# BARGE v. CITY OF ENGLEWOOD

> District Court, D. New Jersey · July 31, 2025

URL: https://www.frixlaw.com/law-library/cases/11112425

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** July 31, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

DANIEL COURNEY,
No. 22-cv-05181 (MEF)(AME)
Plaintiff,
OPINION and ORDER
v.
CITY OF ENGLEWOOD et al.,

Defendants.

Table of Contents
I. Background
A. The Allegations
B. The Lawsuit
C. The Motion
II. The Arresting Officers
A. General Principles
B. Analysis
1. New Jersey Law
2. Non-New Jersey Cases
3. Conclusion
C. Two Added Points
D. The Counterarguments
III. Police Supervisors
IV. Conclusion

* * *
Local police officers arrested a man and charged him with
violating a restraining order.
The man sued the officers, alleging false arrest.
The arresting officers now move to dismiss.
Their motion is granted.
I. Background
A. The Allegations
The following allegations1 are relevant for now.
A man2 regularly protested outside Metropolitan Medical
Associates (“MMA”) in Englewood, New Jersey. See Second Amended
Complaint (“Complaint”) (ECF 21) ¶¶ 14, 19.
A particular doctor (“Doctor”) worked at MMA. See id. ¶¶ 26,
28.
In March 2021, a state judge conducted a hearing and then issued
a restraining order. See Complaint, Exhibit B. The order
barred the man “from having any contact with [the Doctor].”
Complaint ¶¶ 27–28; Complaint, Exhibit B, at 8:5–6.
Around five months later, the man was protesting outside MMA.
See id. ¶¶ 20–26. Local police officers arrested him there.
See id. ¶¶ 19–21, 26.
Per the arrest paperwork, the man was arrested for, among other
things, violating the judge’s restraining order.3 See Complaint,
Exhibit A, at 5 (Detective Moreno’s complaint).
The arresting officers noted that the Doctor was on site and
noise from the protest had reached his office. See id. at 8.
The man was jailed for six days, and at that point the case
against him was dismissed by state authorities. See Complaint
¶¶ 30, 39.

1 Because this is a motion to dismiss, the Court must treat all
the Complaint’s allegations as true. See McTernan v. City of
York, 577 F.3d 521, 526 (3d Cir. 2009). Whether they are true -
-- that would be an issue for later in the case.
2 Daniel Courney.
3 Violating a restraining order is a crime under New Jersey law.
See N.J.S.A. § 2C:29-9a; see also Complaint, Exhibit A, at 5
(citing id.).
B. The Lawsuit
In light of the above, the man filed this lawsuit. From here,
he is called “the Plaintiff.”
The Plaintiff sued a number of defendants.
The remaining claims in the case run against four members of the
Englewood Police Department.4
Two of these are the arresting officers,5 who are the focus of
this Opinion and Order. They are called “the Defendants.”
The other two police defendants are supervisory officials.6 They
are discussed only briefly here, in Part III.
* * *
As to the four members of the police force, the Plaintiff
pressed (a) federal claims under Section 1983, see 42 U.S.C.
§ 1983, and (b) state claims under the New Jersey Civil Rights
Act, N.J.S.A. § 10:6-2.7
Section 1983 gives private parties a way to sue for underlying
violations of the federal constitution. See 42 U.S.C. § 1983.
And the New Jersey Civil Rights Act does the same thing for
violations of the federal and state constitutions. See Cruz v.

4 The claims against the police department itself were dismissed
last year. See Courney v. City of Englewood, No. 22-cv-5181
(ECF 30) (D.N.J. Mar. 13, 2024). And earlier this month, claims
were dismissed against the City of Englewood and the Englewood
City Council. See Courney v. City of Englewood, 2025 WL 2017252
(D.N.J. July 17, 2025).
5 The Complaint names them as Officer Calderin and Detective J.
Moreno. Full names are not given.
6 The Complaint names them as Chief Lawrence Suffern and Deputy
Chief Thomas Loschiavo.
7 In a freestanding count, the Plaintiff also sought costs under
42 U.S.C. § 1988. See Complaint ¶ 81. But Section 1988 does
not create an independent cause of action. See Tunstall v. Off.
of Jud. Support of Ct. of Common Pleas of Del. Cnty., 820 F.2d
631, 633 (3d Cir. 1987). Therefore, that claim must be
dismissed on the merits.
Camden Cnty. Police Dep’t, 466 N.J. Super. 1, 9 (App. Div.
2021).
The Plaintiff alleged a number of different underlying
constitutional rights were violated. See Complaint ¶¶ 32–78.
But he did not explicitly indicate which rights were in play as
to which defendants.
This said, it strongly appeared that the claims against the four
police defendants were for false arrest, allegedly in violation
of the Fourth Amendment to the federal constitution.
The Court explained its understanding and gave the parties a
chance to weigh in. See ECF 39. None did, so the Court
proceeds here on the basis that the Plaintiff’s claims are for
false arrest under the Fourth Amendment. See ECF 40.
C. The Motion
The four police defendants referenced above have moved to
dismiss the Complaint under Federal Rule of Civil Procedure
12(b)(6).
Their motion is now before the Court.
II. The Arresting Officers
The Defendants8 argue that the false arrest claims against them
must be dismissed on qualified immunity grounds. See Motion to
Dismiss Plaintiff’s Second Amended Complaint (“Motion to
Dismiss”) (ECF 33) at 29–33.
This argument is persuasive. After a brief discussion of the
governing law, see Part II.A, the Court explains why. See Part
II.B.
A. General Principles
Three general principles are relevant here. Walk through them
in this section.9

