Case Information
*2 Before: SCIRICA, NYGAARD and McKEE, Circuit Judges
(Filed February 16, 1995)
CHARLES F. WETHERELL, ESQUIRE (Argued)
Meinders & Wetherell
555 Madison Avenue
P.O. Box 900
Lakewood, New Jersey 08701
Attorney for Appellants
DAVID F. LUVARA, ESQUIRE (Argued)
Slimm & Goldberg
216 Haddon Avenue
P.O. Box 2222
Westmont, New Jersey 08108
Attorney for Appellees
Township of Manalapan, Chief Jimmie R. Potts, Helen K. Kirkland, Thomas White, Matthew Trembow, Peter Vanderweil, Thomas Wallace, Evelyn Schade, Mary Caccamo, Officer Ascough, Officer Visconi, Officer Bruno, Officer McCormick, Officer Rumolo and Officer Cochran
MARK T. STOPA, ESQUIRE
Lushan, McCarthy, Goonan & Stopa
284 Harvard Street
P.O. Box 1604
Brookline, Massachusetts 02146
Attorney for Appellee
Chief Jimmie R. Potts
STEVEN B. PORTNOFF, ESQUIRE
Law Office of Steven B. Portnoff
26 Plaza Nine
Manalapan, New Jersey 07726
Attorney for Appellee
Thomas White
GEORGE WILGUS, III, ESQUIRE (Argued)
Lenox, Socey, Wilgus, Formidoni & Casey
3131 Princeton Pike
Trenton, New Jersey 08648
Attorney for Appellees
Englishtown-Manalapan First Aid Squad,
Edward T. Moriarty, Tracie Zachary,
James Paulser and Joseph Bokenko
__________________ OPINION OF THE COURT __________________
SCIRICA, Circuit Judge.
Plaintiffs Alphonse W. Groman and Jane M. Groman appeal the district court's grant of summary judgment on their civil rights claims to defendants Township of Manalapan, the Englishtown-Manalapan First Aid Squad, members of the first aid squad and Manalapan Police Department, and several unknown defendants.
The dispute arises out of the arrest of Mr. Groman at his residence on February 17, 1990. Plaintiffs brought this civil rights action under 42 U.S.C. § 1983 (1988), alleging certain constitutional violations based on: use of excessive force, false arrest, false imprisonment, failure to provide necessary medical treatment, unlawful search and seizure, conspiracy to violate constitutional rights, and denial of right to counsel.
The district court granted summary judgment to all defendants on all constitutional claims and declined to exercise supplemental jurisdiction on the state law claims. We will affirm on all counts except the claim of excessive force against police officers Helen K. Kirkland, Matthew Trembow, and Peter *6 Vanderweil, and the claims of false arrest and false imprisonment against police officer Kirkland.
I.
On February 17, 1990, Alphonse W. Groman and his wife, Jane M. Groman, were in their home in Manalapan, New Jersey, when Mr. Groman, age seventy-five, allegedly suffered a minor stroke. Mrs. Groman telephoned her neighbor, James W. Thomson, who came over with his son, James E. Thomson, and then called the police for first aid. Officer Helen K. Kirkland of the Township of Manalapan Police Department was the first to respond.
When Kirkland arrived at the Groman residence, James W. Thomson and Mrs. Groman were attempting to place Mr. Groman into a chair. Kirkland entered the room and proceeded toward Mr. Groman, who resisted her contact and demanded to go outside. Mr. Groman admitted to consuming one alcoholic drink sometime earlier.
Exactly what happened next is hotly contested.
Plaintiffs contend Mr. Groman was standing still, arms to his side, when Kirkland struck him in the mouth. This blow, plaintiffs maintain, was an unprovoked assault against a small elderly man, who, while uncooperative, did not deserve to be struck. Defendants assert Kirkland put a hand on Groman's *7 shoulder in an effort to get him to sit down. Immediately thereafter Groman punched Kirkland in the face, cutting and bruising her cheek, and began using abusive language. As he prepared to hit her again, Kirkland responded out of fear for her own safety and hit Groman. She observed that Groman was combative and that he smelled of alcohol. According to (..continued)
A: I was watching [Mr. Groman] all this time. As I say, I backed away, and Officer Kirkland looked at [Mr. Groman] and said to him, Do you know you hit an officer?
