ. P. 56(a).
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,
concern regarding municipal court procedures.
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. Industrial Crating Co., 358 F.3d 241, 247 (3d Cir.
2004)(quoting Anderson, 477 U.S. at 255).
Initially, the moving party has the burden of demonstrating
the absence of a genuine issue of material fact. Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986). 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. Id. 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 256-
57. A party opposing summary judgment must do more than just
rest upon mere allegations, general denials, or vague
statements. Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir.
2001).
C. Analysis
The Court finds that Plaintiff has not met her burden to
defeat Defendants’ motion for judgment in their favor on her
claims that she was falsely arrested and subject to racial
profiling.9
9 Although Defendants eventually withdrew their arguments for
judgment in their favor based on the affidavit of probable
caused signed by Plaintiff and the Heck and judicial estoppel
doctrines, the Court notes that neither of those doctrines are
applicable to the circumstances here, with or without the
affidavit of probable cause. In Heck v. Humphrey, the Supreme
Court held that a § 1983 claim for damages premised on a civil
rights violation is barred if the suit is inconsistent with or
would undermine the lawfulness of a state conviction or
sentence. Heck, 512 U.S. at 486. For the Heck doctrine to
apply, a “conviction or sentence” must have been “reversed on
direct appeal, expunged by executive order, declared invalid by
a state tribunal authorized to make such determination, or
called into question by a federal court’s issuance of a writ of
habeas corpus.” Heck, 512 U.S. at 486. Plaintiff was not
subjected to either a conviction or a sentence and thus Heck is
inapplicable. Similarly, three requirements must be met before
a court may apply judicial estoppel: (1) the party to be
estopped must have taken two positions that are irreconcilably
inconsistent; (2) the party changed his or her position “in bad
faith—i.e., with intent to play fast and loose with the court”;
and (3) a district court may not employ judicial estoppel unless
it is “tailored to address the harm identified” and no lesser
sanction would adequately remedy the damage done by the
litigant's misconduct. Montrose Medical Group Participating
Savings Plan v. Bulger, 243 F.3d 773, 779-80 (3d Cir.
2001)(citations omitted). Here, while Plaintiff’s statement in
her affidavit that probable cause existed for her arrest is
inconsistent with her claims that she was falsely arrested
(although a finding of probable cause does not automatically
negate a plaintiff’s racial profiling claim), Defendants have
not demonstrated the other two requirements for judicial
estoppel to apply. The record does not support a claim that
Plaintiff’s complaint against Defendants was filed with the
“intent to play fast and loose with the court” such as to
warrant application of judicial estoppel. Thus, regardless of
For Plaintiff’s claims against Defendants acting in their
personal capacity, the qualified immunity doctrine governs the
analysis.10 “Qualified immunity shields government officials
from civil damages liability unless the official violated a
statutory or constitutional right that was clearly established
at the time of the challenged conduct.” Reichle v. Howards, 566
the affidavit of probable cause, Heck and judicial estoppel are
inapplicable to Plaintiff’s claims.
10 Plaintiff has brought her false arrest and racial profiling
claims pursuant to 42 U.S.C. § 1983 and the New Jersey Civil
Rights Act. Section 1983 is not a source of substantive rights,
but provides a vehicle for vindicating the violation of other
federal rights. Graham v. Connor, 490 U.S. 386, 393-94 (1989).
Section 1983 provides in relevant part:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory . .
. subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be
liable to the party injured in an action at law, suit in
equity, or other proper proceeding for redress . . . .
42 U.S.C. § 1983.
To state a claim for relief under § 1983, a plaintiff must
allege the violation of a right secured by the Constitution or
laws of the United States, and that the alleged deprivation was
committed or caused by a person acting under color of state law.
West v. Atkins, 487 U.S. 42, 48 (1988); Piecknick v.
Pennsylvania, 36 F.3d 1250, 1255-56 (3d Cir. 1994). The New
Jersey Civil Rights Act, N.J.S.A. 10:6–1 et seq., was modeled
after § 1983 and creates a state law cause of action for
violation of an individual's federal and state constitutional
rights. Owens v. Feigin, 947 A.2d 653 (N.J. 2008). The New
Jersey Civil Rights Act is interpreted analogously to § 1983.
Norman v. Haddon Township, 2017 WL 2812876, at *4 (D.N.J. 2017).
