2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-27-2011

Joseph McMullen v. Maple Shade Township

Precedential or Non-Precedential: Precedential

Docket No. 09-4479

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Recommended Citation

"Joseph McMullen v. Maple Shade Township" (2011). 2011 Decisions. Paper 952.

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 PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 09-4479

___________

JOSEPH W. MCMULLEN, individually

and on behalf of all others similarly situated.;

*CHRISTOPHER OBCHINETZ,

v.

MAPLE SHADE TOWNSHIP, in its own right

and on behalf of similarly situated New Jersey

Municipal entities

Joseph W. McMullen, individually 

and on behalf of all others similarly situated,

 Appellant

(*Dismissed per Clerk's order of 7/26/10)

__________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 08-cv-02902)

District Judge: Honorable Robert B. Kugler

___________
2

Argued December 16, 2010

Before: JORDAN, HARDIMAN and 

VAN ANTWERPEN, Circuit Judges.

(Filed:June 27, 2011)

Steven E. Angstreich [ARGUED]

Carolyn C. Lindheim

Weir & Partners 

1339 Chestnut Street 

The Widener Building, Suite 500 

Philadelphia, PA 19107-0000 

David A. Avedissian

135 Kings Highway East 

Haddonfield, NJ 08033-0000 

Michael Coren

Pellettieri, Rabstein & Altman 

100 Nassau Park Boulevard 

Suite 111 

Princeton, NJ 08543-5301 

Attorneys for Appellant

John C. Gillespie [ARGUED]

Parker McCay 

7001 Lincoln Drive West 

3 Greentree Centre, P.O. Box 974 

Marlton, NJ 08053-0000

Attorney for Appellee
3

____________

OPINION OF THE COURT

____________

HARDIMAN, Circuit Judge.

This appeal involves a suit brought under 42 U.S.C. §

1983 by a New Jersey resident who was arrested by 

municipal police for violating a public intoxication ordinance. 

At issue is whether a federal cause of action exists when one 

is arrested for violating an ordinance that might be invalid 

under state law. We hold that it does not.

I

In October 2007, Joseph McMullen was arrested in 

Maple Shade, New Jersey for violating the following 

ordinance:

A. No Person shall be intoxicated or drunk 

or disorderly in any public street, lane, 

sidewalk, public parking lot, public or quasipublic place or in any public conveyance or in a 

private motor vehicle while such vehicle is in 

motion or parked in any public street, lane or 

public parking lot or while upon any private 

property not his or her own without the express 

permission of the owner or other person having 

authority to grant such permission to the 

annoyance of any person or be so intoxicated or 

drunk as to be unable to conduct himself or 

herself with due care for his or her safety or the 

safety of other persons.
4

MAPLE SHADE TOWNSHIP, N.J., CODE § 142-2 (emphasis 

added).1 McMullen acknowledges being intoxicated at the 

time of his arrest, but denies acting disorderly.

During a hearing in Maple Shade Municipal Court, 

McMullen claimed the Township’s public intoxication 

ordinance was either superseded by or contrary to the New 

Jersey Alcoholism Treatment and Rehabilitation Act 

(ATRA). See N.J. STAT. ANN. §§ 26:2B-6 to -9.3, -11 to -39

(West 2007). ATRA provides:

Notwithstanding any other provision of law, no 

county, municipality, or other jurisdiction 

within the State shall adopt an ordinance, 

resolution, or other legislation creating an 

offense of public intoxication or any equivalent 

offense, and any existing ordinance, resolution, 

or other legislation creating such an offense is 

hereby repealed.

Id. at § 26:2B-29.2 Persuaded by this argument, Municipal 

Judge Gregory R. McCloskey dismissed the charge against 

McMullen.

 

1

 The District Court correctly noted that McMullen 

“may have been arrested and prosecuted for violating a prior 

version of the [ordinance], previously codified at Maple 

Shade Township Code § 92-2(A) (1997).” McMullen v. 

Maple Shade Twp., No. 08-2902, 2009 WL 3615035, at *1 

n.2 (D.N.J. Oct. 28, 2009). This discrepancy is immaterial, 

however, because Section 92-2(A) is identical to § 142-2.
5

McMullen brought suit in the United States District 

Court for the District of New Jersey, alleging that § 142-2 of 

the Maple Shade Code was invalid under ATRA, and that his 

arrest and prosecution violated his Fourth Amendment right 

to be free from unreasonable seizures as well as his

Fourteenth Amendment right to due process of law.3 

McMullen also brought various state law claims for violations 

of the New Jersey Constitution, the New Jersey Civil Rights 

Act, and the common law. See 28 U.S.C. § 1367. The 

Township moved to dismiss under Federal Rule of Civil 

Procedure 12(b)(6), arguing that McMullen failed to state a 

claim for violation of a federal right.

