                                                        NOT PRECEDENTIAL

                UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT


                                No. 15-1537


                           SHAWN Y. BROWN,

                                          Appellant



                                     v.

OFFICER ANTHONY MAKOFKA, individually and in official capacity; OFFICER
JONATHAN THOMPSON, individually and in official capacity; CITY OF JERSEY
CITY; JERSEY CITY POLICE DEPARTMENT; POLICE OFFICERS 1-10; JOHN
                  DOES 10-10; BODY POLITICS 1-10


               On Appeal from the United States District Court
                        for the District of New Jersey
                    (District Court No.: 2-12-cv-05314)
                  District Judge: Honorable Jose L. Linares



                 Submitted under Third Circuit LAR 34.1(a)
                          on November 12, 2015


                      (Opinion filed: March 17, 2016)


        Before: CHAGARES, RENDELL, and BARRY, Circuit Judges
                                       O P I N I O N*


RENDELL, Circuit Judge:

       Shawn Brown contends that he was subjected to excessive force during an illegal

arrest. He brings claims against the City of Jersey City, the Jersey City Police

Department, and several Jersey City police officers (collectively, “Defendants”) under the

United States Constitution pursuant to § 1983, claims under the New Jersey Constitution

pursuant to the New Jersey Civil Rights Act, and claims under New Jersey tort law. The

District Court granted summary judgment for Defendants on all claims. We will affirm

the ruling of the District Court as to all claims except as to its dismissal of the state-law

false-arrest claim, which we will vacate and remand for further proceedings.

                                  I. Factual Background

       According to Brown, one evening, as he was leaving the gym where he worked, he

walked his motorcycle along the sidewalk, propelling it forward with his feet while

sitting atop it. App. at 49. According to Officer Makofka, however, it appeared to him

that the motorcycle was being propelled forward along the sidewalk by the engine, as

Brown’s feet were not touching the ground. App. at 107. At this point, Officers Makofka

and Thomson of the Jersey City Police Department stopped Brown. App. at 50. Once

stopped, Brown was asked for his license and registration. App. at 55. Brown contends

that he then began to retrieve his documents but, before he could do so, he was told that

       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
                                               2
he was under arrest. App. at 55-56. Officer Thomson testified that before telling Brown

that he was under arrest, he asked Brown five times for his documentation and warned

him that if he did not produce his documentation he would be placed under arrest. App.

at 163.

       According to Brown, he was then lifted up off of his motorcycle and forced down

to the ground. App. at 56. According to Officers Makofka and Thomson, as they went to

arrest Brown he crossed his arms and grabbed his protective vest on both sides so that

they could not handcuff him, prompting them to take Brown to the ground. App. at 118-

19, 164-66. Several more officers soon arrived. Officers Makofka and Thomson assert

that Brown continued to resist arrest by keeping his hands crossed and gripping his

protective vest. App. at 119, 156. Brown asserts that these officers struck him and

prevented him from producing his hands so that he could be handcuffed. App. at 66.

Eventually, Brown was placed under arrest and later pled guilty to unsafe operation of a

motor vehicle in violation of N.J. Stat. Ann. 39:4-97.2 and to violating the Jersey City

Municipal Code Noise Ordinance 222-2. App. at 73, 252-53. Video footage from a

surveillance camera depicted some, but not all, of the foregoing events.

                              II. Procedural Background

       In the District Court, Defendants moved for summary judgment. The District

Court granted summary judgment for Defendants on all claims, relying primarily on the

surveillance video footage of the incident.

       The District Court granted summary judgment against Brown on his excessive

force claim, concluding that the video footage precluded a reasonable jury from finding

                                              3
in his favor. The District Court found it undisputed that the police officers had announced

their intention to arrest Brown in an off-camera interaction. The video then shows, in the

words of the District Court, “the Officers attempting to place Plaintiff in handcuffs, as

three parties come back into view of the camera, with Plaintiff hunched over clearly

grasping his protective vest.” App. at 12. The District Court, observing that the video

“features three minutes of the Officers trying to pry Plaintiff[’]s hands from under his

body” and that it took four officers to eventually do so, concluded that “no reasonable

jury could conclude that Plaintiff was not actively attempting to prevent the officers from

handcuffing him.” Id. Believing that this depicts Brown resisting arrest, the District Court

concluded that “the undisputable video evidence does not show the Defendants in

particular, or for that matter any of the officers using an amount of force that a reasonable

fact finder could find excessive.” App. at 13.

