                                                     SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized).
                    Eric Morillo v. Monmouth County Sheriff’s Officers (A-88-13) (073978)
Argued March 16, 2015 -- Decided July 13, 2015
LaVECCHIA, J., writing for a unanimous Court.
        In this appeal, the Court considers the circumstances under which qualified immunity insulates law
enforcement officers from claims of civil rights violations arising under 42 U.S.C.A. § 1983 (Section 1983) and the
New Jersey Civil Rights Act (CRA), N.J.S.A. 10:6-1 to -2.
          In December 2010, Monmouth County Sheriff’s Officers Alexander Torres and Thomas Ruocco went to
execute a child-support warrant on plaintiff Eric Morillo. When they arrived at the address listed on the warrant,
which they later learned was plaintiff’s mother’s home, the officers discovered plaintiff sitting in the passenger seat
of an idling car parked near the driveway and smoking what appeared to be marijuana. Ruocco opened the
passenger-side door and smelled burnt marijuana coming from the vehicle. When Ruocco asked plaintiff if he had
any more drugs in his possession, plaintiff said that he had a loaded weapon tucked in his waistband. Ruocco seized
the weapon, removed plaintiff from the car, patted him down, and arrested him on the child-support warrant.
          While riding to police headquarters, plaintiff told the officers that the gun was registered to him. He also
said that he was involved in gang activity and was carrying the gun because he feared retaliation. Neither Ruocco
nor Torres ever asked plaintiff whether the paperwork was in the house, but when they arrived at headquarters, they
told their supervisor, Sergeant Steven Cooper, that plaintiff claimed to have such paperwork. Cooper called the
prosecutor’s office to seek advice as to whether plaintiff should be charged with a weapons offense. The assistant
prosecutor told Cooper that it would be appropriate to charge him with second-degree unlawful possession of a
handgun under N.J.S.A. § 2C:39-5(b)(1). In January 2011, after his bail was posted on the weapons charge, he was
released from the county jail. On March 30, 2011, after receiving confirmation from the New Jersey State Police
that plaintiff’s handgun was properly registered, the weapons charge was dropped.
          Plaintiff filed a complaint against Ruocco, Torres, and Cooper (collectively “defendants”) alleging
violations of 42 U.S.C.A. § 1983 (Section 1983) and the Civil Rights Act (CRA), N.J.S.A. 10:6-1 to -2. He alleged
that they violated his constitutional rights by wrongfully charging him with unlawful possession of a weapon, which
led to his incarceration until bail was posted. Plaintiff filed a motion for summary judgment as to liability.
Defendants filed a cross-motion for summary judgment, asserting qualified immunity and seeking dismissal of the
action. The trial court denied defendants’ motion for summary judgment, deeming it impermissible for plaintiff to
be charged with unlawful possession of a weapon because the gun he carried was lawfully registered to him and he
was at his present residence when he was found carrying the weapon. After several motions to stay the proceedings
and motions for leave to appeal, the matter came before the Appellate Division, which affirmed the trial court’s
judgment. Both plaintiff and defendants sought leave to appeal to this Court. The Court denied plaintiff’s motion
for leave to appeal, but granted defendants’ motion for leave to appeal the Appellate Division’s judgment that
affirmed the denial of summary judgment based on qualified immunity. 217 N.J. 585 (2014).
HELD: The civil rights causes of action against the officers should have been dismissed based on the affirmative
defense of qualified immunity.
1. For purposes of analyzing the qualified-immunity defense advanced here, the Court does not differentiate
between plaintiff’s claims under 42 U.S.C.A. § 1983 and the CRA, New Jersey’s analogue to Section 1983.
Qualified immunity shields officials performing discretionary functions from liability for civil damages where their
conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would
have known. This defense allows officials some breathing room to make reasonable, even if mistaken, judgments
by protecting all but the plainly incompetent or those who knowingly violate the law. In New Jersey, the qualified-
immunity doctrine is applied 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. (pp. 14-16)
2. Whether an officer is entitled to qualified immunity is determined by a two-prong test. The first inquiry asks
whether the facts alleged, taken in the light most favorable to the party 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 by determining whether a reasonable officer in the same situation would understand that his actions were
unlawful. Law enforcement officers are not entitled to immunity if it is obvious that no reasonably competent
officer would have concluded that a warrant should issue. Thus, when a plaintiff asserts that he or she was
unlawfully arrested, an 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.
(pp. 16-18)
3. The issue of qualified immunity is one that should be decided before trial by the court. If facts that are material
to deciding that issue are disputed, the jury should decide those facts on special interrogatories. When no material
historical or foundational facts are in dispute, or when they are and the jury decides those disputed facts pursuant to
the above procedure, 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. When probable cause is lacking and the
trial judge is determining whether a reasonable law enforcement officer would have believed that probable cause to
arrest or charge did exist, it is for the judge to decide whether the defendant has proven by a preponderance of the
evidence that his or her actions were reasonable under the particular facts. (pp. 18-19)
4. Here, defendants’ assertion of qualified immunity calls into question whether it was objectively reasonable for the
defendant officers to have charged plaintiff with unlawful possession of a handgun under N.J.S.A. 2C:39-5(b)(1).
Plaintiff claims that the statutory exemption from prosecution for that offense makes it clear that the officers had no
reasonable basis to charge him with unlawful possession when he was carrying his lawfully registered gun while
seated in a running car on property surrounding his mother’s residence where he was living at the time. However,
there is an element of ambiguity inherent in the exemption’s sentence structure. It is not entirely clear whether the
exemption was intended to encompass, for example, common areas within a multi-unit dwelling. Similarly, it is
unclear whether it is intended to encompass carrying a weapon in the open areas surrounding a private residence
where one may be staying but which is not owned or possessed by the individual. Plaintiff was staying/living at his
mother’s house at the time he was found outside the home carrying a loaded handgun concealed in the waistband of
his pants. Neither the home nor the property was owned or possessed by plaintiff. The language of the statute is
ambiguous as to its intended reach in these circumstances and case law does not help resolve the question. The
majority of New Jersey case law that has touched on the circumstances in which the statutory exemption is
applicable supports the view that the statute permits gun owners to carry firearms, without a carry permit, inside
their residences. On the other hand, no case law suggests that the statute generally permits a gun owner to carry a
firearm outside his or her residence on premises he or she neither owns nor possesses. (pp. 19-24)
5. The defendant officers’ claim of qualified immunity depends on a determination of whether the circumstances
support a conclusion that no reasonably competent officer would have concluded that a warrant should issue. First,
the fact that most New Jersey case law applied the home-carry exemption to cases where the gun is carried inside
the private portions of one’s residence, and not to outside areas, indicates that the officers were not applying clearly
established law. These officers confronted a question of uncertain application of the exemption to the unlawful
possession statute, arguably taking it beyond the clearly established framework of our law. Second, these officers
acted with restraint and prudence. They tried to act cautiously and could not dismiss the possibility that a
chargeable weapons offense should be added to plaintiff’s arrest on the child-support warrant. The officers on the
scene sought guidance from their supervisor, and the supervisor sought advice from the prosecutor’s office. The
Court views these events in their totality and is not persuaded by plaintiff’s effort to call into question the extent to
which the supervisory officer emphasized to the assistant prosecutor that plaintiff had, in fact, been at his residence
at the time that he was found outside with the loaded gun on his person. (pp. 24-26)
6. In sum, under the test for qualified immunity, the defendant officers confronted a question of uncertain
application of the exemption to the unlawful possession statute. Further, under the standard of competence required
for qualified immunity, it cannot fairly be said in this instance that no reasonably competent officer would have
believed probable cause existed to go forward with an unlawful possession charge against plaintiff under these
circumstances. Viewed in their totality, the officers’ involvement in the circumstances that led to the filing of the
unlawful possession charge against plaintiff does not rise to the level required to meet the standard for stripping
these officers of the protection of qualified immunity. (pp. 27-29)
         The judgment of the Appellate Division is REVERSED. The matter is REMANDED for dismissal of the
Section 1983 and CRA claims against the defendant officers.
     CHIEF JUSTICE RABNER; JUSTICES ALBIN, PATTERSON, FERNANDEZ-VINA, and
SOLOMON; and JUDGE CUFF (temporarily assigned) join in JUSTICE LaVECCHIA’s opinion.


