CONDE v. CITY OF ATLANTIC CITY et al

Filing 72

OPINION. Signed by Judge Joseph H. Rodriguez on 12/5/2017. (tf, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
RUBY CONDE, as the
Administratrix ad Prosequendum,
of the Estate of Derreck Denzel
Mack, deceased, and Individually
as the Surviving Mother and Heir
at Law of Decedent,

:
:
:
:
:
:
:
:
:
:
:
:
:
:
:
:

Plaintiff,
v.
City of Atlantic City, John Doe
Officer #1 and John and Jane
Does #2-10,
Defendants.

Hon. Joseph H. Rodriguez
Civil No. 14-7531

Opinion

This matter comes before the Court on Motions of the City of Atlantic City [Dkt.
No. 54] and Defendants John Smith and Michael Ruzzo [Dkt. No. 53] seeking summary
judgment, pursuant to Fed. R. Civ. P. 56. The Court has considered the written
submissions of the parties, as well as the arguments advanced at the hearing on May 22,
2017. For the reasons stated on the record that day, as well as those that follow, the
City of Atlantic City’s motion is granted and John Smith’s and Michael Ruzzo’s motion is
granted.
I.

Background

Plaintiff Ruby Conde brings this action individually and on behalf of the Estate
of, her son, Derrek Denzel Mack (“Mack”). Mack was shot and killed by Defendant
Atlantic City Police Officer John Smith on December 17, 2012. According to the

1

Complaint, law enforcement officers responded to the area of Baltic Avenue and Martin
Luther King Boulevard, in Atlantic City, New Jersey, in response to information that two
individuals, with a concealed weapons, were observed in the area. See Smith Stat., Def.
Ex.2; Am. Compl., ¶ 16. Upon the arrival of Officer Tweedle, Mack ran. Am. Compl. at
¶ 18. Mack, alleged as unarmed, ran for approximately one block when Smith, who had
arrived on the scene and began to pursue Mack on foot, drew his weapon. Id. at ¶¶ 18,
24. According to Plaintiff, Mack stopped running and signaled surrender by raising his
arms in the air. Id. at ¶ 21. Defendant Smith fired his weapon three times striking Mack
twice in the back; a third shot missed Mack and struck a nearby vehicle. Id. at ¶¶ 22, 23.
As a result of the two bullet wounds, Mack collapsed on the sidewalk and
remained in a prone position. There is video evidence of the scene, taken by a
bystander’s cell phone, after Mack was shot. Defendant Atlantic City Police Officer
Michael Ruzzo and other back up officers arrived on the scene of the shooting. See
iPhone video, Ex. 7; Am. Compl. at ¶ 26. As will be discussed infra, video evidence
demonstrates that for approximately five minutes, no one provided medical assistance
to Mack, however, records indicate that Ruzzo called an ambulance approximately one
minute after Mack was shot. Instead of rendering medical aid to Mack, Ruzzo took
Smith to the hospital and left the scene. Am. Compl. at ¶ 30. Despite Ruzzo’s departure,
several other law enforcement officers can be seen on the video in close proximity to
Mack, who was face down on the ground. See iPhone video, Ex. 7. Mack succumbed to
the injuries sustained in the shooting, but it is unclear from the record whether Mack
was dead on arrival at the Atlantic City Medical Center Emergency Room or he died at

2

the facility.
As will be discussed in detail, there are some disputed facts related to whether
Mack was actually in possession of a gun on the day of the incident. Officer Smith
claims that he witnessed Mack holding a firearm during his pursuit of the fleeing Mack.
See Smith Stat., Ex.2. In addition, there is testimony from other Atlantic City police
officers stating that Mack had a gun and that a gun was recovered from the area where
Mack was shot and fell. None of the non-police witnesses testify that they saw Mack with
a weapon; the testimony does not confirm the presence of a weapon, but does not
exclude the possibility that Mack was armed.
Conde brings several causes of action against the Defendants, pursuant to 42
U.S.C. § 1983, including a deadly force claim against Smith (Count I), a state created
danger claim against Ruzzo and Smith (Count II), a denial of medical assistance claim
against all of defendants (Count III), a municipal liability claim pursuant to Monell v.
Dep't of Soc. Serv. of City of New York, 436 U.S. 658, 691-94, 98 S.Ct. 2018, 56 L.Ed.2d
611 (1978) against Atlantic City (Count IV), a claim of battery against Smith (Count V), a
wrongful death claim against all defendants (Count VI) and a Survivorship Action
against all defendants (Count VII).
During oral argument, Plaintiff conceded that she is not pursuing claims against
Atlantic City on a theory of failure to train. The thrust of Plaintiff’s case against
Atlantic City rests on a failure to timely render medical assistance. The Court will
address the claims against each defendant.