Q: Okay.
A: This is when I came forward with--I guess my mouth must have been opened ready to say he didn't touch you, because [Mr. Groman] was just standing there, his head down a bit, his arms to his side, he didn't move an inch, and there was no way in hell that he could have hit her.
Jane Groman Dep., Plaintiffs' App. at 375. . Kirkland testified at Groman's state trial to the following:
Q: What happened after [Mr. Groman] hit you? A: Well, it seemed that we were going to--he was going to hit me again. I hit the subject back and then I grabbed both his hands with mine and locked them, and he got up, and he was--it was like he was going to fight me again. So I held his hands just like--almost like a kid, up in the air, and he was trying to bend my hands back . . . .
Kirkland Test., Plaintiffs' App. at 120. Kirkland also testified:
Q: Did Mr. Groman do anything beyond his striking you that you testified to, ma'am, to put you in such fear of your safety?
. . . . *8 plaintiffs, Groman was a stroke victim, disoriented and a bit aggressive, who was assaulted by a police officer dispatched to assist him. Defendants portray Groman as a violent drunk and claim Kirkland's response was the appropriate reaction to a dangerous situation.
Kirkland called the Manalapan Police Department for backup. Officer Matthew Trembow soon arrived to aid Kirkland and the local first aid squad arrived shortly thereafter, followed by Lieutenant Peter Vanderweil. Members of the first aid squad attempted to provide medical assistance to Groman but he rebuffed them. Groman continued to be belligerent and to curse at the police and first aid squad. The first aid squad members left without treating him.
The police officers proceeded to arrest Groman, but he was not cooperative. After a brief struggle which plaintiffs attribute to Groman's limited mobility in his right arm and defendants to Groman's attempt to resist arrest, the officers placed Groman in handcuffs. As the police took Groman out to the police car, he allegedly sustained an injury to his face and lost his dentures.
Upon arrival at the police station, the officers
removed Groman from the car. Here again the parties vigorously dispute what occurred. Plaintiffs maintain, based on Groman's (..continued)
A: At this time he had started to stand up, and he had had his fist cocked back again.
Kirkland Dep., Plaintiffs' App. at 752.
hazy recollection, that the police officers dragged Groman out of the car feet first causing his head to hit the pavement. After picking him up, the officers stomped on his toe, allowed him to fall again, and then one of the officers jumped on him.
Defendant police officers say that as they moved Groman from the police car to the station he fell, knocking his head against the ground, and that Kirkland lost her balance trying to hold Groman up and fell with him. Once inside the police station, plaintiffs contend the officers left Groman handcuffed for some time. The first aid squad was called again, but Groman again refused treatment. Groman's daughter asserts his pants were doused in alcohol when she picked him up from the police station. Plaintiffs maintain that during the course of these events Groman sustained black eyes and minor cuts and bruises to the face and hands. The police charged Groman with aggravated assault, disorderly conduct, and resisting arrest. He was acquitted on all counts after a bench trial in the Manalapan Township Municipal Court.
II.
We exercise plenary review over the grant of a motion
for summary judgment. Oritani Sav. & Loan Ass'n v. Fidelity &
Deposit Co.,
Summary judgment is appropriate when "the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law." Fed. R. Civ. P.
56(c). After one party has filed a properly supported summary
judgment motion, the party opposing it must present sufficient
evidence for a reasonable jury to find in its favor. Anderson v.
Liberty Lobby, Inc.,
III.
Section 1983 of 42 U.S.C. does not create substantive
rights, but provides a remedy for the violation of rights created
by federal law. Oklahoma City v. Tuttle,
A. Claims Against the Police
An excessive force claim under § 1983 arising out of
law enforcement conduct is based on the Fourth Amendment's
protection from unreasonable seizures of the person. Graham v.
