                                                                                                                           Opinions of the United
1994 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-14-1994

Barna v. City of Perth Amboy et al.
Precedential or Non-Precedential:

Docket 94-7242




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                  UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT


                           N0. 93-5667


                  LOUIS D. BARNA; THERESA BARNA,

                            Appellants

                                v.

  CITY OF PERTH AMBOY; TOWNSHIP OF WOODBRIDGE; PAUL OTTERBINE;
     STEPHEN OTTERBINE; RICHARD ECHEVARRIA; BENJAMIN RUIZ;
       ORLANDO SANABRIA; STEPHEN POLOKA; JAMES M. CRILLY;
                 CHARLES HAWKINS; FRANK WALLACE



         On Appeal From the United States District Court
                  For the District of New Jersey
               (D.C. Civil Action No. 92-cv-05133)


                       Argued June 21, 1994

     BEFORE:   STAPLETON, GARTH and PRATT,* Circuit Judges

                (Opinion Filed December 14, 1994)




                         John J. Barry
                         Madeline E. Cox (Argued)
                         Judson Hand
                         BARRY & McMORAN
                         One Newark Center
                         Newark, NJ 07102
                         Attorneys for Appellants
                         Louis D. Barna and Theresa Barna




* Honorable George C. Pratt, United States Circuit Judge for the
  Second Circuit, sitting by designation.
                         John G. Cito (Argued)
                         TOOLAN, ABBOTT, ZIZNEWSKI & WEBER
                         3090 Woodbridge Avenue
                         P.O. Box 6868
                         Edison, NJ 08818
                         Attorneys for Appellees
                         Otterbine, Echevarria, Ruiz and
                         Sanabria

                         Robert Musto (Argued)
                         51 Green Street
                         Woodbridge, NJ 07095
                         Attorney for Appellee
                         Charles Hawkins



                      OPINION OF THE COURT




STAPLETON, Circuit Judge:


          Louis and Theresa Barna ("Mr. and Mrs. Barna") sued

eight police officers, the City of Perth Amboy, and the Town of

Woodbridge for violations of their constitutional rights stemming

from an alleged assault and the subsequent detention of Mrs.

Barna and arrest and prosecution of Mr. Barna.   Following

presentation of the plaintiffs' case, Officers Otterbine,

Echevarria, Ruiz, and Sanabria moved for judgment as a matter of

law, which the district court granted.1   The district court also


1
 . The district court also granted judgment as a matter of law
in favor of Officer Crilly, but the Barnas have chosen not to
pursue that claim on appeal and we therefore do not consider it.
The claims against the remaining defendants were dismissed with
prejudice prior to trial by agreement of the parties.
dismissed their complaint as to Officer Hawkins for failure to

effect proper service.    The Barnas appeal from those orders.

          We conclude that judgment as a matter of law was proper

on Mr. Barna's assault-based claim because the evidence could not

support a finding that the officers were acting under color of

state law.    We further conclude that judgment as a matter of law

was also appropriate with respect to Mr. Barna's unconstitutional

arrest claim and Mrs. Barna's forcible detention claim because a

reasonable jury could only conclude that the officers acted

reasonably under the circumstances.    We therefore will affirm the

district court's order as it relates to those claims.2    We will

reverse, however, the dismissal of the Barnas' claim against

Officer Hawkins and will remand for a determination as to whether

the answer purportedly filed on his behalf was authorized.

             In reviewing an order granting judgment as a matter of

law, we exercise plenary review and apply the same standard that



2
 . In the briefing before us, the Barnas contest the entry of
judgment against them on the additional ground that their
evidence established that Officers Otterbine and Echevarria
committed the constitutional tort of malicious prosecution. See,
e.g., Lippay v. Christos, 996 F.2d 1490, 1502 (3d Cir. 1993);
Rose v. Bartle, 871 F.2d 331, 349 (3d Cir. 1989); Lee v.
Mihalich, 847 F.2d 66, 70 (3d Cir. 1988). Their complaint,
however, did not allege malicious prosecution or facts upon which
such a claim could be based. Moreover, the "Joint Requests to
Charge Jury" made no reference to such a claim, and the Barnas'
counsel did not mention it in opposing the defendants' Rule 50(a)
motion. Since no § 1983 claim based on malicious prosecution was
advanced in the district court, we decline to entertain such a
claim on appeal. Accordingly, we have no occasion to consider
what effect the Supreme Court's decision in Albright v. Oliver,
114 S. Ct. 807 (1994), has on our circuit jurisprudence.
the district court should have used in deciding the motion.3

Sowell v. Butcher & Singer, Inc., 926 F.2d 289, 296 (3d Cir.

1991) (citing Frank Arnold Contractors, Inc. v. Vilsmeier Auction

Co. Inc., 806 F.2d 462, 463 (3d Cir. 1986)).     The officers'

motions for judgment as a matter of law should have been granted

only if, at the close of the Barnas' case, "there [was] no

legally sufficient evidentiary basis for a reasonable jury to

find for [the Barnas] on [an] issue" necessary to maintain their

claims.   Fed. R. Civ. P. 50(a).4    We also exercise plenary review

over the legal standards applied by the district court in

granting a motion to dismiss for lack of service.     Carteret

Savings Bank, FA v. Shushan, 954 F.2d 141, 144 (3d Cir.) (quoting

North Penn Gas Co. v. Corning Natural Gas Corp., 897 F.2d 687,

688 (3d Cir.) (per curiam), cert. denied, 498 U.S. 847 (1990)),

cert. denied, 113 S. Ct. 61 (1992).



                                I.

