McMullen Ex Rel. Obchinetz v. Maple Shade Township Ex Rel. New Jersey Municipal

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 09-4479

___________

JOSEPH W. MCMULLEN, individually

and on behalf of all others similarly situated.;

*CHRISTOPHER OBCHINETZ,

v.

MAPLE SHADE TOWNSHIP, in its own right

and on behalf of similarly situated New Jersey

Municipal entities

Joseph W. McMullen, individually

and on behalf of all others similarly situated,

Appellant

(*Dismissed per Clerk's order of 7/26/10)

__________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 08-cv-02902)

District Judge: Honorable Robert B. Kugler

___________

Argued December 16, 2010

Before: JORDAN, HARDIMAN and

VAN ANTWERPEN, Circuit Judges.

(Filed:June 27, 2011)

Steven E. Angstreich [ARGUED]

Carolyn C. Lindheim

Weir & Partners

1339 Chestnut Street

The Widener Building, Suite 500

Philadelphia, PA 19107-0000

David A. Avedissian

135 Kings Highway East

Haddonfield, NJ 08033-0000

Michael Coren

Pellettieri, Rabstein & Altman

100 Nassau Park Boulevard

Suite 111

Princeton, NJ 08543-5301

Attorneys for Appellant

John C. Gillespie [ARGUED]

Parker McCay

7001 Lincoln Drive West

3 Greentree Centre, P.O. Box 974

Marlton, NJ 08053-0000

Attorney for Appellee

2

____________

OPINION OF THE COURT

____________

HARDIMAN, Circuit Judge.

This appeal involves a suit brought under 42 U.S.C. §

1983 by a New Jersey resident who was arrested by

municipal police for violating a public intoxication ordinance.

At issue is whether a federal cause of action exists when one

is arrested for violating an ordinance that might be invalid

under state law. We hold that it does not.

I

In October 2007, Joseph McMullen was arrested in

Maple Shade, New Jersey for violating the following

ordinance:

A. No Person shall be intoxicated or drunk

or disorderly in any public street, lane,

sidewalk, public parking lot, public or quasi-

public place or in any public conveyance or in a

private motor vehicle while such vehicle is in

motion or parked in any public street, lane or

public parking lot or while upon any private

property not his or her own without the express

permission of the owner or other person having

authority to grant such permission to the

annoyance of any person or be so intoxicated or

drunk as to be unable to conduct himself or

herself with due care for his or her safety or the

safety of other persons.

3

MAPLE SHADE TOWNSHIP, N.J., CODE § 142-2 (emphasis

added).1 McMullen acknowledges being intoxicated at the

time of his arrest, but denies acting disorderly.

During a hearing in Maple Shade Municipal Court,

McMullen claimed the Township’s public intoxication

ordinance was either superseded by or contrary to the New

Jersey Alcoholism Treatment and Rehabilitation Act

(ATRA). See N.J. STAT. ANN. §§ 26:2B-6 to -9.3, -11 to -39

(West 2007). ATRA provides:

Notwithstanding any other provision of law, no

county, municipality, or other jurisdiction

within the State shall adopt an ordinance,

resolution, or other legislation creating an

offense of public intoxication or any equivalent

offense, and any existing ordinance, resolution,

or other legislation creating such an offense is

hereby repealed.

Id. at § 26:2B-29.2 Persuaded by this argument, Municipal

Judge Gregory R. McCloskey dismissed the charge against

McMullen.

1

The District Court correctly noted that McMullen

“may have been arrested and prosecuted for violating a prior

version of the [ordinance], previously codified at Maple

Shade Township Code § 92-2(A) (1997).” McMullen v.

Maple Shade Twp., No. 08-2902, 2009 WL 3615035, at *1

n.2 (D.N.J. Oct. 28, 2009). This discrepancy is immaterial,

however, because Section 92-2(A) is identical to § 142-2.

4

McMullen brought suit in the United States District

Court for the District of New Jersey, alleging that § 142-2 of

the Maple Shade Code was invalid under ATRA, and that his

arrest and prosecution violated his Fourth Amendment right

to be free from unreasonable seizures as well as his

Fourteenth Amendment right to due process of law.3

McMullen also brought various state law claims for violations

of the New Jersey Constitution, the New Jersey Civil Rights

Act, and the common law. See 28 U.S.C. § 1367. The

Township moved to dismiss under Federal Rule of Civil

Procedure 12(b)(6), arguing that McMullen failed to state a

claim for violation of a federal right.

