SANDERS v. JERSEY CITY

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

JONATHAN SANDERS,

Plaintiff,

v.

JERSEY CITY; JERSEY CITY POLICE Civ. No. 18- 01057 (KM) (JBC)

DEPARTMENT; OFFICER M.

OTUNDO, OFFICER F. A. MONTERO, OPINION

OFFICER BAUER, OFFICER SALEH,

and JOHN DOES 1–10, individually

and in their official capacities as

Officers with the Jersey City Police

Department;

Defendants.

KEVIN MCNULTY, U.S.D.J.:

Jersey City Police Officers Morton Otundo, Francisco Montero, Albert

Bauer, and John Saleh responded to calls about a dog chasing people on the

street and the dog’s drunk owner, Jonathan Sanders. When the officers

confronted Mr. Sanders, a physical altercation ensued, concluding with

Sanders’s arrest. Having suffered serious injuries, Sanders sued the officers,

Jersey City, and the Jersey City Police Department, alleging constitutional and

tort claims. Officer Otundo (DE 65) and the other Defendants (DE 66)

separately move for summary judgment.1

1 Certain citations to the record are abbreviated as follows:

DE = docket entry

Compl. = Complaint (DE 1)

Otundo Br. = Officer Otundo’s Brief in Support of his Motion for Summary

Judgment (DE 65-14)

Defs. Br. = Remaining Defendants’ Brief in Support of their Motion for

Summary Judgment (DE 66-1)

I am as always respectful of the mission of the police, who are called

upon to make rational judgments with respect to persons who are not always

acting rationally—and, unlike a judge, to do so without the benefit of hindsight

and leisurely deliberation. Still, the summary judgment standard requires that

I withhold judgment when the evidence presents material, disputed issues of

fact. Finding such triable issues, I must deny defendants’ motions for summary

judgment in many respects. For the following reasons, then, the motions (DE

65, 66) are GRANTED IN PART and DENIED IN PART.

Opp. to Otundo Br. = Mr. Sanders’s Opposition to Officer Otundo’s Motion for

Summary Judgment (DE 70)

Opp. to Defs. Br. = Mr. Sanders’s Opposition to the remaining Defendants’

Motion for Summary Judgment (DE 69)

Azem Videos 1–5 = “Videos from Witness Azem” submitted to the Court as Ex. N

to the remaining Defendants’ Motion for Summary Judgment (See 66-5)

Bauer Dep. = Transcript of Deposition of Officer Bauer (DE 66-7, Ex. I)

Bldg. Video = “Sanders Video” submitted to the Court as Ex. N to Remaining

Defendants’ Motion for Summary Judgment (See 66-5)

Crim. Compl. = Criminal Complaint (DE 65-12)

Gardere Rep. = Report of Dr. Jeffrey R. Gardere (DE 69-25)

IA Rep. = Internal Affairs Report (DE 70-13)

Miller Dep. = Deposition Transcript of Mark Miller (DE 66-8, Ex. M)

Montero Dep. = Transcript of Deposition of Officer Montero (DE 70-10)

Muni. Ct. Doc. = Municipal Court Dismissal of Charges (DE 70-23)

Otundo Dep. = Transcript of Deposition of Officer Otundo (DE 66-7, Ex. K)

Otundo Rep. = Investigation Report of Officer Otundo (DE 65-9)

Saleh Dep. = Transcript of Deposition of Officer Saleh (DE 66-7, Ex. J)

Saleh Rep. = Report of Officer Saleh (DE 65-7)

Sanders Dep. = Transcript of Deposition of Mr. Sanders (DE 66-8, Ex. L)

Shane Rep. = Expert Report of Dr. Jon M. Shane (DE 69-18)

Torchinsky Rep. = Report of Dr. Warren M. Torchinsky (DE 69-21)

I. BACKGROUND

There is no genuine dispute regarding how the events unfolded pre- and

post-altercation. But there are different versions of what occurred during the

altercation. I therefore trifurcate my discussion of the facts.

A. Pre-Altercation Events

On May 5, 2017, after drinking four or five margaritas with friends, Mr.

Sanders returned to his apartment building in Jersey City. (Sanders Dep. at

22:2–3, 24:1–16, 25:5–22.) Soon after, his dog (Magoo, a 65-pound

Staffordshire Terrier) escaped from his apartment. (Id. at 28:4–8, 31:18–19,

32:15–19, 34:19.) Sanders followed and found Magoo outside the doors to the

building. (Id. at 39:6–21.) Running from the doors to the street is a long

walkway flanked by greenery. (Id.) Magoo proceeded to the street, and Sanders

followed. (Id. at 43:23–42:8.) Magoo then chased or came frighteningly close to

some local residents. (DE 65-6.) These residents called 911 to report an

uncontrollable dog and intoxicated owner. (Id.)

Officers Bauer and Saleh responded. (Bauer Dep. at 41:21–25.) By then,

Mr. Sanders had gotten Magoo back near the door. (Sanders Dep. at 47:19–21,

50:4–22.) The officers proceeded up the walkway while yelling to Sanders to

leash his dog. (Azem Video 1 at 0:07–42; see also Saleh Rep at 1.) Sanders

yelled back at them, with a perceivable slur and combative tone, “he’s not

doing anything,” “he’s playing,” and—repeatedly—“shut the fuck up.” (Id.; Azem

Video 3 at 0:20, 0:38; Azem Video 4 at 0:00–20.) As the officers came further

up the walkway, Sanders approached them, saying “If you touch my dog—”

while the officers told him to sit down. (Azem Video 5 at 0:27–47.) Then, one

officer pushed him to sit down on a retaining wall. (Id.)

The officers talked with Mr. Sanders, as Magoo trotted around them.

(Bauer Dep. 44:9–12; Saleh Dep. at 62:5–12.) The officers did not observe

Magoo to be threatening. (Saleh Dep. at 42:11–15.) Nor did the officers then

observe anything suggesting that Sanders would get physical with them. (Id. at

43:15–23; Bauer Dep. at 44:13–45:10.)

Officers Otundo and Montero soon arrived and joined the conversation.

(Otundo Dep. at 74:6–16, 75:2–8; Bldg. Video at 0:00–0:30.) As Mr. Sanders’s

obstinacy continued, Otundo retrieved from his vehicle a citation book and

power cord to use as an improvised leash. (Otundo Dep. at 75:24–76:1, 77:6–

10.) Upon returning, Otundo said that he was going to issue a summons for

violating the City’s leash ordinance. (Otundo Rep. at 2.)

Considering the situation to be “safe,” Officers Bauer and Saleh walked

back to the street to speak with residents congregating there. (Saleh Dep. at

47:11–20, 51:6–53:20; see also Bauer Dep. at 45:11–19.) That left Officers

Otundo and Montero with Mr. Sanders and Magoo. (Id.)

B. Altercation

Between video footage and the participants’ accounts, no clear, complete

picture emerges of what happened next.

Video Footage

There is video footage (images, but no sound) from the building’s security

cameras. (Bldg. Video; IA Rep. at 14–15.) The video shows Mr. Sanders

standing and talking with Officers Otundo and Montero. (Bldg. Video at 0:00–

0:30.) Otundo attempted to leash Magoo, exciting the dog, who began jumping

around the three men. Sanders tried to gain control of Magoo with his right

hand, but with his left began pointing in Otundo’s direction. (Id. at 3:25–4:00).

Sanders bent to grab Magoo, while the officers stood calmly. (Id. at 4:00–4:40.)

While bent over, Sanders raised his left arm a foot or two. Otundo immediately

and forcibly pushed Sanders away, and Sanders fell to the ground. (Id. at 4:42–

48.)

Officer Otundo then attempted to restrain Mr. Sanders. At this point,

however, the video picture is partially obstructed by foliage. From what can be

seen, Otundo attempted to get Sanders’s hands behind his back. There was

some struggle between the two, and at one point, it can be seen that Sanders’s

hand was outstretched towards Otundo’s shoulder and neck area. (Id. at 4:40–

5:35.) Officer Montero walked around them calmly the entire time, snapping

his fingers at Magoo. Eventually, Otundo handcuffed Sanders, and Officers

Saleh and Baur returned. (Id. at 6:20–38.)

Officer Otundo’s Account

Officer Otundo described the event in a report written the same day and

later in a deposition.

According to the report, after Officer Otundo attempted to leash Magoo,

Mr. Sanders “brought his hand towards [Otundo’s] face . . . in a threatening

manner,” so Otundo “shoved his arm back towards his torso to create distance

and due to his highly intoxicated state, [Sanders] lost balance.” Otundo then

attempted to handcuff Sanders, but “he pulled the arm away and grabbed

[Otundo’s] neck in a choke hold.” Sanders used “his left arm to clutch

[Otundo’s] uniform shirt over the right shoulder.” Both officers gave commands

to stop, but Sanders kept his grip. He then let go and “rapidly punched”

Otundo in the face. During this altercation, both officers were in “a physical

struggle” with Magoo as well. Otundo then “punched [Sanders] three times” in

the face; as a result, “he was temporarily stunned”; and the two officers were

able to summon Officers Saleh and Baur. (Otundo Rep. at 2.)

According to the deposition, after Officer Otundo attempted to leash

Magoo, Mr. Sanders reached for Otundo’s gun, prompting Otundo to push him

away. (Otundo Dep. at 78:24–79:3.) When Otundo attempted to restrain him on

the ground, Sanders tried to “jab[]” him in the face a few times, so Otundo “hit”

him in response. Then, Sanders grabbed Otundo’s neck, and Otundo

responded with punches. (Id. at 79:4–12.) Sanders returned several punches.

(Id. at 84:16–17.) Otundo acknowledged that those punches cannot be seen on

video. Otundo also acknowledged that he never told Officer Montero he was

being choked or punched. (Id. at 153:23–25, 90:18–22, 191:14–23.)

Mr. Sanders’s Account

Mr. Sanders recalled having a conversation with the two officers and

suddenly “getting hit in the face.” (Sanders Dep. at 63:22–25.) He then

remembers being face down, “punched repeatedly,” and “called a ‘fuckin’

faggot.’” (Id. at 67:17–22.) He denies that he was told he was under arrest or

that he choked Officer Otundo. (Id. at 70:1–23, 74:4–8.) The next thing he

remembers is waking up in the hospital. (Id. at 71:7–10.)

Officer Montero’s Account

In a report provided a few months after the incident, Officer Montero

recounted the incident in terms similar to Officer Otundo’s. He stated that Mr.

Sanders “brought his hand towards P.O. Otundo’s face in a threatening

manner,” Otundo “shoved his arm back,” and, while on the ground, Sanders

“grabbed P.O. Otundo by the neck and used his left arm to clutch his uniform.”

(IA Rep. at 5.) Later, in a deposition for this case, Montero testified that he did

not recall the incident. (E.g., Montero Dep. at 55:1–9.)

C. Post-Altercation Events

Mr. Sanders’s Medical Treatment

Once Officer Otundo subdued and handcuffed Mr. Sanders, he was

placed under arrest and brought to a police station for processing by Officers

Otundo and Montero. (Otundo Dep. at 123:21–24:23.) It became clear,

however, that Sanders had serious facial injuries, so he was taken to a hospital

by ambulance, accompanied by the two officers. (Id. at 124:3–125:8; Montero

Dep. at 60:9–24.) He was handcuffed to a bed for the first 24 hours of what

would be a six-day hospital stay involving surgery. (Sanders Dep. at 71:7–10,

77:13–14.)

Mr. Sanders suffered a blowout fracture of his right eye socket as a

result Officer Otundo’s direct blow to the bone there, as well as a nasal

fracture. (Torchinsky Rep. at 3.) A mesh was implanted to prevent his eyeball

from falling into the sinus. (Id.) Besides physical injury, Sanders now has

crippling fears of the police or even walking his dog, requiring psychotherapy.

(Gardere Rep. at 8.) He received diagnoses of post-traumatic stress disorder

(“PTSD”), major depressive disorder, anxiety disorder, and body dysmorphic

disorder due to the trauma of the event and his changed appearance. (Id. at

22–23.)

Criminal Charges

Officers Otundo and Montero left the hospital and went to the police

station. (Montero Dep. at 60:9–24.) There, the two prepared an investigation

report and a criminal complaint. (Otundo Dep. at 73:14–17, 117:8–12.)

