T.S., K.H., and E.J.T., ETC. v. NEW JERSEY STATE POLICE (L-3037-15, MIDDLESEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1229-19

T.S., K.H., and E.J.T.,

guardian ad litem for H.S.,

a minor,

Plaintiffs-Appellants,

v.

NEW JERSEY STATE POLICE,

NEW JERSEY STATE TROOPER,

CHRISTOPHER J. WRIGHT,

NEW JERSEY STATE TROOPER,

DAN CONNOLLY, LAW

ENFORCEMENT MEMBERS OF

THE MIDDLESEX COUNTY

PROSECUTOR'S OFFICE, LAW

ENFORCEMENT MEMBERS OF

THE SOMERSET COUNTY

PROSECUTOR'S OFFICE, LAW

ENFORCEMENT MEMBERS OF

THE MERCER COUNTY

PROSECUTOR'S OFFICE, LAW

ENFORCEMENT MEMBERS OF

THE FRANKLIN TOWNSHIP

POLICE DEPARTMENT, LT. J.

HOLLAR #5280, DETECTIVE I G.

SEFICK #5974, DETECTIVE D.

MURAGLIA #6996, DETECTIVE I

T. KELSHAW #6231, DSFC P. CIANO,

#5133, DETECTIVE J. ASPROMONTI

(MERCER COUNTY PROSECUTOR'S

OFFICE), SGT. FRANCIS (MERCER

COUNTY PROSECUTOR'S OFFICER),

TROOPER PETERSON #6278, (NJSP

TROOP "B" TACTICAL PATROL UNIT),

and DSFC D E STRASSHEIM, DET.

DOUGLAS SPRAGUE, (SAYREVILLE

POLICE DEPARTMENT), OFFICER

RICHARD BELOTTI, (SAYREVILLE

POLICE DEPARTMENT), OFFICER

MARK KURTZ, (MIDDLESEX

COUNTY SHERIFF'S DEPARTMENT),

OFFICER JOSEPH MORRIALE,

(MIDDLESEX COUNTY SHERIFF'S

DEPARTMENT), OFFICER FRANK

SAUTNER, (MIDDLESEX COUNTY

SHERIFF'S DEPARTMENT), DET.

ROBERT MAZALEWSKI, (OLD

BRIDGE POLICE DEPARTMENT),

LT. RAY BASON, (MIDDLESEX

COUNTY DEPARTMENT OF

CORRECTIONS), and OFFICER

KEVIN KOSA, (MIDDLESEX

COUNTY DEPARTMENT OF

CORRECTIONS),

Defendants-Respondents,

and

LAW ENFORCEMENT MEMBERS

OF THE PISCATAWAY TOWNSHIP

POLICE DEPARTMENT, DETECTIVE

SMITH (PISCATAWAY POLICE

DEPARTMENT), and DETECTIVE

ORANCHAK (PISCATAWAY

A-1229-19

2

POLICE DEPARTMENT),

Defendants.

_________________________________

Argued December 2, 2021 – Decided July 20, 2022

Before Judges Alvarez, Haas and Mitterhoff.

On appeal from the Superior Court of New Jersey, Law

Division, Middlesex County, Docket No. L-3037-15.

Kevin T. Flood argued the cause for appellants T.S.,

K.H., and E.J.T. (Law Office of Kevin T. Flood, LLC,

attorneys; Lon C. Taylor, of counsel and on the briefs;

Kevin T. Flood, on the briefs).

Adam Robert Gibbons, Deputy Attorney General,

argued the cause for respondents New Jersey State

Police, SFC Christopher J. Wright, DSG Dan Connolly,

Lt. James Hollar, DSG Glenn Sefick, Det. Douglas

Muraglia, DSG Tom Kelshaw, DSFC Peter J. Ciano,

Sgt Eric Peterson & DSFC D.E. Strassheim (Andrew J.

Bruck, Acting Attorney General, attorney; Jane C.

Schuster, Assistant Attorney General, of counsel;

Adam Robert Gibbons, on the brief).

Michael R. Sarno, Deputy Attorney General, argued the

cause for respondents Douglas Sprague, Richard

Belotti, Mark Kurtz, Joseph Morriale, Frank Sautner,

Robert Mazalewski, Ray Bason, Kevin Kosa and James

Francis, (Andrew J. Bruck, Acting Attorney General,

attorney; Jane C. Schuster, Assistant Attorney General,

of counsel; Michael R. Sarno, on the brief).

Matthew P. Madden argued the cause for respondent

Detective J. Aspromonti, Mercer County Prosecutor's

A-1229-19

3

Office (Madden & Madden, PA, attorneys; Matthew P.

Madden, on the brief).

PER CURIAM

In this civil rights and tort action arising from the violation of a knock -

and-announce provision of a search warrant, plaintiffs T.S.,1 K.H., and E.J.T.,

guardian ad litem for H.S., appeal an October 9, 2019 order granting summary

judgment and dismissing plaintiffs' complaint with prejudice. After a careful

review of the record and applicable law, we reverse and remand for trial.