                                                            2
                                      SUPREME COURT OF NEW JERSEY
                                        A-88 September Term 2013
                                                 073978

ERIC MORILLO,

    Plaintiff-Respondent,

         v.

MONMOUTH COUNTY SHERIFF’S
OFFICER ALEXANDER TORRES,
MONMOUTH COUNTY SHERIFF’S
OFFICER THOMAS RUOCCO,
MONMOUTH COUNTY SHERIFF’S
OFFICE, and MONMOUTH COUNTY
SERGEANT STEVEN COOPER,

    Defendants-Appellants,

         and

OLD BRIDGE TOWNSHIP ASSISTANT
MUNICIPAL COURT ADMINISTRATOR
SUSAN BRUCHEZ, and OLD BRIDGE
TOWNSHIP MUNICIPAL COURT,

    Defendants.

         Argued March 16, 2015 – Decided July 13, 2015

         On appeal from the Superior Court, Appellate
         Division.

         John C. Connell argued the cause for
         appellants (Archer & Greiner, attorneys; Mr.
         Connell, Christine G. Hanlon, and Benjamin
         D. Morgan, on the briefs).

         Joel I. Rachmiel argued the cause for
         respondent.

    JUSTICE LaVECCHIA delivered the opinion of the Court.

    The doctrine of qualified immunity shields law enforcement

officers from personal liability for civil rights violations
                                1
when the officers are acting under color of law in the

performance of official duties.       This protection extends to

suits brought under 42 U.S.C.A. § 1983 and under New Jersey’s

analogue, the Civil Rights Act, N.J.S.A. 10:6-1 to -2.       As both

federal and state case law on this immunity doctrine recognize,

members of law enforcement must be permitted to perform their

duties without being encumbered by the specter of being sued

personally for damages, unless their performance is not

objectively reasonable.   Thus, the defense’s protection is

denied only to officers who are plainly incompetent in the

performance of their duties or who knowingly violate the law.

    In this appeal, we must address whether, on the basis of

qualified immunity, three police officers were entitled to

dismissal of an action brought by plaintiff.       The action sought

to impose personal liability on the officers for alleged civil

rights violations arising from a charge brought against

plaintiff for unlawful possession of a weapon under N.J.S.A.

2C:39-5(b)(1).   The charge was later administratively dismissed.

    For the reasons expressed herein, we hold that the civil

rights causes of action against the officers should have been

dismissed based on the affirmative defense of qualified immunity

that the officers asserted.   It cannot be said as a matter of

law that no reasonably competent officer would have believed

that probable cause existed to charge plaintiff with unlawful

                                  2
possession of a weapon.   Under the facts and circumstances

involved in charging plaintiff with a violation of N.J.S.A.

2C:39-5(b)(1), there was neither a knowing violation of law nor

a transgression of the competence standard demanded of law

enforcement officers for qualified immunity to provide a shield

from personal liability for alleged civil rights violations

arising from the performance of their duties.

     The judgment of the Appellate Division is reversed.

                                  I.

                                  A.

