                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-6-2003

Herman v. Millville
Precedential or Non-Precedential: Non-Precedential

Docket 02-2040




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Recommended Citation
"Herman v. Millville" (2003). 2003 Decisions. Paper 572.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/572


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                                                                   NOT PRECEDENTIAL

                     IN THE UNITED STATES COURT OF APPEALS
                              FOR THE THIRD CIRCUIT
                            ____________________________

                                      NO. 02-2040
                              ___________________________

                                   DEBBIE A. HERMAN,
                                            Appellant

                                               v.

         CITY OF MILLVILLE; CITY OF MILLVILLE POLICE DEPARTMENT;
       PATRICIA AIKEN, PATROLMAN; CHRISTOPHER GROFF, PATROLMAN;
         MARIA BONILLA; SHERRY TROUT; JILLIAN BONILLA; JOHN DOE,
         LAW ENFORCEM ENT OFFICERS and/or EMPLOYEES OF THE CITY
               OF M ILLVILLE (1-100) fictitious names, jointly, severally,
                              and/or in the alternative
                        _____________________________

                      On Appeal From the United States District Court
                              For the District of New Jersey
                                 (D.C. No. 00-cv-02930)
                           District Judge: Jerome B. Simandle
                           _____________________________

                                  Argued February 25, 2003

  Before: BECKER * , Chief Judge, SCIRICA ** , Circuit Judge, and SHADUR *** , District
                                       Judge

                              (Filed    May 5, 2003            )



  *
      Judge Becker completed his term as Chief Judge on May 4, 2003.
  **
       Judge Scirica succeeded to the position of Chief Judge on May 4, 2003.
  ***
     Honorable Milton I. Shadur, United States District Judge for the Northern District of
Illinois, sitting by designation.
ARTHUR J. MURRAY, ESQUIRE (Argued)
Jacobs & Barbone, P.A.
1125 Pacific Avenue
Atlantic City, New Jersey 08401

              Counsel for Appellant

THOMAS B. REYNOLDS, ESQUIRE
JOSEPH L. MARCZAK, ESQUIRE (Argued)
Reynolds & Drake
29 North Shore Road
P.O. Box 345
Absecon, New Jersey 08201

              Counsel for Appellees City of Millville, City of Millville Police
              Department, Patricia Aiken and Christopher Groff

ROBERT P. MERENICH, ESQUIRE (Argued)
Gemmel, Todd & Merenich
767 Shore Road
P.O. Box 296
Linwood, New Jersey 08221

              Counsel for Appellees Maria Bonilla and Sherry Trout


                                   _________________________

                                    OPINION OF THE COURT
                                   __________________________

BECKER, Chief Judge.

       This is an appeal by plaintiff Debbie A. Herman from an order of the District

Court granting summary judgment to the defendants. The defendants are the City of

Millville, New Jersey, its Police Department, and a number of City employees. Herman

claims that her civil rights were infringed when she was forced to face criminal charges in

                                             2
connection with two incidents in which she was charged with using her car to intimidate

members of the Millville Police Department. Herman and her husband William Herman,

then the Millville Chief of Police, were at odds with various members of the Millville

Police Department, which, Herman asserts, led to an incomplete investigation of the facts

surrounding the incidents, and an illegal arrest. However, since we conclude that there

was (nonetheless) probable cause to charge Debbie Herman, we will affirm the judgment

of the District Court.

                                              I.

       The two incidents occurred on June 29 and July 3, 1998. Defendant Sherry Trout,

a Millville Police Department clerk, told the investigating officer that as she and Jillian

Bonilla, the six year-old daughter of M aria Bonilla, a clerk/translator with the M illville

Municipal Court, were walking across the Wal-Mart parking lot in Millville on June 29,

1998, Debbie Herman accelerated her car towards the pair in an attempt to place them in

fear of bodily injury. 1 Millville Police Officer Patricia Aiken stated that on July 3, 1998,

while she was directing traffic at an intersection where a two-car accident had occurred,

Herman first drove her vehicle through the intersection without incident and then returned

ten minutes later and made a left turn, almost striking her, after she had motioned for




  1
    Trout had recently filed a claim against the City of Millville and William Herman,
alleging sexual harassment and sexual discrimination. She had also named Debbie
Herman in the lawsuit, alleging that Debbie Herman had pushed her and made pig noises
at her during a retirement dinner.