           The relevant facts as established by the plaintiffs'

presentation of their case at trial are as follows.5    On the
3
 . The district court had jurisdiction pursuant to 28 U.S.C.
§ 1343(3), and this court has jurisdiction pursuant to 28 U.S.C.
§ 1291.
4
 . This version of Rule 50(a) became effective on December 1,
1993, shortly after the motions in this case were decided. The
1993 amendment was merely technical in nature, however, and was
intended only to clarify the existing standards. See Fed. R.
Civ. P. 50(a) advisory committee's note on 1993 amendment.
5
 . Because we are reviewing these claims on a motion for
judgment as a matter of law pursuant to Fed. R. Civ. P. 50(a), we
view the facts in the light most favorable to the Barnas as the
party opposing the motion, without regard to the weight of the
evening of December 21, 1990, Louis and Theresa Barna went to

dinner with Mrs. Barna's sister, Mary Haelson ("Aunt Mary"), and

Mrs. Barna's mother.    After dinner, and after taking Mrs. Barna's

mother home, Mr. and Mrs. Barna and Aunt Mary went to a bar.       Mr.

and Mrs. Barna each consumed significant quantities of alcohol

during the evening.6

           The Barnas and Aunt Mary left the bar to return to the

Barnas' home.   On the way, they stopped at a Christmas tree

business owned by a longtime friend of Mrs. Barna's family, Bobby

DeHane.   Mr. and Mrs. Barna were also in this line of business

and Mrs. Barna was angry at Mr. DeHane, believing that earlier in

the day he had reported electrical code violations at the Barnas'

Christmas tree lot to a government agency.   Mrs. Barna got out of

the car and unsuccessfully sought out DeHane in order to confront

him.   Aunt Mary coaxed her back into the car.

           DeHane's Christmas tree lot was across the street from

another bar.    Coincidentally, Perth Amboy Police Officers Paul

Otterbine ("Otterbine") and Richard Echevarria ("Echevarria")

were outside that bar in Officer Echevarria's truck.    Officer

Otterbine is the brother of Mrs. Barna and Aunt Mary.    Although

the officers were off-duty and not in uniform, they were armed

(..continued)
evidence or the credibility of witnesses. Sowell v. Butcher &
Singer, Inc., 926 F.2d 289, 296 (3d Cir. 1991); Flynn v. Bass
Bros. Enters., Inc., 744 F.2d 978, 983 (3d Cir. 1984) (quoting
Brady v. Southern Ry. Co., 320 U.S. 476 (1943)).
6
 . According to their own testimony, Mr. Barna consumed a total
of fourteen to sixteen servings of alcohol during the evening,
and Mrs. Barna consumed the equivalent of 8 to 9 servings.
with their service revolvers and with their police-issue "PR-24"

nightsticks.    Otterbine noticed his mother's car, and saw his two

sisters and Mr. Barna.    Aunt Mary signaled to her brother that

Mr. and Mrs. Barna were drunk and wanted to damage the Dehane

property and asked Otterbine to follow her home.     Otterbine

explained to his partner that there was a problem with Mr. and

Mrs. Barna and asked Echevarria to accompany him.     The two

officers, in Echevarria's truck, then followed Mr. and Mrs. Barna

and Aunt Mary back to the Barnas' home.

            At the Barnas' home, Aunt Mary attempted to leave with

her sister, Dena Otterbine, who had been babysitting the Barnas'

children.    Mr. Barna testified that, when he saw his sisters-in-

law pulling away in their car, he signalled for them to stop by

standing in the path of their car and waving his arms.     Aunt

Mary, who was driving, stopped the car.    Mr. Barna testified that

he then went to the side of the car, knelt down to speak with

Aunt Mary through the driver's side window, and asked her to stay

with Mrs. Barna and the children while he went out.     Instead,

Aunt Mary drove slowly away, dragging Mr. Barna who was holding

onto the driver's side door.    Aunt Mary stopped the car after

dragging Mr. Barna fifty or sixty feet.

            Officer Otterbine, who apparently witnessed this, began

yelling at Mr. Barna and accused him of hitting his sister, Aunt

Mary.    Mr. Barna argued with Officers Otterbine and Echevarria,

telling them: "Look, you guys are out of your jurisdiction.       Just

get out of here, go home, this is none of your concern."     App.

117.    Echevarria then responded: "Jurisdiction?   I'll show you
jurisdiction."    App. 117.   Echevarria and Otterbine then attacked

Mr. Barna and beat him up.     Mr. Barna testified that he was

largely passive during the fight, and that at one point Officer

Otterbine used his nightstick to place Mr. Barna in a chokehold.

Mr. Barna's testimony was in large part corroborated by Bobby

Borrero who had followed the Barnas home to receive a paycheck

from Mr. Barna.

           After beating up Mr. Barna, Officers Otterbine and

Echevarria left Mr. Barna on the sidewalk and returned to

Echevarria's truck.    They attempted to leave the scene, but Mrs.

Barna prevented their departure.     She slapped her brother in the

mouth and told the two officers not to go anywhere.

           Mr. Barna, fearing for his wife's safety, retrieved an

unloaded revolver from his house.    He pointed the gun into the

cab of the truck in which Otterbine and Echevarria were sitting

and told the officers not to go anywhere until other police

arrived.   At his wife's bidding, Mr. Barna stopped pointing his

gun at the officers and walked over to see if his wife was okay.

Otterbine and Echevarria then jumped out of the truck, drew their

weapons against Mr. Barna, and told him to drop his gun.      Mr.

Barna stepped backwards, tripped over the curb, and, as he fell,

flung the revolver in his hand over his shoulder into a hedge.

