Barna v. City of Perth Amboy ( 1994 )

Opinions of the United
1994 Decisions States Court of Appeals
for the Third Circuit
12-14-1994
Barna v. City of Perth Amboy et al.
Precedential or Non-Precedential:
Docket 94-7242
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
N0. 93-5667
LOUIS D. BARNA; THERESA BARNA,
Appellants
v.
CITY OF PERTH AMBOY; TOWNSHIP OF WOODBRIDGE; PAUL OTTERBINE;
STEPHEN OTTERBINE; RICHARD ECHEVARRIA; BENJAMIN RUIZ;
ORLANDO SANABRIA; STEPHEN POLOKA; JAMES M. CRILLY;
CHARLES HAWKINS; FRANK WALLACE
On Appeal From the United States District Court
For the District of New Jersey
(D.C. Civil Action No. 92-cv-05133)
Argued June 21, 1994
BEFORE: STAPLETON, GARTH and PRATT,* Circuit Judges
(Opinion Filed December 14, 1994)
John J. Barry
Madeline E. Cox (Argued)
Judson Hand
BARRY & McMORAN
One Newark Center
Newark, NJ 07102
Attorneys for Appellants
Louis D. Barna and Theresa Barna
* Honorable George C. Pratt, United States Circuit Judge for the
Second Circuit, sitting by designation.
John G. Cito (Argued)
TOOLAN, ABBOTT, ZIZNEWSKI & WEBER
3090 Woodbridge Avenue
P.O. Box 6868
Edison, NJ 08818
Attorneys for Appellees
Otterbine, Echevarria, Ruiz and
Sanabria
Robert Musto (Argued)
51 Green Street
Woodbridge, NJ 07095
Attorney for Appellee
Charles Hawkins
OPINION OF THE COURT
STAPLETON, Circuit Judge:
Louis and Theresa Barna ("Mr. and Mrs. Barna") sued
eight police officers, the City of Perth Amboy, and the Town of
Woodbridge for violations of their constitutional rights stemming
from an alleged assault and the subsequent detention of Mrs.
Barna and arrest and prosecution of Mr. Barna. Following
presentation of the plaintiffs' case, Officers Otterbine,
Echevarria, Ruiz, and Sanabria moved for judgment as a matter of
law, which the district court granted.1 The district court also
1
. The district court also granted judgment as a matter of law
in favor of Officer Crilly, but the Barnas have chosen not to
pursue that claim on appeal and we therefore do not consider it.
The claims against the remaining defendants were dismissed with
prejudice prior to trial by agreement of the parties.
dismissed their complaint as to Officer Hawkins for failure to
effect proper service. The Barnas appeal from those orders.
We conclude that judgment as a matter of law was proper
on Mr. Barna's assault-based claim because the evidence could not
support a finding that the officers were acting under color of
state law. We further conclude that judgment as a matter of law
was also appropriate with respect to Mr. Barna's unconstitutional
arrest claim and Mrs. Barna's forcible detention claim because a
reasonable jury could only conclude that the officers acted
reasonably under the circumstances. We therefore will affirm the
district court's order as it relates to those claims.2 We will
reverse, however, the dismissal of the Barnas' claim against
Officer Hawkins and will remand for a determination as to whether
the answer purportedly filed on his behalf was authorized.
In reviewing an order granting judgment as a matter of
law, we exercise plenary review and apply the same standard that
2
. In the briefing before us, the Barnas contest the entry of
judgment against them on the additional ground that their
evidence established that Officers Otterbine and Echevarria
committed the constitutional tort of malicious prosecution. See,
e.g., Lippay v. Christos, 996 F.2d 1490, 1502 (3d Cir. 1993);
Rose v. Bartle, 871 F.2d 331, 349 (3d Cir. 1989); Lee v.
Mihalich, 847 F.2d 66, 70 (3d Cir. 1988). Their complaint,
however, did not allege malicious prosecution or facts upon which
such a claim could be based. Moreover, the "Joint Requests to
Charge Jury" made no reference to such a claim, and the Barnas'
counsel did not mention it in opposing the defendants' Rule 50(a)
motion. Since no § 1983 claim based on malicious prosecution was
advanced in the district court, we decline to entertain such a
claim on appeal. Accordingly, we have no occasion to consider
what effect the Supreme Court's decision in Albright v. Oliver,
114 S. Ct. 807 (1994), has on our circuit jurisprudence.
the district court should have used in deciding the motion.3
Sowell v. Butcher & Singer, Inc., 926 F.2d 289, 296 (3d Cir.
1991) (citing Frank Arnold Contractors, Inc. v. Vilsmeier Auction
Co. Inc., 806 F.2d 462, 463 (3d Cir. 1986)). The officers'
motions for judgment as a matter of law should have been granted
only if, at the close of the Barnas' case, "there [was] no
legally sufficient evidentiary basis for a reasonable jury to
find for [the Barnas] on [an] issue" necessary to maintain their
claims. Fed. R. Civ. P. 50(a).4 We also exercise plenary review
over the legal standards applied by the district court in
granting a motion to dismiss for lack of service. Carteret
Savings Bank, FA v. Shushan, 954 F.2d 141, 144 (3d Cir.) (quoting
North Penn Gas Co. v. Corning Natural Gas Corp., 897 F.2d 687,
688 (3d Cir.) (per curiam), cert. denied, 498 U.S. 847 (1990)),
cert. denied, 113 S. Ct. 61 (1992).
I.
The relevant facts as established by the plaintiffs'
presentation of their case at trial are as follows.5 On the
3
. The district court had jurisdiction pursuant to 28 U.S.C.
