COLLICK v. WILLIAM PATERSON UNIVERSITY

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

GARRETT COLLICK and NOAH

WILLIAMS,

Plaintiffs,

v. Civ. No. 16-00471 (KM) (JBC)

WILLIAM PATERSON UNIVERSITY, OPINION

KATHLEEN M. WALDRON, ROBERT

FULLEMAN, ELLEN DESIMONE,

WILLIAM PATERSON UNIVERSITY

POLICE DEPARTMENT, et al.,

Defendants.

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

A student at William Paterson University, “M.M.,” reported that she had

been sexually assaulted by fellow students Garrett Collick and Noah Williams.

The two were arrested and later expelled, but a grand jury declined to indict.

Collick and Williams then sued the University and those involved in the

investigation, asserting constitutional and tort claims, later narrowed by the

Court’s ruling on a motion to dismiss and a voluntary dismissal. Following

discovery, the remaining defendants now move for summary judgment on the

remaining claims. (DE 94.)1 For the following reasons, the motion is GRANTED.

1 Certain citations to the record are abbreviated as follows:

DE = docket entry

Mot. = Defendants’ Brief in Support of their Motion for Summary Judgment (DE

94-1)

Opp. = Plaintiffs’ Brief in Opposition to Defendants’ Motion for Summary

Judgment (DE 99)

Compl. = Complaint (DE 1-1)

DeSimone Rep. = Report of Sergeant DeSimone (DE 94-6)

Hatt Rep. = (DE 99-13)

This motion largely concerns the facts as reported to the police by M.M.

on the night of the incident, and not those developed later. It therefore does not

include many of the allegations of the Complaint, in which the plaintiffs paint a

picture of an unscrupulous accuser who misrepresented a consensual

encounter as a sexual assault.2 There is good reason for that disconnect. The

plaintiffs are not here suing M.M. for making a false complaint; they are suing

the University police for believing her. So the issue is far narrower than, and

distinct from, factual innocence or guilt. The question before the Court is

whether the evidence in the possession of the police at the time of the arrest

surmounted the fairly low bar of probable cause. It is well established that a

victim-witness’s allegation of sexual assault, particularly when accompanied by

at least minimal corroboration, will suffice to establish probable cause. The

contrary position—that the police were constitutionally required to disregard

what appeared to be a credible, detailed allegation of aggravated sexual

assault—is not sustainable on this record.

I. BACKGROUND

A. Initial Reports

On November 25, 2014, University Police Detective Sergeant DeSimone

received a call to respond to the campus counseling and health center.

(DeSimone Rep. at 1.) She learned that a female student, M.M., had reported a

sexual assault involving five individuals. (Id.) Sergeant DeSimone met with

M.M. and took her to the hospital. (Id. at 1–2.)

M.M. provided an account to Sergeant DeSimone as follows: The night

before, she was supposed to “hang out” with Collick, with whom she had

previously had consensual sex, so she went looking for him. (Id. at 3.) She went

to the dorms and found Collick in a room with Williams and other male

Ellicott Dep. = Deposition of Lori Ellicott (DE 99-23)

DeSimone Dep. = Deposition of Sergeant DeSimone (DE 99-10)

Pl. SMF = Plaintiffs’ Statement of Material Facts (DE 99-1)

2 See Opinion on Motion to Dismiss (DE 27).

students. (Id. at 2, 3.) She told Collick that she wanted him to go back to her

room, but Collick declined. When M.M. turned to leave, someone turned off the

lights and blocked the door. The group began to taunt her and say that they

wanted to have sex. She replied, “No, I really should go, I don’t feel

comfortable,” but the taunting continued for fifteen minutes. (Id. at 3.)

Eventually, Collick demanded that she perform oral sex. She did not

make any move to do so. Collick then grabbed her by the back of her head and

forced her mouth onto his penis. She attempted to get up several times but

could not. The other individuals asked to “pass” her around. After ten minutes

of this, an unknown male entered the room and forced M.M. to perform oral

sex on him, too. (Id.)

After hearing this account, Sergeant DeSimone called headquarters to try

to identify the suspects. (Id. at 3–4.) She relayed the first names which M.M.

had provided and the dorm room number. A detective at headquarters sent

pictures of four individuals, including Collick and Williams (the photos were on

file in connection with the issuance of their student ID cards). Sergeant

DeSimone showed M.M. the pictures but did not provide names or otherwise

inform her what pictures she was showing. M.M. positively identified each

picture by the subject’s first name. (Id. at 4.)

At this point, a nurse, Joanne Hatt, arrived. M.M. provided an account of

the events to Nurse Hatt, with Sergeant DeSimone listening. (Id.) Nurse Hatt

reported that M.M. had no vaginal injuries. The nurse did report that M.M.’s

inner throat was red and “appeared to have abnormalities.” (Hatt Rep. at 7.)

