IAN M. SCHWEIZER v. NEW JERSEY STATE POLICE (L-1733-19, SOMERSET 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NOT FOR PUBLICATION WITHOUT THE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-2075-20

IAN M. SCHWEIZER,

Plaintiff-Appellant,

v.

NEW JERSEY STATE POLICE,

COLONEL PATRICK J.

CALLAHAN, LIEUTENANT

CHRISTOPHER GHILON,

LIEUTENANT J. WIDOVIC,

TROOPER K.M. BUONOMO,

SERGEANT BRIAN E. WEISS,

DETECTIVE GREGORY C.

LEWIS, DETECTIVE SERGEANT

MATTHEW M. MCCURRY,

DETECTIVE SHANE D. KRISANDA,

DETECTIVE DARREN CRANE,

SERGEANT D. O'KEEFFE,

DETECTIVE MULLER, and

DETECTIVE M. HERRICK,

Defendants,

and

DETECTIVE JUSTIN J.

DELORENZO,

Defendant-Respondent.

________________________

Submitted March 16, 2022 – Decided September 8, 2022

Before Judges Gilson and Gooden Brown.

On appeal from the Superior Court of New Jersey, Law

Division, Somerset County, Docket No. L-1733-19.

Hanlon Dunn Robertson, attorneys for appellant

(Wayne G. Perry, on the briefs).

Flahive Mueller, Attorneys at Law, LLC, attorneys for

respondent (John P. Mueller, on the brief).

PER CURIAM

Plaintiff Ian Schweizer appeals from the February 23, 2021 Law Division

order granting summary judgment to defendant, Detective Justin DeLorenzo,

and dismissing Schweizer's complaint with prejudice. The complaint alleged

DeLorenzo committed constitutional and statutory violations as well as various

torts in connection with arresting and charging Schweizer with a criminal

offense. In dismissing the complaint, the motion judge determined DeLorenzo

was entitled to qualified immunity. We affirm.

A-2075-20

2

I.

We derive the following facts from evidence the parties submitted in

support of and opposition to the summary judgment motion. "At the summary

judgment stage, in deciding the issue of qualified immunity, our jurisprudence

requires that the evidence be viewed in the light most favorable to [the

plaintiff]." Baskin v. Martinez, 243 N.J. 112, 119 (2020).

According to the undisputed facts in the record, on February 7, 2017,

Schweizer voluntarily appeared at a New Jersey State Police station for

questioning regarding an alleged sexual assault in a bar parking lot. About a

week earlier, a woman reported to DeLorenzo that Schweizer had put his hand

down the front of her pants and touched her without her consent after the two

had met for a date. During the February 7 interview, Schweizer acknowledged

he had touched the woman and that she became upset and abruptly fled.

Schweizer sent an apologetic text message to the woman hours later saying "[he]

got carried away."

Upon concluding there was probable cause to arrest, DeLorenzo took

Schweizer into custody and then contacted the Sussex County Prosecutor's

Office (SCPO) to present the results of his investigation. After reviewing the

evidence, members of the SCPO informed DeLorenzo that it had decided not to

A-2075-20

3

prosecute based on deficiencies in the proofs. Nonetheless, DeLorenzo

subsequently sought a complaint-warrant for Schweizer's arrest, which a

municipal court judge issued after determining there was probable cause. The

following day, a Superior Court judge dismissed the charges at the SCPO's

request and released Schweizer.

Thereafter, Schweizer filed a complaint against the New Jersey State

Police and several of its members, including DeLorenzo. The complaint alleged

violations of the New Jersey Constitution and New Jersey Civil Rights Act

(NJCRA), N.J.S.A. 10:6-1 to 6-2, false arrest, false imprisonment, malicious

prosecution, malicious abuse of process, and negligent hiring, supervision, and

retention. Schweizer's initial complaint also included a 42 U.S.C. § 1983 claim

for violation of his rights under the Fourth and Fourteenth Amendments of the

federal constitution, but he abandoned that claim in his first amended complaint.

Defendants moved to dismiss the complaint for failure to state a claim

upon which relief can be granted. See R. 4:6-2(e). After concluding that

Schweizer had failed to allege sufficient facts to undercut their qualified

immunity, the motion judge dismissed the complaint against the individual

defendants, except for DeLorenzo. The judge allowed the lawsuit against

DeLorenzo to proceed, reasoning that DeLorenzo would not be entitled to

A-2075-20

4

qualified immunity if he had not informed the municipal court judge that the

SCPO had already declined to prosecute prior to DeLorenzo seeking the warrant.