Connor,
In this case, summary judgment is appropriate if, as a matter of law, the evidence would not support a reasonable jury finding that the police officers' actions were objectively unreasonable. Without commenting on the weight of the evidence, we believe it could support a finding that Kirkland hit Groman when Groman was suffering from a minor stroke, and that Groman's obstreperous behavior did not warrant Kirkland's reaction. We conclude there are material issues of disputed fact, and that a jury could decide that Kirkland and the other officers acted unreasonably and used excessive force. Further, a jury could find the officers used excessive force in transporting Groman to the police station.
Should a jury decide Groman did not hit Kirkland, then
he could have committed only the crimes of disorderly conduct and
resisting arrest. In evaluating the Graham factors under the
facts of this case, we conclude that neither offense is
particularly severe, and that a jury could determine Groman did
not present a serious threat to Kirkland. Cf. Frohmader v.
Wayne,
(8th Cir. 1984) (jury decided excessive force claim when disputed fact was whether plaintiff punched police officer to provoke officer's response).
In sum, we hold only that there are material issues of disputed fact and credibility determinations that cannot be decided on a motion for summary judgment. [5] We will reverse the district court's grant of summary judgment on plaintiffs' excessive force claim against officers Helen K. Kirkland, Matthew Trembow, and Peter Vanderweil. [6]
*14
Our holding on the excessive force claim does not
automatically compel reversal of the grant of summary judgment on
plaintiffs' other claims against the police. To prevail on their
false arrest claim, plaintiffs would have to demonstrate at trial
that the police lacked probable cause to arrest Groman. "The
proper inquiry in a section 1983 claim based on false arrest
. . . is not whether the person arrested in fact committed the
offense but whether the arresting officers had probable cause to
believe the person arrested had committed the offense." Dowling
v. City of Phila.,
N.J. Stat. Ann. § 2C:12-1(a), (b)(5)(a) (West 1982 & Supp. 1994). . The New Jersey statute provides:
2C:33-2. Disorderly conduct a. Improper behavior. A person is
guilty of a petty disorderly persons offense, if with purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof he (1) Engages in fighting or threatening, or in violent or tumultuous behavior; or (2) Creates a hazardous or physically dangerous condition by any act which serves no legitimate purpose of the actor.
b. Offensive language. A person is guilty of a petty disorderly persons offense if, in a public place, and with purpose to offend the sensibilities of a hearer or in reckless disregard of the probability of so doing, he addresses unreasonably loud and offensively coarse or abusive language, given the circumstances of the person present and the setting of the utterance, to any person present.
"Public" means affecting or likely to affect persons in a place to which the public or a substantial group has access; among the places included are highways, transport facilities, schools, prisons, apartment houses, places of business or amusement, or any neighborhood.
Id. § 2C:33-2.
. The New Jersey statute provides in part: 2C:29-2. Resisting arrest; eluding officer a. A person is guilty of a disorderly persons offense if he purposely prevents a *16 a factual issue. Deary v. Three Un-Named Police Officers, 746 F.2d 185, 191 (3d Cir. 1984). Summary judgment can be granted in an appropriate case on probable cause, id. at 192, but it is not proper here. Because we find that a reasonable jury could find that the police did not have probable cause to arrest Groman, we reverse on this count as to police officer Helen K. Kirkland.
In order for the police to have properly arrested Groman, they must have had probable cause on the aggravated assault or disorderly conduct charges. This is because the resisting arrest charge could not have provided probable cause for the arrest ab initio. Additionally, should a jury decide that Groman did not hit Kirkland, it could determine that Kirkland lacked probable cause to arrest him on the aggravated assault charge. We are then left to consider the disorderly conduct charge.
A disorderly conduct charge under § 2C:33-2 requires that the behavior have been in "public." N.J. Stat. Ann. § 2C:33-2 (West 1982 & Supp. 1994). In seeking to determine whether that element could be met here, we turn to New Jersey (..continued)
law enforcement officer from effecting a lawful arrest . . . .