M.M.’s statement to Nurse Hatt provided additional details. M.M. stated

that, when she found Collick in the dorm room and he declined to leave with

her, she stayed and watched TV with the group for five minutes. Then, Collick

told her that if she wanted to have sex with him, she had to have sex with all of

them. (DeSimone Rep. at 4.) She replied that she was uncomfortable doing

that. She then tried to leave but the door was blocked. Collick demanded oral

sex, and she said, “I really should go.” (Id. at 5.) M.M. further related that, in

the ensuing sexual encounter, Collick attempted to vaginally penetrate her.

Collick had difficulty getting or staying erect, and M.M. stated, “Oh I see you

have stage fright.” (Hatt Rep. at 3.) Williams also forced her to perform oral sex

on him. Eventually, the encounter ceased, and she told them “I have to go now”

and “I feel a lot of pain.” (DeSimone Rep. at 6.)

Williams and two of the others then walked her to her room. Once in her

room, Williams and another male insisted on resuming the sexual encounter.

M.M. told them “you guys should really go, I need to take a shower.” The two

males insisted, and M.M. “gave up and just laid there.” (Id.) She reported to

Nurse Hatt that she “gave up” and “said that[’s] fine.” (Hatt Rep. at 4.) When

the third individual attempted, she refused and said, “I was just forced to do

something I didn’t want to do. Now you can leave because I’m about to cry.”

The three men then left. (DeSimone Rep. at 6–7.)

After hearing these accounts, Sergeant DeSimone returned to police

headquarters. (Id. at 8.) She reviewed security video of the entrance to the

dorm building and data regarding the student ID cards that were swiped to

enter the building. The footage and swipe-card data showed Collick and

Williams, as well as the other individuals, entering the building prior to the

alleged time of the assault, and leaving thereafter. (Id. at 8–10.)

B. Charges

Sergeant DeSimone spoke with a prosecutor and the University Police

Director of Public Safety, Robert Fulleman, about possible charges. (DeSimone

Dep. at 193:20–94:9; DeSimone Rep. at 10.) DeSimone then called Certified

Municipal Court Administrator Lori Ellicott to obtain an arrest warrant.

(DeSimone Rep. at 10; Ellicott Dep. at 32:22–33:3.) Ellicott, returning from

vacation, was in a car on the way to the airport. (Ellicott Dep. at 34:13–17,

44:2–4.)

As to this telephone conversation, Municipal Court Administrator Ellicott

could not recall what specific information Sergeant DeSimone provided. (Id. at

35:16–18.) She did recall that Sergeant DeSimone told Ellicott that she had

performed an investigation, and Ellicott may have asked a few questions about

the thoroughness of the investigation. (Id. at 58:21–59:2.) The two did not

discuss the precise facts of the case. (Id. 58:1–11.) Nor was Sergeant DeSimone

placed under oath. (Id. at 25:23–26:3.)

Ellicott found that probable cause existed and gave Sergeant DeSimone

permission to approve an arrest warrant in her name. (Id. at 52:15–54:7.)

Sergeant DeSimone did so. An arrest warrant issued for Collick on charges of

aggravated sexual assault in the first degree, conspiracy to commit sexual

assault in the second degree, involuntary servitude in the third degree, and

aggravated sexual contact in the third degree. (DE 94-8.) A second arrest

warrant issued for Williams on charges of aggravated sexual assault in the first

degree, kidnapping in the first degree, conspiracy to commit sexual assault in

the second degree, and involuntary servitude in the third degree. (DE 94-9.)

C. Subsequent Events

Collick and Williams were arrested and interrogated. They promptly

appeared before a Superior Court judge, but it took them nine days to post bail

and obtain their release. (Pl. SMF ¶ 289; see also DeSimone Rep. at 13, 14; DE

94-9, 94-9.) Prosecutors took over the investigation of the case, and more facts

came to light. It emerged that Collick and Williams both had extensive prior

relations and communications with M.M. In addition, M.M. made later

statements in which she recharacterized the events in a manner that weakened

the case. (Pl. SMF ¶¶ 290–327.) The case was presented to a grand jury, which

declined to indict. (Id. ¶ 342.) Still, the University expelled Collick and

Williams. (Compl. ¶¶ 18, 111.)

D. Procedural History

Collick and Williams (as well as Collick’s mother, later dismissed from

the case) sued in New Jersey Superior Court. As defendants, they named

Sergeant DeSimone, Director Fulleman, University President Kathleen

Waldron, the University, and the University Police. (DE 1.) Defendants removed

the case to this federal district court. (Id.) Defendants then moved to dismiss

the twenty-one-count Complaint on various grounds, including qualified

immunity. (DE 14.) I granted the motion to dismiss in part and denied it in

part. Collick v. William Paterson Univ., Civ. No. 16-471, 2016 WL 6824374

(D.N.J. Nov. 17, 2016). As relevant here, I held that Collick and Williams had

plausibly alleged violations of their Fourth Amendment rights arising from their

arrests, so qualified immunity was inappropriate prior to factual development.

Id. at *15. Defendants appealed from the qualified immunity ruling, but the

Third Circuit affirmed. Collick v. William Paterson Univ., 699 F. App’x 129 (3d

Cir. 2017).