8 Recall that these are the two officers who were directly
involved in arresting the Plaintiff. See footnote 5.
9 The New Jersey Civil Rights Act incorporates the federal case
law on qualified immunity. See Hernandez v. Twp. of Lyndhurst,
765 F. Supp. 3d 401, 409 (D.N.J. 2025) (citing Gormley v. Wood-
El, 218 N.J. 72, 113 (2014)). So the Plaintiff’s Fourth
* * *
First, a police officer is entitled to qualified immunity from a
false arrest charge “if a reasonable officer could have believed
[the] arrest to be lawful,” given “the information the
[arresting] officers possessed.” Hunter v. Bryant, 502 U.S.
224, 227 (1991) (quoting Anderson v. Creighton, 483 U.S. 635,
641 (1987)); see generally 5 Am. Jur. 2d Arrest § 126 (2025).
To be “lawful,” there must be sufficient evidence of probable
cause as to each element of the offense. See Hunter, 502 U.S.
at 227; Wright v. City of Phila., 409 F.3d 595, 602 (3d Cir.
2005).
Take as an example an arrest made under Pennsylvania law for
criminal trespass.
The elements of that crime: that a person “(1) entered or broke
into a building or occupied structure, (2) knowing that she or
he had no license or privilege to do so.” Wright, 409 F.3d at
603 (citing 18 Pa. Stat. and Cons. Stat. Ann. § 3503(a)(1))).
An officer is entitled to qualified immunity if a “reasonable
officer” in his shoes (with “the information []he . . .
possessed”10) “could have believed” that there was probable-
cause-level evidence as to both breaking and entering (the first
element) and lack of permission (the second element).
* * *
Second, when assessing whether an officer could have reasonably
believed there was probable cause, a court must look to “clearly
established law.” Hunter, 502 U.S. at 227.
To see the point, come back to the Pennsylvania criminal
trespass statute.

Amendment claims under the federal cause of action (Section
1983) and the state cause of action (the New Jersey Civil Rights
Act) are not analyzed separately. They rise or fall together.
10 Hunter, 502 U.S. at 227. The availability of qualified
immunity turns on the factual information that was known to the
officers; their subjective motives do not generally count. See
Devenpeck v. Alford, 543 U.S. 146, 153 (2004); Hunter, 502 U.S.
at 228; Blaylock v. City of Phila., 504 F.3d 405, 411 (3d Cir.
2007).
Imagine that a police officer arrests a woman for criminal
trespass based on her sneaking into a nylon ice shack.11
And imagine further that the officer is later sued for false
arrest.
Does the officer get qualified immunity?
Yes, if he “could have believed” based on “clearly established
law”12 that the woman’s entering the ice shack counts as entering
“a building or occupied structure” for Pennsylvania criminal
trespass law.13
After all, the thinking goes, the underlying questions are not
easy.
Is a temporary shelter from the cold a “building”? Maybe, maybe
not. If people fish in it but do not sleep in it, is an ice
shack “occupied”? Again, reasonable minds can disagree.
As state courts14 work through these questions, the precise
location of the metes and bounds laid down by Pennsylvania’s