We discern the following facts from the record. Plaintiffs were living with

their parents, E.H.,2 and S.S. in Piscataway, New Jersey. Their father became a

target in an Attorney General Task Force investigation of a drug distribution

ring during a thirteen-month wiretap initiative. On April 22, 2013, defendant

Christopher Wright, a New Jersey State Trooper, submitted search and arrest

warrant applications with an attached affidavit, citing the following violations:

Leader of Narcotics Trafficking Network, in violation

of N.J.S.A. 2C:35-3, Maintaining/Operating a

Narcotics Production Facility, in violation of N.J.S.A.

2C:35-4, Possession with Intent to Distribute a

Controlled Dangerous Substance, in violation of

N.J.S.A. 2C:35-5, Distribution of a Controlled

1

We use initials in caption and attorney selection to protect the identity of the

children.

2

We use fictious initials so as not to confuse this party with one of the plaintiffs.

A-1229-19

4

Dangerous Substance, in violation of N.J.S.A. 2C:35-5,

Money Laundering, in violation of N.J.S.A. 2C:21-25,

Endangering the Welfare of Children, in violation of

N.J.S.A. 2C:24-4 and Conspiracy to commit the

aforementioned crimes, in violation of N.J.S.A. 2C:5-2

....

A judge granted the warrant requests, enabling the police to search

plaintiffs' home "after first knocking and announcing, and identifying

[themselves], and there[in] diligently search[ing] the entire premises for

evidence related to the specified crimes." Arrest warrants were obtained for

both parents.

On April 23, 2013, the task force deployed the Special Operations and

Response Team (SORT) to execute the warrant. SORT did not review the

warrant ahead of time but did review strategy at an initial briefing. The briefing

was the second of two arranged by Wright. It is unclear whether Wright attended

the second briefing; however, it is undisputed he never met with SORT. A report

written on April 26, 2013, by the Middlesex County Prosecutor's Office SORT

liaison, stated the meeting was to discuss the warrant's execution of a no-knock

warrant on the property.

SORT failed to knock and announce their presence, instead executing a

no-knock warrant. Plaintiffs' uncle, who slept on a pull-out couch in the living

room adjacent to SORT's point-of-entry, awoke to the sound of the officers

A-1229-19

5

breaking down the door. He was handcuffed and kept in the living room. In his

deposition he explained there was no knock, and as he is a light sleeper, he

would have awoken at the sound of a knock.

Plaintiff T.S., a then nineteen-year-old boy, was sleeping at the time of

the entry. The police entered his room on the second floor and pointed their

weapons at his head. They zip tied his hands and brought him to the living room.

Plaintiff K.H., a then seventeen-year-old boy, was also just waking up.

Like T.S., the police entered K.H.'s room on the second floor, pointed their guns

at his head, zip tied his hands, and brought him to the living room.

H.S. was eleven years old at the time of the event. Upon entering her

room, one officer pointed a gun at the child's face. The officers brought her to

the living room, but her hands were not zip tied.

Plaintiffs' parents were also brought to the living room and subsequently

arrested pursuant to the arrest warrant. Both T.S. and K.H. complained that the

zip ties were too tight, causing pain. Defendant Detective Sefick acknowledged

hearing their complaints of pain. K.H.'s entreaties to loosen the zip ties were

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6

ignored. Both boys3 remained cuffed in the living room for two hours while the

search was conducted.

SORT found twenty-nine bricks of heroin under E.H.'s, bed and packaging

bags on the garage couch, including one containing heroin. A report indicated

SORT found $445 and five "glassine clear bags located in [a] wooden box on

[the] floor of . . . [T.S.'s] room." It also indicated SORT found one "bag

containing [seven] clear glassine bags located in the upstairs closet in . . .

[K.H.'s] bedroom." The boys denied these items were in their rooms. In fact,

E.H., took responsibility for ownership of the drugs. The chain of custody was

unverifiable, as the author of the report did not collect the evidence personally

and could not remember who did.

T.S. and K.H. were charged in relation to the incident, in papers signed

by Wright. They were not charged in relation to the baggies allegedly located

in their rooms; rather, they were charged with possession of the controlled

dangerous substance (CDS) found under E.H.'s bed. T.S. was incarcerated for

eighteen days, while K.H. was incarcerated for eleven days. Eventually, the

charges were voluntarily dismissed by the Attorney General's Office because no

3

We use the term "boys" to refer to T.S. and K.H. for the sole purpose of

distinguishing them from their sister, H.S., who is also a plaintiff in this case.

A-1229-19

7

evidence ever implicated plaintiffs in the drug distribution ring , despite a

lengthy investigation during which approximately 20,000 phone calls were

monitored.

Because SORT knocked down the front door, T.S. and K.H. came back to

a burglarized home. Both described valuable items stolen from their home while

they were incarcerated.

On May 20, 2015, plaintiffs filed a complaint alleging various civil rights

and tort claims, naming the investigators involved because they did not know

the names of the officers who executed the warrant. Defendants Wright and Dan

Connolly, a New Jersey State Trooper, were the lead investigators. Defendant

J. Aspromonti, a detective with the Mercer County Prosecutor's Office, was

assigned to the wire-tap investigation and was present at the time of the warrant's

execution.

The police failed to write an official report until November 20, 2015, two-

and-a-half years after the raid. This report, authored by Sefick, indicated a no -

knock warrant was executed. The police failed to turn over the report as part of

their discovery obligations until January 14, 2016. Additionally, the report did

not provide the names of all officers who executed the warrant. It listed

defendants Oranchak and Smith, both detectives with the Piscataway Police

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8

Department, as officers on the team, however, these officers certified th ey were

executing another warrant at a different property during the raid in question.