     Plaintiff was charged with unlawful possession of a handgun

under N.J.S.A. 2C:39-5(b)(1), which provides:   “Any person who

knowingly has in his possession any handgun, including any

antique handgun, without first having obtained a permit to carry

the same as provided in [N.J.S.A.] 2C:58-4,[1] is guilty of a

crime of the second degree.”   The next section of that chapter

provides an exemption from prosecution for unlawful possession

of a handgun, which states that

          [n]othing in subsections b., c. and d.        of
          [N.J.S.A.] 2C:39-5 shall be construed         to
          prevent a person keeping or carrying about   his
          place of business, residence, premises        or

1 N.J.S.A. 2C:58-4 outlines the procedures and requirements
involved in obtaining a permit to carry a handgun. A permit to
carry a handgun is different from the permits required to sell
or purchase firearms in New Jersey. See N.J.S.A. 2C:58-2
(describing license required for retail sale of firearms);
N.J.S.A. 2C:58-3 (describing required permit to purchase handgun
and identification card required to purchase firearm).
                                3
           other land owned or possessed by him, any
           firearm, or from carrying the same, in the
           manner specified in subsection g. of this
           section, from any place of purchase to his
           residence or place of business, between his
           dwelling and his place of business, between
           one place of business or residence and another
           when moving, or between his dwelling or place
           of business and place where such firearms are
           repaired, for the purpose of repair. For the
           purposes of this section, a place of business
           shall be deemed to be a fixed location.

           [N.J.S.A. 2C:39-6(e) (emphasis added).]

     In this matter, we review the combined involvement of

sheriff’s officers and their supervisory officer, after

soliciting advice from a representative of the county

prosecutor’s office, in the decision to charge plaintiff with a

violation of N.J.S.A. 2C:39-5(b)(1).   The relevant facts as

contained in the summary judgment record are summarized as

follows.

     At about 8:30 p.m. on December 15, 2010, Monmouth County

Sheriff’s Officers Alexander Torres and Thomas Ruocco arrived at

a Matawan address to execute a child-support warrant on

plaintiff Eric Morillo.   The address was the one listed on the

warrant.   While Torres went to knock on the front door, Ruocco

went around the side of the home and discovered plaintiff

sitting in an idling car parked toward the rear of the side

driveway of the residential home at the listed address,2 which,


2 The home had a Matawan (Monmouth County) mailing address but
was actually located in Old Bridge in Middlesex County. By
                                4
it turned out, was his mother’s.    Although the car’s engine was

running, its headlights were off.   Other cars were also parked

in the side area of the property.

    As Ruocco approached the car, he observed plaintiff in the

passenger seat smoking what appeared to Ruocco to be a marijuana

“roach,” described as being not a “full marijuana cigarette.”

Ruocco opened the passenger-side door.    He stated that the smell

of burnt marijuana emanated from the vehicle’s interior.

    When Ruocco asked plaintiff if he had any other drugs on

him, plaintiff told Ruocco that he was carrying a loaded weapon

tucked in the right side of the waistband of his pants.     Ruocco

ordered plaintiff and the person seated in the driver’s seat to

raise their hands to the car’s ceiling.    Ruocco seized the

weapon and called Torres on his hand-held radio to come and

assist.   Plaintiff and his companion were removed from the

vehicle and patted down.   Plaintiff was arrested on the child-

support warrant.

    While still at the scene, Ruocco phoned his supervisor,

Sergeant Steven Cooper, to alert him to the circumstances

involved in executing the warrant and the seizure of the weapon.

He advised Cooper that while he and Torres were executing the

child-support warrant, they discovered plaintiff, carrying a



virtue of that distinction, the matter later became subject to
Middlesex County’s jurisdiction.
                                 5
loaded handgun concealed in his waistband, smoking marijuana

while seated inside a car, with its motor running, parked at the

home.

     Although Ruocco did not ask plaintiff at the scene whether

he had a permit to carry the gun, while en route to police

headquarters, plaintiff informed the officers that the handgun

was registered to him and that he had “paperwork” for it.

Plaintiff told the officers that he was involved in gang

activity and was carrying the handgun because he feared

retaliation.   Plaintiff also told Ruocco that the home was his

mother’s and that he had lived in different places.   That said,

according to Ruocco, he assumed that plaintiff was living at the

home at the time the warrant was executed because the officers

found plaintiff there.

     Under questioning, Ruocco and Torres admitted that they

never asked plaintiff at the scene whether the firearm paperwork

was in the house, but when they arrived at headquarters they

told Sergeant Cooper that plaintiff claimed to have such

paperwork.   They also indicated that they were operating on the

belief that the address at which plaintiff was found was the

location where he was presently residing, essentially because it

was the address listed for him for child-support purposes and

the location where plaintiff was found when executing the

warrant.   The officers’ confusion over whether to charge

                                 6
plaintiff with unlawful possession arose as a result of the

circumstances in which plaintiff was found with the loaded gun

concealed in the waistband of his pants.     As Cooper emphasized

in his response to questioning, plaintiff was not found inside

the house; he was located in the driveway portion of the

property, in an idling car with its lights off.     Cooper also

cited the information plaintiff provided to the officers about

being a gang member, that plaintiff said he feared retaliation,

and that he was smoking marijuana at the time he was carrying

the concealed weapon outside the house -- whether or not it was

his mother’s home and, at the time, his residence.

    Sergeant Cooper telephoned a representative of the

prosecutor’s office, seeking advice whether, under the

circumstances, plaintiff should be charged with a weapons

offense.     Cooper’s initial inquiry to one assistant prosecutor

resulted in his referral to another.     He spoke ultimately, by

telephone, with Assistant Prosecutor Sean Brennan, outside the

presence of Ruocco and Torres.

    Cooper informed Brennan that, during the execution of a

child-support warrant issued for plaintiff, plaintiff was found

in possession of a concealed, loaded handgun while seated inside

an idling vehicle located at the warrant’s address for

plaintiff.    Cooper relayed to Brennan the additional facts that

the officers had represented:     that plaintiff had revealed that

                                   7
he was a gang member fearing retaliation, and that plaintiff had

been smoking marijuana in the car in which he had been located.

