BROWN et al v. CITY OF ATLANTIC CITY et al

Filing 165

OPINION. Signed by Judge Renee Marie Bumb on 8/30/2019. (tf, )

[Dkt. Nos. 145, 151]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

ROSE BROWN, INDIVIDUALLY, AND
AS ADMINISTRATOR AD
PROSEQUENDUM OF THE ESTATE OF
SHAWN BROWN,
Plaintiffs,
v.

Civil No. 15-6711(RMB/AMD)
OPINION

CITY OF ATLANTIC CITY, DET.
JAMES HERBERT, DET. HOWARD
MASON, AND DET. MICHAEL RUZZO,
Defendants.

APPEARANCES:
LAW OFFICES OF ANDAIYE AL-UQDAH
By: Andaiye Al-Uqdah, Esq.
309 Fellowship Road, Suite 200
Mount Laurel, New Jersey 08054
Counsel for Plaintiffs Rose Brown and
the Estate of Shawn Brown
CARTER & MCKEE, LLC
By: James J. Carter, Esq.; Randy George McKee, Esq.
1100 Poydras Street, Suite 1475
New Orleans, Louisiana 70163
Counsel for Plaintiffs Rose Brown and
the Estate of Shawn Brown
HOAGLAND, LONGO, MORAN, DUNST & DOUKAS, LLP
By: Susan K. O’Connor, Esq.
40 Paterson Street, P.O. Box 480
New Brunswick, New Jersey 08903
Counsel for Defendant City of Atlantic City
MICHAEL A. ARMSTRONG & ASSOCIATES, LLC
By: Morrison Kent Fairbairn, Esq.
79 Mainbridge Lane
Willingboro, New Jersey 08046
Counsel for Defendant City of Atlantic City

SAPONARO LAW GROUP
By: George R. Saponaro, Esq.; Stephen E. Parrey, Esq.
27 Cedar Street
Mount Holly, New Jersey 08060
Counsel for Defendants James Herbert,
Howard Mason, and Michael Ruzzo
LAW OFFICES OF RILEY & RILEY
By: Tracy L. Riley, Esq.
100 High Street, Suite 302
Mount Holly, New Jersey 08060
Counsel for Defendants James Herbert,
Howard Mason, and Michael Ruzzo

RENÉE MARIE BUMB, UNITED STATES DISTRICT JUDGE:
Plaintiffs Rose Brown and the Estate of Shawn Brown
(“Plaintiffs”) bring this civil action in connection with a
shooting that resulted in the death of Shawn Brown (“Brown”) on
September 9, 2014.

Now, this matter comes before the Court upon

Motions for Summary Judgment, filed by Defendant City of Atlantic
City (“Atlantic City”)[Dkt. No. 145] and Defendants Det. James
Herbert, Det. Howard Mason, and Det. Michael Ruzzo (the
“Detectives” or “Officers”)[Dkt. No. 151].

For the reasons set

forth herein, Atlantic City’s Motion for Summary Judgment will be
GRANTED.

Additionally, the Officers’ Motion for Summary Judgment

will be GRANTED IN PART and DENIED IN PART.

2

I.

FACTUAL AND PROCEDURAL BACKGROUND
On September 9, 2014, Detectives Herbert, Mason, and Ruzzo

were on duty in Atlantic City, New Jersey, wearing plain clothes
while undercover drug purchases with the assistance of a
confidential informant. See Atlantic City’s Statement of
Undisputed Material Facts (“AC SUMF”)[Dkt. No. 145-2], at ¶ 53.
Shortly after completing a drug purchase, the Officers were
traveling in their vehicle to another buy when Detective Herbert
heard gunshots in the vicinity. Id. at ¶ 57. The Officers
contacted dispatch for confirmation from “Shot Spotter” (an
acoustic device used to pinpoint the location of gunfire within
the city limits). See id. at ¶¶ 55, 57.