Montero swore out the criminal complaint, which charged Mr. Sanders with

aggravated assault, resisting arrest, and disorderly conduct. (Crim. Compl. at

3.) Otundo wrote an affidavit of probable cause to support the complaint. (Id. at

5.) The charges were eventually dismissed after the officers failed to appear in

court. (Muni. Ct. Doc. at 1; Sanders Dep. at 212:13–16.)

Internal Investigation

Following the incident, Officer Otundo faced disciplinary charges, which

the Police Department’s Internal Affairs unit (“IA”) investigated. (IA Rep.)

Otundo had previously faced similar charges, but none had resulted in a

finding against him. (Id. at 16.) In the incident with Mr. Sanders, the IA found

that he had used excessive force; they required reassignment to administrative

duties and further protocols should he resume patrol. (Id.; Miller Dep. at 58:3–

13.)

According to Mr. Sanders, the Department’s handling of Officer Otundo’s

cases is indicative of larger failures. Although the Department has a use-of-

force policy and procedures for identifying and monitoring non-compliant

officers, the policies and procedures routinely go unenforced. (Shane Rep. at

29–30.) Statistical evidence shows a decline in dispositions of investigations.

(Id. at 34–35.) Further, investigations drag on for years, and officers are

permitted to remain on patrols while they are pending. (Id. at 37.) An expert on

policing opined that the Department’s practices fall below national standards.

(Id. at 39.) The Department responds that all complaints are investigated,

corrective actions are not taken until charges are sustained, and external

factors (like concurrent prosecutions or civil litigation) explain the long

resolution times. (Miller Dep. at 51:11–25, 55:3–9, 59:23–25, 146:5–48:17.)

D. Procedural History

Mr. Sanders sued the four officers, Jersey City, and the Jersey City Police

Department. (Compl.) He asserts the following claims:

• Count 1: false arrest and imprisonment, in violation of the Fourth

Amendment, pursuant to 42 U.S.C. § 1983, against the officers;

• Count 2: illegal search and seizure, in violation of the Fourth

Amendment, pursuant to § 1983, against the officers;

• Count 3: excessive force, in violation of the Fourth Amendment,

pursuant to § 1983, against the officers;

• Count 4: municipal liability, pursuant to § 1983 and the New Jersey Civil

Rights Act (“NJCRA”), N.J. Stat. Ann. § 10:6-2, against the City and

Department;

• Count 5: violations of corresponding rights under the New Jersey

Constitution, pursuant to the NJCRA, against the officers;

• Count 6: failure to intervene, in violation of the Fourth Amendment,

pursuant to § 1983, against the officers (except Otundo);

• Count 7: conspiracy, pursuant to § 1983,2 against the officers;

• Count 8: intentional and negligent infliction of emotional dismiss (“IIED”

and “NIED”), against the officers;

• Count 9: malicious prosecution, pursuant to § 1983, against the officers;

• Count 10: assault and battery, against the officers.

(Compl. ¶¶ 33–106.) He seeks compensatory and punitive damages, as well as

injunctive relief. (Id., Prayer.) Officer Otundo and the remaining Defendants

separately move for summary judgment. This Opinion will focus on three

Defendants: Officer Otundo, Officer Montero, and the City.3

2 Mr. Sanders clarifies in his briefs that his claims for conspiracy and malicious

prosecution are brought under § 1983. (Opp. to Defs. Br. at 17, 49.)

3 Some clutter:

The Complaint asserts the § 1983 and NJCRA claims against the officers in

both their individual and official capacities. (Compl. ¶ 4.) Such claims are permitted

only against persons in their individual capacities, not their official capacities. Downey

II. STANDARD OF REVIEW

Federal Rule of Civil Procedure 56(a) provides that summary judgment

should be granted “if the movant shows that there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a matter of law.”

See Kreschollek v. S. Stevedoring Co., 223 F.3d 202, 204 (3d Cir. 2000). In

deciding a motion for summary judgment, a court must construe all facts and

inferences in the light most favorable to the nonmoving party. Boyle v. County

of Allegheny, 139 F.3d 386, 393 (3d Cir. 1998). The moving party bears the

burden of establishing that no genuine issue of material fact remains. Celotex

Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). “[W]ith respect to an issue on

which the nonmoving party bears the burden of proof . . . the burden on the

moving party may be discharged by ‘showing’—that is, pointing out to the

v. Pa. Dep’t of Corrs., 968 F.3d 299, 309–10 (3d Cir. 2020) (§ 1983); Estate of Lagano v.

Bergen Cnty. Prosecutor’s Off., 769 F.3d 850, 856 (3d Cir. 2014) (NJCRA). I will

therefore dismiss the § 1983 and NJCRA claims for damages as against the officers in

their official capacities only, leaving the individual-capacity claims.

The Jersey City Police Department is not properly named as a defendant. A New

Jersey police department is a subdivision of municipal government, not a separate

legal entity with the capacity to sue or be sued. N.J. Stat. Ann. § 40A:14-118

(municipal police department is “an executive and enforcement function of municipal

government”); see Mitchell v. City of Jersey City, Civ. No. 15-6907, 2016 WL 1381379,

at *1 (D.N.J. Apr. 7, 2016); McGovern v. Jersey City, Civ. No. 98-5186 2006 WL 42236,

at *7 n.4 (D.N.J. Jan. 6, 2006) (police departments cannot be sued in conjunction with

municipalities because police departments are administrative arms of local

municipalities, not separate entities); see also Bonenberger v. Plymouth Township, 132

F.3d 20, 25 n.4 (3d Cir. 1997); Padilla v. Twp. of Cherry Hill, 110 F. App’x 272, 278 (3d

Cir. 2004); cf. Los Angeles County v. Humphries, 562 U.S. 29, 37 (2010) (Monell

requirements apply equally to damages and injunctive claims). For claims involving

the Department, the proper defendant is the City itself, which is separately named in

this complaint. I will therefore dismiss the Department as a redundant defendant,

while retaining the City. The correction is technical; the substance of the action is not

affected.

Finally, Mr. Sanders concedes that discovery has shown that Officers Baur and

Saleh were insufficiently involved in the incident. (Opp. to Defs. Br. at 4 n.1.) They

were speaking to residents on the street while the altercation occurred on the

walkway, and the two did not arrest Sanders or prepare the charging documents.

Accordingly, I will grant summary judgment in favor of Baur and Saleh on all counts.

district court—that there is an absence of evidence to support the nonmoving

party’s case.” Id. at 325.

Once the moving party has met that threshold burden, the non-moving

party “must do more than simply show that there is some metaphysical doubt

as to material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.

574, 586 (1986). The opposing party must present actual evidence that creates

a genuine issue as to a material fact for trial. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 (1986); see also Fed. R. Civ. P. 56(c) (setting forth types of

evidence on which nonmoving party must rely to support its assertion that

genuine issues of material fact exist). “A fact is material if—taken as true—it

would affect the outcome of the case under governing law. And a factual

dispute is genuine if the evidence is such that a reasonable jury could return a

verdict for the nonmoving party.” M.S. by and through Hall v. Susquehanna

Twp. Sch. Dist., 969 F.3d 120, 125 (3d Cir. 2020) (quotation marks and citation

omitted).

III. DISCUSSION

I first assess the constitutional claims asserted via § 1983 and the

NJCRA against Officers Otundo and Montero (Section III.A), then the state-law

tort claims against those officers (Section III.B), and finally the municipal-

liability claim against the City (Section III.C). In sum, I hold that genuine issues

of fact preclude summary judgment on the excessive-force claim against

Otundo and the failure-to-intervene claim against Montero. Similar factual

issues preclude summary judgment on the parallel state-law tort claims.

I am compelled by Supreme Court precedent to find that Officers Otundo

and Montero had probable cause to arrest and detain Mr. Sanders based on his

violation of the leash ordinance. Nonetheless, they are not entitled to summary

judgment on the malicious prosecution claim, because the leash ordinance was

never the basis for any formal charge, and there are triable issues as to

probable cause for the offenses that were charged.

A. Constitutional Claims against the Officers

Section 1983 and the NJCRA provide a cause of action to recover for

deprivations of constitutional rights. Walker v. City of Newark, Civ. No. 19-

16853, 2020 WL 3542502, at *6, 13 (D.N.J. June 30, 2020).4 Nonetheless,

qualified immunity, which Defendants invoke here, shields officials from

liability unless they violated clearly established rights. Williams v. City of York,

967 F.3d 252, 258 (3d Cir. 2020) (§ 1983); Morillo v. Torres, 117 A.3d 1206,

1213 (N.J. 2015) (NJCRA). A qualified-immunity defense fails if (1) “the officer

violated a constitutional right,” and (2) “the right was clearly established.” El v.

City of Pittsburgh, 975 F.3d 327, 334 (3d Cir. 2020); see Williams, 967 F.3d at

257 (each defendant must have violated a clearly established right to be held

liable).

I take up the remaining claims against Officers Otundo and Montero in

rough chronological order. Each officer asserts qualified immunity. Therefore,

in each instance, I consider first whether there was a constitutional violation,

and second whether any such violation was clearly established.

Excessive Force

Mr. Sanders alleges that Officers Otundo and Montero used excessive

force when arresting him. (Compl., Counts 3, 5.) I first consider whether the

record demonstrates that a constitutional violation occurred.

a. Constitutional Violation

The Fourth Amendment to the U.S. Constitution and Article I, paragraph

7 of the New Jersey Constitution both protect against “unreasonable searches

and seizures.” U.S. Const. amend. IV; N.J. Const. Art. 1, ¶ 7. That protection

prohibits police officers from using excessive force. El, 975 F.3d at 336 (Fourth

Amendment); Trafton v. City of Woodbury, 799 F. Supp. 2d 417, 436 (D.N.J.

4 Mr. Sanders’s NJCRA claim (Count 5) essentially alleges that all the federal

constitutional violations also amount to violations of the New Jersey Constitution. (See

Compl. ¶¶ 75–84.) NJCRA and § 1983 claims are construed in parallel. Trafton v. City

of Woodbury, 799 F. Supp. 2d 417, 443 (D.N.J. 2011).

2011) (New Jersey Constitution). To prevail on an excessive-force claim, “a

plaintiff must show [1] that a seizure occurred and [2] that it was unreasonable

under the circumstances.” Id. (citation omitted). On the first prong, “[a] seizure

requires the use of force with intent to restrain.” Torres v. Madrid, 141 S. Ct.

989, 998 (2021) (emphasis omitted). On the second prong, the question is

whether “the officers’ actions are objectively reasonable in light of the facts and

circumstances.” Williams, 967 F.3d at 259 (quotation marks and citation

omitted). I consider whether a reasonable officer would perceive Mr. Sanders to

pose an immediate threat, commit a serious crime, actively resist arrest, or

possess a weapon. El, 975 F.3d at 336. I also consider whether the force

employed was necessary to effect an arrest and otherwise proportional. Id.

i. Officer Otundo

On the first prong, there can be no dispute that Officer Otundo effected a

seizure—he shoved Mr. Sanders to the ground and then physically subdued

him to make an arrest. On the second prong, genuine issues of material fact

exist as to whether the force used was reasonable. I identify them here.

First, there is a factual dispute over how a reasonable officer would

perceive Mr. Sanders’s arm movement and the need to respond physically.

In his deposition, Officer Otundo stated that he perceived that Mr.

Sanders was reaching for Otundo’s gun. (Otundo Dep. at 78:24–79:3.) Otundo

claimed in his contemporaneous report that he viewed the movement as

“threatening,” although he then made no specific mention of his gun. (Otundo

Rep. at 2.) This testimony, if credited, could dispose a jury in Otundo’s favor.

On the other hand, a juror could think, from the video, that Mr. Sanders

seemed only to be finding his balance, and that the movement of his arm was

involuntary or minor. Or a juror could credit Sanders’s testimony that his acts

were aimed at handling Magoo. (Sanders Dep. at 63:22–25.) Further, Officer

Montero remained calm and physically uninvolved through all this activity,

undermining any assessment of the situation as threatening and tense. Up

until that point, Sanders had been rowdy and unruly, but not physical; indeed,

Officers Bauer and Saleh had walked away, believing that the situation was

safe. (Saleh Dep. at 47:11–20, 51:6–53:20.) On this version of the events, a

juror could find that it was unreasonable for Otundo to perceive Sanders as

threatening or reaching for his gun.

