                        NOT FOR PUBLICATION WITHOUT THE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