Within a few minutes,

dispatch confirmed that multiple gunshots had been detected near
Drexel Avenue on Route 30; only two blocks away from the
Officers’ location.1 Id. at ¶ 58. Due to their proximity, the
Officers immediately rerouted their vehicle to the area of the
shooting. Id.
Upon turning onto Mediterranean Avenue, a confidential
informant gestured to indicate that the individual walking behind

1

The ShotSpotter report confirms that eleven (11) rounds were
fired in the parking lot of the Cedar Food Market at the corner
of Pennsylvania Avenue and Adriatic Avenue, by Route 30, at
approximately 12:55 p.m. on September 9, 2014. See AC SUMF, at ¶
55.
3

him, later identified as Shawn Brown, was the shooter.2
SUMF, at ¶¶ 64-65.

See AC

The Officers observed that Brown “appeared

nervous, and was continuously looking over his shoulder.” Id.
After making eye contact with the Officers in their vehicle,
Brown began to flee down a nearby side street. Id. at ¶¶ 70, 72.
While running away, the Officers observed Brown clutch at his
waistband and produce a handgun. Id. at ¶ 72. The Officers, who
were wearing badges around their necks, repeatedly identified
themselves as police and ordered Brown to stop, but he neither
stopped nor dropped the gun.

Id. at ¶¶ 73-74.

The Officers pursued Brown in their vehicle as he rounded
the corner from North Bartlett Street onto Drexel Avenue, where
he stumbled into some vegetation. See AC SUMF at ¶¶ 75, 78. Det.
Mason stopped the vehicle at the corner of North Bartlett Street
and Drexel Avenue, where Det. Ruzzo exited the vehicle and moved
towards Brown. Id. at ¶ 79.

At that point, Brown turned to face

the Officers with his gun pointed in their direction. Id. at ¶
81.3 In response, Det. Ruzzo fired four to six rounds at Brown.
Id. at ¶ 82.

Detective Herbert sought cover behind the vehicle’s

2

Ballistics tests later confirmed that the shots near the Cedar
Food Market were, indeed, fired from Shawn Brown’s handgun. See
AC SUMF, at ¶ 63.
3

Although Plaintiffs disputed this statement in Atlantic City’s
SUMF, Plaintiffs’ expert conceded this fact. See infra, Section
III.A.
4

metal frame, but then exited the vehicle and fired one to two
shots at Brown. Id. at ¶¶ 83, 85.

After Det. Ruzzo and Det.

Herbert had begun firing at Brown, still holding the handgun,
Brown turned and began running down Drexel Avenue. Id. at ¶ 89.
Det. Ruzzo fired one or two more rounds at Brown before he
observed blood on Brown’s shirt. Id. Brown fell to the sidewalk
and dropped his gun. Id.
The parties offer differing accounts of what occurred after
Brown fell to the ground.

The Officers state that they observed

Brown attempt to stand up and move towards his gun, causing Det.
Ruzzo and Det. Herbert to each fire an additional round to subdue
the perceived threat. Id. at ¶ 91. However, two witnesses contend
that Brown was facing the Officers, with both hands raised
without a gun, yelling “don’t shoot,” when Det. Ruzzo and Det.
Herbert each fired their final shots at Brown.4

See Deposition

of Dekrex Davis (“Davis Deposition”)[Dkt. No. 155-4]; Gertrude
Pettus Statement to Investigators, Sept. 15, 2014 (“Pettus
Statement – 9/15/14”)[Dkt. No. 155-9].

After firing his final

round, Det. Herbert approached Brown with his gun drawn,

4

The witness accounts differ somewhat. Whereas Dekrex Davis
testified at his deposition that he heard Brown yell “I’m hit,
don’t shoot me,” the other witness, Gertrude Pettus, told
officers that she only heard Brown yell “don’t shoot.” Ms.
Pettus later told investigators that she had not heard any
yelling before the shots were fired. See Gertrude Pettus
Statement to Investigators, Oct. 7, 2014 (“Pettus Statement –
10/7/14”)[Dkt. No. 155-10].
5

instructed Brown not to move, and stood over Brown’s gun (which
was loose on the ground near his body). See AC SUMF, at ¶ 91.
After the last gunshots, Brown allegedly told the Officers he was
“done” and pushed himself further away from his weapon.

