CARMICHAEL

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

i HONORABLE KAREN M, WILLIAMS

STEVEN CARMICHAEL,

Plaintiff, Civil Action

v. : No, 1:22-cv-5019 (SMW-EAP)

CAMDEN COUNTY POLICE

DEPARTMENT et ai, ! OPINION

Defendants.

Dolores Bojazi William F. Cook

LENTO LAW GROUP P.C. BROWN & CONNERY, LLP

1814 ER 70 360 Haddon Avenue

Suite 321 Westmont NJ, 08108

Cherry Hill, NJ 08003

Counsel for Defendants Camden County

Counsel for Plaintiff Steven Carmichael Police Department, County of Camden,

Chief of Police Gabriel Rodriguez, and

Officer Jesse Zanichelli

WILLIAMS, District Judge:

I. INTRODUCTION

Plaintiff Steven Carmichael (‘Plaintiff’) brings this action against Defendants Camden

County Police Department (“Defendant CCPD”), County of Camden (Camden County), Chief of

Police Gabriel Rodriguez (“Defendant Rodriguez”), and Officer Jesse Zanichelli (“Defendant

Zanichelli”) under 42 U.S.C. § 1983 alleging violations of his Fourth Amendment rights.’ Plaintiff

also brings a claim of Battery against Defendant Zanichelli.

' Plaintiff also brings claims against Camden County, Defendant CCPD, and Defendant Zachinelli under the New

Jersey Civil Rights Act (NICRA). The NJCRA, which is modeled after § 1983, creates a state remedy for civii rights

violations. New Jersey courts routinely find that the state analysis under the NJCRA mirrors the federal analysis

under § 1983. Chapman v. New Jersey, No. 08-4130, 2009 WL 2634888, at *3 (D.N.J. Aug, 25, 2009); Ingram v.

Deptford, 911 F. Supp. 2d 289, 298 (D.NJ. 2012); Killion v, Coffey, 696 Fed, Appx. 76, 77 nl (3d Cir.

2017); Estate of Martin vy. U.S. Marshals Serv, Agents, 649 Fed. Appx. 239, 245 n.4 Gd Cir. 2016). As such, the

Court will extend its analysis of the federal § 1983 claims to Plaintiff's state law claims under the NJCRA as to all

alleged defendants.

Discovery is complete and Defendants now move for summary judgment (ECF No. 82)

under Federal Rule of Civil Procedure 56. The Court has considered the parties’ written

submissions, finds oral argument unnecessary, and decides the motion on the papers. For the

reasons set forth below, Plaintiff's motion is DENIED IN PART AND GRANTED IN PART.

Il. BACKGROUND

The events that give rise to this suit occurred at the Camden Waterfront Park (“Waterfront

Park”) in August 2020. The Waterfront Park is a public park that is subject to a municipal

ordinance, which provides that “[n]o person shall be permitted upon the lands and premises of any

park or park property located in the City of Camden from the hours of 9:00 p.m. to 7:00 a.m.”

(SUMF 14). As such, the Camden County Police Department (““CCPD”) assigns officers to clear

people out of the Waterfront Park after dusk. GUMF 15—16). Individuals who remain in the

park after hours are subject to issuance of a municipal summons. (Id).

Stephen Carmichael (“Plaintiff’) was in the Waterfront Park on August 19, 2020, when

CCPD officers cleared the park out pursuant to department directives. (ECF No. 82-12 at p. 7).?

At that time, Plaintiff asked officers, “how is the park closed and I’m looking at other people

walking, they’re walking their dogs, running and riding their bikes and stuff, how is the park closed

when I’m looking at these people in the park.” (7d), The officer explained that the park was closed

from dusk until dawn. Ud). Plaintiff told the officer to “tell whoever the chief was or whoever

keeps sending him down here to go F themselves, if they all want to keep on coming down here

and harassing us.” (/d).? Despite his colorful response, on the night of August 19, 2020, Plaintiff

* Plaintiff’s Deposition at p. 23:11-15

3 Plaintiff's Deposition at p. 23:24-25, 24:1-2,

complied with the officer’s request and left the Waterfront Park without further incident. (/d at p.

The very next night, on August 20, 2020, at approximately 11:00 p.m., CCPD Officer Jesse

Zanichelli (“Defendant Zanichelli”) conducted a check at the Waterfront Park, SGQUMF 4f 1, 21),

and observed a group of approximately 25 to 30 individuals in the Waterfront Park after dark.

(SUMF § 13; {§ 22-23). He then activated the lights and siren on his patrol car and used the public

address system (PA system) to announce that the park was closed and that all occupants were

required to leave. (SUMEF { 13; ff] 22-23).

Plaintiff was in the Waterfront Park when Defendant Zanichelli drove through making the

announcement for occupants to depart. (SUMF { 22). Plaintiff heard Defendant Zanichelli’s

announcements over the PA system but did not immediately leave the park, (SUMF § 22), At that

point, Defendant Zanichelli got out of his patrol car to confront Plaintiff directly. (QSUMF { 24).

Defendant Zanichelli’s body worn camera (“BWC”) shows that he approached Piaintiff,

who was seated in a camping chair at the edge of the Waterfront Park. (BWC at 3:29). Defendant

Zanichelli told Plaintiff that he was being stopped because he did not leave the Waterfront Park

after Defendant Zanichelli had made multiple announcements. (BWC at 3:30). Plaintiff told

Defendant Zanichelli not to touch him multiple times and then said, “Give me a citation, write it

up, write it up, write the citation up.” Ud). Defendant Zanichelli replied, “Okay, I need your

information to write the citation up. What’s your name?” (/d). Plaintiff responded, “What’s the

citation?” Ud), Defendant Zanichelli said, ““You’re trespassing, because you won’ t leave the park.”

Plaintiff asked, “What, on city property?” Ud). Plaintiff then stood up, picked up his chair

and said, “Alright, I’m gonna walk down there.” (/d), Plaintiff began to walk away and ultimately

‘Plaintiff's Deposition at p. 24-26.

left the park and began walking on the public sidewalk. Gd). At that point Defendant Zanichelli

replied, “No, no, no, no, you’re not free to go right now, you’re being detained and if you leave,

you'll be arrested.” (/d).

Defendant Zanichelli told Plaintiff multiple times that the interaction was a “compelled

stop”, that he was not free to leave, and asked for Plaintiff's identification. (/d). Plaintiff continued

to walk away from Defendant Zanichelli, asked what a compelled stop was, asked what he would

be arrested for, and told Defendant Zanichelli not to touch him. Ud).

After about a minute of this back and forth, Defendant Zanichelli pulled out his hand cuffs

and attempted to grab Plaintiff's hand. (BWC at 3:32). Plaintiff said, “Yo do not touch me, man

do not touch me sir, do not touch me.” (/d). Defendant Zanichelli told Plaintiff to put his hands

behind his back, but Plaintiff ignored the command and continued to tell Defendant not to touch

him saying, “Do not grab me or touch me, imma get a law suit.” (/d). Defendant Zanichelli

responded, “Turn around and put your hands behind your back.” Ud), For the next two minutes

Defendant Zanichelli followed Plaintiff around the street attempting to grab and get control of

Plaintiffs arm while Plaintiff backed away with his hands raised, telling Defendant Zanichelli not

to touch him. (/d).