Plaintiffs eventually obtained the names of some of the officers in an email

forwarded on February 21, 2018. From the report and subsequent discovery ,

plaintiffs were able to identify the following officers as involved in the warrant's

execution:

Lt. J. Hollar #5280, Detective I G. Sefick #5974,

Detective D. Muraglia #6996, Detective I T. Kelshaw

#6231, DSFC P. Ciano #5133, Detective J. Aspromonti

(Mercer County Prosecutor's Office), Sgt. Francis

(Mercer County Prosecutor's Office), Detective Smith

(Piscataway Police Department), Detective [O]ranchak

(Piscataway Police Department), Trooper Peterson

#6278 (NJSP Troop "B" Tactical Patrol Unit), and

DSFC D E Strassheim.

....

. . . Det. Douglas Sprague, Sayreville Police

Department, Officer Richard Belotti, Sayreville Police

Department, Officer Mark Kurtz, Middlesex County

Sheriff's Department, Officer Joseph Morriale,

Middlesex County Sheriff's Department, Officer Frank

Sautner, Middlesex County Sheriff's Department, Det.

Robert Mazalewski, Old Bridge Police Department, Lt.

Ray Bason, Middlesex County Department of

Corrections.

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9

On January 2, 2019, plaintiffs filed a fourth amended complaint to name

the officers involved. On May 9, 2019 and May 10, 2019, defendants filed

motions for summary judgment.

On August 1, 2019, plaintiffs filed a notice of cross-motion against DAG

Adam Gibbons and DAG Robert Preuss, to strike their answer and all pleadings,

for sanctions and attorney fees, and to relieve plaintiffs from the discovery

consent order because of defendants' continued willful non-compliance with

discovery requests. On August 2, 2019, the judge denied plaintiffs' motion,

stating, "[w]hile no opposition was filed, in the interests of judicial economy,

expediency, and in relation to the other pending motions, this motion was ruled

upon on the record."

On September 13, 2019, the judge held oral argument on the summary

judgment motions. On October 9, 2019, the judge granted summary judgment

and dismissed all of plaintiffs' claims in an order and written decision. This

appeal followed.

On appeal, plaintiffs raise the following arguments for our consideration:

POINT I

THE TRIAL COURT CONSISTENTLY ERRED IN

IGNORING AND/OR MINIMIZING PLAINTIFFS'

HARMS AND THEIR RIGHT TO BOTH

COMPENSATORY AND NOMINAL DAMAGES

A-1229-19

10

AFFORDED THEM UNDER NJCRA/§1983. WHILE

THE TRIAL COURT AGREED THAT PLAINTIFFS

MADE A COLORABLE CLAIM THAT THE

"KNOCK[-]AND[-]ANNOUNCE" SW WAS

IMPROPERLY EXECUTED AS A "NO-KNOCK"

SW, THE TRIAL COURT ERRED BY DISMISSING

[K.H.] AND [H.S.'S] CONSTITUTIONAL CLAIMS

. . . FOR SORT DEFENDANTS' VIOLATING THE

"KNOCK[-]AND[-]ANNOUNCE" PROVISION OF

THE WARRANT IN VIOLATION OF THE FOURTH

AMENDMENT AS TO A) UNREASONABLE

SEARCH (EXECUTION PHASE); B)

UNREASONABLE AND EXCESSIVE FORCE

(EXECUTION PHASE); AND C) EXCESSIVE

FORCE[ (]SORT POINTING FIREARMS TO THE

HEAD AND FACES OF PLAINTIFFS[)].

A. The Trial Court Erred By Dismissing

[K.H.] And [H.S.'s] Unreasonable Search

(Execution Phase) Claim By Declaring

SORT's Violation Of The "Knock[-]And[-

]Announce" SW Caused No Harm

Attributable To The Wrongful Execution

Of The Warrant; And In Doing So, The

Trial Court Ignored The Purpose Of The

"Knock[-]And[-]Announce" Requirement,

That Plaintiffs Had A Reasonable

Expectation Of Privacy To Their Home,

And That [K.H.] And [H.S.] Were Entitled

To Compensatory And Nominal Damages

Under NJCRA.

B. The Trial Court Erred By Dismissing

Plaintiff[s] [K.H.] And [H.S.'s]

Unreasonable And Excessive Force

(Execution Phase) Claim By Ruling The

Initial Decision To 'Employ' SORT Was

Reasonable, When Plaintiffs' Cause Of

A-1229-19

11

Action Did Not Raise This Claim, But

Rather The Subsequent Actions Of SORT

Storming [The Property] In Violation Of

The "Knock[-]And[-]Announce" SW

Order Was Unreasonable And Excessive,

And Claimants Were Thereby Entitled To

Compensatory And Nominal Damages

Under NJCRA/§1983.

C. The Trial Court Erred By Dismissing

Plaintiff[s'] . . . Unreasonable And

Excessive Force Claim- SORT Pointing

Firearms To The Heads And Faces Of

[T.S.] And H.S.- By Declaring SORTS'

Actions Were Not Excessive Or

Unreasonable But Rather Appropriate.

