Opposition Brief — Andros v. Gross (No. 08-919)

WAR 2 Y ZiiS

VFrCer OF Triit CLERK

SUPREME COUAT, U.S.

No. 08-919

F097 eS

ey FILED |

2 :

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IN THE

Supreme Court of the United States

JAMES L. ANDROS, ITI,

Petitioner,

v.

SGT. BRUCE K. DESHIELDS, LT. ELADIO ORTIZ,

JEFFREYS. BLITZ, ESQ., MURRAY A. TALASNIK, ESQ,,

STATE OF NEW JERSEY, AND CPT.

CHRISTOPHER WELLMAN,

Respondents.

On PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES Court OF APPEALS FOR THE THIRD CIRCUIT

BRIEF IN OPPOSITION

BENJAMIN CLARKE

Counsel of Record

THomaS A. ABBATE

DeCotus, FitzPatrick, COLE

& WISLER, LLP

Glenpointe Centre West, Suite 31

500 Frank W. Burr Blvd.

Teaneck, New Jersey 07666

201-928-1100

Counsel for Respondents

1

QUESTIONS PRESENTED

1. Whether an unpublished, non-precedential

decision of the United States Court of Appeals for the

Third Circuit, holding, on unique facts, that probable

cause existed to support the filing of criminal charges

against petitioner, presents grounds for issuance of a

writ of certiorari?

2. Whether the Third Circuit’s holding, in an

unpublished, non-precedential decision, that qualified

immunity protects respondents because reasonable law

enforcement officers could have believed that probable

cause existed to support the filing of criminal charges

against petitioner, presents grounds for issuance of a

writ of certiorari?

li

TABLE OF CONTENTS

QUESTIONS PRESENTED ..............5

pe 8d. sy

I. The State Criminal Proceedings .......

II. The Proceedings Below ...............

III. Events Surrounding Ellen Andros

es cas ccc esc vcecses

IV. The ACPO’s Investigation .............

V. Post-Arrest History ....... i

VI. The District Court’s Decisions .........

VII. The Decision of the Court of Appeals ..

REASONS FOR DENYING THE PETITION ...

i oummary of Argument ................

iV

V

lil

Contents

Page

Il. The Court of Appeals Properly Applied

Settled Law Governing Qualified

Immunity in Holding That Respondents’

Belief in the Existence of Probable Cause

was Objectively Reasonable ............ 17

III. The Court of Appeals did not Depart From

the Court’s Summary Judgment Juris-

prudence in Holding That no Material

Dispute of Fact Existed Regarding

Respondents’ Entitlement to Qualified

SU “ie 8 odin he oe ae ee 22

CCEA iv eas cevavs wed eee 24

Iv

TABLE OF APPENDICES

Appendix A — Order Of The United States

District Court For The District Of New Jersey,

Camden Vicinage Filed April 11, 2007....... la

Appendix B — Order Of The United States

District Court For The District Of New Jersey

Filed December 21, 2005 .....ccccccesccces 4a

Appendix C — Order Of The United States

District Court For The District Of New Jersey

Filed February 23, 2004 .........ccc ences 7a

Appendix D — Order Of Voluntary Dismissal As

To Certain Claims Of The United States

District Court For The District Of New Jersey

Fited November 6, Z008 .........ccccsecces 12a

TABLE OF CITED AUTHORITIES

Page

Federal Cases

Acierno v. Cloutier,

40 F.3e 507 (Gd Cir, 1994) .... 0. ccc ccc eens 21

Anderson v. Creighton,

ee oo vic kk wae weedesen ues 19

Anderson v. Liberty Lobby, Inc.,

ee es ee CE hos he ns oh oe ea heed ene es 24

Barna v. City of Perth Amboy,

42 FBG GOP GG Cle. I9GE) on civic ccc csccess 18

Cartier v. Lussier,

900 F.2d G41 (2d Cir. 1902) ... 2... cccecccees 20

Devenpeck v. Alford,

ee 2, Be CE acoso bees cccboueecdawes 18

Donovan v. Briggs,

250 F'Supp.2d 242 (W.D.N.Y. 2003) .......... 20

Gilles v. Davis,

O27 Se TT (Se Cir, BOOT) ... occ vc cases 20

(rreen v. City of Paterson,

Pe) Pie. Set CAV.IN.d. TOGT) nw cece cccsees 21

Harlow v. Fitzgerald,

ee rE 6 ki oye oe ha eb aw oe 18

vi

Cited Authorities

Page

Kelley v. Myler,

149 F:'Sd 641 (7th Cir. 1998) ...............- 18

Malley v. Briggs,

SE REED Sv kbc vk cece eveddosvcs 19

Merkle v. Upper Dublin School District,

S11 FBG Tee (Sa Cir, 2008) on... ccc cccwesens 22

Mitchell v. Forsyth,

as CRD © hoc ews occas ep vendcceens 19

Orsatti v. New Jersey State Police,

71 F.30 460 Ga Cir. 1905) .............. 16, 17, 20

Pearson v. Callahan,

129 S.Ct. 808,565 U.S. (2009) ........0.. 18

Rogers v. Powell,

120 F.3d 446 (Sd Cir. 1997) 2... cccecceseess 21

Saucier v. Katz,

Be Ee, BO) gece ce iccseweseenas 18

Sharrar v. Felsing,

Ee fe Se ee GAR UDET) nnn wc cca cw eees 22-23

Sherwood v. Mulvihill,

'7o Poe bee (eG Cir FOBT) 2... ccc cc wwe 23

vil

Cited Authorities

Page

Trabal v. Wells Fargo Armored Service Corp.,

269 F.3d 248 (8d Cir. 2001) ............. cece 22

Von Stein v. Brescher,

904 F.2d 572 (11th Cir. 1990) ............... 20

United States Constitution

U.S. Const. Amend XI ..... Sets oa eee 11

Federal Statutes

Oe a a ag Soy lh ad at 10

State Statutes

N.J.Stat.Ann. 59:3-1 ef seg. ....... cece ewes: 11

Federal Rules

ME ooo 5 en evs kc HRS EURO NER 24

eR A rr ee rrr es rn 17

Other Authorities

Internal Operating Procedures of the United

States Court of Appeals for the Third Circuit,

CO CUED x oie kha ba a cones a Venn e sues 3

1

STATEMENT OF THE CASE

I. The State Criminal Proceedings

In the early morning hours of March 31, 2001,

petitioner James L. Andros III (“Andros”) returned to

his marital home and discovered his wife Ellen slumped

at her computer. Unable to get a response from her, he

called 911. The emergency response team determined

Ellen was dead and called in the Medical Examiner and

the Atlantic County Prosecutor’s Office (“ACPO”). After

inspecting the death scene and performing an autopsy,

the Medical Examiner, Dr. Elliot M. Gross, pronounced

Ellen’s death a homicide, caused by “asphyxia due to

suffocation.”