Id. at ¶

105.
At approximately 12:57 p.m., Det. Herbert notified dispatch
that multiple shots had been fired and requested an ambulance.
See AC SUMF, at ¶ 93.
12:58 p.m.

Det. Ruzzo also requested an ambulance at

Due to the nature of Brown’s injuries, Det. Herbert,

at 12:58 p.m. once again emphasized to dispatch that an ambulance
was needed.

Id. at ¶ 106. The entire sequence, from when the

Officers first witnessed Brown with a handgun to when an
ambulance was called, lasted approximately one minute. Id. at ¶
99. The Officers did not administer any medical assistance, such
as CPR, to Brown at the scene.

Prior to the ambulance’s arrival,

Sergeant Craig Mulhern arrived at the scene, where he handcuffed
and searched Brown, finding that Brown had been carrying forty
(40) bags of heroin. Id. at ¶ 110.
Paramedics and EMTs arrived at the scene at approximately
1:01 p.m. and left for the hospital at 1:15 p.m., after Brown had
been intubated and administered epinephrine. See AC SUMF, at ¶
107. At that time, Brown was unresponsive, his pulse was weak, he
was unconscious, and he had agonal respiration. Id.

When Brown

arrived at AtlantiCare Regional Medical Center, at 1:19 p.m., he
6

was asystolic, with his pupils fixed and dilated. Id. at ¶ 108.
Brown later coded in the operating room and was pronounced dead
at 2:16 p.m. Id.

The record contains no evidence indicating that

Brown would have survived if he had received different, or more
expedient, medical care.
An autopsy, performed by Daksha Shah, M.D., Designated
Medical Examiner (the “DME”), on September 10, 2014, determined
that three (3) bullets struck Brown. See AC SUMF, at ¶ 114. The
DME found that the gunshot wound to the right side of Brown’s
chest caused his death. Id.

According to the DME, the fatal shot

had a downward trajectory and hit Brown on the front side of his
chest, passing through his right lung and exiting out his back.
See Autopsy Report [Dkt. No. 145-8, Ex. 43], at 5.

The DME noted

that Brown’s other two (2) gunshot wounds, to his lower back and
the lateral side of his left thigh, did not cause any internal
injuries or pass through any major organs. Id. Because the fatal
shot hit Brown on the front of his chest, the evidence suggests
that the fatal shot was likely one of the final shots fired by
Det. Ruzzo or Det. Herbert, occurring after Brown had fallen and
was turning towards the Officers.

However, it is unknown whether

the fatal shot was fired by Det. Ruzzo or Det. Herbert.5 See AC
SUMF, at ¶ 114.

5

It is undisputed that Det. Mason did not fire his weapon at any
point during the incident. See AC SUMF, at ¶ 35.
7

The Atlantic County Prosecutor’s Office (“ACPO”) conducted
an extensive investigation into the events surrounding Brown’s
death. See AC SUMF, at ¶ 109.

At the conclusion of the

investigation, the ACPO presented the case to a Grand Jury, which
heard testimony from multiple witnesses and examined evidence.
Id. at ¶ 133. Ultimately, the Grand Jury returned a “no bill,”
indicating that the Grand Jury found that the evidence was
insufficient to support criminal charges against Det. Herbert or
Det. Ruzzo. Id. at ¶ 134. Following the conclusion of the ACPO
investigation and the Grand Jury proceedings, the Internal
Affairs Unit of the Atlantic City Police Department performed its
own investigation into the shooting. Id. at ¶ 138. The Internal
Affairs investigation concluded that the Officers’ use of deadly
force was legal, proper, and justified. Id. at ¶ 139. The
investigation further concluded that neither Det. Herbert nor
Det. Ruzzo violated any rules, regulations, policies, or
procedures. Id.
On September 8, 2015, Plaintiffs commenced this action
against the City of Atlantic City, the Atlantic City Police
Department, and Police Officers John Does #1-3 [Dkt. No. 1],
alleging, among other things, constitutional violations for
failure to train, excessive force, and failure to render timely
and proper medical assistance.