§ 1343(3), and this court has jurisdiction pursuant to 28 U.S.C.
§ 1291.
4
. This version of Rule 50(a) became effective on December 1,
1993, shortly after the motions in this case were decided. The
1993 amendment was merely technical in nature, however, and was
intended only to clarify the existing standards. See Fed. R.
Civ. P. 50(a) advisory committee's note on 1993 amendment.
5
. Because we are reviewing these claims on a motion for
judgment as a matter of law pursuant to Fed. R. Civ. P. 50(a), we
view the facts in the light most favorable to the Barnas as the
party opposing the motion, without regard to the weight of the
evening of December 21, 1990, Louis and Theresa Barna went to
dinner with Mrs. Barna's sister, Mary Haelson ("Aunt Mary"), and
Mrs. Barna's mother. After dinner, and after taking Mrs. Barna's
mother home, Mr. and Mrs. Barna and Aunt Mary went to a bar. Mr.
and Mrs. Barna each consumed significant quantities of alcohol
during the evening.6
The Barnas and Aunt Mary left the bar to return to the
Barnas' home. On the way, they stopped at a Christmas tree
business owned by a longtime friend of Mrs. Barna's family, Bobby
DeHane. Mr. and Mrs. Barna were also in this line of business
and Mrs. Barna was angry at Mr. DeHane, believing that earlier in
the day he had reported electrical code violations at the Barnas'
Christmas tree lot to a government agency. Mrs. Barna got out of
the car and unsuccessfully sought out DeHane in order to confront
him. Aunt Mary coaxed her back into the car.
DeHane's Christmas tree lot was across the street from
another bar. Coincidentally, Perth Amboy Police Officers Paul
Otterbine ("Otterbine") and Richard Echevarria ("Echevarria")
were outside that bar in Officer Echevarria's truck. Officer
Otterbine is the brother of Mrs. Barna and Aunt Mary. Although
the officers were off-duty and not in uniform, they were armed
(..continued)
evidence or the credibility of witnesses. Sowell v. Butcher &
Singer, Inc., 926 F.2d 289, 296 (3d Cir. 1991); Flynn v. Bass
Bros. Enters., Inc., 744 F.2d 978, 983 (3d Cir. 1984) (quoting
Brady v. Southern Ry. Co., 320 U.S. 476 (1943)).
6
. According to their own testimony, Mr. Barna consumed a total
of fourteen to sixteen servings of alcohol during the evening,
and Mrs. Barna consumed the equivalent of 8 to 9 servings.
with their service revolvers and with their police-issue "PR-24"
nightsticks. Otterbine noticed his mother's car, and saw his two
sisters and Mr. Barna. Aunt Mary signaled to her brother that
Mr. and Mrs. Barna were drunk and wanted to damage the Dehane
property and asked Otterbine to follow her home. Otterbine
explained to his partner that there was a problem with Mr. and
Mrs. Barna and asked Echevarria to accompany him. The two
officers, in Echevarria's truck, then followed Mr. and Mrs. Barna
and Aunt Mary back to the Barnas' home.
At the Barnas' home, Aunt Mary attempted to leave with
her sister, Dena Otterbine, who had been babysitting the Barnas'
children. Mr. Barna testified that, when he saw his sisters-in-
law pulling away in their car, he signalled for them to stop by
standing in the path of their car and waving his arms. Aunt
Mary, who was driving, stopped the car. Mr. Barna testified that
he then went to the side of the car, knelt down to speak with
Aunt Mary through the driver's side window, and asked her to stay
with Mrs. Barna and the children while he went out. Instead,
Aunt Mary drove slowly away, dragging Mr. Barna who was holding
onto the driver's side door. Aunt Mary stopped the car after
dragging Mr. Barna fifty or sixty feet.
Officer Otterbine, who apparently witnessed this, began
yelling at Mr. Barna and accused him of hitting his sister, Aunt
Mary. Mr. Barna argued with Officers Otterbine and Echevarria,
telling them: "Look, you guys are out of your jurisdiction. Just
get out of here, go home, this is none of your concern." App.
117. Echevarria then responded: "Jurisdiction? I'll show you
jurisdiction." App. 117. Echevarria and Otterbine then attacked
Mr. Barna and beat him up. Mr. Barna testified that he was
largely passive during the fight, and that at one point Officer
Otterbine used his nightstick to place Mr. Barna in a chokehold.
Mr. Barna's testimony was in large part corroborated by Bobby
Borrero who had followed the Barnas home to receive a paycheck
from Mr. Barna.
After beating up Mr. Barna, Officers Otterbine and
Echevarria left Mr. Barna on the sidewalk and returned to
Echevarria's truck. They attempted to leave the scene, but Mrs.
Barna prevented their departure. She slapped her brother in the
mouth and told the two officers not to go anywhere.
Mr. Barna, fearing for his wife's safety, retrieved an
unloaded revolver from his house. He pointed the gun into the
cab of the truck in which Otterbine and Echevarria were sitting
and told the officers not to go anywhere until other police
arrived. At his wife's bidding, Mr. Barna stopped pointing his
gun at the officers and walked over to see if his wife was okay.
Otterbine and Echevarria then jumped out of the truck, drew their
weapons against Mr. Barna, and told him to drop his gun. Mr.
Barna stepped backwards, tripped over the curb, and, as he fell,
flung the revolver in his hand over his shoulder into a hedge.