For the next three weeks, the ACPO performed a

homicide investigation. The investigation yielded

evidence that Ellen Andros had a new romantic interest,

was preparing to leave her husband, and that Andros

had a long history of abusive conduct toward her. The

ACPO sought a warrant for Andros’ arrest from a judge

of the Superior Court of New Jersey on April 23, 2001.

The court found probable cause to exist, and issued the

warrant. The matter was thereafter presented to a

grand jury, which handed up an indictment charging

Andros with one count of murder on June 5d, 2001.

A second judge of the Superior Court of New Jersey

subsequently reviewed the grand jury proceedings and

upheld the indictment in a decision dated September 7,

2001.

In late 2002, the ACPO engaged an independent

forensic pathologist, Dr. Donald Jason, to review the

2

medical evidence and the findings of Dr. Gross. Dr.

Jason, in reviewing the sectional slides of Ellen Andros’

coronary artery, concluded that she had died of a

spontaneously dissecting coronary artery, an extremely

rare natural cause of death, not of asphyxiation. The

next day, December 4, 2002, the ACPO sought and

obtained an order dismissing the charge.

Il. The Proceedings Below

Andros filed suit below on April 22, 2003, naming

nine defendants. Four of the defendants — Dr. Gross,

Dr. Hydow Park, nurse Barbara Fenton, and the County

of Atlantic (the “County Examiner defendants”) — were

associated with the Medical Examiner’s Office, and were

alleged to have been responsible for the Medical

Examiner’s erroneous homicide finding. Respondents,

the other six defendants — Prosecutor Jeffrey Blitz, First

Assistant Prosecutor Murray Talasnik, Capt.

Christopher Wellman, Lt. Eladio Ortiz, Sgt. Bruce

DeShields and the State of New Jersey - were

associated with the ACPO, and were alleged to have

mischarged Andros with homicide’.

Respondents assertea they were immune from suit,

and moved for summary judgment. By opinion dated

February 23, 2004, the District Court (Hon. Jerome B.

Simandie, U.S.D.J.) found that t.ie charges against

petitioner were supported by probable cause, and

granted partial summary judgment in favor of

' Capt. Christopher Wellman was not initially a defendant

hut was named later in a separate complaint which was

thereafter consolidated with the original matter.

3

resnondents as to petitioner’s federal claims. (Pet. App.

i4). Respondents thereafter moved for summary

judgment on the remaining state law claims, and Andros

cross-moved for reconsideration. By decision dated

December 21, 2005, the District Court granted the

prosecutorial defendants’ motion for summary judgment

as to the remaining claims, and denied Andros’ motion

for reconsideration. (Pet. App. 90).

In March 2007, petitioner reached a $2.3 million

settlement of his claims against the County Examiner

defendants, and then appealed the District Court’s

decision granting summary judgment to respondents

to the United States Court of Appeals for the Third

Circuit. (Br. App. la). Petitioner restricted his arguments

before the Court of Appeals to two contentions: that the

District Court erred in determining that probable cause

existed (and that respondents were therefore entitled

to qualified immunity from suit on certain claims), and

in dismissing petitioner’s claims for familial interference.

On September 22, 2008, the Court of Appeals affirmed

the decision of the District Court in an unpublished and

non-precedential opinion. See Internal Operating

Procedures of the United States Court of Appeals for

the Third Circuit, Chapter 5 (2002); (Pet. App. 1).

Petitioner then sought panel and en banc rehearing,

which were denied by order dated October 20, 2008.

(Pet. App. 126). This petition for a writ of certiorari

followed.

4

Ill. Events Surrounding Ellen Andros’ Death

After leaving work on March 30, 2001, Andros, an

Atlantic City police officer, went to a bar in Brigantine

known as the Beach Bar. He met his father there, and

stayed from 9:00 p.m. until close to closing time. He

arrived home to discover his wife unresponsive at her

computer terminal, and, at 4:27 a.m., called 911. EMTs

and law enforcement officers arrived soon thereafter,

and Ellen was pronounced dead. There were no signs

of forced entry into the house, the door and windows

were ntact and a key was required for entry. No signs

of a struggle were evident, and Ellen’s two young

children were found sleeping in the room where she was

discovered dead.

The police sought to question Andros, who was in a

state of intoxication as well as emotional turmoil. Andros

responded to inquiries about whether he was drunk by

saying “he had just returned from the Beach Bar in

Brigantine following a long night of drinking,” and

confirming that he was “fucked-up.” Andros asked one

of the police officers, “to accept custody of his off-duty

firearm,” and, as he did so, “stated that he was turning

over the handgun to prevent him from hurting himself

and leaving his daughters all alone.” When the local

police inguired about his service weapon, Andros told

them “it was close,” but “not to worry about that

gun... Mr. Andros stated, ‘Atlantic City can come get

their gun their fuckin’ selves’.” The local police

suggested to Andros that he contact other family

members. Mis response was, “|W |hat the fuck for? What

the fuck can they do, why don’t you call your own fucking

family.” The first responding officer noted “Most of the

5

conversation that we had with Mr. Andros had the same

outcome.” The police also observed an unusual

encounter between Ellen’s mother and Andros. Upon

the mother’s arrival at the house, on first encountering

Andros, she “asked [Andros] directly, ‘Did you kill her?”

The local authorities contacted the County Medical

Examiner and the ACPO. Dr. Elliot Gross, the Medical

Examiner, arrived at the house shortly after 9:00 a.m.

Dr. Gross’ Scene Investigation Report noted, with

respect to Ellen’s body, that the “nose and promontory

of the chin both have a blanched appearance”; that

“on the left side of the neck is a patterned impression”;

that “at the level of the cricoid cartilage is a... heart-

like pattern ... just below the edge of the collar.” The

report stated, “The body is warm and has a distinct

posterior lividity at 9:50 a.m. Rigor mortis is not

evident.” Later that morning, Dr. Gross performed an

autopsy on Ellen’s body. The autopsy report noted the

presence of “fine petechial hemorrhages” on the

forehead, eyelids, right cheek, and conjunctivae, and

concluded that Ellen’s death was a homicide, caused by

“asphyxia due to suffocation.”

IV. The ACPO’s Investigation

As a result of the Medical Examiner’s homicide

finding, the ACPO opened a criminal investigation.

Andros was interviewed and he advised the ACPO

investigators that he had spent the evening and early

morning hours at the Beach Bar, arrived home to find

his wife slumped and unresponsive at her computer,

attempted to revive her, and then called 911. Over the

next three weeks, the ACPO also interviewed Ellen

6

Andros’ friends and family members, the owner, staff

and customers of the Beach Bar, and the first

responders. It also contacted Ellen Andros’ internet

service provider to obtain a log of her internet activity.

