SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the 

convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the 

interest of brevity, portions of any opinion may not have been summarized).

Eric Morillo v. Monmouth County Sheriff’s Officers (A-88-13) (073978)

Argued March 16, 2015 -- Decided July 13, 2015

LaVECCHIA, J., writing for a unanimous Court.

In this appeal, the Court considers the circumstances under which qualified immunity insulates law 

enforcement officers from claims of civil rights violations arising under 42 U.S.C.A. § 1983 (Section 1983) and the 

New Jersey Civil Rights Act (CRA), N.J.S.A. 10:6-1 to -2. 

In December 2010, Monmouth County Sheriff’s Officers Alexander Torres and Thomas Ruocco went to 

execute a child-support warrant on plaintiff Eric Morillo. When they arrived at the address listed on the warrant,

which they later learned was plaintiff’s mother’s home, the officers discovered plaintiff sitting in the passenger seat 

of an idling car parked near the driveway and smoking what appeared to be marijuana. Ruocco opened the 

passenger-side door and smelled burnt marijuana coming from the vehicle. When Ruocco asked plaintiff if he had 

any more drugs in his possession, plaintiff said that he had a loaded weapon tucked in his waistband. Ruocco seized 

the weapon, removed plaintiff from the car, patted him down, and arrested him on the child-support warrant.

While riding to police headquarters, plaintiff told the officers that the gun was registered to him. He also 

said that he was involved in gang activity and was carrying the gun because he feared retaliation. Neither Ruocco 

nor Torres ever asked plaintiff whether the paperwork was in the house, but when they arrived at headquarters, they 

told their supervisor, Sergeant Steven Cooper, that plaintiff claimed to have such paperwork. Cooper called the 

prosecutor’s office to seek advice as to whether plaintiff should be charged with a weapons offense. The assistant 

prosecutor told Cooper that it would be appropriate to charge him with second-degree unlawful possession of a 

handgun under N.J.S.A. § 2C:39-5(b)(1). In January 2011, after his bail was posted on the weapons charge, he was 

released from the county jail. On March 30, 2011, after receiving confirmation from the New Jersey State Police 

that plaintiff’s handgun was properly registered, the weapons charge was dropped.

Plaintiff filed a complaint against Ruocco, Torres, and Cooper (collectively “defendants”) alleging 

violations of 42 U.S.C.A. § 1983 (Section 1983) and the Civil Rights Act (CRA), N.J.S.A. 10:6-1 to -2. He alleged 

that they violated his constitutional rights by wrongfully charging him with unlawful possession of a weapon, which 

led to his incarceration until bail was posted. Plaintiff filed a motion for summary judgment as to liability. 

Defendants filed a cross-motion for summary judgment, asserting qualified immunity and seeking dismissal of the 

action. The trial court denied defendants’ motion for summary judgment, deeming it impermissible for plaintiff to 

be charged with unlawful possession of a weapon because the gun he carried was lawfully registered to him and he 

was at his present residence when he was found carrying the weapon. After several motions to stay the proceedings 

and motions for leave to appeal, the matter came before the Appellate Division, which affirmed the trial court’s 

judgment. Both plaintiff and defendants sought leave to appeal to this Court. The Court denied plaintiff’s motion 

for leave to appeal, but granted defendants’ motion for leave to appeal the Appellate Division’s judgment that 

affirmed the denial of summary judgment based on qualified immunity. 217 N.J. 585 (2014). 

HELD: The civil rights causes of action against the officers should have been dismissed based on the affirmative 

defense of qualified immunity. 

1. For purposes of analyzing the qualified-immunity defense advanced here, the Court does not differentiate 

between plaintiff’s claims under 42 U.S.C.A. § 1983 and the CRA, New Jersey’s analogue to Section 1983. 

Qualified immunity shields officials performing discretionary functions from liability for civil damages where their 

conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would 

have known. This defense allows officials some breathing room to make reasonable, even if mistaken, judgments 

by protecting all but the plainly incompetent or those who knowingly violate the law. In New Jersey, the qualifiedimmunity doctrine is applied to civil rights claims brought against law enforcement officials engaged in their 

discretionary functions, including arresting or charging an individual based on probable cause to believe that a 

criminal offense has occurred. (pp. 14-16)

2. Whether an officer is entitled to qualified immunity is determined by a two-prong test. The first inquiry asks 

whether the facts alleged, taken in the light most favorable to the party asserting the injury, show that the challenged 

conduct violated a statutory or constitutional right. Second, the court must determine whether the right was clearly 
2

established by determining whether a reasonable officer in the same situation would understand that his actions were 

unlawful. Law enforcement officers are not entitled to immunity if it is obvious that no reasonably competent 

officer would have concluded that a warrant should issue. Thus, when a plaintiff asserts that he or she was 

unlawfully arrested, an officer can defend such a claim by establishing either that he or she acted with probable 

cause, or, even if probable cause did not exist, that a reasonable police officer could have believed in its existence. 

(pp. 16-18)

3. The issue of qualified immunity is one that should be decided before trial by the court. If facts that are material 

to deciding that issue are disputed, the jury should decide those facts on special interrogatories. When no material 

historical or foundational facts are in dispute, or when they are and the jury decides those disputed facts pursuant to 

the above procedure, the trial judge must then decide the legal issue of whether probable cause existed and, if not, 

whether a reasonable police official could have believed in its existence. When probable cause is lacking and the 

trial judge is determining whether a reasonable law enforcement officer would have believed that probable cause to 

arrest or charge did exist, it is for the judge to decide whether the defendant has proven by a preponderance of the 

evidence that his or her actions were reasonable under the particular facts. (pp. 18-19)

4. Here, defendants’ assertion of qualified immunity calls into question whether it was objectively reasonable for the 

defendant officers to have charged plaintiff with unlawful possession of a handgun under N.J.S.A. 2C:39-5(b)(1). 