The character of Mr. Sanders’s arm movement is material because key

factors for finding force reasonable are whether the suspect “pose[d] an

immediate threat to the safety of the officers” and was “violent or dangerous.”

El, 975 F.3d at 336; see also Johnson v. City of Philadelphia, 837 F.3d 343, 350

(3d Cir. 2016) (clear attempt to grab officer’s gun will support use of force).

Those factors are especially important here because, at this point, other factors

did not strongly point to the use of force: Sanders was alone, outnumbered,

suspected of only minor non-violent crimes, unarmed, apparently alcohol-

impaired, and not under arrest. See El, 975 F.3d at 336. The threat which

Sanders posed, then, turns on disputed perceptions of the situation, and is

therefore a matter for trial. See Rivas v. City of Passaic, 365 F.3d 181, 199 (3d

Cir. 2004) (cleaned up) (“[A] police officer . . . is not precluded from arguing that

he reasonably perceived the facts to be different from those alleged by the

plaintiff, but that contention must be considered at trial.”).

Second, there is a factual dispute over how Officer Otundo responded to

Mr. Sanders’s arm movement, and whether that response was proportional.

Otundo stated that he only pushed Sanders in an attempt to create distance.

(Otundo Rep. at 2.) Sanders’s fall, according to Otundo, was attributable to his

intoxicated state. (Id.) Alternatively, a juror could view the video and perceive

Otundo’s physical contact as a forcible shove, intended to level Sanders so he

could be restrained. Otundo’s account is a matter of credibility for the jury.

This dispute is material because, while the excessive-force standard

allows for “split-second judgments,” the bottom-line inquiry is whether “the

amount of force” was “necessary in a particular situation.” Williams, 967 F.3d

at 259. If a juror takes the view that Officer Otundo intended to forcibly push

Mr. Sanders to the ground, then the juror could view the amount of force as

unnecessary for an individual who posed no threat. Given a low-stakes

situation involving an unarmed man accused of only a leash-law infraction, a

juror could see Otundo’s assertion of complete, immediate, forcible control over

Sanders as an unreasonable response. Or not; but that is the nature of a

factual issue.

Third, there is a factual dispute over whether, during the on-the-ground

scuffle, Mr. Sanders actively resisted arrest and punched or choked Officer

Otundo. Those acts are proffered as the justification for Otundo’s punching

Sanders in the face three times. In his report, Otundo stated that he did so

because Sanders was choking him with one hand and grasping his shoulder

with the other. The report also stated that Otundo punched Sanders after

Sanders first punched Otundo. (Otundo Rep. at 2.) Otundo’s deposition

contains a more elaborate account. There, Otundo stated that Sanders tried to

“jab” fingers in Otundo’s face a few times, then Otundo “hit” Sanders, then

Sanders grabbed Otundo’s neck, and then Otundo responded with punches.

(See Otundo Dep. at 79:4–12.)

But the video, as Officer Otundo acknowledged, does not show any

punches or chokehold by Mr. Sanders. (Id. at 84:16–17.) The video does not

provide a clear and complete view, however, and therefore is not conclusive. It

does not document the level of physicality and aggression from Sanders to

which Otundo attested, but perhaps does not rule it out, either. Sanders can

be seen rolling around and possibly trying to get his arms free. Otundo’s neck

is visible for almost all of the time, and no hand can be seen on it, although,

the video does show Sanders grabbing Otundo’s shoulder. Corroborating the

more benign view, Officer Montero was within a few feet of the altercation but

apparently did not feel the need to get physically involved, and Otundo never

told Montero he was being choked or punched. (Otundo Dep. at 153:23–25,

90:18–22, 191:14–23.)

Mr. Sanders denied the allegations that the officers told him he was

being arrested, and denied that he grabbed Officer Otundo’s throat. (Sanders

Dep. at 70:1–23, 74:4–8.) He also recalls being called a “fuckin’ faggot”

repeatedly. (Id. at 67:17–22.) A juror, if it credited that testimony, could

conclude that repeated use of a slur while punching an arrestee perhaps

bespeaks a malign motive beyond that of self-defense or reasonable force.

All said, the reason that Officer Otundo threw punches remains unclear.

That factual issue is material because the punches constituted a quite

substantial use of force, evidenced by the serious injury that resulted. Now, if

Mr. Sanders was in fact trying to choke Otundo, that threat to safety could

justify punching Sanders to break the chokehold. But if Sanders did not choke

or punch him, Otundo only needed to subdue Sanders. Punches resulting in

broken bones and serious facial injury would be unnecessary and excessive,

especially if, as a juror could find, Sanders was not forcibly resisting arrest.

Given these material factual disputes, I cannot grant Officer Otundo

qualified immunity on the ground that no constitutional violation was shown.

ii. Officer Montero

I next consider the first prong of qualified immunity—whether a

constitutional violation was shown—as to Officer Montero. Here, summary

judgment is a closer call. The video shows that, during the altercation, Montero

seemed to be occupied with distracting Magoo. Nonetheless, his feet cannot be

seen the whole time. Mr. Sanders contends that Montero kicked him while he

and Officer Otundo were on the ground. He points to (1) a use-of-force report

filed by Montero in which he checked boxes indicating that he used a

compliance hold, his hands/fists, and kicks (DE 69-20); and (2) testimony in

which Montero refused to answer questions about his use of force. (Opp. at

Defs. Br. at 26–27.)

Mr. Sanders’s testimony, credited as it must be on this motion, is

sufficient to raise a genuine dispute over whether Officer Montero kicked him.

It could perhaps be set aside as a sham if “blatantly contradicted” by the video

evidence, but the video, as noted is inconclusive. Cf. Scott v. Harris, 550 U.S.

372, 380 (2007) (courts need not accept a version of the facts “blatantly

contradicted” by a video). This dispute is material because the gratuitous use of

force when a person is already subdued is unreasonable. E.g., Noble v. City of

Camden, 112 F. Supp. 3d 208, 227 (D.N.J. 2015).

Given that material factual dispute, I cannot grant Officer Montero

qualified immunity on the ground that no constitutional violation was shown.

b. Clearly Established

The officers may still enjoy qualified immunity on the second, “clearly-

established” prong. “To determine whether a right was clearly established, we

conduct a two-part inquiry. First, we must define the right allegedly violated at

the appropriate level of specificity.” See Peroza-Benitez v. Smith, --- F.3d ---, ---,

No. 20-1390, 2021 WL 1307883, at *4 (3d Cir. Apr. 8, 2021) (quotation marks

and citation omitted). In defining the right at this stage, I construe the facts

and resolve disputes in Mr. Sanders’s favor. Noble, 112 F. Supp. 3d at 227; see

Peroza-Benitez, 2021 WL 1307883, at *7–8; Tolan v. Cotton, 572 U.S. 650, 657

(2014) (per curiam). If, for example, even with facts resolved against the

officers, they still did not violate a clearly established right, then they would be

entitled to qualified immunity. See id. The right here, construing the disputed

facts in favor of Sanders, would be the right for a non-threatening individual to

be free from being shoved to the ground and repeatedly punched or kicked by

an officer while not resisting arrest.

The next step is to compare that right to case law existing at the time of

the incident (May 2017) and determine whether that law made it “sufficiently

clear” to “a reasonable official . . . that what he is doing violates that right.”

Peroza-Benitez, 2021 WL 1307883, at *4 (citation omitted). To make the issue

sufficiently clear, the prior case law must be sufficiently specific. District of

Columbia v. Wesby, 138 S. Ct. 577, 590 (2018). Case law precisely on point, of

course, is the quintessential example. But “a general constitutional rule

already identified in the decisional law may apply with obvious clarity to the

specific conduct in question, even though the very action in question has [not]

previously been held unlawful.” Hope v. Pelzer, 536 U.S. 730, 741 (2002);

accord Taylor v. Riojas, 141 S. Ct. 52, 53–54 (2020) (per curiam) (no qualified

immunity for corrections officers who forced an inmate to sleep in a sewage

covered cell because, while there were no sewage cases, “no reasonable

correctional officer could have concluded that ... it was constitutionally

permissible to house [an inmate] in such deplorably unsanitary conditions”);

Williams v. Bitner, 455 F.3d 186, 191 (3d Cir. 2006). I look first to Supreme

Court and Third Circuit precedent, then to any “robust consensus” from the

Courts of Appeals, and then to “district court cases.” Peroza-Benitez, 2021 WL

1307883, at *5 (citations omitted).

There is no Third Circuit case factually on point. Perhaps the closest

analogue is Couden v. Duffy, 446 F.3d 483 (3d Cir. 2006). There, officers, to

effect an arrest, threw a 14-year-old to the ground, repeatedly pushed his head

down, pointed guns at him, and sprayed him with mace. Id. at 490. The Third

Circuit held that this force was clearly unreasonable because the victim was

unarmed, did not resist, and posed no particular threat. Id. at 497.

Couden tends to suggest that the conduct here was unreasonable

because, in both cases, an officer used substantial force to subdue a person

who presented a minimal threat. Indeed, courts had agreed, prior to the events

here, that Couden stands for the general proposition that “[t]he gratuitous use

of force against an arrestee who has already been restrained violates the

Fourth Amendment.” Noble, 112 F. Supp. 3d at 228; see Anthony v. Seltzer,

696 F. App’x 79, 82 (3d Cir. 2017) (“[U]nder long-established Fourth

Amendment law, force may not legitimately be used against an individual who

is compliant and poses no ongoing threat to himself or others, or who is not

resisting arrest, even if he was initially non-compliant.”). The rule of Couden,

extended to the facts of this case, would dictate that shoving a person to the

ground and punching him three times in the face, or kicking him when he did

not present a threat or actively resist, is unconstitutionally excessive and

disproportionate.

The facts of Couden, as I say, are not precisely on point. There is

substantial case law from other Courts of Appeals, however, standing for the

same legal rule and applying it to more closely analogous facts. See, e.g., Kidis

v. Reid, 976 F.3d 708, 720 (6th Cir. 2020) (officer, in 2013, violated clearly

established rights when he punched intoxicated individual while he was on the

ground and officer was on top of him effecting arrest); Darden v. City of Fort

Worth, 880 F.3d 722, 732–33 (5th Cir. 2018) (officer, in 2013, violated clearly

established rights when he pushed individual down and repeatedly punched

and kicked him in the head when he was not actively resisting); Burnikel v.

Fong, 886 F.3d 706, 711–12 (8th Cir. 2018) (officers, in 2013, violated clearly

established rights when they repeatedly punched non-threatening individual,

who was on the ground and whose only resistance was attempting to cover his

face); Trammel v. Fruge, 868 F.3d 332, 343 (5th Cir. 2017) (officers, in 2013,

violated clearly established rights when they tackled a non-violent, intoxicated

individual to the ground after he pulled his arm away from an officer); O’Hara

v. City of New York, 570 F. App’x 21, 23–24 (2d Cir. 2014) (officers repeatedly

punched an “unarmed, non-menacing” individual in effecting an arrest);

Schreiber v. Moe, 596 F.3d 323, 332–33 (6th Cir. 2010) (officers pushed

unarmed, unthreatening individual to the ground and repeatedly punched

him); Sallenger v. Oakes, 473 F.3d 731, 740 (7th Cir. 2007) (officers repeatedly

punched a mentally ill individual to subdue him, who nonetheless had charged

officers and resisted arrest and verbal commands to comply).

Likewise, cases in this District agree that similar gratuitous application

of force when effecting an arrest is unreasonable. See Noble, 112 F. Supp. 3d at

228 (collecting five cases from this District); Helms v. Ryder, Civ. No. 14-2470,

2017 WL 1356323, at *6–7 (D.N.J. Apr. 12, 2017) (four punches while plaintiff

was on the ground).

Given the broad consensus of cases in the Courts of Appeals and this

District, I find that the right allegedly violated here was sufficiently established

at the time of the events. Thus, Officers Otundo and Montero are not entitled to

qualified immunity at this stage.

Indeed, the parties’ disagreement is not really about the law at all. The

officers are not claiming they could constitutionally beat a suspect for no

reason; rather, they deny that this is what occurred. Unresolved factual issues,

which must be tried, stand in the way of application of the qualified immunity

doctrine. The motions of Officers Otundo and Montero for summary judgment

on Count 3 and Count 5, to the extent based on excessive force, will therefore

be denied.

