WILSON v. BOROUGH OF BELLMAWR et al, No. 1:2013cv05437 - Document 83 (D.N.J. 2016)

Court Description: OPINION. Signed by Judge Joseph H. Rodriguez on 12/20/2016. (dmr)
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WILSON v. BOROUGH OF BELLMAWR et al Doc. 83 UNITED STATES DISTRICT COURT DISTRICT OF NEW J ERSEY DEBORAH WILSON, as Adm inistratrix : ad Prosequendum for the ESTATE OF MICHAEL WOOD, : Plaintiff, : v. Hon. J oseph H. Rodriguez Civil Action No. 13-5437 OPINION : BOROUGH OF BELLMAWR, : BOROUGH OF BROOKLAWN, CHARLES HOLLAND, CHRISTOPHER : CUMMINGS, J EFFREY VANCE, and CHRIS WILHELM, : Defendants. : This m atter is before the Court on Defendants’ m otions for sum m ary judgm ent pursuant to Federal Rule of Civil Procedure 56. [Doc. 54 & 55.] The Court heard oral argum ent on the m otions on August 9, 20 16, and the record of that proceeding is incorporated here. For the reasons outlined below, the m otions will be granted in part and denied in part. Ju ris d ictio n This case is a civil action over which the district court has original jurisdiction based on a question “arising under the Constitution, laws, or treaties of the United States.” See 28 U.S.C. § 1331. Plaintiff, the Am inistratrix and Adm inistratrix ad Prosequendum for the Estate of her brother Michael Wood, asserts a violation of the Decedent’s civil rights 1 Dockets.Justia.com pursuant to 42 U.S.C. § 1983. With respect to Plaintiff’s state law claim s, this Court has supplem ental jurisdiction pursuant to 28 U.S.C. § 1367(a). Backgro u n d On the night of April 26, 20 12, police officers from both Bellm awr and Brooklawn responded to a suicide call placed by Decedent Michael Wood, who was staying at the apartm ent of his brother, Chris Wood. Within approxim ately 15-20 m inutes after officers arrived at Chris Wood’s apartment, Defendant Brooklawn Police Officer Charles Holland shot Michael Wood twice in the torso. Michael Wood was transported by am bulance to the hospital, where he later died. The circum stances leading up to the shooting are disputed. At approxim ately 9:19 p.m . on April 26, 20 12, Bellm awr Police Department received a call from 911 central dispatch. (Pl’s Exs. AA, P, Q, W1.) The dispatcher stated: Bellm awr Manor Apartm ent, Apartm ent 163 [in the Borough of Bellm awr], there is an attem pted 16 dispatch for a psyche em ergency . . . its gonna be for a m ale . . . who keeps hanging up on the call taker . . . says she [sic] keeps saying he wants to com m it a 10 -74 we have no m eans at this tim e. (Pl’s Ex. AA.) Defendant Bellm awr Sergeant J effrey Vance was the first to respond to the scene, along with Defendant Holland. (Pl’s Ex. W1; W3; Vance Dep. 2 p. 8, 38; Holland Dep. p. 10 1-0 2.) 1 Sergeant Vance was, at all relevant tim es, the supervising officer in charge of the scene. (Vance Dep. p. 8, 13, 20 , 41; Holland Dep. p. 31; Cum m ings Dep. p. 29; Wilhelm Dep. p. 29-31.) Defendants Vance and Holland repeatedly knocked on the door, and rang the doorbell to Chris Wood’s apartm ent (apartm ent 163), but received no answer. (Pl’s Ex. W1; W3; Vance Dep. p. 39; C. Wood Dep. p. 40 .) The officers saw no lights on in the apartment, which was located on the second floor of the two-story apartm ent building. (Pl’s Ex. W1; W3) At that tim e, the officers did not announce that they were police. (Pl’s Ex. W1; Christopher Wood Dep. p. 40 .) Defendant Vance radioed dispatch, and then dispatch m ade two phone calls, the order of which is not clear in the record. Dispatch unsuccessfully attem pted to call the apartm ent com plex’s m aintenance num ber to reach som eone with a key to the apartment. (Pl’s Ex. W1; W3; Vance Dep. p. 39.) Dispatch also called back the num ber from which they had received the 911 calls. The call went straight to the caller’s voicem ail. The transcript of the call states: Voice Message[:] Hi, it’s Chris Wood I’m dead . . . You probably got the wrong num ber. At the tone please . . . 1 Brooklawn and Bellm awr are am ong several m unicipalities which share the same radio frequency and have m utual aid agreem ents, allowing officers from neighboring m unicipalities to respond to each other’s calls. (Walsh Dep. p. 37-39; McKinney Dep. p. 25; Holland Dep. p. 10 .) 3 (Pl’s Ex. AA.) Defendant Vance testified that what dispatch relayed to him about the m essage was slightly different. Vance testified, “[dispatch] told m e they attem pted the phone num ber who had placed the call and it went straight to voice m ail and the voice m ail indicated that – I have to review my notes – I can’t come to the phone because I’m dead.” (Vance Dep. p. 40 .) Defendant Holland testified that he also heard dispatch over the radio: “the dispatcher came across the air stating that they called the phone and it said – and the voice m ail stated something—I’m not going to remember verbatim – but it was something to the effect of this is Michael Wood, I am now deceased.” (Holland Dep. p. 30 .) Defendant Vance then decided to m ake a forced, warrantless entry into the apartm ent by breaking a small glass window pane im m ediately to the right of the lock on the door. (Vance Dep. p. 41.) When Vance’s initial attem pt to break the glass failed, Defendant Holland broke the glass with his flashlight and opened the door. (Vance Dep. p. 41; Holland Dep. p. 2930 ; Pl’s Ex. W3.) By this tim e, Defendants Bellm awr Police Officers Cum m ings and Wilhelm had arrived on the scene to assist Defendants Vance and Holland. 4 (Vance Dep. p. 42; Wilhelm Dep. p. 32-38; Cum m ings Dep. p. 24-25; Holland Dep. p. 52-53; Pl’s Ex. P, Q.) Together, the four officers announced them selves as police officers and began to ascend the stairs to the second-floor apartment. (Holland Dep. p. 52; Cumm ings Dep. p. 26-27; Wilhelm Dep. p. 38-39; C. Wood Dep. p. 45-46.) Defendants Vance and Holland led the way, followed by Cum m ings, then Wilhelm . (Vance Dep. p. 42-43; Wilhelm Dep. p. 39; Cum m ings Dep. p. 26; Pl’s Ex. W1.) The stairway was unlit and narrow, although the television was on in the living room at the top of the stairs. (Cum m ings Dep. p. 26-27; Wilhelm Dep. p. 38; C. Wood Dep. p. 44.) Holland drew his service weapon, and used the flashlight m ounted on the gun to provide light. (Pl’s Ex. W3; Holland Dep. p. 72) Cum m ings also drew his weapon. (Cumm ings Dep p. 27.) Vance used a traditional flashlight to illum inate the steps (Vance Dep. p. 42; Pl’s Ex. W1); he could not recall whether he also drew his weapon, (Vance Dep. p. 43). As the officers were m oving up the stairs, a man, later identified as Chris Wood, appeared at the top of the stairs. (Holland Dep. p. 52; Vance Dep. p. 44; Cumm ings Dep. p. 27.) Chris Wood testified that he had been sleeping on the pull-out couch in the living room after a day of heavy 5 drinking. (C. Wood Dep. p. 33, 40 , 63; Pl’s Ex. Y.) 2 One of the officers handcuffed Chris Wood at the top of the stairs without incident. (Vance Dep. p. 45; Holland Dep. p. 53; Cum m ings Dep p. 28 -29; Pl’s Ex. Q.) As Chris Wood was being handcuffed, the officers heard Michael Wood towards the back of the apartment, say “something to the effect that’s m y brother, I’m back here. Leave him alone,” (Holland Dep. p. 28 ; Pl’s Ex. W3), or “he’s not the one you want. I’m the one that called,” (Vance Dep. p. 46), or “it’s not him you want. You’re here for m e or looking for m e,” (Wilhelm Dep. p. 66), or “som ething of it’s not him . You’re here for me,” (Cum m ings Dep. p. 30 ). Defendants Cum m ings and Wilhelm then led Chris Wood to the am bulance waiting outside. (Cum m ings Dep. p. 28; Wilhelm Dep. p. 62.) In the am bulance, Cum m ings unhandcuffed Chris Wood and attem pted to get inform ation about the situation but “Chris was very hard to follow because he was extrem ely intoxicated . . . and was just bouncing all over the place with everything he said.” (Cum m ings Dep. p. 31.) Wilhelm left Cum m ings and Chris Wood to return to the apartm ent. (Wilhelm Dep. p. 63.) 