Mr. Barna then ran into his house and retrieved a
twelve-gauge pump action shotgun. He walked out onto the porch
and "shuffled" the pump action of the shotgun, making a
distinctive sound to gain the attention of all present. He told
Otterbine and Echevarria not to leave. At that point, he
testified, he ran into the house, bolted the door, picked up the
telephone and called his mother and his mother-in-law.
After Mr. Barna went back into his house, Officers
Otterbine and Echevarria apparently called for backup and
additional Perth Amboy police officers arrived on the scene,
including Benjamin Ruiz ("Ruiz") and Orlando Sanabria
("Sanabria"). According to Mrs. Barna, Otterbine was drunk, and
both he and Officer Echevarria continued to point their weapons
at the Barnas' front door, stating that they were going to kill
Mr. Barna. Mrs. Barna testified that she "was grabbing on
[Otterbine's] arm, [yelling at him and] trying to get his
attention," but "[h]e didn't want to pay attention to me." App.
312, 315. Otterbine thereupon instructed Officer Ruiz to remove
Mrs. Barna from the scene, but when Ruiz attempted to do so, she
resisted. Officer Ruiz tried to restrain Mrs. Barna by holding
her arms, while she struggled to elude his grasp. Ruiz was
finally able to handcuff Mrs. Barna and, with the assistance of
Officer Sanabria, place her into a patrol car. At that point,
she attempted "with all [her] might" to kick her way out of the
patrol car. App. 317.
Officers Ruiz and Sanabria took Mrs. Barna to the
Raritan Bay Medical Center, where they checked her in for
intoxication. Upon arriving at the Medical Center, Ruiz removed
the handcuffs and Mrs. Barna tried to leave, but the hospital
staff placed her in restraints. "I was hysterical," she
testified, "I was still combative, I wanted to go home." App.
318. After a time, Mrs. Barna calmed down and she was released
from the hospital; she returned home at about 3:00 a.m.
While Mrs. Barna was at the hospital, events at the
Barna home escalated. Based on the representations of Officers
Otterbine and Echevarria that Mr. Barna had barricaded himself in
his home with his children, the Woodbridge police officers who
had been called to the scene contacted then Middlesex County
Prosecutor (now Judge) Allen A. Rockoff7 and informed him that a
hostage situation was taking place at the Barna home. As the
chief law enforcement officer for the county, Rockoff ordered the
county's hostage negotiation team to go to the Barnas' home.
As part of the hostage situation response, the Barnas
claim that Officer Charles Hawkins intercepted Mr. Barna's
telephone conversations. After a period of time, Mr. Barna
voluntarily surrendered to the police. He was arrested and
detained for three hours, then taken to a hospital for treatment
for his injuries, and finally transported to the Middlesex County
Adult Corrections Facility. He was released when bail was
posted.
Officers Otterbine and Echevarria later charged Mr. Barna with a
number of criminal offenses in connection with these events.
Mr. and Mrs. Barna subsequently filed a civil complaint
in the District Court for the District of New Jersey, alleging
violations of their civil rights under 42 U.S.C. § 1983 by the
7
. Judge Rockoff is now a member of the New Jersey Superior
Court.
City of Perth Amboy; the Township of Woodbridge; Officers
Otterbine, Echevarria, Ruiz, Sanabria, Hawkins; and others.
Prior to trial, a number of counts were voluntarily dropped and a
number of defendants dismissed from the suit. At a pre-trial
conference, the magistrate judge recommended that the claims
against Officer Hawkins be dismissed for improper service of
process. At the start of the trial, and relevant to this appeal,
the remaining defendants were Officers Otterbine, Echevarria,
Sanabria, and Ruiz. Of the twelve counts in the Barnas'
complaint, Counts I, III, and V remained for trial.
Count I alleged that Officers Otterbine and Echevarria
"assaulted" Mr. Barna and thereafter caused his arrest, depriving
him of his constitutional rights under the Eighth and Fourteenth
Amendments.
Count III sought recovery against Officers Otterbine
and Echevarria for creating the "false impression in other law
enforcement officials" that Mr. Barna barricaded himself in his
residence and held his children as hostages, thereby depriving
Mr. Barna of his Eighth and Fourteenth Amendment rights.
Count V complained that Otterbine, Ruiz, and Sanabria
maliciously and falsely arrested Mrs. Barna under color of law in
violation of her Eighth and Fourteenth Amendment rights.
At trial, the Barnas called fourteen witnesses over
five days. At the close of the Barnas' case, the remaining
defendants moved for judgment as a matter of law pursuant to Fed.
R. Civ. P. 50(a). The district court granted their motions, and
also dismissed the complaint as to Hawkins for improper service
of process. In a subsequently issued letter opinion, the
district court explained, correctly in our view, that the events
of that evening should be viewed as comprising two distinct
incidents: (1) a "family altercation" between the officers and
Mr. Barna; and (2) the officers' response to Mr. Barna's
brandishing of firearms following their attempt to leave. Barna
v. Otterbine, No. 92-5133, letter op. at 11, 16 (D.N.J. Nov. 12,
1993). The court found that the evidence viewed in the light
most favorable to the plaintiffs could not support a claim under
42 U.S.C. § 1983 because, as to the first event, the officers'
actions were not performed under color of state law, and, as to
the second event, the officers' actions were a "reasonable,
measured response to an armed threat" that was "fully justified"
in light of the Barnas' threatening and disruptive conduct, and
"no jury could reasonably find probable cause did not exist to
arrest Mr. Barna" and to detain Mrs. Barna. Id. at 17, 24, 27,
34-35.
II.