POINT II

THE TRIAL COURT ERRED IN DISMISSING

[K.H.'S] EXCESSIVE FORCE CLAIM FOR

INJURIES SUSTAINED TO HIS WRISTS FROM

THE ZIP[-]TIES/HANDCUFFS BY SOLELY

BASING ITS DECISION ON THE INJURY TO [HIM]

AND DETERMINING IT WAS DE MINIMIS,

RATHER THAN CONSIDERING THE TOTALITY

OF THE CIRCUMSTANCES WHICH SHOWED THE

FORCE WAS NOT OBJECTIVELY REASONABLE.

POINT III

THE TRIAL COURT IMPROPERLY DISMISSED

PLAINTIFF [K.H.'S] FALSE ARREST CLAIM BY

IMPROPERLY DETERMINING THERE WAS

PROBABLE CAUSE FOR THE ARREST EVEN

THOUGH DISPUTED FACTS EXISTED AS TO

PROBABLE CAUSE, AND THEREFORE FAILED

TO SUBMIT THE DISPUTED FACTS TO A JURY

A-1229-19

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FOR THEIR DETERMINATION AS TO WHETHER

PROBABLE CAUSE DID EXIST.

POINT IV

THE TRIAL COURT ERRED BY DISMISSING THE

FALSE IMPRISONMENT CLAIM BY [K.H.'S],

WITHOUT ANY FINDINGS OF FACT,

CONCLUSIONS OF LAW, OR ANY MENTION

WHATSOEVER OF THIS CLAIM IN ITS DECISION

GRANTING SUMMARY JUDGMENT TO

DEFENDANTS.

POINT V

THE TRIAL COURT ERRED BY DISMISSING THE

MALICIOUS PROSECUTION CLAIMS [BROUGHT]

BY [T.S.] AND [K.H.] UNDER THE TORT CLAIMS

ACT (TCA) WHEN THE CLAIM WAS PLED UNDER

THE NJCRA, AND FURTHER ERRED BY

DISMISSING SAID CLAIM BY MAKING A

FINDING OF PROBABLE CAUSE.

A. Malicious Prosecution Claims Were

Improperly Dismissed Under The TCA,

When They Were Clearly And Properly

Pled Under The NJCRA In The Third

Count Of The Fourth Amended Complaint.

B. Malicious Prosecution Claims By [T.S.]

And [K.H.] Were Improperly Dismissed

When The Trial Court Made A Finding As

To Probable Cause When That

Determination Should Have Been

Submitted To A Jury; And Further, A

Finding Of Probable Cause Does Not

Necessarily Insulate A Malicious

Prosecution Claim.

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POINT VI

IN DISMISSING PLAINTIFFS' CIVIL

CONSPIRACY CLAIMS, THE TRIAL COURT

ERRED BY 1) APPLYING THE WRONG

STANDARD OF REVIEW ON SUMMARY

JUDGMENT; 2) DISREGARDED ALL LAW AND

THE OVERWHELMING UNDISPUTED FACTS IN

THE RECORD SUPPORTING PLAINTIFFS' CIVIL

CONSPIRACY CLAIM.

A. Trial Court Applied The Wrong

Standard Of Review.

B. In Dismissing Plaintiffs' Civil

Conspiracy Claim, The Trial Court Erred

By Disregarding The Law And The

Overwhelming Undisputed Facts In The

Record Supporting This Claim.

POINT VII

IN DISMISSING PLAINTIFFS' FAILURE TO

INTERVENE CLAIM, THE TRIAL COURT ERRED

BY LIMITING IT TO THE UNLAWFUL ENTRY

AND NOT THE NJCRA CLAIMS RELATING TO

EXCESSIVE FORCE, UNLAWFUL ARREST,

FALSE IMPRISONMENT, AND MALICIOUS

PROSECUTION.

POINT VIII

IN DISMISSING PLAINTIFFS' FAILURE TO

SUPERVISE CLAIM, THE TRIAL COURT ERRED

IN A) APPLYING THE WRONG LAW, B) LIMITING

THE CLAIM TO THE VIOLATION OF THE

"KNOCK[-]AND[-]ANNOUNCE" SW ORDER, AND

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C) DISREGARDING COMPETENT EVIDENCE IN

THE RECORD SUPPORTING SAID CLAIM.

POINT IX

THE TRIAL COURT ERRED BY DISMISSING

PLAINTIFFS' CIVIL RIGHT CLAIMS WITHOUT

ANY FINDINGS OF FACT OR CONCLUSIONS OF

LAW AS TO DECLARATORY AND/OR

INJUNCTIVE RELIEF (EQUITABLE RELIEF NOT

BARRED BY QUALIFIED IMMUNITY).

POINT X

TRIAL COURT IMPROPERLY GRANTED

QUALIFIED IMMUNITY BY SIMPLY STATING,

"THEREFORE, AS PROBABLE CAUSE DID EXIST

IN THIS CASE, QUALIFIED IMMUNITY IS

APPLICABLE TO THE DEFENDANTS," RATHER

THAN FIRST SUBMITTING THE FACTUALLY

DISPUTED ISSUE OF PROBABLE CAUSE TO A

JURY FOR ITS DETERMINATION IN

ACCORDANCE WITH SCHNEIDER V.