Brennan advised Cooper that plaintiff could be charged with

second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-

5(b)(1), which provides:     “Any person who knowingly has in his

possession any handgun . . . without first having obtained a

permit to carry the same . . . is guilty of a crime of the

second degree.”     Plaintiff was so charged.   The initial

complaint charging plaintiff with that violation in Monmouth

County was typed by Cooper and signed by Ruocco.     That complaint

was dismissed on the discovery that the home where plaintiff was

found was actually located in Middlesex County.     Torres signed

the subsequently prepared complaint charging plaintiff in

Middlesex County.     Cooper, Ruocco, and Torres later prepared

reports detailing their respective involvement in arresting and

charging plaintiff.

    Plaintiff posted bail on the child-support warrant, but he

could not cover the bail set on the weapons charge.      On January

14, 2011, plaintiff’s family posted bail for him, and plaintiff

was released from the Middlesex County jail.

    On March 30, 2011, after receiving confirmation from the

New Jersey State Police that plaintiff’s handgun had been

purchased with the proper registration, the weapons charge was

dropped.   In the prosecutor’s report explaining the

                                   8
administrative dismissal of the charge, the prosecutor wrote

that plaintiff “was found on his own property with a handgun”

and that plaintiff was the lawful owner of the handgun.    Thus,

the prosecutor dropped the charge based on an application of a

statutory exemption to the unlawful-possession statute, which

provides, in pertinent part:    “Nothing in subsections b., c. and

d. of [N.J.S.A.] 2C:39-5 shall be construed to prevent a person

keeping or carrying about his place of business, residence,

premises or other land owned or possessed by him, any firearm .

. . .”   N.J.S.A. 2C:39-6(e).

                                 B.

     Plaintiff filed the instant complaint in the Law Division

against Ruocco, Torres, and Cooper (collectively defendants)

alleging violations of 42 U.S.C.A. § 1983 (Section 1983) and the

Civil Rights Act (CRA), N.J.S.A. 10:6-1 to -2.    Plaintiff

alleged, in pertinent part, that defendants violated his

constitutional rights by unlawfully arresting him and charging

him with unlawful possession of a weapon, which led to his

incarceration until bail was posted.3   Plaintiff filed a motion

for summary judgment as to liability.   Defendants filed a cross-

motion for summary judgment, asserting qualified immunity and

seeking dismissal of the action.


3 Plaintiff asserted additional claims against defendants and
other parties. None of those claims are before this Court.

                                  9
     The trial court denied defendants’ motion for summary

judgment.4   The court deemed it impermissible for plaintiff to be

charged with unlawful possession of a weapon, essentially

because the gun he carried was lawfully registered to him and he

was at his present residence when he was found carrying the

weapon.   According to the court, “the crime charged was legally

impossible” and, thus, probable cause could not exist.     Further,

the trial court found that defendants’ actions were not

objectively reasonable.   The court added that providing

defendants with qualified immunity “would basically be

tantamount to saying that there is per se qualified immunity[]

if you contact a . . . prosecutor.”

     After several motions to stay the proceedings and motions

for leave to appeal, the matter came before the Appellate

Division, which affirmed the trial court’s judgment.     Both

plaintiff and defendants sought leave to appeal to this Court.

     We granted defendants’ motion for leave to appeal the

Appellate Division’s judgment that affirmed the denial of

summary judgment based on qualified immunity.   217 N.J. 585

(2014).   We denied plaintiff’s motion for leave to appeal the



4 Plaintiff’s motion for summary judgment was denied. The
Appellate Division affirmed that determination, following a
remand by this Court to have the merits of both motions
addressed. We did not grant leave to appeal on the panel’s
affirmance of the denial of that motion, and accordingly do not
address that motion.
                                10
Appellate Division’s judgment that genuine issues of material

fact were present.

                                II.

                                 A.

    Defendants argue that the doctrine of qualified immunity

shields them from civil liability as a matter of law,

emphasizing the “unproductive societal costs” that result from

depriving law enforcement officers of that protection from

personal suits for damages.    Curley v. Klem, 499 F.3d 199, 206

(3d Cir. 2007).   Defendants rely on the two-stage test laid out

by the Supreme Court in Saucier v. Katz, 533 U.S. 194, 201-02,

121 S. Ct. 2151, 2156, 150 L. Ed. 2d 272, 281-82 (2001), in

which courts must determine:   (1) whether the police officers’

actions violated a constitutional right, viewed in the light

most favorable to the plaintiff; and (2) whether reasonable

police officers would find the conduct unlawful in the same

situation.

    Under the first prong of the Saucier test, defendants argue

that they did not violate any constitutional right.     Defendants

assert that plaintiff cannot show that he was arrested without

probable cause under the totality of the circumstances of

plaintiff’s arrest on the child-support warrant, purported gang

affiliation, marijuana use, and concealment of his weapon while

being outside the house.   Defendants add that police officers

                                 11
are not obligated to conduct legal analysis in the heat of the

moment, and that the prosecutor’s advice lent credence to the

officers having probable cause.    (Citing Sands v. McCormick, 502

F.3d 263, 269 (3d Cir. 2007)).

    Under the second prong of the Saucier test, defendants

argue that even if plaintiff’s constitutional rights were

violated, the officers acted in an objectively reasonable manner

and officers who act reasonably but mistakenly are entitled to

qualified immunity.   Even if they were mistaken about probable

cause, defendants assert that, under the totality of the

circumstances, they nevertheless acted in an objectively

reasonable manner in charging plaintiff with unlawful possession

of a weapon after taking reasonable and prudent steps, including

receiving a prosecutor’s advice.

                                  B.

    Plaintiff argues that the police officers fail both prongs

of the Saucier test for application of qualified immunity.

