                                                       NOT PRECEDENTIAL

           UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT


                            No. 08-4610


    MAURA CIARDIELLO; ROBERT CIARDIELLO, married

                                v.

                     STEPHEN SEXTON,
            individually and in his official capacity;
               NEW JERSEY STATE POLICE ;
                  STATE OF NEW JERSEY
           DEPARTMENT OF HUMAN SERVICES;
                       JOHN DOES 1-5;
              TOWNSHIP OF WOODBRIDGE;
                    FRANCIS GAGNON,
            individually and in his official capacity;
               CHIEF RAYMOND BRENNAN.

                              Francis Gagnon,
                              individually and in his official capacity;
                              Township of Woodbridge,
                                                    Appellants


           Appeal from the United States District Court
                   for the District of New Jersey
                  (D.C. Civil No. 2-06-cv-04007)
           District Judge: Honorable William J. Martini


                      Argued July 14, 2010

Before: RENDELL, JORDAN and GREENAWAY, JR., Circuit Judges.

                   (Filed    August 13, 2010 )
Ronald A. Berutti, Esq. [ARGUED]
Weiner Lesniak
629 Parsippany Road
P.O. Box 438
Parsippany, NJ 07054

   Counsel for Appellants
   Francis Gagnon, individually and in his official capacity;
   Township of Woodbridge.


Kathleen C. Goger, Esq. [ARGUED]
Singer and Roger
35 West Main Street, Suite 106
Denville, NJ 07834

   Counsel for Appellees
   Maura Ciardiello, Robert Ciardiello




                              OPINION OF THE COURT




RENDELL, Circuit Judge.

      After being arrested in Woodbridge, New Jersey, plaintiff Maura Ciardiello

brought suit under 42 U.S.C. § 1983 and New Jersey state law against Officer Stephen

Sexton, Officer Francis Gagnon, and Gagnon’s employer, the Township of Woodbridge.

Defendants moved for summary judgment, which the District Court granted in part and

denied in part. Gagnon and the Township of Woodbridge have filed an interlocutory

appeal, arguing that the District Court erred by denying them qualified immunity and by

                                            2
failing to dismiss plaintiffs’ state law claims pursuant to the New Jersey Tort Claims Act,

N.J. Stat. Ann. § 59:1-1 to 59:1-7. We will affirm the District Court’s order as to the

qualified immunity issue, and will dismiss the appeal as to the Tort Claims Act issue.

                                              I.

       The events giving rise to this suit occurred on August 21, 2005, in the parking lot

of a Shop-Rite supermarket in Woodbridge, New Jersey. Sexton, a police officer with

New Jersey’s Department of Human Services who was off duty and in plain clothes at the

time of the incident, discovered that Ciardiello had left her dog alone in her parked

vehicle. Sexton claims that it was a very hot afternoon and that the dog appeared to be in

distress, although Ciardiello contends that she had used the air conditioner to cool the

vehicle before going to the store and that she had left all of the windows slightly open.

When no one returned to the vehicle after several minutes, Sexton called 911 to report

that a dog had been left unattended. He then waited by Ciardiello’s vehicle for her to

return, and for the police to arrive.

       When Ciardiello returned to her vehicle, Sexton confronted her. He did not

initially identify himself as a police officer, and after a verbal exchange, Ciardiello

entered her vehicle and prepared to leave. Sexton claims that, at around this time, he

identified himself as a police officer and showed Ciardiello his badge and police

identification; Ciardiello testified that Sexton displayed his identification for such a short

period of time that she was unable to confirm that he was showing her a badge.



                                              3
Ciardiello closed the door, but before she had a chance to lock it, Sexton opened the door

and forcefully removed Ciardiello from the vehicle. Although Ciardiello was screaming

and struggling, Sexton was able to pin her against the outside of the vehicle. He testified

that, after restraining Ciardiello against her vehicle, he held his badge in the air to show

the gathering crowd that he was a police officer.

