Opposition Brief — Sloan v. Christy

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No. 02-519

In The |_OPFICE OF THE CLERK |

Supreme Court of the Anited States

DOUGLAS G. SLOAN,

Petitioner,

Vv.

CARROLL CHRISTY, RAYMOND MORALES,

and CITY OF MILLVILLE,

Respondents.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Third Circuit

BRIEF IN OPPOSITION

MADDEN, MADDEN, & DEL DUCA

PATRICK J. MADDEN, ESQUIRE

Counsel of Record -

108 Kings Highway East,

Suite 200

Post Office Box 210

Haddonfield, New Jersey 08033

Telephone: (856) 428-9520

Counsel for Respondents,

Raymond Morales &

City of Millville

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Whether petitioner is entitled to constitutional protec-

tion and concomitantly to damages for his alleged wrong-

ful prosecution for the crime of stalking, when his

prosecution was based on a course of conduct evidencing

unusually obsessive and fanatical behavior which engen-

dered a genuine and reasonable fear in defendant Carrol

~Christy, based on his transparent allegations that his

prosecution implicated his constitutional rights to free

speech and travel, and despite such conduct being deter-

mined by a reasonable police officer to constitute probable

cause for the crimes of stalking and harassment, or alter-

natively to engender an objectively reasonable belief that

probable cause existed for the arrest thus entitling the

officer to qualified immunity.

TABLE OF CONTENTS

Page

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TAB Lame OF ALTER 6D nccnsevesecssocescesseseosscrvessenes ili

CONSTITUTIONAL AND STATUTORY PROVI-

Te Be Or SUED wcdiceenssnsvicstcdentanivdenatstnennn 1

STATEMENT OF THE CASE..............ccsccosecsscceccssoees 3

1 FUR TI aia cies susan cccissincttivivsanecsins 4

REASONS FOR DENYING THE WRIT.................... 8

I. Petitioner Fails to Advance a Valid or Coher-

ent Reason Justifying the Granting of Cer-

SRI OES occsantixse np decieeeaanaaeeinaees 8

II.

III.

The Standards Employed by the Supreme

Court and the Third Circuit in Evaluating

Probable Cause Establish that Defendant Of-

ficer Morales Possessed Probable Cause to

Axwemt Cin: FEE oidicecsinicccsessvectsecetes pieeibene

Officer Morales is Entitled to Qualified

Immunity from Civil Liability for His Arrest

of Plaintiff Under Either the Supreme Court

or the Third Circuit’s Standard......................

CONCEAL FINIEN ..0cxs0resiseninsnsomnieaniaciiaiaatemetonmnnniies

iil

TABLE OF AUTHORITIES

Page

CASES

Barna v. City of Perth Amboy, 42 F.3d 809 (3d Cir.

III iat ochicc i ciceinasiaaca te abelecmnabenebieatagiunebevbeterevrmesevebennd 13

Beck v. State of Ohio, 379 U.S. 89 (1964) ........ eee cceeeeeeee 12

Brinegar v. United States, 338 U.S. 160 (1949)................. 12

Gerstein v. Pugh, 420 U.S. 103 (1978) .........ccccscsosssessevessees 13

Harlow v. Fitzgerald, 457 U.S. 800 (1982) ...................04. 15

Henry v. United States, 361 U.S. 98 (1959)... eee 13

Hunter v. Bryant, 502 U.S. 224 (1991) ...............ssseseee 14, 15

Illinois v. Gates, 462 U.S. 218 (1983) .................ccceseccceseees 13

Orsatti v. New Jersey State Police, 71 F.3d 480 (3d

ace Eee cis araial cs ceed dg niniegiaabunpennntd 12

Paff v. Kaltenbach, 204 F.3d 425 (3d Cir. 2000) ................ 13

Papachristou v. City of Jacksonville, 405 U.S. 156

a a a as a a nied advan ethanihantneninereiicn 12

Saucier v. Katz, 588 U.S. 194 (2001) ...............cccccccccssccceees 14

Sharrar v. Felsing, 128 F.3d 810 (3d Cir. 1997) ....18, 14, 15

United States v. Cruz, 910 F.2d 1072 (3d Cir. 1990) ......... 12

STATUTES

ETRE ee ene OR a ene 1

I SE asst nesannesssaqeaebevensansssnensasennes 1, 3, 11, 12, 16

ncaa chiinsin cnnedtignebounbavaiiaaens 15, 16

I So asc cahidcnvenencnenvbasnaonnnsansanisiansacens 8

TABLE OF AUTHORITIES — Continued

OTHER AUTHORITIES

Constitution of the United States, Amendment I.............. 1

Constitution of the United States, Amendment IV............. 1

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Constitution of the United States, Amendment I provides:

