NOT FOR PUBLICATION WITHOUT THE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-5310-14T2
ANTHONY PACE, SR. and
DIANE PACE, his wife,
Plaintiffs-Appellants,
v.
TOWNSHIP OF NUTLEY, TOWNSHIP
OF NUTLEY POLICE DEPARTMENT,
LT. KEVIN WATTS, and POLICE
OFFICER GERARD TUSA,
Defendants-Respondents,
_____________________________
Argued January 19, 2017 – Decided July 12, 2017
Before Judges Fuentes, Simonelli and Gooden
Brown.
On appeal from the Superior Court of New
Jersey, Law Division, Essex County, Docket No.
L-5518-13.
George M. Kachmar, III, argued the cause for
appellants.
Michael A. D'Anton argued the cause for
respondents (Chasan Leyner & Lamparello, PC,
attorneys; Mr. D'Anton, of counsel and on the
brief; Joseph E. Santanasto, on the brief).
PER CURIAM
Plaintiff Anthony Pace, Sr. (Pace Sr.), and his wife,
plaintiff Diane Pace (Mrs. Pace), appeal from the May 29, 2015 Law
Division order, which granted summary judgment to defendants
Township of Nutley, Township of Nutley Police Department,
Lieutenant Kevin Watts, and Police Officer Gerard Tusa, and
dismissed the amended complaint with prejudice.1 For the following
reasons, we affirm.
I.
We derive the following facts from the evidence submitted by
the parties in support of, and in opposition to, the summary
judgment motion, viewed in the light most favorable to plaintiff.
Angland v. Mountain Creek Resort, Inc., 213 N.J. 573, 577 (2013)
(citing Brill v. Guardian Life Ins. Co., 142 N.J. 520, 523 (1995)).
On October 18, 2012, plaintiffs and their two adult children,
Diana Pace (Diana) and Anthony Pace, Jr. (Pace Jr.), were involved
in a domestic dispute in their Nutley home that prompted Mrs. Pace
to call 9-1-1. Mrs. Pace told the dispatcher that "[t]his time
1
Plaintiffs also appealed from the July 10, 2015 order, which
denied their motion for reconsideration. Because they did not
address this issue on the merits, it is deemed waived. N.J. Dep't
of Envtl. Prot. v. Alloway Twp., 438 N.J. Super. 501, 505-06 n.2
(App. Div.), certif. denied, 222 N.J. 17 (2015); Pressler &
Verniero, Current N.J. Court Rules, comment 5 on R. 2:6-2 (2017).
2 A-5310-14T2
it's for real[,]" and "we need another [police car] at [the house]
because we're all f[**]king nuts." The dispatcher advised
responding officers that "all family members were home," it "sounds
like it's going good there[,]" and it was a "family dispute" with
"assaults." Diana hung up the phone. Mrs. Pace called 9-1-1
again and told the dispatcher "[t]hat was my daughter that hung
up on you. You might want to lock her ass up."
Prior to this incident, the Pace family had fifty-five
interactions with the Nutley police. Twenty-five incidents
involved domestic disputes, some of which resulted in temporary
restraining orders against Pace Sr. and Jr., and others involved
non-relatives obtaining restraining orders against Pace Jr. and
Diana. Tusa, one of the officers responding to the Pace home on
October 12, 2012, was familiar with all family members, having
been involved in either an investigative or responsive capacity
in several of those prior incidents.
When Tusa and Officer Carla Vitale arrived at the Pace home,
Mrs. Pace was outside the home. She advised the officers that
Pace Sr. was out of control inside the home. The officers entered
the home to speak with Pace Sr., who was belligerent, refused to
calm down, told them to leave, became increasingly louder, and
refused to speak to them. Tusa and Vitale exited the home and
3 A-5310-14T2
spoke again with Mrs. Pace, who said she wanted Pace Sr. out of
the home and wanted to file a complaint against him.
When Watts arrived, Mrs. Pace advised him that Pace Sr. was
out of control. The scene was chaotic with Pace Sr. and Jr.
yelling and cursing from inside the home so loudly that it
disturbed the neighbors. According to Tusa, Pace Sr. and Jr. were
in such a rage that "spit was flying from their mouths." Watts
requested additional police assistance, and other officers
eventually arrived.