           Mr. Barna then ran into his house and retrieved a

twelve-gauge pump action shotgun.    He walked out onto the porch

and "shuffled" the pump action of the shotgun, making a

distinctive sound to gain the attention of all present.       He told

Otterbine and Echevarria not to leave.    At that point, he
testified, he ran into the house, bolted the door, picked up the

telephone and called his mother and his mother-in-law.

            After Mr. Barna went back into his house, Officers

Otterbine and Echevarria apparently called for backup and

additional Perth Amboy police officers arrived on the scene,

including Benjamin Ruiz ("Ruiz") and Orlando Sanabria

("Sanabria").    According to Mrs. Barna, Otterbine was drunk, and

both he and Officer Echevarria continued to point their weapons

at the Barnas' front door, stating that they were going to kill

Mr. Barna.    Mrs. Barna testified that she "was grabbing on

[Otterbine's] arm, [yelling at him and] trying to get his

attention," but "[h]e didn't want to pay attention to me."      App.

312, 315.    Otterbine thereupon instructed Officer Ruiz to remove

Mrs. Barna from the scene, but when Ruiz attempted to do so, she

resisted.    Officer Ruiz tried to restrain Mrs. Barna by holding

her arms, while she struggled to elude his grasp.    Ruiz was

finally able to handcuff Mrs. Barna and, with the assistance of

Officer Sanabria, place her into a patrol car.    At that point,

she attempted "with all [her] might" to kick her way out of the

patrol car.    App. 317.

            Officers Ruiz and Sanabria took Mrs. Barna to the

Raritan Bay Medical Center, where they checked her in for

intoxication.    Upon arriving at the Medical Center, Ruiz removed

the handcuffs and Mrs. Barna tried to leave, but the hospital

staff placed her in restraints.    "I was hysterical," she

testified, "I was still combative, I wanted to go home."       App.
318.   After a time, Mrs. Barna calmed down and she was released

from the hospital; she returned home at about 3:00 a.m.

           While Mrs. Barna was at the hospital, events at the

Barna home escalated.   Based on the representations of Officers

Otterbine and Echevarria that Mr. Barna had barricaded himself in

his home with his children, the Woodbridge police officers who

had been called to the scene contacted then Middlesex County

Prosecutor (now Judge) Allen A. Rockoff7 and informed him that a

hostage situation was taking place at the Barna home.   As the

chief law enforcement officer for the county, Rockoff ordered the

county's hostage negotiation team to go to the Barnas' home.

          As part of the hostage situation response, the Barnas

claim that Officer Charles Hawkins intercepted Mr. Barna's

telephone conversations.   After a period of time, Mr. Barna

voluntarily surrendered to the police.   He was arrested and

detained for three hours, then taken to a hospital for treatment

for his injuries, and finally transported to the Middlesex County

Adult Corrections Facility.   He was released when bail was

posted.

Officers Otterbine and Echevarria later charged Mr. Barna with a

number of criminal offenses in connection with these events.

          Mr. and Mrs. Barna subsequently filed a civil complaint

in the District Court for the District of New Jersey, alleging

violations of their civil rights under 42 U.S.C. § 1983 by the


7
 . Judge Rockoff is now a member of the New Jersey Superior
Court.
City of Perth Amboy; the Township of Woodbridge; Officers

Otterbine, Echevarria, Ruiz, Sanabria, Hawkins; and others.

Prior to trial, a number of counts were voluntarily dropped and a

number of defendants dismissed from the suit.    At a pre-trial

conference, the magistrate judge recommended that the claims

against Officer Hawkins be dismissed for improper service of

process.   At the start of the trial, and relevant to this appeal,

the remaining defendants were Officers Otterbine, Echevarria,

Sanabria, and Ruiz.    Of the twelve counts in the Barnas'

complaint, Counts I, III, and V remained for trial.

             Count I alleged that Officers Otterbine and Echevarria

"assaulted" Mr. Barna and thereafter caused his arrest, depriving

him of his constitutional rights under the Eighth and Fourteenth

Amendments.

           Count III sought recovery against Officers Otterbine

and Echevarria for creating the "false impression in other law

enforcement officials" that Mr. Barna barricaded himself in his

residence and held his children as hostages, thereby depriving

Mr. Barna of his Eighth and Fourteenth Amendment rights.

           Count V complained that Otterbine, Ruiz, and Sanabria

maliciously and falsely arrested Mrs. Barna under color of law in

violation of her Eighth and Fourteenth Amendment rights.

           At trial, the Barnas called fourteen witnesses over

five days.    At the close of the Barnas' case, the remaining

defendants moved for judgment as a matter of law pursuant to Fed.

R. Civ. P. 50(a).    The district court granted their motions, and

also dismissed the complaint as to Hawkins for improper service
of process.   In a subsequently issued letter opinion, the

district court explained, correctly in our view, that the events

of that evening should be viewed as comprising two distinct

incidents: (1) a "family altercation" between the officers and

Mr. Barna; and (2) the officers' response to Mr. Barna's

brandishing of firearms following their attempt to leave.      Barna

v. Otterbine, No. 92-5133, letter op. at 11, 16 (D.N.J. Nov. 12,

1993).   The court found that the evidence viewed in the light

most favorable to the plaintiffs could not support a claim under

42 U.S.C. § 1983 because, as to the first event, the officers'

actions were not performed under color of state law, and, as to

the second event, the officers' actions were a "reasonable,

measured response to an armed threat" that was "fully justified"

in light of the Barnas' threatening and disruptive conduct, and

"no jury could reasonably find probable cause did not exist to

arrest Mr. Barna" and to detain Mrs. Barna.   Id. at 17, 24, 27,

34-35.