Congress shall make no law respecting an estab-

lishment of religion, or prohibiting the free exer-

cise thereof; or abridging the freedom of speech,

or of the press; or the right of the people peace-

ably to assemble, and to petition the Government

for a redress of grievances.

Constitution of the United States, Amendment IV pro-

vides:

The right of the people to be secure in their per-

sons, houses, papers, and effects, against unrea-

sonable searches and seizures, shall not be

violated, and no Warrants shall issue, but upon

probable cause, supported by Oath or affirma-

tion, and particularly describing the place to be

searched, and the persons or things to be seized.

42 U.S.C. § 1983 provides in pertinent part:

Every person who, under color of any statute, or-

dinance, regulation, custom, or usage, of any

State or Territory or the District of Columbia,

_subjects, or causes to be subjected, any citizen of

the United States or other person within the ju-

risdiction thereof to the deprivation of any rights,

privileges, or immunities secured by the Consti-

tution and laws, shall be liable to the party in-

jured in an action at law, suit in equity, or other

proper proceeding for redress... .

The original version of N.J.S.A. 2C:12-10 provides in

pertinent part:

a. As used in this act:

(1) “Course of conduct” means a knowing and

willful course of conduct directed at a specific

person, composed of a series of acts over a period

of time, however short, evidencing a continuity of

purpose which alarms or annoys that person and

which serves no legitimate purpose. The course

of conduct must be such as to cause a reasonable

person to suffer emotional distress. Constitution-

ally protected activity is not included within the

meaning of “course of conduct.”

(2) “Credible threat” means an explicit or im-

plicit threat made with the intent and the appar-

ent ability to carry out the threat, so as to cause

the person who is the target of the threat to rea-

sonably fear for that person’s safety.

b. A person is guilty of stalking, a crime of the

fourth degree, if he purposely and repeatedly fol-

lows another person and engages in a course of

conduct or makes a credible threat with the in-

tent of annoying or placing that person in rea-

sonable fear of death or bodily injury.

c. A person is guilty of a crime of the third de-

gree if he commits the crime of stalking in viola-

tion of an existing court order prohibiting the

behavior.

d. A person who commits a second or subse-

quent offense of stalking which involves an act of

violence or a credible threat of violence against

the same victim is guilty of a crime of the third

degree.

e. This act shall not apply to conduct which oc-

curs during organized group picketing.

As amended effective June 20, 1996, N.J.S.A. 2C:12-10

provides in pertinent part:

a. As used in this act:

(1) “Course of conduct” means repeatedly main-

taining a visual or physical proximity to a person

or repeatedly conveying verbal or written threats

or threats implied by conduct or a combination

thereof directed at or toward a person.

(2) “Repeatedly” means on two or more occa-

sions.

(3) “Immediate family” means a spouse, parent,

child, sibling or any other person who regularly

resides in the household or who within the prior

six months regularly resided in the household.

a. A person is guilty of stalking, a crime of the

fourth degree, if he:

(1) Purposefully engages in a course of conduct

directed at a specific person that would cause a

reasonable person to fear bodily injury to himself

or a member of his immediate family or to fear

the death of himself or a member of his immedi-

ate family; and

(2) Knowingly, recklessly or negligently places

the specific person in reasonable fear of bodily in-

jury to himself or a member of his immediate

family or in reasonable fear of the death of him-

self or a member of his immediate family.