2 Approxim ately two hours after the shooting, Chris Wood gave a statem ent to the Cam den County Prosecutor’s Office wherein he stated that he drank eight 24-ounce cans of beer, and five shots of vodka that afternoon. (Pl’s Ex. Y.) 6 Meanwhile, Defendants Vance and Holland m oved further into the one-bedroom apartm ent 3, which was mainly dark, save for one small ceiling light. (Holland Dep. p. 99; Pl’s Ex. W3.) As Vance and Holland m oved towards the direction of the voice, Holland—who was ahead of Vance—looked through the open bedroom door and, from about 20 feet away, (Pl’s Ex. W1), saw Michael Wood sitting “Indian-style” on the floor holding a “large knife,” (Holland Dep. p. 33, 74; Vance Dep. p. 47). 4 Holland testified that Michael Wood “was kind of twisting [the knife] into his upper thigh area.” (Holland Dep. p. 74.) 5 Around this tim e, Defendant Wilhelm rejoined Defendants Vance and Holland and also observed Michael Wood sitting on the bedroom floor. (Wilhelm Dep. p. 135) Wilhelm testified, Q: What was [Michael Wood] doing? A: Sitting. 3 The apartment com plex’s floor plan indicates that the apartm ent had roughly 50 0 square feet of living space. (Pl’s Ex. M1.) The autopsy report for Michael Wood indicates that on the night of the shooting, Michael Wood was 37 years old; six feet, one inches tall; and weighed 267 pounds. (Pl’s Ex. S2.) He was wearing a tank top undershirt, size 40 x 32 jeans, and size 13 sneakers. (Id.; Pl’s Ex. S1; Holland Dep. p. 64.) 4 5 The knife later recovered at the scene was a “brown-handled Winchester brand knife. . . . The total length of the knife was approxim ately fourteen inches (14”), with the blade length being approxim ately eight and a half inches (8 ½ ”).” (Pl’s Ex. S1.) 7 Q: Did you perceive him to be a threat at that tim e? A: No. ... Q: While he was sitting there in the bedroom did you observe any knives or other weapons? A: No. (Wilhelm Dep. p. 135-36.) Defendants Holland and Vance had their weapons drawn; Holland’s weapon was pointed at Michael Wood. (Pl’s Ex. W1.) Defendant Holland began to speak with Michael. Holland testified, I started asking him general questions like, hey, what’s your name? Tell m e what is wrong. I’m here to help and [I was] met with, you know pretty m uch resistance. He was not telling m e anything. . . . [A]t one point he told m e its none of my business. I asked him . . . what do I have to do to get you to put down that knife and . . . he just would repeat something to the effect I just want you to fucking kill m e or I just want you to kill m e or I just want to die. That dialogue went on for a little bit. Then he started telling m e – he started getting upset and saying – he was kind of rambling about he didn’t get to see his kids. . . . I asked him how m any kids he had, what are their names. . . . [He] m entioned at one point about how both his parents had passed; m entioned how in general his life hadn’t gone right. He didn’t have a steady job. He was broke. . . . [H]e m entioned som ething about he had never been m arried yet and he lost his girl . . . and I tried to lighten the m ood with him and I m ade a joke. I said, well, listen, I’ve 8 been divorced so that—you know chalk that one up in the win colum n and he actually laughed when I said that, so that kind of led me to believe he was com ing around a little bit. . . . I asked him can I have the knife, can you lay down that knife for m e—he reached over and grabbed another [sm aller] knife 6 and . . . threw it out the [bedroom ] door at m e and it landed next to my boot. . . . I said thank you. . . but I need you to put the big one down and how m any—I said do you have any other knives? . . . I believe he said he had like five or six other knives with him . (Holland Dep. p. 70 , 74-76.) Defendant Vance sim ilarly testified, [Defendant Holland said to Michael Wood] that we wanted to get him som e help and he needed to drop the knife; that we wanted to take him out. He wasn’t in trouble. We just wanted to get him som ewhere he could have som e help and talk to som ebody. . . . At one point Michael said that the only way you can help m e is to kill m e. (Vance Dep. p. 50 -51.) Defendants Holland and Vance’s testim onies diverge, however, as to Michael Wood’s dem eanor. Holland testified at his deposition that Michael was “agitated,” and “fluctuated” between “depression, . . . anger, 6 Beside the Winchester, the other knife later recovered at the scene was a “black-handled Royal Norfolk Cutlery brand knife [with] a total length of eight and a half inches (8 ½ ”), with the blade length being approxim ately four and a quarter inches (4 ¼ ”).” (Pl’s Ex. S1.) Defendants Holland and Vance both characterized it as a “steak knife.” (Pl’s Exs. W1, W3.) No other knives were collected from the apartm ent. (Pl’s Ex. S1.) 9 excitement. He kind of ran the gam ut of em otions.” (Holland Dep. p. 69.) Holland also told the Cam den County Prosecutor, “you could see . . . he [was] agitated[.] [Y]ou could just tell in his whole demeanor . . . his actions were quick and jerky.” (Pl’s Ex. W3.) Vance, on the other hand, testified, Q: . . . Did [Michael Wood] seem calm the entire tim e? A: Yes. He didn’t seem agitated at all. Q: Was he ever yelling at any point while you were in the apartment? A: No. (Vance Dep. p. 67.) It is undisputed that Michael Wood “never talked about killing anyone else or harm ing anyone else.” (Vance Dep. p. 66.) The conversation between Defendant Holland and Michael Wood lasted “approxim ately four to five m inutes,” (Vance Dep. p. 51), and then Michael Wood “shut” or “closed” -- not “slam [m ed]”—the bedroom door, (Vance Dep. p. 53; Wilhelm Dep. p. 137). 7 At this point, the encounter had evolved into a “barricade” situation and, accordingly, Defendant Vance radioed to have the Zone 5 Critical 7 Defendant Holland told the Cam den County Prosecutor that Michael Wood “slam [ed]” the door. (Pl’s Ex. W3.) 10 Incident Team (a SWAT team ), dispatched to the scene. (Vance Dep. p. 34, 53-54, 78; Holland Dep. p. 21-22, 24; Wilhelm Dep. p. 68-69; Pl’s Ex. P.) Defendant Wilhelm, at Defendant Vance’s direction, left the apartment and, from the ground, “covered” the open window of the bedroom where Michael was barricaded. (Pl’s Ex. P; Wilhelm Dep. p. 23.) Defendants Vance and Holland rem ained where they were in the apartment while waiting for the Critical Incident Team to arrive. While they were waiting, Defendant Holland was still trying to speak with Michael through the closed door when Michael “asked to speak to [his brother], Chris.” (Vance Dep. p. 55.) 