11 That is, a pop-up tent-like structure left out on a frozen-
over lake, for keeping warm while ice fishing.
12 Like an on-point Pennsylvania Supreme Court decision. See
footnotes 13-14.
13 “To determine whether an arrest is valid, [courts] look to
the law of the state where the arrest took place” and conduct
“an examination of the elements of the crime at issue.” Wright,
409 F.3d at 601.
14 Which courts count? This is not crystal clear. When the key
question is a matter of federal law, do the decisions of the
Supreme Court and the courts of appeals “clearly establish” the
law, or do district court decisions have a role to play, too?
There seems to be authority on each side of the ledger. Compare
Jefferson v. Lias, 21 F.4th 74, 81 (3d Cir. 2021) (“We may also
take into account district court cases, from within the Third
Circuit or elsewhere.”) (cleaned up) and Doe v. Delie, 257 F.3d
309, 321 n.10 (3d Cir. 2001) (“district court opinions do play a
role in the qualified immunity analysis”) (citing, e.g., Pro v.
Donatucci, 81 F.3d 1283 (3d Cir. 1996); Brown v. Grabowski, 922
F.2d 1097, 1118 (3d Cir. 1990)), with Montemuro v. Jim Thorpe
Area Sch. Dist., 99 F.4th 639, 645 (3d Cir. 2024) (“The extant
case law must be derived from established Supreme Court and
Third Circuit precedent[.]”) and Minor v. Del. River & Bay
Auth., 70 F.4th 168, 174 (3d Cir. 2023) (same). Same issue when
criminal trespass statute will become fixed in place, solidly
and visibly. The law’s border line (doing this is fine, but if
you do that you can go to jail) will become “clearly
established.”
But until the law has been definitively clarified by judicial
interpretation, the thinking goes, the costs of getting the
law’s meaning wrong should not have to be carried by the police
officer.
If he reasonably treats an ice shack as a “building” and makes
an arrest on that basis, the officer should not have to answer
in a damages suit. He gets qualified immunity even if, later, a
judge might look back and say that a shack does not actually
count as a building.
But after the law has been definitively clarified, once the
meaning of the criminal trespass law has been “clearly
established” --- then things shift.
If state judges make it plain that there can be no trespass
arrests based on the idea that an ice shack is a “building,” and
an officer then arrests a person on that basis, then there is no
qualified immunity for the arrest.
* * *
The third piece of the puzzle:
The job of finding the case law on ice shacks and criminal
trespass --- who does it belong to?
Stated more generally: once the defendants have started things
off by raising qualified immunity, who has to come forward and
show what the “clearly established” law actually is?
The plaintiff.

the critical question turns on state law. Compare Montemuro, 99
F.4th at 645 (“The extant case law must be derived from . . .
the highest court in that state when determining the contours of
a state-granted right[.]), with Acierno v. Cloutier, 40 F.3d
597, 620 (3d Cir. 1994) (looking to “published decisions of
lower state courts in Delaware”). (The Supreme Court has not
weighed in on this. See Harlow v. Fitzgerald, 457 U.S. 800, 818
n.32 (1982).)
If he does not come forward with sufficiently on-point
indications that the relevant law is “clearly established,” then
the defendant gets qualified immunity. See Davis v. Scherer,
468 U.S. 183, 197 (1984); Urda v. Sokso, 2025 WL 2046175, at *1
(3d Cir. July 22, 2025); Dongarra v. Smith, 27 F.4th 174, 178
(3d Cir. 2022); El v. City of Pittsburgh, 975 F.3d 327, 339 (3d
Cir. 2020); Sherwood v. Mulvihill, 113 F.3d 396, 399 (3d Cir.
1997); accord Templeton v. Jarmillo, 28 F.4th 618, 621 (5th Cir.
2022); Williams v. Maurer, 9 F.4th 416, 430 (6th Cir. 2021);
Humphries v. Milwaukee Cnty., 702 F.3d 1003, 1006 (7th Cir.
2012); Hanson as Tr. for Layton v. Best, 915 F.3d 543, 548 (8th
Cir. 2019); Isayeva v. Sacramento Sheriff’s Dep’t, 872 F.3d 938,
946 (9th Cir. 2017); Powell v. Mikulecky, 891 F.2d 1454, 1457
(10th Cir. 1989); Washington v. Howard, 25 F.4th 891, 897–98
(11th Cir. 2022); Palmieri v. United States, 896 F.3d 579, 586
(D.C. Cir. 2018).
As the Third Circuit has put it, the “plaintiff[] . . . must
cite existing precedent that puts the question beyond debate.”
Dongarra, 27 F.4th at 178 (cleaned up).15
In the example from above, if there is a temporary-structure
case out there, it is for the plaintiff to find, not the
defendant.
* * *
A critical qualifier.

15 Two points. First, all of this, as noted, assumes that a
defendant has gotten the ball rolling in the first place, by
moving to dismiss based on qualified immunity. It is the
defendant who must start things off because qualified immunity
is an affirmative defense. See Crawford-El v. Britton, 523 U.S.
574, 587 (1998); Gomez v. Toledo, 446 U.S. 635, 640 (1980).
This suggests a burden-shifting approach. The burden out of the
gate is the defendant’s. And once he has carried it far enough,
the burden slides over and becomes the plaintiff’s to shoulder.
Second, no one needs to come forward with any authority when the
alleged violation of law is entirely obvious; in that situation,
finding sufficiently on-point “clearly established” case law is
unnecessary for either the plaintiff or the defendant. See
Urda, 2025 WL 2046175, at *1 (citing Hope v. Pelzer, 536 U.S.
730, 734–35, 741–42 (2002); Taylor v. Riojas, 592 U.S. 7, 8–9
(2020)).
The Third Circuit has sometimes suggested that the burden of
establishing qualified immunity rests with the defendant from
start to finish --- and that the defendant, not the plaintiff,
is therefore the party required to come forward and show that
the relevant body of law is clearly established. See, e.g., E.
D. v. Sharkey, 928 F.3d 299, 306 (3d Cir. 2019) (“[T]he burden
is on the defendants to . . . show that a reasonable person in
their position at the relevant time could have believed . . .
that their conduct comported with recognized legal standards.”)
(citing Beers-Capitol v. Whetzel, 256 F.3d 120, 142 n.15 (3d
Cir. 2001)).
This implies that there may possibly be a split within the Third
Circuit cases on this point.16
But as noted just above, the weight of Third Circuit authority
runs the other way. And so does the Supreme Court’s decision in
Davis, 468 U.S. at 197.
B. Analysis
Come back now to this case.
Recall the basis for the Defendants’ arrest of the Plaintiff:

