GERONIMO LOZANO v. STATE OF NEW JERSEY; ELIZABETH POLICE DEPARTMENT; SERGEANT RODNEY DORILUS; OFFICER DAVID HERNANDEZ; OFFICER TIMOTHY GOLDATE; UNION COUNTY; JOHN & JANE DOE 1-10; ABC CORP. 1-10, (fictitious names for persons, firms, or corporations presently unknown) DAVID HERNANDEZ

Philadelphia, PA - Criminal defense lawyer represented defendant with one count of driving while intoxicated and one count of refusal to take a breath test charges.

Lozano is a former Marine who was discharged for

medical reasons and still suffers from multiple conditions,

including severe asthma, an impaired airway, limited motion

in his knees and one ankle, and total blindness in his left eye.

As a result, Lozano has a handicapped parking permit and a

permit for tinted windows on his car.

4

Late one night in 2016, Lozano was eating at a Wawa

in Elizabeth, New Jersey. His car was parked partly within a

handicapped parking space and partly in the restricted area next

to it. At approximately 3:00 AM, Sergeant Rodney Dorilus

arrived at the Wawa to refuel his car and noticed Lozano's

vehicle. Because Lozano has tinted windows, however,

Sergeant Dorilus could not see the handicapped placard on the

dashboard. So Sergeant Dorilus investigated, eventually

requiring Lozano to provide his license and registration, as

well as his permits for handicapped parking and tinted

windows.

Once Sergeant Dorilus confirmed that Lozano's license

was valid, he asked if Lozano had consumed any alcohol.

Lozano said no. But Sergeant Dorilus was unconvinced: He

said that Lozano "reeked of alcohol,” so he told Lozano that he

was going to administer a field sobriety test. Lozano v. New

Jersey, No. 17-cv-6581, 2020 WL 3542374, at *2 (D.N.J. June

29, 2020). Lozano again denied having consumed any alcohol,

and he refused to submit to the field sobriety test, claiming that

his injuries physically prevented him from doing so. Sergeant

Dorilus then arrested Lozano.

Officer David Hernandez, along with other officers, was

"present” throughout these events, Lozano, 2020 WL 3542374,

at *2, and when Officer Hernandez first arrived at the scene,

he accompanied Lozano from the Wawa outside, where

Lozano spoke with Sergeant Dorilus, see JA 268, 280.

Bodycam videos from the officers, on which the District Court

5

relied, then show Officer Hernandez standing nearby as

Sergeant Dorilus spoke with and subsequently handcuffed

Lozano. After Sergeant Dorilus arrested Lozano, Officer

Hernandez drove Lozano to police headquarters.

At the station, Officer Hernandez helped process

Lozano by asking for his name and taking his loose clothing.

Other officers then gave Lozano two breathalyzer tests, but

because of his asthma, he could not provide a sufficient breath

sample. Lozano alleges that he told the officer administering

the tests that he was medically unable to complete them. Then,

during a third breathalyzer test, Lozano had an asthma attack

and had to be taken to the hospital. He never completed a

breathalyzer test.1



The next day, Sergeant Dorilus charged Lozano with

one count of driving while intoxicated, N.J. Stat. Ann. § 39:4–

50, and one count of refusal to take a breath test, N.J. Stat. Ann.

§ 39:4–50.2. But after Lozano provided medical records

showing that he physically could not perform either a field

sobriety test or a breathalyzer test, the prosecutor

recommended dismissing the charges and the municipal court

did so.

Lozano subsequently sued Sergeant Dorilus, Officer

Hernandez, and others, alleging, among other things, false

1 Lozano has not alleged that Officer Hernandez was

involved in administering the breathalyzer tests. Lozano, 2020

WL 3542374, at *9.

6

arrest, false imprisonment, and malicious prosecution. He

brought his claims under 42 U.S.C. § 1983; the parallel cause

of action in the CRA, N.J. Stat. Ann. § 10:6–2; and New Jersey

common law, which is actionable against public employees

when a plaintiff satisfies the requirements set forth in the New

Jersey Tort Claims Act (TCA), N.J. Stat. Ann. § 59:3–1.

After discovery, Sergeant Dorilus and Officer

Hernandez moved for summary judgment, but the District

Court denied their motions, finding that there were factual

disputes about whether Lozano smelled of alcohol and what

precisely he told the officers on the scene and at the police

station. Lozano, 2020 WL 3542374, at *6–9, *17. The District

Court ruled that if those disputes were resolved in Lozano's

favor, there was not probable cause to arrest, detain, or charge

him, and that because the law requiring probable cause was

clearly established at the time, the officers were not entitled to

qualified immunity. Id. at 11–13. As to Officer Hernandez in

particular, the District Court ruled that by "transporting

[Lozano] to police headquarters,” he played an "integral” role

in "the arrest,” so he was not entitled to qualified immunity.