The District Court granted the Township’s motion to

dismiss, stating that “[d]espite [McMullen’s] best efforts to

dress-up [his] claim in the federal garb of the Fourth

Amendment, at bottom, these claims remain state law

claims.” McMullen v. Maple Shade Twp., No. 08-2902, 2009

2

ATRA also prohibits municipalities from passing

laws “rendering public intoxication or being found in any

place in an intoxicated condition an offense,” or that are

“inconsistent with the provisions and policies of th[e] act.”

N.J. STAT. ANN. § 26:2B-26 (West 2007).

3

Christopher Obchinetz, who was arrested and fined

for violating the same ordinance, also sued, but was dismissed

from this appeal by order dated July 26, 2010. We also note

that although McMullen repeatedly refers to this suit as a

“class action,” he has made no attempt to certify a class.

Consequently, the only parties to this action are McMullen

and Maple Shade Township.

5

WL 3615035, at *4 (D.N.J. Oct. 28, 2009). After dismissing

McMullen’s federal claims, the Court declined to exercise

supplemental jurisdiction over his state law claims. This

appeal followed.4

II

We exercise plenary review over the dismissal of a

complaint pursuant to Rule 12(b)(6). See Atkinson v.

LaFayette College, 460 F.3d 447, 451 (3d Cir. 2006). “The

District Court’s judgment is proper only if, accepting all

factual allegations as true and construing the complaint in the

light most favorable to the plaintiff, we determine that the

plaintiff is not entitled to relief under any reasonable reading

of the complaint.” McGovern v. City of Philadelphia, 554

F.3d 114, 115 (3d Cir. 2009) (citing Phillips v. Cnty. of

Allegheny, 515 F.3d 224, 232 (3d Cir. 2008)).

III

This appeal requires us to consider whether an arrest

made pursuant to an ordinance that may be invalid on state

law grounds can give rise to a federal claim. The District

Court held that it may not. The Court’s analysis focused on

whether there is a federal right to engage in the conduct at

issue in this case, namely public drunkenness. After

determining that such a right did not exist, the District Court

dismissed McMullen’s federal claim. Although the District

Court stated that “it goes without saying that if New Jersey

has, in fact, legalized public intoxication, then New Jersey

4

The District Court exercised jurisdiction pursuant to

28 U.S.C. §§ 1331, 1367. We have jurisdiction under 28

U.S.C. § 1291.

6

localities should not enact or enforce laws prohibiting it,” it

nevertheless concluded that “if they do [prohibit public

intoxication], New Jersey state court is the proper forum for

the resolution of the matter.” McMullen, 2009 WL 3615035,

at *4.

Unlike the District Court, we do not believe the

operative question in this case is whether there is a federally

protected right to be intoxicated in public. Instead, we frame

the issue as whether there is a federally protected right to be

free from arrest pursuant to a law alleged to be invalid on

state law grounds.

Section 1983 grants individuals “access to a federal

forum for claims of unconstitutional treatment at the hands of

state officials.” Heck v. Humphrey, 512 U.S. 477, 480

(1994). The statute provides:

Every person, who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State or Territory, subjects, or causes to be

subjected, any citizen of the United States or

other person within the jurisdiction thereof to

the deprivation of any rights, privileges, or

immunities secured by the Constitution and

laws, shall be liable to the party injured in an

action at law, suit in equity, or other proper

proceeding for redress.

42 U.S.C. § 1983. Thus, by its terms, § 1983 provides a

remedy for violations of federal, not state or local, law.

Some of our sister circuit courts of appeals have stated

that an arrest pursuant to a statute that has been invalidated on

7

federal constitutional grounds may give rise to a Fourth

Amendment claim. See Amore v. Novarro, 624 F.3d 522, 532

(2d Cir. 2010) (“[W]e assume that it is clearly established that

an arrest under a statute that has been authoritatively held to

be unconstitutional is ordinarily a constitutional violation.”);

Leonard v. Robinson, 477 F.3d 347, 358 (6th Cir. 2007)

(stating that a statute held unconstitutional by the Michigan

Court of Appeals could not support probable cause to arrest);

Cooper v. Dillon, 403 F.3d 1208, 1223 (11th Cir. 2005)

(imposing municipal liability for enforcement of a statute

held to violate the First Amendment, but granting qualified

immunity because the statute’s invalidity was not clearly

established).