The case proceeded, and the parties completed discovery. Defendants

now move for summary judgment on the remaining claims, all of which arise

from Collick’s and Williams’s arrest and detention. After the Rule 12(b)(6)

dismissal of some claims and the voluntary dismissal of others (DE 73),3 the

following claims remain:

• Count 2: a 42 U.S.C. § 1983 claim against Sergeant DeSimone and

Director Fulleman for deprivations of Collick’s and Williams’s Fourth

Amendment rights (Compl. ¶¶ 140–55);

• Count 5: a § 1983 claim against the University and Police for

governmental liability for violations of their Fourth Amendment rights

(Compl. ¶¶ 167–87);

• Count 6: a New Jersey Civil Rights Act (“NJCRA”), N.J. Stat. Ann. § 10:6-

2, claim against DeSimone and Fulleman for violations of their Fourth

Amendment rights and corresponding rights under the New Jersey

Constitution (Compl. ¶¶ 188–97);

3 In their brief, Collick and Williams concede summary judgment in favor of

University President Waldron, who is named as a defendant in many of the remaining

claims. (Opp. at 1 n.1.) I accept the concession because the record does not show

involvement by President Waldron in the alleged constitutional violations here. See

Williams v. City of York, 967 F.3d 252, 257 (3d Cir. 2020); Ragland v. Comm’r N.J.

Dep’t of Corrs., 717 F. App’x 175, 178 n.6 (3d Cir. 2017) (per curiam).

• Count 7: an NJCRA claim against the University and Police for

governmental liability for violations of their Fourth Amendment rights

and corresponding rights under the New Jersey Constitution (Compl.

¶¶ 198–218);

• Count 9: false arrest and imprisonment, under New Jersey law, against

DeSimone and Fulleman (id. ¶¶ 237–41);

• Count 10: malicious prosecution, under New Jersey law, against

DeSimone, Fulleman, the University, and Police (id. ¶¶ 242–46);

• Count 15: negligent training and supervision, under New Jersey law,

against Fulleman, the University, and Police (id. ¶¶ 270–75);

• Count 16: intentional infliction of emotional distress (“IIED”), under New

Jersey law, against all defendants (id. ¶¶ 276–80);

• Count 18: negligence, under New Jersey law, against all defendants (id.

¶¶ 286–91);

• Count 19: gross negligence, under New Jersey law, against all defendants

(id. ¶¶ 292–95);

• Count 20: respondeat superior liability, under New Jersey law, against

the University and Police for DeSimone’s and Fulleman’s torts (id.

¶¶ 296–99).

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.”

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

construes 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).

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 point to 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

Defendants argue that Sergeant DeSimone had probable cause to arrest

Collick and Williams for sexual assault, so all claims fail. (Mot. at 10, 31.) The

probable-cause analysis differs depending on whether the arrest occurred

pursuant to a valid warrant. See Wilson v. Russo, 212 F.3d 781, 786–87 (3d

Cir. 2000). Accordingly, I first identify the appropriate analytic framework.

(Section III.A.) I then apply that framework to the charges of sexual assault,

which are the focus of the parties’ briefs. (Section III.B.) I then discuss how my

conclusion on probable cause impacts the claims. (Section III.C.)

A. Applicable Framework

A warrantless arrest is subject to a totality-of-the-circumstances analysis

of probable cause. Probable cause exists “when the facts and circumstances

within the arresting officer’s knowledge are sufficient in themselves to warrant

a reasonable person to believe that an offense has been . . . committed by the

person to be arrested.” Harvard v. Cesnalis, 973 F.3d 190, 199–200 (3d Cir.

2020) (quotation marks and citation omitted). “This totality-of-the-

circumstances inquiry is necessarily fact-intensive,” so “summary

judgment . . . is proper only if no reasonable juror could find a lack of probable

cause.” Id. (quotation marks and citation omitted).

When an arrest is made pursuant to a warrant, the analysis changes. A

warrant provides the officer some protection from Fourth Amendment second-

guessing. To go behind the face of a duly issued arrest warrant, the plaintiff

“must make two showings: that the officer, with at least a reckless disregard for

the truth, made false statements or omissions that created a falsehood in

applying for a warrant, and second, that those assertions or omissions were

material, or necessary, to the finding of probable cause.” Dempsey v. Bucknell

Univ., 834 F.3d 457, 468–69 (3d Cir. 2016) (cleaned up).

That analysis, however, presumes that a constitutionally adequate

process for obtaining a warrant was followed. Id. Generally, that means that

“the officer swears to an affidavit containing a summary of the events that she

believes give rise to probable cause” and “presents the affidavit to a neutral

magistrate, who conducts [an] independent review of the evidence to determine

whether it does, in fact, establish probable cause.” Id. at 469. That is not what

happened here, and, as a result, there is no adequate record for this Court to

review. I will therefore default to the totality-of-the-circumstances test for

probable cause.