According to all of Ellen’s friends and family, her

marriage was a very unhappy one almost from the

outset, and Andros was an abusive, manipulative

husband and father. Highly consistent accounts were

received of instances where Andros had mistreated Ellen

and their two children, especially when under the

influence of alcohol. The mistreatment was usually

verbal or psychological, but sometimes physical and

often threatening. Numerous sources told the ACPO

that Andros and Ellen slept in different parts of the

house; that she was involved with another man, Calvin

Gadd; and that she had “talked about leaving Jim for

quite some time,” but “was afraid to leave Jim because

he would always tell her he would get custody of the

girls.” On two prior occasions, the couple had separated.

Mary Ann Bakogiannis, a friend of Ellen’s, recounted

numerous instances of violent, erratic behavior by

Andros while drunk, including threats against Ellen.

According to Ms. Bakogiannis, Ejlen told her of an

episode in which Andros pointed his gun at her, and said,

“Bang,” with a “dead serious” face; Ms. Bakogiannis

said, after hearing that account, “I told her that I

thought Jim was dangerous and that she should get out

of there before he killed her.” Ms. Bakogiannis also

chronicled a wide range of loutish, brutish behavior by

Andros, including: abuse of a pet dog; taunting of his

children; physical confrontations, threats and use of

force (intended and unintended) against family

7

members, especially Ellen; and violent and bizarre

behavior when drunk.

In the circumstances of this case, however, one sworn

assertion in Ms. Bakogiannis’ statement stands out from

the others. Ms. Bakogiannis told the ACPO that Andros

had once placed his hand and nose over Ellen’s mouth

while engaged in sexual intercourse, so that she could

not breathe. Ellen had described to Ms. Bakogiannis

that Andros had a “dead stare” while engaging in this

suffocating gesture, and that she had been scared of

him. Calvin Gadd, Ellen’s boyfriend, also told of threats

and violence against her by Andros, including instances

of gun play, physical abuse and forced sexual

intercourse. Andros also reportedly told Ellen that he

could easily kill her and make it look like an accident.

As the ACPO was gathering this information about

Andros’ marital relations and history of abusive conduct,

it was also interviewing people who had been at the

Beach Bar on the night before Ellen’s death, in order

to test Andros’ alleged alibi. Andros’ father, in his

interview, confirmed that he and his son had spent the

night drinking together, but his rough time estimates

were offered through a haze of alcohol impaired

recollection: Andros’ father was so inebriated when he

left the bar that he passed out in his parked truck.

Similarly, the other “Beach Bar” interviewees also

placed Andros at the bar that night for an extended

period of time, but no one claimed to have watched him

like a hawk, and estimates on his time of arrival and

departure varied widely. Thus, the interviews failed to

establish a precise or near-exact time of departure.

8

Ellen’s activities on the night before she died, by

contrast, were relatively easy to trace, and fix in time.

Ellen’s parents advised that she had visited with her

two daughters that night, and eaten a late dinner around

10:00 p.m. After returning home, she called her mother

at around 12:30 a.m., and sent an e-mail to a friend at

1:48 a.m. According to Ellen’s internet service provider,

she affirmatively logged off her dial-up internet

connection at 2:28 a.m.

On April 10, 2001, First Assistant Prosecutor

Talasnik, who had been put in charge of the case, and

Sgt. DeShields met with Dr. Gross to discuss his findings.

During that meeting, Dr. Gross confirmed his homicide

finding and, according to Dr. Gross, told Talasnik and

DeShields that, based on his examination of the contents

of Ellen’s stomach, the time of her death would have

been between two and five hours after her last meal,

“and closer to two than to five.” Dr. Gross recalls telling

them that “4:00 would be highly unlikely” as a time of

death. Respondents denied that Dr. Gross provided

them with any such oral opinion. Nonetheless, for

purposes of the motions below, respondents and the

District Court were compelled to accept, and did accept,

Dr. Gross’ assertion.

Based on the information gathered during its three-

week investigation, on April 23, 2001, the ACPO applied

to a judge of the Superior Court of New Jersey for an

arrest warrant. The court found probable cause to exist

and issued the warrant.

9

V. Post-Arrest History

First Assistant Talasnik presented the matter to the

grand jury on June 5, 2001. Sgt. DeShields, the lead

homicide investigator, testified that the Medical

Examiner had ruled Ellen’s death to be a homicide,

asphyxia due to suffocation; that investigation of the

house yielded no evidence of forced entry; that Ellen’s

friends had reported that the Androses had a troubled

marriage; that Ellen had been in good medical condition

prior to her death; that Andros had spent the night of

March 30 and early morning hours of the 31* drinking

at the Beach Bar; that Andros had called 911 and,

although in a visibly intoxicated and belligerent state

when the authorities arrived, consistently claimed to

have found his wife slumped at her computer. The grand

jury found probable cause, and issued a one-count

indictment charging Andros with murder.

Andros’ attorneys, after reviewing the Medical

Examiner’s files, ACPO investigative files, and grand

jury transcripts, moved for dismissal of the indictment,

and contended that First Assistant Talasnik and Sgt.

DeShields had made an unfair, misleading presentation

to the grand jury, particularly regarding the timeline of

events. In response, the ACPO acknowledged one

misstatement by Sgt. DeShields — that Ellen’s last e-

mail was sent at “approximately 2:40 in the morning”

rather than 1:48 a.m., the actual time of transmission —

but argued that, on the whole, the presentation of the

case was fair and satisfied all legal requirements. By

decision dated September 7, 2001, a second Superior

Court judge denied the motion to dismiss and upheld

the indictment.

10

In the fall of 2002, with a trial date approaching,

First Assistant Talasnik referred the case to an

independent forensic pathologist the ACPO had

retained as an expert witness for trial, Dr. Donald Jason.

Dr. Jason, in examining slides and a preserved section

of the coronary artery, saw an occlusion. On December

2, 2002, Dr. Jason advised the ACPO that Ellen had died

of a spontaneously dissecting coronary artery, a rare

and naturally occurring condition that has been

documented only 150 times since 1931. First Assistant

Talasnik, after consulting with Prosecutor Blitz, then

took immediate steps to dismiss the indictment. An

order of dismissal was entered on December 4, 2002.

Four months later, petitioner filed suit against the

County Examiner defendants and respondents by way

of a 37-count complaint the alleged a variety of

constitutional deprivations under 42 U.S.C. § 19838, and

for tortious conduct under New Jersey common law.

VI. The District Court’s Decisions

In response to petitioner’s suit, respondents

asserted that the information gathered in the course of

the homicide investigation sufficed to establish probable

cause, 21d rendered them immune from suit on grounds

of absolute prosecutorial and qualified immunity. In a

76-page opinion dated February 23, 2004, the District

Court upheld respondents’ arguments in substantial

part. (Pet. App. 14). The court found that, assessed in

light of a medical ruling that Ellen Andros had been

suffocated, the information obtained by the ACPO

regarding Andros’ marital history and past behavior

established probable cause as a matter of law and, in

11

consequence, the criminal charges did not offend the

Constitution’.