Id. § 2C:29-2.
. This reasoning does not apply to officers Trembow and
Vanderweil. Summary judgment is appropriate as to them because
the uncontested evidence demonstrates that Kirkland told each of
them that Groman had punched her. This is sufficient for them to
have believed probable cause existed, and also insulates them
from plaintiffs' claim of false imprisonment, Baker v. McCollan,
case law. In State v. Finate,
The opinion in Finate, in conjunction with the current statutory text, [12] leads us to conclude that Groman could not have committed the offense of disorderly conduct in his own home. [13] *18 The police could not, therefore, have had probable cause to arrest him on that charge. Since it is a jury question whether (..continued)
(a) Offense defined .--A person is guilty of disorderly conduct if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he:
. . . .
(3) uses obscene language, or makes an obscene gesture;
. . . .
(c) Definition .--As used in this section the word "public" means affecting or likely to affect persons in a place to which the public or a substantial group has access; among the places included are highways, transport facilities, schools, prisons, apartment houses, places of business or amusement, any neighborhood, or any premises which are open to the public.
(quoting 18 Pa. Cons. Stat. § 5503(a)(3)). In Weiss , the
defendant had screamed epithets at the police officer who broke
down her door to arrest her husband. Id. at 854. The court
reversed defendant's conviction because the requirement that the
conduct be in "public" was not satisfied. Id. at 855-57.
Likewise, in People v. Jerome ,
*19 the police had probable cause to arrest Groman on the aggravated assault charge, and since the other two charges could not have provided probable cause for Groman's arrest, we will reverse the district court's grant of summary judgment on the false arrest claim as to police officer Kirkland.
A false imprisonment claim under 42 U.S.C. § 1983 is
based on the Fourteenth Amendment protection against deprivations
of liberty without due process of law. Baker v. McCollan, 443
U.S. 137, 142 (1979). The Court in Baker made it clear an arrest
based on probable cause could not become the source of a claim
for false imprisonment. Id. at 143-44. On the other hand, where
the police lack probable cause to make an arrest, the arrestee
has a claim under § 1983 for false imprisonment based on a
detention pursuant to that arrest. Thomas v. Kippermann, 846
F.2d 1009, 1011 (5th Cir. 1988). A false imprisonment claim
under § 1983 which is based on an arrest made without probable
cause is grounded in the Fourth Amendment's guarantee against
unreasonable seizures. Barna v. City of Perth Amboy, 42 F.3d
809, 820 (3d Cir. 1994); Guenther v. Holmgreen,
Plaintiffs also assert a claim under § 1983 based upon
a failure to provide necessary medical treatment. Failure to
provide medical care to a person in custody can rise to the level
of a constitutional violation under § 1983 only if that failure
rises to the level of deliberate indifference to that person's
serious medical needs. Walmsley v. City of Phila. ,
Plaintiffs' three other claims against the police under § 1983--unlawful search and seizure, conspiracy, and denial of right to counsel--may be disposed of briefly. While plaintiffs raised the first two claims in their complaint, the district court properly observed that they have provided no factual basis upon which a reasonable jury could find in their favor. Indeed, plaintiffs present these claims in the form of conclusory allegations, and a close review of the record reveals no factual basis upon which they could be sustained. Accordingly, we will affirm the district court on these claims. Finally, plaintiffs have not appealed the grant of summary judgment on the claim of a denial of the right to counsel.
B. Claim Against the Township of Manalapan
Plaintiffs urge us to sustain their cause of action
against the Township of Manalapan under § 1983 for negligent
supervision. Plaintiffs recognize the Supreme Court in Monell v.
