OLGA CABRERA v. CITY OF NEWARK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

OLGA CABRERA, ADMINISTRATOR

OF THE ESTATE OF FRANCISCO

TAVERAS,

Plaintiff-Appellant,

v.

CITY OF NEWARK, CITY OF NEWARK

POLICE DEPARTMENT, OFFICER

JAMES STEWART, SGT. FERNANDO

RAMIREZ,

Defendants-Respondents.

_________________________________

September 18, 2014

Submitted: September 9, 2014 Decided:

Before Judges Koblitz and Haas.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-5669-10.

Price, Meese, Shulman & D'Arminio, P.C., attorneys for appellant (Michael A. Orozco and Terrence Steed, on the brief).

Anna P. Pereira, Corporation Counsel, attorney for respondents (Emilia Perez, Assistant Corporation Counsel, on the brief).

PER CURIAM

Plaintiff appeals from the December 20, 2012, and June 4, 2013 orders of the Law Division granting defendants' motion for summary judgment and dismissing plaintiff's civil rights and tort claims against all of the named defendants. After reviewing the record before us, and in light of prevailing legal standards, we agree with the legal conclusions reached by the motion judge and affirm.

We recite the record in the light most favorable to plaintiff, the non-moving party. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). At 2:03 p.m. on July 9, 2008, the Newark Police Department received a telephone call informing the dispatcher that a mentally ill individual was "acting out" in the basement of a building, and might be armed with a knife. Officer James Stewart was on foot-patrol near the building and was the first to arrive on the scene. The officer spoke to the owner of the building, who stated that his friend, the decedent, had cut him with a knife. The building owner showed the officer the laceration, which was "several inches long." The owner told the officer that the decedent was locked in the basement of the building.

Sergeant Fernando Ramirez then arrived on the scene. The owner led the officers inside the building to a locked door. The officers heard the decedent yelling in Spanish, "I'm going to kill the police."1 The decedent kept repeating this phrase. Officer Stewart radioed for back-up, stating "this was going to be a legitimate 525," which is the police code for a situation involving a mentally ill individual. He also requested that the "Emergency Service Unit" (ESU) respond to the scene. The ESU is a special team that responds to situations involving emotionally disturbed individuals. However, the ESU was on another assignment and was not available at that time.

Sergeant Ramirez testified that, even if the ESU had been available, it would not have reported to the scene until after the officers had assessed the situation to determine if the ESU was "warranted" at the location. Ramirez also stated that the ESU would not respond if the individual was "violent, armed and dangerous. They are going to wait until the police get to the location, assess the situation and advise them and take the next step."

The officers decided to assess the situation, and the owner of the building unlocked the door to the stairwell that led down to the basement. The basement was dark and the only light switch was at the bottom of the steps. Sergeant Ramirez testified he used his flashlight to illuminate the stairwell by shining it over Officer Stewart's shoulder as the officers stood at the top of the stairs. The officers could hear the decedent continuing to yell, "I'm going to kill the police," but they could not see him.

Suddenly, the decedent appeared at the bottom of the stairs. The decedent was over six feet tall and weighed 275 pounds. He continued to yell, "I'm going to kill the police." Sergeant Ramirez saw that the decedent had a machete in his hand and that he had tied the weapon to his hand "with a cloth, like a T-shirt, he was ready to make sure he wouldn't drop the machete[.]"

The officers began yelling at the decedent to drop his weapon. Officer Stewart yelled in English and Sergeant Ramirez shouted in Spanish. He did not comply. Instead, the decedent began coming up the steps toward the officers as they continued to order him to drop the weapon. According to Sergeant Ramirez, the decedent was raising the machete as he walked up the steps and was taking "monster steps." It only took three seconds for the decedent to get within five feet of the officers at the top of the stairs. At that time, Officer Stewart discharged his "duty weapon[,]" striking the decedent several times. He fell to the bottom of the stairs and died from the wounds he received. Beginning when the officers opened the door to the basement and ending with the shooting, the entire incident lasted only twenty seconds.

The written reports prepared by both officers stated they feared for their lives and the safety of others at the time of the shooting. As Sergeant Ramirez explained at his deposition, the decedent continued to yell that he was going to kill the police, and "[t]he owner of the building had a cut on his arm. So [the decedent] had intentions to do harm to someone beside himself." In explaining why the officers did not close and lock the basement door once the decedent began to ascend the steps, Sergeant Ramirez stated that, due to his size, the decedent "would have pushed that door and God forbid if something would have happened to us because he was not only a big individual, but he was armed and he was violent and it was already proven before we got there when he cut the owner on the arm."