Plaintiff claims that the statutory exemption from prosecution for that offense makes it clear that the officers had no 

reasonable basis to charge him with unlawful possession when he was carrying his lawfully registered gun while 

seated in a running car on property surrounding his mother’s residence where he was living at the time. However, 

there is an element of ambiguity inherent in the exemption’s sentence structure. It is not entirely clear whether the 

exemption was intended to encompass, for example, common areas within a multi-unit dwelling. Similarly, it is 

unclear whether it is intended to encompass carrying a weapon in the open areas surrounding a private residence 

where one may be staying but which is not owned or possessed by the individual. Plaintiff was staying/living at his 

mother’s house at the time he was found outside the home carrying a loaded handgun concealed in the waistband of 

his pants. Neither the home nor the property was owned or possessed by plaintiff. The language of the statute is 

ambiguous as to its intended reach in these circumstances and case law does not help resolve the question. The 

majority of New Jersey case law that has touched on the circumstances in which the statutory exemption is 

applicable supports the view that the statute permits gun owners to carry firearms, without a carry permit, inside 

their residences. On the other hand, no case law suggests that the statute generally permits a gun owner to carry a

firearm outside his or her residence on premises he or she neither owns nor possesses. (pp. 19-24)

5. The defendant officers’ claim of qualified immunity depends on a determination of whether the circumstances 

support a conclusion that no reasonably competent officer would have concluded that a warrant should issue. First,

the fact that most New Jersey case law applied the home-carry exemption to cases where the gun is carried inside 

the private portions of one’s residence, and not to outside areas, indicates that the officers were not applying clearly 

established law. These officers confronted a question of uncertain application of the exemption to the unlawful 

possession statute, arguably taking it beyond the clearly established framework of our law. Second, these officers 

acted with restraint and prudence. They tried to act cautiously and could not dismiss the possibility that a 

chargeable weapons offense should be added to plaintiff’s arrest on the child-support warrant. The officers on the 

scene sought guidance from their supervisor, and the supervisor sought advice from the prosecutor’s office. The 

Court views these events in their totality and is not persuaded by plaintiff’s effort to call into question the extent to 

which the supervisory officer emphasized to the assistant prosecutor that plaintiff had, in fact, been at his residence 

at the time that he was found outside with the loaded gun on his person. (pp. 24-26)

 

6. In sum, under the test for qualified immunity, the defendant officers confronted a question of uncertain 

application of the exemption to the unlawful possession statute. Further, under the standard of competence required 

for qualified immunity, it cannot fairly be said in this instance that no reasonably competent officer would have 

believed probable cause existed to go forward with an unlawful possession charge against plaintiff under these 

circumstances. Viewed in their totality, the officers’ involvement in the circumstances that led to the filing of the 

unlawful possession charge against plaintiff does not rise to the level required to meet the standard for stripping 

these officers of the protection of qualified immunity. (pp. 27-29)

The judgment of the Appellate Division is REVERSED. The matter is REMANDED for dismissal of the 

Section 1983 and CRA claims against the defendant officers. 

CHIEF JUSTICE RABNER; JUSTICES ALBIN, PATTERSON, FERNANDEZ-VINA, and 

SOLOMON; and JUDGE CUFF (temporarily assigned) join in JUSTICE LaVECCHIA’s opinion. 
1

SUPREME COURT OF NEW JERSEY

A-88 September Term 2013

073978

ERIC MORILLO,

Plaintiff-Respondent,

v.

MONMOUTH COUNTY SHERIFF’S 

OFFICER ALEXANDER TORRES, 

MONMOUTH COUNTY SHERIFF’S 

OFFICER THOMAS RUOCCO,

MONMOUTH COUNTY SHERIFF’S 

OFFICE, and MONMOUTH COUNTY 

SERGEANT STEVEN COOPER,

Defendants-Appellants,

and

OLD BRIDGE TOWNSHIP ASSISTANT 

MUNICIPAL COURT ADMINISTRATOR 

SUSAN BRUCHEZ, and OLD BRIDGE 

TOWNSHIP MUNICIPAL COURT,

Defendants.

Argued March 16, 2015 – Decided July 13, 2015

On appeal from the Superior Court, Appellate 

Division.

John C. Connell argued the cause for 

appellants (Archer & Greiner, attorneys; Mr. 

Connell, Christine G. Hanlon, and Benjamin 

D. Morgan, on the briefs).

Joel I. Rachmiel argued the cause for 

respondent.

JUSTICE LaVECCHIA delivered the opinion of the Court.

The doctrine of qualified immunity shields law enforcement 

officers from personal liability for civil rights violations 
2

when the officers are acting under color of law in the 

performance of official duties. This protection extends to 

suits brought under 42 U.S.C.A. § 1983 and under New Jersey’s 

analogue, the Civil Rights Act, N.J.S.A. 10:6-1 to -2. As both 

federal and state case law on this immunity doctrine recognize, 

members of law enforcement must be permitted to perform their 

duties without being encumbered by the specter of being sued 

personally for damages, unless their performance is not 

objectively reasonable. Thus, the defense’s protection is 

denied only to officers who are plainly incompetent in the 

performance of their duties or who knowingly violate the law. 

In this appeal, we must address whether, on the basis of 

qualified immunity, three police officers were entitled to

dismissal of an action brought by plaintiff. The action sought 

to impose personal liability on the officers for alleged civil 

rights violations arising from a charge brought against 

plaintiff for unlawful possession of a weapon under N.J.S.A.

2C:39-5(b)(1). The charge was later administratively dismissed. 

For the reasons expressed herein, we hold that the civil 

rights causes of action against the officers should have been 

dismissed based on the affirmative defense of qualified immunity

that the officers asserted. It cannot be said as a matter of 

law that no reasonably competent officer would have believed 

that probable cause existed to charge plaintiff with unlawful 
3

possession of a weapon. Under the facts and circumstances 

involved in charging plaintiff with a violation of N.J.S.A.

2C:39-5(b)(1), there was neither a knowing violation of law nor 

a transgression of the competence standard demanded of law 

enforcement officers for qualified immunity to provide a shield 

from personal liability for alleged civil rights violations 

arising from the performance of their duties. 

The judgment of the Appellate Division is reversed. 

I.

A.