Failure to Intervene

Mr. Sanders alleges that Officer Montero failed to intervene and stop

Officer Otundo’s excessive use of force, a distinct constitutional violation. (See

Compl., Counts 5, 6.)

a. Constitutional Violation

“A police officer has a duty to take reasonable steps to protect a victim

from another officer’s use of excessive force, but only if there is a realistic and

reasonable opportunity to intervene.” El, 975 F.3d at 335 (cleaned up).5 Of

course, a failure-to-intervene claim requires a predicate use of excessive force.

Nifas v. Coleman, 528 F. App’x 132, 135–36 (3d Cir. 2013). So the factual

disputes regarding the excessive-force claim should also preclude summary

judgment on the dependent, failure-to-intervene claim.

Nonetheless, I consider whether, even accepting the excessive-force facts

in the light most favorable to Mr. Sanders, no reasonable juror could conclude

that Officer Montero culpably failed to intervene.

5 The New Jersey Supreme Court has not addressed whether the New Jersey

Constitution also imposes a duty to intervene to prevent excessive force. But that

court has held that the Fourth Amendment provides a “floor of constitutional

protection”; the implication is that protections of the New Jersey Constitution may not

fall short of Fourth Amendment protections but may exceed them. State v. Hempele,

576 A.2d 793, 800 (N.J. 1990). So I conclude that any failure to intervene by Officer

Montero would violate the New Jersey Constitution, too, and permit an NJCRA claim

based thereon. See Trafton, 799 F. Supp. 3d at 443–44 (§ 1983 and NJCRA claims

arising from excessive force are treated the same).

To the extent Officer Otundo’s initial shove was excessive, there can be

no failure-to-intervene claim against Officer Montero. That shove happened

spontaneously and without warning, and there is no reasonable inference that

Officer Montero had the opportunity to prevent it. See El, 975 F.3d at 335.

I therefore confine the failure-to-intervene analysis to the subsequent

period when Officer Otundo allegedly used excessive force while on the ground

with Mr. Sanders. At that point, at least, the timeline does not rule out the

possibility that Montero had an opportunity to intervene, so the claim may

implicate disputes of fact. See Anderson v. Branen, 17 F.3d 552, 557 (2d Cir.

1994) (the reasonable-opportunity-to-intervene standard presents questions of

fact for a jury to decide). As to that period, some factual issues arise.

First, there is a factual dispute over what Officer Montero could perceive

about the altercation as it unfolded. That dispute is material because failure-

to-intervene liability requires that Montero saw or was aware of the use of

excessive force. See Smith v. Mensinger, 293 F.3d 641, 650–51 (3d Cir. 2002)

(citations omitted). Montero reported that he witnessed Mr. Sanders “grab[]

P.O. Otundo by the neck.” (IA Rep. at 5.) If that statement is credited, then a

juror could find that Montero only perceived Otundo to be acting in self-defense

or lawfully effecting an arrest; on that version of events, no duty to intervene

arose. On the other hand, a juror could conclude, based on, e.g., the video,

that Sanders did not punch or choke Otundo, and offered minimal resistance.

Indeed, Otundo admitted he never gave any indication to Montero during or

after the event that he had been punched or choked. (Otundo Dep. at 153:23–

25, 90:18–22, 191:14–23.) Throughout the events, the video demonstrates,

Montero walked around calmly within a few feet of the two men. A juror could

conclude that if an officer perceived a dangerous struggle, he would have done

something to reinforce his fellow officer. The same behavior, then, would be

consistent with a conclusion that (a) Montero, for whatever reason, did not

perceive that Otundo was under attack, or (b) Montero was indifferent to

Otundo’s application of unreasonable force.

Second, there is a factual dispute over whether Officer Montero was

otherwise occupied during the altercation. Anderson, 17 F.3d at 558. On one

hand, Officer Otundo’s investigation report and the affidavit of probable cause

attest that Officer Montero was in a “physical struggle” to keep Magoo away

from Otundo and Mr. Sanders. (Otundo Rep. at 2; Crim. Compl. at 4.) On the

other hand, the character of Magoo’s behavior during the altercation, as seen

on video, is a factual matter to be considered by the jury. At one point, Montero

appears to be pacing back and forth while snapping or moving his fingers, as

Magoo playfully jumped at them. That interpretation would tend to rebut the

notion that both officers had their hands full with dual threats.

Third, there is a factual issue as to when and how Officer Otundo

punched Mr. Sanders. That dispute is material because if the events unfolded

in rapid succession, then Officer Montero might not have had a realistic

opportunity to intervene. See O’Neill v. Krzeminski, 839 F.2d 9, 11 (2d Cir.

1988) (three rapid blows did not provide an opportunity to intervene). The video

does not clearly show when the punches occurred. In fact, Otundo himself

seems to have been somewhat inconsistent about when he punched Mr.

Sanders. (See Section III.A.1.a.i, supra.) Accordingly, there are factual disputes

precluding a finding of no constitutional violation on the failure-to-intervene

claim.

b. Clearly Established

On the second prong of qualified immunity, a police officer’s duty to

intervene to prevent excessive force was well-established by 2017. Smith, 293

F.3d at 650–51; Baker v. Monroe Township, 50 F.3d 1186, 1193 (3d Cir. 1995).

The Third Circuit has held that the right described in Smith and Baker is

sufficiently specific and clear to preclude qualified immunity. Garbacik v.

Janson, 111 F. App’x 91, 94 (3d Cir. 2004); see Weimer v. County of Fayette,

972 F.3d 177, 191 (3d Cir. 2020). If it is sufficiently clear that the partner’s

force was excessive, then the duty to intervene is likewise clear. See Rivera v.

Como, 733 F. App’x 587, 590–91 (3d Cir. 2018).

Thus, factual issues bar the application of qualified immunity to Officer

Montero on the failure-to-intervene claim. For these reasons, Officer Montero’s

motion for summary judgment on Count 6 and Count 5, to the extent based on

a failure to intervene, will be denied.

False Arrest and Imprisonment

Once Officers Otundo and Montero gained control of Mr. Sanders, they

formally placed him under arrest and detained him. Sanders alleges that, in

doing so, they violated his constitutional rights to be free from false arrest and

imprisonment. (Compl., Counts 1, 5.) False-arrest and false-imprisonment

claims require Sanders to show that there was (1) an arrest and detention,

(2) without probable cause. Harvard v. Cesnalis, 973 F.3d 190, 199, 202 (3d

Cir. 2020); accord State v. Gibson, 95 A.3d 110, 118 (N.J. 2014) (New Jersey

Constitution). There can be no dispute that there was a seizure, i.e., an arrest

and follow-on detention.6 The issue, then, is probable cause.

“An officer has probable cause to arrest a person 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.” Harvard, 973 F.3d at 199–

200 (quotation marks and citation omitted). “This totality-of-the-circumstances

inquiry is necessarily fact-intensive,” so “summary judgment for false arrest

6 There was a detention here because Mr. Sanders was put into a police vehicle,

taken to a booking station, then taken to a hospital, and handcuffed to the hospital

bed. Nicholson v. City of Los Angeles, 935 F.3d 685, 691 (9th Cir. 2019) (handcuffed

while at hospital); Gaines v. Pro. Sec. Consultants, No. CV 16-5130, 2017 WL

10562573, at *3 (C.D. Cal. Nov. 28, 2017) (same); see Torres, 141 S. Ct. at 1001

(seizure for Fourth Amendment purposes can occur when there is any “termination of

freedom of movement”).

Relatedly, although Officer Otundo was primarily involved in subduing and

handcuffing Mr. Sanders, Officer Montero still had sufficient personal involvement for

a false-arrest and false-imprisonment claim because he (1) helped take Sanders to the

vehicle immediately after the handcuffing, (2) took Sanders, with Otundo, to the police

station for booking, and (3) took Sanders from there to the hospital. (IA Rep. at 3, 5;

Otundo Dep. at 162:12–13.)

and false imprisonment is proper only if no reasonable juror could find a lack

of probable cause for any of the charged crimes.” Id. (quotation marks and

citation omitted). I consider (a) the offenses formally charged, (b) the offenses

suggested by the charging documents, and (c) the leash ordinance.

a. Charged Offenses

Mr. Sanders was charged with three offenses: (1) “aggravated assault on

law enforcement by punching with his right hand and grabbing Officer

Otundo[] . . . by the neck and squeezing it,” in violation of N.J. Stat. Ann.

§ 2C:12-1(a)(1); (2) “resisting arrest by not complying with . . . verbal

commands, grabbing and pulling [Officer Otundo] by his uniform shirt,” in

violation of § 2C:29-2(a)(1); and (3) “disorderly conduct by engagin[g] in a

physical confrontation with the arresting officer . . . and using offensive

language towards the public,” in violation of § 2C:33-2(a)(1). (Crim. Compl. at 3

(capitalization altered).)7

For false-arrest-type claims, I only consider whether the officers had

probable cause for these offenses before the officers began to attempt the

arrest. Groman v. Township of Manalapan, 47 F.3d 628, 635 (3d Cir. 1995); see

also Trafton, 799 F. Supp. 2d at 436. The arrest here began when Officer

Otundo moved on top of Mr. Sanders after the fall and attempted to restrain

him, as this was “application of physical force to the body of a person with

intent to restrain [which] is a seizure even if the person does not submit and is

not subdued.” See Torres, 141 S. Ct. at 1003. Anything after Sanders’s fall is

an artifact, not a cause, of the seizure.8

7 Defendants have submitted three versions of the criminal complaint. At DE 65-

12, there are two copies, one with handwriting amending the statutes cited and a

signature dated ten days later, possibly by a magistrate. At DE 66-6 (Ex. H), there is a

defendant’s copy. The copies without handwriting seem to include an additional

charge for obstruction of lawful government function. However, the document from the

municipal court dismissing the charges reflects the charges listed in the copy with

handwriting. I discuss the additional obstruction charge in the following section.

8 I consider whether Mr. Sanders’s conduct following the initiation of the arrest

(i.e., his actions during the altercation) provided probable cause for any offense in

Turning to the charged offenses, there are genuine issues of material fact

as to whether Officers Otundo and Montero possessed probable cause. First,

the assault offense provides that “[a] person is guilty of assault if the

person . . . [a]ttempts to cause or purposely, knowingly or recklessly causes

bodily injury to another.” N.J. Stat. Ann. § 2C:12-1(a)(1). Assault is

“aggravated” if against a police officer. Id. § 2C:12-1(b)(5)(a). The only possible

assault prior to the arrest was Mr. Sanders’s raised hand, to the extent it may

be regarded as threatening. There is a factual dispute as to probable cause for

assault because a juror could watch the video and think that a reasonable

person could only perceive Sanders’s hand movements as a product of his

intoxication and agitation. (See Section III.A.1.a.i, supra.) A juror could thus

find it unreasonable for Otundo to perceive such a slight movement from an

otherwise non-threatening individual as a threat to strike the officer.

Second, “the resisting arrest charge could not have provided probable

cause for the arrest.” Groman, 47 F.3d at 635; see also Trafton, 799 F. Supp.

2d at 436. Courts have viewed such retroactive justifications with a jaundiced

eye, and rightly so. Id.

Third, the disorderly-conduct offense provides that “[a] person is

guilty . . . if with purpose to cause public inconvenience, annoyance or alarm,

or recklessly creating a risk thereof he . . . [e]ngages in fighting or threatening,

or in violent or tumultuous behavior.” N.J. Stat. Ann. § 2C:33-2(a)(1). A juror

could readily conclude that, prior to the arrest, Mr. Sanders had not engaged in

any fighting or threatening and that his behavior was not violent or

tumultuous. As to fighting, there is no evidence of Sanders attempting to fight

the officers. As to threatening, Sanders did say “If you touch my dog,” leaving

the sentence unfinished. But he said that to Officers Bauer and Saleh before

Officers Otundo and Montero had even arrived. (Azem Video 5 at 0:27–47; IA

Rep. at 6.) As to violent or tumultuous behavior, there were no indications that

Section III.A.5.a.ii, infra. It did not, so even if that conduct should be considered in the

false-arrest or false-imprisonment context, it would not change my conclusion.