Id. at *9, *17. Officer Hernandez appealed.

II. Jurisdiction & Standard of Review

The District Court had jurisdiction over Lozano's

federal claims under 28 U.S.C. § 1331 and his state law claims

under 28 U.S.C. § 1367. We have jurisdiction pursuant to 28

U.S.C. § 1291, and we also have "jurisdiction to review our

own jurisdiction when it is in doubt,” as we address below.

7

LeBoon v. Lancaster Jewish Cmty. Ctr. Ass'n, 503 F.3d 217,

222 (3d Cir. 2007).

On the merits, we exercise plenary review of the District

Court's summary judgment order. Dougherty v. Sch. Dist. of

Phila., 772 F.3d 979, 986 (3d Cir. 2014). Summary judgment

is appropriate when there are no genuine disputes of material

fact and the movant is entitled to judgment as a matter of law.

Id. (citing Fed. R. Civ. P. 56(a)). We must, of course, view the

facts in the light most favorable to Lozano. Id.

III. Discussion

Officer Hernandez argues that he was not involved in

arresting or charging Lozano and therefore that he is entitled to

qualified immunity. We agree. But before reaching the merits,

we must address an open question regarding our jurisdiction.

A. Collateral Order Jurisdiction

Because this is an interlocutory appeal and § 1291 only

grants us jurisdiction over "final decisions of the district

courts,” 28 U.S.C. § 1291, we must assure ourselves of our

jurisdiction with regard to each of Lozano's claims.

We clearly have jurisdiction over the § 1983 claims.

Although § 1291 only provides jurisdiction over final orders,

it is well settled that we have collateral order jurisdiction to

review a summary judgment decision denying qualified

immunity "to the extent that it turns on an issue of law.”

8

Mitchell v. Forsyth, 472 U.S. 511, 529–30 (1985); see also

Dougherty, 772 F.3d at 986. And Officer Hernandez raises

only a pure question of law, as he contends that even taking

"the set of facts identified by the district court” in the light most

favorable to Lozano, see Dougherty, 772 F.3d at 986 (citation

omitted), he is still entitled to qualified immunity as a matter

of law.

We just as clearly lack jurisdiction over the commonlaw tort claim for malicious prosecution.2

Officer Hernandez

argues that he is entitled to "good faith” immunity for this

claim under the TCA, N.J. Stat. Ann. § 59:3–3, but we have

held that the TCA only provides immunity "as a defense to

liability,” not as an "immunity from suit,” so a summary

judgment order denying TCA immunity is not immediately

appealable under the collateral order doctrine, Brown v.

Grabowski, 922 F.2d 1097, 1107–09 (3d Cir. 1990); see also

Giuffre v. Bissell, 31 F.3d 1241, 1248 (3d Cir. 1994). We will

therefore dismiss Officer Hernandez's appeal for lack of

appellate jurisdiction to the extent it challenges the District

Court's order denying "good faith” immunity for Lozano's

common-law tort claim.

2 Although Lozano also brought common-law claims

for false arrest and false imprisonment, JA 26, the District

Court dismissed them for failure to provide timely pre-suit

notice under the TCA. Lozano, 2020 WL 3542374, at *17; see

N.J. Stat. Ann. § 59:8–8. Lozano's common-law malicious

prosecution claim is therefore the only TCA claim at issue in

this appeal.

9

We have never decided, however, whether we have

collateral order jurisdiction over a summary judgment decision

denying qualified immunity under the CRA. To answer that

question, we must "inquir[e] into the nature of the qualified

immunity that New Jersey law confers.” Grabowski, 922 F.2d

at 1106. If qualified immunity under the CRA provides

immunity from suit, like qualified immunity under § 1983,

then we have jurisdiction, but if it only provides immunity

from liability, like good faith immunity under the TCA, then

we must dismiss the CRA claims for lack of appellate

jurisdiction. See id. at 1106.

Section 1983 provides the better analogy. Indeed, the

New Jersey Supreme Court has explained that the CRA is "a

state law analogue to Section 1983,” Perez v. Zagami, LLC, 94

A.3d 869, 875 (N.J. 2014), so New Jersey courts apply

qualified immunity in CRA claims by looking to "federal case

law,” Morillo v. Torres, 117 A.3d 1206, 1215 (N.J. 2015).

They "do not differentiate between [CRA and § 1983] claims”

for purposes of qualified immunity.3

Id. at 1213. Thus,

3 Officer Hernandez invokes "good faith” immunity

under § 59:3–3 of the TCA against Lozano's CRA claims. But

the New Jersey legislature did not "intend[] the TCA

immunities to apply to actions brought under the [CRA],”

Ramos v. Flowers, 56 A.3d 869, 874 (N.J. Super. Ct. App. Div.