The District Court reached this conclusion based

on a thorough review of the motion record, and a

painstaking marshalling of the parties’ contentions. The

District Court not only gave full treatment to petitioner’s

contention that the ACPO had manipulated or

suppressed exculpatory evidence, it began its account

of the homicide investigation by noting that the

investigation “produced certain evidence which

exculpated plaintiff” -— including, specifically, evidence

that “placed plaintiff at the Beach Bar .. . until 4:00

a.m.... while other evidence indicated that Ellen died

between 2:00 and 2:30 a.m.” (Pet. App. 24).

The District Court was equally thorough, however,

in its review of the evidence that tended to inculpate

Andros, including: the inconclusiveness of the evidence

regarding his time of departure from the Beach Bar;

the extemporaneous accusation of Ellen’s mother upon

her arrival at Andros’ house; the lack of emotion shown

by Andros when he was told the death had been ruled a

homicide; Ellen’s apparent state of good health prior to

her death, and the absence of any sign of forced entry;

the extensive record of marital discord and threatening

* Certain claims against respondents were voluntarily

dismissed by petitioner, or were disposed cf by the District Court

on grounds of absolute prosecutorial, Eleventh Amendment

and statutory immunity under the New Jersey Tort Claims Act,

N.J.Stat.Ann. 59:3-1 et seq., vague pleading, or failure of proof.

(Br. App. 4a, 7a, 12a). Since petitioner no longer contests the

dismissal of those claims, we omit the District Court’s discussion

of them here.

12

behavior by Andros; and the sworn assertion by

Ms. Bakogiannis that Ellen had told her of a prior

instance when Andros made a suffocating gesture

during sex. (Pet. App. 24-29).

Squarely addressing petitioner’s “assertion that

defendants never had probable cause to prosecute

plaintiff”, the District Court found that, “viewing the

evidence in the light most favorable to plaintiff, the

defendants had probable cause to suspect plaintiff of

the crime on April 6, 2001.” The District Court noted

that, by that date, the ACPO had conducted interviews

of the Beach Bar witnesses, showing “no witness could

testify that [Andros] was there the entire period” from

9:00 p.m. and 4:00 a.m., and providing “a wide range of

arrival and departure times, with plaintiff arriving

between 11:00 p.m. and 1:00 a.m. and leaving between

3:30 a.m. and 4:00 a.re.” (Pet. App. 71). Thus, the ACPO

knew “plaintiff’s alibi was not tight.” (Pet. App. 72).

Viewing the availabie facts as a whole, the District Court

concluded that the exculpatory evidence “did not

eliminate the probabiec cause that existed.” (/d.).

Despite the thoroughness of the District Court’s

decision, petitioner thereafter sought reconsideration

of it, and asserted that the court had overlooked critical

“time of death” evidence in the record - specifically,

Dr. Gross’ assertion that he had provided the ACPO with

an oral opinion that Ellen died between two to five hours

after her last meal, “and closer to two than to five.” The

District Court afforded petitioner the opportunity to

depose all defendants, and to make supplemental

submissions. Discovery merely confirmed what was

known beforehand - 7.e., that Dr. Gross claimed to have

13

provided the ACPO with an oral opinion, undocumented

anywhere in the record, that Ellen Andros died two to

five hours after her last meal. In his submissions,

petitioner contended that since respondents denied

receiving any such opinion, a material dispute of fact

existed on that issue. Respondents contended,

reciprocally, that the dispute was immaterial because,

even accepting Dr. Gross’ testimony, probable cause still

existed to support the charges.

In a 32-page opinion dated December 21, 2005, the

District Court denied appellant’s motion for

reconsideration and reaffirmed its probable cause

finding. (Pet. App. 90). The court, after reviewing the

parties’ supplemental submissions, observed that,

“despite the considerable time available ... to take

additional discovery, the factual landscape known to the

Court at the time of its February 23, 2004 Opinion has

remained largely unchanged.” (Pet. App. 93).

Disagreeing with the argument that it had over!ooked

material evidence in its initial decision, the court stated

that it had “considered, in depth, [the] exculpatory time

of death evidence, but concluded that there still was

sufficient evidence for a finding of probable cause in April

2001.” (Pet. App. 100-101). After surveying the entire

record, the court again concluded, “Taken together it

could have been reasonably concluded that the evidence

implicated plaintiff in spite of his alibi, given evidence

of his expressed intent to kill her, his motive and his

opportunity.” (Pet. App. 106).

14

Vil. The Decision of the Court of Appeals

After settling with the County Examiner defendants

for $2.3 million, petitioner appealed the decision

granting summary judgment to respondents to the

United States Court of Appeals for the Third Circuit.

(Br. App. la). In an unpublished and non-precedential

decision dated September 22, 2008, the Court of

Appeals affirmed the judgment of the District Court.

(Pet. App. 1). After reciting well-established legal

principles governing the existence of probable cause,

the Court of Appeals agreed with the District “surt’s

probable cause finding. Contrary to petitioner’s

contention that exculpatory evidence was ignored, the

Court of Appeals held that respondents “need not have

ignored the available alibi and time of death evidence in

order to believe | petitioner] guilty. Rather, they simply

gave that evidence a different construction, one that

was reasonable at the time.” (Pet. App. 6).

Even accepting petitioner’s construction of the alibi

and time of death evidence at face value, the Court of

Appeals noted that the alibi evidence was not “flawless”

as petitioner maintained, and even his selective reading

of the evidence did not render it “logically impossible”

that petitioner had returned home in time to murder

his wife at 4 a.m. (Pet. App. 7-8). Weighed against

respondents’ “foundational beliefs” regarding the

Andros family history, the Medical Examiner’s homicide

finding and the physical evidence at the scene, the Court

of Appeals held that it was reasonable for respondents

to believe that Andros had murdered his wife upon

returning home around 4 a.m. Indeed, while hindsight

may render that judgment flawed, “at the time it

15

provided the only reasonable explanation of Ellen

Andros’s death.” (Pet. App. 8). Therefore, the District

Court properly held that respondents enjoyed qualified

immunity from suit, the Court of Appeals found.

REASONS FOR DENYING THE PETITION

I. Summary of Argument

Petitioner contends that respondents lacked

probable cause to file charges against him, and that the

Court of Appeals announced a new legal standard for

determining probable cause in affirming the decision of

the District Court. Petitioner rests these contentions

on mere slivers of the record, to the exclusion of other,

and more salient, portions of it. The District Court and

Court of Appeals, by contrast, correctly looked at the

entire record, which establishes, beyond any material

dispute of fact, that the charges filed against petitioner

were supported by probable cause. The Court of

Appeals’ decision, while unpublished and non-

precedential, is legally sound and merely applies well-

settled principles of law to the established facts of

record. From a jurisprudential standpoint, this case is

unexceptional, and presents no issue worthy of this

Court’s discretionary review.