                               II.

           As noted, the Barnas brought this action under 42

U.S.C. § 1983.   Section 1983 provides:

                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 or other person within the
           jurisdiction thereof 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 . .
           . .
42 U.S.C. § 1983.     "To state a claim under § 1983, a plaintiff

must allege the violation of a right secured by the Constitution

and laws of the United States, and must show that the alleged

deprivation was committed by a person acting under color of state

law."   West v. Atkins, 487 U.S. 42, 48 (1988).    The Barnas have

alleged violations of their rights under the United States

Constitution,8 claiming that the police officers' assault of Mr.

Barna was unprovoked and involved the use of excessive force, and

that the subsequent arrest, prosecution, and detention occurred

without probable cause.     They further contend that the defendants

were acting in their official capacity as police officers--or

were otherwise clothed in state authority, both during the

altercation and during the ensuing events.



               A.    Assault Under Color of State Law

           "The traditional definition of acting under color of

state law requires that the defendant in a § 1983 action have

exercised power 'possessed by virtue of state law and made

possible only because the wrongdoer is clothed with the authority

of state law.'"     West v. Atkins, 487 U.S. 42, 49 (1988) (quoting
United States v. Classic, 313 U.S. 299, 326 (1941)).

Accordingly, acts of a state or local employee in her official

capacity will generally be found to have occurred under color of

8
 . While the Eighth Amendment was directly referenced in the
complaint, the district court correctly concluded that the
allegations were properly analyzed under the Fourth and
Fourteenth Amendments. Barna v. Otterbine, No. 92-5133 (D.N.J.
Nov. 12, 1993), letter op. at 19 n.6.
state law.   Id.; Flagg Bros. v. Brooks, 436 U.S. 149, 157 n.5

(1978).   This will be so whether the complained of conduct was in

furtherance of the state's goals or constituted an abuse of

official power.   West, 487 U.S. at 49-50; Monroe v. Pape, 365

U.S. 167, 184-87 (1961), overruled in part on other grounds,

Monell v. Department of Social Services, 436 U.S. 658 (1978).

"It is firmly established that a defendant in a section 1983 suit

acts under color of state law when he abuses the position given

to him by the State."   West, 487 U.S. at 49; Screws v. United

States, 325 U.S. 91, 111 (1945) ("Acts of [police] officers who

undertake to perform their official duties are included whether

they hew to the line of their authority or overstep it.").

          "It is [also] clear that under 'color' of law means

under 'pretense' of law."   Screws, 325 U.S. at 111.   Thus, one

who is without actual authority, but who purports to act

according to official power, may also act under color of state

law.   In Griffin v. Maryland, the Supreme Court held that a

deputy sheriff employed by a private park operator acted under

color of state law when he ordered the plaintiff to leave the

park, escorted him off the premises, and arrested him for

criminal trespass.   Griffin v. Maryland, 378 U.S. 130, 135 (1964)
(analyzing state action necessary for a claim under the Equal

Protection Clause of the Fourteenth Amendment).   While the deputy

sheriff was in actuality acting as a private security guard and

as agent of the park operator rather than as agent of the state,

he "wore a sheriff's badge and consistently identified himself as

a deputy sheriff rather than as an employee of the park," and
consequently "purported to exercise the authority of a deputy

sheriff."   Id. at 135.9   The Court concluded that the privately

employed deputy sheriff had been acting as a state actor,

stating:
            If an individual is possessed of state
            authority and purports to act under that
            authority, his action is state action. It is
            irrelevant that he might have taken the same
            action had he acted in a purely private
            capacity.


Id.   In this same vein, off-duty police officers who purport to

exercise official authority will generally be found to have acted

under color of state law.    Manifestations of such pretended

authority may include flashing a badge, identifying oneself as a

police officer, placing an individual under arrest, or

intervening in a dispute involving others pursuant to a duty

imposed by police department regulations.    See, e.g., Rivera v.

LaPorte, 896 F.2d 691, 696 (2d Cir. 1990) (identification as a

peace officer, arrest of plaintiff, and use of police car); Lusby

v. T.G. & Y. Stores, Inc., 749 F.2d 1423 (10th Cir. 1984)
(flashing of police badge and identification as police officer

working as security guard), vacated on other grounds, 474 U.S.

805 (1985), adhered to on remand, 796 F.2d 1307 (10th Cir.),

9
 . Under a local ordinance, the county sheriff could deputize
individuals who were employed to act as private security
personnel. The individuals would be appointed as "special deputy
sheriffs," and although they were paid by and acted as agents for
the company or individual on whose account the appointment was
made, they "ha[d] the same power and authority as deputy sheriffs
possess within the area to which they are appointed." Griffin,
378 U.S. at 132 n.1 (quoting § 2-91 of the Montgomery County Code
of 1955).
cert. denied, 479 U.S. 884 (1986); Stengel v. Belcher, 522 F.2d

438, 441 (6th Cir. 1975), cert. dismissed, 429 U.S. 118 (1976)

(intervening in barroom brawl).

