1994 Decisions

Opinions of the United

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Precedential or Non-Precedential: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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Recommended Citation

"Barna v. City of Perth Amboy et al." (1994). 1994 Decisions. Paper 220.

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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-inlaw 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.