A physical struggle then ensued as Defendant Zanichelli swiftly grabbed Plaintiff's arm

and attempted to place him in handcuffs, (SUMF Jf 26(cc), (kk), (00)). Defendant Zanichell

pinned Plaintiff between himself and Plaintiffs car while attempting to gain control of Plaintiff's

arms. (BWC at 3:34). During the struggle, Defendant Zanichelli’s BWC became dislodged from

his uniform, fell to the ground, and was kicked under Plaintiff's car. (SUMF { 27). At some point

during the struggle CCPD Officer Peter Nguyen arrived on scene, ran from his car to where

Plaintiff and Defendant Zanichelli were struggling, grabbed Plaintiff's arm and put it behind his

back which allowed Defendant Zanichelli to apply the handcuffs, (SSUMF Jf 28-29(c); Nguyen

BWC at 3:34).

After Plaintiff was handcuffed, he complained that the handcuffs were too tight and asked

for them to be loosened, which Defendant Zanichelli did not acknowledge. (Nguyen BWC at

3:35:08). Plaintiff was then seated on the curb. (SUMF 4 13; § 29 (g)). At that point at least five

police cars and five police officers had arrived at the scene, (Nguyen BWC at 3:35). After a few

minutes, Plaintiff complained again that the handcuffs were too tight and asked for them to be

loosened, (Nguyen BWC at 3:36:46), Another officer then adjusted the handcuffs. (Nguyen BWC

at 3:36:53).

Plaintiff asked if he was being arrested and why. (Nguyen BWC at 3:37:40). An officer

explained that he was not being arrested, he was being detained, (Nguyen BWC at 3:37:44), At

that point, with Plaintiff handcuffed, sitting on the curb, and surrounded by multiple police

officers, none of whom seemed to know why he was being detained, an officer stated, “Mr.

Carmichael, listen, there’s a municipal ordinance, you’re not allowed to be in the park after hours.

So we get told by our superiors to tell everyone to clear out. If you don’t clear out you are liable

to be summonsed.” (Nguyen BWC at 3:37:48-3:38:07). Plaintiff cut the officer off and indicated

that he understood. (Nguyen BWC at 3:38:08).

Over the next few minutes Plaintiff was told multiple times by multiple officers that he

was not under arrest, that he was being detained. (Nguyen BWC at 3:40-3:42). Plaintiff then asked

for the handcuffs to be removed multiple times and none of the officers acknowledged the request.

(Nguyen BWC at 3:39-3:40). He asked for the officers to “please stop wasting [his] time,” write

him the citation and Jet him go. (Nguyen BWC at 3:41). After asking multiple times Plaintiff said,

“Can you just write the citation or whatever you wanna write please?” (Nguyen BWC at 3:41).

One of the officers responded, ““Now you’re at the speed of government. You gotta wait for us to

do what we gotta do, you gotta stand by okay.” (Nguyen BWC at 3:42). The same officer then

asked, “Is there anything else — do you need medical attention or anything like that? Are you good

right now? Mr. Carmichael, are you okay right now?” (SUMF { 29 (p)), Plaintiff did not respond

to the officer’s inquiries and just shook his head. (Nguyen BWC at 3:42), .

A medical mask was placed on Plaintiff's face, and he was transported to CCPD central

booking in Defendant Zanichelli’s patrol vehicle. (SUMF; {J 30(b)-(d)). Upon arrival at central

booking, Plaintiff stated that he could not breathe while wearing a COVID-19 mask. (SUMF 4

30(f). Defendant Zanichelli opened the rear door and lowered the mask. (SUMF { 30(H-()).

Plaintiff was asked whether he needed medical attention. Plaintiff ultimately stated, “At this

moment, no.” (SUMF 4 30(k)—()).

Defendant Zanichelli completed a “Use of Force Report” wherein he indicated that he used

a “Compliance hold” as well as his “Hands/fists” towards Plaintiff. (ECF No. 82-17 at p. 2). It is

CCPD’s policy that whenever an officer is involved in a use of force incident a supervising

sergeant must review the incident, including the BWC footage, and create a report. (QSUMF 4 33).

Sergeant Trocchio reviewed the incident and concluded that it did not warrant any disciplinary

action or further training, (ECF No. 82-18 at p, 2).

Internal Affairs conducted a review of the incident. (SUMF { 38). Internal Affairs

Detective Bagby concluded that no disciplinary action was warranted, however, Detective Bagby

also indicated that there was a need for additional training. (ECF No. 82-19 at p. 2).° The report

stated, “Officer Zanichelli should have allowed the male to leave from the park, which was the

ultimate objective.” (/d).

> Defense Exhibit 15, Sergeant Trocchio’s Use of Force Administrative Review Report at p. 2.

® Defense Exhibit 16, Internal Affairs Detective Bagby’s Use of Force Administrative Review Report at p. 2.

The watch commander, Lieutenant Nieves, also reviewed the incident and created a report.

(SUMF ¢ 41). Lieutenant Nieves’ Use of Force report indicated that Defendant Zanichelli would

benefit from additional training. (ECF No. 82-20 at p. 3).’ The report stated, “Officer Zanichelli

seemed to not be really clear on what infractions he should be engaging people for (minor vs.

major). The male was passively resisting his attempts to leave the park, but relented and then

proceeded to leave. Then, Officer Zanichelli told him he couldn’t leave because now he was being

detained. In this case this was a minor municipal ordinance violation and he should have

considered letting the male walk away.” (fd). The report indicated that Lieutenant Nieves had

submitted a request for additional training. (/d).

Sergeant Trocchio submitted a memorandum to Professional Development Training on

August 20, 2020, indicating that he had conducted additional training with Defendant Zanichelli

regarding the alternative options available under the circumstances. (ECF No. 82-21 at p. 2).°

As a result of the interaction, Plaintiff was charged with resisting arrest and cited for

violating the municipal park ordinance. (SUMF 46). On December 28, 2020, Plaintiff pled guilty

in Municipal Court to a reduced municipal ordinance violation of improper behavior and was

ordered to pay a fine and court costs, (SUMP § 47).

Wl STANDARD OF REVIEW

Motion for Summary Judgment

Summary judgment is appropriate “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.” Fed. R. Civ. P.

56(a). “A fact is ‘material’ under Rule 56 if its existence or nonexistence might impact the

7 Defense Exhibit 17, Lieutenant Nieves’ Use of Force Command Review at p. 3.

8 Defense Exhibit 18, Sergeant Trocchio’s Memorandum re Additional Training at p. 2.

outcome of the suit under the applicable substantive law.” Santini v. Fuentes, 795 F.3d 410, 416

(3d Cir. 2015) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)); see also MS.

by & through Hail v. Susquehanna Twp, Sch, Dist., 969 F.3d 120, 125 3d Cir. 2020) (“A fact is

material if—taken as true—it would affect the outcome of the case under governing law.”),

Moreover, “[a] dispute over a material fact is ‘genuine’ if ‘a reasonable jury could return a verdict

for the nonmoving party.’” Santini, 795 F.3d at 416 (quoting Anderson, 477 U.S. at 248).