          On the other hand, a police officer's purely private

acts which are not furthered by any actual or purported state

authority are not acts under color of state law.   See Delcambre

v. Delcambre, 635 F.2d 407, 408 (5th Cir. 1981) (holding that

alleged assault by on-duty police chief at police station did not

occur under color of state law because altercation with the

plaintiff, defendant's sister-in-law, arose out of a personal

dispute and defendant neither arrested nor threatened to arrest

the plaintiff); see also D.T. v. Independent School Dist. No. 16,

894 F.2d 1176 (10th Cir.) (finding sexual molestation of students

by public school teacher/coach that occurred on an excursion

unconnected to school activities during school vacation period

when teacher was not employed by the school district did not

occur under color of state law), cert. denied, 498 U.S. 879

(1990).   While a police-officer's use of a state-issue weapon in

the pursuit of private activities will have "furthered" the

§ 1983 violation in a literal sense, courts generally require

additional indicia of state authority to conclude that the

officer acted under color of state law.   Compare Bonsignore v.
City of New York, 683 F.2d 635 (2d Cir. 1982) (holding that

officer who used police handgun to shoot his wife and then commit

suicide did not act under color of state law even though he was

required to carry the police gun at all times) with Stengel v.
Belcher, 522 F.2d at 441 (finding evidence supported
determination of "under color" where off-duty officer intervened

in barroom brawl as required by relevant police department

regulations); United States v. Tarpley, 945 F.2d 806, 809 (5th

Cir. 1991) (finding requirement under color of state law met

where off-duty deputy sheriff assaulted wife's alleged ex-lover

in a private vendetta but identified self as police officer, used

service revolver, and intimated that he could use police

authority to get away with the paramour's murder), cert. denied,

112 S. Ct. 1960 (1992).

          In this case, Officers Otterbine and Echevarria were

off duty when the altercation with Mr. Barna occurred, and the

evidence indicates that the underlying nature of their dispute

was personal.    The evidence would not support a finding that the

officers were acting with actual police authority during the

altercation.    Nor would it support a finding that they purported

to be acting with police authority.

          While the fact that they were off duty is not

dispositive of whether the officers were exercising actual police

authority, there was no evidence to indicate that the officers

were on official police business.    First, the officers were

literally "out of their official jurisdiction."    New Jersey law

provides that a municipal police officer's jurisdiction is

limited to the municipality in which the officer was appointed.

N.J. Stat. Ann. § 40A:14-152 (West 1993); see State v. Cohen, 375

A.2d 259, 264 (N.J. 1977).    A police officer may act in his or

her official capacity outside of this jurisdiction under only two
circumstances: (1) when in hot pursuit of a person whom the

officer believes to have committed a crime, N.J. Stat. Ann.

§ 2A:156-1 (West 1985), or (2) when making an arrest anywhere in

the state for a crime committed in the officer's presence, N.J.

Stat. Ann. § 40A:14-152.1 (West 1993).   Officers Otterbine and

Echevarria, who were Perth Amboy police officers, thus could not

have been acting with official authority under the facts of this

case when they allegedly assaulted Mr. Barna at his home in the

Town of Woodbridge.   See Rambo v. Daley, 851 F. Supp. 1222, 1224

(N.D. Ill. 1994) (recognizing police officers had no actual

authority to conduct arrest in neighboring state and analzying

further to determine whether officers acted with purported

authority); Keller v. District of Columbia, 809 F. Supp. 432, 43

(E.D. Va. 1993) (same).

           Otterbine decided to follow the Barnas to their home at

the request of a relative and asked his partner, with whom he was

sharing a social evening, to accompany him.   The altercation

began when Officer Otterbine accused Mr. Barna of hitting the

officer's sister, Aunt Mary.   His partner then intervened to

support him and, at the end of the fracas, the two officers

attempted to leave.   The officers had not been called to the

scene to conduct official police business, nor were they in

pursuit of Mr. Barna on the belief that he had already committed

a crime.   Finally, the fact that they attempted to leave after

the assault establishes that the officers were not trying to

arrest Mr. Barna at the time they assaulted him.   Thus, there was

no evidence to support a finding that the officers were clothed
with actual state authority during the initial phase of the

altercation, prior to Mr. Barna's brandishing of firearms.

          This situation is thus unlike that in Black v.

Stephens, 662 F.2d 181 (3d Cir. 1981), cert. denied, 455 U.S.

1008 (1982), where we concluded that an on-duty police officer

may act under color of state law when he performs official duties

that arose in a quasi-personal context.   In Black, the plaintiff

brought a § 1983 claim against a police officer in connection

with an arrest and prosecution that arose out of a traffic

incident involving the plaintiff's and the officer's vehicles.

We found sufficient indicia of state authority to uphold the

denial of judgment not withstanding the verdict because the

police officer was an on-duty (although plain-clothed) detective,

he wore a police academy windbreaker, and he had initiated

contact with the plaintiff on the belief that the plaintiff's

actions warranted official investigation.   Black v. Stephens, 662

F.2d at 188.   Here there was no evidence that the alleged assault

occurred as a result of official police concerns; on the

contrary, the evidence indicates that the assault arose out of

the officer's familial and personal concerns.

          Turning to the issue of whether the officers purported

to be acting with state authority when they followed the Barnas

home and accosted Mr. Barna, we also find no evidence supporting

the Barnas' position.   The officers did not identify themselves

as police officers, they did not indicate that they were acting

on official police business, and importantly, they did not
attempt to arrest Mr. Barna, or otherwise invoke their police

authority, during the initial phase of the altercation.

             The only arguable connections between the officers'

alleged assault of Mr. Barna and the use of police authority are:

(1) Echevarria's comment, "I'll show you jurisdiction," made in

response to Mr. Barna's statement that the officers were out of

their jurisdiction, and (2) evidence that Echevarria used a

state-issue "PR-24" nightstick to hold Mr. Barna during the

assault--a weapon that Officer Echevarria could only legally

carry in New Jersey because of his position as a police

officer.10    We believe Officer Echevarria's comment regarding the

officers' "jurisdiction" is too ambiguous to be of significant

value on the issue of state authority.     As noted, the officers

were in fact out of their police jurisdiction.     Instead of

indicating that Echevarria intended to exercise official police

authority, the comment could just as likely have been meant to

convey that Echevarria intended, despite the lack of any real or

purported authority, to put Mr. Barna in his place.

