                                NOT FOR PUBLICATION WITHOUT THE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-1940-17T1

TIMOTHY MCGAURN,
ANTHONY N. FLORIO and
MELANIE DENISE SHAW,

          Plaintiffs-Respondents/
          Cross-Appellants,

v.

ATLANTIC CITY POLICE
OFFICER ANDRE CORBIN,
ATLANTIC CITY POLICE
OFFICER MARK BENJAMIN,
and ATLANTIC CITY POLICE
OFFICER FRANCO SYDNOR,

          Defendants-Appellants/
          Cross-Respondents,

and

ATLANTIC CITY POLICE
OFFICER MICHAEL BRAXTON,
JR., and CITY OF ATLANTIC
CITY,

     Defendants.
_____________________________
            Submitted October 28, 2019 – Decided November 21, 2019

            Before Judges Fasciale, Moynihan and Mitterhoff.

            On appeal from the Superior Court of New Jersey, Law
            Division, Atlantic County, Docket No. L-3967-14.

            Barker, Gelfand, James & Sarvas, attorneys for
            appellant/cross-respondent Andre Corbin (Todd Jason
            Gelfand, on the brief).

            Jasinski, PC, attorneys for appellants/cross-
            respondents Mark Benjamin and Franco Sydnor (John
            C. Hegarty and Rebecca D. Winkelstein, on the brief).

            Alan M. Lands, attorney for respondents/cross-
            appellants Timothy McGaurn and Anthony Florio.

            Cooper Levenson PA, attorneys for respondent/cross-
            appellant Melanie Denise Shaw (Bard L. Shober, of
            counsel and on the brief; Jennifer Broeck Barr, on the
            briefs).

PER CURIAM

      Timothy McGaurn, Anthony N. Florio, and Melanie Denise Shaw

(plaintiffs) filed this lawsuit against three police officers (Andre Corbin, Mark

Benjamin, and Franco Sydnor) (collectively defendants) alleging they

unlawfully entered their home, searched it, seized a rifle, and maliciously

charged them with criminal trespass and possession of a weapon for an unlawful

purpose. A jury found in plaintiffs' favor only on their malicious prosecution



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                                       2
claim. The trial judge then entered judgment, which awarded counsel fees to

plaintiffs.

      Defendants appeal from the final judgment and challenge orders that

collectively denied their motions for summary judgment, directed verdicts,

judgment notwithstanding the verdict (JNOV), and reconsideration. Defendants

primarily contend they were entitled to qualified immunity. Plaintiffs cross-

appeal from the entry of fees, arguing that the fee enhancement was insufficient.

      We conclude that defendants are entitled to summary judgment as a matter

of law based on qualified immunity. We therefore reverse the final judgment

under review.    Consequently, our reversal of the final judgment renders

plaintiffs' cross-appeal moot.

                                       I.

      Defendants responded to reports that a man inside an abandoned home

was threatening juveniles with a gun. Believing that the house was abandoned,

defendants entered the house without a warrant. While inside, they found a rifle

and plaintiffs, who stated they lived in a homeless shelter. Defendants charged

them with a weapons offense and criminal trespass. Defendants later learned

that the rifle was inoperable, and the prosecutor dismissed the charges.




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                                       3
      On appeal, defendants contend that their actions were objectively

reasonable given the circumstances presented to them, and that no reasonable

officer in their situation would have believed that they were violating plaintiffs'

rights. They argue that they reasonably believed the house was abandoned, that

they had probable cause to bring the charges, and that they were therefore

entitled to qualified immunity.

                                        II.

      Our standard of review is settled. Summary judgment may be granted

when, considering the evidence 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. R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of

Am., 142 N.J. 520, 540 (1995). When reviewing an order granting summary

judgment, we apply the same standards that the trial judge applied when ruling

on the motion. Oyola v. Xing Lan Liu, 431 N.J. Super. 493, 497 (App. Div.

2013).

      The law on qualified immunity is established as well. Whether an officer

is entitled to qualified immunity is a question of law for the court to decide .