Under the first prong, plaintiff contends that his Second and

Fourth Amendment rights were plainly violated when he was

erroneously charged with unlawful possession of a weapon in

spite of the clear language of N.J.S.A. 2C:39-6(e).   Because of

the plain language of that statutory exemption, plaintiff argues

that nothing in the record could establish probable cause to

charge plaintiff with a violation of N.J.S.A. 2C:39-5(b)(1).

                                  12
    Under the second prong of Saucier, plaintiff maintains that

he was at his own home at the time of his arrest and, therefore,

N.J.S.A. 2C:39-6(e) and subsequent case law reasonably give rise

to the police officers’ actual or imputed knowledge of the

unlawfulness of the seizure of plaintiff’s handgun from him

while he was at his home.   Plaintiff claims reliance on the

Supreme Court’s decisions in District of Columbia v. Heller, 554

U.S. 570, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008), and

McDonald v. City of Chicago, 561 U.S. 742, 130 S. Ct. 3020, 177

L. Ed. 2d 894 (2010), which extended the Second Amendment’s

right to self-defense to the home.    Plaintiff also highlights

the maxim that everyone is presumed to know the law, including

the “reasonable” police officer.

    Plaintiff additionally contends that police officers cannot

escape civil liability by relying on prosecutorial advice, for

such reliance must be objectively reasonable, citing Kelly v.

Borough of Carlisle, 622 F.3d 248, 254-56 (3d Cir. 2010).

According to plaintiff, Cooper acted in an objectively

unreasonable manner because he failed to advise the prosecutor

that the arrest occurred at plaintiff’s home, despite

acknowledging awareness of the “home carry” exception.     Thus,

plaintiff asserts that defendants are precluded from using

prosecutorial reliance to escape their own incompetence.

                               III.

                                13
    Plaintiff asserts a claim under 42 U.S.C.A. § 1983, which

provides that:

         Every person who, under color of any statute,
         ordinance, regulation, custom, or usage, of
         any State . . . subjects, or causes to be
         subjected, any citizen of the United States .
         . . to the deprivation of any rights,
         privileges, or immunities secured by the
         Constitution and laws, shall be liable to the
         party injured in an action at law, suit in
         equity, or other proper proceeding for redress
         . . . .

He brings a corollary claim under the CRA, New Jersey’s analogue

to a Section 1983 action.   See N.J.S.A. 10:6-1 to -2; Gormley v.

Wood-El, 218 N.J. 72, 97-98 (2014).   For purposes of analyzing

the qualified-immunity defense advanced in this matter, the

examination for both is the same.   See Gormley, supra, 218 N.J.

at 113-15; Ramos v. Flowers, 429 N.J. Super. 13, 24 (App. Div.

2012) (“[T]he Legislature anticipated that New Jersey courts

would apply the well-established law concerning the affirmative

defense of qualified immunity in adjudicating damage claims

under the [CRA].”).   Accordingly, we do not differentiate

between those claims for purposes of our examination of the

asserted affirmative defense.

    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
                                14
known.”   Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct.

2727, 2738, 73 L. Ed. 2d 396, 410 (1982) (citation omitted).

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.   See City & Cnty. of S.F. v. Sheehan, __

U.S. __, __, 135 S. Ct. 1765, 1774, 191 L. Ed. 2d 856, 867

(2015) (“This exacting standard ‘gives government officials

breathing room to make reasonable but mistaken judgments’ by

‘protect[ing] all but the plainly incompetent or those who

knowingly violate the law.’” (alteration in original) (quoting

Ashcroft v. al-Kidd, __ U.S. __, __, 131 S. Ct. 2074, 2085, 179

L. Ed. 2d 1149, 1160 (2011))).   The doctrine is well-recognized

in federal law, see, e.g., id. at __, 135 S. Ct. at 1774, 191 L.

Ed. 2d at 866-67, as well as in the law of New Jersey, see,

e.g., Gormley, supra, 218 N.J. at 113.5




5 Indeed, the doctrine of qualified immunity and its accompanying
strong shield retain full vitality, as reinforced by recent
United States Supreme Court case law. See, e.g., Sheehan,
supra, __ U.S. at __, 135 S. Ct. at 1774, 191 L. Ed. 2d at 866-
67 (reiterating that qualified immunity protects public
officials from suit for violations of clearly established
statutory or constitutional rights unless action was plainly
incompetent or knowing violation of law); Plumhoff v. Rickard,
__ U.S. __, __, 134 S. Ct. 2012, 2023, 188 L. Ed. 2d 1056, 1069
(2014) (same); Stanton v. Sims, __ U.S. __, __, 134 S. Ct. 3, 4-
5, 187 L. Ed. 2d 341, 344 (2013) (same); al-Kidd, supra, __ U.S.
at __, __, 131 S. Ct. at 2080, 2083, 179 L. Ed. 2d at 1155, 1159
(same).
                                15
    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.   See Schneider v. Simonini, 163 N.J. 336,

353-54 (2000), cert. denied, 531 U.S. 1146, 121 S. Ct. 1083, 148

L. Ed. 2d 959 (2001); Connor v. Powell, 162 N.J. 397, 408-09,

cert. denied, 530 U.S. 1216, 120 S. Ct. 2220, 147 L. Ed. 2d 251

(2000); Wildoner v. Borough of Ramsey, 162 N.J. 375, 386 (2000);

Kirk v. City of Newark, 109 N.J. 173, 184 (1988).

    Whether a police officer is entitled to qualified immunity

is determined by application of a two-prong test.   See Wood v.