                                               3
Herman to stop.2

       Herman was charged with two counts of vehicular aggravated assault under

N.J.S.A. 2C:12-1(b)(1), two counts of harassment under N.J.S.A. 2C:33-4(c), and

reckless driving under N.J. S.A. 39:4-96 (in connection with the June 29, 1998 incident).

She was also charged with reckless driving and attempting to purposely or recklessly

cause bodily injury to a law enforcement officer while in the performance of her duties in

violation of N.J.S.A. 2C:12-1(b)(5)(a) (in connection with the July 3, 1998 incident). The

cases were referred to the Cumberland County Prosecutor’s Office, which conducted an

investigation into the incidents, and reduced the aggravated assault charge to a simple

assault charge. The cases were tried together in the Millville Municipal Court by Judge

Thomas Heim, who dismissed the charges after hearing testimony, but found Debbie

Herman guilty of a reduced charge of careless driving in connection with the July 3, 1998

incident and fined her $150 plus costs. Herman brought suit in the United States District

Court for the District of New Jersey; she appeals the District Court’s grant of summary

judgment on the following claims: (1) under 42 U.S.C. § 1983, alleging a violation of the

Fourth Amendment; (2) false arrest/false imprisonment; (3) malicious prosecution; (4)

negligence; (5) negligent training and/or supervision by the City and the Police

Department; and (6) intentional and/or negligent infliction of emotional distress.

       The District Court had jurisdiction over the federal and state law based claims

  2
   The City had paid $85,000 to Aiken to settle a sexual discrimination suit which she
had brought against the City, naming William Herman as a defendant.

                                             4
pursuant to 28 U.S.C. §§ 1331, 1334 and we have jurisdiction pursuant to 28 U.S.C. §

1291. Our review of a grant of summary judgment is plenary. Fogleman v. Mercy Hosp.,

Inc., 283 F.3d 561, 566 (3d Cir. 2002).

                                             II.

       The central issue here is whether the officers had probable cause to arrest Herman,

since probable cause is a complete defense to each and every claim.3 We must affirm the

grant of summary judgment on these claims if there was probable cause to arrest her.

Probable cause exists, if at the time of the arrest, “the facts and circumstances within [the

officers’] knowledge and of which they had reasonably trustworthy information were

sufficient to warrant a prudent man in believing that the [suspect] had committed or was

committing an offense.” Beck v. Ohio, 379 U.S. 89, 91 (1964).

                              A. The June 29, 1998 Incident

       In connection with the Wal-Mart incident, Herman was charged with two counts of

  3
    The Section 1983 claim must fail if there was probable cause to file charges, for then
there was no Fourth Amendment violation. See U.S. Const. amend. IV (“The right of
people to be secure . . . against unreasonable search and seizures, shall not be violated,
and no W arrants shall issue, but upon probable cause.”) (emphasis added). See also
Wildoner v. Borough of Ramsey, 744 A.2d 1146, 1154 (N.J. 2000) (“[P]robable cause is
an absolute defense to Plaintiff’s false arrest, false imprisonment, and malicious
prosecution claims.”). To set forth a claim for negligence, the plaintiff must prove: (1)
the existence of a duty; (2) the breach of the duty; and (3) proximate causation. See
LaBracio Family P’Ship v. 1239 Roosevelt Avenue, Inc., 773 A.2d 1209, 1213 (N.J.
Super. 2001). Assuming a duty existed between Herman and the defendants, there was no
breach if charges were filed against her based on probable cause. Likewise, the City and
the Police Department did not negligently supervise Aiken and Groff if they acted on
probable cause. Finally, the defendants did not negligently or intentionally inflict
emotional distress on Herman if there was probable cause to file charges against her.