3

II. Summary Judgment Standard
A court will grant a motion for summary judgment if there is no genuine issue of
material fact and if, viewing the facts in the light most favorable to the non-moving
party, the moving party is entitled to judgment as a matter of law. Pearson v.
Component Tech. Corp., 247 F.3d 471, 482 n.1 (3d Cir. 2001) (citing Celotex Corp. v.
Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L.Ed.2d 265 (1986)); accord Fed. R. Civ. P.
56 (c). Thus, this Court will enter summary judgment only when “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 judgment as a matter of law.” Fed. R. Civ. P. 56 (c).
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, 106 S. Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is “material” if, under the
governing substantive law, a dispute about the fact might affect the outcome of the suit.
Id. In determining whether a genuine issue of material fact exists, the court must view
the facts and all reasonable inferences drawn from those facts in the light most favorable
to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587, 106 S. Ct. 1348, 89 L.Ed.2d 538 (1986).
Initially, the moving party has the burden of demonstrating the absence of a
genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct.
2548, 91 L.Ed.2d 265 (1986). Once the moving party has met this burden, the
nonmoving party must identify, by affidavits or otherwise, specific facts showing that

4

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 a properly supported motion for
summary judgment, the nonmoving party must identify specific facts and affirmative
evidence that contradict those offered by the moving party. Andersen, 477 U.S. at 25657. Indeed, the plain language of Rule 56(c) mandates the entry of summary judgment,
after adequate time for discovery and upon motion, against a party who fails to make a
showing sufficient to establish the existence of an element 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.
In deciding the merits of a party’s motion for summary judgment, the court’s role
is not to evaluate the evidence and decide the truth of the matter, but to determine
whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. Credibility
determinations are the province of the finder of fact. Big Apple BMW, Inc. v. BMW of
N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).
A. Plaintiff’s Constitutional Claims Against the City of Atlantic City
Counts II and IV allege a violations of Mack’s constitutional rights against the
City of Atlantic City pursuant to section 1983. Section 1983 does not provide any
substantive rights, but is instead a vehicle for the enforcement of rights. In Monell, 436
U.S. at 691-94, the Supreme Court stated that a municipality could not be held liable
under Section 1983 pursuant to a theory of respondeat superior. Municipalities are only
held responsible “for their own illegal acts.” Connick v. Thompson, 131 S.Ct. 1350, 1359
(2011) (quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 479 (1986)). As a result,
Plaintiff’s Claims in Counts II and IV as against Atlantic City, require a showing of

5

liability against the other two named individual defendant police officers, Ruzzo and
Smith.
B. Claims Under 42 U.S.C. § 1983 and Qualified Immunity
Plaintiff’s constitutional claims 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, 503 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 Columbia,
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 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.
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. 2006) (citing Baker, 443 U.S. at 145, n.3).
To state a cognizable claim under Section 1983, a plaintiff must 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. 2008) (citing Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir.
1996)). Thus, a plaintiff must demonstrate two essential elements to maintain a claim
6

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 the plaintiff was deprived of
his rights by a person acting under the color of state law. Williams v. Borough of West
Chester, Pa., 891 F.2d 458, 464 (3d Cir. 1989).
The doctrine of qualified immunity provides that “government officials
performing discretionary functions . . . 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 should have known.” Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982). Thus, government officials are immune from suit in their
individual capacities unless, “taken in the light most 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 time of the objectionable conduct. Saucier
v. Katz, 533 U.S. 194, 201 (2001). Courts may exercise discretion in deciding which of
the two prongs of the qualified immunity analysis should be addressed first in light of
the circumstances in the particular case at hand. Pearson v. Callahan, 555 U.S. 223,
236 (2009).
This doctrine “balances two important interests—the need to hold public officials
accountable when they exercise power irresponsibly and the need to shield officials from
harassment, distraction, and liability when they perform their duties reasonably” and it
“applies regardless of whether the government official’s error is a mistake of law, a
mistake of fact, or a mistake based on mixed questions of law and fact.” Id. (internal
quotation omitted). Properly applied, qualified immunity “protects ‘all but the plainly