In this appeal, the Township contends that an arrest

based on a law that is invalid only on state law grounds does

not violate the Fourth Amendment. In support of its

argument, the Township cites City of Ontario v. Quon, ---

U.S. ---, 130 S. Ct. 2619, 2632 (2010), in which the Supreme

Court held that a search made in violation of a statute is not

per se unreasonable for Fourth Amendment purposes. We

find the Court’s holding in Quon inapposite. Although it is

true that an arrest made in violation of state law does not

necessarily give rise to a federal constitutional claim,5 the

5

Many states have enacted laws that afford

individuals protections beyond those found in the United

States Constitution. But arrests made in violation of these

state laws are not, in and of themselves, actionable under §

1983. See, e.g., Virginia v. Moore, 533 U.S. 164, 168 (2008)

(search incident to arrest that was illegal under state law not

unreasonable under the Fourth Amendment); Pyles v. Raisor,

60 F.3d 1211, 1215 (6th Cir. 1995) (right under Kentucky law

8

issue in this appeal is whether an arrest pursuant to an

allegedly invalid municipal ordinance directly offends the

federal constitutional right to be free from unlawful arrest.

As noted previously, other courts of appeals have held that an

arrest made pursuant to a statute that has been declared

unconstitutional violates the Fourth Amendment. These

decisions are not predicated on the reason for a statute’s

invalidity; rather, they are animated by the principle that an

unambiguously invalid law cannot, by itself, provide probable

cause to arrest. Cf. Lemon v. Kurtzman, 411 U.S. 192, 208

(1973) (plurality opinion) (stating that state officers may only

enforce state law “[u]ntil judges say otherwise”); Doe v.

Metro. Police Dep’t, 445 F.3d 460, 469 (D.C. Cir. 2006)

(holding that a state statute that is unambiguously civil cannot

form the basis for a proper arrest, and may support a claim

not to be arrested by officer who was not present when

misdemeanor was committed does not support § 1983 claim);

Barry v. Fowler, 902 F.2d 770 (9th Cir. 1990) (refusing to

allow a § 1983 claim based solely on a violation of state law);

Clark v. Link, 855 F.2d 156, 163 (4th Cir. 1988) (“[A] section

1983 claim can only be sustained by allegations and proof of

a violation of the Constitution or statutes of the United States

and specifically may not rest solely on a violation of state

statutes or qualify as a common law tort.”); Moore v.

Marketplace Restaurant, Inc., 754 F.2d 1336, 1349 (7th Cir.

1985) (“[A]n alleged violation of a state statute does not give

rise to a corresponding § 1983 violation, unless the right

encompassed in the state statute is guaranteed under the

United States Constitution.”). In each of these cases,

probable cause existed independent of state law. By contrast,

McMullen argues that because Maple Shade’s ordinance was

invalid, it cannot provide probable cause for an arrest.

9

under § 1983). Thus, in certain circumstances, an arrest

pursuant to a law that is unambiguously invalid for reasons

based solely on state law grounds may constitute a Fourth

Amendment violation actionable under § 1983.

Here, however, McMullen has failed to state a viable

Fourth Amendment claim because he cannot plead that the

ordinance pursuant to which he was arrested is

unambiguously invalid. McMullen’s cause of action hinges

on ATRA’s alleged preemption of the Maple Shade public

intoxication ordinance. It is unclear, however, that the

ordinance is in fact preempted. It does not prohibit simple

public intoxication, but rather proscribes intoxication “to the

annoyance of any person” or to the degree that the individual

is “unable to conduct himself or herself with due care for his

or her safety or the safety of other persons.” MAPLE SHADE

TOWNSHIP, N.J., CODE § 142-2.

Complicating matters further, another provision of

New Jersey state law—the Home Rule Act—authorizes “[t]he

governing body of every municipality to make, amend, repeal

and enforce ordinances to . . . [p]revent vice, drunkenness and

immorality; . . . [and to] [r]estrain and punish drunkards,

vagrants, mendicants and street beggars.” N.J. STAT. ANN. §

40:48-1.6 The apparent conflict between ATRA and the

Home Rule Act creates additional ambiguity regarding the

validity of Maple Shade’s public intoxication ordinance.

6

Although this provision of the Home Rule Act was

originally enacted in 1917, the Act has been amended as

recently as 2003 without substantive changes to the provision

authorizing municipalities to enact public intoxication

ordinances. See 2003 N.J. Sess. Law. Serv. 1763.

10

Although there is some indication that New Jersey

municipal courts have interpreted ATRA expansively, see

State v. Navarro, 392 A.2d 1272, 1272 (Pilesgrove Twp.