8 Vance testified, “I agreed to [bring in Chris] in hopes to talk [Michael] out of the bedroom .” (Vance Dep. p. 53.) Defendant Vance radioed to Defendant Cum m ings to “escort[] [Chris] back to the apartment to speak with his brother.” (Cumm ings Dep. p. 34.) Cum m ings brought Chris back into the apartm ent and sat him down on the landing at the top of the stairs. (Id.; Pl’s Ex. Q.) Vance “attem pted to coach [Chris] in what to say to try to calm ly have Michael come out of the bedroom ,” (Vance Dep. p. 56; see also Cum m ings Dep. p. 36), but Chris was “intoxicated,” (Vance Dep. p. 55; Cumm ings Dep. p. 36), and it quickly 8 Defendant Holland told the Cam den County Prosecutor that Michael “start[ed] getting very belligerent . . . dem anding his brother.” (Pl’s Ex. W3.) 11 becam e apparent to the officers “that it wasn’t going to work,” (Vance Dep. p. 56). Within “a m inute or . . . two,” “[the conversation] becam e an argument,” (Cummings Dep. p. 35-36), with Chris telling Michael “to stop acting like this and just com e out,” and “calling Mike nam es,” (Vance Dep. p. 57, 56). Then Chris said to Michael, “look at that cop he’s pointing a gun at you[.] He’s gonna fucking kill you.” (Pl’s Ex. W3.) Holland testified, Chris was kind of ram bling and Michael then eventually talked over him and said just like something to the effect, Chris shut up. I want to tell you som ething. I just want to say good bye. (Holland Dep. p. 77.) 9 Defendant Cum m ings--at Defendant Vance’s direction--escorted Chris back out of the apartment and stood with Chris on the grass. (Cum m ings Dep. p. 36-37; Vance Dep. p. 56; Pl’s Ex. Q.) “A m inute or two” after Chris left the apartment, Michael opened the bedroom door. (Vance Dep. p. 58; Pl’s Ex. W1.) Defendants Holland and Vance both testified that Michael was “holding” or “palm ing” the large knife vertically with the handle closest to the floor and the blade pointing up, running 9 Chris Wood has no m em ory of being brought back into the apartment, nor of having a conversation with his brother. (C. Wood Dep. p. 48 -49.) 12 along his forearm. (Holland Dep. p. 79-80 ; Vance Dep. p. 52.) Both officers pointed their guns at Michael. (Vance Dep. 58, 65; Pl’s Ex. W3.) As to what happened next, the testim onies of Defendants Holland and Vance materially differ. Holland testified: [Michael] is com ing down the hallway, and I’m yelling to him . . . Michael let’s not do this. Com e on. We’re doing good. . . . [Then] he raised the knife up. He took a large advancing step towards me, and then he pivoted towards Sergeant Vance. . . . As he continued his advance . . . I’m yelling at him drop the knife. . . . Michael takes a step, like half a step forward, leans forward, and I see his sight go towards where Sergeant Vance is standing on the wall. With that he leans back. He takes the knife and passes it around his own back to his right hand. . . . The blade is . . . pointing forward. . . . He had the knife up and he pivoted towards Sergeant Vance and that’s when I fired. (Holland Dep. p. 79-83.) Holland also told the Cam den County Prosecutor: Now I’m scream ing . . . drop the knife . . . drop the knife . . . [Michael] hesitates for a couple seconds and then he takes a large step and brings the knife out up to . . . you know in horror m ovies you see like when the guy brings it up to his shoulder like he’s ready to stab som ebody[,] that’s what he does. He brings it up . . . shoulder height . . . and he’s looking at m e but as he takes a step he starts to rotate towards Sergeant Vance so that’s when I fired two shots. (Pl’s Ex. W3.) Holland estim ates that Michael was “eight feet [away] . . . twelve feet at the most” when Holland fired his gun. (Id.) On the other hand, Vance testified, “[a]s soon as Michael exited the bedroom Officer Holland was ordering him to drop the knife, drop the knife. . . . [Michael] was m oving forward,” (Vance Dep. p. 62), “walking out 13 of the bedroom,” (Pl’s Ex. W1). “[H]e started to advance towards Officer Holland,” (Vance Dep. p. 59), “continued to walk toward both [Holland] and m yself,” (Pl’s Ex. W1). Vance further testified: Q: . . . [w]here was the knife pointed? A: Still held the sam e way with the blade up his arm . Q: Was his arm down, in a downward position? A: Yes. Q: Was his arm in a downward position when Officer Holland fired his weapon? A: Yes. Q: How far was Michael from Officer Holland when he fired his weapon? A: Six, m aybe seven feet. Q: How far was he from you? A: About the same. Q: When Officer Holland fired his weapon what direction was Michael facing? A: He was facing towards Officer Holland. .... Q: Did [Michael] ever m ake a turn towards you? A: Not that I am aware of. .... 14 Q: Did [Michael] ever wave the knife at either of you; either you or Officer Holland? A: No. Q: Never pointed the tip of it at you? A: No. Q: . . . Did he ever wave it in a threatening m anner? A: No. (Vance Dep. p. 60 , 66.) After Michael was shot, EMS carried him out of the apartm ent on a stretcher and transported him to the hospital. He was pronounced dead at 10 :52 p.m. (Pl’s Ex. S1.) The autopsy report indicates the cause of death was “m ultiple gunshot wounds.” (Id.) Defendants Holland and Vance testified that they received no training on how to deal with barricaded or suicidal subjects. (Vance Dep. p. 16-19; Holland Dep. p. 36, 92.) Representatives from both the Bellm awr Police Department and the Brooklawn Police Department testified that their departments do not provide any training on how to deal with barricaded or suicidal subjects, and have no formal policies concerning such subjects. (Walsh Dep. p. 11, 13-14, 60 ; McKinney Dep. p. 23-24, 46.) Officers are expected to rely on their “experience” in such situations. (Walsh Dep. p. 14; McKinney Dep. p. 23.) 