Watts approached the home and told Pace Sr. and Jr. that he
had to come inside to investigate what was occurring and resolve
it. When the front door opened, Pace Jr. was standing in the
doorway with Pace Sr. behind him. As Watts stepped forward, Pace
Jr. raised his hand and pushed Watts back and Pace Sr. moved
forward in a menacing fashion and reached over Pace Jr.'s shoulder
to push Watts, but did not touch him. Watts pepper-sprayed both
men in the face.
Tusa removed Pace Jr. from the house. Pace Jr. resisted
arrest, but was eventually handcuffed. Watts, Tusa, and two other
officers went inside the home and attempted to handcuff Pace Sr.
but he resisted, throwing punches and disobeying verbal commands.
He was eventually handcuffed and removed from the home. He and
Pace Jr. were charged with obstructing administration of law or
4 A-5310-14T2
other governmental function, N.J.S.A. 2C:29-1(b), and resisting
arrest, N.J.S.A. 2C:29-2(a). Pace Sr. pled guilty to improper
behavior, and Pace Jr. pled guilty to resisting arrest.
Pace Sr. filed a complaint against defendants, alleging, in
part, that the use of pepper spray constituted excessive force.
Plaintiffs asserted claims of negligent hiring and supervision;
violations of the New Jersey Civil Rights Act (CRA), N.J.S.A.
10:6-1 to -2; and battery.2 His liability expert on police
procedures opined that Watts' decision to use force to enter the
house was extreme; there were no exigent circumstances warranting
the second forcible entry into the home; and Watts should have
warned Pace Sr. and Jr. that he was going to use pepper spray.
The expert admitted, however, that a police officer is authorized
to arrest anyone who touches the officer.
Following the completion of discovery, defendants filed a
motion for summary judgment. In granting the motion, the motion
judge found, based on a totality of the circumstances, that the
police were justified in applying force to effectuate Pace Sr.'s
arrest and prevent a tense situation from potentially escalating,
and the use of pepper spray was not excessive. The judge found
there was probable cause to arrest Pace Sr. under the Prevention
2
Mrs. Pace asserted a per quod claim.
5 A-5310-14T2
of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35, and
there were exigent circumstances to enter the home based on Mrs.
Pace's statement that Pace Sr. was out of control and she wanted
him removed from the home, and because Diana was unaccounted for.
The judge also found that entry into the home complied with the
emergency aid doctrine, which permitted the officers to enter the
house and ascertain Diana's safety. The judge concluded that
defendants were entitled to qualified immunity and to specific
immunity under the PDVA, and the officers were properly trained
and supervised.
On appeal, plaintiffs contend that the judge erred in finding
defendants were entitled to qualified and/or specific immunity and
that the use of pepper spray did not constitute excessive force.3
We disagree.
3
We decline to address plaintiffs' argument that the judge failed
to exclude inadmissible evidence, specifically, the audiotape
recording and transcript of the 9-1-1 call and the Pace family's
prior incidents with the police. Plaintiffs did not raise this
argument before the motion judge and it is not jurisdictional in
nature nor does it substantially implicate the public interest.
Zaman v. Felton, 219 N.J. 199, 226-27 (2014) (citation omitted).
In addition, because our review is de novo, we decline to address
plaintiffs' argument that the judge made erroneous factual
findings. See In re Phillips, 117 N.J. 567, 578 (1990) (holding
that "[i]n a de novo proceeding, a reviewing court does not use
an 'abuse of discretion' standard, but makes its own findings of
fact").
6 A-5310-14T2
We review a ruling on summary judgment de novo, applying the
same standard governing the trial court. Davis v. Brickman
Landscaping, Ltd., 219 N.J. 395, 405 (2014). Thus, we consider
"whether the competent evidential materials presented, when viewed
in the light most favorable to the non-moving party, are sufficient
to permit a rational factfinder to resolve the alleged disputed
issue in favor of the non-moving party." Id. at 406 (citation
omitted). If there is no genuine issue of material fact, we must
then "decide whether the trial court correctly interpreted the
law." DepoLink Court Reporting & Litig. Support Servs. v. Rochman,
430 N.J. Super. 325, 333 (App. Div. 2013) (citation omitted). We
review issues of law de novo and accord no deference to the trial
judge's conclusions on issues of law. Nicholas v. Mynster, 213
N.J. 463, 478 (2013). Applying these standards, we discern no
reason to reverse the grant of summary judgment.