On May 30, 2016, Plaintiffs filed

8

an Amended Complaint, which contained five causes of action,6
specifically: (Count I) Violations of the Fourth, Fifth, and
Fourteenth Amendments of the U.S. Constitution under 42 U.S.C. §
1983 against the Defendant Officers; (Count II) Violations of the
Fourth, Fifth, and Fourteenth Amendments of the U.S. Constitution
under 42 U.S.C. § 1983 (a.k.a. Monell claims) against Atlantic
City; (Count 3) Assault, Battery, Negligence, Spoliation of
Evidence, Wrongful Death under N.J.S.A. § 2A:31, and a Survivor
Action under N.J.S.A. § 2A:15-3 against the Defendant Officers;
(Count IV) Conspiracy to Violate Civil Rights against the
Defendant Officers; and (Count V) Punitive Damages against the
Defendant Officers.7

Among other forms of requested relief,

Plaintiffs seek ten million dollars ($10,000,000) in damages.
The Atlantic City Police Department was dismissed as a defendant,
with prejudice, in January 2017.
2018.

Discovery concluded in November

Now, this matter comes before the Court upon Motions for

Summary Judgment, filed by the Officers and Atlantic City.

6

Although the Amended Complaint asserted causes of action
against the Officers, by name, they were not substituted into the
case caption until February 24, 2017.
7

The Amended Complaint alleges that the § 1983 claims in Counts
I and II are brought for violations of the “Fourth, Eighth, and
Fourteenth Amendments.” For purposes of this motion, the Court
assumes that these are misstatements, and that Plaintiffs
intended to allege violations of the “Fourth, Fifth, and
Fourteenth Amendments.”
9

II.

LEGAL STANDARD
A.

Summary Judgment Standard

Summary judgment shall be granted if “the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
P. 56(a).

Fed. R. Civ.

A fact is “material” only if it might impact the

“outcome of the suit under the governing law.” Gonzalez v. Sec’y
of Dept of Homeland Sec., 678 F.3d 254, 261 (3d Cir. 2012).

A

dispute is “genuine” if the evidence would allow a reasonable
jury to find for the nonmoving party. Id.
In determining the existence of a genuine dispute of
material fact, a court’s role is not to weigh the evidence; all
reasonable inferences and doubts should be resolved in favor of
the nonmoving party. Melrose, Inc. v. City of Pittsburgh, 613
F.3d 380, 387 (3d Cir. 2010).

However, a mere “scintilla of

evidence,” without more, will not give rise to a genuine dispute
for trial. Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir.
2001).

Moreover, a court need not adopt the version of facts

asserted by the nonmoving party if those facts are “utterly
discredited by the record [so] that no reasonable jury” could
believe them. Scott v. Harris, 550 U.S. 372, 380 (2007).

In the

face of such evidence, summary judgment is still appropriate
“where the record taken as a whole could not lead a rational

10

trier of fact to find for the nonmoving party.” Walsh v. Krantz,
386 F.App’x 334, 338 (3d Cir. 2010).
The movant has the initial burden of showing through the
pleadings, depositions, answers to interrogatories, admissions on
file, and any affidavits “that the non-movant has failed to
establish one or more essential elements of its case.” Connection
Training Servs. v. City of Phila., 358 F. App’x 315, 318 (3d Cir.
2009).

“If the moving party meets its burden, the burden then

shifts to the non-movant to establish that summary judgment is
inappropriate.” Id.

In the face of a properly supported motion

for summary judgment, the nonmovant’s burden is rigorous: he
“must point to concrete evidence in the record”; mere
allegations, conclusions, conjecture, and speculation will not
defeat summary judgment. Orsatti v. New Jersey State Police, 71
F.3d 480, 484 (3d Cir. 1995); accord. Jackson v. Danberg, 594
F.3d 210, 227 (3d Cir. 2010) (citing Acumed LLC. v. Advanced
Surgical Servs., Inc., 561 F.3d 199, 228 (3d Cir.
2009)(“[S]peculation and conjecture may not defeat summary
judgment.”).

Moreover, “the court need only determine if the

nonmoving party can produce admissible evidence regarding a
disputed issue of material fact at trial”; the evidence does not
need to be in admissible form at the time of summary judgment.
FOP v. City of Camden, 842 F.3d 231, 238 (3d Cir. 2016).