       Officer Gagnon was dispatched to respond to Sexton’s 911 call. He testified that

he was initially dispatched to respond to a “lock-out” call—that is, he was informed that

“[s]omebody got locked out of their car . . . or locked something in their car.” JA140.

However, he claims that while he was en route to the Shop-Rite, the call “was upgraded

from a lock-out to assist officer.” JA141. Ciardiello disputes this; she asserts that,

according to a recording of the communications between Gagnon and the dispatcher, the

call was never upgraded to an “assist officer” call.

       Upon arriving in the parking lot, Gagnon says he noticed “a commotion,” and

someone’s “arm . . . holding a badge and ID” into the air. JA142-43. Sexton, however,

testified that he had put the badge back in his pocket “[w]ell before” Gagnon arrived.

JA79. Gagnon testified that Sexton “had [Ciardiello] up against the car” and was

restraining her, such that Ciardiello “wasn’t completely subdued but she wasn’t fighting

with [Sexton].” JA144-45. Sexton agreed that Ciardiello was “no longer struggling” by

the time Gagnon arrived. JA79. Ciardiello testified that when Gagnon arrived, she was

“completely restrained” against her vehicle by Sexton, was not struggling, and was not



                                              4
free to move. JA104.

       There is some uncertainty as to what transpired upon Gagnon’s arrival. Gagnon

testified that when he exited his police car and approached Sexton, Sexton said, “‘She’s

under arrest, I need you to cuff her,’” and Gagnon “handed [Sexton] my handcuffs.”

JA144. Gagnon testified that at some point Sexton said that Ciardiello was under arrest

for “obstruction,” but it is not clear when this statement was made. JA149. Sexton

testified both that he told Gagnon that Ciardiello “was under arrest for obstruction,” and

that he said to Gagnon, “‘She’s under arrest. I need your handcuffs or cuff her up.’”

JA79. Gagnon then gave his handcuffs to Sexton, and Gagnon and Sexton agree that

Sexton did not require assistance when he put the handcuffs on Ciardiello. Gagnon said

that he heard Sexton “say a couple times ‘stop resisting, you’re under arrest, this is over,’”

JA145, but Ciardiello did not recall Sexton telling her that she was under arrest, and she

did not know who had placed the handcuffs on her.

       According to Gagnon, Sexton then walked Ciardiello to Gagnon’s car and placed

her inside it. According to Ciardiello, it was a Woodbridge police officer, rather than

Sexton, who escorted her to Gagnon’s car. After recovering Ciardiello’s dog (who had

left the vehicle during the intervening events), Gagnon returned to his car, where Sexton

said to him that he would “‘meet you at police headquarters.’” JA147. Gagnon testified

that he did not have any further discussions with Sexton at the time, did not question any

witnesses before leaving the parking lot, and did not speak with Ciardiello while



                                              5
transporting her to the police station. Upon arriving at the police station, Gagnon

completed part of an arrest report, including a notation that Ciardiello had been arrested

for obstruction, but left portions of the report blank so that Sexton could complete them

later.

         Ciardiello was charged that day with obstructing “the administration of law or

other governmental function,” pursuant to § 2C:29-1 of the New Jersey Code of Criminal

Justice. She was also charged with animal cruelty and aggravated assault based on

subsequent complaints by Sexton. All of the charges were later dismissed.

                                               II.

         Ciardiello subsequently brought this case in the U.S. District Court for the District

of New Jersey.1 She asserted claims under 42 U.S.C. § 1983, apparently against all

defendants, based on Sexton’s and Gagnon’s actions. She also brought a variety of

claims under New Jersey state law, including claims of assault, negligence, malicious

prosecution against Sexton; claims of false arrest and false imprisonment, infliction of

emotional distress, and negligence against all defendants; and negligent training against

Woodbridge.2 She further alleged that the Township of Woodbridge was liable under




   1
       The District Court exercised jurisdiction under 28 U.S.C. §§ 1331 and 1367.
  2
    Ciardiello’s husband joined in the lawsuit and brought a loss of consortium claim
against all defendants.