                                              5
vehicular aggravated assault under N.J.S.A. 2C:12-1(b)(1), two counts of harassment

under N.J.S.A. 2C:33-4(c), and reckless driving under N.J.S.A. 39:4-96. In support of

these charges, investigating officer Groff had a statement from Sherry Trout that Debbie

Herman had accelerated her car towards Trout and six-year-old Jillian Bonilla and had

come very close to hitting them. Groff also had a statement from Maria Bonilla, Jillian’s

mother, that her daughter told her about the incident. Both Trout and Jillian Bonilla

stated that they believed that Herman had tried to run them down.

       N.J.S.A. 2C:33-4(c)defines harassment as “with purpose to harass another”

engaging in a course “of alarming conduct or of repeatedly committed acts with purpose

to alarm or seriously annoy such other person.” It thus appears, from these statements,

that a prudent officer could believe that Herman engaged in a course of alarming conduct

with the purpose to alarm or seriously annoy Trout and Jillian Bonilla. N.J.S.A. 2C:12-

1(b)(1) provides that “[a] person is guilty of aggravated assault if he . . . [a]ttempts to

cause serious bodily injury to another, or causes such injury purposely or knowingly or

under circumstances manifesting extreme indifference to the value of human life

recklessly causes such injury.” Based on Trout and Bonilla’s statements that Herman

accelerated her car towards Trout and Jillian Bonilla and came very close to hitting them,

it appears that a prudent officer could believe that Herman had attempted to cause serious

bodily injury. Likewise, based on Trout and Bonilla’s statements, a prudent officer could

believe that Herman had committed the crime of reckless driving, which under N.J.S.A.



                                               6
39:4-96 provides that “[a] person who drives a vehicle heedlessly, in willful or wanton

disregard of the rights or safety of others, in a manner so as to endanger, or be likely to

endanger, a person or property, shall be guilty of reckless driving.” Once again, Trout

and Bonilla’s statements that Debbie Herman accelerated her car towards Trout and

Jillian Bonilla, coming very close to hitting them, would lead a prudent officer to believe

that Herman had driven her vehicle in willful disregard of the safety of others.

       Debbie Herman counters that Groff should have interviewed her (and her husband

William Herman who was in the passenger seat during the Wal-Mart incident) before

filing charges; she maintains that the statements of Trout and Bonilla alone were not

“reasonably trustworthy” because the parties had a history of animosity. 4 However, the

history of animosity cuts both ways; it may also make the statements more trustworthy,

because it suggests that Herman had a reason to harass Trout and Jillian Bonilla. The

District Court recognized this when it observed that “[a] reasonable person could find that

Mrs. Herman could have been motivated by previous contentious interactions to cause

fear in M rs. Trout and Jillian when presented with this opportunity.” Herman v. City of

Millville, No. 00-2930, slip op. at 14 (D.N.J. March 21, 2002). At all events, probable

cause does not require the officer to investigate every lead or that the officer obtain proof



  4
   Herman also alleges that Groff should not have conducted the investigation because he
had a contentious history with the Hermans; Groff had voiced criticism about William
Herman’s performance as Chief of Police. However, probable cause existed if Groff had
sufficient evidence to lead a reasonably prudent officer to believe Debbie Herman had
committed an offense, whatever bias Groff may have had.

                                              7
beyond a reasonable doubt. See Trabal v. Wells Fargo Armored Service Corp., 269 F.3d

243, 251 (3d Cir. 2001).