11

B.

Qualified Immunity Standard

The doctrine of qualified immunity “exempts a police
officer, who is sued for a violation of an individual’s
constitutional rights, from trial and liability for the alleged
wrong.” Goode v. City of Philadelphia, 2018 WL 827425, at *3
(E.D. Pa. Feb. 12, 2018)(citing Carswell v. Borough of Homestead,
381 F.3d 235, 241 (3d Cir. 2004)).

To determine the doctrine’s

applicability, a court must ascertain whether the facts shown by
the plaintiff “make out a violation of a constitutional right”
and assess whether that right “was ‘clearly established’ at the
time of the defendant’s alleged misconduct.” Martin for Estate of
Webb v. City of Newark, 762 F. App'x 78, 82–83 (3d Cir.
2018)(quoting Pearson v. Callahan, 555 U.S. 223, 232). If both of
these factors are present, the Court must assess whether the
officer “made a reasonable mistake as to what the law requires.”
Carswell, 381 F.3d at 242. “[I]f the officer’s mistake ... is
reasonable, [then] the officer is entitled to the immunity
defense.” Id. (quoting Saucier, 533 U.S. at 205).

III. ANALYSIS
In moving for summary judgment, the Officers argue that they
are entitled to qualified immunity because their use of deadly
force was objectively reasonable under the circumstances and they
were not indifferent to Brown’s medical needs.

12

The Officers also

argue that Plaintiffs’ state law tort claims must be dismissed
because they were never served with a notice of claims under the
New Jersey Tort Claims Act (“NJTCA”).

Additionally, Atlantic

City argues that Plaintiffs’ Monell claims have no basis for
municipal liability under § 1983, because they have failed to
establish that the City itself caused the alleged constitutional
violation.

A.

Qualified Immunity

Plaintiffs contend that the Officers violated Brown’s
constitutional rights by unreasonably using excessive force that
resulted in Brown’s death.

Indeed, one of the “clearly

established” protections afforded by the Fourth Amendment of the
U.S. Constitution is the right to be free from the use of
excessive force by a law enforcement officer. See Carswell v.
Borough of Homestead, 381 F.3d 235, 240 (3d Cir. 2004)(citing
Graham v. Connor, 490 U.S. 386, 395 (1989)).
In their Motion for Summary Judgment, the Officers argue
that they are entitled to qualified immunity because their
actions were objectively reasonable under the circumstances.

On

this issue, the Court finds that the Officers’ actions during
their pursuit of Brown, including the use of deadly force, were
objectively reasonable from the moment the pursuit began, until
Brown fell to the ground and dropped his gun.

13

However, the Court

finds that genuine issues of material fact preclude summary
judgment as to whether it was objectively reasonable for Det.
Herbert and Det. Ruzzo to use deadly force after Brown had fallen
to the ground and dropped his weapon.
“To prevail on a Fourth Amendment excessive-force claim, a
plaintiff must show that a seizure occurred and that it was
unreasonable under the circumstances.” Lamont v. New Jersey, 637
F.3d 177, 182-83 (3d Cir. 2011).

As stated by the Third Circuit,

the “use of deadly force is a seizure, and it is unreasonable
‘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.’” Goode v. City of Philadelphia, 2019 WL
2393794, at *2 (3d Cir. June 6, 2019)(quoting Lamont, 637 F.3d at
183).
In deciding whether the conduct at issue rises to the level
of “excessive,” a court must use an objective reasonableness
standard, which “requir[es] 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.” Saucier v. Katz, 533 U.S. 194, 205 (citing Graham, 490
U.S. at 396). Other factors include, “the duration of the
[officer’s] action, whether the action takes place in the context
14

of effecting an arrest, the possibility that the suspect may be
armed, and the number of persons with whom the police officers
must contend at one time.” Couden v. Duffy, 446 F.3d 483, 497 (3d
Cir. 2006)(quoting Sharrar v. Felsing, 128 F.3d 810, 822 (3d Cir.
1997)). In evaluating these factors, a court may not apply “the
20/20 vision of hindsight,” but must instead recognize that
police officers are often faced with split-second decisions in
“circumstances that are tense, uncertain, and rapidly evolving.”
Graham, 490 U.S. at 396–97.
The facts in the record support a finding that the Officers’
initial pursuit of Brown, along with the use of deadly force,
were objectively reasonable until the moment Brown first fell to
the sidewalk.