Department of Social Services,
It is clear that plaintiffs' claim against the
municipality is unsubstantiated. Plaintiffs assert two bases for
their claim of liability based on municipal policy. First, they
make vague assertions about the police department's failure to
investigate other wrongdoings, and second, they point to the
incident in this case. Plaintiffs' allegations about the
Township's failure to investigate have virtually no evidentiary
support in the record, and this case standing alone does not
provide sufficient proof of a policy or custom to satisfy the
dictates of § 1983. Tuttle ,
C. Claims Against the Englishtown-Manalapan First Aid Squad and its Members
We turn now to plaintiffs' claims against defendants Englishtown-Manalapan First Aid Squad and squad members Edward T. Moriarty, Tracie Zachary, James Paulser, and Joseph Bokenko for *23 conspiracy to violate constitutional rights and for failure to provide necessary medical treatment. The first aid squad's involvement in the alleged conduct forming the basis of these claims was minimal.
The first aid squad attempted to treat Groman at his house and later at the police station. Both times the police caused the squad to be dispatched. It is uncontroverted that Groman adamantly refused the squad members' medical attention, although at the police station one squad member was able to take Groman's blood pressure. Groman repeatedly and insistently called the squad members incompetent and rejected their medical attention at the police station even after they informed him he could go to the hospital even though he had been arrested.
As we have noted, a suit under § 1983 requires the
wrongdoers to have violated federal rights of the plaintiff, and
that they did so while acting under color of state law. 42
U.S.C. § 1983. As the "under color of state law" requirement is
part of the prima facie case for § 1983, the plaintiff bears the
burden of proof on that issue. West v. Atkins ,
1359, 1363 (3d Cir. 1993).
(..continued)
1042, 1065-66 (3d Cir. 1991) (observing a mere passing reference
is insufficient to bring an issue before the court on appeal),
cert. denied,
*24
Where the actors are not state or municipal officials,
but are private individuals or associations, we still must
address whether their activity can nevertheless be deemed to be
under color of law. The inquiry is fact-specific. Lugar v.
Edmondson Oil Co.,
The color of state law
[15]
analysis can be difficult, but
is grounded in a basic and clear requirement, "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,
Supreme Court jurisprudence outlines several approaches
or discrete tests for detecting the presence of action under
color of state law.
[16]
The tests have included the exclusive
. The "under color of state law" inquiry under 42 U.S.C. §
1983 and the "state action" requirement under the Fourteenth
Amendment to the United States Constitution are identical in most
contexts. Robison v. Canterbury Village, Inc.,
government function approach, see Flagg Bros., Inc. v. Brooks,
(..continued) misleading. The Court seldom describes its decisions as creating a structure of discrete state action theories. Rather, the Court's decisions follow the more traditional judicial style of deciding each case based on the facts of the case, guided by similarly fact-specific decisions of the past. In addition, the Court uses different phrases to refer to the same or similar theories. . . . Nonetheless, the Court's state action decisions do create some clearly distinguishable approaches to the state action issue.
Henry C. Strickland, The State Action Doctrine and the Rehnquist Court, 18 Hastings Const. L.Q. 587, 596-97 (1991) (citations
omitted). We also observe that lower courts have routinely
treated the state action inquiry as including several discrete
tests. See, e.g., McKeesport Hosp. v. Accreditation Council, 24
F.3d 519, 524 (3d Cir. 1994); Conner v. Donnelly,
[That] which would convert [a] private party into a state actor might vary with the circumstances of the case. . . . [T]he Court has articulated a number of different factors or tests in different contexts . . . . Whether these different tests are actually different in operation or simply different *27 (..continued)
ways of characterizing the necessarily fact- bound inquiry that confronts the Court in such a situation need not be resolved here.
Lugar,
[O]ur cases disclose certain principles of general application. Our precedents establish that, in determining whether a particular action or course of conduct is governmental in character, it is relevant to examine the following: the extent to which the actor relies on governmental assistance and benefits; whether the actor is performing a traditional governmental function; and whether the injury caused is aggravated in a unique way by the incidents of governmental authority. Based on our application of these three principles to the circumstances here, we hold that the exercise of peremptory challenges by the defendant in the District Court was pursuant to a course of state action.