For practical reasons, Sergeant DeSimone’s warrant application to Court

Administrator Ellicott was by telephone.4 There is no sufficient evidence that

DeSimone provided an adequate summary of the events to Ellicott. DeSimone

recalls relating that an investigation had occurred, and Ellicott seems to have

responded with questions about the thoroughness of the investigation. But

assurances of thoroughness are not equivalent to presentation of “operative

4 New Jersey permits municipal court administrators to issue arrest warrants on

the “sworn oral testimony” of an officer by telephone. N.J. Ct. R. 3:2-3(b); see N.J.

Stat. Ann. § 2B:12-21(a). The officer, after taking an oath, is to “read verbatim” her

complaint and affidavit. N.J. Ct. R. 3:2-3(b). If the officer provides additional facts, the

administrator is to record that testimony or make notes of it, which will be deemed

part of the affidavit. Id. The administrator may direct the officer to “activate the

complaint.” Id. A warrant issued under this procedure is to be verified “as soon as

practicable” by a court. Id. It appears that, post-arrest, Collick and Williams appeared

before a Superior Court judge, who set bail and signed the warrants. (See DeSimone

Rep. at 13, 14; DE 94-9, 94-9.)

facts” sufficient to establish probable cause of commission of a crime. See

Whiteley v. Warden, Wyo. State Penitentiary, 401 U.S. 560, 565 (1971). There is

no record—no affidavit, recording, or even any specific deposition testimony—

establishing the factual basis for issuance of the warrant. Further, Sergeant

DeSimone did not present an affidavit, and was not under oath during her

telephone call with Ellicott. See U.S. ex rel. Gaugler v. Brierley, 477 F.2d 516,

522 (3d Cir. 1973) (the Fourth Amendment does not require a written affidavit

but that “the judicial officer issuing a search warrant be supplied sufficient

information, under oath or affirmation”). For that additional reason, the validity

of the warrant is in serious question.

There is an argument to be made that, even in this situation, the officers

should receive the benefit of the arrest-warrant presumption. An important

policy behind that rule is to encourage officers to seek warrants rather than

rely on their on-the-spot judgments regarding probable cause. See United

States v. Leon, 468 U.S. 897, 913–14 (1984) (discussing “good faith” exception

in connection with suppression of evidence in a criminal case). Thus the police

did right in seeking a warrant before arresting anyone. To the extent the

application procedure fell short of the ideal, the police were not necessarily to

blame; practically speaking, they must take the procedures of the municipal

court as they find them. Still, I cannot find that the warrant application

process, as it unfolded here, was sufficient to shield this arrest from full,

probable-cause scrutiny.

Third Circuit case law does not provide a definitive answer as to whether

I should be applying the warrant analysis or warrantless-arrest analysis here.5

5 Filling that silence, Judge Arleo has suggested that “the Court can use extrinsic

evidence to reconstruct the contents of the affidavit and decide whether such contents

gave rise to probable cause.” Newsome v. City of Newark, 279 F. Supp. 3d 515, 525

(D.N.J. 2017). That approach, while reasonable, would not work here because the

record shows that no information about the facts underlying the offenses was

submitted to Ellicott. In Newsome, by contrast, a detective made an oral application to

the judge, but the audio recording was missing. Id. at 520. Nonetheless, Judge Arleo

used the detective’s uncontradicted deposition testimony recalling what he presented

to the judge to reconstruct the detective’s oral application. Id. at 526. Here, I am faced

There is, however, persuasive authority. For starters, in Noviho v. Lancaster

County, a plaintiff was arrested pursuant to a warrant, but the affidavit was

not provided when the district court decided a motion to dismiss in a related

§ 1983 action. 683 F. App’x 160, 164 (3d Cir. 2017). The Third Circuit non-

precedentially held that the analysis outlined in Dempsey could not be

performed without the affidavit. Id. The Court therefore defaulted to the

warrantless-arrest test. Thus, the “central inquiry” became whether there was

probable cause to arrest under the totality of the circumstances. Id.; see also

Dorval v. State, Civ. No. 20-5997, 2021 WL 236625, at *3 n.4 (D.N.J. Jan. 25,

2021).

For this approach, Noviho cited Graves v. Mahoning County, 821 F.3d

772 (6th Cir. 2016). There, the Sixth Circuit explained that the Fourth

Amendment protects against both (a) defective warrants, in its “warrant clause”

and (b) unreasonable seizures, in its “reasonableness clause.” Id. at 774. The

court held that the warrants in that case were invalid because, among other

things, a clerk issued them without hearing any of the “operative facts in the

case.” Id. at 775 (cleaned up). “But,” the court explained, “that does not mean

the plaintiffs prevail. To establish a cognizable Fourth Amendment claim, the

plaintiffs must show a violation not of the Warrant Clause but of the

Reasonableness Clause.” Id. So they must show that the arrest was

unreasonable, i.e., that it was not supported by probable cause. Id. at 776. In

short, not every arrest requires a warrant; but even if not, the arrest must be

supported by probable cause. See id. Accordingly, the Third Circuit cited

Graves for the proposition that “an invalid arrest warrant does not preclude a

reasonable arrest,” and went on to determine whether probable cause existed

under the totality of the circumstances. Noviho, 683 F. App’x at 165 & n.19;

accord Humbert v. Mayor & City Council of Baltimore City, 866 F.3d 546, 559

(4th Cir. 2017) (citing Graves).

with more than just a missing recording; there is literally no evidence, documentary or

oral, as to the particular facts that DeSimone presented to Ellicott.