Plaintiff was charged with unlawful possession of a handgun 

under N.J.S.A. 2C:39-5(b)(1), which provides: “Any person who 

knowingly has in his possession any handgun, including any 

antique handgun, without first having obtained a permit to carry 

the same as provided in [N.J.S.A.] 2C:58-4,[1] is guilty of a 

crime of the second degree.” The next section of that chapter 

provides an exemption from prosecution for unlawful possession 

of a handgun, which states that 

[n]othing in subsections b., c. and d. of 

[N.J.S.A.] 2C:39-5 shall be construed to 

prevent a person keeping or carrying about his 

place of business, residence, premises or 

 

1 N.J.S.A. 2C:58-4 outlines the procedures and requirements 

involved in obtaining a permit to carry a handgun. A permit to 

carry a handgun is different from the permits required to sell

or purchase firearms in New Jersey. See N.J.S.A. 2C:58-2 

(describing license required for retail sale of firearms); 

N.J.S.A. 2C:58-3 (describing required permit to purchase handgun 

and identification card required to purchase firearm). 
4

other land owned or possessed by him, any 

firearm, or from carrying the same, in the 

manner specified in subsection g. of this 

section, from any place of purchase to his 

residence or place of business, between his 

dwelling and his place of business, between 

one place of business or residence and another 

when moving, or between his dwelling or place 

of business and place where such firearms are 

repaired, for the purpose of repair. For the 

purposes of this section, a place of business 

shall be deemed to be a fixed location.

[N.J.S.A. 2C:39-6(e) (emphasis added).]

In this matter, we review the combined involvement of

sheriff’s officers and their supervisory officer, after 

soliciting advice from a representative of the county 

prosecutor’s office, in the decision to charge plaintiff with a

violation of N.J.S.A. 2C:39-5(b)(1). The relevant facts as 

contained in the summary judgment record are summarized as 

follows. 

At about 8:30 p.m. on December 15, 2010, Monmouth County 

Sheriff’s Officers Alexander Torres and Thomas Ruocco arrived at 

a Matawan address to execute a child-support warrant on 

plaintiff Eric Morillo. The address was the one listed on the 

warrant. While Torres went to knock on the front door, Ruocco 

went around the side of the home and discovered plaintiff 

sitting in an idling car parked toward the rear of the side

driveway of the residential home at the listed address,2 which, 

 

2 The home had a Matawan (Monmouth County) mailing address but 

was actually located in Old Bridge in Middlesex County. By 
5

it turned out, was his mother’s. Although the car’s engine was 

running, its headlights were off. Other cars were also parked

in the side area of the property. 

As Ruocco approached the car, he observed plaintiff in the 

passenger seat smoking what appeared to Ruocco to be a marijuana

“roach,” described as being not a “full marijuana cigarette.” 

Ruocco opened the passenger-side door. He stated that the smell 

of burnt marijuana emanated from the vehicle’s interior. 

When Ruocco asked plaintiff if he had any other drugs on 

him, plaintiff told Ruocco that he was carrying a loaded weapon

tucked in the right side of the waistband of his pants. Ruocco 

ordered plaintiff and the person seated in the driver’s seat to 

raise their hands to the car’s ceiling. Ruocco seized the 

weapon and called Torres on his hand-held radio to come and 

assist. Plaintiff and his companion were removed from the 

vehicle and patted down. Plaintiff was arrested on the childsupport warrant. 

While still at the scene, Ruocco phoned his supervisor, 

Sergeant Steven Cooper, to alert him to the circumstances 

involved in executing the warrant and the seizure of the weapon. 

He advised Cooper that while he and Torres were executing the

child-support warrant, they discovered plaintiff, carrying a 

 

virtue of that distinction, the matter later became subject to 

Middlesex County’s jurisdiction.
6

loaded handgun concealed in his waistband, smoking marijuana 

while seated inside a car, with its motor running, parked at the 

home.

Although Ruocco did not ask plaintiff at the scene whether

he had a permit to carry the gun, while en route to police 

headquarters, plaintiff informed the officers that the handgun 

was registered to him and that he had “paperwork” for it. 

Plaintiff told the officers that he was involved in gang 

activity and was carrying the handgun because he feared 

retaliation. Plaintiff also told Ruocco that the home was his 

mother’s and that he had lived in different places. That said, 

according to Ruocco, he assumed that plaintiff was living at the 

home at the time the warrant was executed because the officers 

found plaintiff there. 

Under questioning, Ruocco and Torres admitted that they

never asked plaintiff at the scene whether the firearm paperwork 

was in the house, but when they arrived at headquarters they

told Sergeant Cooper that plaintiff claimed to have such 

paperwork. They also indicated that they were operating on the 

belief that the address at which plaintiff was found was the 

location where he was presently residing, essentially because it 

was the address listed for him for child-support purposes and 

the location where plaintiff was found when executing the 

warrant. The officers’ confusion over whether to charge 
7

plaintiff with unlawful possession arose as a result of the 

circumstances in which plaintiff was found with the loaded gun 

concealed in the waistband of his pants. As Cooper emphasized 

in his response to questioning, plaintiff was not found inside 

the house; he was located in the driveway portion of the 

property, in an idling car with its lights off. Cooper also 

cited the information plaintiff provided to the officers about 

being a gang member, that plaintiff said he feared retaliation, 

and that he was smoking marijuana at the time he was carrying 

the concealed weapon outside the house -- whether or not it was 

his mother’s home and, at the time, his residence. 

Sergeant Cooper telephoned a representative of the 

prosecutor’s office, seeking advice whether, under the 

circumstances, plaintiff should be charged with a weapons

offense. Cooper’s initial inquiry to one assistant prosecutor 

resulted in his referral to another. He spoke ultimately, by 

telephone, with Assistant Prosecutor Sean Brennan, outside the 

presence of Ruocco and Torres. 

Cooper informed Brennan that, during the execution of a 

child-support warrant issued for plaintiff, plaintiff was found 

in possession of a concealed, loaded handgun while seated inside 

an idling vehicle located at the warrant’s address for 

plaintiff. Cooper relayed to Brennan the additional facts that 

the officers had represented: that plaintiff had revealed that 
8

he was a gang member fearing retaliation, and that plaintiff had 

been smoking marijuana in the car in which he had been located. 

