SMITH et al v. GRANSDEN et al
Filing
73
OPINION. Signed by Judge Joseph E. Irenas on 10/25/2011. (dmr)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
GARRESSA SMITH as
Administratrix and
prosequendum of the estate of
Kashon Smith, a minor,
deceased, and CORINTHIA
MITCHELL as parent and natural
guardian for Kaysha Mitchell,
a minor, and Coron Mitchell, a
minor
HONORABLE JOSEPH E. IRENAS
CIVIL ACTION NO. 08-4517
(JEI/KMW)
OPINION
Plaintiffs,
v.
OFFICER DEAN GRANDSEN, et al.,
Defendants.
APPEARANCES:
RALPH A. POWERLL, ESQUIRE PC
Ralph A. Powell, Esq.
1900 Knight Circle
Yardley, PA 19067
Counsel for Plaintiffs
Ralph Raymond Kramer, Esq.
605 White Horse Pike
Haddon Heights, NJ 08035
Counsel for Defendant Officer Dean Grandsen
WEIR & PARTNERS LLP
John C. Eastlack, Jr., Esq.
The Liberty View Building
457 Haddonfield Road, Suite 310
Cherry Hill, NJ 08002
Counsel for Defendant City of Camden
OFFICE OF CAMDEN COUNTY COUNSEL
Howard Lane Goldbery
520 Market Street
Courthouse - 14th Floor
1
Camden, NJ 08102
Counsel for Defendants County of Camden and Camden County
Prosecutor’s Office
TAYLOR AND JAY, LLC
Stuart W. Jay
20 East Centre Street
Woodbury, NJ 08096
Counsel for Defendant Jeffrey Frampton
IRENAS, Senior District Judge:
This matter comes before the Court on Defendant Dean
Grandsen’s Motion for Summary Judgment.1
(Dkt. No. 55)
For the
following reasons the Motion will be denied.
I.
There are several witnesses to the events that gave rise to
this lawsuit; however, there are two distinctly different
accounts of those events.
For the purposes of this Motion, the
Court must resolve all factual discrepancies in favor of the
Plaintiffs.2
On the night of December 21, 2007, Officer Dean Grandsen was
a Camden City Police Officer on patrol near the 200 block of
Pfeiffer Street in Camden, New Jersey.
at 1)
(Pl.’s Br., Dkt. No. 64
At around 10:30 PM, Grandsen observed Kashon Smith, and
1
This is the first of three pending motions for summary judgment.
Defendants City of Camden and Jeffrey Frampton have also moved for summary
judgment. (Dkt. Nos. 56 & 62)
2
In deciding a motion for summary judgment, the Court must construe the
facts and inferences in a light most favorable to the non-moving party.
Pollock v. Am. Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3d Cir. 1986).
2
his cousin, Kaysha Mitchell, crossing the street towards the side
yard of the home located at 200 Pfeiffer Street.
(Id. at 3)
By
cutting through the side yard, the two could arrive at a friend’s
house located at 2114 Jones Street.
(Id. at 11) Smith, aged
sixteen, was carrying a grill fork, appeared heavily intoxicated
and was visibly upset over what was later discovered to be
romantic complications.
(Id. at 4)
Once Smith and Mitchell had reached the side yard, Grandsen
exited his vehicle, drew his duty weapon and engaged Smith.
at 5)
times.
(Id.
Grandsen ordered Smith to drop the grill fork several
(Id.)
Although Smith did not drop the fork as
instructed, Smith was not abusive or aggressive.
(Id.)
Witnesses located on the porch of 200 Pfeiffer pleaded with
Grandsen not to shoot Smith.
Smith was a danger.
(Id.)
(Id.)
They evidently did not think
At this point, Grandsen was
approximately nineteen feet from where Smith stood.
(Id.)
After repeating the order to drop the fork two to three
times, Grandsen shot Smith on the right-hand side of his torso.
(Id.)
Upon impact, Smith grabbed his torso and dropped the fork.
(Id. at 7)
Smith was still nineteen feet from Grandsen.
Grandsen again shot Smith in the torso at which point Smith
collapsed face-down in a mulch bed.
(Id.)
Grandsen approached
the bleeding Smith, handcuffed him and left Smith face-down in
the mulch bed.
(Id. at 8)
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II.
“[S]ummary judgment is proper ‘if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.’”
Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986) (quoting Fed. R. Civ. P.
56(c)).
In deciding a motion for summary judgment, the Court
must construe the facts and inferences in a light most favorable
to the non-moving party.
Pollock v. Am. Tel. & Tel. Long Lines,
794 F.2d 860, 864 (3d Cir. 1986).
“‘With respect to an issue on which the non-moving party
bears the burden of proof, the burden on the moving party may be
discharged by ‘showing’– that is, pointing out to the district
court – that there is an absence of evidence to support the
nonmoving party’s case.’”
Conoshenti v. Public Serv. Elec. &
Gas, 364 F.3d 135, 145-46 (3d Cir. 2004) (quoting Celotex, 477
U.S. at 323).
The role of the Court is not “to weigh the
evidence and determine the truth of the matter, but to determine
whether there is a genuine issue for trial.”
Lobby, Inc., 477 U.S. 242, 249 (1986).
III.
4
Anderson v. Liberty
Defendant moves for summary judgment on Count One of
Plaintiff’s Complaint, which alleges an excessive use of force in
violation of 42 U.S.C. § 1983.
Defendant’s only argument is
qualified immunity.
Qualified immunity entails a two-part inquiry.
First,
“[t]he threshold inquiry a court must undertake in a qualified
immunity analysis is whether plaintiff’s allegations, if true,
establish a constitutional violation.”
730, 736 (2002).
Hope v. Pelzer, 536 U.S.
Second, defendants may nevertheless “be
shielded from liability for civil damages if their actions did
not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.”
Id. at
739.
A.
Plaintiff’s claim of excessive force requires Plaintiff to
allege an unreasonable seizure under the Fourth Amendment.
Plaintiff must show that “a seizure occurred and that it was
unreasonable.”
1999).
Abraham v. Raso, 183 F.3d 279, 288 (3d Cir.
Reasonableness is judged by the totality of the
circumstances.
Tennessee v. Garner, 471 U.S. 1, 8-9 (1985).
First, a seizure has clearly occurred here.
Id. at 7
(“[T]here can be no question that apprehension by the use of
deadly force is a seizure subject to the reasonableness
5
requirement of the Fourth Amendment.”).
Second, Plaintiff has alleged facts sufficient to show that
the seizure was unreasonable.
Generally, deadly force is
warranted when there is an imminent threat of serious physical
injury or death to officers, bystanders or the public.
at 11; Scott v. Harris, 550 U.S. 372, 384 (2007).
See id.
Here, Smith
was standing still, non-threatening and too far away from any
person to pose an imminent threat.
Therefore, the use of deadly
force was unreasonable and Plaintiff has established a claim for
the use of excessive force under § 1983.
B.
Next, the right must have been clearly established.
To
argue that a reasonable officer would not know that it is a
clearly established constitutional violation to shoot and kill a
nonviolent sixteen-year-old boy borders on frivolity.
IV.
For the foregoing reasons, Defendant Grandsen’s Motion for
Summary Judgment is denied.
Dated: 10/25/11
/s/ Joseph E. Irenas
JOSEPH E. IRENAS, S.U.S.D.J.
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