The moving party bears the burden of identifying portions of the record that establish the

absence of a genuine issue of material fact. /d. (citing Celofex Corp. v. Catrett, 477 U.S. 317, 323

(1986)). The burden then “shifts to the nonmoving party to go beyond the pleadings and come

forward with specific facts showing that there is a genuine issue for trial.” Jd. (quoting Matsushita

Elec. Indus. Co. vy, Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal quotations omitted)),

To survive a motion for summary judgment, the nonmoving party must identify specific facts and

affirmative evidence that contradict those offered by the moving party. Anderson, 477 US. at

256-57, “A nonmoving party may not ‘rest upon mere allegations, general denials or. . . vague

statements ...’” Trap Rock Indus., Inc. v. Local 825, Int’l Union of Operating Eng’rs, 982 F.2d

884, 890 (3d Cir. 1992) (quoting Quiroga vy. Hasbro, Inc., 934 F.2d 497, 500 (3d Cir. 1991)).

When considering a motion for summary judgment, the court views the facts and all reasonable

inferences drawn from the facts in the light most favorable to the nonmoving party. Méatsushita

Elec. Indus. Co,, 475 U.S. at 587,

IV. DISCUSSION

Defendants move for summary judgment on all counts, requesting the Court dismiss the

Amended Complaint in its entirety with prejudice.

A. Excessive Force

Plaintiff brings a claim against Defendant Zanichelli for violations of his Fourth

Amendment right to be free from the use of excessive force in the course of a personal seizure.

Plaintiff argues that the Third Circuit mandates that the Court apply the Fourth Amendment’s

objective reasonableness test pursuant to Graham v. Connor 490 U.S. 386 (1989) and Santini, 795

F.3d. (ECF No. 87 at p. 11).? Plaintiff argues that when the Court applies the Graham-Santini test,

summary judgment is inappropriate because when the evidence is viewed in a light most favorable

to Plaintiff, each factor weighs in his favor. (/d. at p. 14).'!° Defendant Zanichelli argues that Count

II should be dismissed with prejudice because the objective footage on his BWC as well as the

supplemented footage from Officer Nguyen’s BWC, contradicts Plaintiffs version of events

showing no slamming, punching, kicking, or other excessive force. (ECF No. 82-1 at p. 29).!!

Further, Defendant Zanichelli argues that he is entitled to qualified immunity. (/d, at p. 25).

1. Fourth Amendment Violation

The purpose of the Fourth Amendment of the United States Constitution is to “safeguard

the...security of individuals against arbitrary invasions by governmental officials.” Camara v.

Mun. Ct. of City & Cnty. of San Francisco, 387 U.S. 523, 528 (1967). Specifically, the Fourth

Amendment protects a persons’ tight to be “secure in their persons...against

unreasonable.,.seizures.” U.S. Const. amend. IV. As such, to establish a Fourth Amendment

violation as the result of excessive force, a plaintiff must first show that seizure occurred, and then

that, under the specific circumstances, the seizure itself was unreasonable or that it was conducted

in an unreasonable manner. Lamont v. New Jersey, 637 F.3d 177, 183 Gd Cir, 2011). (citing

Plaintiff's Brief in Opposition to Motion for Summary Judgment at p. 7.

Br. at p, 18,

'! Defendants’ Brief in Support of their Motion for Summary Judgment at p. 20.

Brower v. County of Inyo, 489 U.S, 593, 599, (1989); Graham v. Connor, 490 U.S. 386, 395-96,

(1989)).

Under the Fourth Amendment, a "seizure" occurs when a law enforcement officer, by

means of physical force or show of authority, in some way restrains the liberty of a citizen. Terry

vy. Ohio, 392 U.S. 1, 19 n.16, (1968). To determine whether a personal seizure occurred, courts

examine whether police conduct would communicate to a reasonable person that they were not at

liberty to ignore the police presence and go about their business. United State v. Wrensford, 866

F.3d 76, 85 Gd Cir. 2017). (citing Florida vy. Royer, 460 U.S. 491, 507-08 (1983)). This includes

“whenever an officer restrains the freedom of a person to walk away.” Ely, City of Pittsburgh, 975

F.3d 327, 336 (3d Cir. 2020)(quotations omitted).

The reasonableness of a seizure is an objective question that “requires a careful balancing

of the nature and quality of the intrusion on the individual’s Fourth Amendment interests against

the countervailing governmental interests at stake.” Graham, 490 U.S. at 396 (cleaned up), The

objective reasonableness test is a case specific inquiry that requires the court to examine “the

severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the

officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.”

Id. (citing Tennessee vy. Garner, 471 U.S. 1, 8-9 (1985)),

Further, reasonableness is evaluated “from the perspective of a reasonable officer on the

scene, rather than with the 20/20 vision of hindsight.” Graham 490 U.S. at 396, In the context of

the use of force, “the question is whether the officers’ actions [were] ‘objectively reasonable’ in

light of the facts and circumstances confronting them.” Jd. at 397.

In this case, there is no dispute that Plaintiff was seized. Therefore, the only question to

resolve is whether or not the force used was objectively reasonable or not. The Court will engage

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an analysis of the Graham factors to determine if, as a matter of law, the force Defendant Zanichelli

used was reasonable.

The first Graham factor considers the severity of the crime. In this instance the Plaintiff

was alleged to have violated a municipal ordinance by being in the Waterfront Park after dark,

Violation of this ordinance may result in a citation or summons. It is undisputed that Plaintiff's

behavior constituted a minor, victimless, nonviolent violation that at best should have resulted in

a fine, Although Plaintiff was charged with resisting arrest, in New Jersey resisting arrest is a

“disorderly persons offense” which “carr[ies] less restrictive punishments upon conviction.”

Santini, 795 F.3d at 419. Plaintiff ultimately pleaded guilty in Municipal Court to an even lesser

charge of improper behavior. Given the minor nature of the violations alleged, charged, and

ultimately convicted, a reasonable jury could find that this factor weighs in Plaintiff's favor.

The second Graham factor considers whether Plaintiff “posed an imminent threat to the

safety of the police or others in the vicinity.” Jd. Here, Plaintiff was verbally confrontational and

did not initially comply with Defendant Zanichelli’s verbal commands. On the other hand, Plaintiff

was unarmed, did not make any verbal threats, avoided making any physical contact with

Defendant Zanichelli, and in fact expressly told Defendant Zanichelli multiple times not to touch

him and to keep distance between them. Moreover, Plaintiff's hands remained visible and raised

for the entire interaction, one hand holding a cell phone and purportedly recording the interaction.”

Nothing in the record indicates that Plaintiff was a danger to Defendant Zanichelli, to any of the

? Under N.LS.A. § 40:49-5 the sentence for violation of a municipal ordinance may include “one or more of the

following: imprisonment in the county jail or in any place provided by the municipality for the detention of

prisoners, for any term not exceeding 90 days; or by a fine not exceeding $2,000; or by a period of community

service not exceeding 90 days.”