                                               6
§ 1983 and the New Jersey Civil Rights Act, N.J. Stat. Ann. § 10:6-2.3

       Defendants moved for summary judgment, which the District Court granted in part

and denied in part. The Court determined that the factual disputes regarding Ciardiello’s

and Sexton’s conduct precluded summary judgment on most of the claims arising from

her arrest. The Court also denied summary judgment on the negligence claim brought

against all defendants.4 However, the Court granted summary judgment to Woodbridge

on the § 1983, New Jersey Civil Rights Act, and negligent training claims, after finding

that Ciardiello had not demonstrated the existence of an unconstitutional policy or

custom. The Court also granted summary judgment to Woodbridge and Gagnon on the

emotional distress claims, because “no reasonable jury could find that Defendant

Gagnon’s conduct was extreme or outrageous,” as would be required to support these

claims. JA9. Although Gagnon and Woodbridge argued that Ciardiello’s state law

claims were barred by the New Jersey Tort Claims Act, the District Court appears not to

have addressed this argument. The Court also appears not to have specifically addressed

Sexton’s claim of qualified immunity.



  3
     Ciardello also asserted claims against the New Jersey Department of Human Services
and State Police based on Sexton’s conduct, a negligence claim against Sexton, and
unspecified claims against five unnamed defendants, but she withdrew these claims prior
to the District Court’s summary judgment ruling.
  4
     This claim related to the unfortunate death of Ciardiello’s dog shortly after the events
described above. Ciardiello alleges that defendants failed to adequately secure her dog
after she was arrested, which resulted in the dog running into the street and being hit by a
car.

                                              7
       This interlocutory appeal primarily concerns the District Court’s disposition of

Gagnon’s motion for summary judgment on the ground of qualified immunity.5 The

Court gave the following account of the five facts that it found were not in dispute:

              •   Gagnon received a radio call in his car to report to the
                  ShopRite, for what was initially characterized by the
                  dispatcher as a lockout.
              •   When he drove up to the ShopRite parking lot, Gagnon
                  saw someone in plain clothes, whom he recognized as a
                  former Woodbridge officer, pinning Ciardiello against an
                  SUV.
              •   After this, Gagnon gave Sexton a pair of handcuffs.
              •   Someone cuffed Ciardiello.
              •   Ciardiello was taken to the station.

JA16-17 (citations omitted). The District Court also appears to have recognized that

Sexton said to Gagnon, at a minimum, that Ciardiello was under arrest and that Sexton

needed Gagnon’s handcuffs. However, the Court determined that these facts were not

sufficient to find that Gagnon had probable cause to arrest Ciardiello, such that he would

be entitled to qualified immunity, for three reasons. First, there was a dispute “as to what

Sexton said to Gagnon and when”; thus, the Court could not conclude as a matter of law

that it was reasonable for Gagnon to believe that he had probable cause to arrest

Ciardiello. JA17. Second, although Gagnon “relie[d] on the ‘assist officer’ call,

allegedly received prior to his arrival on the scene from the police dispatcher, to bolster




  5
    Although the District Court did not explicitly address this issue in its opinion
regarding the motion for summary judgment, it did address it in detail in denying
Gagnon’s motion to reconsider.

                                              8
the . . . probable cause determination,” “[t]he existence of this ‘assist officer’ call . . . is a

material fact in dispute.” JA18. Third, although Gagnon “point[ed] to his own

observations as evincing the reasonableness of his probable cause determination,” the

Court found that Gagnon could not have directly observed conduct that would give him

probable cause to arrest Ciardiello, since, “when Gagnon arrived, the events precipitating

Ciardiello’s arrest had already occurred.” JA18.

       The District Court therefore denied Gagnon’s claim of qualified immunity. It also

rejected Woodbridge’s claim of qualified immunity, in part because the Supreme Court

held in Owen v. City of Independence, 445 U.S. 622 (1980), that municipalities are not

entitled to such immunity.