7

incompetent or those who knowingly violate the law.’” Ashcroft v. al-Kidd, 131 S. Ct.
2074, 2085 (2011) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).
For a right to be clearly established, “[t]he contours of the right must be
sufficiently clear that a reasonable official would understand that what he is doing
violates that right.” Saucier, 533 U.S. at 202 (quoting Anderson v. Creighton, 483 U.S.
635, 640 (1987)). That is, “[t]he relevant, dispositive inquiry in determining 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 (2006). “If the officer’s mistake as to what the law requires is reasonable,” the
officer is entitled to qualified immunity. Couden, 446 F.3d at 492 (internal citations
omitted). Further, “[i]f officers of reasonable competence could disagree on th[e] issue,
immunity should be recognized.” Malley, 475 U.S. at 341 (1986). See also Brosseau v.
Haugen, 543 U.S. 194, 198 (2004) (The general touchstone is whether the conduct of the
official was reasonable at the time it occurred.) Finally, because qualified immunity is
an affirmative 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. 2001).
Here, Plaintiff alleges a violation of Mack’s Fourth, Fourteenth, and Eighth
Amendment rights and there is no dispute that the individual police officers were acting
under the color of state law.

III. Analysis
Summary judgment is granted in favor of Officer Smith because he is entitled to

8

qualified immunity for his reasonable belief that Mack was armed and posed a threat
during Smith’s on foot pursuit of Mack. Summary judgement is granted in favor of
Officer Ruzzo because there is no genuine issue of material fact related to the claim that
he was indifferent to the medical needs of Mack. Summary judgment is also granted on
the claims of state created danger, wrongful death, survivorship, and all claims against
the City of Atlantic City.
A. Counts I (Excessive Force) and V (Battery)
Summary judgment is granted as to Count I, which alleges excessive force against
Smith in violation of the Fourth Amendment. “[A]pprehension by the use of deadly
force is a seizure subject to the reasonableness requirement of the Fourth Amendment.”
Tennessee v. Garner, 471 U.S. 1, 7, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). A claim for
excessive force claim is reviewed under an objective reasonableness standard. Graham
v. Connor, 490 U.S. 386, 397, 109 S.Ct. 1865, 1872, 104 L.Ed.2d 443 (1989). Under this
standard, the Court must pay “careful attention to the facts and circumstances of each
particular case, including the severity of the crime at issue, whether the suspect poses an
immediate threat to the safety of the officers or others, and whether he is actively
resisting arrest or attempting to evade arrest by flight.” Id. at 396, 109 S.Ct. at 1872; see
also Groman, 47 F.3d at 634. “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.’ ” Id. at 396–97, 109 S. Ct. at 1871–73;
see also Sharrar v. Felsing, 128 F.3d 810, 820–21 (3d Cir. 1997).

9

“Whether or not [an officer's] actions constituted application of ‘deadly force,’ all
that matters is whether [the officer's] actions were reasonable.” Scott v. Harris, 550 U.S.
372, 383 (2007). While mistakes will invariably happen, the Fourth Amendment
guarantees that mistakes will only be made after proper diligence and regard for our
notions of liberty and justice is accorded. “Under qualified immunity, police officers are
entitled to a certain amount of deference for decisions they make in the field [because
they] must make split-second judgments—in circumstances that are tense, uncertain,
and rapidly evolving.” Gilles v. Davis, 427 F.3d 197, 207 (3d Cir. 2005) (internal
quotations omitted)). “[S]ufficient probability, not certainty, is the touchstone of the
Fourth Amendment[.]” Hill v. California, 401 U.S. 797, 803-04 (1971). Thus, the
reasonableness of a seizure is assessed in light of the totality of the circumstances.
Abraham v. Raso, 183 F.3d 279, 289 (3d Cir. 1999).
Under this standard and viewing the facts in a light most favorable to the
Plaintiff, the Court finds that although there are some questions of fact related to
whether Mack was actually in possession of a gun, Smith’s belief that Mack was armed
was objectively reasonable and Smith enjoys qualified immunity.
On December 17, 2012, the Stanley Holmes Village section of Atlantic City was
under surveillance by several members of various law enforcement agencies, including
members of the Atlantic City Department. See Exs. B, C. Because the Village is a known
area of frequent drug activity, it had been under physical and video surveillance for
many months prior to Mack’s death.1 For this reason, and because he had prior