II.
In Point C. of their merits brief, Pace Sr. contends that
defendants are not entitled to qualified immunity. He argues, in
part, that the second warrantless entry into his home and use of
excessive force by inappropriate use of pepper spray to gain entry
satisfied the second prong of Saucier v. Katz, 533 U.S. 194, 201,
121 S. Ct. 2151, 2156, 150 L. Ed. 2d 272, 281 (2001), which
requires proof that a statutory or constitutional right was clearly
7 A-5310-14T2
established. However, he does not argue that the police lacked
probable cause to arrest him.
"The doctrine of qualified immunity operates to shield
'government officials performing discretionary functions generally
. . . 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, 102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396, 410
(1982)). "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." Ibid. (citation omitted).
"In New Jersey, the qualified-immunity doctrine is applied,
in accordance with the Harlow pronouncement, 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." Id. at 117 (emphasis added) (citations
omitted). "Whether a police officer is entitled to qualified
immunity is determined by application of a two-prong test." Ibid.
(citation omitted). "The first inquiry asks whether the facts
alleged, '[t]aken in the light most favorable to the party
8 A-5310-14T2
asserting the injury,' show that the challenged conduct violated
a statutory or constitutional right. Second, the court must
determine 'whether the right was clearly established.'" Id. at
117-18 (citing Saucier, supra, 533 U.S. at 201, 121 S. Ct. at
2156, 150 L. Ed. 2d at 281; Wood v. Moss, ___ U.S. ___, ___, 134
S. Ct. 2056, 2067, 188 L. Ed. 2d 1039, 1051 (2014)).
"The dispositive point in determining whether a right is
clearly established is whether a reasonable officer in the same
situation clearly would understand that his actions were
unlawful." Id. at 118 (citing Saucier, supra, 533 U.S. at 202,
121 S. Ct. at 2156, 150 L. Ed. 2d at 282). "In other words,
existing precedent must have placed the statutory or
constitutional question confronted by the official beyond debate."
Ibid. (quoting Plumhoff v. Rickard, ___ U.S. ___, ___, 134 S. Ct.
2012, 2023, 188 L. Ed. 2d 1056, 1069 (2014)).
The qualified immunity doctrine "protects all officers but
the plainly incompetent or those who knowingly violate the law."
Ibid. (quoting Connor v. Powell, 162 N.J. 397, 409 (2000)). "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.'" Ibid. (quoting
Wildoner v. Borough of Ramsey, 162 N.J. 375, 386 (2000)).
9 A-5310-14T2
"Thus, when a plaintiff asserts that he or she was unlawfully
arrested, a law enforcement officer can defend such a claim 'by
establishing either that he or she acted with probable cause, or,
even if probable cause did not exist, that a reasonable police
officer could have believed in its existence.'" Id. at 188-19
(emphasis added) (quoting Kirk v. City of Newark, 109 N.J. 173,
184 (1998)). "If officers of reasonable competence could disagree
on the issue of probable cause, the doctrine of qualified immunity
should be applied." Id. at 119 (quoting Connor, supra, 162 N.J.
at 409).
"Procedurally, the issue of qualified immunity is one that
ordinarily should be decided well before trial, and a summary
judgment motion is an appropriate vehicle for deciding that
threshold question of immunity when raised. The issue is one for
the court to determine." Ibid. (citation omitted). "That said,
if 'historical or foundational facts' that are material to deciding
that issue are disputed, 'the jury should decide those . . . facts
on special interrogatories'; but, the jury's role is limited to
'the who-what-when-where-why type of' fact issues." Ibid.
(quoting Schneider v. Simonini, 163 N.J. 336, 355-56 (2000), cert.
denied, 531 U.S. 1146, 121 S. Ct. 1083, 148 L. Ed. 2d 959 (2001)).
"However, the jury does not decide the issue of immunity." Ibid.
"When no material historical or foundational facts are in dispute
10 A-5310-14T2
. . . 'the trial judge must then decide the legal issue of whether
probable cause existed and, if not, whether a reasonable police
official could have believed in its existence.'" Ibid. (quoting
Schneider, supra, 163 N.J. at 360). Contrary to plaintiffs'
argument, there were no material historical or foundational facts
in dispute.4 Thus, the matter was ripe for summary judgment.