The Court was not provided, and thus has not reviewed, any video footage of the interaction from Plaintiff's cell

phone.

il

at least five responding officers, or to any bystanders,'* As such, with all inferences drawn in

Plaintiffs favor as they must be, a reasonable jury could find that this factor weighs in Plaintiff's

favor.

The third Graham factor examines whether Plaintiff attempted to actively resist or flee.

Nothing indicates that Plaintiff attempted to flee. Plaintiff was charged with resisting arrest but

was never convicted of that charge. The objective evidence shows that Plaintiff walked away from

Defendant Zanichelli, who then advised Plaintiff that he was not free to walk away because he was

being detained. After that, Plaintiff continuously backed away from Defendant Zanichelli,

attempted to keep distance between them, and told Defendant Zanichelli not to touch him. Plaintiff

did not comply with commands to place his hands behind his back and Defendant Zanichelli

eventually grabbed Plaintiffs arm and used force to restrain Plaintiff in handcuffs. When

Defendant Zanichelli grabbed Plaintiff's arm, Plaintiff appeared to struggle to try to get away from

Defendant Zanichelli, which is indicative of resisting arrest. When construing the facts in

Plaintiff's favor, this factor “is somewhat inconclusive” because while there is evidence that

Plaintiff resisted arrest, “his resistance was not violent,” id., and, as noted by Lieutenant Nieves,

any resistance was passive. !° (ECF No, 82-20 at p. 3)

Courts analyze the Graham factors'® in order to “weigh the invasion on [Plaintiffs]

There is no evidence that there were bystanders in the area, however, the Court notes that even if there had been,

none of Plaintiff's actions indicated that he wouid have been a danger to them.

'5 The Court is strained to conclude that Plaintiff resisted arrest based on the conduct that has been described.

'6 Tn Sharrar v, Felsing, the Third Circuit examined additional factors that influence the balancing of interests.

These factors included: “[4] the possibility that the persons subject to the police action are themselves violent or

dangerous, [5] the duration of the action, [6] whether the action takes place in the context of effecting an arrest, [7]

the possibility that the suspect may be armed, and [8] the number of persons with whom the police officers must

contend at one time.” Sharrar v. Felsing, 128 F.3d 810, 822 3d Cir. 1997), (brackets added). A reasonable jury

could find that these factors weigh in favor of Plaintiff as well. During the interaction with Defendant Zanichelli, the

Plaintiff was alone, unarmed, and nonviolent. The interaction was not initiated to effect an arrest, and by the time

Defendant Zanichelli physically engaged Plaintiff, multiple officers began responding to the scene, with at least five

patrol cars responding and at least five officers present at the scene.

12

individual rights against the interest of the [Defendants].” /d. Based on Plaintiff's version of the

facts, the “balance tips in his favor.” Jd. When drawing inferences in Plaintiff’s favor, as the Court

must, the intrusion on Plaintiff's right was not insignificant, As a consequence of violating a minor

municipal ordinance and refusing to provide identification, Plaintiff was grabbed, slammed down

and pinned against a car, handcuffed, and detained, despite being unarmed, nonviolent, and

evenutally attempting to comply with Defendant Zanichelli’s initial order to vacate the park. In

contrast, there was “limited justification for the government’s actions” to even warrant detention.

Id. Plaintiff was alleged to have violated a minor municipal ordinance, did not threaten violence,

did not engage in any violent act, was unarmed, and was alone. Further, Plaintiffs willingness to

ultimately comply with Defendant Zanicheili’s directive to leave the Waterfront Park was thwarted

by Defendant Zanichelli himself, who chose to escalate the interaction from giving a directive, to

detention, to arrest merely because Plaintiff was confrontational and antagonistic.

A reasonable jury could find that Defendant Zanichelli’s use of force—handeuffing

Plaintiff—under the circumstances, violated Plaintiff's Fourth Amendment rights,

2. Qualified Immunity

Defendant Zanichelli argues that he is entitled to qualified immunity with regard to the

claim of excessive force because, as a matter of law, Plaintiff cannot establish that Defendant

Zanichelli violated Plaintiffs Fourth Amendment rights by using excessive force.

Qualified immunity shields government officials from civil liability for money damages if

“their conduct does not violate clearly established statutory or constitutional rights of which a

reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The

doctrine of qualified immunity arose from the tension that exists between “the need to hold public

officials accountable when they exercise power irresponsibly and the need to shield officials from

13

harassment, distraction, and lability when they perform their duties reasonably.” Pearson v.

Callahan, 555 U.S. 223, 231 (2009). As such, qualified immunity “provides ample protection to

all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475

U.S. 335, 341 (1986).

The Supreme Court has established a two-prong framework under which courts analyze

whether a government official is entitled to qualified immunity. Pearson, 555 U.S. at 232. The

court must determine whether the plaintiff has established a violation of a constitutional right and

if that constitutional right was “clearly established” at the time of the defendant’s alleged

misconduct. /d. If the Court determines that the plaintiffs constitutional right was violated and

that the right was clearly established, then the government official is not entitled to qualified

immunity. However, if the Court determines either that there was no constitutional violation or

that the constitutional right was not clearly established, then the government official is entitled to

qualified immunity.

While in days past the Supreme Court required the lower courts to apply the qualified

immunity analysis by rigidly adhering to the proscribed sequence in its analysis, the Supreme

Court has acknowledged that there is a benefit to allowing flexibility when courts are required to

engage a case specific analysis to determine difficult legal questions. See Jd. at 236-38.

Accordingly, courts are permitted to begin the analysis with whichever prong best serves the case.

id,

Since this Court has determined supra that there are genuine disputes of material fact

regarding whether Defendant Zanichelli’s use of force was excessive or not, Plaintiff has

sufficiently established a constitutional violation for the purposes of the qualified immunity

analysis. Therefore, the Court turns to whether Plaintiffs right was clearly established.

14

Defendant Zanichelli’s assertion that he is entitled to qualified immunity as to Plaintiffs

excessive force claim primarily rests on the argument that there was no constitutional violation,

party asserting the affirmative defense of qualified immunity bears the burden of persuasion

on both prongs at summary judgment.” Adack v. Yost, 63 F.4th 211, 227 3d Cir, 2023) (cleaned

up). This means that the defendant must show either “that there was no genuine dispute of material

fact to refute their contention that they did not violate [Plaintiffs] constitutional rights as he

asserted them, or show that reasonable officers could not have known that their conduct constituted

such a violation when they engaged in it.” Halsey v. Pfeiffer, 750 F.3d 273, 288 Gd Cir. 2014). If

the defendant fails on the first prong, he is “only entitled to summary judgment if [he] can bear the

burden of showing on the second prong, that reasonable officers could not have known that their

actions violated clearly established law.” Mack, 63 F.4th at 227.

Here, Defendant Zanichelli did not carry that burden. Defendant’s cursory assertion that,

“ldjefendants have clearly met their burden based on the objective evidence that Zanichelli was

not plainly incompetent or knowingly violated the law, nor would a reasonable officer clearly

believe the conduct was unlawful,” is not enough to establish, as a matter of law, that Plaintiffs

right was not clearly established.