Brennan advised Cooper that plaintiff could be charged with 

second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-

5(b)(1), which provides: “Any person who knowingly has in his 

possession any handgun . . . without first having obtained a 

permit to carry the same . . . is guilty of a crime of the 

second degree.” Plaintiff was so charged. The initial 

complaint charging plaintiff with that violation in Monmouth 

County was typed by Cooper and signed by Ruocco. That complaint 

was dismissed on the discovery that the home where plaintiff was 

found was actually located in Middlesex County. Torres signed 

the subsequently prepared complaint charging plaintiff in 

Middlesex County. Cooper, Ruocco, and Torres later prepared 

reports detailing their respective involvement in arresting and 

charging plaintiff.

Plaintiff posted bail on the child-support warrant, but he 

could not cover the bail set on the weapons charge. On January 

14, 2011, plaintiff’s family posted bail for him, and plaintiff 

was released from the Middlesex County jail. 

On March 30, 2011, after receiving confirmation from the 

New Jersey State Police that plaintiff’s handgun had been

purchased with the proper registration, the weapons charge was 

dropped. In the prosecutor’s report explaining the 
9

administrative dismissal of the charge, the prosecutor wrote 

that plaintiff “was found on his own property with a handgun” 

and that plaintiff was the lawful owner of the handgun. Thus, 

the prosecutor dropped the charge based on an application of a 

statutory exemption to the unlawful-possession statute, which 

provides, in pertinent part: “Nothing in subsections b., c. and 

d. of [N.J.S.A.] 2C:39-5 shall be construed to prevent a person 

keeping or carrying about his place of business, residence, 

premises or other land owned or possessed by him, any firearm . 

. . .” N.J.S.A. 2C:39-6(e).

B. 

Plaintiff filed the instant complaint in the Law Division 

against Ruocco, Torres, and Cooper (collectively defendants)

alleging violations of 42 U.S.C.A. § 1983 (Section 1983) and the 

Civil Rights Act (CRA), N.J.S.A. 10:6-1 to -2. Plaintiff 

alleged, in pertinent part, that defendants violated his 

constitutional rights by unlawfully arresting him and charging 

him with unlawful possession of a weapon, which led to his 

incarceration until bail was posted.3 Plaintiff filed a motion 

for summary judgment as to liability. Defendants filed a crossmotion for summary judgment, asserting qualified immunity and 

seeking dismissal of the action. 

 

3 Plaintiff asserted additional claims against defendants and 

other parties. None of those claims are before this Court.
10

The trial court denied defendants’ motion for summary 

judgment.4 The court deemed it impermissible for plaintiff to be 

charged with unlawful possession of a weapon, essentially 

because the gun he carried was lawfully registered to him and he 

was at his present residence when he was found carrying the 

weapon. According to the court, “the crime charged was legally 

impossible” and, thus, probable cause could not exist. Further, 

the trial court found that defendants’ actions were not 

objectively reasonable. The court added that providing 

defendants with qualified immunity “would basically be 

tantamount to saying that there is per se qualified immunity[] 

if you contact a . . . prosecutor.”

After several motions to stay the proceedings and motions 

for leave to appeal, the matter came before the Appellate 

Division, which affirmed the trial court’s judgment. Both 

plaintiff and defendants sought leave to appeal to this Court.

We granted defendants’ motion for leave to appeal the 

Appellate Division’s judgment that affirmed the denial of 

summary judgment based on qualified immunity. 217 N.J. 585 

(2014). We denied plaintiff’s motion for leave to appeal the 

 

4 Plaintiff’s motion for summary judgment was denied. The 

Appellate Division affirmed that determination, following a 

remand by this Court to have the merits of both motions 

addressed. We did not grant leave to appeal on the panel’s 

affirmance of the denial of that motion, and accordingly do not 

address that motion.
11

Appellate Division’s judgment that genuine issues of material 

fact were present.

II.

A. 

Defendants argue that the doctrine of qualified immunity 

shields them from civil liability as a matter of law, 

emphasizing the “unproductive societal costs” that result from

depriving law enforcement officers of that protection from 

personal suits for damages. Curley v. Klem, 499 F.3d 199, 206 

(3d Cir. 2007). Defendants rely on the two-stage test laid out 

by the Supreme Court in Saucier v. Katz, 533 U.S. 194, 201-02, 

121 S. Ct. 2151, 2156, 150 L. Ed. 2d 272, 281-82 (2001), in 

which courts must determine: (1) whether the police officers’ 

actions violated a constitutional right, viewed in the light 

most favorable to the plaintiff; and (2) whether reasonable 

police officers would find the conduct unlawful in the same 

situation.

Under the first prong of the Saucier test, defendants argue 

that they did not violate any constitutional right. Defendants 

assert that plaintiff cannot show that he was arrested without 

probable cause under the totality of the circumstances of

plaintiff’s arrest on the child-support warrant, purported gang 

affiliation, marijuana use, and concealment of his weapon while

being outside the house. Defendants add that police officers
12

are not obligated to conduct legal analysis in the heat of the 

moment, and that the prosecutor’s advice lent credence to the 

officers having probable cause. (Citing Sands v. McCormick, 502 

F.3d 263, 269 (3d Cir. 2007)). 

Under the second prong of the Saucier test, defendants 

argue that even if plaintiff’s constitutional rights were 

violated, the officers acted in an objectively reasonable manner

and officers who act reasonably but mistakenly are entitled to 

qualified immunity. Even if they were mistaken about probable 

cause, defendants assert that, under the totality of the 

circumstances, they nevertheless acted in an objectively 

reasonable manner in charging plaintiff with unlawful possession 

of a weapon after taking reasonable and prudent steps, including 

receiving a prosecutor’s advice.

B. 

Plaintiff argues that the police officers fail both prongs 

of the Saucier test for application of qualified immunity. 