Sanders would get violent. (See Saleh Dep. at 47:11–20, 51:6–53:20.) True, as

noted above, a juror might (or might not) credit the statements of Otundo and

Montero that, just prior to the altercation, Sanders jabbed his fingers at

Otundo’s face or went for his gun. (IA Rep. at 5; Otundo Dep. at 79:4–12.) But

a juror could alternatively credit Sanders’s testimony or view his raised arm as

innocuous. (Section III.A.1.a.i, supra.) If that is the case, Sanders’s conduct

would fall short of criminality. See State v. Stampone, 775 A.2d 193, 197 (N.J.

Super. Ct. App. Div. 2001) (slamming car door insufficient); State v. Davis,

2011 WL 2350039, at *2, 4 (N.J. Super. Ct. App. Div. June 3, 2011) (per

curiam) (flailing at officer insufficient).

All said then, issues of fact preclude my holding that Officers Otundo

and Montero had probable cause to arrest based on the three offenses charged.

b. Other Offenses Suggested by the Charging Documents

The criminal complaint equivocally refers to two other charges. First, one

version of the complaint included a fourth charge for obstruction of lawful

government function, N.J. Stat. Ann. § 2C:29-1(a). (Crim. Compl. at 2.) This

charge, however, is not on the copy seemingly signed by the magistrate, and is

not included in the municipal court’s list of dismissed charges. (Id. at 3; Muni.

Ct. Doc. at 1.) Second, the criminal complaint, in the charge of disorderly

conduct, stated that Mr. Sanders used “offensive language towards the public.”

(Crim. Compl. at 3.) The disorderly-conduct statute contains a subsection

proscribing such language, but that subsection was not cited as the basis for

the charge, and that charge is not cited in the dismissal. (Id.; Muni. Ct. Doc. at

1.)

Still, I can assess whether officers had probable cause to arrest even for

offenses not formally charged. See Devenpeck v. Alford, 543 U.S. 146, 153–55

(2004) (officers’ suspicions that suspect was impersonating a police officer

supported arrest, even if the suspect was only later charged with an unrelated

crime that was dismissed); Wright v. City of Philadelphia, 409 F.3d 595, 602 (3d

Cir. 2005) (“[I]t is irrelevant to the probable cause analysis what crime a

suspect is eventually charged with . . . .”); Barna v. City of Perth Amboy, 42

F.3d 809, 819 (3d Cir. 1994) (“Probable cause need only exist as to any offense

that could be charged under the circumstances.”). So I consider the two

offenses.

The officers lacked probable cause for obstruction of a lawful government

function. “[L]awfully performing an official function” refers to “a police officer

acting in objective good faith, under color of law in the execution of his duties.”

State v. Reece, 117 A.3d 1235, 1245 (N.J. 2015) (citation omitted). I assume,

then, that the officers’ efforts to get Mr. Sanders to comply with the leash

ordinance qualify. But obstruction “requires affirmative interference,” meaning

that the defendant made some “physical effort” to interfere with law

enforcement prior to the onset of arrest. State v. Fede, 202 A.3d 1281, 1287

(N.J. 2019). The “mere refusal to follow a police officer’s order” is not enough.

State v. Camillo, 887 A.2d 1151, 1155 (N.J. Super. Ct. App. Div. 2005); see also

Fede, 202 A.3d at 1287 (defendant’s refusal to unlock door when officers

attempted to enter house did not qualify). Mr. Sanders’s failure to leash his dog

would not support probable cause for the additional offense of obstruction. His

only physical act towards the two arresting officers prior to the (attempted)

arrest was his raised arm, but I have explained why a juror could find that

inoffensive. Thus, there is at best an issue of fact as to whether the obstruction

offense provided probable cause to arrest.

Neither could the offensive-language statue provide probable cause,

because the statute is unconstitutional and unenforceable. The statute makes

it an offense for someone to use “unreasonably loud and offensively coarse or

abusive language,” if it is uttered “in a public place, and with purpose to offend

the sensibilities of a hearer or in reckless disregard of the probability of so

doing.” N.J. Stat. Ann. § 2C:33-2(b). For Mr. Sanders’s obnoxious behavior and

profanity directed at officers of the law, there is no excuse. But the New Jersey

Superior Court, Appellate Division, barred enforcement of the “abusive

language” statute because it violates the First Amendment. State in Interest of

H.D., 501 A.2d 1016, 1018 (N.J. Super. Ct. App. Div. 1985); see also, e.g., State

v. Soo Hwan Kim, No. A-5958-11T2, 2014 WL 861582, at *1 (N.J. Super. Ct.

App. Div. Mar. 6, 2014) (per curiam) (reversing conviction under § 2C:33-2(b)

because the statute is unconstitutional). That being the case, the Third Circuit

has held that officers are not authorized to arrest for violations of § 2C:33-2(b).

Halpin v. City of Camden, 310 F. App’x 532, 534 (3d Cir. 2009). Thus, the

offensive-language statute could not provide probable cause.

c. Leash Ordinance

Finally, I must address whether Mr. Sanders’s violation of Jersey City’s

leash ordinance, although not mentioned in the criminal complaint, furnished

probable cause. (See Otundo Br. at 7, 15; Defs. Br. at 18.)9 I am compelled to

conclude that this infraction, though minor, did provide probable cause. I

therefore go on to discuss how the ordinance impacts Mr. Sanders’s claims

under (i) the Fourth Amendment and (ii) the New Jersey Constitution.

i. Fourth Amendment

The Supreme Court has held that “even a very minor criminal offense”

may provide probable cause to arrest. Atwater v. City of Lago Vista, 532 U.S.

318, 354 (2001). That state law does not authorize arrest for a particular

9 Defendants barely preserved an argument that the leash ordinance provided

probable cause. Their briefs’ references to the ordinance are passing. (See Otundo Br.

at 7, 15; Defs. Br. at 18.) “Typically, arguments raised in passing but not squarely

argued, are considered waived.” Yates Real Estate, Inc. v. Plainfield Zoning Bd. of

Adjustment, 404 F. Supp. 3d 889, 913 n.28 (D.N.J. 2019) (cleaned up).

Nonetheless, I will consider the ordinance because Defendants have invoked a

probable-cause defense, “[p]robable cause need only exist as to any offense,” Barna,

42 F.3d at 819, the briefs at least mention the ordinance, and the record is clear that

at some point the officers planned to issue Mr. Sanders a summons for the leash-law

violation (Otundo Dep. at 75:24–76:1). It would not make sense to turn a blind eye to

the leash ordinance when it is all over the record. See Mesa v. Prejean, 543 F.3d 264,

272 n.2 (5th Cir. 2008) (considering offenses argued in the briefs and supported by the

record); cf. Tearpock-Martini v. Borough of Shickshinny, 756 F.3d 232, 238 (3d Cir.

2014) (“When an issue is properly before us, we are not limited to the particular legal

theories advanced by the parties, but rather retain the independent power to identify

and apply the proper construction of governing law.” (cleaned up)).

offense does not mean that such an arrest would violate the Fourth

Amendment. Virginia v. Moore, 553 U.S. 164, 176 (2008).

The leash ordinance provides that “no person who owns . . . any dog

shall suffer or permit it to be upon the public streets or in any of the public

places of the city unless such dog is accompanied by a responsible person and

is securely confined and controlled by one adequate leash.” Jersey City

Ordinance § 90-16.10 The ordinance carries a maximum penalty of a $2,000

fine, 90 days’ imprisonment, and/or 90 days’ community service. Id. § 1-25(A);

see id. § 90-22(B) (providing for the penalties in § 1-25).11 The officers received

calls about Magoo roaming the street, and, for the duration of their encounter

with Mr. Sanders, he declined to leash the dog. Accordingly, no reasonable

juror could find that the officers lacked probable cause for a violation of the

leash ordinance.

To be sure, Atwater left open the possibility that officers could effect an

arrest for a minor offense in such an “extraordinary manner” that they would

violate the Fourth Amendment. See 532 U.S. at 355 (citation omitted).

Nonetheless, the Atwater Court held that the plaintiff, who violated a seatbelt

10 Available at

https://library.municode.com/nj/jersey_city/codes/code_of_ordinances. “Municipal

ordinances that are available online . . . constitute public records and are subject to

judicial notice.” Hena v. Vandegrift, --- F. Supp. 3d ----, ----, No. 18-762, 2020 WL

1158640, at *25 (W.D. Pa. Mar. 10, 2020) (collecting cases).

11 There is a reasonable argument that, despite Atwater’s and Moore’s holdings,

the offense, however minor, must still be criminal, i.e., at least a misdemeanor as in

Atwater and Moore. See Lee v. Ferraro, 284 F.3d 1188, 1196 (11th Cir. 2002) (noting

argument but concluding that the offense was nonetheless criminal). But see Noviho v.

Lancaster County, 683 F. App’x 160, 162, 165 (3d Cir. 2017) (“summary offenses” in

Pennsylvania, which are graded below a misdemeanor and only impose a small fine,

can support an arrest); Primrose v. Mellott, 541 F. App’x 177, 181 (3d Cir. 2013)

(same). New Jersey, however, does not use the misdemeanor classification. Holloway

v. Att’y Gen. U.S., 948 F.3d 164, 175 (3d Cir. 2020) (citation omitted), cert. denied, ---

S. Ct. ----, 2021 WL 1520792 (U.S. Apr. 19, 2021). At least in other contexts, the Third

Circuit instructs that the maximum penalty available is more pertinent when

determining the seriousness of an offense. Id. The maximum penalty for the leash

ordinance exceeds the penalty in Atwater ($25–50 fine), so Atwater must apply.

law and was handcuffed and detained at the police station for an hour, did not

face an extraordinary arrest. Id. Mr. Sanders faced similar circumstances with

two exceptions: Officer Otundo used arguably excessive force, and Sanders was

detained for 24 hours, as evidenced by his handcuffing to a hospital bed. These

distinguishing circumstances, however, do not render the arrest

“extraordinary” within the meaning of Atwater.

First, courts have required that all such claims, to the extent they are

based on the force applied, be analyzed as excessive-force claims. Lee v.

Ferraro, 284 F.3d 1188, 1197–98 (11th Cir. 2002); see Ference v. Township of

Hamilton, 538 F. Supp. 2d 785, 803 (D.N.J. 2008). This follows from the

Supreme Court’s instruction that “all claims that law enforcement officers have

used excessive force . . . should be analyzed under the . . . ‘reasonableness’

standard.” Graham v. Connor, 490 U.S. 386, 395 (1989) (emphasis in original).

Thus, although the character of this arrest was surely disproportionate to the

offense, that disproportion does not render the arrest itself unconstitutional.

Next, although Mr. Sanders’s length of detention exceeded that in

Atwater, it was not unreasonable. Atwater held that a minor offense allows an

officer to make a custodial arrest. 532 U.S. at 354. A custodial arrest, in turn,

generally allows a detention for up to 48 hours before a magistrate must review

whether probable cause exists to merit continued detention. County of

Riverside v. McLaughlin, 500 U.S. 44, 56 (1991); see also Atwater, 532 U.S. at

352 (citing McLaughlin as a protection afforded to minor-offense detainees).

Sanders was detained for half that time. In any event, he has not argued that

his detention was unreasonably lengthy. McLaughlin, 500 U.S. at 56–57.

Thus, under Atwater and Moore, Mr. Sanders’s violation of the leash

ordinance provided Officers Otundo and Montero probable cause to arrest and

detain him, at least under the Fourth Amendment.12

12 It is not lost on me that only this very minor leash law violation stands between

these officers and a clearly established false-arrest violation. New Jersey law was clear

that Mr. Sanders had not otherwise committed an offense. Swearing at a police officer,

though disrespectful, cannot support an arrest. Halpin, 310 F. App’x at 534. New

ii. New Jersey Constitution

The analysis is different to the extent Mr. Sanders brings his false-arrest

and false-imprisonment claims under the NJCRA. (See Compl., Count 5.) While

state-law designations of arrestable offenses are irrelevant for Fourth

Amendment claims, such designations are, of course, relevant to state

constitutional claims. Thus, I must decide if, under New Jersey law, the officers

could arrest Mr. Sanders.