As noted, the Barnas brought this action under 42
U.S.C. § 1983. Section 1983 provides:
Every person who, under color of any
statute, ordinance, regulation, custom, or
usage of any State . . ., subjects, or causes
to be subjected, any citizen of the United
States or other person within the
jurisdiction thereof to the deprivation of
any rights, privileges, or immunities secured
by the Constitution and laws, shall be liable
to the party injured in an action at law . .
. .
42 U.S.C. § 1983. "To state a claim under § 1983, a plaintiff
must allege the violation of a right secured by the Constitution
and laws of the United States, and must show that the alleged
deprivation was committed by a person acting under color of state
law." West v. Atkins, 487 U.S. 42, 48 (1988). The Barnas have
alleged violations of their rights under the United States
Constitution,8 claiming that the police officers' assault of Mr.
Barna was unprovoked and involved the use of excessive force, and
that the subsequent arrest, prosecution, and detention occurred
without probable cause. They further contend that the defendants
were acting in their official capacity as police officers--or
were otherwise clothed in state authority, both during the
altercation and during the ensuing events.
A. Assault Under Color of State Law
"The traditional definition of acting under color of
state law requires that the defendant in a § 1983 action have
exercised power 'possessed by virtue of state law and made
possible only because the wrongdoer is clothed with the authority
of state law.'" West v. Atkins, 487 U.S. 42, 49 (1988) (quoting
United States v. Classic, 313 U.S. 299, 326 (1941)).
Accordingly, acts of a state or local employee in her official
capacity will generally be found to have occurred under color of
8
. While the Eighth Amendment was directly referenced in the
complaint, the district court correctly concluded that the
allegations were properly analyzed under the Fourth and
Fourteenth Amendments. Barna v. Otterbine, No. 92-5133 (D.N.J.
Nov. 12, 1993), letter op. at 19 n.6.
state law. Id.; Flagg Bros. v. Brooks, 436 U.S. 149, 157 n.5
(1978). This will be so whether the complained of conduct was in
furtherance of the state's goals or constituted an abuse of
official power. West, 487 U.S. at 49-50; Monroe v. Pape, 365
U.S. 167, 184-87 (1961), overruled in part on other grounds,
Monell v. Department of Social Services, 436 U.S. 658 (1978).
"It is firmly established that a defendant in a section 1983 suit
acts under color of state law when he abuses the position given
to him by the State." West, 487 U.S. at 49; Screws v. United
States, 325 U.S. 91, 111 (1945) ("Acts of [police] officers who
undertake to perform their official duties are included whether
they hew to the line of their authority or overstep it.").
"It is [also] clear that under 'color' of law means
under 'pretense' of law." Screws, 325 U.S. at 111. Thus, one
who is without actual authority, but who purports to act
according to official power, may also act under color of state
law. In Griffin v. Maryland, the Supreme Court held that a
deputy sheriff employed by a private park operator acted under
color of state law when he ordered the plaintiff to leave the
park, escorted him off the premises, and arrested him for
criminal trespass. Griffin v. Maryland, 378 U.S. 130, 135 (1964)
(analyzing state action necessary for a claim under the Equal
Protection Clause of the Fourteenth Amendment). While the deputy
sheriff was in actuality acting as a private security guard and
as agent of the park operator rather than as agent of the state,
he "wore a sheriff's badge and consistently identified himself as
a deputy sheriff rather than as an employee of the park," and
consequently "purported to exercise the authority of a deputy
sheriff." Id. at 135.9 The Court concluded that the privately
employed deputy sheriff had been acting as a state actor,
stating:
If an individual is possessed of state
authority and purports to act under that
authority, his action is state action. It is
irrelevant that he might have taken the same
action had he acted in a purely private
capacity.
Id. In this same vein, off-duty police officers who purport to
exercise official authority will generally be found to have acted
under color of state law. Manifestations of such pretended
authority may include flashing a badge, identifying oneself as a
police officer, placing an individual under arrest, or
intervening in a dispute involving others pursuant to a duty
imposed by police department regulations. See, e.g., Rivera v.
LaPorte, 896 F.2d 691, 696 (2d Cir. 1990) (identification as a
peace officer, arrest of plaintiff, and use of police car); Lusby
v. T.G. & Y. Stores, Inc., 749 F.2d 1423 (10th Cir. 1984)
(flashing of police badge and identification as police officer
working as security guard), vacated on other grounds, 474 U.S.
805 (1985), adhered to on remand, 796 F.2d 1307 (10th Cir.),
9
. Under a local ordinance, the county sheriff could deputize
individuals who were employed to act as private security
personnel. The individuals would be appointed as "special deputy
sheriffs," and although they were paid by and acted as agents for
the company or individual on whose account the appointment was
made, they "ha[d] the same power and authority as deputy sheriffs
possess within the area to which they are appointed." Griffin,
378 U.S. at 132 n.1 (quoting § 2-91 of the Montgomery County Code
of 1955).
cert. denied, 479 U.S. 884 (1986); Stengel v. Belcher, 522 F.2d
438, 441 (6th Cir. 1975), cert. dismissed, 429 U.S. 118 (1976)
(intervening in barroom brawl).
On the other hand, a police officer's purely private
acts which are not furthered by any actual or purported state
authority are not acts under color of state law. See Delcambre
v. Delcambre, 635 F.2d 407, 408 (5th Cir. 1981) (holding that
alleged assault by on-duty police chief at police station did not
occur under color of state law because altercation with the
plaintiff, defendant's sister-in-law, arose out of a personal
dispute and defendant neither arrested nor threatened to arrest
the plaintiff); see also D.T. v. Independent School Dist. No. 16,
894 F.2d 1176 (10th Cir.) (finding sexual molestation of students
by public school teacher/coach that occurred on an excursion
unconnected to school activities during school vacation period
when teacher was not employed by the school district did not
occur under color of state law), cert. denied, 498 U.S. 879
(1990). While a police-officer's use of a state-issue weapon in
the pursuit of private activities will have "furthered" the
§ 1983 violation in a literal sense, courts generally require
additional indicia of state authority to conclude that the
officer acted under color of state law. Compare Bonsignore v.