STATEMENT OF THE CASE

Petitioner seeks plenary review of a decision of the

United States Court of Appeals for the Third Circuit

affirming the District Court’s decision granting summary

judgment to the defendants on all counts on the grounds

that defendant, Officer Raymond Morales, was prudent

and reasonable in determining that Douglas Sloan en-

gaged in a course of conduct directed at Carroll Christy

that would have caused a reasonable person in her posi-

tion to fear bodily injury to herself or a member of her

immediate family, or alternatively that defendant Morales

is entitled to qualified immunity from suit. The Court

further held that no evidence was presented supporting

the theory that a city policy or custom was the moving

force behind the constitutional deprivations allegedly

suffered by the plaintiff. Both lower courts dismissed

plaintiff’s claims in their entirety upon defendant’s motion

for summary judgment.

1. Factual Background

The course of conduct admittedly engaged in by

plaintiff evidences the probable cause justifying his arrest

by Officer Morales. In large measure, a number of the

facts and circumstances relevant to Morales’ decision were

communicated directly to Morales by the plaintiff himself.

Namely, on June 29, 1996, Mr. Sloan appeared at the

Millville Police Station and asked to speak to a police

officer. App. 24a. Officer Morales’ report, prepared soon

after his interaction with Mr. Sloan, indicates that “Mr.

Sloan said that he wanted me to know that he was very

upset with Carroll Christy because she does not want to

speak to him. Mr. Sloan said that he had a dating relation-

ship with Carroll Christy and does not know if it’s over

because Carroll never told him.”

Also, Officer Morales was provided with a typewritten

statement from Mr. Sloan. This statement, which the

District Court described as “bizarre,” conveyed the follow-

ing information to Officer Morales: App. 24a.

¢ That Douglas Sloan had been involved in a

sexual relationship with Carroll Christy from

August of 1995 until March of 1996;

¢ The relationship was terminated by Carroll

Christy on March 17, 1996, and that the ter-

mination of the relationship was a great shock

to Mr. Sloan;

¢ That following the termination of the relation-

ship, Mr. Sloan returned to Canada (his home

country);

¢ That, in the week following the termination of

the relationship, Mr. Sloan called Ms.

Christy’s residence repeatedly, filling up her

answering machine tape over the course of re-

peated messages;

¢ Despite Ms. Christy's termination of the rela-

tionship, and her refusal to respond to Mr.

Sloan’s phone calls, that he made reservations

to fly down to visit her over the Easter week-

end.

¢ While calling her office to inform her that he

was flying down, that Ms. Christy informed

him, “Doug, this time you’ve gone too far.

You’ve harassed me all weekend and I’ve spo-

ken to the Millville Police about you. If you

come, I won’t be there and I will call the po-

lice.”

¢ Following this phone call, that Mr. Sloan

wrote Ms. Christy eleven (11) letters, the

majority of which were returned marked “Re-

fused.”

e That Sloan believed Ms. Christy's behavior to

be “bizarre” and that subtly she may be either

enjoying or trying to encourage Sloan’s pur-

suit: “Openly, she seems utterly hostile, but

beneath the surface there is a subtlety (chang-

ing the setting on her phone machine, not

writing refused on that one returned letter,

inviting me into the bath) that suggests she is

thinking through every step very carefully.”

Thus, Mr. Sloan’s statement in and of itself conveyed

to Officer Morales sufficient facts to indicate that Carroll

Christy wanted nothing further to do with her former

lover, that she felt she was being harassed and that Mr.

Sloan was pursuing Ms. Christy through phone calls,

letters and finally by coming to Millville from Canada in

an effort to recapture her heart.

The statement also contains a narrative which, while

probably not explicitly criminal, was as Officer Morales

described it, “weird.” Namely, the three (3) page statement

provided by Sloan to Officer Morales contains details of

the intimacies engaged in between Mr. Sloan and Carroll

Christy during their relationship. Specifically, this state-

ment refers to the couple kissing passionately; becoming

frustrated in an attempt to make love because of outdated

condoms; dancing together to the music of Frank Sinatra;

showering together; making such passionate love on the

floor of Carroll Christy's attic that she was left with an

abrasion on her back; and engaging in protracted lovemak-

ing in Carroll Christy’s bathtub.