Indeed, when the Officers first arrived in the

area of the Cedar Food Market shooting, the Officers reasonably
(based on the assistance of a confidential informant), and
correctly, believed that Brown was the perpetrator of the nearby
shooting.

As such, the Officers did not unreasonably “target”

Brown, as alleged in the Amended Complaint.

15

On the contrary, the

facts demonstrate that the Officers had a legitimate reason to
pursue Brown.8
During the Pursuit, Det. Ruzzo and Det. Herbert identified
themselves as police and only began firing at Brown after they
observed him remove a gun from his waistband and turn it towards
the Officers.

The Supreme Court has held that, when “the suspect

threatens the officer with a weapon ..., deadly force may be used
if necessary to prevent escape, and if, where feasible, some
warning has been given.” Tennessee v. Garner, 471 U.S. 1, 11-12,
105; see also Abraham v. Raso, 183 F.3d 279, 289 (3d Cr.
1999)(explaining that courts must ask whether it was “objectively
reasonable for the officer to believe ... that deadly force was
necessary to prevent the suspect’s escape, and that the suspect
posed a significant threat of death or serious physical injury to
the officer or others”).

On this issue, Plaintiffs have failed

to point to any evidence in the record to refute the Officers’
reports that during the pursuit, Brown removed the gun from his
waistband and turned it towards the Officers.

In fact,

Plaintiffs’ own expert seemingly concedes that Brown pointed the

8

Throughout the Amended Complaint, Plaintiffs make various
allegations that insinuate that the manner in which the Officers
pursued Brown (initially in their police vehicle) was objectively
unreasonable and excessive. However, given that the officers had
a legitimate reason to pursue Brown and it is undisputed that no
shots were fired from the police vehicle during the pursuit, the
Court finds Plaintiffs’ arguments about the Officers’ use of the
vehicle irrelevant in the excessive force analysis.
16

gun at the Officers. See Report of W. Lloyd Grafton (“Grafton
Report”)[Dkt. No. 145-8, Ex. 47], at 5 (stating that“[a]t the
point where Brown was fleeing and being shot at, the officers
only knew he was in the area where shots were fired, he was
running from them – and he had pointed the gun in their
direction”).
Considering that a confidential informant had already
identified Brown as the perpetrator of a nearby shooting, the
Officers had reason to believe that Brown was willing to use his
gun.

Therefore, once the Officers observed Brown turn towards

them with the gun in his hand, it was reasonable for the Det.
Ruzzo and Det. Herbert to use deadly force until the threat had
been neutralized. To that end, the use of deadly force was
objectively reasonable until the Officers saw Brown fall to the
ground with blood on his shirt and drop his gun.
Although this Court finds that the Officers’ initial use of
deadly force was objectively reasonably, genuine issues of
material fact prevent this Court from determining the
reasonableness of the final shots fired by Det. Ruzzo and Det.
Herbert.

Notably, the Third Circuit has held that “[e]ven where

an officer is initially justified in using force, he may not
continue to use such force after it has become evident that the
threat justifying the force has vanished.” Lamont, 637 F.3d at
184.

In Lamont, state troopers began firing upon when a suspect,
17

who was later found to be unarmed, when the suspect “yanked his
right hand out of his waistband” as if drawing a pistol. Id.
There, the Third Circuit found that the troopers reasonably
believed that the suspect was armed and pulling a gun when they
began firing.

However, because the suspect’s weaponless hand had

been fully visible immediately after the troopers began firing,
the Third Circuit held that “a reasonable jury could conclude
that the troopers should have recognized that [the suspect] was
unarmed and stopped firing sooner.” Id.