16 And in some other circuits, too. For example, different
First Circuit panels seemed to have landed on different
approaches. Compare Sullivan v. Carrick, 888 F.2d 1, 3 (1st
Cir. 1989) (“[The defendant], in asserting his defense of
qualified immunity, must prove that the conduct complained of
‘does not violate clearly established statutory or
constitutional rights.’”), with Rivera-Corraliza v. Morales, 794
F.3d 208, 214 (1st Cir. 2015) (“[T]o overcome that defense
plaintiffs must make a two-step showing --- that (a) defendants
violated a statutory or constitutional right and that (b) the
right was clearly established at the time.”). And same in the
Second Circuit. Compare Palmer v. Richards, 364 F.3d 60, 67 (2d
Cir. 2004) (“It was, of course, [the defendant’s] burden at
summary judgment to show the nonexistence of a clearly
established right and his entitlement to qualified immunity.”),
with Radwan v. Manuel, 55 F.4th 101, 114 (2d Cir. 2022) (“Absent
controlling authority, a plaintiff must show ‘a robust consensus
of cases of persuasive authority’” showing the law was clearly
established.). And in the Fourth. See Henry v. Purnell, 501
F.3d 374, 378 n.4 (4th Cir. 2007) (recognizing intra-circuit
split).
The Plaintiff was protesting outside MMA. The Doctor was there,
and the Defendants concluded the protest could be heard from his
office. See Complaint, Exhibit A, at 8.17
The Defendants’ arrest of the Plaintiff was, in part, for
violating N.J.S.A. § 2C:29-9a. See Complaint, Exhibit A, at 1.
The statute:
[A] person is guilty of a crime of the
fourth degree if the person . . . purposely
or knowingly violates a condition to avoid
all contact with an alleged victim[.]
Given what he knew, could “a reasonable officer . . . have
believed [the Plaintiff’s] arrest to be lawful”? Hunter, 502
U.S. at 227.
The parties zero in one aspect of this question, on one
statutory element.
Namely, “could” a reasonable officer “have believed” that
“contact,” N.J.S.A. § 2C:29-9a, was made by the Plaintiff with
the Doctor, such that an arrest was authorized under New Jersey
law?18 See Motion to Dismiss at 25–31; Opposition Brief (ECF 34)
at 7–8.
The Court’s conclusion: yes, a reasonable officer “could have
believed” the Plaintiff was making “contact.”
Why?
Because under New Jersey law, (1) coming near a protectee,19 and
then (2) interacting with the protectee, including by speaking