Moss, __ U.S. __, __, 134 S. Ct. 2056, 2066-67, 188 L. Ed. 2d

1039, 1051 (2014).   The first inquiry asks whether the facts

alleged, “[t]aken in the light most favorable to the party

asserting the injury,” show that the challenged conduct violated

a statutory or constitutional right.   See Saucier, supra, 533

U.S. at 201, 121 S. Ct. at 2156, 150 L. Ed. 2d at 281; Wood,

supra, __ U.S. at __, 134 S. Ct. at 2067, 188 L. Ed. 2d at 1051.

Second, the court must determine “whether the right was clearly

established.”   Saucier, supra, 533 U.S. at 201, 121 S. Ct. at

2156, 150 L. Ed. 2d at 281.   Courts reviewing qualified-immunity

claims are free to address the two prongs in any order.   See al-

                                16
Kidd, supra, __ U.S. at __, 131 S. Ct. at 2080, 179 L. Ed. 2d at

1155 (“[C]ourts have discretion to decide which of the two

prongs of qualified-immunity analysis to tackle first.” (citing

Pearson v. Callahan, 555 U.S. 223, 236, 129 S. Ct. 808, 818, 172

L. Ed. 2d 565, 576 (2009))).

    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.   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.’”    Plumhoff v. Rickard, __ U.S.

__, __, 134 S. Ct. 2012, 2023, 188 L. Ed. 2d 1056, 1069 (2014)

(quoting al-Kidd, supra, __ U.S. at __, 131 S. Ct. at 2083, 179

L. Ed. 2d at 1159).

    Our decisional law on qualified immunity follows federal

case law.   As stated in our prior decisions, the doctrine

“protects all officers ‘but the plainly incompetent or those who

knowingly violate the law.’”   Connor, supra, 162 N.J. at 409

(quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S. Ct. 1092,

1096, 89 L. Ed. 2d 271, 278 (1986)).   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.’”    Wildoner, supra, 162

                                17
N.J. at 386 (quoting Malley, supra, 475 U.S. at 341, 106 S. Ct.

at 1096, 89 L. Ed. 2d at 278).

    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.”

Kirk, supra, 109 N.J. at 184 (citation omitted); see also

Connor, supra, 162 N.J. at 408 (same); Wildoner, supra, 162 N.J.

at 386 (same).   “If officers of reasonable competence could

disagree on the issue of probable cause, the doctrine of

qualified immunity should be applied.”    Connor, supra, 162 N.J.

at 409 (citing Malley, supra, 475 U.S. at 341, 106 S. Ct. at

1096, 89 L. Ed. 2d at 278).

    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.    See Schneider,

supra, 163 N.J. at 355-56.    The issue is one for the court to

determine.   Id. at 359.   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. (citation and

                                 18
internal quotation marks omitted).    However, the jury does not

decide the issue of immunity.   When no material historical or

foundational facts are in dispute, or when they are and the jury

decides those disputed facts pursuant to the above procedure,

“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.”    Id. at 360.

    Importantly, when probable cause is lacking and the trial

judge is determining whether a reasonable law enforcement

officer would have believed that probable cause to arrest or

charge did exist, it is for the judge to “decide whether the

defendant has proven by a preponderance of the evidence that his

or her actions were reasonable under the particular facts.”

Ibid.

    We thus turn to review the trial court’s decision, affirmed

by the Appellate Division, denying defendants’ motion for

summary judgment based on qualified immunity.

                                IV.

    Defendants’ assertion of qualified immunity to plaintiff’s

cause of action calls into question whether it was objectively

reasonable for the defendant officers to have charged plaintiff

with unlawful possession of a handgun under N.J.S.A. 2C:39-

5(b)(1).   Plaintiff claims that the statutory exemption from

prosecution for that offense makes it abundantly clear that the

                                 19
officers had no reasonable basis to charge him with unlawful

possession when he was carrying his lawfully registered gun

while seated in a running car on property surrounding his

mother’s residence where he was living at the time.   The

exemption provides that

          [n]othing in subsections b., c. and d. of
          [N.J.S.A.] 2C:39-5 shall be construed to
          prevent a person keeping or carrying about his
          place of business, residence, premises or
          other land owned or possessed by him, any
          firearm, or from carrying the same, in the
          manner specified in subsection g. of this
          section, from any place of purchase to his
          residence or place of business, between his
          dwelling and his place of business, between
          one place of business or residence and another
          when moving, or between his dwelling or place
          of business and place where such firearms are
          repaired, for the purpose of repair. For the
          purposes of this section, a place of business
          shall be deemed to be a fixed location.

          [N.J.S.A. 2C:39-6(e) (emphasis added).]

    According to its plain language, the exemption applies to a

gun carried (1) about a place of business and (2) about a

residence.   However, the language is less than plainly clear

when one considers the next portion of the sentence pertaining

to keeping or carrying a weapon.   The phrase “premises or other

land owned or possessed by him” is not perfectly clear as to its

application.   After the word “premises,” there is no comma,

which would have indicated that “premises” was intended to be

next in a list of places where one unequivocally could keep or

carry a weapon.   Instead, like the next word, “land,” the word
                                 20
“premises” could be read to be modified by the subsequent

description of being “owned or possessed by [the person keeping

or carrying the weapon].”

    The statute’s grammatical structure can be read to mean

that “premises” and “land” -- both more generic descriptions of

areas than “residence” or “place of business” -- must be owned

or possessed by the individual to whom a weapon is registered in

order for that person to lawfully carry the weapon in such

areas.   There is an element of ambiguity inherent in that

portion of the exemption’s sentence structure.   It is not

entirely clear whether the exemption was intended to encompass,

for example, common areas within a multi-unit dwelling, where

one may have a right to be if one is residing in a unit in that

dwelling, but which area technically is not possessed by that

individual -- such as a basement laundry room.   Similarly, it is

not clear whether it is intended to encompass, for example,

carrying a weapon in the open areas surrounding a private

residence where one may be staying but which is not owned or

possessed by the individual.   The charge against plaintiff arose

in such a setting.