City of New York, 683 F.2d 635 (2d Cir. 1982) (holding that
officer who used police handgun to shoot his wife and then commit
suicide did not act under color of state law even though he was
required to carry the police gun at all times) with Stengel v.
Belcher, 522 F.2d at 441 (finding evidence supported
determination of "under color" where off-duty officer intervened
in barroom brawl as required by relevant police department
regulations); United States v. Tarpley, 945 F.2d 806, 809 (5th
Cir. 1991) (finding requirement under color of state law met
where off-duty deputy sheriff assaulted wife's alleged ex-lover
in a private vendetta but identified self as police officer, used
service revolver, and intimated that he could use police
authority to get away with the paramour's murder), cert. denied,
112 S. Ct. 1960 (1992).
In this case, Officers Otterbine and Echevarria were
off duty when the altercation with Mr. Barna occurred, and the
evidence indicates that the underlying nature of their dispute
was personal. The evidence would not support a finding that the
officers were acting with actual police authority during the
altercation. Nor would it support a finding that they purported
to be acting with police authority.
While the fact that they were off duty is not
dispositive of whether the officers were exercising actual police
authority, there was no evidence to indicate that the officers
were on official police business. First, the officers were
literally "out of their official jurisdiction." New Jersey law
provides that a municipal police officer's jurisdiction is
limited to the municipality in which the officer was appointed.
N.J. Stat. Ann. § 40A:14-152 (West 1993); see State v. Cohen, 375
A.2d 259, 264 (N.J. 1977). A police officer may act in his or
her official capacity outside of this jurisdiction under only two
circumstances: (1) when in hot pursuit of a person whom the
officer believes to have committed a crime, N.J. Stat. Ann.
§ 2A:156-1 (West 1985), or (2) when making an arrest anywhere in
the state for a crime committed in the officer's presence, N.J.
Stat. Ann. § 40A:14-152.1 (West 1993). Officers Otterbine and
Echevarria, who were Perth Amboy police officers, thus could not
have been acting with official authority under the facts of this
case when they allegedly assaulted Mr. Barna at his home in the
Town of Woodbridge. See Rambo v. Daley, 851 F. Supp. 1222, 1224
(N.D. Ill. 1994) (recognizing police officers had no actual
authority to conduct arrest in neighboring state and analzying
further to determine whether officers acted with purported
authority); Keller v. District of Columbia, 809 F. Supp. 432, 43
(E.D. Va. 1993) (same).
Otterbine decided to follow the Barnas to their home at
the request of a relative and asked his partner, with whom he was
sharing a social evening, to accompany him. The altercation
began when Officer Otterbine accused Mr. Barna of hitting the
officer's sister, Aunt Mary. His partner then intervened to
support him and, at the end of the fracas, the two officers
attempted to leave. The officers had not been called to the
scene to conduct official police business, nor were they in
pursuit of Mr. Barna on the belief that he had already committed
a crime. Finally, the fact that they attempted to leave after
the assault establishes that the officers were not trying to
arrest Mr. Barna at the time they assaulted him. Thus, there was
no evidence to support a finding that the officers were clothed
with actual state authority during the initial phase of the
altercation, prior to Mr. Barna's brandishing of firearms.
This situation is thus unlike that in Black v.
Stephens, 662 F.2d 181 (3d Cir. 1981), cert. denied, 455 U.S.
1008 (1982), where we concluded that an on-duty police officer
may act under color of state law when he performs official duties
that arose in a quasi-personal context. In Black, the plaintiff
brought a § 1983 claim against a police officer in connection
with an arrest and prosecution that arose out of a traffic
incident involving the plaintiff's and the officer's vehicles.
We found sufficient indicia of state authority to uphold the
denial of judgment not withstanding the verdict because the
police officer was an on-duty (although plain-clothed) detective,
he wore a police academy windbreaker, and he had initiated
contact with the plaintiff on the belief that the plaintiff's
actions warranted official investigation. Black v. Stephens, 662
F.2d at 188. Here there was no evidence that the alleged assault
occurred as a result of official police concerns; on the
contrary, the evidence indicates that the assault arose out of
the officer's familial and personal concerns.
Turning to the issue of whether the officers purported
to be acting with state authority when they followed the Barnas
home and accosted Mr. Barna, we also find no evidence supporting
the Barnas' position. The officers did not identify themselves
as police officers, they did not indicate that they were acting
on official police business, and importantly, they did not
attempt to arrest Mr. Barna, or otherwise invoke their police
authority, during the initial phase of the altercation.
The only arguable connections between the officers'
alleged assault of Mr. Barna and the use of police authority are:
(1) Echevarria's comment, "I'll show you jurisdiction," made in
response to Mr. Barna's statement that the officers were out of
their jurisdiction, and (2) evidence that Echevarria used a
state-issue "PR-24" nightstick to hold Mr. Barna during the
assault--a weapon that Officer Echevarria could only legally
carry in New Jersey because of his position as a police
officer.10 We believe Officer Echevarria's comment regarding the
officers' "jurisdiction" is too ambiguous to be of significant
value on the issue of state authority. As noted, the officers
were in fact out of their police jurisdiction. Instead of
indicating that Echevarria intended to exercise official police
authority, the comment could just as likely have been meant to
convey that Echevarria intended, despite the lack of any real or
purported authority, to put Mr. Barna in his place.