The District Court and Court of Appeals both

recognized that, presented with a firm medical ruling

of asphyxiation by suffocation and no sign of forced

entry, the question facing respondents in April 2001 was

as stark as this: which was more likely -— that an

unidentified assailant gained entry to the Andros’ home

and, without burglarizing the home or disturbing the

16

children or leaving any trace of his visit, suffocated Ellen

Andros, or that petitioner came home in a state of severe

intoxication at some point in the morning hours,

suffocated his wife, and thereafter called 911 in an after-

the-fact exercise of remorse? A reasonable law

enforcement official would find the latter scenario to be

more likely than the former, and petitioner’s selective

citation to exculpatory evidence in the record, on

balance, does not render that conclusion objectively

unreasonable.

Petitioner’s argument that the Court of Appeals

formulated a new “possible cause” test is an exercise in

simple misreading of the law. The record below

established beyond any material dispute of fact that

probable cause existed to support the filing of criminal

charges against petitioner; it follows, a fortiori, that

reasonable law enforcement officers could have thought

probable cause existed. Thus, under the “objective

reasonableness” test that governs qualified immunity,

respondents were clearly entitled to summary judgment.

See, e.g., Orsattiv. New Jersey State Police, 71 3d 480,

483 (3d Cir. 1995) (awarding summary judgment in § 1983

case where police officers’ belief that they had probable

cause to arrest plaintiff was objectively reasonable).

If qualified immunity does not piviect law

enforcement officers in a case such as this one, which

presents a fact pattern thal seems designed for a legal

textbook, then it would fail to serve the salutary function

for which it was designed. The Court of Appeals rightly

applied settled law to the facts and, as reflected by the

resolution of the case below, saw justice done. No cause

or basis for discretionary review of the judgment exists

and the petition should be denied.

17

Il. The Court of Appeals Properly Applied Settled

Law Governing Qualified Immunity in

Holding That Respondents’ Belief in the

Existence of Probable Cause was Objectively

Reasonable

Petitioner’s central contention is that the Court of

Appeals broke legal ground by announcing a new

“possible cause” test for the existence of probable cause.

In making this argument, petitioner places heavy

emphasis on the Court of Appeals’ observation that it

was not “logically impossible” that petitioner had

murdered his wife, and asserts that the statement

reflects an undue relaxation of the standard for probable

cause. A full and fair reading of the decision fails to

support that conclusion, and petitioner’s out-of-context

spotlighting of one sentence in the decision fails to

demonstrate a need or reason for review by this Court.

Read as a whole, the Court of Appeals’ decision

represents a straightforward application of settled legal

principles to a materially undisputed set of facts, to

reach two thoroughly unremarkable — and ultimately

correct — conclusions: (1) probable cause existed; and

(2) respondents were entitled to qualified immunity from

suit. See U.S. Sup. Ct. R. 10 (noting that the writ is rarely

granted when the asserted error consists of the

misapplication of a properly stated rule of law).

The legal standard for determining probable cause

is well-established, and the Court of Appeals did not

deviate from it. See Orsatti, supra, 71 I.3d at 483

(“probable cause to arrest exists when the facts and

circumstances within the arresting officer’s knowledge

are sufficient in themselves to warrant a reasonable

18

person to believe that an offense has been committed

by the person to be arrested”). “The test for an arrest

without probable cause is an objective one.” See Barna

v. City of Perth Amboy, 42 F:3d 809, 819 (3d Cir. 1994)

(affirming the District Court’s determination that

plaintiff’s arrest was supported by probable cause);

see also Kelley v. Myler, 149 F.3d 641, 646 (7" Cir. 1998)

(“The test, an objective one, is whether a reasonable

officer would have believed the person had committed a

crime”; affirming the District Court’s finding of probable

cause); cf. Devenpeck v. Alford, 543 U.S. 146, 153 (2004)

(“an arresting officer’s subjective state of mind (except

for the facts that he knows) is irrelevant to the existence

of probable cause”).

Petitioner’s attack on the Court of Appeals’

qualified immunity analysis is equally without merit. In

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982), this

Court held that public officials are entitled to qualified

immunity from suit “insofar as their conduct does net

violate clearly established statutory or constitutional

rights of which a reasonable person would have known.”

In order to determine whether a public official is entitled

to qualified immunity, a reviewing court mast decide if:

(1) plaintiff has established a violation of a constitutional

right; or (2) the constitutional right was clearly

established at the time of the alleged act. If the right

was not clearly established at the time of the act, the

court need go no further in the analysis. See Pearson v.

Callahan, 129 S.Ct 808, 555 U.S. — (2009) (holding that

a threshold finding that a constitutional right was not

clearly established may be dispositive of the public

official’s entitlement to qualified immunity; abrogating

Saucier v. Katz, 5383 U.S. 194 (2001)). Immunity depends

19

on “the objective legal reasonableness of the action, in

light of the legal rules that were clearly established at

the time it was taken.” /d.; see also Anderson v.

Creighton, 483 U.S. 635, 639 (1987)); cf Mitchell v.

Forsyth, 472 U.S. 511, 526 (1985) (qualified immunity is

an immunity from suit, rather than a mere defense to

liability).

Petitioner’s contention that the Court of Appeals

construed qualified immunity to protect “all but the most

egregiously unreasonable conduct by public officials”

cannot withstand a simple reading of the decision below,

is an exaggeration, and an unpersuasive one at that.

(Pet. at 10). After a thorough canvassing of the record,

the Court of Appeals found respondents’ conduct to

have been objectively reasonable, and thus immunized

under well-settled legal standards; there is nothing law-

changing about that conclusion — rather, it is petitioner,

not the court below, who misunderstands qualified

immunity. See, e.g., Malley v. Briggs, 475 U.S. 335, 341

(1986) (qualified immunity protects “all but the plainly

incompetent or those who knowingly violate the law”).

Most importantly, this case would still fail to present

any novel legal issue warranting review by this Court

even if, as petitioner contends, the Court of Appeals’

application of qualified immunity, in the unique facts of

this case, was erroneous.

Far from establishing a new standard of probable

cause or qualified immunity, the Court of Appeals

properly analyzed these separate but related issues, and

determined that respondents’ actions were beyond legal

reproach or remedy. The lower court’s observation that

petitioner’s alibi, such as it was, did not render it

20

“logically impossible” for him to have murdered his wife

was well-grounded in the record, and legally

uncontroversial — especially in an unpublished and non-

precedential decision for the parties only. The Court of

Appeals recognized that law enforcement officers who

make an arrest under a mistaken belief that probable

cause existed may nonetheless be entitled to qualified

immunity if probable cause could reasonably have been

thought to exist, and in so holding committed no error.

