JAMES E. CARTER v. THE TRENTON POLICE DIVISION

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6083-08T16083-08T1

JAMES E. CARTER,

Plaintiff-Appellant,

v.

THE TRENTON POLICE DIVISION;

THE CITY OF TRENTON;

LIEUTENANT DONALD WINTERS;

SERGEANT RICHARD MERLINO;

SERGEANT BERNARD HILL, all

individually and as police

officers for the City of Trenton,

Defendants-Respondents,

and

TRENTON POLICE DIRECTOR JOSEPH

SANTIAGO,

Defendant.

_______________________________________

 

Argued March 16, 2010 - Decided

Before Judges Carchman and Ashrafi.

On appeal from Superior Court of New Jersey,

Law Division, Mercer County, Docket No.

L-3175-04.

Clifford D. Bidlingmaier argued the cause for appellant (Law Office of Robin Kay Lord, LLC, attorneys; Robin K. Lord, on the brief).

Emmett E. Primas, Jr. argued the cause for respondents Lieutenant Donald Winters and Sergeant Richard Merlino.

Rocky L. Peterson argued the cause for respondent Sergeant Bernard Hill (Hill Wallack, LLP, attorneys; Mr. Peterson, of counsel and on the brief).

R. Denise Lyles, City Attorney, attorney for respondent City of Trenton (Kimberley M. Wilson, Assistant City Attorney, on the brief).

PER CURIAM

Plaintiff James Carter appeals from orders dated June 26, 2009, granting summary judgment to defendants on his claims for injuries after he was shot and wounded by Trenton Police officers. We affirm the decision of the trial court dismissing plaintiff's claims for the reasons stated in the succinct and comprehensive oral opinion of Judge Douglas Hurd. We add the following comments to summarize the facts and to highlight disputed legal issues raised on appeal.

Plaintiff's statement of material facts, submitted for the summary judgment record as required by Rule 4:46-2(b), admitted the material facts alleged by the moving defendants and only disputed matters that do not affect disposition of the summary judgment motions. The relevant facts are as follows.

After midnight on June 8, 2003, plaintiff was sitting on his porch in Trenton when he heard a girl yelling that a friend of plaintiff, Marion Kind, had shot a woman. As it turned out, Kind had killed a woman in a bar and also shot her husband. The police had obtained Kind's name and description from witnesses in the bar and were looking for him.

Kind came to plaintiff's house and sat with him for a while on the porch. Plaintiff saw that Kind was very upset. Kind told plaintiff he had shot someone and did not expect to live much longer. He reloaded a handgun in plaintiff's presence. Kind left plaintiff's home and walked toward an alley, still very upset. Plaintiff followed Kind and at the same time called 911 on his cell phone, reporting that his friend had a gun and might kill himself or hurt someone else. He told the police where Kind was going. Plaintiff then approached Kind in the dark alley to talk to him. He was standing immediately next to Kind when Trenton police officers arrived at about 1:00 a.m.

Lieutenant Winters approached the two men in the alley from the front and turned a flashlight on them. Winters recognized Kind and saw that he had his hand behind his back. He yelled to the men to show their hands. Plaintiff held his hand high up, holding a cell phone, and he told Winters that he was the one who had called the police. According to Winters, he ordered plaintiff to step away from Kind, but plaintiff stayed where he was. Kind suddenly pointed his gun and fired a shot at Winters from a distance of ten to twenty feet. Winters fell to his hands and knees to avoid being shot.

At the same time, Sergeants Merlino and Hill were approaching in the alley from the side of the two men. They could see only profiles of the men, with plaintiff between them and Kind. As Merlino saw Kind fire a shot at Winters and then saw Winters go to the ground, he thought Winters had been shot and was about to be shot again and killed. Merlino began firing toward Kind and plaintiff. Kind turned toward Merlino and fired a shot, but he missed Merlino, too.

Sergeant Hill also began firing his gun at Kind and plaintiff. The two sergeants fired all twenty-eight of their rounds. Both Kind and plaintiff were hit by the police gunshots, and they fell to the ground. Plaintiff was hit twice, in the leg and foot, but the record before us does not contain medical evidence describing the severity of his injuries.

When the firing stopped, Lieutenant Winters got off the ground and yelled to the other officers to cease fire. He approached the two men on the ground, put his foot on Kind's arm, and kicked Kind's handgun away from his reach. By that time, other officers had arrived, and they handcuffed both Kind and plaintiff.

Medical emergency personnel also soon arrived. Plaintiff felt an item on the back of his leg, and then realized that someone had cut off his pants. He had been barefoot and was not wearing anything under his pants. With his pants left in the alley and naked from the waist down, plaintiff was taken by ambulance to a hospital, where he was treated for his injuries.

Until the next morning, plaintiff remained under police guard handcuffed to his hospital bed, and family members were not permitted to see him. A police officer asked him whether he had been with Kind in the bar where the victims had been shot. The next morning, after the police determined that plaintiff was not involved in the shooting and would not be charged with any offense, the handcuff and the police guard were removed.