15 Plaintiff subm its a “Training Key” published in 20 0 7 by the International Association of Chiefs of Police specifically highlighting the need for training and “pre-planning” for situations involving barricaded and suicidal subjects. (Pl’s Ex. N.) With respect to the use of deadly force against barricaded and suicidal subjects, the Training Key states, “it is essential that both [patrol personnel and negotiators] train together on a regular basis. Realistic practical exercises emphasizing all appropriate operational aspects and coupled with periodic discussions of past incidents should be considered m andatory.” (Id.) The Com plaint asserts eight counts: (1) Monell liability of the Defendant m unicipalities; (2) use of excessive deadly force and state created danger in violation of the Fourth and Fourteenth Am endments against the Defendant officers in their individual capacities; (3) wrongful death; (4) survival action; (5) negligence; (6) respondeat superior; (7) negligent entrustment; and (8) negligent hiring and retention. Su m m ary Ju d gm e n t Stan d ard “Sum m ary judgment is proper if there is no genuine issue of m aterial fact and if, viewing the facts in the light m ost favorable to the non-m oving party, the m oving party is entitled to judgm ent as a m atter of law.” Pearson v. Com ponent Tech. Corp., 247 F.3d 471, 482 n.1 (3d Cir. 20 0 1) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)); accord Fed. R. Civ. P. 56 16 (a). Thus, the Court will enter sum m ary judgment in favor of a m ovant who shows that it is entitled to judgm ent as a m atter of law, and supports the showing that there is no genuine dispute as to any material fact by “citing to particular parts of m aterials in the record, including depositions, docum ents, electronically stored inform ation, affidavits or declarations, stipulations . . . adm issions, interrogatory answers, or other m aterials.” Fed. R. Civ. P. 56 (c)(1)(A). An issue is “genuine” if supported by evidence such that a reasonable jury could return a verdict in the nonmoving party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is “m aterial” if, under the governing substantive law, a dispute about the fact m ight affect the outcom e of the suit. Id. In determ ining whether a genuine issue of m aterial fact exists, the court m ust view the facts and all reasonable inferences drawn from those facts in the light m ost favorable to the nonm oving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Initially, the m oving party has the burden of dem onstrating the absence of a genuine issue of m aterial fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the m oving party has m et this burden, the nonm oving party must identify, by affidavits or otherwise, specific facts showing that there is a genuine issue for trial. Id.; Maidenbaum v. Bally’s Park Place, Inc., 870 F. Supp. 1254, 1258 (D.N.J . 1994). Thus, to withstand 17 a properly supported m otion for sum mary judgment, the nonm oving party m ust identify specific facts and affirm ative evidence that contradict those offered by the m oving party. Andersen, 477 U.S. at 256-57. “A nonm oving party m ay not ‘rest upon m ere allegations, general denials or . . . vague statements . . . .’” Trap Rock Indus., Inc. v. Local 825, Int’l Union of Operating Eng’rs, 982 F.2d 884, 890 (3d Cir. 1992) (quoting Quiroga v. Hasbro, Inc., 934 F.2d 497, 50 0 (3d Cir. 1991)). Indeed, the plain language of Rule 56(c) m andates the entry of sum m ary judgment, after adequate time for discovery and upon m otion, against a party who fails to m ake a showing sufficient to establish the existence of an elem ent essential to that party’s case, and on which that party will bear the burden of proof at trial. Celotex, 477 U.S. at 322. That is, the movant can support the assertion that a fact cannot be genuinely disputed by showing that “an adverse party cannot produce adm issible evidence to support the [alleged dispute of] fact.” Fed. R. Civ. P. 56(c)(1)(B); accord Fed. R. Civ. P. 56(c)(2). In deciding the m erits of a party’s m otion for sum m ary judgm ent, the court’s role is not to evaluate the evidence and decide the truth of the m atter, but to determ ine whether there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Credibility determ inations are the province of the factfinder. Big Apple BMW, Inc. v. BMW of N. Am ., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992). 18 D is cu s s io n 4 2 U .S.C. § 19 8 3 Plaintiff’s Constitutional claim s are governed by Title 42 U.S.C. § 1983, which provides a civil remedy against any person who, under color of state law, deprives another of rights protected by the United States Constitution. See Collins v. City of Harker Heights, 50 3 U.S. 115, 120 (1992). Any analysis of 42 U.S.C. § 1983 should begin with the language of the statute: Every person who, under color of any statute, ordinance, regulation, custom , or usage, of any State or Territory or the District of Colum bia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or im m unities 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. See 42 U.S.C. § 1983. As the above language makes clear, Section 1983 is a remedial statute designed to redress deprivations of rights secured by the Constitution and its subordinate federal laws. See Baker v. McCollan, 443 U.S. 137, 145 n.3 (1979). By its own words, therefore, Section 1983 “does not . . . create substantive rights.” Kaucher v. County of Bucks, 455 F.3d 418, 423 (3d Cir. 20 0 6) (citing Baker, 443 U.S. at 145, n.3). 19 To state a cognizable claim under Section 1983, a plaintiff m ust allege a “deprivation of a constitutional right and that the constitutional deprivation was caused by a person acting under the color of state law.” Phillips v. County of Allegheny, 515 F.3d 224, 235 (3d Cir. 20 0 8) (citing Kneipp v. Tedder, 95 F.3d 1199, 120 4 (3d Cir. 1996)). Thus, a plaintiff m ust dem onstrate two essential elem ents to m aintain a claim under § 1983: (1) that the plaintiff was deprived of a “right or privileges secured by the Constitution or the laws of the United States” and (2) that plaintiff was deprived of his rights by a person acting under the color of state law. William s v. Borough of West Chester, Pa., 891 F.2d 458, 464 (3d Cir. 1989). Mu n icip al Liability A m unicipality is not liable under 42 U.S.C. § 1983 on a respondeat superior theory. Monell v. Dept. Soc. Servs. of New York, 436 U.S. 658, 691 (1978). However, a governm ent entity m ay be liable for its agent’s actions upon a dem onstration that a policy or custom of the m unicipality caused, or was a “m oving force” behind, the alleged violation of Plaintiff’s rights. Kentucky v. Graham , 473 U.S. 159, 166 (1985) (quoting Polk County v. Dodson, 454 U.S. 312, 326 (1981)); Beck v. City of Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996). Thus, in order to prevail against the government entity, “[a] plaintiff m ust identify the challenged policy, attribute it to the city 20 itself, and show a causal link between execution of the policy and the injury suffered.” Losch v. Parkesburg, 736 F.2d 90 3, 910 (3d Cir. 1984). Policy is m ade when a decisionm aker with final authority to establish m unicipal policy with respect to the action issues an official proclam ation, policy, or edict. Andrews v. City of Phila., 895 F.2d 1469, 1480 (3d Cir. 1990 ). A course of conduct or practice is considered custom when, though not authorized by law, such practices are “so perm anent and well-settled as to virtually constitute law.” Id. To im pose m unicipal liability pursuant to a custom , a plaintiff m ust show that the m unicipality acted with “deliberate indifference” to its known or obvious consequences. City of Canton v. Harris, 489 U.S. 378, 388 (1989); Bd. of Cty. Com m’rs v. Brown, 520 U.S. at 397, 398 (1997). See also Berg v. Cty. of Allegheny, 219 F.3d 261, 277 (3d Cir. 20 0 0 ) (this can be shown if it is obvious that a custom would lead to constitutional violations). “A showing of sim ple or even heightened negligence will not suffice.” Brown, 520 U.S. at 40 7. “In lim ited circum stances, a local governm ent’s decision not to train certain