Plaintiffs do not argue, and their expert did not opine, that
the police lacked probable cause to arrest Pace Sr. We are
nevertheless compelled to address this issue because of its
importance in our analysis.
"Probable cause exists if at the time of the arrest 'the
facts and circumstances within [the officers'] knowledge and of
which they had reasonably trustworthy information were sufficient
to warrant a prudent man in believing that the [suspect] had
committed or was committing an offense.'" Wildoner, supra, 162
N.J. at 389 (quoting Beck v. Ohio, 379 U.S. 89, 91, 85 S. Ct. 223,
225, 13 L. Ed. 2d 142, 145 (1964)).
4
Plaintiffs rely entirely on Santini v. Fuentes, 795 F.3d 410
(2015) to argue that qualified immunity cannot be decided on a
motion for summary judgment where there are material facts in
dispute. Even if there were factual disputes, we are not bound
by published federal circuit court opinions. See Ryan, supra, 186
N.J. at 436; Pressler & Verniero, N.J. Court Rules, comment 3.5
to R. 1:36-3 (2017).
11 A-5310-14T2
"Although it eludes precise definition, probable cause 'is
not a technical concept but rather one having to do with the
factual and practical considerations of every day life upon which
reasonable men, not constitutional lawyers, act.'" Id. at 389-90
(quoting State v. Waltz, 61 N.J. 83, 87 (1972)). "Thus, 'the
common and specialized experience and work-a-day knowledge of
police [officers] must be taken into account.'" Id. at 390
(quoting State v. Contursi, 44 N.J. 422, 431 (1965)). "Moreover,
'[a]bstract contemplation will not suffice because the decisions
of police officers must be made on the spur of the moment and
cannot be viewed fairly from the vantage point of twenty-twenty
hindsight.'" Ibid. (quoting Sanducci v. City of Hoboken, 315 N.J.
Super. 475, 481 (1998)). "The answer must instead be found 'in
the tumult of the streets.'" Ibid. (quoting Sanducci, supra, 315
N.J. Super. at 481).
Here, the police had probable cause to arrest Pace Sr. for
obstructing administration of law or other governmental function
and resisting arrest and to enter the home to effectuate the
arrest. A person is guilty of obstruction if he "obstructs the
detection or investigation of a crime or the prosecution of a
person for a crime." N.J.S.A. 2C:29-1(b). The police were
attempting to investigate an alleged domestic violence incident
12 A-5310-14T2
and arrested Pace Sr. based on what they believed to be his
commission of the offense of obstruction.
A person is guilty of resisting arrest "if he purposely
prevents or attempts to prevent a law enforcement officer from
effecting an arrest." N.J.S.A. 2C:29-2(a). Pace Sr. threw punches
and disobeyed verbal commands as the police were attempting to
arrest him. Thus, even viewing the facts in the light most
favorable to Pace Sr., the low threshold of probable cause existed
for the police to find he committed the offenses of obstruction
and resisting arrest. Accordingly, because there was probable
cause to arrest Pace Sr. and enter the home to effectuate the
arrest, defendants are entitled to qualified immunity.
III.
Plaintiffs contend in Point D. that defendants are not
entitled to specific immunity because the incident was not a
domestic violence incident. This contention lacks merit.
The PDVA "broadened the discretion of a police officer to
arrest an alleged perpetrator, even when the victim did not
corroborate the incident, provided that the officer had probable
cause to believe the incident occurred." Wildoner, supra, 162
N.J. at 388 (citing N.J.S.A. 2C:21(b)). Thus,
[t]o ensure protection for law enforcement
officers and others who in good faith report
a possible incident of domestic violence, the
13 A-5310-14T2
Legislature enacted N.J.S.A. 2C:25-22, which
provides:
A law enforcement officer or a
member of a domestic crisis team or
any person who, in good faith,
reports a possible incident of
domestic violence to the police
shall not be held liable in any
civil action brought by any party
for an arrest based on probable
cause, enforcement in good faith of
a court order, or any other act or
omission in good faith under this
act.
[Id. at 389 (emphasis added)
(quoting N.J.S.A. 2C:25-22).]