2012), so Officer Hernandez's CRA defense is really a request

for qualified immunity under the CRA, see Morillo, 117 A.3d

at 1213.

10

because qualified immunity under § 1983 "is an immunity

from suit,” Gormley v. Wood-El, 93 A.3d 344, 367 (N.J. 2014),

we conclude that qualified immunity under the CRA is also an

immunity from suit, see Brown v. State, 165 A.3d 735, 743–44

(N.J. 2017) ("Qualified immunity [under the CRA] relieves an

eligible defendant from the burden of trial.”). We therefore

have collateral order jurisdiction over summary judgment

orders denying qualified immunity under the CRA insofar as

they raise questions of law. See Grabowski, 922 F.2d at 1105–

06; Dougherty, 772 F.3d at 986.

Having settled our jurisdiction, we turn now to the

merits.

B. Qualified Immunity

Officer Hernandez contends that he is entitled to

qualified immunity for Lozano's claims for false arrest, false

imprisonment, and malicious prosecution because he did not

personally arrest or charge Lozano. Officer Hernandez is

correct.

A police officer is entitled to qualified immunity under

§ 1983 unless the plaintiff shows that the officer violated

"clearly established statutory or constitutional rights of which

a reasonable person would have known.” Mullenix v. Luna,

577 U.S. 7, 11 (2015) (per curiam) (citation and internal

quotation marks omitted). We apply the same standard for

qualified immunity under the CRA. Morillo, 117 A.3d at

1213–15.

11

To decide if an officer is entitled to qualified immunity,

we use a two-prong test. Peroza-Benitez v. Smith, 994 F.3d

157, 165 (3d Cir. 2021). At the first prong, we ask if the facts,

"[t]aken in the light most favorable to the party asserting the

injury, . . . show the officer's conduct violated a constitutional

right.” Saucier v. Katz, 533 U.S. 194, 201 (2001). At the

second prong, we "ask whether the right was clearly

established,” id., because "the contours of the right must be

sufficiently clear such that the unlawfulness of the action [wa]s

apparent in light of pre-existing law,” Dougherty, 772 F.3d at

993 (citation and internal quotation marks omitted). We may

address these two prongs in whichever order we find

appropriate for the case. Pearson v. Callahan, 555 U.S. 223,

236 (2009).

Additionally, because of the procedural posture here,

"we lack jurisdiction to consider whether the district court

correctly identified the set of facts that the summary judgment

record is sufficient to prove.” Dougherty, 772 F.3d at 986

(citation and internal quotation marks omitted). Rather, we

may only "review whether the set of facts identified by the

district court is sufficient to establish a violation of a clearly

established constitutional right.” Id. (citation and internal

quotation marks omitted). Under this standard, Officer

Hernandez is entitled to qualified immunity for false arrest,

false imprisonment, and malicious prosecution.

12

i. False Arrest

In a claim for false arrest, "a plaintiff must establish (1)

that there was an arrest; and (2) that the arrest was made

without probable cause.” Harvard, 973 F.3d at 199 (citation

and internal quotation marks omitted). Lozano was clearly

arrested, and the District Court found factual disputes about

whether there was probable cause—a finding that is not before

us at this stage of the litigation. See Dougherty, 772 F.3d at

986. But as Officer Hernandez correctly contends, the facts,

even "[t]aken in the light most favorable to [Lozano],” do not

"show [that Officer Hernandez's] conduct violated a

constitutional right.” Saucier, 533 U.S. at 201.

According to the District Court, a reasonable jury could

find that Officer Hernandez was "present” while Sergeant

Dorilus was questioning Lozano and that after Sergeant

Dorilus arrested Lozano, Officer Hernandez "transported Mr.

Lozano to police headquarters.” Lozano, 2020 WL 3542374,

at *2, *9. Based on those facts, the District Court reasoned that

Officer Hernandez was "involve[d] in the detention of Mr.

Lozano” because even though he "was not the individual who

actually placed the handcuffs on Mr. Lozano, he was the one

who transported Lozano . . . to the police station.” Id. at *9.

And, the District Court said, "[t]ransportation to

headquarters . . . may be regarded as an integral component of

the arrest.” Id.

Merely being present at the scene and driving the

arrestee to the station, however, are not part of the arrest.

13

Neither the District Court nor Lozano have identified any

conduct by Officer Hernandez while he was at the Wawa that

could be considered part of the arrest, which was conducted

entirely by Sergeant Dorilus. And driving Lozano to the police

station was not a "component of the arrest,” id., it was simply

one of "the administrative steps incident to arrest,” Gerstein v.