1 Given the scope and duration of surveillance, the record includes video surveillance tapes which

10

interaction with the Atlantic City police, Mack and his brother Michael Mack, were
known to law enforcement officers.2 Ex. B, p. 26.
On the day in question, Derreck Mack was walking with Terry Davis through the
Village in the area of Baltic Avenue and Martin Luther King Boulevard. Det. James
Barrett was conducting surveillance in the Village and identified two males, one of
which he believed to be a Mack brother and another individual named Terry Davis. See
Ruzzo Statement, Ex. 1, p. 2. Barrett radioed Atlantic City Police Detectives Dabney,
Defendant Ruzzo, and Fair to alert them that both men were armed and described an
individual as wearing a black and white hat as well as a black and white Oakland Raiders
jacket. See Ex. B., p. 26; Ex. C. The police descended upon the area and began to
chase Davis and Mack across Baltic Avenue toward the Stanley Holmes Village. See
Security Camera 31 footage, Ex. 2. Detective Dabney apprehended Terry Davis without
incident and recovered a handgun from Davis’ person. See Dabney Rpt., Ex. 4.
Defendants claim that the video depicts Mack as possessing a handgun in his
depict various individuals, possibly including Mack, on December 17, 2012. Exs. B, C. There is notable
confusion as to the date stamp on the video: the date stamp indicates a date of November 30, 2012,
however, Assistant U.S. Attorney Elizabeth Pascal has represented that this video, which allegedly depicts
Mack, is dated December 17, 2012 and was introduced as admissible evidence during the Dirty Blok
Trials. See Ex. D. The Court has reviewed the video and finds it grainy and difficult to positively identify
any of the individuals with certainty and/or identify any objects that may or may not be in the possession
of the depicted person. However, still shots of the video produced in Defendants’ Exhibit “C” which more
clearly depict Mack with a gun in his waist band. This evidence suffers from the mislabeled date stamp
on the top of the frame; however, the Assistant United States Attorney’s statement alleges that the photo
was taken on December 17, 2012.
According to Plaintiff, no surveillance video or photographs of Derreck Mack taken on December
17, 2012 by any law enforcement officials has been produced. The date stamp of the FBI surveillance
video is November 30, 2012. As a result, and despite the letter by the United States Attorney’s Office,
Plaintiff claims there is no proof that Mack was armed on December 17, 2012.

2 Det. Dabney arrested Derreck Mack in May of 2011; a handgun was recovered
from both Mack and his brother, Michael. Ex. B., p. 26.
11

waistband and that he ran while being pursued by Officer Smith. See Ex. A., at ¶ 19; Ex.
B. Officer Smith claims that when Mack reached into his waistband, Officer Smith
observed a handgun. See Smith Dep., Ex. E. Although Officer Smith ordered Mack to
drop the gun, Mack continued to flee, but his pace eventually slowed. Id. Smith
claims that Mack began to turn toward him in a manner suggesting that Mack was
taking a stance. Id. Smith discharged his gun, sending Mack to the ground.
In addition to the police officers, there were several eye-witnesses to the
shooting. There is no video evidence of the shooting.3
Eyewitness Denyse Ridley had a visual on the chase but could not hear whether
Smith gave any commands to Mack during the pursuit. See Ridley Dep., Ex. 6, pp. 7-8.
From her vantage point, she describes Mack as running toward her with Smith in
pursuit. Id. She saw Mack’s left hand raise in the air and turn his body toward Smith
“like he was coming around.” Id. at p. 2. Ridley further describes the series of events that
lead her to conclude Mack had gun:
Q. “But from your vantage point, you saw the left hand up, right hand was
still tucked in front of his body, somewhere in the stomach or waist area?”
Ridley: “Right. Like his, yeah, like coming towards, like coming from his
stomach, like if you have a cramp and you pull your hand aways from your
stomach, that’s how his hand came up. It didn’t come straight up like
this, this one came up. This one didn’t.”
The fact that Mack did not completely stop and because he “swerved” with only
one hand raised gave Ridley concern that Mack did not intend to surrender. Id. at 9.

