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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
ANTHONY ROMANO : CIVIL ACTION
Plaintiff : Dkt. No. 09-2134
MICHAEL KANE, :
BRIEF IN SUPPORT OF DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT
This motion arises from a personal dispute between defendant Michael Kane (“Mr.
Kane”) and plaintiff Anthony Romano (“Plaintiff”) that occurred at a football game. The two
men were fans of rival teams. Mr. Kane and his 10-year-old son (“Joey”) were seated behind
Plaintiff, who stood on his seat and blocked Joey’s view of the field. Joey became so upset that
he began crying. After repeatedly asking Plaintiff to sit so that Joey could see, Mr. Kane tripped
Plaintiff with handcuffs. Since Mr. Kane was an off-duty officer in partial uniform, Plaintiff
claims that Mr. Kane acted under color of law and has filed suit pursuant to 42 § 1983. One acts
under color of law when he undertakes to perform his official duties, or he purports to act with
state authority. There is no evidence that Mr. Kane undertook to perform official police duties
when he tripped Plaintiff. Mr. Kane was motivated by purely private concerns, specifically,
Plaintiff’s refusal to sit down so that Joey could enjoy the game. Furthermore, Mr. Kane did not
purport to act with state authority. He did not flash his badge. He did not identify himself as a
police officer. He did not arrest anyone. And use of a state-issued weapon is not enough to
support a finding that Mr. Kane acted under color of law. Mr. Kane moves for summary
judgment as Mr. Kane’s actions at the stadium do not satisfy the color of law requirement of
Plaintiff’s § 1983 claim.
STATEMENT OF FACTS
On September 20, 2009, Mr. Kane was at Giants Stadium with his 10-year-old son, Joey,
to see the New York Giants play the New York Jets. Depo. Michael Kane 19:45-20:55 (Jan. 31,
2010). The father and son wore matching Giants jerseys and large “Giants #1” foam hands. Id. at
20:91-21:94. Under Mr. Kane’s football jersey he wore his City of East Rutherford police
uniform and badge. Depo. Kane 21:98-99. Joey, who was becoming a big football fan, was
excited to see the game, especially since he was going to see Mr. Kane honored on the field at
halftime for his service as a police officer. Id. at 19:45-46, 20:55-57. Mr. Kane and Joey did not
sit in the section set aside for police officers. Id. at 20:61-63.
Plaintiff, a self-described “die-hard Jets fan,” was in the row in front of Mr. Kane and
Joey. Depo. Romano 14:16; Depo. Kane 21:133. Plaintiff was standing, waving his hands,
yelling, swearing and blocking Joey’s view of the game. Anthony Romano 14:82, 90-91 (Jan. 30,
2010); Depo. Kane 15:133, 21:137. Mr. Kane asked Plaintiff to sit several times throughout the
first half and Plaintiff began ignoring Mr. Kane. Depo Kane 22:142-147, 145-146. Mr. Kane
then indicated to Plaintiff that it was important that he stay seated so that Joey could see Mr.
Kane on the field. Id. at 22:146-147. Before Mr. Kane left his seat for the halftime ceremony, he
took off his jersey, donned his duty belt that contained police-issued items (a nightstick, mace, a
flashlight and a pair of handcuffs) and proceeded to the field. Id. at 21:116-117, 125-128.
When Mr. Kane returned from the halftime ceremony, Joey began crying because he was
unable to see Mr. Kane on the field since Plaintiff kept standing during halftime. Id. at 22:151-
152. Mr. Kane then placed his duty belt back into his bag, put his Giants jersey back on over his
police uniform and gave his handcuffs to Joey to play with because he was upset. Id. at 22:161-
163. As Plaintiff’s antics and apparent drunkenness intensified, the fan sitting next to Plaintiff,
Adam Axvig (“Mr. Axvig”), became upset and yelled at Plaintiff to stop. Id. at 15:104-105;
Depo. Kane 22:174. Seeing that Mr. Kane was an officer, Mr. Axvig asked if Mr. Kane would
get Plaintiff to stop throwing string confetti. Depo. Romano 15:110; Depo. Kane 22:174-175.