The use of a police-issue nightstick is undoubtedly the
Barnas' strongest support for the view that the officers were
acting under color of state law during the alleged assault. The
nightstick was an objective indicia of police authority, and
Echevarria was legally entitled to possess it only because of his
10
. See N.J. Stat. Ann. § 2C:39-3(e), (g) (West Supp. 1994)
(knowing possession of a billy club is a crime except when it is
possessed by a law enforcement officer pursuant to regulation
while on duty or traveling to or from an authorized place of
duty).
position as a police officer. At the time it was used, however,
Echevarria did not have actual authority to use the nightstick,
since, by law, an officer may only carry the weapon while on duty
or while traveling to or from an authorized place of police duty.
See N.J. Stat. Ann. § 2C:39-3(e), (g). Nor, under the
circumstances of this case, do we view the use of the nightstick
to hold Mr. Barna during the assault as an assertion by
Echevarria of official authority. In short, we believe the
unauthorized use of a police-issue nightstick is simply not
enough to color this clearly personal family dispute with the
imprimatur of state authority.11
To hold otherwise would create a federal cause of
action out of any unauthorized use of a police-issue weapon,
without regard to whether there are any additional circumstances
to indicate that the officer was exercising actual or purported
police authority. We do not understand the under color
requirement of § 1983 to be satisfied by such a tenuous
11
. We note that County Prosecutor, now Judge, Rockoff testified
that under the county's official policy its police officers are
police twenty-four hours a day. We find that policy to be
insufficient indicia of state authority under the circumstances
of this case. At most, the existence of such a policy might have
the effect of authorizing official police action (such as an
arrest) conducted by an off-duty police officer. In such a
situation, the policy might be probative of "under color" action
if the defendant officer allegedly violated the plaintiff's
rights while engaging in activities normally associated with the
police function. See, e.g., Stengel v. Blecher, 522 F.2d 438,
441 (6th Cir. 1975) (finding indicia of "under color" element
where off-duty officer intervened in barroom brawl and used
state-issue weapon pursuant to police policy), cert. dismissed,
429 U.S. 118 (1976).
connection to state authority. See Bonsignore v. City of New
York, 683 F.2d 635 (2d Cir. 1982) (holding that officer who used
police handgun to shoot his wife and then commit suicide did not
act under color of state law even though he was required to carry
the police gun at all times); cf. Rivera v. Laporte, 896 F.2d 691
(2d Cir. 1990) (finding assault occurred under color of state law
when officer used service revolver to beat plaintiff and then
arrested plaintiff for events giving rise to the assault). The
district court properly granted judgment as a matter of law in
favor of Officers Otterbine and Echevarria on the assault-based
claim because a jury could not reasonably find that the assault
occurred under color of state law. The district court's judgment
on that claim will be affirmed.
B. Mr. Barna's Unconstitutional Arrest Claim
The complaint alleged that Officers Otterbine and
Echevarria maliciously created the false impression with other
law enforcement personnel that he was holding his children
hostage in his house and ultimately caused him to be arrested
without probable cause in violation of his constitutional rights.
The district court concluded, and the parties before us accept,
that Mr. Barna is essentially claiming his arrest was an
unreasonable seizure for purposes of the Fourth and Fourteenth
Amendments. An arrest may violate the standards of the Fourth
Amendment if effected with unreasonable force, Graham v. Connor,
490 U.S. 386, 397 (1989), or if made without probable cause to
believe that a crime has been committed, Patzig v. O'Neil, 577
F.2d 841 (3d Cir. 1978); see Gerstein v. Pugh, 420 U.S. 103, 111
(1975). The district court analyzed Mr. Barna's false arrest
claim under both of these theories and correctly concluded that
there was no basis in the evidence for such a claim.
The test for an arrest without probable cause is an
objective one, based on "the facts available to the officers at
the moment of arrest." Beck v. Ohio, 379 U.S. 89, 96 (1964);
Edwards v. City of Philadelphia, 860 F.2d 568, 571 n.2 (3d Cir.
1988). Evidence that may prove insufficient to establish guilt
at trial may still be sufficient to find the arrest occurred
within the bounds of the law. Henry v. United States, 361 U.S.
98, 102 (1959). As long as the officers had some reasonable
basis to believe Mr. Barna had committed a crime, the arrest is
justified as being based on probable cause. Probable cause need
only exist as to any offense that could be charged under the
circumstances. Edwards v. City of Philadelphia, 860 F.2d at 575-
76.
Once Mr. Barna brandished weapons in response to the
officers' conduct, the officers were justified in effecting his
arrest pursuant to New Jersey's aggravated assault statute, which
makes it a crime to "[k]nowingly under circumstances manifesting
extreme indifference to the value of human life point[] a firearm
. . . at or in the direction of another, whether or not the actor
believes it to be loaded." N.J. Stat. Ann. § 2C:12-1(b)(4) (West
Supp. 1994). The plaintiffs' evidence would not support a
determination that Officers Otterbine and Echevarria lacked
probable cause to believe that Mr. Barna had violated the
aggravated assault statute.
As we have noted, the physical altercation between Mr.
Barna and Officers Otterbine and Echevarria had already concluded
when Mr. Barna returned from his house with a revolver and
pointed it into the cab of the truck in which the officers sat.