Plaintiff, the administrator of the decedent's estate, filed a wrongful death complaint against the City of Newark and the two officers. She alleged the City had negligently hired, trained, and supervised the officers.2 She also asserted that the officers' actions had violated the decedent's civil rights under 42 U.S.C.A. 1983, and that defendants were liable for damages under the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to -12.3 (the Act).

Defendants filed a motion for partial summary judgment on the federal claims. In a detailed December 20, 2012 written decision, Judge Carolyn E. Wright granted defendants' motion and dismissed plaintiff's federal claims. The judge found that, based upon the motion record, the officers were entitled to qualified immunity for their actions. The decedent had stabbed one individual, was armed with a machete, was threatening to kill the police, and ignored the officers' repeated commands to drop his weapon as he continued to approach them in the stairwell. The judge stated:

After a thorough review of the record, the Court holds that under the circumstances of this case, in which the [o]fficers were forced to make a split second decision with respect to an armed man moving towards them, a reasonable officer could have believed that deadly force was necessary to protect himself or others from death or serious physical injury. Accordingly, because the actions of the [o]fficers did not violate the Fourth Amendment, the [o]fficers shall be granted qualified immunity with respect to the allegations of civil rights violations.

Thereafter, defendants filed a motion for summary judgment on plaintiff's claims under the Act. However, the judge denied this motion in a March 18, 2013 written decision and order. Defendants filed a motion for reconsideration, which the judge granted on June 4, 2013. In another thorough written decision, Judge Wright found that defendants were entitled to immunity under N.J.S.A. 59:3-3, which provides that "[a] public employee is not liable if he acts in good faith in the execution or enforcement of any law." A defendant is entitled to this immunity if his or her conduct is "objectively reasonable." For the same reasons the judge previously found the officers' conduct to be objectively reasonable with regard to plaintiff's federal civil rights claims, she concluded they could not be held liable under the Act. This appeal followed.

On appeal, plaintiff contends the judge erred in granting summary judgment because there were material facts in dispute and the judge's findings were not supported by the record. Plaintiff also argues that the judge erred in finding that the officers' actions were objectively reasonable and that they were therefore entitled to qualified and good faith immunity. We disagree.

Our review of a ruling on summary judgment is de novo, applying the same legal standard as the trial court. Nicholas v. Mynster, 213 N.J.463, 477-78 (2013). Summary judgment must be granted 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 challenged and that the moving party is entitled to a judgment or order as a matter of law.'" Town of Kearny v. Brandt, 214 N.J.76, 91 (2013) (quoting R.4:46-2(c)). Thus, we consider, as the motion judge did, whether "'the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.'" Ibid.(quoting Brill supra, 142 N.J.at 540). If there is no genuine issue of material fact, we must then "decide whether the trial court correctly interpreted the law." Massachi v. AHL Servs., Inc., 396 N.J. Super. 486, 494 (App. Div. 2007), certif. denied, 195 N.J. 419 (2008). We accord no deference to the trial judge's conclusions on issues of law and review issues of law de novo. Nicholas, supra, 213 N.J.at 478.

We begin by noting that, contrary to plaintiff's assertions, there are no material issues of fact in dispute and the judge did not make any findings that were not grounded in the record. The only documents presented in support or defense of the motion were the officers' reports and Sergeant Ramirez's deposition, and the judge's written decisions and findings did not stray from the facts set forth therein.

Rather, plaintiff's real bone of contention is her disagreement with the judge's conclusions of law based on the facts presented in the record. Plaintiff contends defendants were not entitled to qualified immunity on her federal civil rights claims or good faith immunity under the Act because their actions were not objectively reasonable. She asserts that it would have been more reasonable for defendants to have waited for the ESU to arrive before confronting the decedent. In addition, once the decedent refused to comply with their orders to drop his weapon, plaintiff argues the officers should have simply closed and locked the door to the basement. Therefore, plaintiff contends the judge erred in granting defendants' motions for summary judgment on these claims.

We turn first to plaintiff's contentions regarding her federal civil rights claim. Pursuant to 42 U.S.C.A. 1983,

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 State . . . 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 . . . .

