IAN M. SCHWEIZER v. NEW JERSEY STATE POLICE (L-1733-19, SOMERSET COUNTY AND STATEWIDE) ( 2022 )

NOT FOR PUBLICATION WITHOUT THE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.
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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
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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
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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.
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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:
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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.
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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."
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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."
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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
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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
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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).
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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.
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"[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
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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
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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
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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)).
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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.
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