Beyond this statement, Mr. Sloan himself made a

verbal statement or statements to Morales which caused

Officer Morales to be wary. Specifically, and in Mr. Sloan’s

own words, he asked what the ramifications would be if

Mr. Sloan “camped on her [Carroll Christy’s] front lawn.”

App. 24a. By Officer Morales’ own account, this inquiry

about camping on Carroll Christy's front yard “startled”

him. App. 34a, 35a. Additionally, while Sloan was at the

police station, Morales received a phone call from Carroll

Christys former sister-in-law, Jane Christy, indicating

that Sloan was “harassing” Mrs. Christy and her husband.

App. 24a.

It is not disputed that, following Sloan’s departure

from the station, Officer Morales was contacted by Ms.

Christy’s son, Blake Christy, because of his concern for his

mother. App. 24a. Because of this concern Officer Morales

directed himself to the Christy residence to conduct a

search for Mr. Sloan. Not finding Sloan, Morales awaited

Ms. Christy's arrival. App. 25a.

It is also not disputed that upon her arrival, Ms.

Christy informed Officer Morales that Sloan had been

calling her house constantly and that she had had to

change her phone number. App. 19a, 20a, 21a. Ms. Christy

additionally informed Officer Morales that Sloan had been

harassing her employees and sending her letters and that

Ms. Christy had received a letter from Sloan’s attorney

advising that Sloan wished to meet with her. App. 22a.

Officer Morales also testified that Carroll Christy

appeared upset in the early morning of June 30, 1996.

App. 25a. “Basically Carroll said she had enough of Mr.

Sloan, she was upset and basically she didn’t know what

to do and that was it.” In Ms. Christy's own words: “I was

threatened to the point where I felt you were becoming

irrational and I didn’t know what you would do. I was

very, very frightened.”

It is also not disputed that Morales assisted Ms.

Christy in applying for a Domestic Violence Restraining

Order, which was granted and eventually made perma-

nent, and that when Mr. Sloan was eventually found for

the purpose of serving the restraining order on July 3,

1996, he was located in a state park approximately twenty

(20) miles from Ms. Christy's place of employment. App.

25a. |

The above facts were unequivocally within the defen-

dant Morales’ knowledge, either related directly to him by

Mr. Sloan or by Ms. Christy and her family over the course

of events from June 29, 1996, to July 3, 1996. Thus,

probable cause certainly existed for Morales’ arrest of

Sloan, and this petition for certiorari should therefore be

denied.

REASONS FOR DENYING THE WRIT

I. PETITIONER FAILS TO ADVANCE A VALID OR

COHERENT REASON JUSTIFYING THE GRANT-

ING OF CERTIORARI.

Supreme Court Rule 10.1 establishes the standards

applicable to the Supreme Court granting certiorari. It

states:

Review on Writ of Certiorari is not a matter of

right, but of judicial discretion. A Petition for a

Writ of Certiorari will be granted only for com-

pelling reasons. The following, although neither

controlling nor fully measuring the Court's

discretion, indicate the character of reasons the

Court considers:

(a.) a United States Court of Appeals has en-

tered a decision in conflict with the decision

of another United States Court of Appeals

on the same important matter; or has de-

cided a federal question in a way in conflict

with the State Court of last resort; or has so

far departed from the accepted usual course

of judicial proceedings, or sanctioned such a

departure by a lower court, as to call for an

exercise of this Court’s supervisory power;

-b.) a State Court of last resort has decided an

important federal question in a way that

conflicts with the decision of another State

Court of last resort or of a United States

Court of Appeals.

(c.) a State Court or a United States Court of

Appeals has decided an important question

of federal law that has not been, but should

be, settled by this Court, or has decided a

federal question in a way that conflicts with

relevant decisions of this Court.

—E

A petition for a writ of certiorari is rarely granted

when the asserted error consists of erroneous

factual findings or the misapplication of a prop-

erly stated rule of law.