Under the first prong, plaintiff contends that his Second and 

Fourth Amendment rights were plainly violated when he was 

erroneously charged with unlawful possession of a weapon in 

spite of the clear language of N.J.S.A. 2C:39-6(e). Because of 

the plain language of that statutory exemption, plaintiff argues 

that nothing in the record could establish probable cause to 

charge plaintiff with a violation of N.J.S.A. 2C:39-5(b)(1).
13

Under the second prong of Saucier, plaintiff maintains that 

he was at his own home at the time of his arrest and, therefore, 

N.J.S.A. 2C:39-6(e) and subsequent case law reasonably give rise 

to the police officers’ actual or imputed knowledge of the

unlawfulness of the seizure of plaintiff’s handgun from him 

while he was at his home. Plaintiff claims reliance on the 

Supreme Court’s decisions in District of Columbia v. Heller, 554 

U.S. 570, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008), and 

McDonald v. City of Chicago, 561 U.S. 742, 130 S. Ct. 3020, 177 

L. Ed. 2d 894 (2010), which extended the Second Amendment’s 

right to self-defense to the home. Plaintiff also highlights

the maxim that everyone is presumed to know the law, including

the “reasonable” police officer.

Plaintiff additionally contends that police officers cannot 

escape civil liability by relying on prosecutorial advice, for

such reliance must be objectively reasonable, citing Kelly v. 

Borough of Carlisle, 622 F.3d 248, 254-56 (3d Cir. 2010). 

According to plaintiff, Cooper acted in an objectively 

unreasonable manner because he failed to advise the prosecutor 

that the arrest occurred at plaintiff’s home, despite 

acknowledging awareness of the “home carry” exception. Thus, 

plaintiff asserts that defendants are precluded from using

prosecutorial reliance to escape their own incompetence. 

III.
14

Plaintiff asserts a claim under 42 U.S.C.A. § 1983, which 

provides that:

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 . 

. . 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

. . . .

He brings a corollary claim under the CRA, New Jersey’s analogue 

to a Section 1983 action. See N.J.S.A. 10:6-1 to -2; Gormley v. 

Wood-El, 218 N.J. 72, 97-98 (2014). For purposes of analyzing 

the qualified-immunity defense advanced in this matter, the 

examination for both is the same. See Gormley, supra, 218 N.J.

at 113-15; Ramos v. Flowers, 429 N.J. Super. 13, 24 (App. Div. 

2012) (“[T]he Legislature anticipated that New Jersey courts 

would apply the well-established law concerning the affirmative 

defense of qualified immunity in adjudicating damage claims 

under the [CRA].”). Accordingly, we do not differentiate

between those claims for purposes of our examination of the 

asserted affirmative defense.

The doctrine of qualified immunity operates to shield 

“government officials performing discretionary functions 

generally . . . from liability for civil damages insofar as 

their conduct does not violate clearly established statutory or 

constitutional rights of which a reasonable person would have 
15

known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct.

2727, 2738, 73 L. Ed. 2d 396, 410 (1982) (citation omitted). 

The well-established defense of qualified immunity interposes a 

significant hurdle for plaintiffs seeking to recover for 

asserted violations of civil rights at the hands of lawenforcement officials. See City & Cnty. of S.F. v. Sheehan, __ 

U.S. __, __, 135 S. Ct. 1765, 1774, 191 L. Ed. 2d 856, 867 

(2015) (“This exacting standard ‘gives government officials 

breathing room to make reasonable but mistaken judgments’ by 

‘protect[ing] all but the plainly incompetent or those who 

knowingly violate the law.’” (alteration in original) (quoting 

Ashcroft v. al-Kidd, __ U.S. __, __, 131 S. Ct. 2074, 2085, 179 

L. Ed. 2d 1149, 1160 (2011))). The doctrine is well-recognized 

in federal law, see, e.g., id. at __, 135 S. Ct. at 1774, 191 L.

Ed. 2d at 866-67, as well as in the law of New Jersey, see, 

e.g., Gormley, supra, 218 N.J. at 113.5 

 

5 Indeed, the doctrine of qualified immunity and its accompanying 

strong shield retain full vitality, as reinforced by recent 

United States Supreme Court case law. See, e.g., Sheehan, 

supra, __ U.S. at __, 135 S. Ct. at 1774, 191 L. Ed. 2d at 866-

67 (reiterating that qualified immunity protects public 

officials from suit for violations of clearly established 

statutory or constitutional rights unless action was plainly 

incompetent or knowing violation of law); Plumhoff v. Rickard,

__ U.S. __, __, 134 S. Ct. 2012, 2023, 188 L. Ed. 2d 1056, 1069 

(2014) (same); Stanton v. Sims, __ U.S. __, __, 134 S. Ct. 3, 4-

5, 187 L. Ed. 2d 341, 344 (2013) (same); al-Kidd, supra, __ U.S.

at __, __, 131 S. Ct. at 2080, 2083, 179 L. Ed. 2d at 1155, 1159

(same).
16

In New Jersey, the qualified-immunity doctrine is applied,

in accordance with the Harlow pronouncement, to civil rights 

claims brought against law enforcement officials engaged in 

their discretionary functions, including arresting or charging 

an individual based on probable cause to believe that a criminal 

offense has occurred. See Schneider v. Simonini, 163 N.J. 336, 

353-54 (2000), cert. denied, 531 U.S. 1146, 121 S. Ct. 1083, 148 

L. Ed. 2d 959 (2001); Connor v. Powell, 162 N.J. 397, 408-09, 

cert. denied, 530 U.S. 1216, 120 S. Ct. 2220, 147 L. Ed. 2d 251 

(2000); Wildoner v. Borough of Ramsey, 162 N.J. 375, 386 (2000);

Kirk v. City of Newark, 109 N.J. 173, 184 (1988). 

Whether a police officer is entitled to qualified immunity 

is determined by application of a two-prong test. See Wood v. 

Moss, __ U.S. __, __, 134 S. Ct. 2056, 2066-67, 188 L. Ed. 2d

1039, 1051 (2014). The first inquiry asks whether the facts 

alleged, “[t]aken in the light most favorable to the party 

asserting the injury,” show that the challenged conduct violated 

a statutory or constitutional right. See Saucier, supra, 533 

U.S. at 201, 121 S. Ct. at 2156, 150 L. Ed. 2d at 281; Wood, 

supra, __ U.S. at __, 134 S. Ct. at 2067, 188 L. Ed. 2d at 1051.