We have wound up where we started. Setting aside the warrant, the

question becomes whether, considering all information available to Sergeant

DeSimone, there was probable cause to arrest Collick and Williams. To that

question I now turn.

B. Application

The parties focus on probable cause in relation to sexual assault, and I

will do the same.6 The question is not whether Collick and Williams were

actually guilty of sexual assault, whether Sergeant DeSimone’s investigation

can be criticized, or whether all the evidence we now possess would have

supported such charges. Dempsey, 834 F.3d at 477; Merkle v. Upper Dublin

Sch. Dist., 211 F.3d 782, 790 n.8 (3d Cir. 2000). The question is only whether,

at the time, the police had evidence amounting to probable cause, i.e., “a fair

probability that the arrestee committed a crime.” Dempsey, 834 F.3d at 477

(quotation marks and citation omitted). That “is not a high bar.” District of

Columbia v. Wesby, 138 S. Ct. 577, 586 (2018) (citation omitted).

The probable-cause question can only be answered in relation to the

essential elements of the charged offense. See Harvard, 973 F.3d at 200. The

relevant charge is aggravated sexual assault in the first degree. (DE 94-8, 94-

9). A person is guilty of that offense if he7 (1) “commits an act of sexual

penetration with another person,” (2) “is aided or abetted by one or more other

persons,” and (3) “commits the act using coercion or without the victim’s

affirmative and freely-given permission.” N.J. Stat. Ann. § 2C:14-2(a)(5). Collick

and Williams do not dispute that a sexual act occurred or that multiple parties

6 For Collick, the other charges were conspiracy to commit sexual assault in the

second degree, involuntary servitude in the third degree, and aggravated sexual

contact in the third degree. (DE 94-8.) For Williams, they were kidnapping in the first

degree, conspiracy to commit sexual assault in the second degree, and involuntary

servitude in the third degree. (DE 94-9.)

7 Because the accused persons in this case were male and the alleged victim was

female, I use male pronouns to refer to a generic accused, and female pronouns to

refer to a generic victim. In tailoring the pronouns to the facts of this case, I do not

lose sight of the reality that “both males and females can be actors or victims.” State in

Interest of M.T.S., 609 A.2d 1266, 1275 (N.J. 1992).

were allegedly involved. They focus on the third element: consent. (See Opp. at

8–18.)

The crucial question in a sexual-assault case where “the State does not

allege violence or force extrinsic to the act of penetration” is “whether the

defendant’s act of penetration was undertaken in circumstances that led the

defendant reasonably to believe that the alleged victim had freely given

affirmative permission to the specific act of sexual penetration.” State in

Interest of M.T.S., 609 A.2d 1266, 1278 (N.J. 1992). The victim need not have

“expressed non-consent” or “denied permission, and no inquiry is made into

what he or she thought or desired.” Id. at 1279. Nonetheless, “permission may

be inferred either from acts or statements reasonably viewed in light of the

surrounding circumstances.” Id. at 1276.

Turning to the facts here, Sergeant DeSimone relied on M.M.’s account,

bolstered by the security information and observed irritation or abnormalities

in M.M.’s throat. The Third Circuit applies a “rule that statements of a victim

witness are typically sufficient to establish probable cause.” Dempsey, 834 F.3d

at 477. Indeed, in the specific context of sexual assault, the Third Circuit has

repeatedly held that a victim’s account of a sexual assault is sufficient as a

matter of law to establish probable cause. Carson v. Aurand, 837 F. App’x 121,

123 (3d Cir. 2020) (per curiam); Davison v. Sheaffer, 820 F. App’x 167, 171 (3d

Cir. 2020); McCoy v. Taylor, 819 F. App’x 84, 86 (3d Cir. 2020); Jecrois v. Sojak,

736 F. App’x 343, 348 (3d Cir. 2018); McKinney v. Passaic Cnty. Prosecutor’s

Off., 612 F. App’x 62, 68 (3d Cir. 2015) (per curiam); Coley v. County of Essex,

462 F. App’x 157, 160 (3d Cir. 2011) (per curiam); Mitchell v. Obenski, 134 F.

App’x 548, 551 (3d Cir. 2005); Bresko v. John, 87 F. App’x 800, 802 (3d Cir.

2004); Petaccio v. Davis, 76 F. App’x 442, 445 (3d Cir. 2003). Police officers do

not sit as finders of fact, and they can generally assume that victims are

credible, because their motive is ostensibly concern for their or others’ safety.

Further, victims are presumed to have a sufficient basis of knowledge, as the

crime happened to them. Indeed, for sexual-assault crimes (particularly lack-

of-consent, as opposed to forcible, assaults), the victim’s testimony may be the

only evidence available. Easton v. City of Boulder, 776 F.2d 1441, 1449–50

(10th Cir. 1985) (cited favorably in Sharrar v. Felsing, 128 F.3d 810, 818 (3d

Cir. 1997), abrogated on other grounds by Curley v. Klem, 499 F.3d 199 (3d Cir.