       The District Court next granted summary judgment against Brown on his claim for

false arrest. First, the District Court rejected Brown’s contention that there was a genuine

dispute whether the police officers had probable cause to believe he was operating his

motorcycle on the sidewalk. The District Court found that “[t]he sidewalk surveillance

video clearly shows [Plaintiff] on top of his motorcycle, operating it on the sidewalk,”

App. at 11, giving Defendants “probable cause to stop and detain Plaintiff,” App. at 18.

Moreover, the Court concluded that, once the officers announced their intention to arrest

Brown, “Plaintiff’s false arrest claim is defeated because the video clearly shows Plaintiff

resisting arrest by crouching over and locking his hands across his protective vest.” Id. It

reasoned further: “It is irrelevant to this Court’s analysis as to whether probable cause

                                              4
existed for the obstruction charge because there is probable cause for the resisting arrest

charge.” Id.

       The District Court also ruled against Brown on his Monell liability claim, finding

that “[n]owhere within the record does Plaintiff identify a specific custom, practice, or

policy implemented by Defendants which caused a constitutional violation to Plaintiff.”

App. at 22. Finally, the District Court ruled against Brown on his claims for intentional

and negligent infliction of emotional distress, reasoning that Defendants were protected

by the New Jersey Tort Claims Act which provides that “[a] public employee is not liable

if he acts in good faith in the execution or enforcement of any law.” 1 See App. at 26-27

(citing N.J. Stat. Ann. § 59:3-3). The District Court found that Defendants did not use

excessive force, act in bad faith, or breach a duty owed to Brown, and therefore granted

summary judgment on Brown’s claims for intentional and negligent infliction of

emotional distress.2

                       III. Jurisdiction and Standard of Review

       The District Court had jurisdiction over this case because of the federal

constitutional claims brought by Brown. See 28 U.S.C. §§ 1331, 1367. We have

jurisdiction over this appeal under 28 U.S.C. § 1291. We exercise plenary review over

summary judgment decisions. Thus, we apply “the same standard that the [district] court

should have applied.” Howley v. Mellon Fin. Corp., 625 F.3d 788, 792 (3d Cir. 2010).

1
  Notably, the statute also provides that “Nothing in this section exonerates a public
employee from liability for false arrest or false imprisonment.” N.J. Stat. Ann. § 59:3-3.
2
  The District Court also granted summary judgment against Brown on his claims under
the Fifth, Sixth, and Eighth Amendments, as well as against Brown on his tort claims for
assault, battery, and negligence. Brown does not challenge those rulings on appeal.
                                             5
Summary judgment is appropriate if, viewing the facts in the light most favorable to the

non-moving party, there is no genuine issue of material fact and the moving party is

entitled to judgment as a matter of law. See id. (citing Fed. R. Civ. P. 56).

                                        IV. Analysis

       For essentially the reasons explained by the District Court, we affirm the grant of

summary judgment against Brown on his excessive force, Monell, and infliction of

emotional distress claims. We also affirm summary judgment of Brown’s § 1983 claim

for false arrest. We will reverse the award of summary judgment on the state-law false-

arrest claim.

                                 A. Excessive Force Claims

       We agree with the District Court that the events shown on the video evidence of

the incident make it clear that no reasonable fact finder could conclude that the police

used excessive force. In evaluating an excessive force case, we ask whether, “from the

perspective of the officer at the time of the incident and not with the benefit of

hindsight,” the officers were objectively reasonable in their use of force. Santini v.

Fuentes, 795 F.3d 410, 417 (3d Cir. 2015) (citing Maryland v. Garrison, 480 U.S. 79, 85,

(1987)). This is a “highly individualized and fact specific” inquiry, in which we examine

the “totality of the circumstances,” including “(1) the severity of the crime at issue, (2)

whether the suspect poses an imminent threat to the safety of the police or others in the

vicinity, and (3) whether the suspect attempts to resist arrest or flee the scene.” Id. (citing

Graham v. Connor, 490 U.S. 386, 396 (1989)).



                                               6
       The force used by the officers in effectuating Brown’s arrest—specifically,

pinning Brown to the ground and prying his arms behind his body—was objectively

reasonable. Certainly, one might question whether fewer officers or whether a less

aggressive approach could have achieved the same result, but “[n]ot every push or shove,

even if it may later seem unnecessary in the peace of a judge’s chambers, violates the

Fourth Amendment.” Graham, 490 U.S. at 396 (citation omitted). As the Supreme Court

has recognized, “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.” Id. at 397. Here, the officers were forced to

make a split-second judgment about the amount of force needed to arrest Brown, who

was physically resisting arrest by crossing his arms and gripping his protective vest so

that the officers could not handcuff him. Based upon the video evidence, no reasonable

fact-finder could find that the force used to overcome this resistance was excessive.