Mr. Kane responded that he was off-duty and there with his son. Depo. Romano 15:114. Mr.
Kane again asked Plaintiff to sit down and stop throwing confetti. Id. at 15:115.
Plaintiff confronted Mr. Kane and told him that, “he was off-duty and he needed to back
off.” Id. 15:119-120. Mr. Kane and Plaintiff then exchanged words and Mr. Kane jabbed
Plaintiff with a novelty foam hand. Id. at 15:125-126; Depo. Kane 23:185-195. Park Attendant
Andrew Harrison (“Mr. Harrison”) arrived to see what the commotion was about. Mr. Kane told
Mr. Harrison that, “Everything was under control. Just two fans having a disagreement.” Id. at
23:207. Mr. Harrison responded, “It’d be a shame to kick out one of East Rutherford’s finest.”
Depo. Romano 15:114. Since Mr. Kane and Plaintiff “were just fans who had gotten a little
rambunctious” and no one was hurt, the park security attendant did not eject either party. Depo.
Andrew Harrison 27:60 (Jan. 31, 2010).
After Mr. Harrison left, Plaintiff resumed honking a horn and began standing on his seat,
again blocking Joey’s view. Depo. Kane 23:224-226. Mr. Kane then took the handcuffs from
Joey, put the chain of the handcuffs around Plaintiff’s legs and pulled the chain back toward
himself. Id. at 23:226-24:233. As a result, Plaintiff lost his balance and fell over the balcony to
the seats below, sustaining injuries. Depo. Romano 16:176, 17:188-190.
Mr. Kane never placed Plaintiff under arrest. Id. at 16:178. Mr. Kane never threatened
Plaintiff with arrest or any criminal charges. Id. 16:182-184. Mr. Kane never locked the
handcuffs around the Plaintiff in any way. Id. at 22:169-172. Though Mr. Kane was written up
for conduct unbecoming a police officer, he was not written up for undertaking police action
while off-duty. Employee Reprimand Form, City of East Rutherford (Sept. 22, 2009); City of
East Rutherford Police Manual Rule No. 41, (amended Apr. 27, 2005).
Summary judgment is appropriate if, “‘the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that [the moving party] is entitled to a judgment as a
matter of law.’” Fed. R. Civ. P. 56(c). For a nonmoving party’s claim to survive summary
judgment, the evidence must be "such that a reasonable jury could return a verdict for the
nonmoving party." Anderson v. Liberty Lobby, 477 U.S. 242, 242 (1986). In reviewing the case,
“all inferences must be drawn against the movant . . . and in favor of the nonmovant.” Erie
Telecommunications v. City of Erie, 853 F.2d 1084, 1093 (3d Cir.1988). The Third Circuit has
stated that, “The purpose of summary judgment is to avoid a pointless trial in cases where it is
unnecessary and would only cause delay and expense.” Goodman v. Mead Johnson & Co., 534
F.2d 566, 573 (3d Cir.1976).
A § 1983 claim has two requirements: “a plaintiff must allege the violation of a right
secured by the Constitution,” and “that the alleged deprivation was committed by a person acting
under color of state law.” 42 U.S.C.A. § 1983 (Westlaw current through Pub. L. 111-140
approved Feb. 16, 2010); West v. Atkins, 487 U.S. 42 (1988). This motion concerns the “color of
law” requirement. Summary judgment must be granted unless Plaintiff shows a reasonable jury
could find that Mr. Kane, “exercised power ‘possessed by virtue of state law and made possible
only because the wrongdoer is clothed with the authority of state law.’” West, 487 U.S. at 49,
THE COURT SHOULD GRANT SUMMARY JUDGMENT TO MR. KANE BECAUSE MR.