employees about their legal duty to avoid violating citizens’ rights m ay rise to the level of an official governm ent policy for purposes of § 1983.” Connick v. Thom pson, 563 U.S. 51, 61 (20 11). “Where the policy ‘concerns a failure to train or supervise m unicipal em ployees, liability under section 1983 requires a showing that the failure am ounts to 21 ‘deliberate indifference’ to the rights of persons with whom those em ployees will com e into contact.’” Thom as v. Cum berland Cty., 749 F.3d 217, 222 (3d Cir. 20 14) (quoting Carter v. City of Phila., 181 F.3d 339, 357 (3d Cir. 1999) (quoting Canton, 489 U.S. at 388)). “‘[D]eliberate indifference is a stringent standard of fault, requiring proof that a m unicipal actor disregarded a known or obvious consequence of his action.’” Thom as, 749 F.3d at 223 (quoting Brown, 520 U.S. at 410 ). “Additionally, ‘the identified deficiency in a city’s training program m ust be closely related to the ultim ate injury;’ or in other words, ‘the deficiency in training [m ust have] actually caused’ the constitutional violation.” Thom as, 749 F.3d at 222 (quoting Canton, 489 U.S. at 391). “[T]he causation inquiry focuses on whether ‘the injury could have been avoided had the employee[s] been trained under a program that was not deficient in the identified respect.’” Id. While deliberate indifference ordinarily requires a pattern of constitutional violations resulting from a lack of training, in certain situations, the need for training “can be said to be ‘so obvious,’ that failure to do so could properly be characterized as ‘deliberate indifference’ to constitutional rights.” Canton, 489 U.S. at 390 n.10 . “Liability in singleincident cases depends on ‘[t]he likelihood that the situation will recur and the predictability that an officer lacking specific tools to handle that 22 situation will violate citizens’ rights.’” Thom as, 749 F.3d at 223-24 (quoting Brown, 520 U.S. at 40 9). “The high degree of predictability [in a single incident case] m ay also support an inference of causation—that the m unicipality’s indifference led directly to the very consequence that was so predictable.” Brown, 520 U.S. at 40 9-10 . See also Connick, 563 U.S. at 6364 (stating that “single-incident liability” applies only in “narrow range of circum stances” where “unconstitutional consequences of failing to train could be so patently obvious that a city could be liable under § 1983 without proof of a pre-existing pattern of violations” (citing Canton, 489 U.S. 378)). Finally, a plaintiff cannot seek to hold a m unicipality liable for dam ages where the officer has inflicted no constitutional harm . Acum ed LLC v. Advanced Surgical Servs., Inc., 561 F.3d 199, 217 n.12 (3d Cir. 20 0 9) (citing City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986)). Therefore, before addressing deliberate indifference and causation, a court m ust first address whether there was a constitutional violation at all. See Grazier, 328 F.3d at 124 (“m unicipal liability requires constitutional harm ”); cf., Thom as, 749 F.3d at 223 (“The parties do not challenge the existence of . . . a constitutional violation on appeal.”). Moreover, the United States Supreme Court has held that “neither a State nor its officials acting under their official capacities are ‘persons’ under § 1983.” Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989). 23 As such, an em ployee of the state named as a defendant in a civil rights action m ay be held liable only if that person has personal involvem ent in the alleged wrongs and is sued in their personal capacity. See Hafer v. Melo, 50 2 U.S. 21, 31 (1991) (“state officials, sued in their individual capacities, are ‘persons’ within the m eaning of § 1983”). Qu alifie d Im m u n ity The doctrine of qualified im m unity provides that “governm ent officials perform ing discretionary functions . . . are shielded from liability for civil dam ages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person should have known.” Harlow v. Fitzgerald, 457 U.S. 80 0 , 818 (1982). Thus, governm ent officials are imm une from suit in their individual capacities unless, “taken in the light m ost favorable to the party asserting the injury, . . . the facts alleged show the officer’s conduct violated a constitutional right” and “the right was clearly established” at the tim e of the objectionable conduct. Saucier v. Katz, 533 U.S. 194, 20 1 (20 0 1). Courts m ay exercise discretion in deciding which of the two prongs of the qualified im m unity analysis should be addressed first in light of the circum stances in the particular case at hand. Pearson v. Callahan, 555 U.S. 223, 236 (20 0 9). This doctrine “balances two im portant interests—the need to hold public officials accountable when they exercise power irresponsibly and the 24 need to shield officials from harassm ent, distraction, and liability when they perform their duties reasonably” and it “applies regardless of whether the government official’s error is a m istake of law, a m istake of fact, or a m istake based on mixed questions of law and fact. Id. (internal quotation om itted). Properly applied, qualified im m unity “protects ‘all but the plainly incom petent or those who knowingly violate the law.’” Ashcroft v. al-Kidd, 5623 U.S. 731, 743 (20 11) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). For a right to be clearly established, “[t]he contours of the right m ust be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Saucier, 533 U.S. at 20 2 (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). That is, “[t]he relevant, dispositive inquiry in determ ining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Couden v. Duffy, 446 F.3d 483, 492 (3d Cir, 20 0 6). “If the officer’s m istake as to what the law requires is reasonable,” the officer is entitled to qualified im m unity. Id. (internal citations om itted). Further, “[i]f officers of reasonable competence could disagree on th[e] issue, im m unity should be recognized.” Malley, 475 U.S. at 341. See also Brosseau v. Haugen, 543 U.S. 194, 198 (20 0 4) (The general touchstone is whether the conduct of the official was reasonable at the tim e it occurred.). 25 Finally, because qualified im m unity is an affirm ative defense, the burden of proving its applicability rests with the defendant. See Beers-Capital v. Whetzel, 256 F.3d 120 , 142, n.15 (3d Cir. 20 0 1). Fo u rth Am e n d m e n t The Fourth Am endm ent provides: The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirm ation, and particularly describing the place to be searched, and persons or things to be seized. A Fourth Am endm ent excessive force claim calls for an evaluation of whether police officers’ actions are objectively reasonable 10 in light of the facts and circum stances confronting him . Graham v. Conner, 490 U.S. 386, While the question of reasonableness is objective, the court m ay consider the “severity of the crim e at issue, whether the suspect poses an im mediate threat to the safety of the officer or others, and whether he is actively resisting arrest or attem pting to evade arrest by flight.” Graham , 490 U.S. at 396. In a claim for excessive force, “the central question is ‘whether force was applied in a good faith effort to m aintain or restore discipline, or m aliciously and sadistically to cause harm .’” Brooks v. Kyler, 20 4 F.3d 10 2, 10 6 (3d Cir. 20 0 0 ) (quoting Hudson v. McMillian, 50 3 U.S. 1, 7 (1992)). Furtherm ore, appropriate attention should be given “to the circum stances of the police action, which are often ‘tense, uncertain, and rapidly evolving.’” Grom an v. Township of Manalapan, 47 F.3d 628, 634 (3d Cir. 1995) (quoting Graham , 490 U.S. at 396). See also Graham , 490 U.S. at 396-97 (analyzing reasonableness of use of force “from the perspective of a reasonable officer on the scene, rather than with the 20 / 20 vision of hindsight”). 