Mun. Ct. 1978) (finding that New Jersey’s public intoxication

statute was preempted by ATRA, but not discussing the

Home Rule Act or municipal public intoxication laws), no

conclusive decision has been rendered with respect to this

issue. Because it is not the domain of federal courts to

resolve undecided questions of state law, cf. R.R. Comm’n of

Tex. v. Pullman, 312 U.S. 496, 501 (1941) (holding that

federal courts should abstain from deciding constitutional

questions relating to state laws when there is a possibility that

state courts may interpret the laws in a way that alters or

eliminates the federal question), we must reject McMullen’s

invitation to serve as an arbiter of New Jersey law and leave

that task to the New Jersey Supreme Court.

IV

For the reasons stated, we hold that McMullen’s claim

is not cognizable under 42 U.S.C. § 1983. The judgment of

the District Court will be affirmed.

11

Joseph W. McMullen v. Maple Shade Township, No. 09-4479

JORDAN, Circuit Judge, concurring

I join in the judgment of the Court that Maple Shade

Township is not liable under 42 U.S.C. § 1983 for passing the

ordinance at issue here. However, I write separately because

I would not proceed on this record to create a new

precedential standard making the validity of a municipal

ordinance under state law relevant to a Fourth Amendment

inquiry. As the Majority notes (slip op. at 8-10), Maple

Shade’s public drunkeness ordinance, MAPLE SHADE

TOWNSHIP, N.J., CODE § 142-2, has not been held invalid

under New Jersey law and, to the contrary, can reasonably be

read as being consistent with the state’s Alcoholism

Treatment and Rehabilitation Act (“ATRA”), N.J. STAT.

ANN. §§ 26:2B-6 to -9.3, -11 to -39 (West 2007). Therefore,

accepting for purposes of argument that the plaintiff’s

contention concerning the validity of the ordinance is relevant

to a Fourth Amendment analysis, we would still be hard-

pressed to say that New Jersey law is such that Maple Shade

could be found liable under § 1983.1 The Majority

1

The whole exercise of deciding what state law is and

then having that be the basis of liability under § 1983 is

suspect. The Majority accurately states that Ҥ 1983 provides

a remedy for violations of federal, not state or local, law.”

(Slip op. at 6.) Yet the Majority is creating a constitutional

standard under which the Fourth Amendment reasonableness

of an arrest turns on whether a local law is invalid for

violating state, not federal, law. “Th[at] constitutional

standard would be only as easy to apply as the underlying

state law, and state law can be complicated indeed.” Virginia

1

acknowledges as much, and it is not necessary to go any

further.

Thus, the question of whether the validity of a

municipal ordinance under state law is relevant to a Fourth

Amendment inquiry is not one we need to address to resolve

this case. Because the plaintiff’s fundamental premise that

the Maple Shade ordinance and ATRA are necessarily in

conflict is unsound, we should simply point that out and

affirm the District Court in a non-precedential opinion. Cf.

Pearson v. Callahan, 129 S.Ct. 808, 819 (2009) (“A

constitutional decision resting on an uncertain interpretation

of state law is … of doubtful precedential importance.”);

Spector Motor Serv., Inc. v. McLaughlin, 323 U.S. 101, 105,

(1944) (“If there is one doctrine more deeply rooted than any

other in the process of constitutional adjudication, it is that we

v. Moore, 553 U.S. 164, 175 (2008). It is true that the

Majority frames its test in terms of “an arrest pursuant to a

law that is unambiguously invalid … on state law grounds”

(slip op. at 8), but deciding whether something is ambiguous

or not is, ironically, easier said than done, and the very

question of ambiguity will now mean that municipalities like

Maple Shade are going to be subject to the expense of federal

litigation more frequently. The Supreme Court has observed

that “it is difficult to think of a greater intrusion on state

sovereignty than when a federal court instructs state officials

on how to conform their conduct to state law.” Pennhurst

State School & Hospital v. Halderman, 465 U.S. 89, 106

(1984). That observation is not without force when

considering the actions of local governments and officials

trying to comply with state law.

2

ought not to pass on questions of constitutionality … unless

such adjudication is unavoidable.”); Egolf v. Witmer, 526

F.3d 104, 109-10 (3d Cir. 2008) (declining to address the

merits of First and Fourth Amendment claims which turned

on an unsettled state law question when another avenue for

disposition was available, because “federal courts do a

disservice to state actors who would be induced to rely on a

ruling that might change altogether upon subsequent review

by the state court”).

3