Despite petitioner’s voluminous citations to existing

case law, he fails to advance a coherent argument that

would justify the granting of certiorari. The decision of the

Third Circuit is not in conflict with this Court or any other

Circuit, nor did the Third Circuit decide an important

question of federal law which necessitates the granting of

certiorari. Rather, plaintiff seeks review of the Third

Circuit’s affirmation of the District Court’s granting of

summary judgment to the defendants simply due to his

inability to accept that decision which directly coincides

with his inability to accept Carroll Christy’ rebuffing of

his obsessive and troubling advances. Plaintiff character-

izes such advances as attempts at reconciliation inspired

by true feelings of love when in fact they can more accu-

rately be characterized as an obsessive following which

instilled genuine feelings of fear in Carroll Christy and

which the harassment and stalking statutes were de-

signed, in part, to prevent. The course of conduct engaged

in by petitioner established the requisite probable cause

for petitioner’s arrest as well as evidencing such irration-

alities so as to buttress Carroll Christy’s belief that her

fears were and are reasonable.

Moreover, the standards employed by this Court in

evaluating probable cause of law enforcement officers and

qualified immunity of those officers are entirely in concert

with the Third Circuit’s reasoning. The District Court

found that Officer Morales was prudent and reasonable in

determining that plaintiff engaged in a course of conduct

directed at Carroll Christy that would have caused a

reasonable person in her position to fear bodily injury to

herself or a member of her immediate family. Subse-

quently the Third Circuit affirmed the District Court’s

entry of summary judgment finding no tryable factual

dispute as to whether Officer Morales had probable cause

to arrest Sloan for stalking. Moreover, both the District

Court and the Third Circuit found in favor of defendants

on the alternative ground that Officer Morales is entitled

to qualified immunity. Additionally, there were no material

facts in dispute with reference to the events and circum-

stances leading to petitioner’s arrest. Therefore, summary

judgment was properly granted to the defendant and that

( decision should remain undisturbed.

II. THE STANDARDS EMPLOYED BY THE SU-

PREME COURT AND THE THIRD CIRCUIT IN

EVALUATING PROBABLE CAUSE ESTABLISH

THAT DEFENDANT OFFICER MORALES POS-

SESSED PROBABLE CAUSE TO ARREST THE

PLAINTIFF.

Plaintiff’s Complaint alleged that he was either

falsely arrested or maliciously prosecuted for the crime of

stalking. There were no material facts in dispute with

reference to the events and circumstances leading to

plaintiff’s arrest. Because these undisputed facts provided

Officer Morales with probable cause to arrest plaintiff, he

cannot be held civilly liable for effectuating this arrest.

Summary judgment was properly granted to the defen-

dants and that decision should remain undisturbed.

Plaintiff was charged with stalking in violation of

N.J.S.A. 2C:12-10. New Jersey’s anti-stalking statute was

enacted effective January 5, 1993. It was subsequently

amended by L. 1996, C. 39, effective June 20, 1996.’ In

pertinent part, the original version of the statute made it

illegal to repeatedly engage in a “course of conduct” in

order to alarm or annoy and to follow a person. N.J.S.A.

2C:12-10. The amended version of the statute removed the

te ete ee

* The stalking statute was additionally amended by L. 1998 C. 17,

section 3, effective May 6, 1998 and L. 1999, C. 47, section 1, effective

March 12, 1999. It is the original stalking statute and the statute as

amended effective June 20, 1996 which are relevant to this litigation.

“following” requirement and further defined course of

conduct as repeatedly “maintaining a visual or physical

proximity to a person” or repeatedly conveying expressed

or implicit threats. N.J.S.A. 2C:12-10 (as amended). The

amended version of the statute also defined “repeatedly”

as two or more occasions. Ibid.

The Fourth Amendment prohibits a police officer from

arresting a citizen without probable cause. See Orsatti v.

New dersey State Police, 71 F.3d 480, 482 (3d Cir. 1995)

(citing Papachristou v. City of Jacksonville, 405 U.S. 156

(1972). “Whether [an] arrest was constitutionally valid

depends in turn upon whether, at the moment the arrest

was made, the officer had probable cause to make it.” Beck

uv. State of Ohio, 379 U.S. 89, 91 (1964) (citing Brinegar v.

United States, 338 U.S. 160, 175-176 (1949)).

The standards advanced by the Supreme Court and

the Third Circuit in probable cause determinations are

nearly identical. This Court has stated that probable cause

to arrest exists if at the moment of the arrest “the facts

and circumstances within [the officer’s] knowledge and of

which they had reasonable trustworthy information were

sufficient to warrant a prudent man in believing that the

petitioner had committed or was committing an offense.”