"[T]he central issue . . . is whether there was probable cause,
or, alternatively, whether it was objectively reasonable for the
officers to believe that probable cause existed at the time of
plaintiff's arrest." Ibid.
"A law enforcement officer may arrest a person . . . where
there is probable cause to believe an act of domestic violence has
been committed[.]" N.J.S.A. 2C:25-21(b). Harassment is a
predicate act of domestic violence under the PDVA. N.J.S.A. 2C:25-
19(a)(13). A person commits the offense "if, with purpose to
harass another, he . . . [m]akes, or causes to be made, a
communication or communications anonymously or at extremely
inconvenient hours, or in offensively coarse language, or any
other manner likely to cause annoyance or alarm" or "[e]ngages in
14 A-5310-14T2
any other course of alarming conduct or of repeatedly committed
acts with purpose to alarm or seriously annoy such other person."
N.J.S.A. 2C:33-4(a), (c).
The police were called to the Pace home on a report of a
domestic dispute. When they arrived, they were confronted with a
chaotic and volatile situation, with Pace Sr. screaming and cursing
from inside the home. Mrs. Pace was outside the home and told the
officers that Pace Sr. was out of control inside the home, she
wanted him removed, and she wanted to file a complaint against
him. Again, even viewing the facts in the light most favorable
to Pace Sr., the low threshold of probable cause existed for the
police to find Pace Sr. committed the offenses of harassment.
Accordingly, defendants are entitled to specific immunity.
IV.
For the sake of completeness, we address whether employing
pepper spray constituted excessive force. "To state a claim for
excessive force as an unreasonable seizure under the Fourth
Amendment, a plaintiff must show that a seizure occurred and that
it was unreasonable." Leopardi v. Twp. of Maple Shade, 363 N.J.
Super. 313, 330 (App. Div. 2003) (quoting Abraham v. Raso, 183
F.3d 279, 288 (3d Cir. 1999)). "Qualified immunity operates 'to
protect officers from the sometimes hazy border between excessive
and acceptable force.'" Ibid. (quoting Saucier, supra, 533 U.S.
15 A-5310-14T2
at 206, 121 S. Ct. at 2151, 159 L. Ed. 2d at 284. "The 'test of
reasonableness under the Fourth Amendment is whether, under the
totality of the circumstances, the officers' actions are
'objectively reasonable' in light of the facts and circumstances
confronting them, without regard to their underlying intent or
motivations.'" Ibid. (quoting Estate of Smith v. Marasco, 318
F.3d 497, 515 (3d Cir. 2003)).
Courts consider the following factors in making this
"totality of the circumstances" analysis:
the severity of the crime at issue, whether
the suspect poses an immediate threat to the
safety of the officers or others, and whether
he actively is resisting arrest or attempting
to evade arrest by flight, as well as the
possibility that the persons subject to the
police action are themselves violent or
dangerous, the duration of the action, whether
the action takes place in the context of
effecting an arrest, the possibility that the
suspect may be armed, and the number of
persons with whom the police officers must
contend at one time.
[Id. at 330-31 (quoting Estate of Smith,
supra, 318 F.3d at 515.]
"Nevertheless, '[t]he reasonableness of a particular use of force
must be judged from the perspective of a reasonable officer on the
scene, rather than with the 20/20 vision of hindsight. . . . Not
every push or shove, even if it may later seem unnecessary in the
peace of a judge's chambers, violates the Fourth Amendment.'" Id.
16 A-5310-14T2
at 331 (quoting Graham v. Connor, 490 U.S. 386, 396, 109 S. Ct.
1865, 1872, 104 L. Ed. 2d 443, 455 (1989)). "The calculus of
reasonableness must embody allowance for the fact that police
officers are often forced to make split second judgments in
circumstances that are tense, uncertain, and rapidly evolving--
about the amount of force that is necessary in a particular
situation." Ibid. (quoting Graham, supra, 490 U.S. at 397, 109
S. Ct. at 1872, 104 L. Ed. 2d at 455-56).
Plaintiffs have cited no authority supporting their argument
that the use of pepper spray constitutes excessive force. We find
that under the totality of the circumstances, and especially where
a police officer was attacked, the use of pepper spray was
objectively reasonable in light of the facts and circumstances
confronting the officers.
Affirmed.
17 A-5310-14T2