       Gagnon and Woodbridge now appeal, arguing that they were entitled to summary

judgment on the grounds of both qualified immunity and immunity under the New Jersey

Tort Claims Act.

                                                III.

       Defendants invoke two sources of jurisdiction for us to hear this appeal, both of

which plaintiff contends are inapplicable here.

       With respect to the issue of qualified immunity, defendants argue that we have

jurisdiction under 28 U.S.C. § 1291, pursuant to the collateral order doctrine. In Mitchell

v. Forsyth, the Supreme Court held that “a district court’s denial of a claim of qualified

immunity, to the extent that it turns on an issue of law, is an appealable ‘final decision’



                                                 9
within the meaning of 28 U.S.C. § 1291 notwithstanding the absence of a final

judgment.” 472 U.S. 511, 530 (1985).

       The Supreme Court later clarified that, when a district court finds that a defendant

is not entitled to qualified immunity because “the summary judgment record . . . raise[s] a

genuine issue of fact concerning” the defendant’s conduct, that determination is not

subject to interlocutory review. Johnson v. Jones, 515 U.S. 304, 313 (1995). That is,

“questions about whether or not a record demonstrates a ‘genuine’ issue of fact for trial”

are not appealable under Mitchell; rather, the Mitchell rule applies only to “interlocutory

appeals of ‘qualified immunity’ matters . . . [that] present[] more abstract issues of law.”

Id. at 316, 317. When the issue is one of law, we must “accept the set of facts that the

District Court found to be sufficiently supported,” as well as “the District Court’s

determination of which facts are subject to genuine dispute.” Blaylock v. City of Phila.,

504 F.3d 405, 409, 411 (3d Cir. 2007). “Once we accept the set of facts that the District

Court found to be sufficiently supported, . . . we may review the District Court’s

conclusion that the defendants would not be immune from liability if those facts were

proved at trial.” Id. at 409. In the context of a false arrest claim, we may review whether

“a reasonable officer could have believed that probable cause existed to arrest” the

plaintiff, as this “is a question of law that we may properly resolve.” Id. at 411.

       Ciardiello contends that we lack jurisdiction over this appeal because the District

Court denied summary judgment after finding that material disputes of fact existed.



                                             10
However, this argument misapprehends the nature of defendants’ argument. As we will

address in greater detail below, defendants raise an issue of law: they “assert that the

disputed facts referenced by the District Court need not be decided in order for

[defendants] to be cloaked with qualified immunity,” since “the facts that are undisputed

satisfy the quality immunity standard.” Appellants’ Opening Br. at 1. Thus, they do not

challenge the District Court’s determination of which facts “the summary judgment

record is sufficient to prove,” Ziccardi v. City of Phila., 288 F.3d 57, 61 (3d Cir. 2002), or

its determination that “there is a material issue of fact to be determined by the jury,”

Barton v. Curtis, 497 F.3d 331, 336 (3d Cir. 2007). Because the qualified immunity issue

in this appeal therefore presents an “abstract issue[] of law” that is subject to interlocutory

review, Johnson, 515 U.S. at 317, we conclude that we have jurisdiction to consider the

issue of qualified immunity.

       However, we lack jurisdiction to hear defendants’ argument regarding their

immunity under the New Jersey Tort Claims Act. Defendants contend that we may

exercise “pendent appellate jurisdiction” to hear this argument. This doctrine “allows an

appellate court in its discretion to exercise jurisdiction over issues that are not

independently appealable but that are intertwined with issues over which the appellate

court properly and independently exercises its jurisdiction.” E.I. DuPont de Nemours &

Co. v. Rhone Poulenc Fiber & Resin Intermediates, S.A.S., 269 F.3d 187, 202-03 (3d Cir.

2001). As we have previously explained, we will only exercise pendent appellate



                                              11
jurisdiction to review orders that are “inextricably intertwined” or to review a

“non-appealable order where it is necessary to ensure meaningful review of the

appealable order.” Id. at 203. The issue of whether the Tort Claims Act protects

defendants is entirely independent from the issue of whether they are entitled to qualified

immunity, and we find that we can provide “meaningful review” of the qualified

immunity determination without considering the scope of the Tort Claims Act. We

therefore lack jurisdiction over the appeal to the extent that it involves defendants’

argument with respect to the Tort Claims Act.