    Plaintiff was staying/living at his mother’s house at the

time he was found outside the home carrying a loaded handgun

concealed in the waistband of his pants.   Neither the home nor

the property was owned or possessed by plaintiff.   Giving all

                                21
inferences to plaintiff, when he was found carrying that loaded

weapon in his waistband, he was sitting in a running car, in a

side driveway, outside his mother’s home.    We cannot say that

the language of the statute is without ambiguity as to its

intended reach in these circumstances, and case law does not

help resolve the question posed about the statute’s application

in these circumstances.

     There is little case law interpreting or applying the

statutory exemption in N.J.S.A. 2C:39-6(e).    The pronouncements

made by this Court clearly support that the exemption applies to

possessing weapons inside one’s dwelling or place of business.

See, e.g., State v. Petties, 139 N.J. 310, 315 (1995) (“One may

possess an unlicensed handgun at home.” (citing N.J.S.A. 2C:39-

6(e))); In re Preis, 118 N.J. 564, 568 (1990) (“Our laws draw

careful lines between permission to possess a gun in one’s home

or place of business, N.J.S.A. 2C:39-6[(e)], and permission to

carry a gun, N.J.S.A. 2C:39-6[(a)] and N.J.S.A. 2C:39-6[(c)].”);

State v. Harmon, 104 N.J. 189, 198-99 (1986) (“A homeowner who

possesses a gun in his home . . . does not violate N.J.S.A.

2C:39-5 because under N.J.S.A. 2C:39-6(e), he is not carrying

it.”).

     The Appellate Division has referred to the exemption as

applying to an individual’s carrying a firearm within his or her

home.    See, e.g., State v. Navarro, 310 N.J. Super. 104, 108 n.1

                                 22
(App. Div.) (“We note that a person may keep a handgun within

his residence without obtaining a permit to carry a handgun . .

. .” (citing N.J.S.A. 2C:39-6(e))), certif. denied, 156 N.J. 382

(1998); State v. Gomez, 246 N.J. Super. 209, 216 & n.1 (App.

Div. 1991) (referring to N.J.S.A. 2C:39-6(e) when noting that

trial court’s instruction correctly informed jury that defendant

possessing gun inside his apartment did not violate N.J.S.A.

2C:39-5(b), but that possessing gun outside his dwelling would

violate that statute); cf. State v. Marques, 140 N.J. Super.

363, 366 (App. Div. 1976) (rejecting argument that college

dormitory room qualified as dwelling house for purposes of

exempting defendant from unlawful possession charge under

predecessor statute to N.J.S.A. 2C:39-6(e)).

    In Gomez, supra, 246 N.J. Super. at 211-12, a jury found

the defendant guilty of murder and unlawful possession of a

handgun after the defendant shot another man in a rented room in

a boarding house.   Evidence was presented that the defendant

carried the handgun outside of his apartment after the shooting.

Id. at 216 n.1.   The court noted that “[t]he trial judge

correctly instructed the jury that possession of the gun while

in [the] defendant’s apartment did not constitute a crime, but

that carrying the weapon outside of the dwelling would violate

N.J.S.A. 2C:39-5(b).”   Ibid. (emphasis added).



                                23
    Thus, the overwhelming majority of New Jersey case law that

has touched on the circumstances in which the statutory

exemption is applicable supports the view that the statute

permits gun owners to carry firearms, without a carry permit,

inside their residences.   On the other hand, no case law

suggests that the statute generally permits a gun owner to carry

a firearm outside his or her residence on premises he or she

neither owns nor possesses.    Indeed, the Gomez panel implied the

opposite:    that carrying a firearm outside one’s dwelling

removed the gun owner from the protections of section 6(e),

despite that the defendant, to whom that panel referred, was

merely renting and did not, therefore, “own” or “possess” any

“premises” or “land” on which he stepped after exiting his

residence.

    Against that backdrop to the unlawful possession of a

weapon offense and the statutory exemption that pertains in

certain circumstances, we consider the officers’ claim to

qualified immunity in this matter.

                                V.

    The defendant officers’ claim of qualified immunity depends

on a single determination:    whether the circumstances support a

conclusion that “‘no reasonably competent officer would have

concluded that a warrant should issue.’”    Wildoner, supra, 162

N.J. at 386 (quoting Malley, supra, 475 U.S. at 341, 106 S. Ct.

                                 24
at 1096, 89 L. Ed. 2d at 278).    That conclusion is not supported

on this record, in our view, as a matter of law.

    First, the statute’s language leaves open to debate the

intended reach of its exemption, and the scope of that exception

remains unsettled by any interpretive decision by the courts.

The fact that most New Jersey case law applied the home-carry

exemption to cases where the gun is carried inside the private

portions of one’s residence, and not to outside areas, indicates

that the officers were not applying “clearly established” law.

Under the test for qualified immunity, these officers confronted

a question of uncertain application of the exemption to the

unlawful possession statute, arguably taking it beyond the

“clearly established” framework of our law.    See Saucier, supra,

533 U.S. at 202, 121 S. Ct. at 2156, 150 L. Ed. 2d at 282

(describing “dispositive inquiry in determining whether a right

is clearly established [a]s whether it would be clear to a

reasonable officer that his conduct was unlawful in the

situation he confronted”).

    Second, these officers acted with restraint and prudence in

the face of a confusing situation.    They stated that they tried

to act cautiously and could not dismiss the possibility that a

chargeable weapons offense should be added to plaintiff’s arrest

on the child-support warrant.    The sheriff’s officers on the

scene sought guidance from their supervisor, and the supervisor

                                 25
sought advice from the prosecutor’s office.     The officers’ right

to the benefit of qualified immunity does not hinge on the

soundness of the prosecutor’s advice.    See Kelly, supra, 622

F.3d at 255-56 (“[A] police officer who relies in good faith on

a prosecutor’s legal opinion that the arrest is warranted under

the law is presumptively entitled to qualified immunity from . .