2007)); see generally 2 Wayne R. LaFave, Search & Seizure § 3.4(a) (6th ed.

Sept. 2020 update). Because probable cause is not an overly demanding test,

and because the testing of a victim statement is a matter for post-arrest

proceedings, the veracity and basis for knowledge inherent in a victim

statement is generally sufficient for probable cause. Wilson, 212 F.3d at 793–

95 (Garth, J., concurring).

Here, Sergeant DeSimone possessed two detailed statements by M.M.,

the victim-witness, and some generally corroborative evidence. “[O]ur Circuit’s

rule” concerning victim-witnesses’ statements, then, forecloses much of the

proffered challenge to probable cause here. Dempsey, 834 F.3d at 477.

I do not stop there, however, because a court must consider the totality

of the evidence that the officers possessed at the time. But what the “totality”

rule gives with one hand, it takes away with the other. A determination of guilt

or innocence would require exhaustive investigation and credibility

determinations.8 An assessment of probable cause, however, requires primarily

8 Nor is the issue whether the police investigation could have been more

complete, or even whether it was negligent in some sense. Merkle, 211 F.3d at 790 n.8

(an officer is “not required to undertake an exhaustive investigation in order to validate

the probable cause that, in [her] mind, already exist[s]”); Orsatti v. N.J. State Police, 71

F.3d 480, 484 (3d Cir. 1995) (probable-cause analysis “focuse[s] on the information

the officers had available to them, not on whether the information resulted from

exemplary police work”); see also Carson, 837 F. App’x at 123 (officers did not need to

conduct further interviews after receiving a sexual-assault victim’s statement);

Livingston v. Allegheny County, 400 F. App’x 659, 665–66 (3d Cir. 2010) (same);

Schirmer v. Penkethman, Civ. No. 10-1444, 2012 WL 6738757, at *9 (D.N.J. Dec. 31,

2012) (same).

Collick and Williams dispute the notion that a victim’s statement should be

sufficient for an arrest, and would require more thorough investigation before a

warrant can issue. (See, e.g., Opp. at 17-18.) I understand that “merely being arrested”

can have “far-reaching and lasting consequences.” Dempsey, 834 F.3d at 469 & n.7. It

is difficult to disagree with the proposition that, all other things being equal, a more

thorough investigation is always preferable. Nonetheless, I deal today only with the

that the court identify what evidence the arresting officer possessed, a more

limited issue as to which there may often be a fair degree of certainty.

Here, I have in mind Judge Krause’s highly pertinent observation:

There is a tension inherent in evaluating probable cause at the

summary judgment stage. On the one hand, the summary

judgment standard asks whether there is a “genuine dispute as to

any material fact,” . . . viewing the evidence “in the light most

favorable to the non-moving party,” . . . . On the other hand, the

probable cause standard by definition allows for the existence of

conflicting, even irreconcilable, evidence. . . . In his brief on appeal,

Dempsey urges us to resolve this tension by omitting from our

consideration of probable cause any facts unfavorable to him that

conflict with favorable facts. . . .

We reject Dempsey’s proposed approach. While it is axiomatic that

at the summary judgment stage, we view the facts in the light most

favorable to the nonmoving party, it does not follow that we

exclude from the probable cause analysis unfavorable facts an

officer otherwise would have been able to consider. Instead, we

view all such facts and assess whether any reasonable jury could

conclude that those facts, considered in their totality in the light

most favorable to the nonmoving party, did not demonstrate a “fair

probability” that a crime occurred. Only then would the existence

of conflicting evidence rise to the level of a “genuine dispute as to

any material fact” such that summary judgment would be

inappropriate. Thus, where the question is one of probable cause,

the summary judgment standard must tolerate conflicting evidence

to the extent it is permitted by the probable cause standard.

Dempsey, 834 F.3d at 468 (citations omitted). The quantum of evidence

required is simply enough to require the accused to answer; “some unreliability

or exculpatory evidence will not fatally undermine probable cause.” Id. at 478

(cleaned up); see Lallemand v. Univ. of R.I., 9 F.3d 214, 216–17 (1st Cir. 1993)

(minor discrepancies in rape victim’s account did not undermine probable

cause).

standard of probable cause, which sets a fairly low bar, leaving the weighing of

inculpatory and exculpatory evidence for later.

The upshot of all the above is that conflicts in the evidence will not rule

out probable cause, but in a proper case, a court will consider whether

“independent exculpatory evidence or substantial evidence of a witness’s own

unreliability” can outweigh a victim-witness’s statement. Dempsey, 834 F.3d at

477–78. Collick and Williams point to facts which, they contend, negate M.M.’s

account and should have caused the police to disbelieve her. I canvas those

facts and then place them alongside M.M.’s statement and corroborating

evidence. See Wesby, 138 S. Ct. at 588.