10 26 397 (1989). “Whether or not [an officer’s] actions constituted application of ‘deadly force,’ all that m atters is whether [the officer’s] actions were reasonable.” Scott v. Harris, 550 U.S. 372, 383 (20 0 7). The reasonableness of a seizure is assessed in light of the totality of the circum stances. Abraham v. Raso, 183 F.3d 279, 289 (3d Cir. 1999). Official Capacity Claim s To the extent that Plaintiff has sued the Defendant police officers in their official capacities, sum mary judgm ent m ust be granted because these are really claim s against the police departm ent and, in turn, the m unicipality. See Hafer, 50 2 U.S. at 25 (“official capacity suits generally represent only another way of pleading an action against an entity of which an officer is an agent”). Accordingly, the Court is left with the claim s against the officers in their individual capacities. Office r H o llan d ’s u s e o f d e ad ly fo rce The Decedent in this case, unlike m any deadly force cases, was not a suspect, nor a fleeing felon. The Defendant officers in this case responded to Michael Wood’s own suicide call, and once on the scene, the officers were undisputedly attempting to help the Decedent, not investigating a reported crim e, nor effectuating an arrest. Nonetheless, the Garner deadly force analysis applies. See Connor v. Thom pson, 647 F. App’x 231, 237 (4th Cir. 20 16) (applying Garner to deadly force used on a suicidal subject); 27 Weinm ann v. McClone, 787 F.3d 444, 448 (7th Cir. 20 15) (applying Garner to deadly force used on a suicidal subject); Glenn v. Washington County, 673 F.3d 864, 876 (9th Cir. 20 11) (applying Garner to deadly force used on a suicidal subject, and explaining “[e]ven when an em otionally disturbed individual is ‘acting out’ and inviting officers to use deadly force, the governm ental interest in using such force is dim inished by the fact that the officers are confronted, not with a person who has com m itted a serious crim e against others, but with a m entally ill individual”). The Court therefore proceeds with a qualified im m unity analysis regarding Officer Holland’s use of deadly force. First, Michael Wood’s right to be free from excessive, deadly force was clearly established on the night of the shooting. “It has long been the law that an officer m ay not use deadly force against a suspect unless the officer reasonably believes that the suspect poses a threat of serious bodily injury to the officer or others. In short, the dispute in this case is about the facts, not the law. The doctrine of qualified im m unity is therefore inapposite.” Lam ont, 637 F.3d at 185; see also Connor, 647 F. App’x at 239 (“Garner . . . constitutes sufficient notice to bar qualified im m unity in this case.”); Weinm ann, 787 F.3d at 450 (“Graham and Garner stand for the proposition that a person has a constitutional right not to be shot unless an officer reasonably believes that he poses a threat to the officer or someone else. The court of appeals cases 28 are even m ore specific: they say that officers may not use deadly force against suicidal people unless they threaten harm to others, including the officers.”). Next, the Court turns to whether Holland’s use of deadly force was objectively reasonable, given the totality of the circum stances. If Holland’s version of events is found credible by a fact-finder, there was no constitutional violation; Michael Wood took “large advancing steps” toward Holland and Vance, while holding a large knife over his shoulder “like he’s ready to stab somebody,” and ignoring repeated comm ands to drop the knife. (Holland Dep. p. 79-83; Pl’s Ex. W3.) These facts, if found true, would com pel the conclusion that Holland acted reasonably with the belief that Michael Wood posed a significant threat of death or serious physical injury to either Officer Holland or Sergeant Vance. See Abraham , 183 F.3d at 280 (“‘Detached reflection cannot be dem anded in the presence of an uplifted knife.’”) (quoting Brown v. United States, 256 U.S. 335, 343 (1921)). Critically, however, Holland’s is not the only version of events in the record. As already stated, Sergeant Vance’s version of events is quite different. According to Vance’s account, Michael Wood never raised the knife, nor waved the knife, nor pointed the knife in the officers’ direction. He m erely palm ed the knife at his side, with the blade running along his 29 forearm as he walked -- not ran or charged – toward the officers. If this version is found to be true, then a reasonable juror could find that a constitutional violation did occur. This case is analogous to Connor v. Thom pson, where the Fourth Circuit recently affirm ed, in a deadly force case, the district court’s denial of qualified im m unity at sum m ary judgment based on disputed issues of m aterial fact. 647 F. App’x 231 (4th Cir. 20 16). In Connor, the defendant officer also responded to a 911 suicide call. 647 F. App’x at 233-34. When the officer arrived at the house, he was escorted by the decedent’s uncle into an entrance foyer with a four-step stairwell leading to the living room where the decedent was waiting. Id. at 234. As the decedent “was about halfway down the four stairs” the officer saw that the decedent was holding a paring knife. Id. The officer “drew his gun and told [the decedent] to drop the knife. The comm and was repeated several tim es . . . but [the decedent] did not com ply. When [the decedent] reached the bottom of the stairs, [the officer] fired twice, killing him .” Id. The Court of Appeals affirm ed the district court’s denial of qualified im m unity, explaining, [v]iewing the record in the light most favorable to the Appellee, [the decedent] possessed a paring knife, refused to com ply with repeated com mands to drop the weapon, continued down the stairs (and thus closer to [the officer]) rather than stopping. As for the knife, we have held the mere 30 possession of a deadly weapon by a suspect is not enough to perm it the use of deadly force. Instead, deadly force may only be used by a police officer when, based on a reasonable assessment, the officer or another person is threatened with the weapon. And while [the decedent] stubbornly m aintained possession of his knife, the assumed circum stances [the officer] confronted do not establish that [the decedent] threatened anyone with it. For the present inquiry, the district court appropriately assum ed [the decedent] never raised his knife, changed hands, or acted aggressively with it. We have held that holding a weapon in a non-threatening position while m aking no sudden m oves fails to support the proposition that a reasonable officer would have had probable cause to feel threatened. [The officer], m oreover, had been inform ed that [the decedent] was suicidal, which could have explained the reason for holding the knife. Connor, 647 F. App’x 237-38 (internal citations and quotations om itted); see also Weinm ann v. McClone, 787 F.3d 444, 449 (7th Cir. 20 15) (in a suicidal subject deadly force case, affirm ing the district court’s denial of sum m ary judgment observing, am ong other things, that “the way in which [the plaintiff] was holding the gun is disputed.”). 