17 The information in the text is drawn entirely from the
Plaintiff’s Complaint and the materials he has attached to it.
The Court can rely on these materials here. See Oliver v.
Roquet, 858 F.3d 180, 190 (3d Cir. 2017); Miller v. Clinton
Cnty., 544 F.3d 542, 550 (3d Cir. 2008); Prager v. LaFaver, 180
F.3d 1185, 1189 (10th Cir. 1999); cf. Sands v. McCormick, 502
F.3d 263, 268 (3d Cir. 2007); Lum v. Bank of Am., 361 F.3d 217,
222 n.3 (3d Cir. 2004); Pension Ben. Guar. Corp. v. White
Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993).
18 If “contact” was made by the Plaintiff, he “violate[d]”
N.J.S.A. § 2C:29-9a, the state judge’s “condition to avoid all
contact with an alleged victim[.]” Id.
19 That is, someone protected by a restraining order.
loudly enough to be heard by the protectee --- that generally
counts as “contact.” See Part II.B.1; cf. Part II.B.2.
And that is what the Plaintiff assertedly did here.
The Plaintiff approached the Doctor’s workplace. And from that
spot, the Defendants believed, the Plaintiff was interacting
with the Doctor --- raising his voice to the point he could be
heard by the Doctor. See Part II.B.3.
1. New Jersey Law
To see what counts as “contact” under New Jersey law, look first
to State v. D.G.M., 439 N.J. Super. 630 (App. Div. 2015).
There, a restraining order barred the defendant “from having any
(oral, written, personal, electronic or other) form of contact
or communication with” his ex-girlfriend. Id. at 633 (quoting
the order).
That restraining order, like the one here, did not define
“contact.” See id. at 637.
The defendant filmed his ex-girlfriend at a soccer game. Was
that contact? Yes, the appellate court held. See id. at 633.
Looking to a dictionary, the court said, “we think it likely
‘contact’ as used here means ‘to get into contact or in touch
with.’” Id. at 638 (quoting 3 Oxford English Dictionary 806 (2d
ed. 1989)); see also Contact, n., sense 2, New Oxford American
Dictionary (2024) (“the state or condition of communicating or
meeting”).
The court gave examples of “contact” and its close synonym,
“communication.” See D.G.M., 439 N.J. Super. at 638–39.
Contact included “telephoning the victim even when separated by
many miles, or by gesturing at or toward the victim from across
a room, from a passing automobile, or from the opposite side of
a soccer field or baseball diamond.” Id. at 639.
Per the appellate court, another example of “contact,” critical
for this case, was approaching a person protected by a
restraining order “close enough to be heard in a normal tone of
voice.” Id.
The defendant at the soccer game, the appellate court concluded,
“was engaged in sending a message or conveying thoughts” by
pointing a camera at his ex-girlfriend. See id. at 640. “A
defendant’s mere act of filming or even simply staring at a
victim sends a message.” Id. This was contact. See id.
The meaning of the message was beside the point. See id. The
“mere act of filming or even simply staring at a victim sends a
message and, in many instances, a message sufficiently alarming
or annoying, or even threatening, so as to constitute the type
of conduct the Legislature had in mind when enacting” the
domestic-violence statute. Id.
Under D.G.M.’s understanding of “contact,” the Defendants in
this case could have reasonably believed the Plaintiff to have
violated the state court’s restraining order.
D.G.M. said that sending a message to someone else is contact.
And here, the Defendants could have reasonably believed that the
Plaintiff was sending a message to the Doctor by audibly
protesting outside his office.
Moreover, D.G.M. said that approaching someone close enough to
be heard in a normal tone of voice is contact.
By that logic, the Defendants in this case could have reasonably
concluded that being a little farther away while speaking
somewhat louder --- “[loud] enough to be heard,” Id. at 639 ---
is also contact.
* * *
In broadly defining “contact,” D.G.M. built on earlier New
Jersey cases.
For instance, State v. J.T., 294 N.J. Super. 540 (App. Div.
1996), also suggested that staring at a protectee from some
distance is contact.
In J.T., a restraining order barred the defendant “from having
contact with the victim including, but not limited to entering
plaintiff’s residence.” Id. at 542 (cleaned up).
The defendant sat on the ground outside the victim-protectee’s
home, staring at her. See id. He remained 20 to 25 feet away,
separated from the victim-protectee “by her backyard, a fence, a
large driveway that serves `the entire apartment complex,
another fence and the additional distance between [himself] and
the fence.” Id. at 542 n.2 (quoting defendant’s brief).
No matter, the appellate court held. By “position[ing] himself
where his wife could see him as she exited the house,” he
violated the no-contact order. Id. at 544. It was irrelevant
that the defendant did not speak to his wife. See id. at 543.
* * *
Bottom line:
Under the New Jersey cases cited above, a person subject to a
restraining order who (1) gets into the general vicinity of the
protectee and then (2) interacts with the protectee has made
“contact.”
Examples of “contact” include approaching a protectee (whether
at a soccer game, across a field or a room, or from a passing
car, D.G.M., 439 N.J. Super. at 639) in combination with some
interaction, however glancing (making a phone call, pointing a
camera, staring, speaking, gesturing, see id. at 639–40, J.T.,
294 N.J. Super. at 542).20
And this case, too, involves a combination of proximity and
interaction.
The Plaintiff approached the Doctor’s workplace and made sounds
there that reached his office.
2. Non-New Jersey Cases
Although New Jersey law controls here, see footnote 13, it is a
bit sparse.
The Court has searched but found only two relevant cases, the
ones described just above. See Part II.B.1.
As a way of double-checking that this Court is getting the
content of New Jersey law right, look briefly now to how courts
around the Nation have tended to understand the relevant
issues.21

20 Here, the restraining order did not just bar “contact.” It
barred “any contact.” Complaint, Exhibit B, at 8 (emphasis
added). The word “any” stretches the meaning of “contact” to
its outer limit. See Khalil v. Joyce, 2025 WL 1232369, at *9
(D.N.J. Apr. 29, 2025) (explaining the point).
21 States are generally empowered to make their own laws. But
often enough, different states land in the same places as to
recurring questions. That is why, for example, to predict what
state A’s law is, a look to the law of state B and state C will
Consider some examples of what has been held to be “contact”:
 The defendant went to a vacant lot next to the protectees’
home, shouted at them, and shot off ammunition. Swett v.
Gates, 297 A.3d 944 (Vt. 2023).
 The defendant went to a dog park the protectee was known to
frequent and looked at her while grinning. State v.
Tunley, 294 P.3d 1092 (Haw. Ct. App. 2013).
 The defendant went to the protectee’s workplace window and
made five to ten seconds of eye contact. State v. Lindell,
820 N.W.2d 769 (Iowa Ct. App. 2012).
 The defendant returned to an apartment when he knew
protectee would be visiting and watched her swim from a
distance. State v. George, 2011 WL 1743884, at *1 (Minn.
Ct. App. May 9, 2011).
 The defendant attended a pretrial conference where he waved
a book at the protectee and shouted at her to “tell the
truth.” State v. O’Grady, 147 Wash. App. 1044 (2008).
 The defendant stopped his truck 40 feet from the
protectee’s workplace window and started shouting.
Commonwealth v. Habenstreit, 786 N.E.2d 425 (Mass. App. Ct.
2003).