The officers reacted by jumping out of the truck, drawing their
weapons against Mr. Barna, and instructing him to drop his gun.
When the revolver slipped from his hands, Mr. Barna retrieved a
shotgun from the house, "shuffled" it while standing on his
porch, and then retreated to the house. Under the objective
standard for probable cause, a jury could only conclude that a
reasonable officer under the circumstances would have been
justified in believing Mr. Barna was brandishing his firearms
with extreme indifference to human life in violation of N.J.
Stat. Ann. § 2C:12-1(b)(4). Under this objective standard, Mr.
Barna's subjective motive in brandishing his guns is irrelevant,
as is the fact that he claims the guns were unloaded.12
Because the plaintiffs submitted no evidence to show
that the officers' conduct in initiating an arrest under the
aggravated assault statute would have been unreasonable, Mr.
Barna's arrest occurred with probable cause as a matter of law,
and there was no violation of his Fourth Amendment rights on this
ground.13
To the extent that Mr. Barna's unconstitutional arrest
claim rests on the allegation that his arrest was effected with
excessive force, the claim still must fail. Subsequent to the
physical altercation with Mr. Barna, the officers only drew their
weapons and ordered Mr. Barna to drop his revolver. The Barnas
have failed to present any evidence from which a jury could
conclude that such action involved the use of excessive force.
Common sense dictates a finding that the officers' conduct was
reasonable under the circumstances. For all of these reasons,
the judgment on Mr. Barna's claim of unconstitutional arrest will
be affirmed.
12
. Mr. Barna claims he was protecting his wife and attempting
to make a citizen's arrest.
13
. With respect to Mr. Barna's assertion that the officers
created the false impression with other law enforcement officials
that he was involved in a hostage situation, we agree with the
district court that this was a reasonable view of the events
following Mr. Barna's brandishing of firearms and withdrawal into
his home.
C. Mrs. Barna's False Imprisonment Claim
Count V of the Barnas' complaint alleges that Perth
Amboy officers Otterbine, Sanabria, and Ruiz unconstitutionally
detained Mrs. Barna when they removed her from her residence and
transported her to the Raritan Bay Medical Center. Like an
arrest, forcible detention by the police may violate an
individual's Fourth Amendment rights against unreasonable
seizure. Terry v. Ohio, 392 U.S. 1, 16 (1967) ("It must be
recognized that whenever a police officer accosts an individual
and restrains his freedom to walk away, he has 'seized' that
person."). To find in favor of Mrs. Barna on her § 1983 forcible
detention claim, a jury would have to find that her removal and
detention were unreasonable. Id. at 19; Thompson v, Spikes, 663
F. Supp. 627, 648 (S.D. Ga. 1987). An unreasonable detention is
one conducted without lawful authority. Chrisco v. Shafran, 507
F. Supp. 1312, 1321-22 (D. Del. 1981). Therefore, if the
officers' conduct was authorized under New Jersey law and that
law was not itself constitutionally infirm as authorizing
unjustifiable seizures, her detention would be lawful and no
§ 1983 claim would lie. Cf. Veiga v. McGee, 26 F.3d 1206, 1214
(1st Cir. 1994) (holding that a detention by police officers
pursuant to Massachusetts's protective custody statute would
amount to an unlawful seizure if the statute did not reasonably
authorize a detention for the reasons given).
N.J. Stat. 26:2B-16 (West 1987) states:
Any person who is intoxicated in a
public place may be assisted to his residence
or to an intoxication treatment center or
other facility by a police officer or other
authorized person. . . .
* * * *
A police officer acting in accordance
with the provisions of this section may use
such force, other than that which is likely
to inflict physical injury, as is reasonably
necessary to carry out his authorized
responsibilities. . . .
* * * *
A person assisted to a facility pursuant
to the provisions of this section, shall not
be considered to have been arrested and no
entry or other record shall be made to
indicate that he has been arrested.
The Barnas do not challenge the constitutionality of
this statute, and they cannot persuasively dispute that it
authorized the challenged actions of the officers. Given Mrs.
Barna's conduct on the night in question, the officers would have
been justified in believing she was intoxicated. Mrs. Barna
testified that, in attempting to prevent Officers Otterbine and
Echevarria from leaving after the altercation with her husband,
she "back-handed" Otterbine in the face, and that when the
officers responded to Mr. Barna's brandishing of his revolver,
she interfered by grabbing at Otterbine. Once inside the police
car, she attempted to kick her way out. At the hospital she was
"combative." App. 318. Although at trial, Mrs. Barna denied
that she was drunk that evening and explained that she did not
remember a blood test being administered at the hospital, she
also testified to the fact that she had admitted in
interrogatories and in a prior criminal trial that her breath
smelled like alcohol and that the hospital's toxicological report
showed her blood alcohol level to be twice the amount New Jersey
defines as being "under the influence."
Mrs. Barna makes a final argument that the above-quoted
statute cannot make her detention lawful because it was an ad hoc
rationale produced by the officers on cross-examination. Because
the standard for reasonableness in this context is an objective
one, however, we conclude that the statute provides a sufficient
legal basis for her detention, and we therefore affirm judgment
as a matter of law against her on this claim.
III.
In addition to appealing the district court's order
granting judgment as a matter of law in favor of the Perth Amboy
officers, the Barnas appeal the dismissal of their complaint as
to Officer Charles Hawkins because of a failure to effectively
serve him.14
Officer Hawkins is employed by the Township of
Woodbridge, and Alan J. Baratz is the attorney for the township.