11 11 This case is therefore distinguishable from Lane v. City of Cam den, 20 15 U.S. Dist. LEXIS 127152 (D.N.J . Sept. 23, 20 15), which Defendants rely upon. In that case, J udge Kugler specifically explained that the plaintiffs provided no affirmative evidence to contradict the officer’s testim ony that the decedent advanced on the officers with the knife raised. Id. at *21-23 (“In the absence of any affirm ative evidence presented by Plaintiffs, this Court m ust conclude that there is no genuine dispute that Decedent advanced upon [the officers] with a knife, as Sergeant Price described at his deposition. As such, whether [the officers] acted reasonably in using deadly force . . . is a question of law to be resolved by this Court.”)(Em phasis in original.). 31 Genuine issues of disputed fact prevent the Court from holding, at sum m ary judgment, that Officer Holland is entitled to qualified im m unity. Sum m ary judgment will be denied on the Fourth Am endment claim in Count II based on Officer Holland’s use of deadly force. Se rge an t Van ce ’s an d Office r H o llan d ’s u s e o f e xce s s ive fo rce Plaintiff asserts that by failing to vacate the apartm ent and wait for the Critical Incident Team to arrive and bringing Chris Wood into the apartment to speak with his brother, Sergeant Vance and Officer Holland needlessly escalated the situation, thereby precipitating the shooting. In other words, the officers “unreasonably created the encounter that ostensibly perm itted the use of deadly force.” See Abraham , 183 F.3d at 296 (quoting Estate of Starks v. Enyart, 5 F.3d 230 , 234 (7th Cir. 1993) but leaving a decision on the issue in the Third Circuit “for another day”). This independent claim seems to be couched as both a Fourth Am endm ent violation and a Fourteenth Am endm ent violation under a State-created danger theory. As to the state-created danger theory, Graham v. Connor appears to foreclose such a claim . 490 U.S. 386, 388 (1989) (“This case requires us to decide what constitutional standard governs a free citizen’s claim that law enforcem ent officials used excessive force in the course of m aking an arrest, investigatory stop, or other ‘seizure’ of his person. We hold that such claim s 32 are properly analyzed under the Fourth Am endm ent’s ‘objective reasonableness’ standard, rather than under a substantive due process standard.” Accord Abraham, 183 F.3d at 288 (“excessive force in the course of an arrest is properly analyzed under the Fourth Am endm ent, not under substantive due process”) (citing Graham , 490 U.S. at 393-94). 12 Viewing the facts in the light m ost favorable to Plaintiff, a jury could find unreasonable Holland and Vance’s conduct in entering the apartm ent and continuing to confront the Decedent. See Morias v. City of Phila., 20 0 7 WL 853811, *5 (E.D. Pa. Mar. 19, 20 0 7) (“Decedent did not pose an im m ediate threat to the safety of the officers or others. Although Decedent was armed with a knife, he did not have the ability to harm any individual outside of his apartm ent, unlike [som eone] who had a gun.”). Holland and Vance responded to the apartment to protect the Decedent’s well-being. Prior to their forced entry, there was no indication that he had harm ed anyone. The officers knew that they were responding to an individual with a “psych emergency,” yet they escalated the situation. Under the theory that the officers’ actions unreasonably created the need for deadly force, it is possible Plaintiff could establish a violation of the Fourth Am endment. Further, the Court does not find that the officers’ actions leading up to the shooting “shock the conscience.” See Bright v. Westm oreland Cty., 443 F.3d 276, 281 (3d Cir. 20 0 6) (such is required to m ake out a State-created danger claim under § 1983 and the Fourteenth Am endm ent). 12 33 Having determ ined that sufficient evidence exists that Holland and Vance’s actions unreasonably precipitated Holland’s use of deadly force in violation of Michael Wood’s Fourth Am endm ent right to be free from unlawful seizure, the Court turns to whether the right that was violated was clearly established. To answer that question, a court m ust determ ine whether it would be clear to a reasonable officer that his conduct was unlawful in the situation confronted. See Curley v. Klem , 499 F.3d 199, 20 7 (3d Cir. 20 0 7) (“The question at this second [Saucier] step is whether the right that was violated was clearly established, or, in other words, ‘whether it would be clear to a reasonable officer that his conduct was unlawful in the situation confronted.’”) (quoting Saucier, 533 U.S. at 20 2). “Officers who m ake reasonable mistakes as to what the law requires are entitled to qualified im m unity.” Green v. New J ersey State Police, 246 F. App’x 158, 162 (3d Cir. 20 0 7). Thus, the right at issue is “clearly established” only if it would be unreasonable for officers to believe that Defendants’ actions would not constitute excessive force. See id. at 163. The Third Circuit and its District Courts have recognized, but not explicitly adopted, the theory “that conduct on the officers’ part that unreasonably precipitated the need to use deadly force m ay provide a basis for holding that the eventual use of deadly force was unreasonable in violation of the Fourth Am endm ent.” Grazier v. City of Phila., 328 F.3d 120 , 34 127 (3d Cir. 20 0 3). See also Neuburger v. Thom pson, 124 F. App’x 70 3, 70 6 (3d Cir. 20 0 5). Only m onths ago, the Circuit advised: Depending on the severity and im m ediacy of the threat and any potential risk to public safety posed by an officer’s delayed action, it m ay be appropriate for an officer to retreat or await backup when encountering a mentally disturbed individual. It m ay also be appropriate for the officer to attem pt to de-escalate an encounter to elim inate the need for force or to reduce the am ount of force necessary to control an individual. J ohnson v. City of Phila., 837 F.3d 343, 353 (3d Cir. 20 16). As such, Plaintiff has not shown the violation of a constitutional right that was clearly established at the tim e of the incident here. Sum mary judgment will be granted as to the claim s of excessive force, based on the theory that the officers unreasonably precipitated the need to