       The investigating officer is not in the business of weighing facts and credibility;

that is the domain of the court. The officer must simply have information that is

“reasonably trustworthy” to allow a prudent officer to believe that a crime has taken

place. See Sharrar v. Felsing, 128 F.3d 810, 818 (3d Cir. 1997). Moreover, the fact that

the case was referred to the Cumberland County Prosecutor’s Office, which determined

that there was probable cause and sufficient proof to go to trial, suggests that charges

were not filed simply because of hostility between the Hermans and the Millville Police

Department. 5

                               B. The July 3, 1998 Incident

       As for the events of July 3, 1998, Aiken filed charges against Herman for reckless

driving and attempting to purposely or recklessly cause bodily injury to a law enforcement

officer while in the performance of her duties, pursuant to N.J.S.A. 2C:12-1(b)(5)(a),

which defines the offense as a simple assault against “[a]ny law enforcement officer

acting in the performance of his duties while in uniform or exhibiting evidence of his

authority or because of his status as a law enforcement officer.” A simple assault is

defined as being committed by one who “(1) [a]ttempts to cause or purposely, knowingly

  5
   The fact that the Cumberland County Prosecutor’s Office downgraded the charges
from aggravated to simple assault does not establish that there was not probable cause to
charge Herman with aggravated assault since aggravated assault simply requires a more
culpable state of mind than simple assault.

                                              8
or recklessly causes bodily injury to another; or (2) [n]egligently causes bodily injury to

another with a deadly weapon; or (3) [a]ttempts by physical menace to put another in fear

of imminent serious bodily injury.” N.J.S.A. 2C:12-1(a).

       Aiken testified before the Municipal Court that she motioned to Herman to stop

her car and “when my back was turned, I thought I was going to be hit. She passed so

close to me. She may have touched my pants, and actually I bent my legs because I

thought that the car was going to pin me in.” Herman contends that Aiken’s account was

not “reasonably trustworthy” to support probable cause because Aiken should not have

been allowed to investigate the incident herself, since she was the one who had reported it

and because Aiken and Herman had a contentious history. However, probable cause can

exist based only on the eyewitness account of a police officer. See Rogers v. Powell, 120

F.3d 446, 453 (3d Cir. 1997) (“[P]robable cause to arrest exists when the facts and

circumstances within the arresting officer’s knowledge are sufficient in themselves to

warrant a reasonable person to believe that an offense has been or is being committed by

the person to be arrested.”) (quoting Orsatti v. New Jersey State Police, 71 F.3d 480, 483

(3d Cir. 1995)). We conclude that based on Aiken’s testimony, a prudent officer could

believe that Debbie Herman had committed a simple assault, i.e., “[a]ttempt[ed] by

physical menace to put another in fear of imminent serious bodily injury” or

“[a]ttempt[ed] to cause . . . bodily injury,” N.J.S.A. 2C:12-1(a), against a “law

enforcement officer acting in the performance of his [or her] duties while in uniform or



                                              9
exhibiting evidence of his [or her] authority or because of his [or her] status as a law

enforcement officer.” N.J.S.A. 2C:12-1(b)(5)(a). Based on this evidence a prudent officer

could also believe that Herman had committed the crime of reckless driving, defined as

“driv[ing] a vehicle heedlessly, in willful or wanton disregard of the rights or safety of

others, in a manner so as to endanger, or be likely to endanger, a person or property.”

N.J.S.A. 39:4-96.

       On the basis of the foregoing, we agree with Judge Simandle that no reasonable

jury could find that there was not probable cause to arrest Herman for the offenses

described. Accordingly, the judgment of the District court will be affirmed.6




  6
    Even if there was not probable cause, Herman cannot bring a Section 1983 claim
against any of the defendants because: (1) Bonilla and Trout were not acting under “color
of law”; (2) Herman cannot show that the City of Millville or the Police Department were
“deliberately indifferent,”which is necessary to establish municipal liability; and (3) Groff
and Aiken are entitled to qualified immunity. The negligent infliction of emotional
distress claim cannot succeed even if there was not probable cause, because there was no
death or serious injury. The intentional infliction of emotional distress claim will also fail
because the defendants’ conduct was not “outrageous,” even if they acted without
probable cause.

                                             10
TO THE CLERK:

    Please file the foregoing opinion.

                                               /s/Edward R. Becker
                                         _____________________________
                                               Circuit Judge




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