On the other hand, Plaintiff framed his right stating that “[t]he right to be free from

excessive force during a nonviolent encounter is well-established.” (ECF No. 87 at p. 17). Further,

Plaintiff argued that “{a] reasonable officer would have known that escalating a civil ordinance

violation into a physical arrest without a clear threat or resistance violates the Fourth Amendment.”

(id). However, Plaintiff provides no case law at all, let alone precedential case law, to support his

assertion that his right was clearly established.

Because neither party has meaningfully nor adequately argued whether Plaintiff's right was

15

clearly established, the Court must sua sponte address this issue because “while issues of fact may

preclude a definitive finding on the question of whether the plaintiffs rights have been violated,

the court must nonetheless decide whether the right at issue was clearly established. Failure to do

so is error.” Spady v. Bethlehem Area Sch. Dist., 800 F.3d 633, 637 n. 4 Gd Cir. 2015). □

a. Whether Plaintiff’s Right was Clearly Established

A right is clearly established if “[t]he contours of the right [are] sufficiently clear that a

reasonable official would understand that what he is doing violates that right.” Anderson vy.

Creighton, 483 U.S. 635, 640 (1987). Additionally, “in the light of pre-existing law the

unlawfulness [of the challenged actions] must be apparent.” Hope v. Pelzer, 536 U.S. 730, 739

(2002). Therefore, “existing precedent must have placed the statutory or constitutional question

confronted by the official beyond debate.” Phumhojfv. Rickard, 572 U.S. 765, 779 (2014), (cleaned

up). This precedential requirement mandates that “the rule must be settled law, which means it is

dictated by controlling authority or a robust consensus of cases of persuasive authority.” D.C. v.

Wesby, 583 U.S. 48, 63 (2018). (cleaned up). Accordingly, courts in the Third Circuit “look first

for applicable Supreme Court precedent. If none exists, [courts] consider whether there is a case

of controlling authority in [the Third Circuit] or a robust consensus of cases of persuasive authority

in the Courts of Appeals.” New Jersey Chinese Cmty. Ctr. vy. McAleer, No. CV 21-08320 (GC)

(RLS), 2025 WL 1564869, at *9 (D.N.J. June 3, 2025) (citing Porter v. Pa. Dep't of Corr., 974

F.3d 431, 449 Gd Cir, 2020)).

Further, a clearly established right must be properly framed with the appropriate level of

specificity. Mack, 63 F Ath at 228. The right cannot be defined “at a high level of generality”

because the relevant question is whether the officer “acted reasonably in the particular

circumstances that he or she face[d].” Adcdleer, 2025 WL 1564869 at *9. The purpose of the

16

clearly established prong is to ensure that officers have “‘fair warning’ that [their] conduct

deprived [their] victim of a constitutional right.” Hope, 536 U.S. at 740. As such, “i]t is essential

to begin by “fram|[ing] the right ‘in light of the specific context of the case,’ with all reasonable

inferences drawn in the nonmovant’s favor.” Mack, 63 F.4" at 228, The Third Circuit has “adopted

a broad view of what constitutes an established right of which a reasonable person would have

known.” Kopec v. Tate, 361 F.3d 772, 778 (3d Cir. 2004) (quoting Burns vy. County of

Cambria, 971 F.2d 1015, 1024 Gd Cir.1992)). As such, a right may be clearly established even if

there is not “precise factual correspondence” between cases. /d.

First, the Court must frame the contours of the right by defining the specific context of the

case. See Spady, 800 F.3d at 638. Here, the specific context involves an unarmed individual who

remained in a public park after hours, in violation of a municipal ordinance. After a law

enfercement officer issued a general directive for all occupants to leave the park, the individual

did not immediately comply and engaged the officer in a verbally confrontational manner,

However, he did not make any threats, nor did he display a weapon or engage in any violent or

physically threatening conduct. Further, his hands remained visible and raised throughout the

encounter. When he relented and attempted to comply with the officer’s order, the officer stated

that he was no longer free to leave, seized him, placed him in handcuffs, and charged him with

resisting arrest. □

Next, the Court must determine the specific right at issue. Jd. In this case, the specific

constitutional right under the Fourth Amendment in this context is the right of Plaintiff to be free

from the unreasonable use of force in the course of a personal seizure that resulted from police

interaction where Plaintiff's response to an officer’s verbal directive was confrontational and

noncompliant, but wherein Plaintiff was unarmed, nonviolent, nonthreatening, did not flee, and

17

the law that he was alleged to have violated was a minor, victimless, nonviolent, lower level

violation. For the purposes of qualified immunity, the question is “whether the law in this context

was so well-established that it would have been apparent to a reasonable [officer]” that the level

of force used constituted unreasonable force in violation of the man’s Fourth Amendment right.

Spady, 800 F.3d at 638-39. The Court finds that Plaintiff's right was clearly established.

In El v. City of Pittsburgh, the Third Circuit held, based on a consensus of persuasive

authority from our sister Circuits, that “an unarmed individual who is not suspected of a serious

crime—including one who is verbally uncooperative or passively resists the police—has the right

not to be subjected to physical force such as being grabbed, dragged, or taken down.” E/ v. City of

Pittsburgh, 975 F.3d 327, 340 (3d Cir. 2020), In this case, Plaintiff, who was unarmed and

nonviolent, was verbally confrontational and refused to provide his identification after being

approached about a municipal ordinance. Plaintiff was then subjected to physical force by being

erabbed, slammed down and pinned against a car, handcuffed, and detained.

Admittedly, #/ was published on September 16, 2020, which was twenty-seven days after

the incident between Plaintiff and Defendant Zanichelli, which means that Defendant Zanichelli

was not bound by this holding at the time of the events that give rise to this case. Despite that, the

holding in £/ is still noteworthy because the Third Circuit determined that this right was clearly

established based on an analysis of persuasive Circuit authority that predates the events in this

case. Id, at 339-40. Specifically, the Third Circuit found that the specific right was clearly

established based on Deville v. Marcantel, 567 F.3d 156, 161 (Sth Cir. 2009),'7 Shreve v.

17 «(T]he plaintiff was pulled over for speeding. She said she was following the speed limit, swore, refused to get out

of her car, and rolied up her window. Officers smashed the window, pulled her out of the car, threw her up against it,

and handcuffed her. The district court granted summary judgment to the officers on the plaintiff's § 1983 excessive

force claim based on qualified immunity, and the Fifth Circuit reversed.” #/, 975 F.3d at 339. (citations omitted).

18

Jessamine County Fiscal Court, 453 F.3d 681, 683-84 (6th Cir. 2006),'® Montoya v. City of

Flandreau, 669 F.3d 867, 869 (8th Cir. 2012),’? and Thornton v. City of Macon, 132 F.3d 1395,

1398 (11th Cir, 1998),”°

In addition to the consensus of persuasive authority recognizing that “an unarmed

individual who is not suspected of a serious crime—including one who is verbally uncooperative

or passively resists the police—has the right not to be subjected to physical force such as being

grabbed, dragged, or taken down,” 975 F.3d at 340, the Third Circuit has expressly held that

“the right of an arrestee to be free from the use of excessive force in the course of his handcuffing”

is clearly established, particularly where the officer “faced rather benign circumstances.” Kopec,

361 F.3d at 778. In Kopec, an officer responded to an anonymous call that the plaintiff and his

girlfriend were trespassing on a frozen lake. Jd. at 774. Despite initially complying with the

officer’s directive to get off the lake, the plaintiff refused to provide identifying information and

instructed his girlfriend to do the same. Jd. After requesting the information multiple times, the

g q g

officer became annoyed and arrested and handcuffed plaintiff for disorderly conduct. /d. Plaintiff

complained that the handcuffs were too tight and requested that they be loosened multiple times.