use deadly force, which have been asserted against Sergeant Vance and Officer Holland in their individual capacities in Count II. Office rs W ilh e lm an d Cu m m in gs A § 1983 claim for the failure to stop the use of excessive force rises to the level of a constitutional violation if excessive force was used and defendants had a reasonable opportunity to prevent the use of excessive force. See, e.g., Sm ith v. Mensinger, 293 F.3d 641, 650 (3d Cir. 20 0 2). The undisputed record dem onstrates that neither Officer Wilhelm nor Officer Cum m ings com m itted any constitutional violations. The record is clear that they did not use force on Michael Wood, make decisions at the 35 scene, nor do anything to allegedly escalate the situation. Their interactions with the Decedent were extrem ely lim ited. Indeed, the officers were outside of the apartment for the m ajority of the relevant tim e period. Nothing in the record supports the theory that they had an opportunity to affect the actions of the officers inside the apartm ent. Accordingly, sum m ary judgm ent will be granted as to the constitutional claim s against Officers Wilhelm and Cum m ings in their individual capacities. Sim ilarly, there is nothing in the record to keep these two officers in the case based on wrongful death or negligence, discussed below. Mu n icip al liability—failu re to train Plaintiff’s failure to train claim is based on the undisputed record evidence that neither the Borough of Bellm awr, nor the Borough of Brooklawn, provides its officers any training “on issues involving suicidal or barricaded individuals.” (Opposition Brief, p. 20 .) According to Plaintiff’s expert, had the officers received training, they would have recognized the situation as a “suicide by cop” scenario, and thus they would not have brought Chris Wood into the apartm ent, and they would have vacated the apartment (i.e., “tactically disengaged”) until the Critical Incident Team arrived. (Pl’s Ex. H.) Further, Plaintiff contends, had this been done, Michael Wood would not have been shot by Officer Holland. (Id. at p. 27) 36 (opining that the officers’ failure to tactically disengage “substantially contributed to and was a proximate cause of [Michael Wood’s] death.”). Triable issues of fact exist as to whether the need for training in barricaded subject / suicidal subject situations was sufficiently obvious to constitute deliberate indifference. Plaintiff’s Exhibit N, a “Training Key” published in 20 0 7 by the International Association of Chiefs of Police, reasonably supports a finding that such situations will recur. Indeed, the very fact of the Training Key’s existence supports an inference that barricade situations -- and specifically, situations where “officers are sent to check on the well-being of a subject who reportedly threatened suicide” (Pl’s Ex. N at p. 2) -- occur with som e regularity. Further, the Training Key states that, “[n]umerous cases have been docum ented in which officers responding to [threatened suicide] situations, with the best intentions, m ade decisions . . . that ended in unanticipated negative consequences.” (Id.) Additionally, Plaintiff’s expert states that barricaded suspect and subject situations are “prevalent.” (Pl’s Ex. H, p. 24) The Training Key also raises triable issues of fact as to whether, in such recurring situations, untrained officers will predictably violate citizens’ constitutional rights. It states, “[t]o err by tactical intervention and the use of [deadly] force where in hindsight, it m ay have been better to extend negotiations, can have both personal and com m unity consequences. 37 . . . For the protection of all parties concerned, such judgments m ust be rem oved from the realm of guesswork and subjected to pre-established criteria and sound professional judgment.” (Id. at p. 3.) Finally, the record raises triable issues of fact as to causation. Plaintiff’s expert opines that the officers’ failure to “tactically disengage” “substantially contributed to and was a proxim ate cause of [Michael Wood’s] death.” (Pl’s Ex. H, p. 27.) If a jury accepts this opinion, it could reasonably find that, had Sergeant Vance and Officer Holland received training concerning barricaded and suicidal subjects, they would not have unreasonably created the need to use deadly force on Michael Wood. Accordingly, as to the m unicipal liability claim s against both Bellm awr and Brooklawn in Count I, sum m ary judgm ent will be denied on Plaintiff’s claim that in “suicide by cop” situations, it is highly predictable that untrained officers’ interactions with a suicidal subject will result in the police shooting the subject in violation of the Fourth Am endm ent. W ro n gfu l d e ath / N e glige n ce Sum m ary judgment will be denied as to the State law wrongful death 13 and negligence claim s asserted against the m unicipalities and Under the Wrongful Death Act, N.J . Stat. Ann. § 2A:31– 1 to 6, the heirs of a person who has died by virtue of “a wrongful act, neglect or default” m ay assert a claim for their “pecuniary injuries,” N.J . Stat. Ann. § 2A:31-1, -5. 13 38 Sergeant Vance and Officer Holland. In support of their motions for sum m ary judgment on these claims, Defendants assert that “there is no evidence that the [Defendants] acted inappropriately in responding to the 911 call and in using deadly force on Mr. Wood.” (Bellm awr Defendants’ Moving Brief, p. 16) As discussed above, this argument is contradicted by the record evidence, which contains disputed facts. Accordingly, sum m ary judgm ent will be denied as to Counts III, V, and VI. 14 N e glige n t En tru s tm e n t/ N e glige n t H irin g an d Re te n tio n It is not clear whether Plaintiff’s negligent entrustm ent/ negligent hiring and retention claim s are State law claim s or Monell claim s. In any event, both theories fail for lack of evidence. See Brown, 520 U.S. at 412 (A Monell inadequate screening claim “m ust depend on a finding that th[e] officer was highly likely to inflict the particular injury suffered by the plaintiff.”); Davis v. Devereux Foundation, 20 9 N.J . 269, 292 (20 12) (“New J ersey courts recognize the tort of negligent hiring, where the em ployee either knew or should have known that the em ployee was violent or aggressive, or that the employee m ight engage in injurious conduct toward third persons.”). Sum m ary judgment will be granted to the m unicipalities on Counts VII & VIII. 14 Count VI for Survival was not addressed by the parties. 39 Co n clu s io n For the reasons stated above, and in keeping with the discussion held on the record during oral argum ent, Defendants’ m otions for sum m ary judgm ent will be granted in part and denied in part. Rem aining in the case are: - the Monell claim s in Count I against both m unicipalities; - the portion of Count II that asserts a Fourth Am endm ent violation by Holland’s use of deadly force; - the State law claim s in Counts III, IV, V, and VI against Holland, Vance, and both municipalities. An Order will accom pany this Opinion. Dated: Decem ber 20 , 20 16 / s/ J oseph H. Rodriguez J oseph H. Rodriguez, USDJ 40