Morillo v. Torres, 222 N.J. 104, 119 (2015). As the United States Supreme

Court explained:


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                                        4
              Qualified immunity is an entitlement not to stand trial
              or face the other burdens of litigation. The privilege is
              an immunity from suit rather than a mere defense to
              liability; and like an absolute immunity, [qualified
              immunity] is effectively lost if a case is erroneously
              permitted to go to trial.

              [Saucier v. Katz, 533 U.S. 194, 200-01 (2001)
              (quotations and citations omitted).]

Thus, the court should decide a request for qualified immunity at the earliest

possible time "so that the costs and expenses of trial are avoided where the

defense is dispositive."      Id. at 200; accord Morillo, 222 N.J. at 119.

Consequently, defendants moved for summary judgment early on in the

litigation.

       "The doctrine of qualified immunity shields law enforcement officers

from personal liability for civil rights violations when the officers are acting

under color of law in the performance of official duties." Morillo, 222 N.J. at

107.    It protects officers who performed their duties in an "objectively

reasonable" manner, regardless of whether they made a mistake of fact. Id. at

108; accord Saucier, 533 U.S. at 206 (explaining that "[o]fficers can have

reasonable, but mistaken, beliefs as to the facts establishing the existence of

probable cause or exigent circumstances, for example, and in those situations

courts will not hold that they have violated the Constitution"). The doctrine


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                                         5
does not protect "officers who are plainly incompetent in the performance of

their duties or who knowingly violate the law." Ibid.

      In deciding whether an officer is entitled to qualified immunity, New

Jersey courts apply the two-prong test set forth in Saucier, 533 U.S. at 199;

Morillo, 222 N.J. at 114-115. A court must determine: (1) whether the officer's

actions violated a constitutional or statutory right that was clearly established at

the time of the incident; and (2) whether reasonable officers in the same situation

would have believed that the plaintiff's conduct was unlawful and that the

officer's actions in response to the plaintiff's conduct was reasonable. Morillo,

222 N.J. at 114; Saucier, 533 U.S. at 199.

      With respect to the first prong, "the clearly established law must be

'particularized' to the facts of the case." White v. Pauly, 580 U.S. ___, ___, 137

S. Ct. 548, 552 (2017) (quoting Anderson v. Creighton, 483 U.S. 635, 640

(1987)). "In other words, 'existing precedent must have placed the statutory or

constitutional question' confronted by the official 'beyond debate.'" Morillo,

222 N.J. at 118 (citations omitted). If the right was not clearly established at

the time, the inquiry ends there, and the officer is entitled to qualified immunity.

Saucier, 533 U.S. at 199.




                                                                            A-1940-17T1
                                         6
      As to the second prong, the court assesses the officer's actions under an

objectively reasonable test, considering all relevant facts and circumstances

from an "on-scene perspective." Id. at 205. The court should not apply "'20/20

vision of hindsight,'" but rather, should give "deference to the judgment of

reasonable officers on the scene." Ibid. (quoting Graham v. Connor, 490 U.S.

386, 396 (1989)). "[O]nly the facts that were [known] to the defendant officers"

are relevant to the inquiry. White, 580 U.S. at ___, 137 S. Ct. at 550. The

officer bears the burden of proving that his or her actions were reasonable by a

preponderance of the evidence. Morillo, 222 N.J. at 119.

                                      III.

      Officer Corbin was the first to arrive on the scene after a pedestrian,

Marcus Moses, notified him that someone was inside the house and threatening

juveniles with a gun. Moses made a similar report to a police dispatch unit, and

also stated that the house was abandoned, which prompted Officers Benjamin

and Sydnor to respond to the scene. Officer Sydnor testified that he believed

the house was abandoned "[f]or a long time[,]" and his belief was consistent

with the house's appearance. Officer Corbin found the juveniles at the back of

the house, and they corroborated Moses's report. Thus, defendants had an




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                                       7
objectively reasonably belief that the home was abandoned and the juveniles

were threatened with a gun based on the facts known to them when they arrived.