U.S. 658, 664 (2012). In order to determine whether a
government official is entitled to qualified immunity, two
questions are to be asked: (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 v. Callahan, 555 U.S.
223, 236 (2009). 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. It is the
defendant’s burden to establish entitlement to qualified
immunity. Kopec v. Tate, 361 F.3d 772 (3d Cir. 2004).
Plaintiff has challenged the lawfulness of Defendants’
vehicle stop and her arrest because she contends they lacked any
reasonable suspicion that she was violating the traffic laws,
they did not have probable cause to arrest her for driving under
the influence, and their motives were instead racially biased.
Plaintiff refutes that she was speeding, and contends that
Defendants lied about her driving 85 mph in a 45 mph zone.
Plaintiff argues that this is evidenced by the fact that one
Defendant states that Plaintiff was driving 82 mph in a 45 mph
zone on the dash cam video and audio recording, but she was
charged with driving 85 mph. Plaintiff refutes that she failed
to maintain the proper lanes, and states that she used her turn
signals appropriately, which is captured on the video.
Plaintiff further relates that she felt that she did well on the
field sobriety tests, and did not fail them as Defendants
determined. Plaintiff also contends that she was held at the
station for an excessive amount of time, and forced to take a
urine test in order to be released. Plaintiff claims that
Defendants, who are Caucasian, acted in the way they did because
she is a young African American woman who was driving a nice
car.
The evidence in the record does not support Plaintiff’s
contention that Defendants violated Plaintiff’s constitutional
rights.
a. Validity of the stop
The “lawfulness of the initial traffic stop is properly
analyzed under the Fourth Amendment, as a traffic stop is a
‘seizure’ within the meaning of the Fourth Amendment, and the
traffic stop is valid if the officer has a reasonable,
articulable suspicion that a violation has occurred.” United
States v. Delfin–Colina, 464 F.3d 392, 396 (3d Cir. 2006).
“Reasonable suspicion is a less demanding standard than probable
cause not only in the sense that reasonable suspicion can be
established with information that is different in quantity or
content than that required to establish probable cause, but also
in the sense that reasonable suspicion can arise from
information that is less reliable than that required to show
probable cause.” Alabama v. White, 496 U.S. 325, 330 (1990).
Plaintiff testified that she was not aware of Defendants’
patrol car until their lights illuminated, and the dash camera
video captured several minutes of Defendants following
Plaintiff’s car prior to the lights turning on. The video
begins with one Defendant stating that Plaintiff was failing to
maintain the lane, and the video captures Plaintiff changing
multiple lanes with her turn signal, but at one point straddling
two lanes before entering an exit ramp, albeit very briefly.
While on the exit ramp with Defendants following behind, one
Defendant comments that Plaintiff was driving 82 mph in the 45
mph zone. Plaintiff testified that she never noticed Defendants
driving along side her car so that they could observe her prior
to stopping her, and the video does not show any indication who
is driving Plaintiff’s car. The dash cam audio does not reveal
that Defendants were aware of Plaintiff’s identity as a young
African American woman, and Plaintiff’s license plate was not
run until after Plaintiff was stopped.
Based on this record evidence, no reasonable juror could
conclude that Defendants lacked a reasonable, articulable
suspicion that Plaintiff was violating several traffic laws
sufficient to justify stopping her vehicle. The record evidence
also fails to support a claim that Defendants pulled over
Plaintiff because of her race.
b. Validity of the arrest
To prove a claim for false arrest under the Fourth
Amendment, a plaintiff must establish: (1) that there was an
arrest; and (2) that the arrest was made without probable cause.
James v. City of Wilkes-Barre, 700 F.3d 675, 680 (3d Cir. 2012).
An officer has probable cause to arrest 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.” Wilson v. Russo, 212 F.3d 781, 789 (3d
Cir. 2000).
After Plaintiff pulled over, Defendants indicated they
smelled alcohol from the inside of the car. While she was out
of the vehicle, Defendants responded again that they smelled
alcohol on Plaintiff’s breath and asked if he had consumed any
alcohol that evening, and Plaintiff stated that she only had
half a beer and she does not really drink because she has a new
baby and was breastfeeding. Defendants performed the sobriety
tests, and the audio recording demonstrates that Plaintiff was
not able to successfully perform any of the tests. Defendants
informed Plaintiff that she was being placed under arrest for
driving under the influence.