often be clarifying. See, e.g., Badalamenti v. Resideo Techs.,
Inc., 755 F. Supp. 3d 534, 541 (D.N.J. 2024); Howard v. Wells
Fargo Bank, N.A., 733 F. Supp. 3d 352, 357 (D.N.J. 2024), aff’d,
2024 WL 4890984 (3d Cir. Nov. 26, 2024); Navigators Specialty
Ins. Co. v. Citizens Ins. Co. of Am., 739 F. Supp. 3d 259, 267–
68 (D.N.J. 2024). And that is why, to take another example,
restatements of the law can aim to range across the 50 states
and to generate a faithfully encompassing summary of the overall
law. See generally Centennial Plaza Prop, LLC v. Trane U.S.
Inc., 771 F. Supp. 3d 481, 490 n. 17 (D.N.J. 2025). That is a
plausible aspiration because of a felt sense that when it comes
to the broad brushstrokes, there is often a real coherence to
American law. Massachusetts or Colorado or Alabama can opt for
wholly distinct approaches to proximate causation or to apparent
authority. But often they do not. Why does this matter here?
Because in the absence of a great many decided New Jersey cases
to lean on, it helps to peek at other states’ laws. Other
states see proximity plus interaction as equaling contact, as
described in Part II.B.2. And that helps to firm up the
conclusion that New Jersey law is to similar effect --- even
though there are relatively few New Jersey cases to go on.
 The defendant stopped his car near the protectee at a bus
stop and stared at her. State v. Danaher, 819 A.2d 691,
693, 696 (Vt. 2002).
 The defendant went to the protectee’s neighborhood and
stared at her from the opposite end of her street.
Commonwealth v. Tate, 612 N.E.2d 686, 689 (Mass. App. Ct.
1993).
3. Conclusion
The cases from around the country collected just above, see Part
II.B.2, dovetail closely with the understanding of New Jersey
law set out in Part II.B.1.
They buttress the Court’s understanding, see footnote 21, that
under New Jersey law “contact” in violation of a no-contact
restraining order includes (1) coming somewhat near a protectee,
and then (2) interacting with the protectee (and even in ways
that are purely one-sided --- like staring, yelling, or pointing
a camera).22
Given this backdrop, the Defendants are plainly entitled to
qualified immunity here as to the claim that they falsely
arrested the Plaintiff.
The reason:
The Defendants “could have believed,” Hunter, 502 U.S. at 227 --
- and reasonably, see id. --- there was probable cause to think
that the Plaintiff was violating the judge’s no-contact order.
After all, the Plaintiff came near the Doctor, by standing
outside MMA while the Doctor was there. And the Plaintiff
interacted with the Doctor, raising his voice loudly enough to
reach the Doctor’s office.
What this adds up to: the Defendants are entitled to qualified
immunity.
And this conclusion is bolstered by federal case law.
To see the point, look to two cases.