See Gilles v. Davis, 427 F.3d 197, 207 (38d Cir. 2007)

(affirming summary judgment in favor of officers who

arrested a “campus evangelist” on a disorderly persons

charge; “the reasonableness of the officer’s belief should

be judged from [his] on-scere perspective, not with the

perfect vision of hindsight”); Orsatti, supra, 71 F.3d at

482-83; Cartier v. Lussier, 955 F.2d 841, 843 (2d Cir. 1992)

(immunity attaches “when reasonable officers could

disagree as to whether probable cause exists”);

Von Stein v. Brescher, 904 F.2d ‘572, 579 (11 Cir. 1990)

(“In determining whether qualified immunity exists the

issue is not probable cause in fact but ‘arguable’

probable cause .. . [A]ctual probable cause is not

necessary for an arrest to be objectively reasonable’);

Donovan v. Briggs, 250 FSupp.2d 242 (W.D.N.Y. 2003)

(prosecutor and sheriff’s officer had probable cause to

arrest plaintiff for alleged rape of his daughter despite

exculpatory evidence in their possession, and qualified

immunity would shield them from suit even in the

absence of actual probable cause).

Of course, qualified immunity will always be present

where, as here, the record suffices to establish probable

cause as a matter of law since an arrest or prosecution

supported by probable cause falls in the epicenter of

21

objective legal reasonableness. Such an arrest or

prosecution is more than reasonable; it is constitutional

by definition. Thus, where probable cause is established,

a claim for false arrest or malicious prosecution will be

subject to dismissal for failure of proof and on immunity

grounds, both. See, e.g., Green v. City of Paterson, 971

F.Supp. 891, 901-02 (D.N.J. 1997) (awarding summary

judgment to police officers who mistakenly but

reasonably arrested the wrong person for a shooting;

probable cause existed and the officers’ actions were

objectively reasonable).

Petitioner’s argument to this Court is ultimately the

same as his argument below: that no reasonable law

enforcement officer could have believed he murdered

his wife in the face of an oral opinion from Dr. Gross

suggesting that Ellen died before 4:00 a.m., and perhaps

as early as 2:00 a.m. The Court of Appeals held that

respondents’ belief that probable cause existed was

objectively reasonable, given the Medical Examiner’s

ruling, and that their theory was a “reasonable

explanation of Ellen Andros’s death.” (Pet. App. 8);

see Rogers v. Powell, 120 F.3d 446, 454 (38d Cir. 1997)

(“Whether a government official is entitled to protection

under the doctrine of qualified immunity is a ‘purely legal

question”); Acierno v. Cloutier, 40 F.3d 597, 609 (3d Cir.

1994) (same). Petitioner raises no valid ground for review

of that conclusion.

22

III. The Court of Appeals did not Depart From

the Court’s Summary Judgment Juris-

prudence in Holdina That no Material

Dispute of Fact Existed Regarding

Respondents’ Entitlement to Qualified

Immunity

Unable to show that the Court of Appeals applied

the wrong standard in finding probable cause, or

committed any mistake of law in its qualified immunity

analysis, petitioner contends that the lower courts failed

to view the evidence in the light most favorable to him,

and resolved disputed issues of fact against him, and

thus erred in awarding respondents summary

judgment. Once again, on its face, this argument fails

to present a valid reason for review by this Court.

Petitioners’ argument on this score misconceives,

in avery fundamental way, the holding below. There was

no dispute in this case as to the contents of the ACPO’s

files, or the nature and substance of the information

gathered through its investigation. Rather, there was a

dispute as to the legal import of that information: did it

suffice to establish probable cause - and, if not, did it

suffice to establish arguable probable cause? See Trabal

v. Wells Fargo Armored Service Corp., 269 F3d 243,

249 (3d Cir. 2001) (the existence of probable cause is an

issue of law where the underlying facts are undisputed);

Merkle v. Upper Dublin School District, 211 F.3d 782,

788-89 (3d Cir. 2000) (“a district court may conclude that

‘probable cause exists as a matter of law if the evidence,

viewed most favorably to plaintiff, would not support a

contrary factual finding,’ and may enter summary

judgment accordingly”); Sharrar v. Felsing, 128 F.3d

23

810, 818 (3d Cir. 1997) (the question of probable cause is

for the jury only if there is sufficient evidence to support

a reasonable finding that probable cause did not exist;

affirming District Court’s finding of probable cause on

summary judgment); Sherwood v. Mulvihill, 113 F3d

396, 401 (3d Cir. 1997) (same).

As noted above, both the existence of probable cause

and the availability of qualified immunity are governed

by objective tests. Under an objective review of the

investigative record, petitioner’s contention that the

ACPO should have given greater consideration to

certain information, such as the undocumented oral

opinion of Dr. Gross and the statements of the Beach

Bar witnesses, and been less influenced by, e.g., the

Bakogiannis certification and the statements of Ellen’s

parents and friends, was rightly found to present no

genuine issue for trial. Indeed, the Court of Appeals

noted that, far from ignoring the facts of record

advanced by petitioner, respondents “simply gave that

evidence a different construction, one that was

reasonable at the time.” (Pet. App. 6). Thus, the court

below did not resolve the parties’ divergent factual

interpretations of the record; rather, it determined that

respondents’ construction of that record led to an

objectively reasonable belief that petitioner had

murdered his wife. Petitioner’s natural disagreement

with that conclusion does not mean there was an

underlying dispute of fact for trial, any more than it

means that the District Court erred in finding probable

cause.

Evaluated against a well-documented history of

marital strife, threats, and abuse, petitioner’s roughly

24

validated assertion that he was at the Beach Bar from

around 9:00 p.m. to around 4:00 a.m. would not have

dissuaded reasonable law enforcement officers from

believing he was the person responsible for Ellen’s

“asphyxia due to suffocation.” The lower courts stayed

well within the bounds of their proper role in so finding,

and did not deviate from standard summary judgment

practice under Fed.R.Civ.P. 56. See Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986) (to defeat summary

judgment, a dispute must be “genuine,” and sufficient

to support a verdict for the non-moving party).

CONCLUSION

The decision of the Court of Appeals rests on its

application of undisputed material facts to established

rules of law. Petitioner’s disagreement with the result

presents no basis for the exercise of this Court’s

discretionary review, and the petition for a writ of

certiorari should accordingly be denied.