The determination of whether there was probable cause to
arrest requires a “common sense approach” based on “the totality
of the circumstances.” Sharrar v. Felsing, 128 F.3d 810, 818
(3d Cir. 1997). “[I]n reviewing probable cause determinations
made by law enforcement, the role of the courts is not that of
the much-maligned ‘Monday morning quarterback’ whose critiques
are made possible only by the benefits of hindsight. Rather,
federal courts review the record to ensure that the proper
procedure for determining probable cause was followed.” Dempsey
v. Bucknell University, 834 F.3d 457, 469–70 (3d Cir. 2016)
(citation omitted).
The Court finds that Plaintiff has not met her burden to
cast doubt on the existence of probable cause to arrest Plaintiff
for driving under the influence. The evidence shows that
Defendants observed Plaintiff speeding and straddling two lanes
for a period of time, Plaintiff admitted to Defendants that she
consumed an alcoholic beverage that evening,11 Defendants detected
the odor of alcohol from Plaintiff, and Plaintiff did not
successfully complete any of the field sobriety tests. Even
though Plaintiff’s blood alcohol level was later determined to be
.00 and her urine negative for drugs, the totality of the
circumstances facing Defendants at the time of their encounter
would compel a reasonable person to believe that Plaintiff was
11 Plaintiff testified in her deposition that her friends drank
wine but she did not consume any alcohol that evening. (Docket
No. 40 at 11.) The audio recording clearly reflects that
Plaintiff stated she consumed half a beer.
committing the offense of driving under the influence. See
N.J.S.A. 39:4-50(a) (prohibiting the operation of “a motor
vehicle while under the influence of intoxicating liquor”); State
v. Tanashian, 2017 WL 5076371, at *6 (N.J. Super. Ct. App. Div.
2017) (citing State v. Basil, 202 N.J. 570, 585 (2010) (quoting
Maryland v. Pringle, 540 U.S. 366, 371 (2003)) (explaining that
in assessing probable cause for driving under the influence, a
judge considers the totality of the circumstances, and the facts
are viewed “from the standpoint of an objectively reasonable
police officer”); cf. State v. Targan, 2019 WL 92413, at *5–6
(N.J. Super. Ct. App. Div. Jan. 3, 2019) (explaining that it is
well-established that an officer’s subjective observation of a
defendant, such as a defendant’s demeanor and physical appearance
– coupled with proofs as to the cause of intoxication – i.e., the
smell of alcohol, an admission of the consumption of alcohol, or
a lay opinion of alcohol intoxication, is a sufficient ground to
sustain a DWI conviction); State v. Arno, 2017 WL 5478354, at *3
(N.J. Super. Ct. App. Div. 2017) (finding that “there was
obviously probable cause to arrest defendant for DWI under the
totality of circumstances” where the defendant operated his car
erratically, smelled of alcohol, had watery eyes, exhibited
boisterous behavior, admitted to drinking, and failed both field
sobriety tests).
c. Racial profiling claim
Plaintiff’s claim that her stop, arrest, and resulting
treatment at the police station was solely based on her race is
also unsupported by the record evidence. Selective enforcement
of the law, colloquially referred to as “racial profiling,” is a
violation of the Equal Protection Clause, since the Clause
“‘prohibits selective enforcement of the law based on
considerations such as race.’” Nelson v. Karins, 2012 WL
1435634, at *3–4 (D.N.J. 2012) (quoting Whren v. United States,
517 U.S. 806, 813 (1996)). Even where there is no Fourth
Amendment violation, that does not mean that a person was not
discriminatorily selected for enforcement of a law, and an equal
protection claim requires a wholly separate analysis from a
claims under the Fourth Amendment. Id. (citing Carrasca v.
Pomeroy, 313 F.3d 828 (3d Cir. 2002); Gibson v. Superintendent of
N.J. Dep't of Law and Pub. Safety, 411 F.3d 427, 440–41 (3d Cir.
2005)). “‘To prevail on an equal protection claim in the racial
profiling context, [a p]laintiff would have to show that the
challenged law enforcement practice had a discriminatory effect
and [in addition] was motivated by a discriminatory purpose.’”
Id. (quoting Carrasca, 313 F.3d at 834).
For the first prong, a plaintiff must show that she is a
member of a protected class and that she was treated differently
from similarly situated individuals in an unprotected class. Id.