3 Plaintiff claims that the lack of video evidence of the shooting in an area under constant surveillance is
suspect.

12

Ridley states:
But I saw the young man put his left arm up but slowly come up with his
right arm but in like a slant, his body slanted, not fully straight back to the
officer. So I don’t know if the officer assumed that he was pulling
something from his front to come up with, come around or whatever, but
the officer started shooting[] . . . I would’ve shot him because I don’t know
if he is pulling something from his waistband or he was coming to give
up.”
Id. at 9, 11. Ridley explained that the reason for her concern was the fact that
both hands did not come straight up in the air in a surrender posture. Rather,
the left came up first and then the right began to rise as Mack appeared to turn
toward the officer. Id.
Plaintiff claims that the record also reflects testimony of other witnesses who
state that Mack was “unarmed.” This mischaracterizes the testimony of these witnesses.
Witness Darlene Newell- Clements states that she “heard the officer when he said halt,
stop, he told him. And the guy stopped, he put his hands up and the cop shot him in
the back.” Newell-Clements Dep., Ex. 4, 41:1-5. Newell-Clements “can’t say” that Mack
had a gun or that she saw a gun because Mack was “in line with the mailbox” when she
witnessed the shooting, obscuring her view. Id. at 55:20-22; 49:11-14.
Q. Did the guy that was running have anything in his hands?
A. I can’t say that.
Q. Do you know if he had reached in his waistband or any other
area before he put his hands up?
A. Again, I can’t say that because I was at a little distance.
Id. at 50:17-24.
Witness Kaleef Shabazz gave a statement to the Atlantic County Prosecutor’s
Officer and detailed his eyewitness account to Smith’s pursuit of Mack. According to

13

Shabazz, he saw Mack’s hands in the air when Smith shot him. See Shabazz Stat., Ex.
3. Shabazz acknowledged that his view of the incident was obstructed by a bush and that
he could only see Mack from the shoulders up. Id. There is no evidence that Shabazz
knew Mack to be unarmed; only the absence of an allegation that Shabazz saw a gun.
And Shabazz is unable to determine if Mack’s hand went to his waistband before it was
raised. Id.
The record indicates that several police officers either observed Mack with a
handgun prior to the shooting or saw a handgun on the ground next to Mack after he
was shot and fell. Detective Kevin Fair was part of the pursuit of Mack.

He states

that when he first observed Mack, he did not see a gun. Fair Dep., Ex. 5, p. 6. Mack was
running and then tripped in the street. Id. Once Mack got up, Fair saw a silver
handgun and alerted police by way of radio and verbal shout. Id. Fair testifies that he
yelled to Smith that Mack was armed when Smith joined the pursuit and was within a
closer proximity to Mack than Fair. Id. at 8. After Mack was shot, Fair states that
“there was a handgun that was on the ground, a large silver handgun that was on the
ground next to Mack[.]” Id. at 9.
Officer Sparks was also part of the pursuit of Mack and observed a silver handgun
on Mack’s person. See Sparks’ Rpt., Ex. 4. Sparks further states that both Mack and
Davis failed to abide by officers’ commands to stop. Id. Detective Lieutenant Sarkos
arrived on the scene to find Mack on the ground, handcuffed, and with a handgun just
nearby. See Sarkos’ Rpt., Ex. 4. When Detective Barrett arrived at the scene of the
shooting, he observed Mack in handcuffs with a gun nearby. See Barrett Rpt., Ex. 4.

14

The non-law enforcement eyewitness accounts support the notion that Smith’s
conclusion that Mack was armed was reasonable. Not only did Smith observe Mack with
a gun, but his recitation of the facts is consistent with that of Ridley and Fair.
Importantly, the testimony of Shabazz and Newell-Clements does nothing to undermine
Smith’s reasonable belief that Mack was either armed or reaching for something in his
waistband.4
Plaintiff claims that the fact that the gun was removed from the scene without
being photographed creates a genuine issue of material fact related to whether Mack
was armed. See Atl. Cnty. Prosecutor’s Office Inv. Rep., Atlantic City/000246-253, Ex.
8. At the scene of the shooting, Sgt. String states that observed Officer Tweedle
“straddling over a large silver handgun[.]” See String Rpt., Ex. 4. String removed the
gun from the scene because the crowd was growing and he feared for the “officer[‘]s
safety.” Id. The iPhone video confirms that a crowd was growing and becoming loud.
Understandably, there was tension as gatherers tried to approach the injured Mack and
questioned the police as law enforcement officers attempted to secure the scene, which
by all accounts was becoming hostile.
String placed the gun in his vehicle and, once the scene was secured, he
personally took it to the forensic unit. Id. As a result of removing the gun from the scene,
the gun is not listed in the Prosecutor’s Investigation Report as evidence recovered or

4 Plaintiffs’ claim that none of the eight individuals interviewed by the Atlantic County Prosecutor’s
Office on the day of the shooting mentioned seeing a gun possessed by Derreck Mack either before or after
the shooting does not undermine the Court’s determination that Smith’s belief was reasonable. See
Atlantic City/000714-721, Ex. 6. While none of the witnesses state that they observed a gun, none testified
that Mack was unarmed or that Mack was not in possession of a gun.