In his amended complaint, plaintiff charged the Trenton Police Division, and Winters, Merlino, and Hill individually, with causing personal injury to him and violating his civil rights by use of unreasonable and excessive force (count one), deliberate indifference to serious medical needs (count two), false arrest and imprisonment (count three), municipal and supervisory vicarious liability (count four), and negligent training and supervision (count five).

In opposing summary judgment, plaintiff did not dispute that he lacked evidence to support count two, failure to attend to his medical needs after the shooting. He also had no evidence that he had been strip-searched, as alleged in his complaint. Plaintiff did not know whether a police officer or medical personnel had cut off his pants, and he could only testify to feeling something on his leg that resulted in his being left naked from the waist down. The evidence supports only a finding that plaintiff's pants were removed to facilitate medical examination of wounds to his leg and not for the purpose of conducting a strip search in the alley.

Plaintiff's contentions are thus narrowed to whether the evidence demonstrated a genuine issue of disputed fact regarding excessive deadly force used by the police, and whether the Trenton Police Division could be held liable for failing to train its officers adequately in responding to an incident where an innocent person is at risk of being shot by the police.

We agree with Judge Hurd that the officers were immune from liability under the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 12-3. The statute conferring immunity states:

A public employee is not liable if he acts in good faith in the execution or enforcement of any law. Nothing in this section exonerates a public employee from liability for false arrest or false imprisonment.

[N.J.S.A. 59:3-3.]

The statute can apply to plaintiff's claims of excessive force and negligence, but by its own terms, it does not apply to count three of plaintiff's amended complaint alleging false arrest. Also, under N.J.S.A. 59:3-14a, a public employee is not immune from liability under the statute if his actions constitute willful misconduct.

In Alston v. City of Camden, 168 N.J. 170, 177, 188 (2001), the Court held that police negligence in the shooting of an innocent bystander was subject to immunity provisions of the Tort Claims Act for injury caused in the course of pursuit of a fleeing felon, N.J.S.A. 59:5-2b, and for good faith enforcement of the law, N.J.S.A. 59:3-3. As to the latter statute, defendants could demonstrate their immunity either by showing that their actions were objectively reasonable or that they acted with subjective good faith in executing and enforcing the law. Alston, supra, 168 N.J. at 186 (citing Bombace v. City of Newark, 125 N.J. 361 (1991)).

Here, plaintiff relies on the report of his expert witness, Professor of Criminology R. Paul McCauley, Ph.D., to argue the existence of a factual dispute regarding whether the officers acted reasonably and in good faith when they fired shots toward plaintiff.

Initially, we reject the argument of defendants Winters and Merlino that the expert report is not the type of evidence that the court is permitted to consider under Rule 4:46-2(c) in opposition to a motion for summary judgment. An expert report can and often does provide the basis to find a genuine issue of disputed fact that entitles the party opposing summary judgment to present the matter to a jury for determination. See Zeigelheim v. Apollo, 128 N.J. 250, 264 (1992); Atlantic Paradise Assocs., Inc. v. Perskie, Nehmad & Zeltner, 284 N.J. Super. 678, 686 and n.3 (App. Div. 1995), certif. denied, 143 N.J. 518 (1996).

We agree with defendants, however, that an expert report cannot provide the legal conclusions that preclude summary judgment. See Boddy v. Cigna Prop. & Cas. Cos., 334 N.J. Super. 649, 658-59 (App. Div. 2000); Healy v. Fairleigh Dickinson Univ., 287 N.J. Super. 407, 413 (App. Div.), certif. denied, 145 N.J. 372, cert. denied, 519 U.S. 1007, 117 S. Ct. 510, 136 L. Ed. 2d 399 (1996). Here, McCauley criticized the officers for failing to take cover as they approached an armed and emotionally disturbed murder suspect, and thus he blamed the officers for instigating the gunshots that resulted in injury to plaintiff. He also said that the police should not have returned fire because plaintiff was an innocent bystander who was at risk. He concluded that the police officers were "reckless" in firing shots in a dark alley at the two men, only one of whom was the suspect they were seeking. McCauley reached a multiple of additional conclusions, including that "the officers' use of deadly force was objectively unreasonable, excessive, and was willful misconduct."

Clearly, there is no evidence of willful misconduct in this record. While neither the statute nor case law gives a precise definition of that phrase, it is clear that willful misconduct "requires 'much more' than mere negligence." Alston, supra, 168 N.J. at 185. It requires a showing of "reckless indifference to the consequences" and conscious and intentional conduct with knowledge that injury will likely result. McLaughlin v. Rova Farms, Inc., 56 N.J. 288, 305 (1970). In short, willful misconduct requires "conscious wrongdoing." Fielder v. Stonack, 141 N.J. 101, 124 (1995). It has also been defined as "the commission of a forbidden act with actual (not imputed) knowledge that the act is forbidden." Ibid. (quoting Marley v. Borough of Palmyra, 193 N.J. Super. 271, 294-95 (Law Div. 1983)).