                                   B. False-Arrest Claims

       We agree with the District Court that Brown’s federal false-arrest claim fails. We

will reverse and remand on the state false-arrest claim, however.

       The elements of a false-arrest claim are (a) that an arrest occurred; and (b) that the

arrest was made without probable cause. See Groman v. Twp. of Manalapan, 47 F.3d

628, 634 (3d Cir. 1995). The District Court ruled that the false-arrest claims fail because

the police had probable cause to arrest Brown for resisting arrest. See App. at 18. (“[I]t is

irrelevant to this Court’s analysis as to whether probable cause existed for the obstruction

charge because there is probable cause for the arrest charge.”). But the District Court

                                               7
incorrectly justified the arrest by citing the resistance to that arrest. Cf. Groman, 47 F.3d

at 635 (“[T]he resisting arrest charge could not have provided probable cause for the

arrest ab initio.”). We also cannot say that there is clearly probable cause that Brown

obstructed the administration of law by failing to provide his license and registration, as

that interaction between the officers and Brown is not depicted in the video footage.

       Nonetheless, Brown’s federal false-arrest claim under § 1983 fails because the

officers certainly had probable cause to believe Brown had violated New Jersey’s motor

vehicle laws. Under Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001), “[i]f an

officer has probable cause to believe that an individual has committed even a very minor

criminal offense in his presence, he may, without violating the Fourth Amendment, arrest

the offender.” Here, the officers witnessed, and the video shows, Brown operating his

motorcycle on the sidewalk (Brown ultimately pled guilty to unsafe operation of a motor

vehicle). The probable cause that Brown committed this offense defeats Brown’s federal

false-arrest claims even though the police actually arrested Brown for obstructing the

administration of law (for allegedly not producing his license and registration), as the

“subjective reason for making the arrest need not be the criminal offense as to which the

known facts provide probable cause.” Devenpeck v. Alford, 543 U.S. 146, 153 (2004).

       However, whether the police were authorized to arrest Brown under New Jersey

law for his unsafe operation of his motorcycle is an open question. The New Jersey

Supreme Court in State v. Pierce, 642 A.2d 947, 959 (N.J. 1994) announced that “the

statutory authorization to arrest for motor-vehicle violations” is not “unlimited.” The

New Jersey Supreme Court has not, however, provided a bright-line test for determining

                                              8
when a police officer can arrest an individual for violating the motor-vehicle laws.

Instead, the New Jersey Supreme Court has stated that “[t]he exercise of the statutory

power to make warrantless arrests for traffic offenses cannot arbitrarily and unreasonably

infringe on ‘the fundamental constitutional rights guaranteed to all citizens.’” Id. (quoting

Gundaker Cent. Motors, Inc. v. Gassert, 127 A.2d 566, 571 (N.J. 1956)).3

       Thus, given the uncertainties as to the facts and, if a jury were to not find that the

officers had probable cause as to the obstruction charge, as to the applicable law, which

were not examined by the District Court, we will vacate the award of summary judgment

on the state law claim of false arrest and remand to the District Court for further

proceedings.4

                                   C. Remaining Claims

       We will also affirm the ruling of summary judgment against Brown’s Monell

liability and infliction of emotional distress claims for the same reasons as articulated by

the District Court. Cf. App. at 22 (“Nowhere within the record does Plaintiff identify a

specific custom, practice, or policy implemented by Defendants which caused a

constitutional violation to Plaintiff.”); App. at 26-27 (“Defendants did not use excessive

3
  The New Jersey Supreme Court has also pointed to a set of guidelines that “advocate
issuance of a summons to perpetrators of minor offenses unless arrest is necessary to
protect public safety or to assure that the offender will respond to a summons.” Pierce,
642 A.2d at 959. In practice, the New Jersey Supreme Court has concluded that driving
with a suspended license warrants arrest, see id., as does driving without a license and
then providing false identity information, but “driving without a license, without more,
would not constitute sufficient grounds for a custodial arrest,” State v. Lark, 748 A.2d
1103, 1104 (N.J. 2000).
4
  On remand, the District Court should consider whether to exercise supplemental
jurisdiction over this state law claim in the absence of any federal claims and in the
absence of definitive state law on the issue.
                                              9
force when effectuating the arrest of Plaintiff. As a result, Defendants cannot be held

liable for intentional nor negligent infliction of emotional distress because Defendants

neither acted in bad faith when enforcing the law nor breached a duty owed to Plaintiff

when effectuating his arrest.”).

                                      V. Conclusion

       For the foregoing reasons, the ruling of the District Court is affirmed as to all

claims except for the state-law false-arrest claim, for which we will vacate the ruling of

the District Court and remand for further proceedings.




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