(citing Bradley v. U.S., 299 F.3d 197, 206 (3d Cir. 2002)). For
the second prong, a plaintiff must prove facts showing that the
defendant acted with a discriminatory purpose to permit the
court’s reasonable inference that the government-official
defendant acted for the purpose of discriminating on account of
race. Id. (citing Ashcroft v. Iqbal, 556 U.S. 662, 676-77
(2009)).
In this case, Plaintiff contends the following shows that
Defendants’ interaction with her was motivated solely by
discriminatory purpose: (1) Defendants observed that she is a
young African American woman driving a fancy car with the
windows open; (2) she was not speeding, and Defendants charged
her with driving 85 mph even though they stated in the patrol
car that she was driving 82 mph, (3) she did not drive
erratically, (4) she did well on the sobriety tests, and (5) she
was forced to take two breathalyzer tests and provide a urine
sample before she could call her mother. Plaintiff’s own
perceptions that her race motivated Defendants’ actions are
unsupported in the record, and are insufficient to defeat
Defendants’ summary judgment motion.
There is no evidence that Defendants observed Plaintiff
through her windows prior to their pursuit, but even if they
had, the audio recording does not reveal that Defendants made
any comments about Plaintiff’s race during the entire encounter.
Further, Plaintiff herself testified that she did not hear
Defendants make any remarks about her race. Even though
Defendants are recorded as saying that Plaintiff was driving 82
mph while she was driving on the off-ramp, that comment alone,
observing a moment in time, fails to demonstrate that Plaintiff
had not driven 85 mph while under observation by the officers.
Additionally, after Plaintiff stopped and Defendants were
speaking with her through her passenger-side window, one of the
Defendants informed her that she had been driving 85 mph.
Regardless, however, of whether Plaintiff was driving 37
mph or 40 mph over the speed limit, Plaintiff has not provided
any proof, other than her own perception, that she was not
speeding, and that speeding was a pretext for Defendants’
racially motivated actions. Plaintiff further has not provided
any proof that a person in the same situation but who is not in
a protected class would not have been treated in the same
manner.
Plaintiff has similarly failed to provide any evidence,
other than her own beliefs, that Defendants’ assessment of her
driving and sobriety test performance, and the implementation of
two breathalyzer tests and the need for a urine sample, were
different because of her race. Without any indicia that
Plaintiff’s race was a factor in Defendants’ actions,
Plaintiff’s racial profiling claim fails. See, e.g., Nelson,
2012 WL 1435634, at *3–4 (dismissing the plaintiff’s racial
profiling claim that he experienced a feeling of being “racially
profiled” because “his purely subjective feeling, expressing
nothing bit a bold conclusion, cannot operate as plausible
factual allegation”); Mitchell v. Township of Pemberton, 2010 WL
2540466, at *5–6 (D.N.J. 2010) (explaining that “racial
profiling” is a legal term of art that results an equal
protection violation, and it is not sufficient to prove “racial
profiling” by simply stating that the officers stopped the
plaintiff based on his race); cf. Brown v. Railroad Group
Limited Liability Company, --- F. Supp. 3d ---, 2018 WL 5729906,
at *8 (D.N.J. Nov. 2, 2018) (quoting Boykins v. SEPTA, 722 F.
App'x 148, 158 (3d Cir. 2018) (citing Lexington Ins. Co. v. W.
Pennsylvania Hosp., 423 F.3d 318, 333 (3d Cir. 2005) (quoting
Hedberg v. Indiana Bell Tel. Co., Inc., 47 F.3d 928, 932 (7th
Cir. 1995)) (“Speculation does not create a genuine issue of
fact; instead, it creates a false issue, the demolition of which
is a primary goal of summary judgment.”).
CONCLUSION
Even though the stipulation as to the existence of probable
cause signed by Plaintiff in the municipal court in exchange for
the dismissal of the state court charges against her does not
bar her false arrest and racial profiling claims in this Court,
Plaintiff has not met her burden to defeat Defendants’ motion
for summary judgment by showing disputed material facts
regarding the constitutionality of Defendants’ actions. In the
absence of a viable claim of a violation of the Constitution,
Defendants maintain their qualified immunity and are therefore
entitled to judgment in their favor.
An appropriate Order will be entered.
Date: June 25, 2020 s/ Noel L. Hillman
At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.