18 “TT The police went to the plaintiff's home to execute an arrest warrant for a misdemeanor, but she hid in a closet

and disobeyed orders to come out. The officers pepper sprayed her, and when she refused to present her hands for

cuffs, they struck her with a stick and repeatedly took a knee to her back. The district court granted summary

judgment to the officers, but the Sixth Circuit reversed, holding that they were not entitled to qualified immunity.”

El, 975 F.3d at 339. (citations omitted).

9 lolice were called to a home where a man and woman were arguing, The woman “raised her right hand ina fist

and took a step forward toward [the man].” The officers attempted to handcuff her, and when she resisted, swept her

leg from under her so that she fell to the ground. The plaintiff broke her leg in the fall, The district court granted

summary judgment to the officer who swept the plaintiff's leg, concluding that he was entitled to qualified

immunity, The Eighth Circuit reversed.” E/, 975 F.3d at 339.

20 “T A] woman called the police to retrieve a mattress from the apartment of a man with whom she once lived. The

man refused to return the mattress and told the police to leave. The police persuaded him to open the door and then

“charged into the apartmentf,] .... threw [him] to the floor, cuffed his hands behind his back, picked him up by his

arms, dragged him outside and shoved him inte a police car,” His bystanding friend was treated similarly, The

district court denied the officers’ summary judgment motions, ruling that they were not entitled to qualified

immunity. The Eleventh Circuit affirmed.” Ei, 975 F.3d at 339-40. (citations omitted).

19

The officer ignored the request for approximately ten minutes while the plaintiff's pain escalated.

Here, Plaintiff was suspected only of a minor violation and, while verbally confrontational

and noncompliant with commands to provide identification, was unarmed, nonviolent, and posed

no physical threat. Nonetheless, after advising Plaintiff that he was no longer free to leave,

Defendant Zanichelli used physical force to restrain and handcuff him, including grabbing his arm,

pinning him against a vehicle, and applying handcuffs in a manner Plaintiff complained caused

pain. While Defendant Zanichelli argues that the BWC footage directly contradicts Plaintiffs

account of the incident, the Court, having extensively reviewed the footage, disagrees. During the

altercation with Plaintiff, Defendant Zanichelli’s BWC became dislodged and was kicked under a

car. Before it was kicked under the car, the footage shows Defendant Zanichelli pushing Plaintiff

up against his car, pinning him there, and struggling to pull Plaintiffs hands behind his back,

Defendant Zanichelli provided additional BWC footage from Officer Nguyen to supplement the

view of the interaction, however Officer Nguyen’s BWC footage is not the picture of clarity the

Defendant contends it is. Officer Nguyen arrived on the scene, immediately ran to help Defendant

Zanichelli, and became involved in the altercation with Plaintiff, His BWC footage was largely

obstructed throughout the interaction such that the Court could not determine, as a matter of law,

that Plaintiff was not slammed down on the car with unreasonable force.

Given the factual disputes that remain regarding whether Plaintiffs constitutional right was

violated, and having determined that Plaintiff's right was clearly established, the Court cannot, at

this juncture, find that Defendant Zanichelli is entitled to qualified immunity as to his use of force.

Therefore, the Defendants’ motion for summary judgment as to Count II is DENIED.

B. Malicious Prosecution and False Arrest

20

Plaintiff also brings claims for Unlawful Arrest (Count I) and Malicious Prosecution

(Count IID) against Defendant Zanichelli, Defendant Zanichelli argues that these claims are both

barred by Heck v. Humphrey. Plaintiff does not substantively rebut this assertion.

It is well established that when a plaintiff “seeks damages in a § 1983 suit, the district court

must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity

of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can

demonstrate that the conviction or sentence has already been invalidated,” Heck v. Humphrey, 512

U.S. 477, 487 (1994). Courts in the Third Circuit have found that pleading guilty to a charge, even

a lesser one, precludes a plaintiff from bringing a § 1983 claim for false arrest or malicious

prosecution. Walker vy. Clearfield Cnty, Dist. Att'y, 413 F. App’x 481, 483 (3d Cir. 2011). (hoiding

that “a guilty plea—even one for a lesser offense-—does not permit a later assertion of no probable

cause.”); AdeGann v. Collingswood Police Dep’t, No. CIV, 10-3458 NLH/KMW, 2012 WL

6568397, at *10 (D.N.J. Dec. 17, 2012) (“even assuming that Plaintiff could prove the absence of

probable cause, his claims for false arrest and false imprisonment would still fail because a

favorable finding on these claims would necessarily imply the invalidity of Plaintiff's municipal

court guilty plea.”); Curry v. Yachera, 835 F.3d 373, 378 Gd Cir, 2016) (finding that a malicious

prosecution claim was barred under Heck when the plaintiff plead nolo contendere which resulted

in a valid conviction, and the plaintiff could not establish the element of favorable termination as

required under Heck).

Here, Plaintiff received a summons for violating a municipal ordinance and was charged

with resisting arrest. Plaintiff later plead guilty in Municipal Court to a lesser charge, improper

conduct, which arose out of his conduct on the night of August 20, 2020. Heck precludes Plaintiff

from now bringing claims that would undermine his conviction because he cannot show that the

21

conviction terminated in his favor. As such, Plaintiff's claims for False Arrest and Malicious

Prosecution are barred under Heck.

Therefore, the Defendants’ motion for summary judgment as to Counts I and IL are

GRANTED.

C. Failure to Intervene

Plaintiff brings a claim of Failure to Intervene (Count VID against all defendant officers.

This claim is admittedly a bit confounding at this stage. Defendants correctly point out that

“Plaintiff asserts that Zanichelli was the officer who caused the alleged “excessive force,” while

also claiming Zanichelli failed to intervene. This is contradictory to the requirement that plaintiff

show another officer exercised a use of force.” (ECF No. 82-1 at p. 30). Plaintiff's Opposition does

not explicitly clarify this contradiction but instead asserts that Internal Affairs recognized that

Defendant Zanichelli needed additional training as a result of the interaction with Plaintiff.

Plaintiff also asserts that “Officer Nguyen’s failure to intervene, despite arriving durmg the

restraint and participating in handcuffing, raises a triable issue.” (ECF No. 87 at p. 17).

To establish a claim for failure to intervene, a plaintiff must show that a fellow officer

“observe[d] or had reason to know: (1) that excessive force [was] being used; (2) that a citizen was

being unjustifiably arrested; or (3) that any constitutional violation [was being] committed by a

law enforcement official.” Merman y. City of Camden, 824 F. Supp. 2d 581, 600 (D.N.J. 2010).