Beck v. State of Ohio, 379 U.S. 89, 91 (1964) citing Brine-

gar v. United States, 338 U.S. 160, 175-176 (1949). Accord-

ing to the Third Circuit, probable cause to arrest exists

when the information within the arresting officer’s knowl-

edge at the time of the arrest is sufficient to warrant a

reasonable law enforcement officer to believe that an

offense has been or is being committed by the person to be

arrested. See United States v. Cruz, 910 F.2d 1072, 1076

(3d Cir. 1990). Under both standards probable cause

existed to effectuate the arrest of Douglas Sloan.

Probable cause “is a fluid concept — turning on the

assessment of probabilities in a particular factual context

— not readily, or even usually, reduced to a neat set of legal

rules.” Paff v. Kaltenbach, 204 F.3d 425, 436 (3d Cir. 2000)

(quoting from Illinois v. Gates, 462 U.S. 213, 232 (1983)).

While probable cause to arrest requires more than mere

suspicion, the law recognizes that probable cause determi-

nations have to be made “on the spot” under pressure and

do “not require the fine resolution of conflicting evidence

that a reasonable doubt or even a preponderance standard

demands.” Ibid. (quoting from Gerstein v. Pugh, 420 U.S.

103, 121 (1975)). A “‘common sense’ approach [must be

taken] to the issue of probable cause,” and a determination

as to its existence must be based on “the totality of the

circumstances.” Ibid. (quoting from Sharrar v. Felsing, 128

F.3d 810, 818 (3d Cir. 1997)).

It does not matter that plaintiff was eventually not

convicted of the crime charged. The Supreme Court has

determined that “[e]vidence that may prove insufficient to

establish guilt at trial may still be sufficient to find the

arrest occurred within the bounds of the law.” Barna v.

City of Perth Amboy, 42 F.3d 809 (3d Cir. 1994) (citing

Henry v. United States, 361 U.S. 98, 102 (1959)).

The information within Officer Morales’ knowledge at

the time of Mr. Sloan’s arrest was sufficient to warrant a

reasonable or prudent law enforcement officer’s belief that

the offense of stalking either had been or was in the

process of being committed by Mr. Sloan under either the

Supreme Court’s or the Third Circuit’s standard and under

either version of the New Jersey stalking statute. Mr.

Sloan had engaged in an unwanted pursuit of Ms. Christy

which caused her to fear that Mr. Sloan would kidnap or

kill her. Mr. Sloan’s conduct, and his pursuit, included

traveling hundreds of miles from Canada to Ms. Christy’s

hometown and later lurking in a state park in the vicinity

of her place of employment. Mr. Sloan had both “followed”

Ms. Christy and maintained a physical proximity to Ms.

Christy on two or more occasions, and he was aware that

Ms. Christy was afraid of him. The existence of probable

cause is irrefutable.

Ill. OFFICER MORALES IS ENTITLED TO QUAL-

IFIED IMMUNITY FROM CIVIL LIABILITY

FOR HIS ARREST OF PLAINTIFF UNDER EI-

THER THE SUPREME COURT OR THE THIRD

CIRCUIT’S STANDARD.

As set forth above, it is respectfully submitted that

probable cause did exist to arrest plaintiff on July 3, 1996

for the crime of stalking. Therefore, as a matter of law,

defendants’ summary judgment motion was correctly

granted and this decision should not be disturbed by

granting petitioner’s writ. The Third Circuit affirmed the

District Court’s holding that, in the alternative, Officer

Morales was entitled to qualified immunity from liability

because of his reasonable belief that probable cause did

exist. This finding of qualified immunity is equally unas-

sailable and should not be disturbed.

Law enforcement officials who “reasonably but mis- |

takenly” conclude that their conduct comports with the |

requirements of the Fourth Amendment are entitled to

immunity. Sharrar v. Felsing, 128 F.3d 810, 826 (3d Cir.