[4]

SIMONINI ; AND FURTHER FAILING TO MAKE

ANY FINDINGS OF FACTS AND CONCLUSIONS

OF LAW AS TO ALL CONSTITUTIONAL

CLAIM[S], NOT JUST THE ONES IMPACTED BY

THE PROBABLE CAUSE DETERMINATION.

POINT XI

THE TRIAL COURT ABUSED ITS DISCRETION IN

DISMISSING[,] WITHIN ONE DAY OF ITS FILING,

PLAINTIFFS' AUGUST 1, 2019 NOTICE OF CROSS

MOTION AGAINST STATE DEFENDANTS AND

THEIR ATTORNEYS, [DEPUTY ATTORNEY

4

163 N.J. 336 (2000).

A-1229-19

15

GENERAL] ADAM GIBBONS AND ROBERT

PREUSS, SEEKING SEVERAL FORMS OF RELIEF

INCLUDING SANCTIONS AND ATTORNEY'S

FEES FOR THE CONTINUED WILLFUL

NONCOMPLIANCE WITH THEIR DISCOVERY

OBLIGATIONS IN THIS MATTER WHICH

INVOLVES MINORITY PLAINTIFFS CLAIMING

THEIR CIVIL RIGHTS WERE VIOLATED BY LAW

ENFORCEMENT.

We review a trial court's grant of summary judgment de novo, applying

the same standard as the trial court. Conley v. Guerrero, 228 N.J. 339, 346

(2017). Summary judgment must be granted "if the pleadings, depositions,

answers to interrogatories and admissions on file, together with the affidavits, if

any, show that there is no genuine issue as to any material fact challenged and

that the moving party is entitled to a judgment or order as a matter of law."

Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224

N.J. 189, 199 (2016) (quoting R. 4:46-2(c)). If a rational jury could resolve

disputed material facts in plaintiffs' favor, the motion must be denied. With this

well-established standard in mind, we conclude genuine fact issues precluded

summary judgment on each of plaintiffs' claims and it was therefore error to

summarily dismiss the action. We address these claims in turn.

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16

Unreasonable Search Claims

Plaintiffs first argue the motion judge erroneously concluded they did not

have standing to bring a civil rights claim premised on the violation of the

knock-and-announce provision of the search warrant. The judge held "[t]he only

person that possibly may have a claim under these facts is the non-party uncle.

He is the only one that can argue that he was exposed to 'severe fright and

humiliation' that was the cause of this unannounced entry."

In determining whether a violation of the knock-and-announce rule is

actionable, courts apply the following three-step test:

(1) Congress intended the statute to "benefit the

plaintiff"; (2) "the right assertedly protected by the

statute is not so 'vague and amorphous' that its

enforcement would strain judicial competence"; and (3)

"the statute must unambiguously impose a binding

obligation on the States."

[Tumpson v. Farina, 218 N.J. 450, 475 (2014) (quoting

Blessing v. Freestone, 520 U.S. 329, 340-41 (1997)).]

Civil damages under civils rights acts are the sole remedy for knock-and-

announce violations. Hudson v. Michigan, 547 U.S. 586, 598 (2006). There are

three rationales underlying officers' obligation to knock and announce their

presence before entering:

(i) "decreasing the potential for violence"; (ii)

"protection of privacy"; and (iii) "preventing the

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17

physical destruction of property." As to the first of

these, it has been cogently noted that an "unannounced

breaking and entering into a home could quite easily

lead an individual to believe that his safety was in peril

and cause him to take defensive measures which he

otherwise would not have taken had he known that a

warrant had been issued to search his home." As to the

second, notice minimizes the chance of entry of the

wrong premises by mistake and the consequent

subjecting of innocent persons to "the shock, fright or

embarrassment attendant upon an unannounced police

intrusion." . . . The third purpose is equally valid, for

quite obviously a person should ordinarily "be allowed

the opportunity to voluntarily admit the officer into his

home" instead of suffering damage to his property.

[State v. Rodriguez, 399 N.J. Super. 192, 199 (App.

Div. 2008) (quoting State v. Johnson, 168 N.J. 608, 616

(2001)).]

Here, it is undisputed that SORT acted as if they had been issued a no-

knock warrant. The search warrant they were executing, however, required them

to first "knock and announce" their presence. Plaintiffs alleged that they were

subjected to violence when the officers unexpectedly entered their rooms when

they were sleeping and woke them while pointing a firearm at their heads. This

surprise entry allegedly, and perhaps unsurprisingly, caused plaintiffs to suffer

significant shock and fear. The destruction of the front door facilitated the theft

of valuable items from the apartment and made it impossible for plaintiffs, two

of whom were minors, to safely return to their home. Thus, SORT's conduct vis

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18

a vis plaintiff arguably invoked all three rationales underpinning the officers'

duty to knock and announce. We thus conclude the motion judge erred in

dismissing these constitutional claims for lack of standing.

Excessive Force Claims

Plaintiffs next take issue with the judge's dismissal of plaintiffs' excessive

force claims. In that regard, the judge found "the employment of the

SWAT/SORT team was reasonable as the target residence was the subject of

serious C.D.S. crimes and the target residence occupants were subject to arrest

warrants." The judge found no issue with the SORT team temporarily pointing

their weapons at plaintiffs during their initial sweep of the home. The judge

also determined "[a]ny injury that was sustained by [p]laintiffs was de minimis"

and did not amount to excessive force.