Further, the officer must have had a “realistic and reasonable opportunity to intervene.” Jd. Thus,

Plaintiff must establish that one of the officers observed another officer violating one of Plaintiff's

constitutional rights, had a realistic opportunity to intervene, and chose not te. There is no evidence

in the record to support this. Plaintiff's circular, even nonsensical, argument which at is core asserts

that Defendant Zanichelli failed to intervene in his own behavior, cannot proceed.

22

Plaintiff's contention that Internal Affairs concluded that Defendant Zanichelli would

benefit from additional training does not establish that he observed another officer committing a

constitutional violation. Instead, it goes to whether Defendant Zanichelli himself violated

Plaintiff's rights. This argument can only plausibly support the idea that another officer should

have intervened in Defendant Zanichelli’s alleged excessive force. While Plaintiff's opposition

asserts that Officer Nguyen should have intervened, Officer Nguyen is a non-party.

Pursuant to Local Civil Rule 56.1, Defendants submitted a Statement of Undisputed Facts

(ECF No, 82-2) along with their motion for summary judgment. As required under the Rule,

Plaintiff submitted a responsive statement wherein he either admitted that the fact was undisputed

or denied that it was undisputed and pointed to evidence in the record to support the dispute. (ECF

No. 86). In his response Plaintiff “ADMITTED” that “Peter Nguyen (“Nguyen”), a non-party to

this action, is a police officer who was employed by CCPD at the time of the incident. (Ex D-4,

Nguyen Additional Information Report).” (ECF No. 86 at 8). In admitting that Officer Nguyen

was a non-party to the action, Plaintiff is precluded from asserting in his opposition brief that the

failure to intervene claim is triable against him. “Judicial admissions are concessions in pleadings

or briefs that bind the party whe makes them.” Berckeley Inv. Grp., Lid. v. Colkitt, 455 F.3d 195,

211 n.20 (3d Cir. 2006). When a plaintiff admits that someone is a non-party, this creates a binding

factual admission that the person is not subject to the claims in the current litigation. As such, the

belated claim that Officer Nguyen failed to intervene fails. Thus, this claim fails as a matter of law.

Therefore, the Defendants’ motion for summary judgment as to Count VULis GRANTED,

Dd. Battery

Plaintiff brings a state law claim against Defendant Zanichelli for Battery (Count X).

Defendant Zanichelli argues that Plaintiff is barred from bringing this claim under the New Jersey

23

Tort Claims Act because he never filed a torts claims notice. Plaintiff argues that the New Jersey

Torts Claim Act does not bar claims arising from intentional torts when committed outside the

scope of lawful authority.

Under the New Jersey Tort Ciaims Act, a plaintiff is required to file a tort claims notice

within 90 days after a cause of action accrues. N.J.S.A. 59:8-8. This notice requirement is a

mandatory prerequisite for bringing suit against a public entity or public employee, with limited

exceptions for sexual assault cases and provisions for late filing under extraordinary

circumstances, N.J.S.A.§ 59:8-8; NLLS.A. § 59:8-9; NLILS.A, § 59:8-3,

The purpose of the notice requirement is to provide the public entity with time to conduct

an administrative review of the incident and attempt to settle meritorious claims, adequately

investigate the facts, and prepare a defense. Velez v, City of Jersey City, 850 A.2d 1238, 1242.

Further, the notice requirement affords the public entity the opportunity to correct the conditions

or practices giving rise to the claim, and to inform the State as to its potential liability or

indebtedness. Jd. Nothing in the Act indicates that a plaintiff is relieved of the notice requirement

in the case of an intentional tort. Further, the New Jersey Supreme Court has held that “notice

provisions in the Act apply to causes of action based on the intentional conduct of a public

employee.” Id. at 293.

The Tort Claims Act notice requirements are strictly construed and failure to adhere to the

statutory timeline acts as a permanent bar to the plaintiffs claims. D.D. v. Univ. of Med. &

Dentistry of New Jersey, 61 A.3d 902, 915 (2013). The New Jersey Supreme Court has

acknowledged the “harshness” of this rule but noted that such is “alleviated by the statutory _

provision that allows the late filing of notice of a claim under limited circumstances.” /d.

A plaintiff may proceed with their tort claim if a judge of the Superior Court permits such

24

filing after determining (1) that the public entity or public employee would not be “substantially

prejudiced” and (2) that the plaintiff submits an affidavit that shows “sufficient reasons

constituting extraordinary circumstances for his failure to file notice of claim within the period of

time prescribed by section 59:8-8 of this act.” Jd. at 147; N.JS.A. § 59:8-8,

On this record, Plaintiff's failure to provide notice under the Tort Claims Act is fatal. The

New Jersey Supreme Court has been clear, the notice requirement applies to intentional torts, and

failure to comply with the notice requirement, barring extraordinary circumstances, forever bars

plaintiffs claim,

Therefore, Defendants’ motion for summary judgment as fo Count X is GRANTED,

E. Monell Liability

Plaintiff brings a claim against Camden County and Defendant Rodriguez, asserting

municipality liability under the Monel? doctrine for maintaining an unconstitutional custom or

practice. He also brings a claim against Defendant CCPD,7! Defendant Rodriguez,” and Camden

2! In New Jersey, a police department is not a separate entity from the municipality, it is “merely an administrative

arin of the local municipality” rendering it an improper defendant that cannot be sued in conjunction with the

municipality. Padilla v. Twp. of Cherry Hill, 110 F. App’x 272, 278 (3d Cir. 2004); Foster y. Essex Cuty. Corr,

Facility, No, 23-1613 (BRM) (MAH), 2023 WL 6366563, at *6 (D.N.J. Sept. 28, 2023). As such, Defendant CCPD

is not a proper defendant and Claim VI against it must be dismissed.

22 While a police chief may be sued under § 1983 under certain circumstances, the capacity in which he is sued is

paramount, When sued in his official capacity, the police chief is effectively a stand-in for the municipality itself.

Brandon y. Holt, 4G9 U.S. 464, 471 (1985). ([A] judgment against a public servant “in his official capacity”

imposes Hability on the entity that he represents.”}. As such, just as with a police department, a police chief cannot

be sued in his official capacity in conjunction with the municipality. Janowski vy. City of N. Wildwood, 259 F. Supp.

3d 113, 131 (D.N.J. 2017) ¢(*[Wihere claims against an officer in his official capacity are duplicative of claims

against the municipality, those claims are properly dismissed as redundant.”) When a police chief is sued in his

individual capacity, he cannot be held Hable under a theory of respondear superior, which means he must have

personal involvement in the constitutional violation. (‘A defendant in a civil rights action must have personal

involvement in the alleged wrongs; liability cannot be predicated solely on the operation of resporndeat superior.”)

In this case, Plaintiff brings claims against Defendant Rodriguez in both his official and individual capacities.

Official capacity liability is inappropriate because it would be duplicative of the claims against Camden County. To

hold Defendant Rodriguez individually liable, the record must show that he was personally involved in the alleged

constitutional violation. However, nothing in the record indicates that Defendant Rodriguez had any interaction with

Plaintiff whatsoever let alone that he was personally involved in the alleged constitutional violation. As such,

Claims VI and VII against Defendant Rodriguez fail and must be dismissed.

25

County”? for municipal liability under Monel! for failure to train or supervise.