Second, the court must determine “whether the right was clearly 

established.” Saucier, supra, 533 U.S. at 201, 121 S. Ct. at

2156, 150 L. Ed. 2d at 281. Courts reviewing qualified-immunity 

claims are free to address the two prongs in any order. See al-
17

Kidd, supra, __ U.S. at __, 131 S. Ct. at 2080, 179 L. Ed. 2d at

1155 (“[C]ourts have discretion to decide which of the two 

prongs of qualified-immunity analysis to tackle first.” (citing 

Pearson v. Callahan, 555 U.S. 223, 236, 129 S. Ct. 808, 818, 172 

L. Ed. 2d 565, 576 (2009))). 

The dispositive point in determining whether a right is 

clearly established is whether a reasonable officer in the same 

situation clearly would understand that his actions were 

unlawful. Saucier, supra, 533 U.S. at 202, 121 S. Ct. at 2156, 

150 L. Ed. 2d at 282. “In other words, ‘existing precedent must 

have placed the statutory or constitutional question’ confronted 

by the official ‘beyond debate.’” Plumhoff v. Rickard, __ U.S.

__, __, 134 S. Ct. 2012, 2023, 188 L. Ed. 2d 1056, 1069 (2014)

(quoting al-Kidd, supra, __ U.S. at __, 131 S. Ct. at 2083, 179 

L. Ed. 2d at 1159). 

Our decisional law on qualified immunity follows federal 

case law. As stated in our prior decisions, the doctrine 

“protects all officers ‘but the plainly incompetent or those who 

knowingly violate the law.’” Connor, supra, 162 N.J. at 409

(quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S. Ct. 1092, 

1096, 89 L. Ed. 2d 271, 278 (1986)). Law enforcement officers 

are not entitled to immunity “‘if, on an objective basis, it is 

obvious that no reasonably competent officer would have 

concluded that a warrant should issue.’” Wildoner, supra, 162 
18

N.J. at 386 (quoting Malley, supra, 475 U.S. at 341, 106 S. Ct.

at 1096, 89 L. Ed. 2d at 278). 

Thus, when a plaintiff asserts that he or she was 

unlawfully arrested, a law enforcement officer can defend such a 

claim “by establishing either that he or she acted with probable 

cause, or, even if probable cause did not exist, that a 

reasonable police officer could have believed in its existence.” 

Kirk, supra, 109 N.J. at 184 (citation omitted); see also

Connor, supra, 162 N.J. at 408 (same); Wildoner, supra, 162 N.J.

at 386 (same). “If officers of reasonable competence could 

disagree on the issue of probable cause, the doctrine of 

qualified immunity should be applied.” Connor, supra, 162 N.J.

at 409 (citing Malley, supra, 475 U.S. at 341, 106 S. Ct. at

1096, 89 L. Ed. 2d at 278). 

Procedurally, the issue of qualified immunity is one that 

ordinarily should be decided well before trial, and a summary 

judgment motion is an appropriate vehicle for deciding that 

threshold question of immunity when raised. See Schneider, 

supra, 163 N.J. at 355-56. The issue is one for the court to 

determine. Id. at 359. That said, if “historical or 

foundational facts” that are material to deciding that issue are 

disputed, “the jury should decide those . . . facts on special 

interrogatories”; but, the jury’s role is limited to “the whowhat-when-where-why type of” fact issues. Ibid. (citation and 
19

internal quotation marks omitted). However, the jury does not 

decide the issue of immunity. When no material historical or 

foundational facts are in dispute, or when they are and the jury 

decides those disputed facts pursuant to the above procedure, 

“the trial judge must then decide the legal issue of whether 

probable cause existed and, if not, whether a reasonable police 

official could have believed in its existence.” Id. at 360. 

Importantly, when probable cause is lacking and the trial 

judge is determining whether a reasonable law enforcement 

officer would have believed that probable cause to arrest or 

charge did exist, it is for the judge to “decide whether the 

defendant has proven by a preponderance of the evidence that his 

or her actions were reasonable under the particular facts.” 

Ibid.

We thus turn to review the trial court’s decision, affirmed

by the Appellate Division, denying defendants’ motion for 

summary judgment based on qualified immunity.

IV.

Defendants’ assertion of qualified immunity to plaintiff’s 

cause of action calls into question whether it was objectively 

reasonable for the defendant officers to have charged plaintiff 

with unlawful possession of a handgun under N.J.S.A. 2C:39-

5(b)(1). Plaintiff claims that the statutory exemption from 

prosecution for that offense makes it abundantly clear that the 
20

officers had no reasonable basis to charge him with unlawful 

possession when he was carrying his lawfully registered gun 

while seated in a running car on property surrounding his 

mother’s residence where he was living at the time. The

exemption provides that 

[n]othing in subsections b., c. and d. of 

[N.J.S.A.] 2C:39-5 shall be construed to 

prevent a person keeping or carrying about his 

place of business, residence, premises or 

other land owned or possessed by him, any 

firearm, or from carrying the same, in the 

manner specified in subsection g. of this 

section, from any place of purchase to his 

residence or place of business, between his 

dwelling and his place of business, between 

one place of business or residence and another 

when moving, or between his dwelling or place 

of business and place where such firearms are 

repaired, for the purpose of repair. For the 

purposes of this section, a place of business 

shall be deemed to be a fixed location.

[N.J.S.A. 2C:39-6(e) (emphasis added).]

According to its plain language, the exemption applies to a 

gun carried (1) about a place of business and (2) about a 

residence. However, the language is less than plainly clear 

when one considers the next portion of the sentence pertaining 

to keeping or carrying a weapon. The phrase “premises or other 

land owned or possessed by him” is not perfectly clear as to its 

application. After the word “premises,” there is no comma,

which would have indicated that “premises” was intended to be 

next in a list of places where one unequivocally could keep or 

carry a weapon. Instead, like the next word, “land,” the word
21

“premises” could be read to be modified by the subsequent 

description of being “owned or possessed by [the person keeping 

or carrying the weapon].” 