                                             IV.

       We apply de novo review to the District Court’s denial of summary judgment on

qualified immunity grounds, drawing inferences in the light most favorable to the

nonmoving party. Bayer v. Monroe Cnty. Children & Youth Servs., 577 F.3d 186, 191

(3d Cir. 2009).

       The doctrine of qualified immunity allows government officials who are

performing discretionary functions to be “shielded 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.” Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982). In the context of a claim of false arrest and imprisonment by a police officer, the

officer is entitled to qualified immunity when “a reasonable officer could have believed

that probable cause existed to arrest” the plaintiff. Hunter v. Bryant, 502 U.S. 224, 228



                                              12
(1991). “[P]robable cause to arrest exists when the facts and circumstances within the

arresting officer’s knowledge are sufficient in themselves to warrant a reasonable person

to believe that an offense has been or is being committed by the person to be arrested.”

Orsatti v. N.J. State Police, 71 F.3d 480, 483 (3d Cir. 1995).

       We have previously considered whether an arresting officer may lawfully arrest an

individual based on statements made to him by other officers. In Rogers v. Powell, we

held that “statements by fellow officers conveying that there is probable cause for a

person’s arrest, by themselves, cannot provide the ‘facts and circumstances’ necessary to

support a finding of probable cause.” 120 F.3d 446, 453 (3d Cir. 1997). Rather,

“[p]robable cause exists only if the statements made by fellow officers are supported by

actual facts that satisfy the probable cause standard.” Id. Thus, “an officer can lawfully

act solely on the basis of statements issued by fellow officers if the officers issuing the

statements possessed the facts and circumstances necessary to support a finding of the

requisite basis.” Id. If the officer making the statement lacked the requisite knowledge to

establish probable cause, the arrest is unlawful.

       Even where such an arrest is unlawful, however, the arresting officer may be

protected by qualified immunity. Specifically, “where a police officer makes an arrest on

the basis of oral statements by fellow officers,” the arresting officer is entitled to qualified

immunity if “it was objectively reasonable for him to believe, on the basis of the

statements, that probable cause for the arrest existed.” Id. at 455. But where the arresting



                                              13
officer “never received a clear statement from a fellow law enforcement officer

confirming the existence of probable cause for the suspect’s arrest,” and instead relied on

vague or irrelevant statements by other officers, the arresting officer is not entitled to

qualified immunity. Id. at 455-56.

       The salient question in this case is thus whether Gagnon knew information, based

on either his own observations or Sexton’s statements to him, that would have given

Gagnon an objectively reasonable basis to believe that there was probable cause to arrest

Ciardiello. As noted earlier, in analyzing this question we must accept the District

Court’s determinations of which facts are sufficiently supported by the record and which

facts are in dispute. To the extent that facts have been found by the District Court to be in

dispute, we cannot rely on them to evaluate Gagnon’s claim of immunity.

       Gagnon contends that he was entitled to qualified immunity because he “was not

apprised of the exact circumstances of the arrest at the time he gave his handcuffs” to

Sexton, because of his “reasonable beliefs upon his subsequent arrival on the scene,” and

because he was not obligated “to interview” Sexton and “make credibility determinations

prior to handing him the handcuffs.” Appellants’ Opening Br. at 11, 12, 15. He supports

these arguments using the following set of facts, which he claims to be undisputed:

(1) “Officer Gagnon was not present” when Sexton confronted and restrained Ciardiello,

JA12; (2) Gagnon’s “sensory understanding of the circumstances upon arrival at the

scene” showed that Sexton “had arrested plaintiff for obstruction,” JA11; (3) Sexton



                                              14
“assert[ed] that Ms. Ciardiello was being arrested for obstruction,” JA14; and (4) Gagnon

“simply provided his handcuffs in order to complete the arrest, and then routinely

transported appellee to police headquarters, processed the arrest, and sought out medical

treatment for her rib pain, which was refused,” JA15.