While a public entity may be held liable for constitutional violations under § 1983, it may

not be held liable under a theory of respondeat superior for employee actions. Monell v. Dep’t of

Soc. Servs., 436 U.S. 658, 690-91 (1978), Under the Monel/ doctrine, liability only attaches if the

public entity itself caused the constitutional violation through an official policy or custom. Lesher

v. Zimmerman, 822 F. App’x 116, 121 Gd Cir. 2020). This includes situations where the entity

knowingly permits a pattern of unconstitutional practices to continue without redress or fails to

supervise or train employees despite a known pattern of unconstitutional conduct. Grefzula vy.

Camden Cnty. Tech. Schs. Bd. of Educ., 965 F. Supp. 2d 478, 490 (D.N.J. 2013)(quotations □

omitted). If, under those circumstances, the entity fails to take action, such failure can “amount]]

to deliberate indifference to the rights of people with whom the police come[] into contact.”

Carswell vy. Borough of Homestead, 381 F.3d 235, 244 (3d Cir. 2004).

1, Custom or Policy

Plaintiff argues that CCPD’s routine practice of clearing the parks after curfew and the lack

of guidelines for how to conduct curfew enforcement has resulted in a “de facto policy” that

“disproportionately affects certain individuals.” Defendants contend that Plaintiff cannot support

his claim that the park clearing was an unconstitutional de facto policy without more than his own

anecdotal observations which are based solely on his personal experience over two nights.

Municipal liability for an unconstitutional custom or policy can be established in two ways:

Policy is made when a decisionmaker possessing final

authority to establish a municipal policy with respect to the

action issues an official proclamation, policy, or edict. A

course of conduct is considered to be a “custom” when, though

not authorized by law, such practices of state officials are so

permanently and well-settled as to virtually constitute law.

3 As the claims against Defendant CCPD and Defendant Rodriguez have been dismissed, Camden County is the

only defendant that remains for the purposes of municipal liability under Afonel/,

26

McTernan v. City of York, 564 F.3d 636, 658 (3d Cir.2009) (citations, quotation marks, and

brackets omitted).

To establish a custom the plaintiff is required to provide “proof of knowledge and

acquiescence by the decisionmaker.” /d. If the plaintiff can establish the existence of an

unconstitutional custom or policy, he then “bears the additional burden of proving that the

municipal practice was the proximate cause of the injuries suffered.” Bielevicz v. Dubinon, 915

F.2d 845, 850 (3d Cir.1990).

To survive summary judgment, Plaintiff must “present[]| sufficient evidence from which a

reasonable jury could infer[] that the [Defendant] knew about and acquiesced in a custom

tolerating” an unconstitutional practice by police officers. Beck v. City of Pittsburgh, 89 F.3d 966,

976 (3d Cir. 1996). The Third Circuit has found that a combination of qualitative and quantitative

evidence is sufficient to establish a custom, /d. at 975. Specifically, the Court in Beck v. City of

Pittsburgh held that statistical evidence in combination with evidence of actual written complaints,

and indications of how the existing policy or custom lacked constitutional safeguards was

sufficient evidence in which a reasonable jury could infer the existence of an unconstitutional

custom or policy. Jd. The Court noted that expert testimony could also be evidence to bolster such

an assertion but was not a requirement based on the circumstances of the case. See Id. at 975,

Here, Plaintiff has provided no evidence beyond his own firsthand account of CCPD

officers riding by the Waterfront Park, directing all occupants to leave the park, and addressing

Plaintiff directly when Plaintiff did not leave the park. Plaintiff has provided no statistics regarding

how this policy “disproportionately affects certain individuals.” Plaintiff has not provided

evidence of any complaints made regarding the Waterfront Park clearing policy. Plaintiff has not

provided any evidence regarding how the policy specifically lacks constitutional safeguards.

27

Plaintiff has not provided any expert testimony to support his contentions whatsoever.

Simply stated, Plaintiff has not pointed to anything in the record that would permit a

reasonable jury to infer that Defendants knew and acquiesced to a policy or custom that tolerated

CCPD police officers engaging in unconstitutional practices while enforcing the park clearing

ordinance,

Therefore, Defendants’ motion for summary judgment as to Count VI is GRANTED.

2. Failure to Train or Supervise

To support his failure to train or supervise claim, Plaintiff points to the Internal Affairs and

supervisor reviews that identified Defendant Zanichelli’s need for additional training. Plaintiff

argues that these reports are evidence that Camden County knew of and acquiesced to training

deficiencies which establishes deliberate indifference. Defendants argue that Plaintiff does not

offer any evidence to establish that Defendants were even aware of a training deficiency let alone

a pattern of deliberate indifference. Defendants also argue that Plaintiff fails to identify what

training was lacking and how those training deficiencies could be cured.

To establish municipal liability for failure to train or supervise the plaintiff must show that

the failure “amounts to deliberate indifference to the rights of persons with whom the police come

into contact.” City of Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989), This means that the

plaintiff must point to evidence that permits a reasonable jury to infer that “(1) municipal

policymakers knf[e]w that employees [would] confront a particular situation, (2) the situation

involve[d] a difficult choice or a history of employees mishandling, and (3) the wrong choice by

an employee will frequently cause deprivation of constitutional rights.” Forrest v. Parry, 930 F.3d

93, 106 3d Cir, 2019),

Here, Plaintiff points to the Internal Affairs and supervisor reports that indicate that

28

Defendant Zanichelli needed additional training. Plaintiff contends that these reports directly

implicate the Defendants’ alleged knowledge and acquiescence because the reports acknowledge

that training deficiencies existed but there was no disciplinary action taken, nor additional training

provided. However, while the Plaintiff is correct that the two reports indicated that Defendant

Zanichelli required additional training, the record also indicates that the Internal Affairs officer

requested additional training. Further, there is evidence that Defendant Zanichelli did receive

additional training. A memo to Professional Development Training indicated that Defendant

Zanichelli’s supervisor, Sergeant Trocchio, reviewed the incident with Defendant Zanichelli and

provided additional training on alternative courses of action based on the circumstances,

In sum, to support his claim for failure to train officers, Plaintiff points to two reports that

were generated in response to the incident which identified the need for one officer who had served

the CCPD for eight months”4 to receive additional training. One of those reports explicitly stated

that a request for additional training was submitted and further evidence indicates that additional

training was provided. Plaintiff points to no other evidence in the record to indicate that Defendants

knew about an alleged training deficiency let alone that there was a pattern of unconstitutional

conduct by officers that resulted from those training deficiencies, and that the Defendants were

deliberately indifferent to same.

Despite Plaintiff's contention to the contrary, the evidence in this record is insufficient, as

a matter of law, to serve as evidence of Defendants’ deliberate indifference to training deficiencies.

Therefore, Defendants’ motion for summary judgment as to Count VIL is GRANTED.

24 See ECF No. 87-17 at p. 2

29

V. CONCLUSION

For all of the reasons set forth above, Defendants’ Motion for Summary Judgment (ECF

No. 82) is GRANTED IN PART AND DENIED IN PART. An Order reflecting the same will

follow.

Dated: February 2026

5 REN M. WILLIAMS

United States District Judge

30