15

identified at the scene and there are no photographs of the gun near the area where
Mack fell after being shot. See Atl. Cnty. Prosecutor’s Office Inv. Rep., Atlantic
City/000246-253, Ex. 8. In addition, there is no DNA evidence linking Mack to the
gun that was retrieved; however, DNA taken from the alleged gun samples cannot
exclude Mack as a partial contributor to the mixed DNA profile obtained from the gun.5
See Forensics Rep., Ex. N.
The Court agrees that there may be a genuine issue of fact related to whether
Mack was actually armed on the day in question. However, the test is not whether
Mack was armed; qualified immunity affords police officers deference for split-second
decisions in rapidly evolving circumstances. Gilles, 427 F.3d at 207. The Fourth
Amendment demands Smith act reasonably and with a “sufficient probability, not
certainty[.]” Hill, 401 U.S. at 803-04. “It is unreasonable for an officer to use deadly
force against a suspect unless the officer has good reason to believe that the suspect
poses a significant threat of death or serious physical injury to the officer or others.”
Lamont v. New Jersey, 637 F.3d 177, 183 (3d Cir. 2011) (quotation omitted). Therefore,
as long as Smith’s belief that Mack was armed is reasonable, qualified immunity applies
even if Smith was mistaken. Pearson, 555 U.S. at 236.
Proceeding with the qualified immunity analysis regarding Officer Smith's use of
deadly force, the Court finds that Mack’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

5 Plaintiffs’ expert opines that the DNA analysis cannot exclude or include approximately 50% of the African
American, Caucasian or Hispanic populations. See DNA Report of Arthur Young, Ex. 15.

16

officer may 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.” Lamont,
637 F.3d at 185; see also Weinmann, 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.”) In this case,
the issue is whether Smith’s use of deadly force was objectively reasonable, given the
totality of the circumstances. The Court finds that Smith’s belief that Mack was armed
and that Mack poses a threat and the use of deadly force was necessary was objectively
reasonable under the circumstances. Although not determinative and with each action
applying different standards of review, three different investigations support this
conclusion. The Altantic City Police Department conducted an internal review and took
no action against the officers. The Atlantic County Prosecutor’s Office brought the case
before a Grand Jury that found the conduct was “lawful and justified” and issued a no
bill. An independent expert also reviewed the case and concluded that Officer Smith
operated within the bounds of policy and protocol and his actions were justified. See
Report of Emanuel Kapolsohn, Ex. 12In addition, the expert claims that Officer Smith’s
version of events are consistent with the autopsy findings in relation to the bullet entry
wounds and Mack’s slightly turned position. See id., p. 8; Postmortem Examination

Photographs, Ex. 5.
The Court, “[i]n qualified immunity cases, [must] adopt[] ... the plaintiff's version
of the facts.” Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007).
Once the Court has “determined the relevant set of facts and drawn all inferences in
17

favor of the nonmoving party to the extent supportable by the record,” the
reasonableness of a police officer's actions “is a pure question of law.” Id., 550 U.S. at
381, n. 8. To determine whether Smith’s use of force was reasonable, the Court applies
the “perspective of a reasonable officer on the scene, rather than with the 20/20 vision
of hindsight.” Graham, 490 U.S. at 396. Here, Smith was informed by other officers at
the scene that Mack was armed, an observation Smith alleges he also made personally.
Even assuming all of the officers and Ms. Ridley were lying about the presence of the
gun and the video evidence is perhaps unreliable, Smith arrives on the scene with
information that the man he is pursuing is armed. Mack, despite demands to stop,
continues to flee and evade arrest and, according to several witnesses, slows his pace as
he raises his hands. Of the witnesses who could see both of Mack’s hands raise in the
air and Mack’s torso, the undisputed evidence shows that, at the very least, the
possibility existed for Mack to reach into his waistband, where Smith and others state he
holstered the weapon. The bullet wounds are consistent with Smith’s account that Mack
was turning toward him. See Report of Emanuel Kapolsohn, Ex. 12.
On summary judgment, if “a reasonable officer could have believed that his
conduct was justified,” the police officer is entitled to qualified immunity. San Francisco
v. Sheehan, ––– U.S. ––––, ––––, 135 S.Ct. 1765, 1777, 191 L.Ed.2d 856 (2015). The
Court finds that Officer Smith’s use of deadly force was objectively reasonable under the
totality of the circumstances.
B. Counts II (State Created Danger) and III (Denial of Medical Assistance)
The essence of Plaintiff's constitutional claims in Counts II and III is that the