Here, there is no question the officers acted under the color of law. The next inquiry is whether the "conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States." Parratt v. Taylor, 451 U.S. 527, 535, 101 S. Ct. 1908, 1913, 68 L. Ed. 2d 420, 428 (1981). Plaintiff claims that the decedent was the victim of excessive police force. Such a claim is properly analyzed under the Fourth Amendment. Abraham v. Raso, 183 F.3d 279, 288 (3d Cir. 1999).

The United States Supreme Court described qualified immunity in actions arising under 1983 in Harlow v. Fitzgerald, 457 U.S. 800, 817-18, 102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396, 410 (1982) (citations omitted):

[W]e conclude today that bare allegations of malice should not suffice to subject government officials either to the costs of trial or to the burdens of broad-reaching discovery. We therefore hold that government officials performing discretionary functions generally are shielded 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 known.

Reliance on the objective reasonableness of an official's conduct, as measured by reference to clearly established law, should avoid excessive disruption of government and permit the resolution of many insubstantial claims on summary judgment.

Our Supreme Court adopted this "objective reasonableness" standard in Kirk v. City of Newark, 109 N.J. 173, 182 (1988). The Court has "also recognized that the [United States] Supreme Court has interpreted Section 1983 'to limit the rights of plaintiffs and to encourage disposition of the actions as a matter of law, at least when these actions arise out of an alleged unlawful arrest, search, or seizure by a law enforcement officer.'" Wildoner v. Borough of Ramsey, 162 N.J. 375, 386-87 (2000) (quoting Kirk, supra, 109 N.J. at 179). "The same standard of objective reasonableness that applies in Section 1983 actions also governs questions of good faith arising under the Tort Claims Act, N.J.S.A. 59:[3]-3." Id. at 387 (citations omitted). In Schneider v. Simonini, 163 N.J. 336, 355 (2000) (quoting Kirk, supra, 109 N.J. at 184), our Supreme Court indicated:

A police officer being sued for violating a clearly established constitutional or statutory provision is entitled to judgment if the police officer can successfully prove: (1) that he or she acted with probable cause; or, (2) "even if probable cause did not exist, that a reasonable police officer could have believed in its existence."

"[I]f officers of reasonable competence could disagree on this issue, immunity should be recognized." Schneider, supra, 163 N.J. at 380 (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S. Ct. 1092, 1096, 89 L. Ed. 2d 271, 278 (1986)). "[T]he qualified immunity standard is intended to protect 'all but the plainly incompetent or those who knowingly violate the law.'" Ibid. Moreover, "[q]ualified immunity operates . . . to protect officers from the sometimes 'hazy border between excessive and acceptable force . . . .'" Saucier v. Katz, 533 U.S. 194, 206, 121 S. Ct. 2151, 2158, 150 L. Ed. 2d 272, 284 (2001) (quoting Priester v. Riviera Breach, 208 F.3d 919, 926-27 (llth Cir. 2000)).

When considering the totality of the circumstances, including (1) the severity of the underlying offense; (2) the immediacy of the threat to the officers or others' safety; (3) the possibility that the individual is violent or dangerous or may be armed; (4) whether it is in the context of an arrest; (5) whether the individual is resisting arrest; (6) the duration of the action; and (7) the number of persons with whom the officers must contend at one time, the Court cautioned that:

The "reasonableness" of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight . . . . The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments -- in circumstances that are tense, uncertain, and rapidly evolving -- about the amount of force that is necessary in a particular situation.

[Graham v. Connor, 490 U.S. 386, 396-97, 109 S. Ct. 1865, 1872, 104 L. Ed. 2d 443, 455-56 (1989).]

With these standards in mind, we are satisfied that the police officer defendants are entitled to qualified immunity. Upon their arrival at the scene, they were met by the owner of the building, whom the decedent had assaulted with a knife. Although the decedent was in the basement behind a locked door, he was shouting that he was going to kill the police. The officers called for the assistance of the ESU, but it was not available. In any event, the ESU would not have been dispatched until after the officers had assessed the situation, and would not come to the scene if the individual was armed or violent. The decedent was both.