By statute, officers may “upon view arrest any disorderly person or any

person committing a breach of the peace.” N.J. Stat. Ann. § 40A:14-152. New

Jersey courts have implied that this statute is coterminous with an officer’s

constitutional power to arrest. See State v. Brown, 14 A.3d 26, 34 (N.J. 2011)

(arrest was valid under Article I, paragraph 7, in part because officers had

authority to arrest under § 40A:14-152); see also, e.g., State ex rel. R.M., 974

A.2d 1110, 1113–14 (N.J. Super. Ct. App. Div. 2009).13 “There are two

preconditions to exercise of the power of arrest under this section: (1) the

offense must have occurred ‘upon view’ of the officer, and (2) the offender must

be either a ‘disorderly person’ or have committed a ‘breach of the peace.’” State

v. Hurtado, 529 A.2d 1000, 1007 (N.J. Super. Ct. App. Div. 1987) (Skillman, J.,

dissenting), rev’d on dissent, 549 A.2d 428 (N.J. 1988) (per curiam) (“The

judgment of the Appellate Division is reversed . . . substantially for the reasons

Jersey has long decriminalized public intoxication as such. See N.J. Stat. Ann.

§§ 26:2B-29, 26:2B-16. Mere failure to comply with an officer’s demands is not a

crime. Camillo, 887 A.2d at 1155. Disorderly conduct is not established simply by a

person’s cursing, yelling, or ineffectually flailing at an officer. Stampone, 775 A.2d at

197–98; Davis, 2011 WL 2350039, at *2, 4.

All said then, even cursory knowledge of the offenses would indicate that a non-

threatening, albeit intoxicated, cursing, and uncooperative, person had committed no

crime. Where the lack of criminality is so clear, qualified immunity will not defeat

liability. See Peroza-Benitez, 2021 WL 1307883, at *5 (“A public official does not get

the benefit of one liability-free violation simply because the circumstance of his case is

not identical to that of a prior case.” (quotation marks and citation omitted)).

13 Regardless, the NJCRA allows a plaintiff to sue for deprivations of statutory

rights. Harz v. Borough of Spring Lake, 191 A.3d 547, 555–56 (N.J. 2018).

expressed in the dissenting opinion of Judge Skillman.”); see also, e.g., Marion

v. Borough of Manasquan, 555 A.2d 699, 704 (N.J. Super. Ct. App. Div. 1989)

(applying the Hurtado dissent as the governing standard). The officers here

witnessed Mr. Sanders’s defiant refusal to obey the leash ordinance. The

harder question is whether that refusal converted Sanders’s leash-law violation

to a “disorderly persons” offense or a “breach of the peace.”

“Violation of a municipal ordinance is not a disorderly persons offense.

Consequently, the police officers’ power to detain plaintiffs . . . depends solely

upon whether the violation of the ordinance can be considered a ‘breach of the

peace.’” Marion, 555 A.2d at 704.14 A “breach of the peace” is not defined, but

the traditional definition includes “engaging in an affray” and “being intoxicated

and yelling on a public street.” Hurtado, 529 A.2d at 1007 (citation omitted).

Hurtado also suggested that “deliberate defiance of the officer” could be a

breach of the peace, but “a simple act of insolence towards authority” does not

suffice. Id. In so suggesting, Hurtado implied that the analysis does not focus

just on whether the ordinance itself involves a breach of the peace but

encompasses whether the arrestee violated the ordinance in a manner that, in

addition, beached the peace. See id. (“Defendant’s actions in throwing litter on

the street [in violation of a littering ordinance] . . . cannot reasonably be found

to have constituted a ‘breach of the peace.’” (emphasis added)); accord State v.

14 There is contrary authority. In State v. Vonderfecht, the Appellate Division held

that the arresting power is not confined to disorderly persons offenses but extends to

disorderly persons generally. 665 A.2d 1145, 1147 (N.J. Super. Ct. App. Div. 1995). As

such, courts review the “conduct of the offender.” Id. Based on that reasoning, the

court held that a person who committed a petty disorderly person offense, a grade

lower than disorderly person offenses, was a “disorderly person” under § 40A:14-152.

Id. The New Jersey Supreme Court adopted Vonderfecht’s holding that officers can

arrest for petty disorderly persons offenses. State v. Dangerfield, 795 A.2d 250, 260

(N.J. 2002). What is more, a court in this District, applying those precedents, held that

a person who violated a municipal ordinance was a disorderly person under § 40A:14-

152. Ference, 538 F. Supp. 2d at 802–03.

I, however, need not reconcile Vonderfecht, Dangerfield, and Hurtado and decide

whether Mr. Sanders could also qualify as a disorderly person because I conclude that

he could be arrested for breaching the peace.

Vonderfecht, 665 A.2d 1145, 1147 (N.J. Super. Ct. App. Div. 1995) (“[T]he only

focus is upon the conduct of the offenders . . . .”).

Officers Otundo and Montero had probable cause to believe that Mr.

Sanders breached the peace. His repeated refusals to obey the leash ordinance

crossed from “a simple act of insolence towards authority” to a “deliberate

defiance of the officer.” Hurtado, 529 A.2d at 1007. Further, his refusals were

in the context of an extended, loud, confrontation with the officers. Id. He was

“intoxicated and yelling on a public street” before and during this encounter.

Id. This is not to say that an officer can arrest someone solely for being loud,

drunk, and noncooperative (at least in New Jersey). See n.12, supra. Rather, as

I read Hurtado, there must be an underlying violation of an ordinance

accompanied by peace-breaching behavior. Thus, because Sanders violated the

leash ordinance and did so in a way that breached the peace, the officers could

reasonably believe that an arrest was supported by New Jersey law.

Accordingly, Sanders cannot succeed on his NJCRA claim based on false arrest

or imprisonment.

For these reasons, Officers Otundo’s and Montero’s motions for summary

judgment on Count 1 and Count 5, to the extent based on false arrest and

imprisonment, will be granted.

Illegal Search and Seizure

Mr. Sanders pleads a claim for “illegal search and seizure.” (Compl.,

Count 2.) His briefs indicate that this claim is essentially a recasting of his

false-arrest and false-imprisonment claim. (Opp. to Otundo Br. at 16–17.)

Indeed, these are all just different ways of seeking recovery for a Fourth-

Amendment seizure. See Dorval v. State, Civ. No. 20-5997, 2021 WL 236625, at

*3 n.4 (D.N.J. Jan. 25, 2021). Thus, the claim should be defeated by a showing

of probable cause. See Cresci v. Kazan, Civ. No. 19-19928, 2020 WL 5700754,

at *3 (D.N.J. Sept. 24, 2020).

Even if Mr. Sanders were claiming that Officers Otundo and Montero

unlawfully searched him, that claim would fail. To be sure, the record shows

that Otundo and Montero took Sanders to “[p]rocessing” (Otundo Dep. at

124:5–25:2), and a juror could infer that such processing included searches of

Sanders’s person, as is customary. See Illinois v. Lafayette, 462 U.S. 640, 643–

44 (1983). In addition, the officers returned to the hospital the next day to

fingerprint him. (Sanders Dep. at 81:7–13.) Nonetheless, arrests for even minor

offenses permit booking searches and fingerprinting. See Moore, 553 U.S. at

176–77 (arrests for minor offenses allow for searches incident to arrest

including at booking); Maryland v. King, 569 U.S. 435, 461 (2013) (searches

incident to arrest can include fingerprinting); State v. Daniels, 924 A.2d 582,

591 (N.J. Super. Ct. App. Div. 2007) (searches incident to arrest for minor

offenses permissible under Article I, paragraph 7). Because the initial arrest

was lawful, so were routine subsequent searches. Moore, 553 U.S. at 176–77.

For these reasons, Officers Otundo’s and Montero’s motions for summary

judgment on Count 2 and Count 5, to the extent based on an unconstitutional

search, will be granted.

Malicious Prosecution

After Mr. Sanders was taken to the hospital, Officers Otundo and

Montero prepared a criminal complaint. Mr. Sanders alleges that they are thus

liable for malicious prosecution. (See Compl., Counts 5, 9.)

a. Constitutional Violation

Constitutional protections against unreasonable seizures also mean that

officials cannot initiate criminal processes without probable cause. See

Johnson v. Knorr, 477 F.3d 75, 82–83 (3d Cir. 2007) (Fourth Amendment);

Middleton v. City of Ocean City, Civ. No. 12-0605, 2014 WL 2931046, at *5 n.4

(D.N.J. June 30, 2014) (Article I, paragraph 7).15 A malicious-prosecution claim

has five elements:

15 There is also a common-law tort for malicious prosecution. LoBiondo v.

Schwartz, 970 A.2d 1007, 1022 (N.J. 2009). But Mr. Sanders’s briefs treat his

malicious-prosecution claim as constitutional, so I follow suit. I also assume, given

that Count 5 alleges that all alleged federal constitutional violations are also state

constitutional violations, that he also brings that claim under the NJCRA.

(1) the defendants initiated a criminal proceeding;

(2) the criminal proceeding ended in the plaintiff’s favor;

(3) the proceeding was initiated without probable cause;

(4) the defendants acted maliciously or for a purpose other than

bringing the plaintiff to justice; and

(5) the plaintiff suffered deprivation of liberty consistent with the

concept of seizure as a consequence of a legal proceeding.

Harvard, 973 F.3d at 203 (cleaned up). Defendants only move for summary

judgment based on Mr. Sanders’s ability to prove the first, third, and fourth

elements. (Defs. Br. at 7, 13; Otundo Br. at 24.)16

i. Initiation of Criminal Proceedings

Officer Otundo argues that he never initiated a criminal proceeding

against Mr. Sanders because Officer Montero signed the criminal complaint.

(Otundo Br. at 24.) “In most cases, a prosecutor rather than a police officer

initiates a criminal prosecution,” so the prosecutor is the proper defendant.

Fought v. City of Wilkes-Barre, 466 F. Supp. 3d 477, 507 n.6 (M.D. Pa. 2020)

(cleaned up). Particularly as to minor offenses, however, charging complaints

may be drafted by officers in this state. The record does not provide any details

of Mr. Sanders’s proceedings beyond the criminal complaint and dismissal.

Regardless, “[i]f the officers influenced or participated in the decision to

institute criminal proceedings, they can be liable for malicious prosecution.”

Halsey v. Pfeiffer, 750 F.3d 273, 297 (3d Cir. 2014). As a result, an officer can

be liable for what the officer includes in (or omits from) an affidavit for probable

16 Regardless, the second element is satisfied “if the criminal case was disposed of

in a way that indicates the innocence of the accused,” such as “a discharge by a

magistrate at a preliminary hearing.” Allen v. N.J. State Police, 974 F.3d 497, 502–03

(3d Cir. 2020) (quotation marks and citation omitted). So the dismissal by the

municipal court would suggest a favorable termination. As to the fifth element, Mr.

Sanders was handcuffed while in the hospital for nearly 24 hours following the arrest,

during and after when the officers filed the criminal complaint. He also had to make

court appearances. Thus, he suffered a seizure in connection with the charges. See

Gallo v. City of Philadelphia, 161 F.3d 217, 223 (3d Cir. 1998) (arrest and mandatory

appearance in court to answer for charges amounted to seizure for a malicious-

prosecution claim).

cause and the manner in which the officer drafts a criminal complaint. See

Harvard, 973 F.3d at 203.

Given that, the first element of malicious prosecution is satisfied as to

Officer Otundo. He worked with Officer Montero to draft the criminal

complaint, and they discussed and decided together what offenses to charge.

(Otundo Dep. at 72:1–73:17.) Moreover, the affidavit of probable cause was

written by Otundo. (Crim. Compl. at 4.) Thus, Otundo cannot defeat summary

judgment based on the first element.

ii. Probable Cause

Both officers move for summary judgment on the ground that there was

probable cause. For the malicious-prosecution claim, the probable cause

analysis differs from the false-arrest context. Whereas false-arrest claims

require me to assess probable cause up to the moment of arrest, malicious-

prosecution claims require me to assess whether the officers had probable

cause as to each offense charged. See Johnson, 477 F.3d at 85 (malicious-

prosecution liability lies if probable cause was lacking for any offense charged).

That principle has two consequences here. First, the officers’ probable

cause to arrest Mr. Sanders for violating the leash ordinance does not insulate

them from the malicious-prosecution claim. See id. Second, I must consider

whether Mr. Sanders’s conduct during the altercation (i.e., even after the arrest

was initiated) supported the charges eventually brought. See Harvard, at 201

n.4, 202–03 (explaining that, in a case where a person was arrested for driving

under the influence, the Court would not consider a drug evaluation performed

at the police station when assessing probable cause for the arrest but could

consider it for the malicious-prosecution claim).