18

police officers unlawfully delayed medical care to Mack by failing to call emergency
medical services, failing to timely and properly transport Mack to the hospital, and filing
to administer care as Mack lay on the ground. Government officials are required to
provide an arrestee, in their custody, medical care for injuries. The Eighth
Amendment's “deliberate indifference” standard, applies, through the Fourteenth
Amendment, to Plaintiff’s claim that Mack was denied medical attention after he was
shot twice in the back by Smith. See, e.g., City of Revere v. Massachusetts Gen. Hosp.,
463 U.S. 239, 244, 103 S. Ct. 2979, 2983, 77 L. Ed. 2d 605 (1983) (noting that “the due
process rights of a person [who was injured while being apprehended by the police] are
at least as great as the Eighth Amendment protections available to a convicted
prisoner”); Estelle v. Gamble, 429 U.S. 97, 104, 97 S. Ct. 285, 291, 50 L.Ed.2d 251
(1976). “[D]eliberate indifference to serious medical needs of prisoners [and arrestees]
constitutes the ‘unnecessary and wanton infliction of pain’ proscribed by the Eighth
Amendment.” Estelle, supra, 429 U.S. at 104, 97 S. Ct. at 291, 50 L. Ed. 2d at 260
(citations omitted) (quoting Gregg v. Georgia, 428 U.S. 153, 173, 96 S. Ct. 2909, 2925,
49 L.Ed.2d 859, 875 (1976)).
To succeed under the “deliberate indifference” standard, the plaintiff must prove:
(1) that his medical needs were “objectively serious” and (2) that the defendants
exhibited “deliberate indifference” to Plaintiff's medical needs. Monmouth County
Correctional Inst. Inmates v. Lanzaro, 834 F.2d 326, 346 (3d Cir.1987) (citing Estelle,
429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)). A “serious medical need” is “one that
has been diagnosed by a physician as requiring treatment or one that is so obvious that a

19

lay person would easily recognize the necessity for a doctor's attention” or “where the
denial of treatment would result in the unnecessary and wanton infliction of pain or a
life-long handicap or permanent loss.” Atkinson v. Taylor, 316 F.3d 257, 272–73 (3d Cir.
2003) (internal citations omitted).
There is no video depiction of Smith’s interaction with Mack, but the audio
reflects that at 2:04 p.m., someone yelled “Shots fired, one man down.” Ex. B., p. 3.
Approximately one minute later a call of “56” was made by Ruzzo; “56” is a code to call
an ambulance. Id.; see also Ex. I. Then, Ruzzo escorted Smith to the hospital in a police
vehicle.6 Plaintiff alleges that Ruzzo’s decision to leave the scene of the shooting and
abandon Mack in favor of escorting Smith to the hospital demonstrates deliberate
indifference. Plaintiff contends that Ruzzo should have placed Mack in the vehicle and
taken him to the hospital because he had been, shot unlike Smith who did not present
with any life threatening injuries. Ruzzo states in deposition that the reason he did not
attend to Mack is because he believed that Mack was already dead. See Ruzzo Dep., Ex.
I, p. 7.
Video taken by a bystander on an iPhone depicts several unnamed persons,
believed to be Atlantic City police officers or members of the Atlantic County
Prosecutor’s Office, standing in close proximity to Mack following the shooting. The
video begins after the shooting has happened and Mack is already on the ground, lying
still. None of the persons in the video touch Mack for several minutes, although it

6 Ruzzo’s removal of Smith from the scene is consistent with the Atlantic City Police Department Use of Force
Policy. That Policy states that in the event of serious injury or death as a result of the use of force, the employee
shall be removed from the scene as soon as practicable. Ex. O.