      While the warrantless entry and search of a home is presumptively

unconstitutional under the Fourth Amendment of the United States Constitution,

made applicable to the states by the Fourteenth Amendment, and Article I,

Paragraph 7 of the New Jersey Constitution, a defendant has no right to

challenge the search or seizure if the State can show that property was

abandoned. State v. Brown, 216 N.J. 508, 527 (2014) (citing State v. Johnson,

193 N.J. 528, 548 (2008)). Because defendants had an objectively reasonable

belief that the house was abandoned, it was unnecessary for them to get a

warrant. Thus, defendants did not violate plaintiffs' constitutional rights when

they entered and searched the abandoned house without a warrant.

      After defendants entered the house, they had an objectively reasonable

belief that plaintiffs had no right to be there, as the house appeared abandoned

and plaintiffs gave a homeless shelter as their home address. These facts

established probable cause to arrest and charge plaintiffs with criminal trespass.

The probable cause standard is:

            [A] well-grounded suspicion that a crime has been or is
            being committed. Probable cause exists where the facts
            and circumstances within . . . [the officers'] knowledge
            and of which they had reasonably trustworthy

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                                        8
            information [are] sufficient in themselves to warrant a
            [person] of reasonable caution in the belief that an
            offense has been or is being committed. The substance
            of all the definitions of probable cause is a reasonable
            ground for belief of guilt.

            [State v. O'Neal, 190 N.J. 601, 612 (2007) (alterations
            in original) (citations and internal quotation marks
            omitted).]

A person commits criminal trespass if he or she "enters or surreptitiously

remains in any . . . structure" "knowing that he is not licensed or privileged to

do so." N.J.S.A. 2C:18-3(a).

      The fact that plaintiffs had defenses to the criminal trespass charge (i.e.,

Shaw owned the house, and Florio and McGaurn were her guests) was irrelevant

to the issue of qualified immunity because the standard for immunity considers

only the facts known to the officers at the time. White, 580 U.S. at ___, 137 S.

Ct. at 550. The facts led defendants to reasonably conclude that plaintiffs were

squatters in an abandoned home, and thus committing a criminal trespass.

Defendants were therefore entitled to immunity on the count that alleged

wrongful arrest for criminal trespass.

      Defendants also had probable cause to charge plaintiffs with possession

of a firearm for an unlawful purpose. That crime is defined as "possession [of]

any firearm with a purpose to use it unlawfully against the person or property of


                                                                          A-1940-17T1
                                         9
another[.]" N.J.S.A. 2C:39-4(a)(1). When the police arrived at the house, they

were aware of reports that someone inside threatened the juveniles with a gun.

After they took Florio into custody, he admitted that he used the rifle to scare

the juveniles, and he showed defendants where the gun was. The fact that the

gun was an inoperable antique was irrelevant for probable cause purposes. State

v. Orlando, 269 N.J. Super. 116, 128-29 (App. Div. 1993) (explaining that "there

is no requirement that the weapon be operable" for purposes of establishing that

the weapon is a "firearm" under Title 2C). These facts formed a defense to the

charges, which plaintiffs were free to raise. Nonetheless, plaintiffs' defenses did

not negate defendants' claims of qualified immunity. Thus, defendants were

entitled to immunity on the count that alleged wrongful arrest for the weapons

offense.

      Defendants argue that because they had probable cause to charge plaintiffs

with the underlying crimes, they were also entitled to qualified immunity on the

malicious prosecution claim. Relying on Wildoner v. Borough of Ramsey, 162

N.J. 375 (2000), defendants urged the judge to reconsider the denial of summary

judgment on this count based on qualified immunity.           The judge rejected

defendants' reliance on Wildoner.




                                                                           A-1940-17T1
                                       10
      In Wildoner, a neighbor in an apartment complex reported to police that

the seventy-year-old defendant was "using loud and abusive language" against

his wife and "was threatening to throw knives at [her]." Wildoner, 162 N.J. at

378. When police responded, they observed red marks on the wife's arm and a

knife on the kitchen floor. Ibid. According to the police, the wife told them that

the defendant had been drinking and that there was a pattern of abuse throughout

their forty-eight year marriage. Id. at 379.