First, M.M. told Sergeant DeSimone she had a prior sexual relationship

with Collick and sought him out that night. (Opp. at 17–18.) This presents a

delicate issue of New Jersey law, but I will accept arguendo that a victim’s prior

relationship with the defendant can be relevant to show that the defendant

reasonably believed that the victim consented to sex. See N.J. Stat. Ann.

§ 2C:14-7(d); State v. Garron, 827 A.2d 243, 260 (N.J. 2003). Still, the question

is not whether permission was ever given in the past, but rather whether it was

given “to the specific act of sexual penetration” at issue. M.T.S., 609 A.2d at

1278 (emphasis added). Indeed, the New Jersey Supreme Court has observed

that a prior relationship is often unremarkable, because “the vast majority of

sexual assaults are perpetrated by someone known to the victim.” Id.

Here, a prior relationship with Collick, even if relevant, does little to

exculpate the accused. Consider, for example, that the first encounter, as

reported by M.M., involved blocking the door and grabbing her by the head.

More specifically, M.M.’s relationship with Collick is not relevant to charges

against Williams (or, for that matter, the involvement of the other individuals).

See N.J. Stat. Ann. § 2C:14-7(a), (d). Thus M.M.’s report of prior relations with

Collick, even if a jury might consider it relevant to guilt or criminal intent, is

not so probative as to negate probable cause.

Second, Collick and Williams rely on M.M.’s statement “Oh I see you

have stage fright” when Collick allegedly had difficulty with an erection. They

argue that the lighthearted nature of this statement undermines any view of

this encounter as nonconsensual. (Opp. at 11.) The statement is open to

interpretation, but at most it suggests a certain incongruity of tone, not a

granting of consent. This “lighthearted” comment, if that is what it was, was

properly viewed by Sergeant DeSimone in the context of a detailed account by

M.M of a nonconsensual sexual encounter. This statement could not have

undermined the probable-cause determination.

Third, Collick and Williams argue, after the initial encounter, they

walked M.M. to her room and that she said “that’s fine” to having sex there—

more evidence, they say, of consent. (Opp. at 11–12.) Again, even giving these

facts an exculpatory interpretation, they cannot overcome the remainder of the

context. For example, M.M. stated to the individuals (1) immediately before the

second encounter, “you really should go,” and (2) immediately after the second

encounter, “I was just forced to do something I didn’t want to do. Now you can

leave because I’m about to cry.” (DeSimone Rep. at 6–7.) That she “gave in,”

under the circumstances as she reported them, does not establish consent. See

Jecrois, 736 F. App’x at 348 n.4 (sexual-assault victim’s statement that she “let

him do it” was not exculpatory). And of course, nothing about this second

encounter erases the first.

Fourth, Collick and Williams disparage the security camera and swipe-

card evidence, observing that there is nothing unusual about students coming

and going from a dormitory. (Opp. at 12.) “But probable cause does not require

officers to rule out [an] innocent explanation for suspicious facts . . . . [T]he

relevant inquiry is not whether particular conduct is innocent or guilty, but the

degree of suspicion that attaches to particular types of noncriminal acts.”

Wesby, 138 S. Ct. at 588 (quotation marks and citation omitted). Here, the

security information was useful as corroboration.9 The Third Circuit has held

9 Consider, for example, how the evidence might have looked if the security data

had not shown that Collick and Williams were present. Collick and Williams now

concede the first two elements of sexual assault, disputing only the element of

consent. The investigating officers, however, were not armed with any such

concession.

that precisely such evidence of presence may serve as corroboration of sexual

assault, despite their susceptibility of an innocent explanation. See Mitchell,

134 F. App’x at 551 (victim’s statement about sexual assault in a hotel room,

supported by hotel records, provided probable cause). At the very least, the

security information’s corroborative effect generally bolstered M.M.’s credibility

and placed Collick and Williams at the scene. That entering or leaving a dorm

is not in itself a crime does not affect the probable-cause analysis.

Finally, Collick and Williams argue that the police and nurse noted no

evidence of physical injury, undermining M.M.’s allegations that she was the

victim of a multi-assailant sexual assault. (Opp. at 12.) But this is not a

“violence or force” case; it is a non-consent case. To establish the latter,

“‘physical force in excess of that inherent in the act of sexual penetration is not

required’”; rather, the crime is shown by “the act of penetration itself, ‘if

engaged in by the defendant without the affirmative and freely-given

permission of the victim to the specific act of penetration.’” Jecrois, 736 F.

App’x at 347 (quoting M.T.S., 609 A.2d at 1277). M.M. never alleged facts from

which one would expect to find evidence of injury, so the lack of such evidence

did not undermine her account in the eyes of the police.

Collick and Williams assert facts which, if admissible, might be

considered by a jury in their defense. Those facts were not, however, nearly so

exculpatory, singly or together, as to permit an officer to conclude that

probable cause was absent. This was not a case involving, e.g., a vague story, a

fantastic scenario, or a known fabricator. Rather, M.M. made a prompt

complaint and gave two statements that were detailed and consistent with each

other. Some corroborating evidence existed in the form of security information

and physical manifestations of oral sex. Accordingly, this is a case where, given

Third Circuit precedent, Defendants can establish as a matter of law that the

totality of facts in their possession at the time of arrest established probable

cause of aggravated sexual assault.