Pugh, 420 U.S. 103, 114 (1975). Officer Hernandez therefore

did not violate Lozano's right to be free from false arrest, so he

is entitled to qualified immunity under both § 1983 and the

CRA.

ii. False Imprisonment

To succeed in a false imprisonment claim, a plaintiff

must show that "the police lack[ed] probable cause to make an

arrest” and that the plaintiff was "det[ained] pursuant to that

arrest.” Harvard, 973 F.3d at 202. Here, Officer Hernandez

did "detain[]” Lozano while driving him to the station, and the

District Court found factual disputes about whether "the police

lack[ed] probable cause to make [the] arrest.” See id.

Nevertheless, we can easily address this claim at the second

prong of the qualified immunity test—namely, whether a

reasonable officer in Officer Hernandez's position would have

known that probable cause was lacking. Put another way, was

it "objectively reasonable” for Officer Hernandez to believe

that probable cause existed for Lozano's detention? See

Rogers v. Powell, 120 F.3d 446, 455 (3d Cir. 1997).

We conclude that it was. Sergeant Dorilus was standing

closer to Lozano, he spoke with Lozano at length, and he said

14

that Lozano "reeked of alcohol.” Lozano, 2020 WL 3542374,

at *2. Lozano also did not answer Sergeant Dorilus's question

about his address, instead pointing to his driver's license, and

Lozano refused, albeit perhaps justifiably in retrospect, to

perform a field sobriety test. Id. Even viewing the facts in the

light most favorable to Lozano, we cannot conclude that

Officer Hernandez—who was standing farther away than

Sergeant Dorilus and had much less interaction with Lozano—

was objectively unreasonable in his belief that there was a basis

for Lozano's continued detention. See Rogers, 120 F.3d at

456.

Ultimately, officers are entitled to qualified immunity

when they "reasonably but mistakenly conclude that probable

cause is present,” Anderson v. Creighton, 483 U.S. 635, 641

(1987), and under that standard, Officer Hernandez did not

violate a clearly established right of which every reasonable

officer would have known, see Peroza-Benitez, 994 F.3d at

165. He is therefore entitled to qualified immunity against

Lozano's claims for false imprisonment under both § 1983 and

the CRA.

4

4 To the extent Lozano's false arrest claim can be

interpreted as a failure-to-intervene claim, it would also fail for

these same reasons. Lozano cites Smith v. Mensinger, 293 F.3d

641 (3d Cir. 2002), for the proposition that "a non-intervening

officer[]” may be liable for "stand[ing] by and watch[ing] . . .

a constitutional violation,” Appellee's Supp. Br. 3 (quoting

Mensinger, 293 F.3d at 651). But Mensinger arose in the

15

iii. Malicious Prosecution

Finally, to prevail in a claim for malicious prosecution,

"a plaintiff must demonstrate that: (1) the defendants initiated

a criminal proceeding; (2) the criminal proceeding ended in

[the] plaintiff's favor; (3) the proceeding was initiated without

probable cause; (4) the defendants acted maliciously or for a

purpose other than bringing the plaintiff to justice; and (5) the

plaintiff suffered deprivation of liberty consistent with the

concept of seizure as a consequence of a legal proceeding.”

Harvard, 973 F.3d at 203 (alteration in original) (citation and

internal quotation marks omitted).

Here, however, there is no evidence that Officer

Hernandez "participated in initiating criminal proceedings”

against Lozano. See id. at 205 n.7. According to the District

Court, the record shows that Sergeant Dorilus charged Lozano,

context of excessive force, see 293 F.3d at 650–51, and while

the Sixth Circuit has extended failure-to-intervene liability to

the false arrest context, holding that an officer is liable if he

"observes or has reason to know” of a false arrest and has "a

realistic opportunity to intervene,” Bunkley v. City of Detroit,

902 F.3d 552, 565–66 (6th Cir. 2018), we have not done so to

date. Nor need we today because, for the reasons we have

explained, it was not objectively unreasonable for Officer

Hernandez to believe there was probable cause, so he would be

entitled to qualified immunity in any event. See Anderson, 483

U.S. at 641; Rogers, 120 F.3d at 454–56.

16

see Lozano, 2020 WL 3542374, at *3, and neither Lozano's

briefing nor the District Court's opinion have identified any

factual basis for holding Officer Hernandez liable for charging

Lozano. Officer Hernandez therefore did not violate Lozano's

right to be free from malicious prosecution, see Harvard, 973

F.3d at 205 n.7, and he is entitled to qualified immunity under

§ 1983 and the CRA.

For the foregoing reasons, we will reverse the District

Court’s order denying Officer Hernandez qualified immunity

for the § 1983 and CRA claims, and we will dismiss this appeal

for lack of appellate jurisdiction with regard to the TCA claim