Subsequently, DeLorenzo moved for summary judgment and submitted a

transcript of an internal affairs interview with the municipal court judge, in

which the judge acknowledged that prior to issuing the warrant, DeLorenzo had

informed him the SCPO had declined to prosecute. Additionally, the municipal

court judge acknowledged being unclear about whether the SCPO's decision not

to prosecute precluded him from making a probable cause determination.

Nonetheless, after reviewing the detective's submissions, the judge issued the

warrant upon determining that "the standard for probable cause" was "clearly

met."

On February 22, 2021, during oral argument on the motion, plaintiff's

counsel asserted that "no discovery" had been conducted in the matter and the

defense had delayed producing the interview transcript. Additionally, plaintiff's

counsel argued that the internal affairs interview was "one-sided" and that

Schweizer should have the opportunity to depose the municipal court judge.

Defense counsel responded that the defense had attempted to engage plaintiff in

discovery, but Schweizer had "completely ignored" their discovery requests.

A-2075-20

5

In an order entered on February 23, 2021, the motion judge granted

DeLorenzo summary judgment, concluding he was entitled to qualified

immunity. In an accompanying written statement of reasons, the judge first

addressed the arguments plaintiff's counsel raised at oral argument about

incomplete discovery. The judge observed that there was no mention of

discovery issues in Schweizer's opposition brief and that Schweizer had made

no discovery requests in two years since filing the complaint. Additionally, the

judge noted that although discovery was set to close six days after oral argument,

Schweizer still had not requested an extension of the discovery end date or

specified what discovery was outstanding. Accordingly, the judge found no

reason to deny defendant summary judgment because of discovery concerns.

On the merits, the judge determined DeLorenzo was entitled to qualified

immunity because he had not violated any of Schweizer's "clearly established"

rights and had acted with probable cause. First, the judge acknowledged that

the Attorney General had issued Attorney General Law Enforcement Directive

No. 2016-6, Directive Establishing Interim Policies, Practices, and Procedures

to Implement Criminal Justice Reform Pursuant to P.L. 2014, c. 31 (the

Directive), which went into effect about a month before Schweizer's arrest.

The Directive provided, in pertinent part:

A-2075-20

6

Except as . . . otherwise . . . authorized[,] . . . no

application for a complaint-warrant for any [indictable]

crime or offense shall be submitted to a judicial officer

authorized to approve a complaint-warrant, without the

express approval of an assistant prosecutor or deputy

attorney general . . . .

The judge reasoned that the Directive was too new at the time of Schweizer's

arrest to be considered "clearly established," as evidenced by the municipal court

judge's and DeLorenzo's "confus[ion] as to the application of the new rules to

the facts and circumstances presented by this case."

Further, the judge concluded the Directive did not "clearly establish a

statutory or constitutional right" for the benefit of plaintiff because the Directive

was "an internal procedure document for [l]aw [e]nforcement [o]fficers" and

was "not meant to, and [did] not create, a constitutional right upon which . . .

plaintiff [could] rely in order to sustain his private cause of action." The judge

added:

Nor is the Directive a statutory right. It is not even a

regulation that is promulgated pursuant to established

procedures that allow for provisions to be established

that have the force of law. The Directive is only an

internal policy statement to give guidance and direction

to the law enforcement community. It is not issued with

the consent or endorsement of the State Legislature or

even the Governor. It simply does not contain the legal

gravitas that warrants rewarding the Directive with the

force of law so as to create a private right for a plaintiff

to rely upon to base a cause of action.

A-2075-20

7

In that regard, under the sub-heading "NON-ENFORCEABILITY BY

THIRD PARTIES," the Directive specified that its "provisions d[id] not create

any promises or rights that may be enforced by any other persons or entities"

and "[n]othing in th[e] Directive shall be construed in any way to create any

rights beyond those established under the Constitutions of the United States and

the State of New Jersey, or under any New Jersey statute or Court Rule." The

judge pointed out that "[a] police officer who violates a Directive, knowingly or

even perhaps unknowingly, is properly subject to a disciplinary proceeding ," as

plaintiff asserted occurred here. However, "[t]hat circumstance d[id] not

conversely create a 'clearly established constitutional right' upon which a

[p]laintiff can rely in order to sustain a viable cause of action."