KANE DID NOT UNDERTAKE TO PERFORM HIS OFFICIAL DUTIES, NOR DID HE
PURPORT TO POSSESS STATE AUTHORITY AND THUS HE DID NOT ACT UNDER
COLOR OF LAW AS REQUIRED FOR PLAINTIFF’S § 1983 CLAIM.
This court should grant summary judgment to Mr. Kane because he did not act under
color of law when he used handcuffs to trip Plaintiff, a fan of a rival team who upset Mr. Kane’s
son at a football game. An act is performed under color of law for the purposes of § 1983 when it
is an act "of a state or local employee in her official capacity" or when the actor is without actual
authority, but "purports to act according to official power." Barna v. City of Perth Amboy, 42
F.3d 809, 816 (3d Cir. 1994). Plaintiff bears the burden of setting forth evidence that a
reasonable jury could find that Mr. Kane was acting under color of law. Groman v. Township of
Manalapan, 47 F.3d 628, 638 (3d Cir. 1995). First, the evidence could not support a finding that
Mr. Kane undertook to perform his official duties when he used handcuffs to trip Plaintiff. Mr.
Kane’s act stemmed from a purely private dispute with Plaintiff. Furthermore, Mr. Kane did not
purport to possess state authority. And, even if the court finds that Mr. Kane purported to use
state authority, the evidence will not support a finding that Mr. Kane’s actions were made
possible only because he was clothed with color of law. Thus summary judgment is appropriate.
A. The evidence cannot not support a finding that Mr. Kane undertook to perform his
official duties when he used handcuffs to trip Plaintiff since Mr. Kane’s act was unrelated
to official duties because it stemmed from a purely private dispute with Plaintiff, a fan of
a rival football team who upset Mr. Kane’s son.
No reasonable jury could find that Mr. Kane undertook to perform his official duties
when he used handcuffs to trip Plaintiff. Mr. Kane’s act was unrelated to official duties because
he was not in the stands on official business, he did not attempt to arrest Plaintiff and the
altercation arose from a private dispute with Plaintiff.
The Supreme Court defined the scope of color of law stating, “[A]cts of officers in the
ambit of their personal pursuits are plainly excluded. Acts of officers who undertake to perform
their official duties are included whether they hew to the line of their authority or overstep it."
Screws v. U.S., 325 U.S. 91, 111 (1945) The Third Circuit stated that, “[E]ven ‘acts committed
by a police officer ... while on duty and in uniform are not under color of state law unless they
are in some way ‘related to the performance of police duties.’” Mark, 51 F.3d at 1151.
In Barna, an assault by off-duty officers with a police-issued weapon was not under color
of law since the fundamental friction between the parties was personal and involving family
members, and the officers did not attempt to carry out police duties. Barna, 42 F.3d at 818.
Specifically, the officers’ attempt to leave after the assault showed that they were not trying to
arrest the plaintiff. Id.
In Abraham an off-duty, uniformed officer was moonlighting as a mall security guard.
Abraham v. Raso, 183 F.3d 279, 283-284 (3d Cir. 1999). She responded to a call requesting that
off-duty officers patrolling the mall confront a shoplifter. Id. at 283. The officer pursued the
suspect outside, ordered him to stop and sought to arrest him. Id. The court found that the officer
was acting under color of law because she acted in furtherance of official duty. Id. at 287. In
Mark, however, a firefighter who committed arson was acting in private capacity and not under
color of law. The Mark court distinguished the defendant’s arson from the line of cases like
Abraham. Mark, 51 F.3d at 1151. The difference, the court said, was that a uniformed off-duty
officer’s work moonlighting as a security guard is still in some way related to the performance of
police duties. Id.