Respectfully submitted,

BENJAMIN CLARKE

Counsel of Record

Tuomas A. ABBATE

DeCotTus, FitzPatrick, COLE

& WisLerR, LLP

Glenpointe Centre West, Suite 31

500 Frank W. Burr Blvd.

Teaneck, New Jersey 07666

201-928-1100

Counsel for Respondents

APPENDIX

la

APPENDIX A— ORDER OF THE UNITED STATES

DISTRICT COURT FOR THE DISTRICT OF NEW

JERSEY, CAMDEN VICINAGE

FILED APRIL 11, 2007

THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

Civil No. 03-1775(JBS)

JAMES L. ANDROS, III, individually and as Father

and Guardian ad Litem on behalf of Meghan

Elizabeth Andros and Elizabeth Andros, minors,

Plaintiffs,

v.

ELLIOT M. GROSS, M.D., et al.,

Defendants.

ORDER

This matter is before the Court upon the Motion

for Settlement Approval filed by James L. Andros, III

[Doe. No. 158]; and the parties having consented to the

jurisdiction of this Court to decide the Motion; and the

attorneys for the parties having reported to the Court

that the claims of the minor plaintiffs, Meghan Elizabeth

Andros and Elizabeth Andros, have been settled

between the plaintiffs and the settling defendants, Elliot

M. Gross, M.D., Hydow Park, M.D., Barbara Fenton and

2a

Appendix A

County of Atlantic; and the Court having taken proofs

on the record at the friendly hearing conducted on April

4, 2007; and the Court having reviewed in detail

plaintiffs’ submissions [Doc. No. 158], including the

Affidavit of Janice A. Colton, Ph.D.; and the Court

finding that the settlement of the minors’ claims is fair

and reasonable as to its amount and its terms; and the

Court finding that the settlement adequately

compensates the minors for their past, present and

future losses and damages attributable to the claims

against the settling defendants; and the Court finding

that the minors are not settling their claims against the

parties in the case whose summary judgment motions

were granted; and for good cause shown

IT IS on this 11th day of April 2007 hereby

ORDERED that the settlement between plaintiffs,

Meghan Elizabeth Andros and Elizabeth Andros,

minors, and defendants, Elliot M. Gross, M.D., Hydow

Park, M.D., Barbara Fenton and County of Atlantic, is

APPROVED; and it is further

ORDERED that pursuant to the settlement,

Meghan Elizabeth Andros and Elizabeth Andros shall

each be allocated $25,000.00 as compensation for their

losses and damages attributable to the claims against

the settling defendants; and it is further

ORDERED that no attorneys’ fees or costs of suit

shall be deducted frem the $25,000.00 allocations; and

it is further

3a

Appendix A

ORDERED that $25,000.00 on behalf of Meghan

Elizabeth Andros and $25,000.00 on behalf of Elizabeth

Andros shall be paid by or on behalf of defendants by

separate checks made payable to the “Surrogate of

Atlantic County Intermingled Account on behalf of

Meghan Elizabeth Andros” and the “Surrogate of

Atlantic County Intermingled Account on behalf of

Elizabeth Andros”; and it is further

ORDERED that James L. Andros, II1, sole parent

and Guardian ad Litem, shall make application for the

Surrogate of Atlantic County for the appointment of a

limited guardian of the estates of the minors, limited to

the amount on deposit with the surrogate. As guardian

of the deposited amounts, Mr. Andros shall not be

authorized to receive any funds on his behalf or on behalf

of his minor children except court-directed withdrawals;

and it is further

ORDERED that the allocated monies will be paid

from the accounts only upon further Order of the

Superior Court of New Jersey, Chancery Division,

Probate Part, pursuant to N.J.S.A. 3B:15-17, or upon

the minors attaining majority under N.J.S.A. 3B:15-17.1,

and it is further

ORDERED that the attorney for the plaintiffs shall

deliver a copy of this Order to al! parties and the

Surrogate of Atlantic County within five (5) days of the

date hereof.

/s/ Joe} Schneider

JOEL SCHNEIDER

United States Magistrate Judge

ta

APPENDIX B — ORDER OF THE UNITED STATES

DISTRICT COURT FOR THE DISTRICT OF NEW

JERSEY FILED DECEMBER 21, 2005

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

HON. JEROME B. SIMANDLE

Civil No. 03-1775 (JBS)

JAMES ANDROS, III, individually and as Natural

Father and Guardian of MEGHAN ELIZABETH

ANDROS and ELIZABETH ANDROS, minors,

Plaintiffs,

v.

ELLIOT M. GROSS, M.D., BRUCE K. DESHIELDS,

ELADIO ORTIZ, JEFFREY BLITZ, ESQUIRE,

MURRAY A. TALASNIK, ESQUIRE, HYDOW PARK,

M.D., BARBARA FENTON, COUNTY OF ATLANTIC,

STATE OF NEW JERSEY,

Defendants.

Civil No. 04-5968

JAMES ANDROS, III, individually and as Natural

Father and Guardian of MEGHAN ELIZABETH

ANDROS and ELIZABETH ANDROS, minors,

Plaintiffs,

Sa

Appendix B

v.

CHRISTOPHER WELLMAN,

Defendant.

ORDER

This matter is before the Court upon the motion for

partial reconsideration of the Court’s February 23, 2004

Opinion and Order by Plaintiffs [Docket Item 95]; and

the motion for summary judgment by Defendants Blitz,

DeShields and Talasnik seeking dismissal of all

remaining state law claims [Docket Item 96]; and the

motion for summary judgment by Defendant Wellman

{Docket Item 87]; and

The Court having considered the written

submissions in support and opposition; and for the

reasons stated in the Opinion of today’s date;

IT IS THIS 21st day of December 2005 hereby

ORDERED that the motion for partial

reconsideration of the Court’s February 23, 2004 Opinion

and Order by Plaintiffs [Docket Item 95] shall be, and

hereby is, DENIED; and

IT IS FURTHER ORDERED that the motion for

summary judgment by Defendants Blitz, DeShie!lds and

Talasnik seeking dismissal of all remaining state law

claims [Docket Item 96] shall be, and hereby is,

6a

Appendix B

GRANTED and summary judgment is entered in their

favor on Counts 6, 8, 9, 10, 11, 16, 20, 24, 26, 27, 32 and

37; and

IT IS FURTHER ORDERED that the motion for

summary judgment by Defendant Wellman [Docket Item

87] shall be, and hereby is, GRANTED, and summary

judgment is entered in his favor upon all claims.

s/ Jerome B. Simandle

JEROME B. SIMANDLE

U.S. District Judge

Ta

APPENDIX C — ORDER OF THE UNITED STATES

DISTRICT COURT FOR THE DISTRICT OF NEW

JERSEY FILED FEBRUARY 23, 2004

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

HON. JEROME B. SIMANDLE

Civil No. 03-1775 (JBS)

JAMES ANDROS, III, individually and as Natural

Father and Guardian of MEGHAN ELIZABETH

ANDROS and ELIZABETH ANDROS, minors,

Plaintiffs,

V.