Next, the judge determined that DeLorenzo had probable cause to apply

for the warrant and that it was "objectively reasonable" for DeLorenzo to rely

on the municipal court judge's probable cause determination. According to the

judge, based on DeLorenzo's investigation, DeLorenzo had sufficient evidence

to support a probable cause affidavit. Citing State v. Amelio, 197 N.J. 207, 213

(2008), the judge stated that in establishing probable cause, "[i]t has been held

that a statement of a victim can be taken at face value irrespective of other

evidence concerning reliability."

A-2075-20

8

Moreover, after reviewing the internal affairs interview transcript, the

judge found that the municipal court judge was "fully informed" of the SCPO's

position "before issuing the warrant." In that regard, the judge stated:

In fact, with regards to a probable cause determination,

[the municipal court judge] as a "neutral magistrate"

found that it was clear that probable cause existed and

he didn't believe that, in all candor, the [SCPO] could

even say that there was not probable cause. [The

municipal court judge] opined that the decision not to

prosecute was made based on their assessment of the

quality of the case, not the absence of probable cause.

The judge concluded Schweizer could not show DeLorenzo had acted in

"bad faith" to overcome DeLorenzo's qualified immunity defense. In support,

the judge explained:

[I]t has been shown that DeLorenzo provided [the

municipal court judge] with a full account of the

circumstances surrounding [p]laintiff's case. [The

municipal court judge] has confirmed as much. In fact,

there is no evidence that DeLorenzo made statements to

[the municipal court judge] that he knew were false; or

would have known were false had he not recklessly

disregarded the truth. The fact that [DeLorenzo] firmly

believed that a charge should be made or even that his

actions could be characterized as zealous, those

characterizations do not mean that he acted in bad faith.

While officers must be discouraged from acting in bad

faith, [c]ourts should respect a law enforcement

[officer's] passionate belie[f] that a victim's rights

should be vindicated. These circumstances should not

expose the officer for damages based upon cla[i]ms of

"bad faith."

A-2075-20

9

In this ensuing appeal, Schweizer raises the following points for our

consideration:

POINT I

THE TRIAL COURT'S ENTRY OF SUMMARY

JUDGMENT WAS PREMATURE AND PRODUCED

AN UNJUST RESULT AS PLAINTIFF WAS NOT

PERMITTED TO COMPLETE DISCOVERY

INCLUDING THE RIGHT TO CROSS-EXAMINE

THE TESTIMONY OF [THE] MUNICIPAL COURT

JUDGE . . . AND THEREFORE REVERSAL IS

PROPER.

POINT II

ASSUMING ARGUENDO THAT THE TRIAL

COURT'S ENTRY OF SUMMARY JUDGMENT

WAS NOT PREMATURE, THE TRIAL COURT

NONETHELESS ERRED IN ITS FINDING THAT

DETECTIVE DELORENZO WAS ENTITLED TO

QUALIFIED IMMUNITY.

II.

We "defer to a trial judge's discovery rulings absent an abuse of discretion

or a judge's misunderstanding or misapplication of the law." Cap. Health Sys.,

Inc. v. Horizon Healthcare Servs., Inc., 230 N.J. 73, 79-80 (2017). "A motion

for summary judgment is not premature merely because discovery has not been

completed, unless plaintiff is able to 'demonstrate with some degree of

particularity the likelihood that further discovery will supply the missing

A-2075-20

10

elements of the cause of action.'" Badiali v. N.J. Mfrs. Ins. Grp., 220 N.J. 544,

555 (2015) (quoting Wellington v. Est. of Wellington, 359 N.J. Super. 484, 496

(App. Div. 2003)). Additionally, the party opposing summary judgment on

discovery grounds "must specify what further discovery is required." Trinity

Church v. Lawson-Bell, 394 N.J. Super. 159, 166 (App. Div. 2007).

Here, we are satisfied the motion judge did not abuse his discretion in

proceeding without additional discovery. Plaintiff's counsel raised the issue of

additional discovery for the first time at oral argument on the summary judgment

motion and only made general arguments about the need to depose the municipal

court judge because the internal affairs interview was "one-sided." Moreover,

after oral argument, Schweizer had an opportunity to move to extend the

discovery end date and particularize his reasons but failed to do so. Therefore,

we discern no abuse of discretion in the judge's discovery ruling and no basis to

interfere with the judge's determination that DeLorenzo's summary judgment

motion was ripe for disposition.

III.

Turning to the merits, "we review the trial court's grant of summary

judgment de novo under the same standard as the trial court." Templo Fuente

A-2075-20

11

De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199

(2016). That standard is well-settled.