The District Court granted the Township’s motion to 

dismiss, stating that “[d]espite [McMullen’s] best efforts to 

dress-up [his] claim in the federal garb of the Fourth 

Amendment, at bottom, these claims remain state law 

claims.” McMullen v. Maple Shade Twp., No. 08-2902, 2009 

 

2

 ATRA also prohibits municipalities from passing 

laws “rendering public intoxication or being found in any 

place in an intoxicated condition an offense,” or that are 

“inconsistent with the provisions and policies of th[e] act.” 

N.J. STAT. ANN. § 26:2B-26 (West 2007).

3

 Christopher Obchinetz, who was arrested and fined 

for violating the same ordinance, also sued, but was dismissed 

from this appeal by order dated July 26, 2010. We also note 

that although McMullen repeatedly refers to this suit as a 

“class action,” he has made no attempt to certify a class. 

Consequently, the only parties to this action are McMullen 

and Maple Shade Township.
6

WL 3615035, at *4 (D.N.J. Oct. 28, 2009). After dismissing 

McMullen’s federal claims, the Court declined to exercise 

supplemental jurisdiction over his state law claims. This 

appeal followed.4

II

We exercise plenary review over the dismissal of a 

complaint pursuant to Rule 12(b)(6). See Atkinson v. 

LaFayette College, 460 F.3d 447, 451 (3d Cir. 2006). “The 

District Court’s judgment is proper only if, accepting all 

factual allegations as true and construing the complaint in the 

light most favorable to the plaintiff, we determine that the 

plaintiff is not entitled to relief under any reasonable reading 

of the complaint.” McGovern v. City of Philadelphia, 554 

F.3d 114, 115 (3d Cir. 2009) (citing Phillips v. Cnty. of 

Allegheny, 515 F.3d 224, 232 (3d Cir. 2008)).

III

This appeal requires us to consider whether an arrest 

made pursuant to an ordinance that may be invalid on state 

law grounds can give rise to a federal claim. The District 

Court held that it may not. The Court’s analysis focused on 

whether there is a federal right to engage in the conduct at 

issue in this case, namely public drunkenness. After 

determining that such a right did not exist, the District Court 

dismissed McMullen’s federal claim. Although the District 

Court stated that “it goes without saying that if New Jersey 

has, in fact, legalized public intoxication, then New Jersey 

 

4

 The District Court exercised jurisdiction pursuant to 

28 U.S.C. §§ 1331, 1367. We have jurisdiction under 28 

U.S.C. § 1291.
7

localities should not enact or enforce laws prohibiting it,” it 

nevertheless concluded that “if they do [prohibit public 

intoxication], New Jersey state court is the proper forum for 

the resolution of the matter.” McMullen, 2009 WL 3615035, 

at *4.

Unlike the District Court, we do not believe the 

operative question in this case is whether there is a federally 

protected right to be intoxicated in public. Instead, we frame 

the issue as whether there is a federally protected right to be 

free from arrest pursuant to a law alleged to be invalid on 

state law grounds.

Section 1983 grants individuals “access to a federal 

forum for claims of unconstitutional treatment at the hands of 

state officials.” Heck v. Humphrey, 512 U.S. 477, 480

(1994). The statute provides:

Every person, who, under color of any statute, 

ordinance, regulation, custom, or usage, of any 

State or Territory, 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.

42 U.S.C. § 1983. Thus, by its terms, § 1983 provides a 

remedy for violations of federal, not state or local, law.

Some of our sister circuit courts of appeals have stated 

that an arrest pursuant to a statute that has been invalidated on 
8

federal constitutional grounds may give rise to a Fourth 

Amendment claim. See Amore v. Novarro, 624 F.3d 522, 532 

(2d Cir. 2010) (“[W]e assume that it is clearly established that 

an arrest under a statute that has been authoritatively held to 

be unconstitutional is ordinarily a constitutional violation.”); 

Leonard v. Robinson, 477 F.3d 347, 358 (6th Cir. 2007) 

(stating that a statute held unconstitutional by the Michigan 

Court of Appeals could not support probable cause to arrest);

Cooper v. Dillon, 403 F.3d 1208, 1223 (11th Cir. 2005) 

(imposing municipal liability for enforcement of a statute 

held to violate the First Amendment, but granting qualified 

immunity because the statute’s invalidity was not clearly 

established).