An excessive force claim turns on whether the officers' actions were

objectively reasonable under the circumstances, regardless of intent. Velazquez

v. City of Camden, 447 N.J. Super. 224, 241 (App. Div. 2016). Excessive force

claims have been recognized in

cases involved an officer drawing a weapon on an

unarmed child. See, e.g., Motley v. Parks, 432 F.3d

1072, 1089 (9th Cir. 2002) (en banc) (finding excessive

force where officer trained a firearm on an infant during

a sweep of a gang member's house); Holland v.

Harrington, 268 F.3d 1179, 1192-93 (10th Cir. 2001)

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(finding excessive force where officers "continu[ed] to

hold the children directly at gunpoint after the officers

had gained complete control of the situation");

McDonald v. Haskins, 966 F.2d 292, 294-95 (7th Cir.

1992) (finding excessive force where officer held a gun

to the head of a nine-year-old child who was not

suspected of any crime during a search of the child's

family home).

[Stiegel v. Peters Twp., 600 Fed. Appx. 60, 65-66 (3d

Cir. 2014) (alteration in original).]

In examining excess force, courts consider the following factors: "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." Graham v. Connor, 490 U.S. 386, 396

(1989). The key question in weapons-drawing excessive force claims is whether

the officer reasonably perceived danger. Ibid.

The first Graham factor weighs in defendants' favor given the seriousness

of the drug trafficking and related crimes giving rise to the search warrant.

However, there is no allegation that anyone in the apartment, let alone plaintiffs,

attempted to flee. In addition, whether plaintiffs posed an imminent threat to

the officers' safety is far from clear. At the time of the raid, all three children

were asleep. We conclude a jury should determine whether the officers ' use of

force with a firearm was objectively reasonable under the circumstances.

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We also conclude that the judge erred in dismissing the excessive force

claims based on his assessment that the boys' injuries from being zip tied were

too de minimis to support a claim. Contrary to the judge's reasoning, "excessive

force is not determined by injury alone." Graham-Smith v. Wilkes-Barre Police

Dep't, 739 Fed. Appx. 727, 732 (3d Cir. 2018). Extreme pain due to excessively

tight handcuffs is cognizable as excessive force, and "demonstrat[ing] . . .

expression or signs of discomfort at the time [the plaintiff] was handcuffed" is

evidence supporting the claim. Gilles v. Davis, 427 F.3d 197, 208 (3d Cir.

2005). To prove such an excessive force claim, plaintiffs need only "contend[]

that [they] offered any reason for the defendants to believe that [they] had been

in pain." Finnemen v. SEPTA, 267 F. Supp. 3d 639, 648 (3d Cir. 2017).

Plaintiffs can prove this knowledge by showing they repeatedly asked for the

cuffs to be loosened. Whiting v. Bonazza, 545 Fed. Appx. 126, 130 (3d Cir

2013).

Here, the boys continually complained that the zip ties were too tight.

Sefick acknowledged hearing their complaints of pain during the two hours they

remained restrained. K.H.'s pleas to loosen the cuffs went unanswered. The

boys' subjective pain, evidenced by their unanswered requests to loosen the ties,

is sufficient to raise a jury question on the use of force.

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Civil Conspiracy Claims

Plaintiffs assert the motion judge erred in dismissing plaintiffs' civil

conspiracy claims. The judge found "[t]here are no independent facts included

in the [p]laintiffs' Fourth Amended Complaint to support this count . . . . even if

this [c]ourt were to allow the count to survive this fatal handicap, [p]laintiffs

have no facts based on competent evidentiary materials that create a genuine

issue of material fact."

Liability for civil conspiracy accrues when the defendants reached an

understanding to act, under color of state law, to deprive the plaintiff of a

constitutional right. Jutrowski v. Twp. of Riverdale, 904 F.3d 280, 293-94 (3d

Cir. 2018). A cover up or "'conspiracy of silence' among officers is actionable

as a . . . conspiracy because the coordinated officer conduct 'impede[s] an

individual's access to courts' and renders 'hollow' a victim's right to redress in a

court of law." Id. at 294 (alteration in original) (quoting Vasquez v. Hernandez,

60 F.3d 325, 328-29 (7th Cir. 1995)). This can include failure to disclose the

identities of the officers who committed the offense. Ibid.

Plaintiffs must show a meeting of the minds to prove civil conspiracy.

Cole v. Encapera, 758 Fed. Appx. 252, 257 (3d Cir. 2018). As the Jutrowski

court explained:

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[b]ecause "inferring mental state from circumstantial

evidence is among the chief tasks of factfinders," Kedra

v. Schroeter, 876 F.3d 424, 444 (3d Cir. 2017) (citing

United States v. Wright, 665 F.3d 560, 569 (3d. Cir.

2012)), an allegation of conspiracy can only be

overcome at summary judgment when "the moving

parties' submissions foreclose[] the possibility of the

existence of certain facts from which 'it would be open

to a jury . . . to infer from the circumstances' that there

had been a meeting of the minds," [Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 249 (1986) (citing Adickes

v. S. H. Kress & Co., 398 U.S. 144 (1970))].