20

appears they are aware of him. The ambulance log indicates that an ambulance was
dispatched at 2:06 p.m. and arrived at Mack’s position at 2:10 p.m. See Ex. F. Then
after five minutes an officer begins CPR. The video also depicts, through commentary
and sound, that someone claiming to be a nurse asked to assist Mack but was denied
access to the scene. See iPhone Video, Ex. 7. Plaintiff identifies the failure to let a
medical professional access Mack as indicative of deliberate indifference.
There is some discrepancy as to Mack’s arrival time at the hospital; ambulance
records indicate an arrival time of 2:18 while the hospital records reflect an arrival time
of 2:20 p.m. See Exs. F., G. Giving Plaintiff the benefit of every inference, an ambulance
was summoned immediately following the shooting and Mack was on his way to a
hospital in an ambulance within seven minutes of being shot. During that time, he was
given CPR and several officers testified that he was breathing while he was on the
ground. Officer Halvorson reports that upon arriving that the scene, he rolled Mack onto
his back. See Halvorson Rpt., Ex. 4. Mack was breathing until he was fully on his back.
Id. Officer Spark’s states that Mack began to lose consciousness so he removed the
handcuffs. See Sparks’ Rpt., Ex. 4. Then, Sarkos took Mack’s pulse and started
performing CPR. See Sarkos Rpt., Ex. 4.
There is no evidence that Mack’s chance of survival would have improved had
Ruzzo taken him to the hospital instead of Smith or that such a protocol was
appropriate. Likewise, there is no evidence that any of the officers in the vicinity of
Mack could have done anything to improve his chance of survival. The record is likewise
devoid of medical testimony related to actions that could have potentially saved Mack’s

21

life at any point during the nearly seven minutes between his shooting and the arrival of
medical professionals.
To the extent that the person on video claiming to be a nurse was in fact
medically trained, there is nothing in the record to suggest that the nurse could have
performed any intervention to curtail Mack’s condition from worsening. Finally, when
Ruzzo left the scene, the video evidence depicts a number of other police officers who
could have rendered aid to Mack during the seven minutes it took the ambulance to
arrive on the scene. As a result, the facts of this case do not arise to the level of
deliberate indifference on the part of Officer Ruzzo. Summary judgment is granted in
favor of Defendant Ruzzo as to Count III.
Summary judgment is granted as to Count II, state created danger. 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 enforcement officials used excessive force in the
course of making an arrest, investigatory stop, or other ‘seizure’ of his person. We hold
that such claims are properly analyzed under the Fourth Amendment'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 Amendment, not under substantive due process”) (citing
Graham, 490 U.S. at 393-94); see also Wilson v. Borough of Bellmawr, No. CV 13-5437,
2016 WL 7377114, at *12 (D.N.J. Dec. 20, 2016).
To the extent that such a claim is properly analyzed under the Fourteenth

22

Amendment under the facts of this case, the Due Process Clause does not impose an
affirmative obligation on the state to protect its citizens. Phillips v. County of Allegheny,
515 F.3d 224, 235 (3d. Cir. 2008). In this regard, the state-created danger theory of
liability operates as an exception to that general rule and requires plaintiffs to meet a
four part test: “(1) the harm ultimately caused was foreseeable and fairly direct; (2) the
state actor acted with a degree of culpability that shocks the conscience; (3) a
relationship between the state and the plaintiff existed such that the plaintiff was a
foreseeable victim of the defendant's acts ...; and (4) the state actor affirmatively used
his or her authority in a way that created a danger to the citizen or that rendered the
citizen more vulnerable to danger than had the state not acted at all.” Sanford v. Stiles,
456 F.3d 298, 304 (3d Cir. 2006).
As noted above, there is nothing in the record to suggest that any of the
Defendants in this case acted in a manner that shocks the conscience with respect to
Mack’s medical treatment. The state created danger theory rests on the denial of
medical care. Because there is nothing in the record to support a claim of actions that
shock the conscience, and summary judgment has been granted on the excessive force
claim, summary judgment is granted on the state created danger theory.
C. Claims Against The City of Atlantic City, (Count IV), Wrongful Death (Count
VI) and Survivorship (Count VII).
Plaintiff’s Claims in Counts II and IV as against Atlantic City are predicated upon
a showing of liability against Ruzzo and Smith. Connick, 131 S.Ct. at 1359. As a result,
summary judgment is granted as to these claims because there is no underlying

23

constitutional violation by either Smith or Ruzzo. For the same reasons, summary
judgment is granted as to Plaintiff’s Wrongful Death and Survivorship Action as plead in
Counts VI and VII.

IV. Conclusion
For the reasons stated herein, summary judgment is granted in favor of
Defendants Ruzzo, Smith and The City of Atlantic City as to all counts. An appropriate
Order shall issue.

Dated: December 5, 2017

s/ Joseph H. Rodriguez
Hon. Joseph H. Rodriguez,
UNITED STATES DISTRICT JUDGE

24