ELLIOT M. GROSS, M.D., BRUCE K. DESHIELDS,

ELADIO ORTIZ, JEFFREY BLITZ, ESQUIRE,

MURRAY A. TALASNIK, ESQUIRE, HYDOW PARK,

M.D., BARBARA FENTON, COUNTY OF ATLANTIC,

STATE OF NEW JERSEY,

Defendants.

ORDER

This matter having come before the Court on the

motion of defendant Elliot M. Gross, M.D. to dismiss

the claims against him in Counts 2, 7, 21, 28, 29, and 33

of the Complaint, [Docket Item 25-1], the motion of

defendants County of Atlantic, Hydow Park, M.D., and

8a

Appendix C

Barbara Fenton to dismiss the claims against them in

Counts 14, 22, 30, and 31 of the Complaint, [Docket Item

28-1], and the motion of defendants Bruce DeShields,

Eladio Ortiz, Jeffrey Blitz, Murray Talasnik, and State

of New Jersey for summary judgment as to all claims

asserted against them, [Docket Item 29-1]; and the

Court having considered the parties’ written

submissions and having heard oral argument on

November 5, 2003; for good cause and the reasons

expressed in Opinion of today’s date;

IT 1S this 23rd day of February, 2004, hereby

ORDERED that the motion of defendant Elliot M.

Gross, M.D. to dismiss the claims against him in Counts

2, 7, 21, 28, 29, and 33 of the Complaint, [Docket [tem

25-1], be, and hereby is, GRANTED IN PART as to:

* the negligence claim asserted in Count 21

and the negligent infliction of emotional

distr ss claim asserted in Count 33, to the

extent that they seek relief for Dr. Gross’

misrepresentation of the cause of Ellen’s

death, and

* the federal family interference claims

asserted in Counts 2 and 28, and

* the state family interference claims

asserted in Counts 7 and 29, and

9a

Appendix ©

DENIED IN PART as to:

¢ the negligence claim asserted in Count 21,

and the negligent infliction of emotional

distress claim asserted in Count 33, to the

extent that they seek relief for actions of

Dr. Gross other than his misrepresentation

of the cause of Ellen’s death;

IT IS FURTHER ORDERED that the motion of

defendants County of Atlantic, Hydow Park, M.D., and

Barbara Fenton to dismiss the claims against them in

Counts 14, 22, 30, and 31 of the Complaint, [Docket Item

28-1], be, and hereby is,

GRANTED IN PART as to:

¢ the federal family interference claim

asserted in Count 30, and

¢ the state family interference claim

asserted in Count 31, and

DENIED IN PART as to:

e the negligence claim asserted against

defendant Fenton in Count 22, and

¢ the 42 U.S.C. §1983 claim asserted against

defendant Park in Count 14;

IT IS FURTHER ORDERED that the motion of

defendants Bruce DeShields, Eladio Ortiz, Jeffrey Blitz,

Murray Talasnik, and State of New Jersey for summary

judgment as to all claims asserted against them, [Docket

10a

Appendix C

Item 29-1], be, and hereby is,

GRANTED IN PART as to:

the warrantless search claim of Count 18,

the invasion of privacy claim of Count 19,

all claims asserted against the State of

New Jersey,

all federal claims asserted against

defendants Blitz, Talasnik, DeShields, and

Ortiz,

the state family interference claims of

Counts 7 and 29, and

DENIED IN PART as to:

the following state claims asserted against

defendants Blitz, Talasnik, DeShields,

and Ortiz:

Count 6 (malicious prosecution, state

constitution)

Count 8 (malicious prosecution, common

law)

lla

Appendix C

Count 9 (defamation, state constitution)

Count 10 (conspiracy, common law)

Count 11 (aiding and abetting, common

law)

Count 16 (false arrest, false imprisonment,

common law)

Count 20 (invasion of privacy, false light)

Count 24 (negligence)

Count 26 (abuse of process, state

constitution)

Count 27 (abuse of process, common law)

Count 32 (intentional infliction of

emotional distress)

Count 37 (punitive damages);

IT IS FURTHER ORDERED that the dismissal of

the family interference claims of Counts 2, 7, 28, 29, 30,

and 31, and the dismissal of the supervisory liability

claim of Count 15 to the extent that it relates to the

family interference claims is WITHOUT PREJUDICE

to the plaintiffs’ right to replead the claims with the

requisite specificity explained in the Opinion of today’s

date by filing an Amended Complaint to be filed within

thirty (30) days of the date of this Order.

s/ Jerome B. Simandle

JEROME B. SIMANDLE

United States District Judge

12a

APPENDIX D — ORDER OF VOLUNTARY

DISMISSAL AS TO CERTAIN CLAIMS OF THE

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW JERSEY FILED

NOVEMBER 6, 2003

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

Civil Action

No. 03-1775 (JBS)

JAMES ANDROS, individually and on behalf of

MEGHAN ELIZABETH ANDROS and ELIZABETH

ANDROS, minors,

Plaintiffs,

7

ELLIOT M. GROSS, M.D., et al.,

Defendants.

ORDER OF VOLUNTARY DISMISSAL

AS TO CERTAIN CLAIMS

This matter having come before the Court at oral

argument on November 5d, 2003; John A. Guernsey,

Esquire and Kevin D. Kent, Esquire having appeared

for plaintiff James Andros, Andrew R. Duffy having

appeared for plaintiffs Meghan Elizabeth Andros and

Elizabeth Andros, Russell Lichtenstein, Esquire and

Michael Gross, E squire having appeared for defendant

13a

Appendix D

Elliot M. Gross, M.D., Donna M. Taylor, Esquire having

appeared for defendants County of Atlantic, Hydow

Park, M.D., and Barbara Fenton, and Benjamin Clarke,

Esquire having appeared for defendants State of New

Jersey, Jeffrey Blitz, Murray Talasnik, Bruce DeShields,

and Eladio Ortiz; and the plaintiffs having consented to

the voluntary dismissal of the abuse of process claims

of Counts 25, 26, and 27 as to defendant Elliot M. Gross,

M.D., of the respondeat superior claim of Count 35 as

to defendant County of Atlantic, and of the 42 U.S.C.

§ 1983 false imprisonment claim of Count 4 as to

defendants DeShields, Blitz, and Talasnik;

IT IS this 6" day of November, 2003 hereby

ORDERED that Counts 25, 26, and 27 as to

defendant Elliot M. Gross, M.D., be, and hereby are,

DISMISSED; and

IT IS FURTHER ORDERED that Count 35 as to

defendant County of Atlantic, be, and hereby is,

DISMISSED; and

IT IS FURTHER ORDERED that Count 4 as to

defendants DeShields, Blitz, and Talasnik, be, and

hereby is, DISMISSED.

s/ Jerome B. Simandle

JEROME B. SIMANDLE

United States District Judge