The statute’s grammatical structure can be read to mean 

that “premises” and “land” -- both more generic descriptions of 

areas than “residence” or “place of business” -- must be owned 

or possessed by the individual to whom a weapon is registered in 

order for that person to lawfully carry the weapon in such 

areas. There is an element of ambiguity inherent in that

portion of the exemption’s sentence structure. It is not 

entirely clear whether the exemption was intended to encompass, 

for example, common areas within a multi-unit dwelling, where 

one may have a right to be if one is residing in a unit in that 

dwelling, but which area technically is not possessed by that 

individual -- such as a basement laundry room. Similarly, it is 

not clear whether it is intended to encompass, for example,

carrying a weapon in the open areas surrounding a private 

residence where one may be staying but which is not owned or 

possessed by the individual. The charge against plaintiff arose 

in such a setting.

Plaintiff was staying/living at his mother’s house at the 

time he was found outside the home carrying a loaded handgun 

concealed in the waistband of his pants. Neither the home nor 

the property was owned or possessed by plaintiff. Giving all 
22

inferences to plaintiff, when he was found carrying that loaded 

weapon in his waistband, he was sitting in a running car, in a 

side driveway, outside his mother’s home. We cannot say that 

the language of the statute is without ambiguity as to its 

intended reach in these circumstances, and case law does not

help resolve the question posed about the statute’s application 

in these circumstances.

There is little case law interpreting or applying the 

statutory exemption in N.J.S.A. 2C:39-6(e). The pronouncements 

made by this Court clearly support that the exemption applies to 

possessing weapons inside one’s dwelling or place of business. 

See, e.g., State v. Petties, 139 N.J. 310, 315 (1995) (“One may 

possess an unlicensed handgun at home.” (citing N.J.S.A. 2C:39-

6(e))); In re Preis, 118 N.J. 564, 568 (1990) (“Our laws draw

careful lines between permission to possess a gun in one’s home 

or place of business, N.J.S.A. 2C:39-6[(e)], and permission to 

carry a gun, N.J.S.A. 2C:39-6[(a)] and N.J.S.A. 2C:39-6[(c)].”); 

State v. Harmon, 104 N.J. 189, 198-99 (1986) (“A homeowner who 

possesses a gun in his home . . . does not violate N.J.S.A.

2C:39-5 because under N.J.S.A. 2C:39-6(e), he is not carrying 

it.”). 

The Appellate Division has referred to the exemption as 

applying to an individual’s carrying a firearm within his or her

home. See, e.g., State v. Navarro, 310 N.J. Super. 104, 108 n.1 
23

(App. Div.) (“We note that a person may keep a handgun within 

his residence without obtaining a permit to carry a handgun . . 

. .” (citing N.J.S.A. 2C:39-6(e))), certif. denied, 156 N.J. 382 

(1998); State v. Gomez, 246 N.J. Super. 209, 216 & n.1 (App. 

Div. 1991) (referring to N.J.S.A. 2C:39-6(e) when noting that 

trial court’s instruction correctly informed jury that defendant 

possessing gun inside his apartment did not violate N.J.S.A.

2C:39-5(b), but that possessing gun outside his dwelling would 

violate that statute); cf. State v. Marques, 140 N.J. Super.

363, 366 (App. Div. 1976) (rejecting argument that college 

dormitory room qualified as dwelling house for purposes of 

exempting defendant from unlawful possession charge under 

predecessor statute to N.J.S.A. 2C:39-6(e)). 

In Gomez, supra, 246 N.J. Super. at 211-12, a jury found 

the defendant guilty of murder and unlawful possession of a 

handgun after the defendant shot another man in a rented room in 

a boarding house. Evidence was presented that the defendant 

carried the handgun outside of his apartment after the shooting. 

Id. at 216 n.1. The court noted that “[t]he trial judge 

correctly instructed the jury that possession of the gun while 

in [the] defendant’s apartment did not constitute a crime, but 

that carrying the weapon outside of the dwelling would violate 

N.J.S.A. 2C:39-5(b).” Ibid. (emphasis added).
24

Thus, the overwhelming majority of New Jersey case law that 

has touched on the circumstances in which the statutory 

exemption is applicable supports the view that the statute 

permits gun owners to carry firearms, without a carry permit, 

inside their residences. On the other hand, no case law 

suggests that the statute generally permits a gun owner to carry 

a firearm outside his or her residence on premises he or she 

neither owns nor possesses. Indeed, the Gomez panel implied the 

opposite: that carrying a firearm outside one’s dwelling 

removed the gun owner from the protections of section 6(e), 

despite that the defendant, to whom that panel referred, was 

merely renting and did not, therefore, “own” or “possess” any 

“premises” or “land” on which he stepped after exiting his 

residence.

Against that backdrop to the unlawful possession of a 

weapon offense and the statutory exemption that pertains in 

certain circumstances, we consider the officers’ claim to 

qualified immunity in this matter. 

V.

The defendant officers’ claim of qualified immunity depends 

on a single determination: whether the circumstances support a 

conclusion that “‘no reasonably competent officer would have 

concluded that a warrant should issue.’” Wildoner, supra, 162 

N.J. at 386 (quoting Malley, supra, 475 U.S. at 341, 106 S. Ct.
25

at 1096, 89 L. Ed. 2d at 278). That conclusion is not supported 

on this record, in our view, as a matter of law.

First, the statute’s language leaves open to debate the 

intended reach of its exemption, and the scope of that exception

remains unsettled by any interpretive decision by the courts. 

The fact that most New Jersey case law applied the home-carry 

exemption to cases where the gun is carried inside the private 

portions of one’s residence, and not to outside areas, indicates 

that the officers were not applying “clearly established” law. 

Under the test for qualified immunity, these officers confronted 

a question of uncertain application of the exemption to the 

unlawful possession statute, arguably taking it beyond the 

“clearly established” framework of our law. See Saucier, supra, 

533 U.S. at 202, 121 S. Ct. at 2156, 150 L. Ed. 2d at 282 

(describing “dispositive inquiry in determining whether a right 

is clearly established [a]s whether it would be clear to a 

reasonable officer that his conduct was unlawful in the 

situation he confronted”).