Edmonson ,
But any approach a court uses must remain focused on
the heart of the state action inquiry, which, as we noted above,
is to discern if the defendant "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,
Plaintiffs assert the first aid squad was performing an
exclusive government function in its treatment of Groman. The
Supreme Court has made clear that the scope of exclusive
government functions is limited, reaching only those activities
that have been "traditionally the exclusive prerogative of the
State." Rendell-Baker,
*29 In the course of enunciating the contours of what constitutes an exclusive government function, the Supreme Court (..continued)
omission of this requirement raises a question as to whether the standard still includes such a requirement. See, e.g., McKeesport Hospital v. Accreditation Council,24 F.3d 519 , 528 (3d Cir. 1994) (Becker, J., concurring). However, we do not believe the Supreme Court would have attempted to change radically the government function standard set forth in Jackson,419 U.S. at 353 , and thereafter applied consistently in Flagg Bros.,436 U.S. at 157-58 , Rendell-Baker, 457 U.S. at 842, Blum v. Yaretsky,457 U.S. 991 , 1005, 1011-12 (1982), [San Francisco Arts & Athletics, Inc. v. United States Olympic Committee], 483 U.S. [522,] 544-45 (1987), and NCAA v. Tarkanian,488 U.S. 179 , 197-98 n.18 (1988), through the transparent puerilism of simple omission. If it had intended to change the law in this respect, we believe it would have said so explicitly. Moreover, the ultimate reasoning of the Court in Edmonson was that juror selection was traditionally an exclusive governmental function. See, e.g. , Edmonson, 500 U.S. at 627 ("The selection of jurors represents a unique governmental function delegated to private litigants by the government and attributable to the government . . . ."). Accordingly, we proceed on the understanding that the "exclusivity" requirement must be satisfied.
Gaston Festivals,
has held that receipt of public funds and the performance of a
function serving the public alone are not enough to make a
private entity a state actor. Rendell-Baker,
Plaintiffs also urge us to follow by analogy a decision
from the Court of Appeals for the Second Circuit that held a
volunteer fire company to be an exclusive government actor.
Janusaitis v. Middlebury Volunteer Fire Dep't ,
While there are similarities between volunteer fire
departments and volunteer first aid squads, there are sufficient
differences that may counsel against adopting this analogy.
First aid squads perform different functions from fire
departments. To the extent we do find similarities, we find
the court's analysis in Yeager more persuasive than the court's
in Janusaitis and more consonant with controlling precedent,
*32
although we do not explicitly adopt the analysis in Yeager. We
must keep in mind the Supreme Court's admonition to pay close
attention to the facts of each case while conducting the state
action inquiry. Lugar,
Plaintiffs' other theories to ground a finding of state
action can be analyzed under a general conceptual inquiry, in
which we seek to ascertain "the degree to which the state and the
[private] entity exist in a 'symbiotic relationship' or under
circumstances where the conduct of the private actor can be
fairly imputed as that of the state." Yeager ,
nursing homes were not state actors even though they were
extensively funded and regulated by the state.
Given the relationship between the first aid squad and
the Township here, we find no symbiotic relationship, joint
participation, or other connection sufficient to demonstrate the
first aid squad was acting under color of state law. Neither the
squad's receipt of public funds, nor the police's request for the
first aid squad, nor Groman's status as a person in custody at
the time of the squad's second response is enough to create state
action on the part of the first aid squad. Even if the events
created an affirmative obligation under the Due Process Clause
for the police to provide medical care, City of Revere v.
Massachusetts Gen. Hosp.,
Accordingly, we will affirm the district court's grant of summary judgment on plaintiffs' claims against the Englishtown-Manalapan First Aid Squad, Edward T. Moriarty, Tracie Zachary, James Paulser, and Joseph Bokenko. Although our disposition of the color of state law requirement makes it unnecessary for us to reach the issue of whether plaintiffs have a colorable claim of a violation of federal rights by the first aid squad and its members, we are compelled to note that the record contains no evidence of a valid claim.
IV.