[I]f the evidence of record – the pleadings, depositions,

answers to interrogatories, and affidavits – "together

with all legitimate inferences therefrom favoring the

non-moving party, would require submission of the

issue to the trier of fact," then the trial court must deny

the motion. On the other hand, when no genuine issue

of material fact is at issue and the moving party is

entitled to a judgment as a matter of law, summary

judgment must be granted.

[Steinberg v. Sahara Sam's Oasis, LLC, 226 N.J. 344,

366 (2016) (citations omitted) (quoting R. 4:46-2(c)).]

See also Baskin, 243 N.J. at 129 (explaining that, on review, "we are required

not only to view the evidence in the light most favorable to [the non-moving

party], but also to draw all reasonable inferences in his favor that are supported

by the summary judgment record").

"Whether an official is entitled to the shield of qualified immunity

ordinarily is a question of law to be decided by the court." Baskin, 243 N.J. at

128. "We review issues of law de novo and accord no deference to the trial

judge's conclusions on issues of law." MTK Food Servs., Inc. v. Sirius Am. Ins.

Co., 455 N.J. Super. 307, 312 (App. Div. 2018). Thus, we review de novo the

trial court's determination that a defendant is entitled to qualified immunity.

Ramos v. Flowers, 429 N.J. Super. 13, 20 (App. Div. 2012).

A-2075-20

12

We begin with a discussion of Schweizer's tort claims, which are governed

by the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3. The TCA

grants public employees qualified immunity for certain tort claims, declaring

that "a public employee is not liable if he acts in good faith in the execution or

enforcement of any law." N.J.S.A. 59:3-3. "'To prevail on a motion for

summary judgment, a public employee need not establish his subjective, i.e.,

actual, good faith if his conduct was objectively reasonable.'" Brayshaw v.

Gelber, 232 N.J. Super. 99, 110 (App. Div.1989) (quoting Hayes v. Mercer

Cnty., 217 N.J. Super. 614, 622 (App. Div. 1987)).

Additionally, the TCA provides that "[a] public employee is not liable for

injury caused by his instituting or prosecuting any judicial or administrative

proceeding within the scope of his employment." N.J.S.A. 59:3-8. However,

the TCA does not "exonerate a public employee from liability if it is established

that his conduct was outside the scope of his employment or constituted a crime,

actual fraud, actual malice or willful misconduct." N.J.S.A. 59:3-14. Thus, a

public employee whose conduct involves actual malice, meaning "the

intentional doing of a wrongful act without just cause or excuse," loses qualified

immunity under the TCA. Jobes v. Evangelista, 369 N.J. Super. 384, 398 (App.

Div. 2004); see also N.J.S.A. 59:3-14.

A-2075-20

13

"[M]alice is inferable from [a] finding that the [official] had neither

probable cause for the criminal complaint nor a reasonable belief in probable

cause." Jobes, 369 N.J. Super. at 398. However, "probable cause is an absolute

defense" and defeats claims for false arrest, false imprisonment, and malicious

prosecution. Wildoner v. Borough of Ramsey, 162 N.J. 375, 389 (2000); see

also Tarus v. Borough of Pine Hill, 189 N.J. 497, 521 (2007) (same); Mesgleski

v. Oraboni, 330 N.J. Super. 10, 24-25 (App. Div. 2000) (same). "Probable cause

to arrest can be based on the statement of a witness . . . ." Wildoner, 162 N.J. at

390.

Turning to Schweizer's NJCRA claim, the NJCRA authorizes civil suits

against individuals "acting under color of law" who deprive any person of "any

substantive rights, privileges or immunities secured by the Constitution or laws

of this State." N.J.S.A. 10:6-2(c). However, the doctrine of qualified immunity

shields law enforcement officers and other government officials "'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) (quoting Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982)). In that regard, "qualified immunity 'is an

A-2075-20

14

immunity from suit rather than a mere defense to liability' [and] is effectively

lost if the case is allowed to go to trial." Wildoner, 162 N.J. at 387.

"The well-established defense of qualified immunity interposes a

significant hurdle for plaintiffs seeking to recover for asserted violations of civil

rights at the hands of law-enforcement officials." Morillo, 222 N.J. at 116.

Following federal case law, our courts employ a two-pronged test to determine

if a law enforcement officer is entitled to qualified immunity: "(1) whether the

evidence, viewed in the light most favorable to the plaintiff, establishes that the

official violated the plaintiff's constitutional or statutory rights, and (2) whether

the right allegedly violated was 'clearly established' at the time of the officer's

actions." Baskin, 243 N.J. at 128 (quoting Saucier v. Katz, 533 U.S. 194, 201

(2001), modified, Pearson v. Callahan, 555 U.S. 223 (2009)).