             The use of a police-issue nightstick is undoubtedly the

Barnas' strongest support for the view that the officers were

acting under color of state law during the alleged assault.        The

nightstick was an objective indicia of police authority, and

Echevarria was legally entitled to possess it only because of his

10
 . See N.J. Stat. Ann. § 2C:39-3(e), (g) (West Supp. 1994)
(knowing possession of a billy club is a crime except when it is
possessed by a law enforcement officer pursuant to regulation
while on duty or traveling to or from an authorized place of
duty).
position as a police officer.   At the time it was used, however,

Echevarria did not have actual authority to use the nightstick,

since, by law, an officer may only carry the weapon while on duty

or while traveling to or from an authorized place of police duty.

See N.J. Stat. Ann. § 2C:39-3(e), (g).   Nor, under the

circumstances of this case, do we view the use of the nightstick

to hold Mr. Barna during the assault as an assertion by

Echevarria of official authority.   In short, we believe the

unauthorized use of a police-issue nightstick is simply not

enough to color this clearly personal family dispute with the

imprimatur of state authority.11

          To hold otherwise would create a federal cause of

action out of any unauthorized use of a police-issue weapon,

without regard to whether there are any additional circumstances

to indicate that the officer was exercising actual or purported

police authority.   We do not understand the under color

requirement of § 1983 to be satisfied by such a tenuous


11
 . We note that County Prosecutor, now Judge, Rockoff testified
that under the county's official policy its police officers are
police twenty-four hours a day. We find that policy to be
insufficient indicia of state authority under the circumstances
of this case. At most, the existence of such a policy might have
the effect of authorizing official police action (such as an
arrest) conducted by an off-duty police officer. In such a
situation, the policy might be probative of "under color" action
if the defendant officer allegedly violated the plaintiff's
rights while engaging in activities normally associated with the
police function. See, e.g., Stengel v. Blecher, 522 F.2d 438,
441 (6th Cir. 1975) (finding indicia of "under color" element
where off-duty officer intervened in barroom brawl and used
state-issue weapon pursuant to police policy), cert. dismissed,
429 U.S. 118 (1976).
connection to state authority.    See Bonsignore v. City of New

York, 683 F.2d 635 (2d Cir. 1982) (holding that officer who used

police handgun to shoot his wife and then commit suicide did not

act under color of state law even though he was required to carry

the police gun at all times); cf. Rivera v. Laporte, 896 F.2d 691

(2d Cir. 1990) (finding assault occurred under color of state law

when officer used service revolver to beat plaintiff and then

arrested plaintiff for events giving rise to the assault).    The

district court properly granted judgment as a matter of law in

favor of Officers Otterbine and Echevarria on the assault-based

claim because a jury could not reasonably find that the assault

occurred under color of state law.    The district court's judgment

on that claim will be affirmed.
           B.    Mr. Barna's Unconstitutional Arrest Claim

           The complaint alleged that Officers Otterbine and

Echevarria maliciously created the false impression with other

law enforcement personnel that he was holding his children

hostage in his house and ultimately caused him to be arrested

without probable cause in violation of his constitutional rights.

The district court concluded, and the parties before us accept,

that Mr. Barna is essentially claiming his arrest was an

unreasonable seizure for purposes of the Fourth and Fourteenth

Amendments.     An arrest may violate the standards of the Fourth

Amendment if effected with unreasonable force, Graham v. Connor,

490 U.S. 386, 397 (1989), or if made without probable cause to

believe that a crime has been committed, Patzig v. O'Neil, 577

F.2d 841 (3d Cir. 1978); see Gerstein v. Pugh, 420 U.S. 103, 111

(1975).   The district court analyzed Mr. Barna's false arrest

claim under both of these theories and correctly concluded that

there was no basis in the evidence for such a claim.

           The test for an arrest without probable cause is an

objective one, based on "the facts available to the officers at

the moment of arrest."     Beck v. Ohio, 379 U.S. 89, 96 (1964);
Edwards v. City of Philadelphia, 860 F.2d 568, 571 n.2 (3d Cir.

1988).    Evidence that may prove insufficient to establish guilt

at trial may still be sufficient to find the arrest occurred

within the bounds of the law.    Henry v. United States, 361 U.S.

98, 102 (1959).    As long as the officers had some reasonable

basis to believe Mr. Barna had committed a crime, the arrest is

justified as being based on probable cause.     Probable cause need
only exist as to any offense that could be charged under the

circumstances.   Edwards v. City of Philadelphia, 860 F.2d at 575-

76.

          Once Mr. Barna brandished weapons in response to the

officers' conduct, the officers were justified in effecting his

arrest pursuant to New Jersey's aggravated assault statute, which

makes it a crime to "[k]nowingly under circumstances manifesting

extreme indifference to the value of human life point[] a firearm

. . . at or in the direction of another, whether or not the actor

believes it to be loaded."    N.J. Stat. Ann. § 2C:12-1(b)(4) (West

Supp. 1994).   The plaintiffs' evidence would not support a

determination that Officers Otterbine and Echevarria lacked

probable cause to believe that Mr. Barna had violated the

aggravated assault statute.

          As we have noted, the physical altercation between Mr.

Barna and Officers Otterbine and Echevarria had already concluded

when Mr. Barna returned from his house with a revolver and

pointed it into the cab of the truck in which the officers sat.

The officers reacted by jumping out of the truck, drawing their

weapons against Mr. Barna, and instructing him to drop his gun.