Second, these officers acted with restraint and prudence in 

the face of a confusing situation. They stated that they tried 

to act cautiously and could not dismiss the possibility that a 

chargeable weapons offense should be added to plaintiff’s arrest 

on the child-support warrant. The sheriff’s officers on the 

scene sought guidance from their supervisor, and the supervisor 
26

sought advice from the prosecutor’s office. The officers’ right 

to the benefit of qualified immunity does not hinge on the 

soundness of the prosecutor’s advice. See Kelly, supra, 622 

F.3d at 255-56 (“[A] police officer who relies in good faith on 

a prosecutor’s legal opinion that the arrest is warranted under 

the law is presumptively entitled to qualified immunity from . . 

. claims premised on a lack of probable cause.”).

Third, we do not rely to any great extent on the 

involvement of legal counsel to insulate these officers from 

liability on the basis of qualified immunity. Rather, we view 

these events in their totality. Therefore, we are not persuaded 

by plaintiff’s effort to call into question the extent to which 

the supervisory officer emphasized to the assistant prosecutor 

that plaintiff had, in fact, been at his residence at the time 

that he was found outside with the loaded gun on his person. 

The prosecutor was informed that the inquiry arose from an 

encounter with an individual based on execution of a childsupport warrant. There was no suggestion that the event 

described was taking place anywhere other than the address for 

the person who was identified on the warrant. Indeed, the 

officers, particularly Ruocco and Cooper, emphasized that they 

assumed plaintiff was residing at that home when the warrant was 

being executed. In acting with caution before proceeding with 

an unlawful possession of a weapon charge, they were focused on 
27

where plaintiff was with the gun, namely outside the home and in 

an idling car, how the loaded weapon was being carried

(concealed in a waistband), and the additional circumstances of 

his being outside with the loaded weapon as told by plaintiff 

and observed by the officers. 

In view of the lack of clarity and guidance available on 

the exemption’s application generally, so long as the gun owner 

is not inside his or her dwelling or place of business, we 

cannot say that no reasonable officer could possibly have been 

led to believe that probable cause existed to charge plaintiff 

with unlawful possession of a weapon. In these circumstances, 

plaintiff’s possession of his weapon could be perceived as 

beyond the exemption’s protection. The statute is unclear as to 

how to treat premises or land if not owned or possessed by the 

person carrying a registered gun. We note specifically that we 

do not resolve that issue in light of the posture of this case. 

Moreover, the situation here was complicated for the officers by 

the fact that the weapon indisputably was loaded with a round in 

the chamber, was concealed in plaintiff’s waistband as he was 

seated in an idling car with its lights off and situated in a 

driveway to the residence, and plaintiff was expressing concern 

about gang retaliation. 

In sum, under the test for qualified immunity, the 

defendant officers confronted a question of uncertain 
28

application of the exemption to the unlawful possession statute.

This was not a setting in which the application of the statutory 

exemption to unlawful possession was “clearly established” in 

the framework of our law. See Saucier, supra, 533 U.S. at 202, 

121 S. Ct. at 2156, 150 L. Ed. 2d at 282 (requiring indication 

that reasonable officer in same circumstances clearly would have 

known conduct was unlawful for “clearly established” test to be 

met). Further, under the standard of competence required for 

qualified immunity, it cannot fairly be said in this instance

that no reasonably competent officer would have believed 

probable cause existed to go forward with an unlawful possession 

charge against plaintiff under these circumstances. “If 

officers of reasonable competence could disagree on the issue of 

probable cause, the doctrine of qualified immunity should be 

applied.” Connor, supra, 162 N.J. at 409 (citing Malley, supra, 

475 U.S. at 341, 106 S. Ct. at 1096, 89 L. Ed. 2d at 278). 

In short, law enforcement officials should not have to fear 

facing a ruinous civil lawsuit and substantial financial loss 

when acting reasonably in difficult circumstances and on 

uncertain legal terrain. Accordingly, and for good reason, the 

qualified-immunity doctrine “protects all officers ‘but the 

plainly incompetent or those who knowingly violate the law.’”

Ibid. (quoting Malley, supra, 475 U.S. at 341, 106 S. Ct. at 

1096, 89 L. Ed. 2d at 278). Neither description fairly 
29

characterizes defendants’ actions here. The officers’ actions 

defy characterization as “plainly incompetent” and there was no 

knowing violation of law. Viewed in their totality, the

officers’ involvement in the circumstances that led to the 

filing of the unlawful possession charge against plaintiff does 

not rise to the level required to meet the standard for 

stripping these officers of the protection of qualified 

immunity. Ibid.

VI.

The judgment of the Appellate Division is reversed and the 

matter remanded for dismissal of the Section 1983 and CRA claims 

against the defendant officers.

CHIEF JUSTICE RABNER; JUSTICES ALBIN, PATTERSON, FERNANDEZVINA, and SOLOMON; and JUDGE CUFF (temporarily assigned) join in 

JUSTICE LaVECCHIA’s opinion. 
 SUPREME COURT OF NEW JERSEY

NO. A-88 SEPTEMBER TERM 2013

ON APPEAL FROM Appellate Division, Superior Court

ERIC MORILLO,

Plaintiff-Respondent,

v.

MONMOUTH COUNTY SHERIFF’S

OFFICER ALEXANDER TORRES,

MONMOUTH COUNTY SHERIFF’S

OFFICER THOMAS RUOCCO,

MONMOUTH COUNTY SHERIFF’S

OFFICE, and MONMOUTH COUNTY

SERGEANT STEVEN COOPER,

Defendants-Appellants,

and

OLD BRIDGE TOWNSHIP ASSISTANT

MUNICIPAL COURT ADMINISTRATOR

SUSAN BRUCHEZ, and OLD BRIDGE

TOWNSHIP MUNICIPAL COURT,

Defendants.

DECIDED July 13, 2015

Chief Justice Rabner PRESIDING

OPINION BY Justice LaVecchia 

CONCURRING/DISSENTING OPINION BY 

DISSENTING OPINION BY 

CHECKLIST REVERSE AND 

REMAND

CHIEF JUSTICE RABNER X

JUSTICE LaVECCHIA X

JUSTICE ALBIN X

JUSTICE PATTERSON X

JUSTICE FERNANDEZ-VINA X

JUSTICE SOLOMON X

JUDGE CUFF (t/a) X

TOTALS 7