We will reverse the district court's grant of summary judgment on plaintiffs' claim of excessive force under 42 U.S.C. § 1983 as to officers Kirkland, Trembow, and Vanderweil, and on plaintiffs' false arrest and false imprisonment claims against officer Kirkland. We will remand these claims to the district court. We will affirm the district court's grant of summary judgment on all other federal claims. The district court declined to exercise supplemental jurisdiction over plaintiffs' state law tort claims because it found no cognizable federal claim. We will vacate that portion of the district court's order so it can determine whether to hear the state claims along with the federal claims.
Notes
[1] . Plaintiffs also alleged the following state law claims: trespassing, intentional and negligent infliction of emotional distress, assault, battery, loss of consortium, invasion of privacy, injury to good name and reputation, slander, libel, negligent hiring, and failure properly to train and supervise.
[2] . Mrs. Groman's testimony at deposition included the following exchange: Q: And what happened after you got the chair out?
[4] . The text of 42 U.S.C. § 1983 provides, in part: § 1983. Civil action for deprivation of rights 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, suit in equity, or other proper proceeding for redress. . . .
[5] . This case is distinct from Brown v. Borough of Chambersburg,
[6] . Of course, the fact that we reverse as to officers Trembow and Vanderweil does not put them in the same posture as Kirkland on remand. Plaintiffs do not allege Trembow and Vanderweil were involved in the initial scrap where Kirkland hit Groman in the house. Thus, plaintiffs will have to prove that Trembow and
charged with aggravated assault,
[7] disorderly conduct,
[8] and (..continued) Vanderweil violated Groman's Fourth Amendment rights by using excessive force during his transport to the police station.
[7] . The New Jersey statute provides in part: 2C:12-1. Assault a. Simple Assault. A person is guilty of assault if he: (1) Attempts to cause or purposely, knowingly or recklessly causes bodily injury to another; . . . . b. Aggravated Assault. A person is guilty of aggravated assault if he: . . . . (5) Commits a simple assault as defined in subsection a. (1) . . . of this section upon (a) Any law enforcement officer acting in the performance of his duties while in uniform or exhibiting evidence of his authority . . . .
[11] . The statute provided: Loitering in public places or on private property; offensive language therein or thereon. Any person who, being under the influence of intoxicating liquor, shall loiter in any public or quasi-public place, or in or upon any private property not his own within this state, or who, not being under the influence of intoxicating liquor, shall there indulge in and utter loud and offensive or indecent language, shall be adjudged a disorderly person. N.J. Rev. Stat. § 2:202-8 (1937).
[12] . See supra note 8.
[13] . Although New Jersey case law is sparse, case law from other
jurisdictions supports this conclusion. In Commonwealth v.
Weiss,
[14] . Plaintiffs also named paramedics from the Centra State
Medical Center as defendants in their second amended complaint.
Second Am. Compl. ¶ 1. But the evidence fails to show that the
Centra State paramedics had anything to do with the allegations
in this case. Further, as plaintiffs have failed to address the
grant of summary judgment to these defendants on appeal, their
claims are abandoned. Travitz v. Northeast Dept. ILGWU Health &
Welfare Fund,
[16] . We note initially that, as one commentator has observed: Imposing categories and labels on the Court's different approaches to state action issues is somewhat arbitrary and potentially
[18] . Although the Supreme Court in Edmonson framed the inquiry as
the "traditional government function" inquiry,
[19] . Among other differences, first aid squads usually render assistance when they have a person's actual or implied consent. First aid squad member Moriarty's testimony demonstrates that the squad members were aware of that consensual relationship: Q: Why did you elect not to treat Mr. Groman, even over his objection, whether verbal or physical? A: Part of the treatment would be to transport the patient; and if I were to transport the patient without his consent, it would be kidnaping. We cannot force anybody to be treated. We can recommend, for their good and welfare, that they allow us to treat them, but we cannot force them to allow us to treat them. That's why I elected to obtain or attempted to obtain a medical release. Moriarty Dep., Defendant's App. at 51-52.