[Jutrowski, 904 F.3d at 295.]

Under this exacting standard, we conclude the judge should not have

granted summary judgment on plaintiffs' civil conspiracy claim. The evidence

of the years-long delay in issuing a report and the failure to identify the officers

involved in the execution of the warrant until five years after the raid rationally

(but not conclusively) supports an inference that there was a conspiracy to cover

up deficiencies in the search and shield the involved officers. We find

defendants failed to "foreclose[] the possibility of the existence of certain facts

from which 'it would be open to a jury . . . to infer from the circumstances' that

there had been a meeting of the minds." Ibid. (quoting Anderson, 477 U.S. at

249). Thus, the conspiracy claims should not have been dismissed.

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Failure to Intervene Claims

Next, plaintiffs contend the judge erred in dismissing plaintiffs' failure to

intervene claim. With respect to this decision, the judge held the officers were

not liable for failure to intervene because "the speed in which the warrant was

executed" deprived the officers of a reasonable opportunity to intervene.

"'[A] police officer has a duty to take reasonable steps to protect a victim

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

reasonable opportunity to intervene.'" El v. City of Pittsburgh, 975 F.3d 327,

335 (3d Cir. 2020) (alteration in original) (quoting Smith v. Mensinger, 293 F.3d

641, 650-51 (3d Cir. 2002)). Multiple-stage events generally give rise to a

genuine issue of fact. Ibid. Where the violation is brief, however, there is not

a reasonable opportunity to intervene. Ricks v. Shover, 891 F.3d 468, 479 (3d

Cir. 2018). That defendant officers are "in the vicinity" is typically enough to

overcome a motion for summary judgment because the "extent of each officer's

participation is thus a classic factual dispute to be resolved by the fact finder."

Smith, 293 F.3d at 650.

We conclude the judge was too narrowly focused on the moment of entry

into the apartment and the timeframe while the apartment was being secured.

He did not consider the series of events leading up to the raid. Evidence in the

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record shows that there were two briefings about the warrant's execution

immediately preceding the raid. Sefick's belated report indicated the discussions

centered on execution of a no-knock warrant. However, Wright, who obtained

the warrant, arranged the briefings, and attended at least the first, never

disabused anyone of their understanding of the operation.

Contrary to the judge's finding, this operation was not brief. Rather, it

unfolded over multiple stages, from a complex investigation leading to search

warrants at multiple locations, to mobilizing SORT, to conducting two briefings

to discuss the warrant's execution, to the allegedly faulty execution in which: a

no-knock entry was conducted in violation of the warrant; the chain of custody

of evidence was not maintained for the two-hour-long search; and plaintiffs were

arrested for possession of CDS after E.H., admitted their ownership. There were

many defendants involved at each of these stages who had the ability and

opportunity to intervene to avoid these deficiencies. Therefore, the claim should

not have been dismissed.

Failure to Supervise Claims

Plaintiffs also contend the judge erred in dismissing their failure to

supervise claims. The judge dismissed those claims for the same reason he

dismissed the failure to intervene claims, reasoning the supervising officers did

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not have time to act due to "the speed in which the warrant was executed."

Again, the judge was narrowly focused on the moment of entry.

To hold a municipality liable for the constitutional violations of its

employees or agents, a plaintiff can show that the municipality's failure to train

or its policy caused an injury, and that the failure to train or policy arose from

"deliberate indifference to constituents' constitutional rights." Wright v. City of

Phila., 685 Fed. Appx. 142, 145 (3d Cir. 2017). "Additionally, 'the identified

deficiency in a city's training program must be closely related to the ultimate

injury;' or in other words, 'the deficiency in training [must have] actually caused'

the constitutional violation." Thomas v. Cumberland Cnty., 749 F.3d 217, 222

(3d Cir. 2014) (alteration in original) (quoting City of Canton, Ohio v. Harris,

489 U.S. 378, 391 (1989)). This is known as Monell liability. See Monell v.

Dep't of Soc. Servs., 436 U.S. 658, 694 (1978).

Deliberate indifference is a stringent bar, and policy makers must have

"actual or constructive notice that a particular omission in their training program

causes city employees to violate citizens' constitutional rights." Connick v.

Thompson, 563 U.S. 51, 61 (2011). "[I]n certain situations, the need for training

'can be said to be "so obvious," that failure to do so could properly be

characterized as "deliberate indifference" to constitutional rights' even without

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a pattern of constitutional violations." Thomas, 749 F.3d at 223 (quoting

Canton, 489 U.S. at 390 n.10). One example is where "city policymakers know

to a moral certainty that their police officers will be required to arrest fleeing

felons," but the municipality does not train officers on the use of deadly force.

Canton, 489 U.S. at 390 n.10.

Despite this stringent standard, we find it was error to grant summary

judgment. Executing search warrants is one of SORT's core tasks, so a jury

could decide that the officers' inability to distinguish between knock-and-

announce and no-knock warrants constitutes failure to train in and of itself.

Coupled with the other deficiencies in the execution of the warrant, there is

sufficient evidence to withstand summary judgment as to a pattern and practice

of inadequate training.