With those differences in mind, I find that a juror could conclude that

probable cause was lacking as to all charges. For starters, I have already

concluded that a juror could find that probable cause was lacking for the

offenses charged (or even passively referenced in the complaint) based on

events occurring up until the arrest. (Section III.A.3.a–b, supra.) I now further

conclude that there are factual disputes as to Mr. Sanders’s conduct during

and after the arrest that are material to the issue of whether the officers had

probable cause to charge him. See Halsey, 750 F.3d at 300 (factual disputes as

to probable cause preclude summary judgment on a malicious-prosecution

claim).

Recall that, viewing the record most favorably to Mr. Sanders, a juror

could view the video and perceive little to no physical force or resistance

coming from Sanders. Indeed, the video shows no punches or choking from

him. Rather, Officer Otundo was on top of Sanders nearly the entire time. Still

further, Officer Montero never felt the need to get involved, which suggests that

Sanders was not resisting. (Again, the officers have testified otherwise, but I

cannot resolve that factual dispute on summary judgment.)

First, on the assault charge, the minimal or non-existent physical force

coming from Mr. Sanders in the video means that he did not “[a]ttempt to

cause or purposely, knowingly or recklessly cause[] bodily injury to another.”

N.J. Stat. Ann. § 2C:12-1(a)(1); see Groman, 47 F.3d at 635 (“[S]hould a jury

decide that Groman did not hit Kirkland, it could determine that Kirkland

lacked probable cause to arrest him on the aggravated assault charge.”).

Second, on the resisting-arrest charge, Mr. Sanders must have

“purposely prevent[ed] or attempt[ed] to prevent a law enforcement officer from

effecting an arrest.” N.J. Stat. Ann. § 2C:29-2(a)(1). Mr. Sanders denies that he

was even told he was under arrest. (Sanders Dep. at 70:1–23.) From his point

of view, he says, he was simply being assaulted. In addition, a juror could view

the video and perceive that, although Sanders did not immediately submit to

arrest, any physical response from him while on the ground was a result of

shock from the sudden shove or self-defense in response to excessive force. See

State v. Simms, 849 A.2d 573, 577 (N.J. Super. Ct. App. Div. 2004) (“[I]f the

officer uses excessive or unnecessary force the citizen may respond or counter

with the use of reasonable force to protect himself . . . .” (quotation marks and

citation omitted)). For those two reasons, a juror could find that he did not

purposefully prevent an arrest.

Third, a juror could find that the disorderly-conduct charge is deficient in

two ways. To start, the person must “[e]ngage[] in fighting or threatening, or in

violent or tumultuous behavior.” N.J. Stat. Ann. § 2C:33-2(a)(1). Mr. Sanders’s

limited physicality during the altercation, as seen in the video, falls short of

such conduct. Even if he had engaged in such conduct, he must have done so

with a “purpose to cause public inconvenience, annoyance[,] or alarm” or

“recklessly creat[ed] a risk thereof.” Id. Taking an adversarial position to the

police officers, even a physical one, does not evince a public-facing purpose. As

the Appellate Division explained, a “testy exchange” with a police officer does

not qualify for the disorderly-conduct offense because the defendant’s actions

are directed at the officer—not the public. Stampone, 775 A.2d at 197.

Accordingly, a juror could find that there was not probable cause for the

disorderly-conduct charge.

In sum, a juror could find probable cause lacking on each crime charged.

iii. Malice

Officer Montero argues that Mr. Sanders cannot show malice. (Defs. Br.

at 6–7.) But “malice may be inferred from want of probable cause.” Dorval,

2021 WL 236625, at *8 (quoting Brunson v. Affinity Fed. Credit Union, 972 A.2d

1112, 1120 (N.J. 2009)). As a result, fact issues precluding a finding on

probable cause will generally also preclude a finding on malice. Bartlebaugh v.

City of Camden, Civ. No. 05-0121, 2007 WL 4415066, at *2 (D.N.J. Dec. 13,

2007).

And there is extrinsic evidence of malice. Mischaracterizing events in an

affidavit can show malice. Harvard, 973 F.3d at 203–04. Here, the affidavit

describes Mr. Sanders choking Officer Otundo, but Sanders flatly denies that

characterization, and the video does not show any choking. (Crim. Compl. at 4;

Sanders Dep. at 74:4–8.) Further, the affidavit describes a tense situation in

which the officers not only were dealing with Mr. Sanders but also “in a

physical struggle” with Magoo who “was getting agitated and began to take

biting attempts.” (Crim. Compl. at 4.) But a juror could watch the video and see

Magoo playfully hopping around the officers. Moreover, Otundo was never in a

“physical struggle” with Magoo; he was occupied with Sanders. Thus, a juror

could conclude that the officers mischaracterized the events in a way that

supported Otundo’s use of force. Such self-serving mischaracterization—if

accepted by a finder of fact—would permit a finding of malice. Harvard, 973

F.3d at 203–04.

In addition, Mr. Sanders testified that Officer Otundo cursed at him and

used a homophobic slur while punching him. (Sanders Dep. at 67:17–22.) A

juror who credited that testimony could conclude that the officers’ decision to

pursue charges was motivated in part by animosity toward Sanders, “a purpose

other than bringing [him] to justice.” Harvard, 973 F.3d at 203. This, too,

creates a factual issue precluding a finding on malice.

To recap, Officers Otundo’s and Montero’s arguments for summary

judgment on the malicious-prosecution claim fail because there are factual

issues. As such, I cannot rule on summary judgment that there was no

constitutional violation.

b. Clearly Established

The Third Circuit has held that the right to be free from prosecution

absent probable cause is clearly established. Andrews, 853 F.3d at 705; Gallo

v. City of Philadelphia, 161 F.3d 217, 220 n.4 (3d Cir. 1998). For the reasons

given at note 12, supra, and supplemented in this section, the lack of probable

cause, based on Mr. Sanders’s version of the facts, would have been clear to

any reasonable officer. Thus, Officers Otundo and Montero violated a clearly

established right.

For these reasons, Officers Otundo’s and Montero’s motions for summary

judgment on Count 9 and Count 5, to the extent based on malicious

prosecution, will be denied.

Conspiracy

Mr. Sanders alleges that Officer Otundo and Montero’s joint work on the

criminal charges amounts to a § 1983 conspiracy. (Compl., Count 7.) To prevail

on that claim, he “must prove that persons acting under color of state law

reached an understanding to deprive him of his constitutional rights. This

requires that the state actors took concerted action based on an agreement to

deprive the plaintiff of his constitutional rights, and that there was an actual

underlying constitutional violation . . . .” Harvard, 973 F.3d at 207 (quotation

marks and citation omitted). To defeat summary judgment, a plaintiff need only

point to circumstantial evidence of an agreement and concerted action.

Jutrowski v. Township of Riverdale, 904 F.3d 280, 295 (3d Cir. 2018). This

includes conversations between the officers, distorted stories in police reports,

and time available to reach an agreement. Id. at 295–97.

Mr. Sanders produced such evidence here. Officers Otundo and Montero

drove back from the hospital to the police station together and then jointly

worked on the criminal charges. They had conversations about what offenses

to charge. (Otundo Dep. at 72:1–73:17, 195:7–196:14.) The affidavit of probable

cause was written by Otundo, while Montero signed the criminal complaint,

making the charging instrument a partner project. (Crim. Compl. at 3, 4.)

There is thus circumstantial evidence of an agreement and concerted action.

Moreover, a juror could find that the object of their efforts was to deprive Mr.

Sanders of his right to be free from prosecution absent probable cause,

because the charges were lacking in probable cause and the facts alleged in the

criminal complaint were (on one permissible view of the facts) distorted. (See

Section III.A.5.a.ii–iii, supra.)

Finally, taking the facts in Mr. Sanders’s favor, the officers violated Mr.

Sanders’s clearly established rights by bringing the charges. (Section III.A.5.b,

supra.) Doing so in concert does not change the qualified immunity analysis.

See Cope v. Encapera, 758 F. App’x 252, 257 (3d Cir. 2018) (facts showing that

clearly established rights were violated precluded summary judgment on

accompanying conspiracy claim). Regardless, it was clearly established that

officers cannot conspire to maliciously prosecute individuals. E.g., Molina v.

City of Lancaster, 159 F. Supp. 2d. 813, 820 (E.D. Pa. 2001); Cipolla v. County

of Rensselaer, 129 F. Supp. 2d 436, 456 (N.D.N.Y. 2001).

For these reasons, Officers Otundo’s and Montero’s motions for summary

judgment on Count 7 will be denied.

B. Individual State Tort Claims

I now turn to the claims that arise purely under state law: (1) assault

and battery, and (2) IIED and NIED.

Assault and Battery

Mr. Sanders alleges that Officers Otundo and Montero are liable for

assault and battery based on the altercation and his arrest. (See Compl., Count

10.) “A person is subject to liability for the common law tort of assault if: (a) he

acts intending to cause a harmful or offensive contact with the person of the

other . . . , or an imminent apprehension of such a contact, and (b) the other is

thereby put in such imminent apprehension.” Leang v. Jersey City Bd. of Educ.,

969 A.2d 1097, 1117 (N.J. 2009) (quotation marks and citation omitted). “The

tort of battery rests upon a nonconsensual touching,” id., “even if harmless,”

Russo Farms, Inc. v. Vineland Bd. of Educ., 675 A.2d 1077, 1087 (N.J. 1996)

(citation omitted). Although arrests may involve force that would qualify as an

assault or battery, an officer is only liable if the force was excessive. Panarello

v. City of Vineland, 160 F. Supp. 3d 734, 767 (D.N.J. 2016) (citing State v.

Williams, 148 A.2d 22, 28–29 (N.J. 1959)); see also, e.g., Hill v. Algor, 85 F.

Supp. 2d 391, 411 (D.N.J. 2000). So the analysis for assault and battery tracks

the analysis for excessive force. Id. There are genuine disputes of fact as to

whether the officers used excessive force (Section III.A.1.a, supra), so I cannot

grant summary judgment on the assault and battery claims. Mantz v. Chain,

239 F. Supp. 2d 486, 507 (D.N.J. 2002).

For these reasons, Officers Otundo’s and Montero’s motions for summary

on Count 10 will be denied.

IIED and NIED

Mr. Sanders alleges claims for IIED and NIED. (Compl., Count 8.)

Officers Otundo and Montero argue that they have immunity under the New

Jersey Tort Claims Act (“NJTCA”), N.J. Stat. Ann. § 59:9-2(d), and Mr. Sanders

lacks evidence on the elements. (Otundo Br. at 23; Defs. Br. at 41–45.)

a. NJTCA

Officer Montero invokes the NJTCA, which provides that “[n]o damages

shall be awarded against a . . . public employee for pain and suffering resulting

from any injury; provided, however, that this limitation . . . shall not apply in

cases of permanent loss of a bodily function, permanent disfigurement or

dismemberment where the medical treatment expenses are in excess of

$3,600.00.” N.J. Stat. Ann. § 59:9-2(d). He argues that this provision, called

the “verbal threshold,” bars emotional-distress damages and thus Mr.

Sanders’s IIED and NIED claims. (Defs. Br. at 41–42.)17 Reliance on the verbal

threshold is misplaced for two reasons.

First, the verbal threshold does not grant immunity from IIED claims.

Leang, 969 A.2d at 1115. This is so because the NJTCA elsewhere “strip[s]

away immunity for acts of willful misconduct.” Id. at 1113 (citing N.J. Stat.

Ann. § 59:3-14(a)). “Willful misconduct” is more than “simple negligence” but

less than “intentional infliction of harm.” Alston v. City of Camden, 773 A.2d

693, 185 (N.J. 2001). As a result, “the elements of the [IIED] cause of action

place the claim outside of the scope of the qualified immunity and the verbal

threshold protection otherwise available to defendants.” Leang, 969 A.2d at

1115. If Mr. Sanders can create a genuine dispute of material fact on those

elements, then the verbal threshold does not apply.

Second, as to both claims, the verbal threshold does not apply to

“permanent psychological injury, when properly documented.” Nieves v. Office

of the Pub. Defender, 230 A.3d 227, 237 (N.J. 2020). For example, the verbal

17 Officer Montero only claims immunity under the NJTCA for this reason, and

Officer Otundo does not claim immunity at all. The defendant has the burden to prove

immunity under the NJTCA. Faragella v. Jersey City, Civ. No. 17-3604, 2020 WL

5812798, at *15 (D.N.J. Sept. 30, 2020) (citing Leang, 969 A.2d at 1112). Thus, I do

not consider any other potential bases for immunity provided by the NJTCA, such as

whether the NJTCA generally provides immunity for an NIED claim.

threshold does not bar damages for PTSD resulting from a physical invasion of

the person. Collins v. Union Cty. Jail, 696 A.2d 625, 630, 631 (N.J. 1997). Mr.