When the revolver slipped from his hands, Mr. Barna retrieved a

shotgun from the house, "shuffled" it while standing on his

porch, and then retreated to the house.    Under the objective

standard for probable cause, a jury could only conclude that a

reasonable officer under the circumstances would have been

justified in believing Mr. Barna was brandishing his firearms

with extreme indifference to human life in violation of N.J.
Stat. Ann. § 2C:12-1(b)(4).     Under this objective standard, Mr.

Barna's subjective motive in brandishing his guns is irrelevant,

as is the fact that he claims the guns were unloaded.12

               Because the plaintiffs submitted no evidence to show

that the officers' conduct in initiating an arrest under the

aggravated assault statute would have been unreasonable, Mr.

Barna's arrest occurred with probable cause as a matter of law,

and there was no violation of his Fourth Amendment rights on this

ground.13

            To the extent that Mr. Barna's unconstitutional arrest

claim rests on the allegation that his arrest was effected with

excessive force, the claim still must fail.    Subsequent to the

physical altercation with Mr. Barna, the officers only drew their

weapons and ordered Mr. Barna to drop his revolver.    The Barnas

have failed to present any evidence from which a jury could

conclude that such action involved the use of excessive force.

Common sense dictates a finding that the officers' conduct was

reasonable under the circumstances.    For all of these reasons,
the judgment on Mr. Barna's claim of unconstitutional arrest will

be affirmed.



12
 . Mr. Barna claims he was protecting his wife and attempting
to make a citizen's arrest.
13
 . With respect to Mr. Barna's assertion that the officers
created the false impression with other law enforcement officials
that he was involved in a hostage situation, we agree with the
district court that this was a reasonable view of the events
following Mr. Barna's brandishing of firearms and withdrawal into
his home.
             C.   Mrs. Barna's False Imprisonment Claim

           Count V of the Barnas' complaint alleges that Perth

Amboy officers Otterbine, Sanabria, and Ruiz unconstitutionally

detained Mrs. Barna when they removed her from her residence and

transported her to the Raritan Bay Medical Center.    Like an

arrest, forcible detention by the police may violate an

individual's Fourth Amendment rights against unreasonable

seizure.   Terry v. Ohio, 392 U.S. 1, 16 (1967) ("It must be

recognized that whenever a police officer accosts an individual

and restrains his freedom to walk away, he has 'seized' that

person.").   To find in favor of Mrs. Barna on her § 1983 forcible

detention claim, a jury would have to find that her removal and

detention were unreasonable.    Id. at 19; Thompson v, Spikes, 663

F. Supp. 627, 648 (S.D. Ga. 1987).    An unreasonable detention is

one conducted without lawful authority.   Chrisco v. Shafran, 507

F. Supp. 1312, 1321-22 (D. Del. 1981).    Therefore, if the

officers' conduct was authorized under New Jersey law and that

law was not itself constitutionally infirm as authorizing

unjustifiable seizures, her detention would be lawful and no

§ 1983 claim would lie.    Cf. Veiga v. McGee, 26 F.3d 1206, 1214
(1st Cir. 1994) (holding that a detention by police officers

pursuant to Massachusetts's protective custody statute would

amount to an unlawful seizure if the statute did not reasonably

authorize a detention for the reasons given).

           N.J. Stat. 26:2B-16 (West 1987) states:
                Any person who is intoxicated in a
           public place may be assisted to his residence
           or to an intoxication treatment center or
          other facility by a police officer or other
          authorized person. . . .

                               * * * *

               A police officer acting in accordance
          with the provisions of this section may use
          such force, other than that which is likely
          to inflict physical injury, as is reasonably
          necessary to carry out his authorized
          responsibilities. . . .

                             * * * *
               A person assisted to a facility pursuant
          to the provisions of this section, shall not
          be considered to have been arrested and no
          entry or other record shall be made to
          indicate that he has been arrested.


          The Barnas do not challenge the constitutionality of

this statute, and they cannot persuasively dispute that it

authorized the challenged actions of the officers.    Given Mrs.

Barna's conduct on the night in question, the officers would have

been justified in believing she was intoxicated.    Mrs. Barna

testified that, in attempting to prevent Officers Otterbine and

Echevarria from leaving after the altercation with her husband,

she "back-handed" Otterbine in the face, and that when the

officers responded to Mr. Barna's brandishing of his revolver,

she interfered by grabbing at Otterbine.    Once inside the police

car, she attempted to kick her way out.    At the hospital she was

"combative."   App. 318.   Although at trial, Mrs. Barna denied

that she was drunk that evening and explained that she did not

remember a blood test being administered at the hospital, she

also testified to the fact that she had admitted in

interrogatories and in a prior criminal trial that her breath
smelled like alcohol and that the hospital's toxicological report

showed her blood alcohol level to be twice the amount New Jersey

defines as being "under the influence."

          Mrs. Barna makes a final argument that the above-quoted

statute cannot make her detention lawful because it was an ad hoc

rationale produced by the officers on cross-examination.   Because

the standard for reasonableness in this context is an objective

one, however, we conclude that the statute provides a sufficient

legal basis for her detention, and we therefore affirm judgment

as a matter of law against her on this claim.



                              III.

          In addition to appealing the district court's order

granting judgment as a matter of law in favor of the Perth Amboy

officers, the Barnas appeal the dismissal of their complaint as

to Officer Charles Hawkins because of a failure to effectively

serve him.14

          Officer Hawkins is employed by the Township of

Woodbridge, and Alan J. Baratz is the attorney for the township.

On September 9, 1993, Baratz filed an answer to the Barnas'

complaint purportedly on behalf of "[t]he Township of Woodbridge,

Charles Hawkins, James Crilly, and Frank Wallace."   App. 1175.