Unlike the defendant in Abraham, Mr. Kane did not seek to arrest Plaintiff. Mr. Kane’s
departure soon after the altercation strongly supports the conclusion that he was not trying to
effect an arrest. See Barna, 42 F.3d at 818. Furthermore, Mr. Kane did not lock the handcuffs
around Plaintiff’s wrists or ankles; Mr. Kane did not lock the handcuffs around Plaintiff in any
way. Also, in Abraham the off-duty officer was performing a function that was indistinguishable
from her official duties. Like a police officer, a security guard’s duty is to protect persons and
property. When an off-duty officer acts pursuant to his duty as a security guard, private action
becomes indistinguishable from state action. The court observed in Mark: though a firefighter’s
duty relates to fires, his job does not relate to starting them. Though Mr. Kane’s duty relates to
fights, his job does not relate to starting them.
Like the defendants in Barna, Mr. Kane was at the location of the dispute for private
reasons. Mr. Kane was enjoying a football game with his son. Though he participated in the on-
field ceremony as part of his required “community building” hours, he was only on official
police business while he was on the field. The fact that Mr. Kane did not sit in the area set aside
for the police officers and instead sat in seats belonging to his friends is further evidence that his
time in the stands was private and not official police business. This starkly contrasts with
Abraham, where the officer responded to a call sent out to police officers and sought to arrest a
suspected shoplifter. Mr. Kane did not seek to perform police duties. Mr. Kane’s act was
privately motivated and outside the scope of § 1983.
B. Mr. Kane did not purport to possess state authority because he took no actions to identify
himself as an officer like placing an individual under arrest or flashing a badge, and,
even if the court finds that Mr. Kane purported to use state authority, the evidence will
not support a finding Mr. Kane’s actions were made possible only because he was
clothed with color of law.
Mr. Kane was a fan who happened to be in a police uniform when he was involved in a
private dispute during a football game. Mr. Kane did not purport to possess state authority. Mr.
Kane took no actions to identify himself as a police officer. Mr. Kane did not place anyone under
arrest. Even if the court finds that Mr. Kane purported to use state authority, the evidence will
not support a finding that purported authority made possible Mr. Kane’s tripping of the Plaintiff.
An actor “who is without actual authority, but who purports to act according to official
power, may also act under color of state law.” Barna, 42 F.3d at 816. 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.” Barna, 42 F.3d at 816. Also, the action must be a “misuse of power ...
made possible only because the wrongdoer is clothed with the authority of state law.” U.S. v.
Classic, 313 U.S. 299, 326 (1941) (emphasis added).
In Barna, two off-duty officers did not purport to act with state authority even though
they used a police-issued weapon during an attack and the plaintiffs were aware that their
attackers were officers. Barna, 42 F.3d at 813-814. In response to the plaintiff’s acknowledging
that the officers were out of their jurisdiction and therefore unauthorized to perform police
duties, one of the officers told the plaintiff, “I’ll show you jurisdiction.” Id. at 813. Then both
officers attacked him. Id.
To illustrate manifestations of pretended authority, Barna used Rivera v. La Porte, 896
F.2d 691 (2d Cir. 1990); Lusby v. T.G. & Y. Stores, 749 F.2d 1423 (10th Cir. 1984); and Stengel
v. Belcher, 522 F.2d 438 (6th Cir. 1975). In Rivera, an off-duty officer yelled, “I'm a police
officer, you're under arrest,” and handcuffed the plaintiff. 896 F.2d at 691-692, 695-696. In
Lusby, an off-duty officer flashed his badge, identified himself as a police officer and placed the
plaintiff under arrest. 749 F.2d at 1429. In Stengel, an off-duty officer intervened in a bar fight
pursuant to police department regulations. 522 F.2d at 441-442.
In Romano, the court found that while the defendant police officer may have been in
uniform with his badge and revolver visible during an alleged sexual assault of a minor, “none of
these indicia of state authority enabled” the officer to engage in the abuse. Romano v. Young,
2009 WL 839017, 1, 7 (E.D. Pa. July 23, 2009) (emphasis in original).
Unlike the defendants in Rivera, Lusby and Abraham, it is undisputed that Mr. Kane
neither placed Plaintiff under arrest, nor threatened Plaintiff with arrest or any criminal charges.