22 That proximity plus interaction counts as “contact” does not
imply that other things (even lesser things) do not count as
contact.
Each concerns factual circumstances at least somewhat analogous
to those here.
And in each of the cases, local police officers made an
allegedly false arrest based on an asserted violation of a
restraining order --- and were granted qualified immunity.
* * *
The stepping off point is Ulrich v. Pope County, 715 F.3d 1054
(8th Cir. 2013).
There, a restraining order barred a man from having “any contact
. . . , direct or indirect,” with his ex-girlfriend or her
children. See id. at 1057.
The man attended a school graduation; the ex-girlfriend and one
of her children were there. See id. The man did not
communicate with them, did not plan to do so, and invited
responding officers to sit beside him to ensure he would not.
See id.
But the officers arrested him for violating the restraining
order and held him for some 90 hours at the county jail. See
id. at 1057–58. The man later sued the officers under
Section 1983 for false arrest. See id. at 1058.
Did the officers have qualified immunity?
Yes, the federal court of appeals held.
No precedential state opinion defined “indirect contact” in the
right context. See id. at 1059–60 & n.5. But some unpublished
opinions held that proximity to a protectee counted as indirect
contact. That, the court explained, was evidence of the
reasonableness of the officers’ interpretation. See id. at
1059–60. The court therefore held that the officers were
objectively reasonable in believing that there was probable
cause to make the arrest. See id. at 1060.
Ulrich was a closer case for qualified immunity than this one.
In Ulrich, no reported state cases shed light on the meaning of
“indirect contact,” the key term at issue. The officers were
operating on a relatively blank slate --- and got qualified
immunity.
Here, reported New Jersey cases stand for the idea that presence
plus interaction --- what the Plaintiff was doing here ---
equals “contact.” See Part II.B.1. That means the Defendants
were operating here against a backdrop of case law that
affirmatively suggested that their arrest of the Plaintiff was
lawful.
If no meaningful guidance from the case law can allow for false
arrest qualified immunity (as in Ulrich), then qualified
immunity is that much more appropriate in cases like this one --
- in which the case law tends to affirmatively imply that the
arrest was lawful.
* * *
Take now another case, Habiger v. City of Fargo, 80 F.3d 289
(8th Cir. 1996).
There, a court enjoined protesters from “obstructing the work of
the persons located at [a medical clinic] by any means ---
including singing, chanting, yelling, shouting, or screaming ---
that substantially interferes with the provision of medical
services.” Id. at 292 (quoting Fargo Women’s Health Org., Inc.
v. Lambs of Christ, No. 91-1953 (Cass Cnty. Dist. Ct. Oct. 28,
1991)).
Officers arrested a protester outside the clinic for violating
the order. See id. at 294.
The protester sued the officers under Section 1983, alleging
that he was arrested without probable cause. See id.
The court of appeals concluded that the officers had qualified
immunity. The officers, the court explained, had to answer a
question: did the protester violate the court order by
substantially interfering with the operations of the facility?
See id. at 295.
“[T]he ‘substantial interference’ standard had yet to be
interpreted.” Id. at 296. But with the protester “shouting at
the top of his voice from a point some” one hundred feet from
the facility, the officer thought that the noise would reach
that far, substantially interfering with operations. Id. at
295.
That was “a reasonable interpretation of the law [an officer] is
obligated to enforce,” and so the officers arguably had probable
cause. See id. at 295–96. That, in turn, gave them qualified
immunity as to the false arrest charge. See id. at 297.
Habiger, like Ulrich, was a closer case than this one for
qualified immunity.
The state law in Habiger did not define the critical term
(“substantial interference”), and officers got qualified
immunity.
In this case, state law does define the critical term
(“contact”), and in a way that arguably seems to affirmatively
provide legal justification for the Defendants’ arrest decision.
If there was qualified immunity in Habiger, as there was, then
it follows there should be qualified immunity here.
C. Two Added Points
The Defendants here are entitled to qualified immunity because
they “could have believed,” Hunter, 502 U.S. at 227, that the
Plaintiff was making forbidden “contact” with the Doctor.
Indeed, the Defendants’ arrest decision may have been
affirmatively lawful under New Jersey law. See Part II.B.1; cf.
Part II.B.2. The Plaintiff, after all, was present where the
Doctor was, and interacted with him (though in a one-sided way).
And that would seem to be enough to establish probable cause for
a N.J.S.A. § 10:6-2 violation.
In any event, the Defendants’ decision to arrest the Plaintiff
was more obviously authorized under the relevant governing law
than the arrest decisions of the officers in Ulrich and Habiger
--- and in those cases, the officers got qualified immunity.
See Part II.B.3.
Two other points strengthen the conclusion that the Defendants
get qualified immunity here.
First, the Plaintiff was required to come forward with “clearly
established law,” a case or a statute to show that the
Defendants’ arrest decision was at odds with New Jersey law.
See Part II.A. The burden was the Plaintiff’s. See id. But he
did not try to carry it.
Second, on the same day as his arrest, a state judicial officer
found probable cause that the Plaintiff had violated the
restraining order. See Motion to Dismiss, Exhibit A, at 1. And
the judicial officer did so based on virtually the same facts
that the officers are said to have known at the time they made
the arrest. See id.
That is a strong signal that the Defendants acted in a
“reasonable” way and therefore are entitled to qualified
immunity. See Marcavage v. Nat’l Park Serv., 666 F.3d 856, 859–
60 (3d Cir. 2012); Schimandle v. Dekalb Cnty. Sheriff’s Off.,
114 F.4th 648, 657 (7th Cir. 2024); Washington v. Napolitano, 29
F.4th 93, 105 (2d Cir. 2022); Hupp v. Cook, 931 F.3d 307, 324
(4th Cir. 2019); Jones v. City of Grand Prairie, 209 F.3d 719
(5th Cir. 2000); see generally Messerschmidt v. Millender, 565
U.S. 535, 546 (2012) (in the context of a seizure made pursuant
to a state judicial warrant, stating “that a neutral magistrate
has issued a warrant is the clearest indication that the
officers acted in an objectively reasonable manner”); Hunter,
502 U.S. at 228 (making a similar point where the state judicial
officer found probable cause after officers arrested man).23
D. The Counterarguments
Against the conclusion that the Defendants are entitled to
qualified immunity, the Plaintiff first offers up a procedural
counterargument: that qualified immunity is inapplicable on a
motion to dismiss. See Opposition Brief at 13–15.
But this is not persuasive.
Courts are required to resolve qualified immunity questions “at
the earliest possible stage in litigation,” Hunter, 502 U.S. at
227 (collecting cases), and that includes on a motion to
dismiss. See Eddy v. V.I. Water & Power Auth., 256 F.3d 204,
210 n.3 (3d Cir. 2001).
The Plaintiff also argues that he actually abided by the
restraining order.