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Probable Cause

In dismissing T.S.' and K.H.'s unlawful arrest claims 5 and malicious

prosecution claims, 6 the judge relied on his finding of probable cause. In support

of his finding of probable cause, the judge stated, "[s]uspected C.D.S. was found

in a common area. In [p]laintiff's [K.H.'s] room, [seven] glassine bags that is

commonly used in distribution of drugs was found. In [p]laintiff's [T.S.'] room,

[five] clear glassine bags were found and also $445[] in cash."

"Common-law malicious prosecution requires showing, in part, that a

defendant instigated a criminal proceeding with improper purpose and without

probable cause." McDonough v. Smith, 139 S. Ct. 2149, 2156 (2019). Further,

to show false arrest, a plaintiff must prove he was "arrested without legal

authority[.]" Mesgleski v. Oraboni, 330 N.J. Super. 10, 24 (App. Div. 2000).

5

For T.S.s' and K.H.'s unlawful arrest claims, the judge granted summary

judgment for defendants Aspromonti, Smith, and Oranchak, finding that they

were not involved at the time. The judge erred because there is evidence in the

record placing all three of them at the scene. During Pizzuro's deposition he

confirmed Smith and Oranchak were in the NJSP Assignment List as part of the

warrant execution team for 189 Hillside but could not confirm whether they were

present.

6

For T.S.s' and K.H.'s malicious prosecution claims, the judge granted summary

judgment for defendants Francis and SORT because they "played no role in

instituting or initiating the criminal proceedings." The judge erred because there

is evidence in the record placing them at the scene, including the official report

released on November 20, 2015.

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"A plaintiff need not prove the lack of probable cause, but the existence of

probable cause will nevertheless defeat the action." Id. at 24-25. Thus,

"probable cause is an absolute defense to an allegation of malicious prosecution

or false arrest[.]" Tarus v. Borough of Pine Hill, 189 N.J. 497, 521 (2007).

Probable cause "is a well-grounded suspicion that a crime has been or is

being committed." State v. Nishina, 175 N.J. 502, 515 (2003) (quoting State v.

Sullivan, 169 N.J. 204, 211 (2001)). Probable cause "requires only a probability

or substantial chance of criminal activity, not an actual showing of such

activity[,]" and officers are not required to clear a high bar. District of Columbia

v. Wesby, 138 S. Ct. 577, 586 (2018) (quoting Illinois v. Gates, 462 U.S. 213,

243-44 n.13 (1983)).

Probable cause is typically determined by a judge, however, disputes

about the factual underpinning of the finding are to be decided by a jury.

Schneider, 163 N.J. at 360. The Supreme Court has articulated a specific process

for resolving such disputes as it relates to probable cause:

when disputed historical facts are relevant to either

probable cause or the existence of a reasonable, but

mistaken, belief concerning its existence, the trial court

must submit the disputed factual issue to the jury in the

form of special interrogatories for resolution by the

jury. After receipt of the jury's answers, the trial judge

must then decide the legal issue of whether probable

cause existed and, if not, whether a reasonable police

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official could have believed in its existence. Regarding

the reasonableness of the belief, in the absence of

probable cause, the judge must decide whether the

defendant has proven by a preponderance of the

evidence that his or her actions were reasonable under

the particular facts.

[Ibid.]

Here, a finding of probable cause was improper because there were

disputes about the location and ownership of the drugs and paraphernalia. First,

there is evidence in the record calling into question the accuracy of the evidence

log, as the chain of custody is unverifiable. Additionally, E.H., took

responsibility for ownership of the drugs and both boys deny possessing the

items. Because no chain of custody was maintained and no one could identify

who removed items, if any, from the boys' rooms, it appears doubtful the State

can prove where the baggies were located. Indeed, lacking any competent

evidence, it is unclear whether testimony about baggies being in the boys' rooms

would be admissible based solely on a stale police report. They were not

charged with possession of paraphernalia, but only with the possession of CDS

as to which their father had already admitted ownership.

At a minimum, there is a genuine fact issue whether drug paraphernalia

was in the boys' rooms which, if resolved in plaintiffs' favor, would defeat

probable cause. The judge necessarily resolved the competing factual assertions

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in defendants' favor to support his finding of probable cause. He then relied on

the disputed finding of probable cause to grant defendants qualified immunity. 7

Even assuming the admissibility of the hearsay police report, there remain

significant and genuine disputes of fact underpinning the judge's probable cause

determination. Pending the jury's resolution of the critical facts, summary

judgment on the malicious prosecution and the judges according the officers

qualified immunity was premature and an error.

Plaintiffs' Cross-Motion

With respect to the denial of plaintiffs' cross-motion for sanctions based

on discovery violations, we are hampered in our review due to the judge's failure

to make appropriate factual findings and legal conclusions, as required by Rule

1:7-4(a). "Meaningful appellate review is inhibited unless the judge sets forth

the reasons for his or her opinion." Salch v. Salch, 240 N.J. Super. 441, 443

(App. Div. 1990). Thus, we must reverse and remand on that issue to accord the

judge an opportunity to provide his reasons for denying the motion.

7

"The doctrine of qualified immunity operates to shield 'government officials

performing discretionary functions generally . . . from liability for civil damages

insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.'" Morillo

v. Torres, 222 N.J. 104, 116 (2015) (alteration in original) (quoting Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982)).

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Reversed and remanded. We do not retain jurisdiction.

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