In this appeal, the Township contends that an arrest 

based on a law that is invalid only on state law grounds does 

not violate the Fourth Amendment. In support of its 

argument, the Township cites City of Ontario v. Quon, ---

U.S. ---, 130 S. Ct. 2619, 2632 (2010), in which the Supreme 

Court held that a search made in violation of a statute is not 

per se unreasonable for Fourth Amendment purposes. We 

find the Court’s holding in Quon inapposite. Although it is 

true that an arrest made in violation of state law does not 

necessarily give rise to a federal constitutional claim,5the 

 

5

 Many states have enacted laws that afford 

individuals protections beyond those found in the United 

States Constitution. But arrests made in violation of these 

state laws are not, in and of themselves, actionable under § 

1983. See, e.g., Virginia v. Moore, 533 U.S. 164, 168 (2008) 

(search incident to arrest that was illegal under state law not 

unreasonable under the Fourth Amendment); Pyles v. Raisor, 

60 F.3d 1211, 1215 (6th Cir. 1995) (right under Kentucky law 
9

issue in this appeal is whether an arrest pursuant to an 

allegedly invalid municipal ordinance directly offends the 

federal constitutional right to be free from unlawful arrest. 

As noted previously, other courts of appeals have held that an 

arrest made pursuant to a statute that has been declared 

unconstitutional violates the Fourth Amendment. These 

decisions are not predicated on the reason for a statute’s 

invalidity; rather, they are animated by the principle that an 

unambiguously invalid law cannot, by itself, provide probable 

cause to arrest. Cf. Lemon v. Kurtzman, 411 U.S. 192, 208 

(1973) (plurality opinion) (stating that state officers may only 

enforce state law “[u]ntil judges say otherwise”); Doe v. 

Metro. Police Dep’t, 445 F.3d 460, 469 (D.C. Cir. 2006) 

(holding that a state statute that is unambiguously civil cannot 

form the basis for a proper arrest, and may support a claim 

 

not to be arrested by officer who was not present when 

misdemeanor was committed does not support § 1983 claim); 

Barry v. Fowler, 902 F.2d 770 (9th Cir. 1990) (refusing to 

allow a § 1983 claim based solely on a violation of state law); 

Clark v. Link, 855 F.2d 156, 163 (4th Cir. 1988) (“[A] section 

1983 claim can only be sustained by allegations and proof of 

a violation of the Constitution or statutes of the United States 

and specifically may not rest solely on a violation of state 

statutes or qualify as a common law tort.”); Moore v. 

Marketplace Restaurant, Inc., 754 F.2d 1336, 1349 (7th Cir. 

1985) (“[A]n alleged violation of a state statute does not give 

rise to a corresponding § 1983 violation, unless the right 

encompassed in the state statute is guaranteed under the 

United States Constitution.”). In each of these cases, 

probable cause existed independent of state law. By contrast, 

McMullen argues that because Maple Shade’s ordinance was 

invalid, it cannot provide probable cause for an arrest.
10

under § 1983). Thus, in certain circumstances, an arrest 

pursuant to a law that is unambiguously invalid for reasons 

based solely on state law grounds may constitute a Fourth 

Amendment violation actionable under § 1983.

Here, however, McMullen has failed to state a viable 

Fourth Amendment claim because he cannot plead that the 

ordinance pursuant to which he was arrested is 

unambiguously invalid. McMullen’s cause of action hinges 

on ATRA’s alleged preemption of the Maple Shade public 

intoxication ordinance. It is unclear, however, that the 

ordinance is in fact preempted. It does not prohibit simple 

public intoxication, but rather proscribes intoxication “to the 

annoyance of any person” or to the degree that the individual 

is “unable to conduct himself or herself with due care for his 

or her safety or the safety of other persons.” MAPLE SHADE 

TOWNSHIP, N.J., CODE § 142-2.

Complicating matters further, another provision of 

New Jersey state law—the Home Rule Act—authorizes “[t]he 

governing body of every municipality to make, amend, repeal 

and enforce ordinances to . . . [p]revent vice, drunkenness and 

immorality; . . . [and to] [r]estrain and punish drunkards, 

vagrants, mendicants and street beggars.” N.J. STAT. ANN. § 

40:48-1.6 The apparent conflict between ATRA and the 

Home Rule Act creates additional ambiguity regarding the 

validity of Maple Shade’s public intoxication ordinance.

 

6

 Although this provision of the Home Rule Act was 

originally enacted in 1917, the Act has been amended as 

recently as 2003 without substantive changes to the provision 

authorizing municipalities to enact public intoxication 

ordinances. See 2003 N.J. Sess. Law. Serv. 1763.
11

Although there is some indication that New Jersey 

municipal courts have interpreted ATRA expansively, see 

State v. Navarro, 392 A.2d 1272, 1272 (Pilesgrove Twp. 