The police officers had the owner open the basement door and tried to illuminate the area with a flashlight. When the decedent appeared, they saw that he was carrying a machete in his hand, which he had tied to himself with a cloth so that it would not be dropped. Due to the decedent's size, Sergeant Ramirez testified he was concerned that, even if the officers tried to close the door, the decedent would have been able to easily push through it. Both officers repeatedly ordered the decedent to drop his weapon in both English and Spanish. However, he raised the machete, and continued shouting that he was going to kill the police as he came up the stairs toward the officers. Officer Stewart did not shoot until decedent was within five feet of the officers. The entire incident lasted only twenty seconds once the officers opened the basement door.

Under these circumstances, we are in complete agreement with Judge Wright's conclusion that the officers' actions were "objectively reasonable" and that they were therefore entitled to qualified immunity. The critical events occurred within a matter of seconds, and the officers were required to make split-second decisions to protect themselves, the owner of the building, and others against the decedent. We discern no basis on this record to second-guess their actions. Graham, supra, 490 U.S. at 396-97, 109 S. Ct. at 1872, 104 L. Ed. 2d at 455-56. Therefore, we affirm the judge's decision granting defendants' motion for summary judgment on plaintiff's federal civil rights claims.

For similar reasons, we also conclude that defendants were entitled to good faith immunity on plaintiff's tort claims under N.J.S.A. 59:3-3. In Alston v. City of Camden, 168 N.J. 170, 177 (2001), the Court held that police negligence in the shooting of an innocent bystander was subject to the immunity provisions of N.J.S.A. 59:3-3. Under this statute, defendants can 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. Id. at 186 (citing Bombace v. City of Newark, 125 N.J. 361, 374 (1991)). The defendant need prove only one component; the immunity conferred by N.J.S.A. 59:3-3 will apply if the defendant can show either objective reasonableness or subjective good faith. Ibid. As previously noted, the same standard of objective reasonableness that applies in Section 1983 actions also governs questions of good faith arising under N.J.S.A. 59:3-3. Wildoner, supra, 162 N.J. at 387. As set forth above, the record fully supports the judge's conclusion that officers acted in an objectively reasonable manner in the circumstances of this case. Therefore, the judge properly granted defendants summary judgment under N.J.S.A. 59:3-3.

With regard to both her Section 1983 and tort claims, plaintiff contends the judge did not give proper weight to Newark Police Department General Order 08-05, which was promulgated on September 2, 2008, approximately two months after the incident involved in this case. The General Order establishes a written procedure that, in pertinent part, provides that, when confronted with a mentally ill or emotionally disturbed individual, police officers must assess the threat posed by the individual. Officers must request that Emergency Medical Service personnel come to the scene and they must notify their "patrol supervisor" of their assessment of the situation. If the individual poses an immediate threat, the officers are to "[t]ake reasonable measures to terminate or prevent such behavior. Deadly force will be used only as a last resort to protect the life of persons or the officers present." The General Order also provides that "[i]f the emotionally disturbed person is armed or violent, no attempt will be made to take the [individual] into custody without the specific direction of a supervisor unless there is an immediate threat of physical harm to the [individual], the officer(s) or others present."

Plaintiff argues that this General Order "provides evidence of a reasonable alternative course of action [that the officers could have taken] which, at minimum, is a genuine issue of material fact about the unreasonableness of [the officers'] actions." We disagree.

The General Order was not in place at the time of the July 9, 2008 incident. Therefore, its subsequent promulgation has no impact upon the objective reasonableness of the officers' actions on that date. The officers followed the protocols in place as of the time of the incident. The officers called for ESU backup, but it was not available. They then assessed the situation to determine the level of threat posed by the decedent. They were almost immediately confronted by a large man, with a machete tied to his hand, yelling that he was going to kill the police, as he continued to advance up the steps toward them. The General Order specifically provides that deadly force may be used to protect the lives of the officers or other persons present at the scene. Thus, even if the General Order is considered, the officers' actions were clearly reasonable under the circumstances.3

Affirmed.

1 Sergeant Ramirez testified at his deposition that he speaks Spanish and was able to translate what the decedent said for Officer Stewart.

2 Plaintiff subsequently agreed to a voluntary dismissal of these claims.

3 After this case was calendared for our consideration, plaintiff filed a motion to supplement the record with a July 22, 2014 report prepared by the United States Department of Justice concerning an "Investigation of the Newark Police Department." We deny this motion. The report concerns incidents occurring between January 2009 and June 2012 and, therefore, has no relevance to the incident involved in this case.