23 State judges are the experts on state law. See generally
Martin v. Waddell’s Lessee, 41 U.S. (16 Pet.) 367, 390 (1842)
(“[T]he state judiciary is presumed best to know its own
law[.]”); accord Moore v. Sims, 442 U.S. 415, 429 (1979); Bell
v. Morrison, 26 U.S. (1 Pet.) 351, 359–60 (1828). And the logic
of the cases cited in the text is apparently this: if an expert
on state law, a state judge, thought that the proffered facts
meant there was probable cause to believe that state law was
violated --- that tends to suggest that the markedly lower
qualified immunity standard, which zeroes in on whether a police
officer “could have believed” there was probable cause that
state law was violated, is also satisfied.
He says that a verbal statement from the judge who issued the
restraining order let him go to MMA, even as it barred him from
contacting the Doctor. See Opposition Brief at 7. And the
Plaintiff further states that the Defendants knew this when they
arrested him. See Complaint ¶¶ 27–28; Letter of May 30, 2025
(ECF 37).
But even assuming arguendo that all of that is accurate, the
analysis does not change.
The argument seems to be that when a person subject to a no-
contact restraining order (like the Plaintiff) interacts with
the protectee (by making his voice heard) --- that does not
actually count as “contact,” provided he (again, here the
Plaintiff) is in a place where he is allowed to be.
But the Plaintiff bears the burden here. See Part II.A.
And he does not explain how his interpretation squares with what
the state judge ordered. The judge made clear that even though
the Plaintiff could go to MMA, he nonetheless could not
“contact” the Doctor. See Complaint, Exhibit B, at 1 (“I’m not
prohibiting you from going to that location. I’m prohibiting you
from having any contact with the [Doctor], either directly or
indirectly.”). This strongly implied that simply being lawfully
in a place did not mean that interacting with the Doctor would
then be allowed.
Moreover, the Plaintiff points to no case or statute that
suggests that his apparent understanding of New Jersey law is
“clearly established.”
And it bears noting that the Plaintiff’s approach is at odds
with everyday restraining-order practices. If person A is
restrained from contacting person B and then calls her, it would
plainly not work for person A to say that he was allowed to make
the call --- because he was in his own living room when he got
on the phone, a place he was allowed to be.
But that is essentially what the Plaintiff says “clearly
established” New Jersey law allowed him to do here --- to
interact with the Doctor, but not to be arrested for
“contact[ing]” him, because at the moment of the contact the
Plaintiff was at MMA, a place he was not forbidden by the judge
from going.
III. Police Supervisors
To this point, the Court has concluded that the Defendants are
entitled to qualified immunity. See Part II.
That leaves the claims against the defendants who were not
involved in arresting the Plaintiff.
These are Chief Suffern and Deputy Chief Loschiavo.
These two defendants also assert qualified immunity. See Motion
to Dismiss at 3, 29–32.
But the legal papers contain no arguments as to the Chief or
Deputy Chief. That makes it hard to say that they might be
entitled to qualified immunity. See, e.g., Duran v. Merline,
923 F. Supp. 2d 702, 725 (D.N.J. 2013) (reaching same conclusion
where officer “has not provided any explanation as to why he is
entitled to such immunity with respect to this claim in
particular”) (cleaned up).
It is perhaps no surprise that the papers are silent as to
defenses that might be pressed by the Chief and/or the Deputy
Chief. The Complaint says nothing about any role they might
have played in the Plaintiff’s arrest; it alleges only that they
held certain senior jobs in the relevant police department. See
Complaint ¶¶ 9–10.
Not having been accused of anything, the police supervisors may
have felt there was little need to say much of anything in order
to get the case against them dismissed. Cf., e.g., Stokes v.
Payson, 2024 WL 2817969, at *2 (D. Del. June 3, 2024); Gorrio v.
Terra, 2023 WL 8373167, at *7 (E.D. Pa. Dec. 4, 2023); Davenport
v. Cumberland Cnty. Pub. Def., 2021 WL 4699203, at *2 (M.D. Pa.
Oct. 7, 2021); Wicks v. Corbett, 2012 WL 4953084, at *2 (M.D.
Pa. Oct. 16, 2012); Carroll v. Allegheny Cnty. Jail, 2011 WL
13579611, at *2 (W.D. Pa. July 27, 2011), report and
recommendation adopted, 2011 WL 13579610 (W.D. Pa. Aug. 17,
2011).
But that is not how it works.
If the Chief and Deputy Chief wish to seek dismissal, they must
meaningfully develop an argument as to why dismissal makes
sense. To this point, they have not tried to do so.
In light of the foregoing, the Court will issue a text order
soliciting the parties’ views as to the appropriate next steps
as to the Chief and the Deputy Chief.
IV. Conclusion
The motion to dismiss is granted (a) on the merits as to Count
VI, see footnote 7, and (b) based on qualified immunity as to
Officer Calderin and Detective Moreno.
IT IS on this 30th day of July, 2025, so ORDERED.
Michael &. Farbiarz, U.S.D.J.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11112425. Public record. Not legal advice.