      The police escorted the defendant out of the apartment in a wheelchair and

charged him with simple assault. Id. at 378. After his wife refused to sign a

domestic violence complaint, police applied for a temporary restraining order

(TRO) on her behalf, which the municipal judge granted. Ibid. The following

day the Law Division dismissed the TRO, and the State dismissed the assault

charge. Ibid.

      The defendant filed a civil rights suit alleging false arrest and

imprisonment, mistreatment, and malicious prosecution. Id. at 379. The trial

judge granted the officers qualified immunity, finding that their response to the

situation was objectively reasonable, even though the wife did not pursue any

action against the defendant and later denied that he threatened or attacked her.

Id. at 384. The Court affirmed, explaining that the facts presented to the officers


                                                                           A-1940-17T1
                                       11
established probable cause to arrest the defendant, and "probable cause [was] an

absolute defense to [the] false arrest, false imprisonment, and malicious

prosecution claims[.]" Id. at 389. Thus, courts must consider the facts available

to the officer at the time of arrest, not facts that later surface and result in the

dismissal of charges.

      In denying reconsideration, the judge relied on Helmy v. City of Jersey

City, 178 N.J. 183, 191 (2003), which was a false arrest and malicious

prosecution case that did not address qualified immunity. In that case, the

defendant's and the officers' versions of the facts differed significantly, and the

jury had to decide whether the defendant's or the officers' version of events was

true. Ibid. If the jury found the defendant's version credible, then the arrest and

indictment lacked probable cause. Ibid. In discussing the indictment's effect on

the defendant's claims, the Court said: "[a]lthough a grand jury indictment is

prima facie evidence of probable cause to prosecute, when the facts underlying

it are disputed, the issue must be resolved by the jury." Ibid.

      In this case, the judge concluded that the indictment did not conclusively

establish probable cause because the jury had to resolve whether defendants

should have known that Shaw owned the house and that the gun was an

inoperable antique. But only the facts known to the officers at the time of entry


                                                                            A-1940-17T1
                                        12
and arrest were relevant to the qualified immunity issue. White, 580 U.S. at

___, 137 S. Ct. at 550. Those facts supported the qualified immunity claim and

were not in dispute. As the Court in Morillo explained, the facts that a jury may

resolve must be limited to "'the who-what-when-where-why type of' fact issues"

upon which a qualified immunity claim is premised. Morillo, 222 N.J. at 119

(quoting Schneider v. Simonini, 163 N.J. 336, 355-56 (2000)). In this case,

those types of facts were undisputed and thus, there was no reason to submit

such questions to the jury. The reasonableness of the officers' actions was at the

heart of the qualified immunity inquiry and should have been answered by the

judge as a question of law. It was not a factual question for the jury.

      As to the principle of reasonableness, the officers need not believe a

suspect's innocent explanation when deciding if the facts establish probable

cause to arrest. See Illinois v. Gates, 462 U.S. 213, 243 n.13 (1983) (stating

"[i]n making a determination of probable cause the relevant inquiry is not

whether particular conduct is 'innocent' or 'guilty,' but the degree of suspicion

that attaches to particular types of noncriminal acts"); United States v. Funches,

327 F.3d 582, 587 (7th Cir. 2003) (indicating "[o]f course, the mere existence

of innocent explanations does not necessarily negate probable cause"); State v.

Arthur, 149 N.J. 1, 11 (1997) (stating that "[s]imply because a defendant's


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                                       13
actions might have some speculative, innocent explanation does not mean that

those actions cannot support articulable suspicions, if a reasonable person would

find the actions are consistent with guilt"). As the prosecutor explained when

she moved to dismiss the charges, the State could not meet its burden of proof

(beyond a reasonable doubt) based on the evidence. But that did not negate the

existence of probable cause to arrest and charge plaintiffs nor defendants'

entitlement to qualified immunity.

      Reversed.




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