Mun. Ct. 1978) (finding that New Jersey’s public intoxication 

statute was preempted by ATRA, but not discussing the 

Home Rule Act or municipal public intoxication laws), no 

conclusive decision has been rendered with respect to this 

issue. Because it is not the domain of federal courts to 

resolve undecided questions of state law, cf. R.R. Comm’n of 

Tex. v. Pullman, 312 U.S. 496, 501 (1941) (holding that 

federal courts should abstain from deciding constitutional 

questions relating to state laws when there is a possibility that 

state courts may interpret the laws in a way that alters or 

eliminates the federal question), we must reject McMullen’s

invitation to serve as an arbiter of New Jersey law and leave 

that task to the New Jersey Supreme Court.

IV

For the reasons stated, we hold that McMullen’s claim 

is not cognizable under 42 U.S.C. § 1983. The judgment of 

the District Court will be affirmed.
1

Joseph W. McMullen v. Maple Shade Township, No. 09-4479

JORDAN, Circuit Judge, concurring

I join in the judgment of the Court that Maple Shade 

Township is not liable under 42 U.S.C. § 1983 for passing the 

ordinance at issue here. However, I write separately because 

I would not proceed on this record to create a new 

precedential standard making the validity of a municipal 

ordinance under state law relevant to a Fourth Amendment 

inquiry. As the Majority notes (slip op. at 8-10), Maple 

Shade’s public drunkeness ordinance, MAPLE SHADE 

TOWNSHIP, N.J., CODE § 142-2, has not been held invalid 

under New Jersey law and, to the contrary, can reasonably be 

read as being consistent with the state’s Alcoholism 

Treatment and Rehabilitation Act (“ATRA”), N.J. STAT.

ANN. §§ 26:2B-6 to -9.3, -11 to -39 (West 2007). Therefore, 

accepting for purposes of argument that the plaintiff’s 

contention concerning the validity of the ordinance is relevant 

to a Fourth Amendment analysis, we would still be hardpressed to say that New Jersey law is such that Maple Shade 

could be found liable under § 1983.

1

The Majority 

 

1

The whole exercise of deciding what state law is and 

then having that be the basis of liability under § 1983 is 

suspect. The Majority accurately states that “§ 1983 provides 

a remedy for violations of federal, not state or local, law.” 

(Slip op. at 6.) Yet the Majority is creating a constitutional 

standard under which the Fourth Amendment reasonableness 

of an arrest turns on whether a local law is invalid for 

violating state, not federal, law. “Th[at] constitutional 

standard would be only as easy to apply as the underlying 

state law, and state law can be complicated indeed.” Virginia 
2

acknowledges as much, and it is not necessary to go any 

further. 

Thus, the question of whether the validity of a 

municipal ordinance under state law is relevant to a Fourth 

Amendment inquiry is not one we need to address to resolve 

this case. Because the plaintiff’s fundamental premise that 

the Maple Shade ordinance and ATRA are necessarily in 

conflict is unsound, we should simply point that out and 

affirm the District Court in a non-precedential opinion. Cf. 

Pearson v. Callahan, 129 S.Ct. 808, 819 (2009) (“A 

constitutional decision resting on an uncertain interpretation 

of state law is ... of doubtful precedential importance.”); 

Spector Motor Serv., Inc. v. McLaughlin, 323 U.S. 101, 105, 

(1944) (“If there is one doctrine more deeply rooted than any 

other in the process of constitutional adjudication, it is that we 

 

v. Moore, 553 U.S. 164, 175 (2008). It is true that the 

Majority frames its test in terms of “an arrest pursuant to a 

law that is unambiguously invalid ... on state law grounds” 

(slip op. at 8), but deciding whether something is ambiguous 

or not is, ironically, easier said than done, and the very

question of ambiguity will now mean that municipalities like 

Maple Shade are going to be subject to the expense of federal 

litigation more frequently. The Supreme Court has observed 

that “it is difficult to think of a greater intrusion on state 

sovereignty than when a federal court instructs state officials 

on how to conform their conduct to state law.” Pennhurst 

State School & Hospital v. Halderman, 465 U.S. 89, 106

(1984). That observation is not without force when 

considering the actions of local governments and officials

trying to comply with state law.
3

ought not to pass on questions of constitutionality ... unless 

such adjudication is unavoidable.”); Egolf v. Witmer, 526 

F.3d 104, 109-10 (3d Cir. 2008) (declining to address the 

merits of First and Fourth Amendment claims which turned 

on an unsettled state law question when another avenue for 

disposition was available, because “federal courts do a 

disservice to state actors who would be induced to rely on a 

ruling that might change altogether upon subsequent review 

by the state court”).