And, like the plaintiffs in Barna and Romano, Plaintiff knew that Mr. Kane was an officer.
Though Mr. Kane wore his badge; he did not flash it. And just as mere knowledge that the
defendant was an officer was insufficient in Barna and Romano, it is insufficient here.
Mr. Kane’s statement to Mr. Harrison that, “Everything was under control,” is too
ambiguous to support a finding that Mr. Kane was purporting to perform official duties. Mr.
Kane was likely referring to a lull in his dispute with Plaintiff. This is supported by the fact that
Mr. Harrison said Mr. Kane and Plaintiff had settled down when Mr. Harrison arrived. The
statement could just as likely have been Mr. Kane acknowledging that he and Plaintiff had
suspended hostilities. Even if this amounted to purported state authority, the evidence does not
support a finding that without Mr. Kane’s purported authority he would have been ejected from
the stadium after jabbing Plaintiff with a novelty foam hand. Mr. Harrison testified that stadium
policy requires park attendants to “eject fans who assault other fans.” Mr. Harrison said he did
not eject Mr. Kane from the stadium after the foam hand incident because “nobody was hurt.”
This is consistent with Mr. Harrison’s choice to eject Mr. Kane after Plaintiff fell.
Mr. Kane did not intervene in the dispute between Mr. Axvig and Plaintiff pursuant to
police duties. When asked to deal with the unruly Plaintiff, Mr. Kane declined. Instead of
purporting to have authority, Mr. Kane expressed the opposite: it was his day off. And, like the
defendants in Barna, Mr. Kane was not authorized to undertake police action. Moreover, Mr.
Kane would have forcibly tried to seat Plaintiff regardless of whether Mr. Axvig requested that
Mr. Kane get Plaintiff to stop throwing things. Mr. Axvig asked only that Mr. Kane get Plaintiff
to stop throwing things, not that Mr. Kane get Plaintiff to sit. It is unlikely that Plaintiff’s
standing was a concern for Mr. Axvig since he was sitting beside, not behind, Plaintiff. Mr. Kane
and Joey, however, were behind Plaintiff and his standing obscured Joey’s view of the game. Mr.
Kane’s attempt to trip Plaintiff would have therefore occurred regardless of Mr. Axvig’s request.
Mr. Kane’s repeated requests that Plaintiff sit down are as effective in coloring Mr.
Kane’s act with pretense of law as they were in keeping Plaintiff seated. First, Mr. Kane’s
demands were consistent with any fan’s response to getting stuck behind an unruly spectator. Mr.
Kane never flashed his badge and he never said, “I’m a police officer, and you should sit down.”
Second, like the Barna plaintiff, Plaintiff was dismissive of Mr. Kane, telling him that he was
“off-duty and he needed to back off.” Plaintiff’s response was not that of a fleeing criminal like
the decedent in Abraham. If Plaintiff did not think that Mr. Kane was acting with state authority,
this court should not find that Mr. Kane purported to act with such authority. Third, even if these
requests amount to purported state authority, the evidence does not support a finding that these
words enabled Mr. Kane to trip Plaintiff. If Plaintiff submitted to Mr. Kane’s requests and sat
down instead of standing on his seat, Mr. Kane would have been unable to trip him.
Mr. Kane took no actions to identify himself as a police officer. He did not flash a badge.
He did not place anyone under arrest. Mr. Kane thus did not purport to possess state authority.
And, even if the court finds that Mr. Kane purported to use state authority, he would have tripped
Plaintiff regardless of such purported authority.
For these reasons, defendant Michael Kane respectfully requests that this Court grant the motion
for summary judgment.
Attorney for Michael Kane
DATED: March 25, 2010