       These facts, however, are not sufficient to give Gagnon a clear path to immunity.

Gagnon is only entitled to immunity if he was aware of facts that would support a

reasonable belief that Ciardiello had committed a crime. Hunter, 502 U.S. at 228. To the

extent that Gagnon relied on Sexton’s statements to him, those statements must have been

“clear” and sufficiently specific to “confirm[] the existence of probable cause.” Rogers,

120 F.3d at 455-56. Although we agree that Gagnon was not necessarily required to

interrogate Sexton about the details of Ciardiello’s conduct, this does not mean that

Gagnon had no duty to become informed as to the basis for the arrest. He will only be

entitled to qualified immunity if he perceived events himself, or received information

from Sexton, that would have been construed by a reasonable officer to show that

Ciardiello had engaged in a crime.

       As the District Court held, however, the undisputed facts in the record do not

establish this. To the extent that Gagnon relies on his assertion that he was told by Sexton

that Ciardiello was under arrest for “obstruction,” that alleged statement is of no use on

appeal because the District Court found that there was a genuine dispute about the

contents of Sexton’s statements to Gagnon, and we lack jurisdiction to review that



                                             15
determination. Blaylock, 504 F.3d at 409.6 Although it is certainly appropriate for an

arresting officer to rely on his own observations to determine that probable cause exists,

Gagnon’s vague references to his “reasonable beliefs upon . . . arrival” and his “sensory

understanding of the circumstances” do not demonstrate that he had probable cause for

making this arrest.7 Moreover, none of the truly undisputed facts cited by Gagnon—i.e.,

that Gagnon was not present during Sexton’s initial confrontation with Ciardiello, that

Gagnon’s handcuffs were used to restrain Ciardiello, that Gagnon transported Ciardiello

to the police station and processed her arrest, and that he asked a colleague to determine if

Ciardiello required medical treatment—are relevant to the probable cause determination.

Similarly, the five facts found by the District Court to be undisputed were not sufficient to

support a reasonable belief that Ciardiello had committed a crime. In summary, we note

that this is not a situation where, even if we assumed the facts to be precisely as plaintiff

contends, Gagnon would be entitled to immunity as a matter of law. Cf. McLaughlin v.

Watson, 271 F.3d 566, 572 (3d Cir. 2001). Rather, the disputed facts are material to the

  6
    We also note that, contrary to Gagnon’s contention, his situation is unlike that of
Officers Eiler, Powell, and Stein in Rogers, 120 F.3d at 456, all of whom arrested Rogers
after being specifically informed by one of their colleagues that he was named in an arrest
warrant. The existence of that warrant would, on its own, have constituted probable
cause for the arrest of Rogers.
  7
    Indeed, by Gagnon’s own admission, with which Sexton and Ciardiello agreed, “there
wasn’t a struggle going on” between Ciardiello and Sexton by the time that Gagnon
arrived, and Sexton did not require assistance in handcuffing Ciardiello. JA144-45. This
is not to say that it is irrelevant that Gagnon saw someone he knew to be a police officer
physically restraining Ciardiello. The point is that this observation alone does not amount
to probable cause.

                                              16
qualified immunity determination.

       We therefore agree with the District Court’s determination that, at this stage of the

case, Gagnon is not entitled to qualified immunity.8

                                             V.

       We will AFFIRM the order of the District Court with respect to its denial of

qualified immunity to Gagnon and Woodbridge, and will otherwise DISMISS the appeal

for lack of jurisdiction.




  8
    Although Woodbridge joins in this appeal, it has presented no arguments independent
of those presented on behalf of Gagnon. This is not surprising, as there is no error in the
District Court’s determination that, pursuant to Owen, 445 U.S. at 657, “municipalities
have no immunity from damages liability flowing from their constitutional violations.”

                                             17