In this case, the officers were not consciously engaged in wrongdoing. They were shooting to protect themselves from gunfire. They cannot be said to have committed a forbidden act with actual knowledge that their actions in firing their guns were forbidden. There is no factual support in the record for McCauley's conclusion that the officers' use of deadly force was willful misconduct. Where an expert's opinion provided as opposition to summary judgment is not supported by the facts, the court can disregard it as a net opinion. See Smith v. Estate of Kelly, 343 N.J. Super. 480, 497 (App. Div. 2001).

Furthermore, in finding the officers' actions objectively unreasonable, McCauley repeatedly referred to plaintiff as an innocent bystander. While plaintiff was innocent and had good motives in attempting to help his friend, he was not a bystander. He voluntarily placed himself in a position of danger "shoulder-to-shoulder" with an armed killer fleeing the police, and he failed to heed the command of Lieutenant Winters to step away from Kind. In his reply brief, plaintiff adamantly contests that Winters' command to step aside was an undisputed fact in the summary judgment record, but he has no evidence to the contrary. He only argues that he and defendants other than Winters did not testify they heard such a command. On the subject of the reasonableness of the police conduct, however, the question of plaintiff's hearing the command is not decisive. The important factor is that plaintiff placed himself in danger by remaining immediately next to an armed, fleeing killer as the police approached to apprehend him.

We recognize, of course, that the critical events occurred within a matter of seconds, and plaintiff is not guilty of wrongdoing for failing to look first to his own safety. But the police were also required to make split-second decisions to protect themselves against deadly force used by Kind. Their conduct must also be viewed in the context of the circumstances they were facing and the danger to their own lives.

While an expert could provide an opinion that the actions of the officers in firing toward the two men were excessive and unreasonable from an objective point of view, whether the actions vitiate good faith immunity under N.J.S.A. 59:3-3 is a legal issue to be determined as a matter of law. Wildoner v. Borough of Ramsey, 162 N.J. 375, 387 (2000). Plaintiff argues that his expert concluded the police acted recklessly and that conclusion establishes a disputed issue for trial. Even if we were to agree with the holding of Dunlea v. Township of Belleville, 349 N.J. Super. 506, 512 (App. Div.), certif. denied, 174 N.J. 189 (2002), that proof of recklessness is sufficient to defeat good faith immunity, the conduct of the officers under the circumstances of this case did not rise to the level of recklessness. We conclude, as did the trial court, that the undisputed evidence can only support a finding by a jury that the officers acted negligently. But that finding would not defeat the officers immunity under N.J.S.A. 59:3-3. See Canico v. Hurtado, 144 N.J. 361, 366-67 (1996). McCauley's describing the officers' conduct as reckless does not make it so.

Moreover, the expert report cannot refute the officers' subjective good faith as an alternative basis to afford them immunity under N.J.S.A. 59:3-3.

With respect to the allegation of false arrest, each individual defendant denies making a decision to arrest plaintiff. But we view the facts most favorably to plaintiff for purposes of summary judgment and will assume that defendants were responsible for the decision to arrest plaintiff. We agree with Judge Hurd that the police are not liable for arresting plaintiff and guarding him overnight at the hospital until their investigation exonerated him the next morning.

Although the police had no information that plaintiff was involved with the shootings in the bar, he was with the armed individual who had just killed a woman and shot her husband. He remained with that individual as he started shooting at the police officers in the early morning hours in a dark alley. Lieutenant Winters testified that he thought both men were shooting at him. These facts gave the police "a well-grounded suspicion," State v. Waltz, 61 N.J. 83, 87 (1972), that plaintiff was also involved in the assault against them, especially after he failed to step away from Kind as the police approached. While inaccurate in their initial assessment of plaintiff's involvement, the police decisions were "made on the spur of the moment and cannot be viewed fairly from the vantage point of twenty-twenty hindsight." Wildoner, supra, 162 N.J. at 390 (quoting Sanducci v. City of Hoboken, 315 N.J. Super. 475, 481 (App. Div. 1998)). Even if there was no probable cause for plaintiff to have been arrested, the police are not liable if they could reasonably have believed in the existence of probable cause for the arrest. Kirk v. City of Newark, 109 N.J. 173, 185 (1988).

With respect to McCauley's opinion that the Trenton Police Division should be liable for failing to train officers, "the inadequacy of police training may serve as the basis for . . . liability only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact." Canton v. Harris, 489 U.S. 378, 388, 109 S. Ct. 1197, 1204, 103 L. Ed. 2d 412, 426 (1989). We agree with the trial judge that the evidence did not permit a finding that the police failed with deliberate indifference to train officers. Nor did plaintiff present evidence to prove that the police department had a "policy" of failing to train its officers adequately. See id. at 390, 109 S. Ct. at 1205, 103 L. Ed. 2d at 427.

Finally, we agree with the trial court that the New Jersey Civil Rights Act, N.J.S.A. 10:6-1, -2, does not apply to his claims because the statute was enacted and took effect after he was shot and wounded.

Affirmed.

 

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A-6083-08T1

July 15, 2010