C. Impact on Claims

Defendants argue that a finding of probable cause on the sexual assault

charge requires that all the currently operative claims against them be

dismissed. I agree.

Count 2 (§ 1983) and Count 6 (NJCRA) allege that Collick’s and

Williams’s arrest and detention violated their Fourth Amendment and

corresponding New Jersey constitutional rights. Probable cause to arrest for

one of multiple charges is sufficient to defeat a claim that an arrest was

unlawful. Harvard, 973 F.3d at 199, 202; State v. Gibson, 95 A.3d 110, 118

(N.J. 2014); Sanchez v. Town of Morristown, No. A-2076-13T3, 2015 WL

4661412, at *6 (N.J. Super. Ct. App. Div. Aug. 7, 2015). I have found that the

police possessed probable cause of sexual assault.10

The briefs do not substantially discuss any constitutional or tort-based

theory of malicious prosecution. In cases of malicious prosecution, courts have

sometimes required that probable cause exist as to each crime charged.

Johnson v. Knorr, 477 F.3d 75, 85 (3d Cir. 2007); see Kossler v. Crisanti, 564

F.3d 181, 192–94 (3d Cir. 2009) (en banc). This, however, is not such a case. I

find that probable cause as to the sexual-assault charge defeats any malicious

prosecution claim, for two reasons. First, the Third Circuit has excused the

10 To be more precise, Defendants framed their motion for summary judgment as

one invoking qualified immunity. Qualified immunity shields § 1983 and NJCRA

defendants from liability unless (1) they violated a constitutional right, and (2) that

right was clearly established. 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). Because

probable cause existed, there was no constitutional violation, and Defendants are

entitled to qualified immunity.

Even if one in hindsight found a lack of probable cause, however, plaintiffs

would still need to show that such lack of probable cause was clearly established by

then-existing law. See Sanders v. Jersey City, Civ. No. 18-1057, 2021 WL 1589464, at

*9 (D.N.J. Apr. 23, 2021) (citations omitted). It was not. Rather, in an unbroken line of

cases dating back almost two decades, the Third Circuit had held that a sexual-

assault victim’s statement, alone or with minimal corroborating evidence, was

sufficient to establish probable cause. (See p. 13, supra.) In short, it would be highly

unusual for a victim’s statement to be found insufficient. And “the fact that a case is

unusual . . . is an important indication that the officer’s conduct did not violate a

clearly established right.” Wesby, 138 S. Ct. at 592 (cleaned up).

application of the Johnson rule in relation to, inter alia, a malicious prosecution

claim where the person was arrested and simultaneously charged with

interrelated offenses and the plaintiff failed to show that any one charge

resulted in a greater detention. Simonson v. Borough of Taylor, 839 F. App’x

735, 740 & n.7 (3d Cir. 2020); see Kossler, 564 F.3d at 194 (distinguishing

between Johnson and Wright v. City of Philadelphia, 409 F.3d 595, 604 (3d Cir.

2005) (“Even though our discussion of probable cause was limited to the

criminal trespass claim, it disposes of her malicious prosecution claims with

respect to all of the charges brought against her, including the burglary.”)).

Second, Collick and Williams have forfeited any argument that the Johnson

rule applies or that Defendants must show probable cause as to each offense

charged. They never argued for such a rule and indeed barely mentioned the

other charges. (See Opp. at 12 n.3) Thus, probable cause as to the other

charges, and its impact if any on this case, are not properly before me. See

Yates Real Estate, Inc. v. Plainfield Zoning Bd. of Adjustment, 404 F. Supp. 3d

889, 913 n.28 (D.N.J. 2019).

The claims against the police and the derivative claims seeking to hold

the University or its Police liable for the actions of the police are linked.

(Counts 5, 7, 15). The failure of Collick and Williams to show a constitutional

violation by the police also defeats the derivative claims. See Vargas v. City of

Philadelphia, 783 F.3d 962, 974–75 (3d Cir. 2015) (§ 1983); Sanders v. Jersey

City, Civ. No. 18-1057, 2021 WL 1589464, at *24 (D.N.J. Apr. 23, 2021)

(NJCRA).

Finally, because the remaining state-law tort claims rely on a theory that

Collick and Williams were wrongfully arrested, those claims are likewise

defeated by a finding of probable cause. Herman v. City of Millville, 66 F. App’x

363, 368 n.3 (3d Cir. 2003) (probable cause to arrest defeated claims for state-

law false arrest, false imprisonment, malicious prosecution, negligence,

negligent training and supervision, and IIED).

A finding of probable cause is thus fatal to all claims. That being the

case, I do not address Defendants’ alternative theories of immunity.

IV. CONCLUSION

For the reasons set forth above, Defendants’ motion for summary

judgment is granted. A separate order will issue.

Dated: June 10, 2021

/s/ Kevin McNulty

___________________________________

Hon. Kevin McNulty

United States District Judge