1997) (citing Hunter v. Bryant, 502 U.S. 224 (1991)). “The

concern of the immunity inquiry is to acknowledge that

reasonable mistakes can be made as to the legal con-

U.S. 194, 205 (2001). In this way, “the qualified immunity

ee |

standard ‘gives ample room for mistaken judgments’ by

protecting ‘all but the plainly incompetent or those who

knowingly violate the law.’” Jd. (quoting from Hunter, 502

U.S. at 229 (subquotations omitted)).

Qualified immunity shields officers “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.” Sharrar,

128 F.3d at 826 (quoting from Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982)). In cases involving alleged violations

of the Fourth Amendment, the Supreme Court has empha-

sized that the inquiry is whether a reasonable officer could

have believed that his or her conduct was lawful, in light

of the clearly established law, and the information in the

officer’s possession. Jd. (citations omitted).

The objective reasonableness of the officer’s actions is

a question of law for the Court to decide. Sharrar uv.

Felsing, 128 F.3d at 826-28. Based upon the undisputed

facts of this case, Officer Morales’ actions were objectively

reasonable. Morales’ conclusion that probable cause

existed to arrest Sloan under the superceded stalking

statute was a reasonable conclusion given the facts and

circumstances presented to him. Second, because Morales

could have arrested Sloan for harassment pursuant to the

provisions of New Jersey’s Domestic Violence Act, plaintiff

Sloan cannot maintain a claim based upon a purported

false arrest on the charge of stalking.

As is acknowledged above, Officer Morales was un-

aware on July 3, 1996 that N.J.S.A. 2C:12-10b had been

superceded as of June 20, 1996. Morales, in fact, based his

assessment of probable cause on the superceded statute

and arrested Sloan based upon his belief that Sloan’s

actions violated the same. To the extent, therefore, that

Morales believed that Sloan’s conduct should have been

viewed in the light of the superceded statute, he was in

fact mistaken. However, this mistake and his conclusion

that there was probable cause to arrest Sloan under the

superceded statute were certainly reasonable. The statute

itself had only been amended nine days prior to Morales’

initial contact with Sloan. As Morales testified during his

deposition, he initially reviewed the superceded statute

with Sloan. The statute itself, 2C:12-10b, was within a

bound paperback manual in Morales’ possession. There

was no testimony or evidence that the statute as amended

had made its way into this manual.

While it is certainly reasonable to expect a police

officer to be familiar with the provisions of the criminal

code, it is not reasonable to expect a police officer to check

on the status of pending or effective amendments to the

code each time he opens Title 2C, the Code of Criminal

Justice. Therefore, Morales’ failure to know of the amend-

ment to the anti-stalking statute was reasonable under

the circumstances.

With regards to specific factors providing Morales

with an objective reasonable belief that probable cause

existed, the superceded statute provided for criminal

liability for “purposely and repeatedly follow[ing] another

person and engag[ing] in a course of conduct or mak[ing] a

credible threat with the intent of annoying or placing that

person in reasonable fear of death or bodily injury.”

N.J.S.A. 2C:12-10.

Reviewing Sloan’s conduct in the light of the super-

ceded statute, his trip to Millville, New Jersey and his

relocation to a state park in the vicinity of Ms. Christy’s

place of employment for the sole purpose of attempting to

recapture her heart must be seen as the “follow[ing]” set

forth in the statute. Additionally, Sloan’s repeated phone

calls to Ms. Christys home, his unwanted letters to Ms.

Christys place of employment, his phone calls to Ms.

Christy’ place of employment and Sloan’s contacts with

Ms. Christy’s family members must be seen as the “course

of conduct” prohibited by the statute. Further, Sloan’s

statement to Ms. Christy that he was “taking back what

he said about not holding a grudge,” in the context in

which it was made must be seen as a “credible threat” as

defined by the statute.

Thus, considering Sloan’s conduct under the terms of

the superceded statute, there was certainly an objectively

reasonable belief on the part of Officer Morales that

probable cause existed to arrest Sloan.

Given the above, Morales’ decision to charge Sloan

with stalking was certainly objectively reasonable, and he

should not be subject to civil liability for determining that

probable cause existed to arrest Mr. Sloan for stalking.

CONCLUSION

For the foregoing reasons, the petition for writ of

certiorari should be denied.

Respectfully submitted,