A right is clearly established if "a reasonable officer in the same situation

clearly would understand that his actions were unlawful." Morillo, 222 N.J. at

118. "In other words, 'existing precedent must have placed the statutory or

constitutional question' confronted by the official 'beyond debate.'" Plumhoff

v. Rickard, 572 U.S. 765, 779 (2014) (quoting Ashcroft v. al-Kidd, 563 U.S.

731, 741 (2011)). Said differently, "[i]f the law was clearly established, the

immunity defense ordinarily should fail, since a reasonably competent public

A-2075-20

15

official should know the law governing his conduct." Harlow, 457 U.S. at 818-

19. Thus, "the doctrine 'protects all officers but the plainly incompetent or those

who knowingly violate the law.'" Morillo, 222 N.J. at 118 (quoting Connor v.

Powell, 162 N.J. 397, 409 (2000)).

The New Jersey Constitution guarantees individuals the right to be free

from unreasonable seizures. N.J. Const. art. I, ¶ 7. Consequently, "[a]n arrest

– the most significant type of seizure by police – requires probable cause and

generally is supported by an arrest warrant or by demonstration of grounds that

would have justified one." State v. Rosario, 229 N.J. 263, 272 (2017). "Probable

cause relies on the facts of the individual case and 'is more than mere suspicion,

but less than legal evidence necessary to convict.'" Mesgleski, 330 N.J. Super.

at 26 (quoting State v. Mark, 46 N.J. 262, 271 (1966)).

Qualified immunity is applied "to civil rights claims brought against law

enforcement officials engaged in their discretionary functions, including

arresting or charging an individual based on probable cause to believe that a

criminal offense has occurred." Morillo, 222 N.J. at 117. An official can claim

qualified immunity "by demonstrating either that he or she acted with probable

cause, or that a reasonable law enforcement officer could have believed there

A-2075-20

16

was probable cause." Mesgleski, 330 N.J. Super. at 26 (citing Kirk v. City of

Newark, 109 N.J. 173, 184 (1988)).

"Law enforcement officers are not entitled to immunity 'if, on an objective

basis, it is obvious that no reasonably competent officer would have concluded

that a warrant should issue.'" Morillo, 222 N.J. at 118 (quoting Wildoner, 162

N.J. at 386). However, "[i]f officers of reasonable competence could disagree

on the issue of probable cause, the doctrine of qualified immunity should be

applied." Connor, 162 N.J. at 409. Thus, whether there was probable cause or

whether there was qualified immunity, "[b]oth require application of the

objective reasonableness standard of the Fourth Amendment without regard to

the law enforcement officer's underlying motive or intent." Schneider v.

Simonini, 163 N.J. 336, 366 (2000). An arrest "is reasonable 'regardless of the

individual officer's state of mind, as long as the circumstances, viewed

objectively, justify [the arrest]. The officer's subjective motivation is

irrelevant.'" State v. Brown, 205 N.J. 133, 146 (2011) (quoting State v. O'Neal,

190 N.J. 601, 613-14 (2007)). Similarly, the officer's "'subjective beliefs about

the [arrest] are irrelevant'" to qualified immunity, for which "absence of malice"

is not an element. Schneider, 163 N.J. at 354-55 (quoting Anderson v.

Creighton, 483 U.S. 635, 641 (1987)).

A-2075-20

17

Having carefully reviewed the record in light of these precedents, we are

satisfied that DeLorenzo was entitled to qualified immunity and summary

judgment and affirm substantially for the reasons stated by the motion judge.

We agree with the judge that plaintiff failed to establish DeLorenzo violated

plaintiff's "clearly established" constitutional or statutory rights because, under

the circumstances, a reasonably competent officer could have concluded that a

warrant could issue. The Directive neither established a statutory or

constitutional right for plaintiff's benefit, nor did it create any rights beyond

those established under the federal and state constitutions or state laws requiring

the issuance of arrest warrants upon a finding of probable cause. Critically,

notwithstanding the SCPO's position, DeLorenzo acted with probable cause, as

validated by the municipal court judge's determination, and probable cause

defeats plaintiff's tort claims. Although we do not condone DeLorenzo's

disregard of the SCPO's decision not to prosecute, the remedy does not create a

private cause of action for plaintiff or deprive DeLorenzo of qualified immunity.

See Morillo, 222 N.J. at 124 ("The officers' right to the benefit of qualified

immunity does not hinge on the soundness of the prosecutor's advice.").

Affirmed.

A-2075-20

18