On September 9, 1993, Baratz filed an answer to the Barnas'
complaint purportedly on behalf of "[t]he Township of Woodbridge,
Charles Hawkins, James Crilly, and Frank Wallace." App. 1175.
At the close of this answer, Baratz expressly described his firm
14
. In Count XI of their amended complaint the Barnas alleged
that Officer Hawkins intercepted Mr. Barna's telephone calls
without a warrant or any judicial authority, in violation of
their protected privacy interests.
as attorneys for all four of these defendants. Thirteen days
later, on September 22, 1993, a conference was held before the
Magistrate Judge concerning in limine motions. At the start of
the hearing, Baratz identified himself as follows: "I'm appearing
on behalf of the Township of Woodbridge, my client in this
matter, and also on behalf of . . . the City of Perth Amboy and
Defendant Poloka in reference to those issues which are in common
in regard to the claims against the public entities in this
case." App. 953-54. An attorney named Scott Moynihan identified
himself at the hearing as appearing on behalf of Frank Wallace.
Nobody purported to be appearing on behalf of Officer Hawkins.
During the course of the hearing, Baratz stated that he
was not and never had been representing Officer Hawkins. Also
during the course of the hearing, it was disclosed that the
Barnas had never served their complaint upon Officer Hawkins
personally. Instead, it was discovered, they had served the
notice which they had meant for Officer Hawkins upon the clerk of
the Township of Woodbridge, who in turn had purported to receive
it on behalf of Hawkins. The magistrate judge held that this was
improper service of process. He stated, "I'm going to recommend
that Judge Lechner administratively dismiss this case pursuant to
Rule 4-J [sic] as to Mr. Hawkins." App. 1003.
On September 28, the trial began. On October 5, 1993,
the district court dismissed the complaint against Hawkins with
prejudice for "failure of the plaintiffs to properly serve
process." App. 1238. According to the district court's letter
opinion of November 12, 1993, the Barnas then sought to "appeal"
to the district court the district court's order of October 5.
The district court refused to reconsider its order for the
following reasons:
The Hawkins Dismissal was made pursuant to
the recommendation of [Magistrate] Judge
Cavanaugh, and upon representations made to
Judge Cavanaugh by Plaintiffs' attorney.
* * * *
Plaintiffs knew of Judge Cavanaugh's
recommendation of dismissal but did not
appeal to this court.
Barna v. Otterbine, No. 92-5133, letter op. at 3 (D.N.J. Nov. 12,
1993).
On appeal to this court, the Barnas contend that they
never had an opportunity to object to the magistrate judge's
recommendation because, while he indicated he was going to make a
recommendation to the trial judge, he never filed a document
reflecting that recommendation. There was, therefore, no
document from which the Barnas could appeal and to which they
could state their objections. The record confirms that no such
document was filed. For this reason, the Barnas argue, the
district court's dismissal of the complaint as to Officer Hawkins
was improper. We agree.
Rule 72 of the Federal Rules of Civil Procedure gives
litigants an opportunity to respond to a magistrate judge's
"recommendation for disposition of [a] matter." That rule
contemplates "entry into the record" of the magistrate's
recommendation and service of that recommendation on the parties.
Fed. R. Civ. P. 72. The applicable local court rule implementing
Rule 72 requires submission of the magistrate's recommendation to
the district court. See D.N.J. Local R. 40A(2).
Because there was no recommendation of the magistrate
judge that the complaint be dismissed as to Officer Hawkins for
lack of proper service, we will reverse the judgment in his favor
and remand to the district court for consideration of the Barnas'
objections to the dismissal. The Barnas do not contest the
magistrate judge's finding that Hawkins had not been properly
served; they instead argue that Hawkins answered the complaint
and thereby waived any objection to improper service of process.
On remand, the district court should determine whether the answer
filed by Baratz was authorized by Hawkins. If the answer was
authorized, any imperfection in service of process should be
deemed waived. See Government of V.I. v. Sun Island Car Rentals,
Inc., 819 F.2d 430, 433 (3d Cir. 1987). If the answer was not an
authorized response from Officer Hawkins, the district court
should then consider whether the circumstances do or do not
constitute "good cause" under Fed. R. Civ. P. 4(m). If they do,
an extension of time for service of process should be granted.
If they do not, the claim against Hawkins should be dismissed
with prejudice.15
15
. Officer Hawkins engaged Robert Musto, Esquire, to represent
him in connection with this appeal. Hawkins suggests that we
should affirm the judgment below because he was a party during
the trial (the order dismissing him not having been entered until
the day after the trial concluded), and the Barnas offered no
evidence at trial in support of their claim against him. We
decline to adopt this suggestion. Our mandate, however, will be
without prejudice to Hawkins' right to renew this contention
before the district court which is in a far better position than
we are to determine the reasonableness of the Barnas' view that
IV.
We will reverse the district court's order dismissing
the complaint against Officer Hawkins and remand for further
proceedings consistent with this opinion. In all other respects,
we will affirm the judgment of the district court.
(..continued)
evidence against Hawkins would have been inappropriate. In
support of this view, the Barnas stress that (1) they described
at the pre-trial conference evidence that they intended to offer
against Hawkins, but (2) the magistrate judge stated that he was
recommending dismissal of Hawkins, and (3) the trial judge
determined to go forward with trial at a time when no one was
representing Hawkins. The district court is also in a better
position to determine whether the Barnas acted reasonably in
failing to bring the answer filed on behalf of Hawkins to the
attention of the magistrate promptly following the conference of
September 22, 1993. That issue was not briefed before us. We
therefore express no opinion on it, and our mandate will be
without prejudice to its being raised on remand.