Sanders has presented medical evidence of body dysmorphic disorder, PTSD,

depression, and anxiety as a result of physical injury, disfigurement, and

trauma. Thus, the verbal threshold does not apply.

b. IIED

An IIED plaintiff must show “(1) intentional conduct; (2) the conduct was

extreme and outrageous; (3) the conduct proximately caused plaintiff’s

emotional distress; and (4) the emotional distress was severe.” DeAngelis v. Hill,

847 A.2d 1261, 1272 (N.J. 2004). Generally, factual issues precluding

summary judgment on an excessive-force claim would preclude summary

judgment on the first, second, and third elements of IIED. E.g., Esposito v. Little

Egg Harbor Township, Civ. No. 08-3725, 2012 WL 1495468, at *6 (D.N.J. Apr.

27, 2012); Day v. Jackson Township, Civ. No. 10-4011, 2013 WL 394151, at *9

(D.N.J. Jan. 30, 2012); Iglesia v. City of Glassboro, Civ. No. 04-3034, 2007 WL

1723478, at *5–6 (D.N.J. June 13, 2007).

On the first element, the “[d]efendant must intend both to do the act and

to produce emotional distress” or the defendant must “act[] recklessly in

deliberate disregard of a high degree of probability that emotional distress will

follow.” Ingraham v. Ortho-McNeil Pharm., 25 A.3d 1191, 1195 (N.J. Super. Ct.

App. Div. 2011) (quotation marks and citation omitted). As to Officer Otundo, a

juror could find that he intentionally punched Mr. Sanders in the face. (Section

III.A.1.a.i, supra.) As a result, a juror could find that he either intended to

produce emotional distress or acted recklessly in that regard because punches

to the head are obviously traumatic. As to Officer Montero, a juror could find

that he kicked Sanders or knowingly failed to intervene to prevent harm to

Sanders. (Section III.A.2.a.ii, supra.) Accordingly, he deliberately disregarded a

high risk that Sanders would suffer trauma as a result of (in his version) being

set upon by not one but two policemen.

On the second element, excessive force and the knowing failure to

prevent it can be considered extreme and outrageous conduct. Marshall v.

Keansburg, Civ. No. 13-0533, 2013 WL 6095475, at *10 (D.N.J. Nov. 30, 2013);

see also, e.g., McDonald v. County of Sonoma, No. 20-cv-04183, --- F. Supp. 3d

----, ----, No. 2020 WL 7319400, at *11 (N.D. Cal. Dec. 11, 2020) (collecting

cases).

On the third element, Mr. Sanders has produced medical documentation

that his psychological injuries are direct the result of the disfigurement and

trauma caused by the punches. (Torchinsky Rep. at 3; Gardere Rep. at 22–23.)

On the fourth element, severe emotional distress means “a mental

condition of a type which may be generally recognized and diagnosed by

clinicians.” See Aly v. Garcia, 754 A.2d 1232, 1237 (N.J. Super. Ct. App. Div.

2000); see also Clark v. Nenna, 244 A.3d 291, 295 (N.J. Super. Ct. App. Div.

2020). Mr. Sanders has produced evidence of such clinical diagnoses. (Gardere

Rep. at 22–23.)

Thus, summary judgment is inappropriate on the IIED claim.

c. NIED

An NIED claim requires that “(1) a duty of reasonable care was owed by

the defendant to the plaintiff, (2) that duty was breached, (3) the plaintiff

suffered severe emotional distress, and (4) the breach was a proximate cause of

injury.” G.D. v. Kenny, 984 A.2d 921, 933 (N.J. Super. Ct. App. Div. 2009)

(quotation marks and citation omitted), aff’d, 15 A.3d 300 (N.J. 2011). As to

the first element, the New Jersey Supreme Court has recognized that police

officers owe a duty to arrestees to exercise “reasonable care to preserve the life,

health, and safety of the person in custody.” Del Tufo v. Township of Old Bridge,

685 A.2d 1267, 1272 (N.J. 1996). As to the second element, there are factual

disputes as to whether the officers here breached that duty by using excessive

force or failing to intervene, so summary judgment is inappropriate. See

Roccisano v. Township of Franklin, Civ. No. 11-6558, 2013 WL 3654101, at *11

(D.N.J. July 12, 2013) (factual issues on excessive-force claim created factual

issues on breach for negligence claim). The third and fourth elements are

essentially the same as for the IIED claim, which are satisfied. See Innes v.

Marzano-Lesnevich, 87 A.3d 775, 797 (N.J. Super. Ct. App. Div. 2014); see also

Wright-Phillips v. United Airlines, Inc., Civ. No. 20-14609, 2021 WL 1221111, at

*16 (Apr. 1, 2021). Accordingly, the officers are not entitled to summary

judgment on the NIED claim.

For these reasons, Officer Otundo’s and Officer Montero’s motions for

summary on Count 8 will be denied.

C. Municipal-Liability Claims

Mr. Sanders brings a claim against Jersey City,18 alleging that its

practices failed to prevent Officer Otundo’s excessive force. (Compl., Count 4.)

A municipality may be liable under § 1983 and the NJCRA if its “policy or

custom inflicted the [constitutional] injury in question.” Estate of Roman v. City

of Newark, 914 F.3d 789, 798 (3d Cir. 2019) (cleaned up); see also Khalil v.

City of Paterson, Civ. No. 18-3241, 2018 WL 6168191, at *9 (D.N.J. Nov. 26,

2018) (same municipal-liability principles apply to NJCRA). Custom “can be

proven by showing that a given course of conduct, although not specifically

endorsed or authorized by law, is so well-settled and permanent as virtually to

constitute law.” Roman, 914 F.3d at 798 (citation omitted).

A municipality may also be liable if the plaintiff shows that his

constitutional injuries “were caused by a failure or inadequacy by the

municipality that reflects a deliberate or conscious choice.” Forrest v. Parry,

930 F.3d 93, 105 (3d Cir. 2019) (quotation marks and citation omitted). This

claim encompasses allegations that a city failed “to train, supervise, and

discipline its police officers.” Id. (citation omitted). A plaintiff must show

“(1) municipal policymakers know that employees will confront a particular

situation, (2) the situation involves a difficult choice or a history of employees

mishandling, and (3) the wrong choice by an employee will frequently cause

18 The Complaint also alleges this claim against the Police Department, which has

been dismissed from the case See n.3. The City is the proper defendant.

deprivation of constitutional rights.” Id. at 106. There is a “close relationship

between policy-and-custom claims and failure-or-inadequacy claims.” Id.

In support of his municipal-liability claim, Mr. Sanders points to

evidence that Officer Otundo had faced multiple, similar complaints, so a juror

could infer that the City knew about his constitutional violations yet failed to

prevent them from reoccurring. He also points to statistical evidence and other

investigations to show that the City fails to promptly investigate and resolve

excessive-force complaints. (Opp. to Defs. Br. at 31–49.) The City gives

essentially two reasons why it is entitled to summary judgment on the

municipal-liability claim. However persuasive they may be, they do not

establish that there is no factual issue presented.

First, the City argues that its handling of complaints against Officer

Otundo is not enough to show a larger custom. Further, the City argues,

Otundo never had any charges against him sustained until this matter. (Defs.

Br. at 32–34, 37.) Still, multiple complaints against an officer that led to no

consequences may allow an inference that a municipality knew or should have

known of an officer’s propensity to use excessive force but failed to deal with it.

Beck v. City of Pittsburgh, 89 F.3d 966, 973–74 (3d Cir. 1996). The inference is

not inescapable, of course, but it is for the jury to decide whether the City’s

apparent toleration for an officer’s misconduct contributed to Mr. Sanders’s

treatment here. Bielevicz v. Dubinon, 915 F.2d 845, 851 (3d Cir. 1990).

Accordingly, such evidence precludes summary judgment. See Forrest, 930

F.3d at 108–09. The City proffers a competing explanation of why complaints

against Otundo were not sustained and he was permitted to continue on

patrol. But the issue is a factual one, involving “the substance of the

[Department’s] investigatory procedures. Whether those procedures had

substance [is] for the jury’s consideration.” Beck, 89 F.3d at 974.

Next, the City argues that statistics of declining resolution rates for

excessive-force complaints are not enough because they can be explained by

“external factors” and Mr. Sanders has not shown that all those complaints

were substantiated. (Defs. Br. at 34–35.) But Mr. Sanders provided a sampling

of investigation reports and has pointed to similarities in both the force

complained of and how they were minimally investigated. (Opp. to Defs. Br. at

44–47 (citing DE 69-27).) I take no position on whether such statistics, alone,

would suffice. But in combination with complaints against the particular officer

involved, they may contribute to the creation of a triable factual issue. See City

of Canton v. Harris, 489 U.S. 378, 390–91 (1989) (“That a particular officer may

be unsatisfactorily trained will not alone suffice to fasten liability on the

city . . . .”); Merman v. City of Camden, 824 F. Supp. 2d 581, 591 (D.N.J. 2010).

Again, the City appropriately proffers its own interpretations and explanations,

but there is enough here to send the issue of a custom or failure to discipline to

the jury. Id.; see Beck, 89 F.3d at 975–76 (“As for drawing inferences from the

evidence regarding the adequacy of the investigatory process, . . . it is not

beyond the ken of an average juror to assess what a reasonable municipal

policymaker would have done with the information in this case.” (cleaned up)).

At bottom, an evidentiary package consisting of a history of complaints

against the officer responsible for a plaintiff’s injury, statistical evidence of

resolution of other complaints, sample complaints, and an expert report

opining that a police department’s practices fell below standards is precisely

the sort of evidence the Third Circuit has held is sufficient to withstand

summary judgment on a municipal-liability claim. See Forrest, 930 F.3d at

108–09; Thomas v. Cumberland County, 749 F.3d 217, 225 (3d Cir. 2014).

For these reasons, the City’s motion for summary judgment on Count 4

is denied.19

19 The City also argues that a municipality cannot be liable for punitive damages

under § 1983 and the NJCRA. (Defs. Br. at 45.) That is correct. Smith v. Borough of

Dunmore, 633 F.3d 176, 183 (3d Cir. 2011) (§ 1983); N.J. Stat. Ann. § 59:9-2(c)

(NJCRA). But Mr. Sanders concedes that he will not seek punitive damages against the

City. (Opp. to Defs. Br. at 57.) To the extent the City seeks to strike punitive damages

demands against the individual officers, summary judgment is premature. The

determination can await the logically prior determination of whether they are liable at

all. For § 1983 and NJCRA claims against individuals, “a defendant whose conduct

IV. CONCLUSION

For the reasons set forth above, Officer Otundo’s motion for summary

judgment (DE 65) is granted in part and denied in part. Specifically, it is

granted as to the false-arrest, false-imprisonment, and illegal-search claims

under § 1983 (Counts 1 and 2), and also the NJCRA claim (Count 5) to the

extent it is based on false arrest, false imprisonment, and illegal search. The

motion is otherwise denied.

The remaining Defendants’ motion for summary judgment (DE 66) is

granted in part and denied in part. Specifically, summary judgment is granted

to Officer Bauer, Officer Saleh, and the Jersey City Police Department on all

claims asserted against them. Summary judgment is granted to Officer

Montero as to the false-arrest, false-imprisonment, and illegal-search claims

under § 1983 (Counts 1 and 2), and also the NJCRA claim (Count 5) to the

extent it is based on false arrest, false imprisonment, and illegal search. The

motion is otherwise denied. A separate order will issue.

Dated: April 23, 2021

/s/ Kevin McNulty

___________________________________

Hon. Kevin McNulty

United States District Judge

demonstrates a reckless or callous indifference toward others’ rights may be liable for

punitive damages.” Walker, 2020 WL 3542502, *4. There are factual disputes here

over the nature of Officers Otundo’s and Montero’s actions and their mindsets, so

summary judgment regarding punitive damages is inappropriate. Artis v. McCann, Civ.

No. 11-3613, 2013 WL 2481251, at *6 (D.N.J. June 10, 2013).