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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)
Case Number: 19-2989
Judge: Cheryl Ann Krause
Court: UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
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.
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
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
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
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
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.
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.
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.
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.”
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
We just as clearly lack jurisdiction over the commonlaw tort claim for malicious prosecution.2
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
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
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
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
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
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,
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.
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.
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
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
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
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
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
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.
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.
Outcome: 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