. claims premised on a lack of probable cause.”).

    Third, we do not rely to any great extent on the

involvement of legal counsel to insulate these officers from

liability on the basis of qualified immunity.     Rather, we view

these events in their totality.    Therefore, we are not persuaded

by plaintiff’s effort to call into question the extent to which

the supervisory officer emphasized to the assistant prosecutor

that plaintiff had, in fact, been at his residence at the time

that he was found outside with the loaded gun on his person.

The prosecutor was informed that the inquiry arose from an

encounter with an individual based on execution of a child-

support warrant.    There was no suggestion that the event

described was taking place anywhere other than the address for

the person who was identified on the warrant.    Indeed, the

officers, particularly Ruocco and Cooper, emphasized that they

assumed plaintiff was residing at that home when the warrant was

being executed.    In acting with caution before proceeding with

an unlawful possession of a weapon charge, they were focused on

                                  26
where plaintiff was with the gun, namely outside the home and in

an idling car, how the loaded weapon was being carried

(concealed in a waistband), and the additional circumstances of

his being outside with the loaded weapon as told by plaintiff

and observed by the officers.

    In view of the lack of clarity and guidance available on

the exemption’s application generally, so long as the gun owner

is not inside his or her dwelling or place of business, we

cannot say that no reasonable officer could possibly have been

led to believe that probable cause existed to charge plaintiff

with unlawful possession of a weapon.    In these circumstances,

plaintiff’s possession of his weapon could be perceived as

beyond the exemption’s protection.   The statute is unclear as to

how to treat premises or land if not owned or possessed by the

person carrying a registered gun.    We note specifically that we

do not resolve that issue in light of the posture of this case.

Moreover, the situation here was complicated for the officers by

the fact that the weapon indisputably was loaded with a round in

the chamber, was concealed in plaintiff’s waistband as he was

seated in an idling car with its lights off and situated in a

driveway to the residence, and plaintiff was expressing concern

about gang retaliation.

    In sum, under the test for qualified immunity, the

defendant officers confronted a question of uncertain

                                27
application of the exemption to the unlawful possession statute.

This was not a setting in which the application of the statutory

exemption to unlawful possession was “clearly established” in

the framework of our law.   See Saucier, supra, 533 U.S. at 202,

121 S. Ct. at 2156, 150 L. Ed. 2d at 282 (requiring indication

that reasonable officer in same circumstances clearly would have

known conduct was unlawful for “clearly established” test to be

met).   Further, under the standard of competence required for

qualified immunity, it cannot fairly be said in this instance

that no reasonably competent officer would have believed

probable cause existed to go forward with an unlawful possession

charge against plaintiff under these circumstances.   “If

officers of reasonable competence could disagree on the issue of

probable cause, the doctrine of qualified immunity should be

applied.”   Connor, supra, 162 N.J. at 409 (citing Malley, supra,

475 U.S. at 341, 106 S. Ct. at 1096, 89 L. Ed. 2d at 278).

    In short, law enforcement officials should not have to fear

facing a ruinous civil lawsuit and substantial financial loss

when acting reasonably in difficult circumstances and on

uncertain legal terrain.    Accordingly, and for good reason, the

qualified-immunity doctrine “protects all officers ‘but the

plainly incompetent or those who knowingly violate the law.’”

Ibid. (quoting Malley, supra, 475 U.S. at 341, 106 S. Ct. at

1096, 89 L. Ed. 2d at 278).   Neither description fairly

                                 28
characterizes defendants’ actions here.   The officers’ actions

defy characterization as “plainly incompetent” and there was no

knowing violation of law.   Viewed in their totality, the

officers’ involvement in the circumstances that led to the

filing of the unlawful possession charge against plaintiff does

not rise to the level required to meet the standard for

stripping these officers of the protection of qualified

immunity.   Ibid.

                              VI.

    The judgment of the Appellate Division is reversed and the

matter remanded for dismissal of the Section 1983 and CRA claims

against the defendant officers.



     CHIEF JUSTICE RABNER; JUSTICES ALBIN, PATTERSON, FERNANDEZ-
VINA, and SOLOMON; and JUDGE CUFF (temporarily assigned) join in
JUSTICE LaVECCHIA’s opinion.




                                  29
                        SUPREME COURT OF NEW JERSEY


NO.       A-88                                 SEPTEMBER TERM 2013
ON APPEAL FROM               Appellate Division, Superior Court

ERIC MORILLO,

      Plaintiff-Respondent,

                 v.

MONMOUTH COUNTY SHERIFF’S
OFFICER ALEXANDER TORRES,
MONMOUTH COUNTY SHERIFF’S
OFFICER THOMAS RUOCCO,
MONMOUTH COUNTY SHERIFF’S
OFFICE, and MONMOUTH COUNTY
SERGEANT STEVEN COOPER,

      Defendants-Appellants,

                 and

OLD BRIDGE TOWNSHIP ASSISTANT
MUNICIPAL COURT ADMINISTRATOR
SUSAN BRUCHEZ, and OLD BRIDGE
TOWNSHIP MUNICIPAL COURT,

      Defendants.


DECIDED                 July 13, 2015
                  Chief Justice Rabner                       PRESIDING
OPINION BY             Justice LaVecchia
CONCURRING/DISSENTING OPINION BY
DISSENTING OPINION BY
                                    REVERSE AND
CHECKLIST
                                      REMAND
CHIEF JUSTICE RABNER                     X
JUSTICE LaVECCHIA                        X
JUSTICE ALBIN                            X
JUSTICE PATTERSON                        X
JUSTICE FERNANDEZ-VINA                   X
JUSTICE SOLOMON                          X
JUDGE CUFF (t/a)                         X
TOTALS                                   7