At the close of this answer, Baratz expressly described his firm


14
 . In Count XI of their amended complaint the Barnas alleged
that Officer Hawkins intercepted Mr. Barna's telephone calls
without a warrant or any judicial authority, in violation of
their protected privacy interests.
as attorneys for all four of these defendants.      Thirteen days

later, on September 22, 1993, a conference was held before the

Magistrate Judge concerning in limine motions.      At the start of

the hearing, Baratz identified himself as follows: "I'm appearing

on behalf of the Township of Woodbridge, my client in this

matter, and also on behalf of . . . the City of Perth Amboy and

Defendant Poloka in reference to those issues which are in common

in regard to the claims against the public entities in this

case."   App. 953-54.     An attorney named Scott Moynihan identified

himself at the hearing as appearing on behalf of Frank Wallace.

Nobody purported to be appearing on behalf of Officer Hawkins.

            During the course of the hearing, Baratz stated that he

was not and never had been representing Officer Hawkins.      Also

during the course of the hearing, it was disclosed that the

Barnas had never served their complaint upon Officer Hawkins

personally.    Instead, it was discovered, they had served the

notice which they had meant for Officer Hawkins upon the clerk of

the Township of Woodbridge, who in turn had purported to receive

it on behalf of Hawkins.      The magistrate judge held that this was

improper service of process.      He stated, "I'm going to recommend

that Judge Lechner administratively dismiss this case pursuant to

Rule 4-J [sic] as to Mr. Hawkins."     App. 1003.

            On September 28, the trial began.    On October 5, 1993,

the district court dismissed the complaint against Hawkins with

prejudice for "failure of the plaintiffs to properly serve

process."    App. 1238.    According to the district court's letter

opinion of November 12, 1993, the Barnas then sought to "appeal"
to the district court the district court's order of October 5.

The district court refused to reconsider its order for the

following reasons:
          The Hawkins Dismissal was made pursuant to
          the recommendation of [Magistrate] Judge
          Cavanaugh, and upon representations made to
          Judge Cavanaugh by Plaintiffs' attorney.

                                * * * *

               Plaintiffs knew of Judge Cavanaugh's
          recommendation of dismissal but did not
          appeal to this court.


Barna v. Otterbine, No. 92-5133, letter op. at 3 (D.N.J. Nov. 12,

1993).

          On appeal to this court, the Barnas contend that they

never had an opportunity to object to the magistrate judge's

recommendation because, while he indicated he was going to make a

recommendation to the trial judge, he never filed a document

reflecting that recommendation.    There was, therefore, no

document from which the Barnas could appeal and to which they

could state their objections.    The record confirms that no such

document was filed.   For this reason, the Barnas argue, the

district court's dismissal of the complaint as to Officer Hawkins

was improper.   We agree.

          Rule 72 of the Federal Rules of Civil Procedure gives

litigants an opportunity to respond to a magistrate judge's

"recommendation for disposition of [a] matter."    That rule

contemplates "entry into the record" of the magistrate's

recommendation and service of that recommendation on the parties.

Fed. R. Civ. P. 72.   The applicable local court rule implementing
Rule 72 requires submission of the magistrate's recommendation to

the district court.   See D.N.J. Local R. 40A(2).

          Because there was no recommendation of the magistrate

judge that the complaint be dismissed as to Officer Hawkins for

lack of proper service, we will reverse the judgment in his favor

and remand to the district court for consideration of the Barnas'

objections to the dismissal.   The Barnas do not contest the

magistrate judge's finding that Hawkins had not been properly

served; they instead argue that Hawkins answered the complaint

and thereby waived any objection to improper service of process.

On remand, the district court should determine whether the answer

filed by Baratz was authorized by Hawkins.   If the answer was

authorized, any imperfection in service of process should be

deemed waived.   See Government of V.I. v. Sun Island Car Rentals,

Inc., 819 F.2d 430, 433 (3d Cir. 1987).   If the answer was not an

authorized response from Officer Hawkins, the district court

should then consider whether the circumstances do or do not

constitute "good cause" under Fed. R. Civ. P. 4(m).   If they do,

an extension of time for service of process should be granted.

If they do not, the claim against Hawkins should be dismissed

with prejudice.15
15
 . Officer Hawkins engaged Robert Musto, Esquire, to represent
him in connection with this appeal. Hawkins suggests that we
should affirm the judgment below because he was a party during
the trial (the order dismissing him not having been entered until
the day after the trial concluded), and the Barnas offered no
evidence at trial in support of their claim against him. We
decline to adopt this suggestion. Our mandate, however, will be
without prejudice to Hawkins' right to renew this contention
before the district court which is in a far better position than
we are to determine the reasonableness of the Barnas' view that
                              IV.

          We will reverse the district court's order dismissing

the complaint against Officer Hawkins and remand for further

proceedings consistent with this opinion.   In all other respects,

we will affirm the judgment of the district court.




(..continued)
evidence against Hawkins would have been inappropriate. In
support of this view, the Barnas stress that (1) they described
at the pre-trial conference evidence that they intended to offer
against Hawkins, but (2) the magistrate judge stated that he was
recommending dismissal of Hawkins, and (3) the trial judge
determined to go forward with trial at a time when no one was
representing Hawkins. The district court is also in a better
position to determine whether the Barnas acted reasonably in
failing to bring the answer filed on behalf of Hawkins to the
attention of the magistrate promptly following the conference of
September 22, 1993. That issue was not briefed before us. We
therefore express no opinion on it, and our mandate will be
without prejudice to its being raised on remand.