Furthermore, because

some of the bullets had hit the suspect from behind, the Third
Circuit opined that “a jury may find that the troopers improperly
continued firing after [the suspect] had turned away from them
and no longer posed a threat.” Id. at 184-85.
In this case, there are vastly different accounts about what
transpired in the moments immediately preceding the fatal shots.
Whereas the Officers claim that Brown was attempting to stand up
and move towards his gun, Plaintiffs offer testimony from two
witnesses who claim that Brown was attempting to surrender by
raising his hands and yelling “don’t shoot.”9

9

The Court acknowledges that Plaintiffs’ witnesses have
substantial credibility issues. Indeed, Gertrude Pettus has
given conflicting statements regarding the shooting. On
September 15, 2014, Ms. Pettus told investigators that she saw
“three people shooting their guns as a young man faced them with
both hands up” and yelled “don’t shoot!” However, on October 7,
2014, Ms. Pettus told investigators that “the shots seemed to be
happening while the victim was turning towards the white males”
18

At the summary judgment stage of litigation, where there is
a genuine issue of material fact, the Court must “adopt[ ] ...
the plaintiff’s version of the facts,” for purposes of assessing
qualified immunity. Scott v. Harris, 550 U.S. 372, 378 (2007);

and that “she did not hear any yelling or screaming prior to the
shots or during the shots.” At the time of her second statement,
Ms. Pettus also requested that her name not be disclosed, because
she feared for her life if anyone in her community learned of her
involvement in this case.
Meanwhile, the other witness, Dekrex Davis, has an extensive
criminal record and served eleven and a half years in prison for
attempted murder. Additionally, in a cell phone video, recorded
by Mr. Davis at the scene following the shooting, Mr. Davis can
be overheard making disparaging comments about the police, which
could suggest bias against the police and motivation to be
untruthful. Mr. Davis’ testimony is also questionable from a
factual perspective. Specifically, Mr. Davis contends that Brown
“got up” with his hands in the air at the time he was shot. This
testimony is somewhat inconsistent with the autopsy report, which
showed that the fatal shot hit Brown with a downward trajectory,
suggesting that Brown was not standing upright at the time.
However, the Court recognizes that a jury could excuse the
discrepancies as imprecise phrasing by Mr. Davis.
Although these inconsistencies raise credibility issues, “in
considering a motion for summary judgment, a district court may
not make credibility determinations or engage in any weighing of
the evidence; instead, the non-moving party's evidence ‘is to be
believed and all justifiable inferences are to be drawn in his
favor.’” Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir.
2004)(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986)). That being said, if a jury ultimately finds no
liability due to credibility issues (which would be the second
similar finding, following the Grand Jury’s decision to “no bill”
the Officers), “District courts are entitled to award reasonable
attorneys’ fees to prevailing defendants in § 1983 matters ‘upon
a finding that the plaintiff’s action was frivolous,
unreasonable, or without foundation.’” Arneault v. O'Toole, 718
F. App'x 148, 152 (3d Cir. 2017)

19

see also Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014); Brosseau
v. Haugen, 125 S. Ct. 596, 195 n.2 (2004); Saucier, 533 U.S. at
201.

As such, for purposes of this motion, the Court must make

all reasonable inferences in favor of Plaintiffs. See Pratt v.
City of Camden, 2018 WL 3201785, at *8–9 (D.N.J. June 29, 2018).
Certainly, if Brown was surrendering to police, further shots
would not be objectively reasonable or entitled to qualified
immunity protections.

Accordingly, this Court finds that a

reasonable jury could conclude that Brown no longer posed a risk
to the Officers after he had fallen to the ground and dropped his
gun.
Although Plaintiffs’ § 1983 claim against Det. Ruzzo and
Det. Herbert survives, as it relates to the reasonableness of the
final shots, the Court will dismiss all aspects of the § 1983
claim against Det. Mason because it is undisputed that Det. Mason
never fired any shots at Brown during the incident.

The Court

will also dismiss any aspects of Plaintiffs’ claims that relate
to constitutional violations for handcuffing Brown after the
shooting or failing to render proper medical assistance.
Significantly, Brown was handcuffed by Sergeant Craig Mulhern;
not any of the Officers in this case.

Additionally, Plaintiffs

fail to point to any evidence in the record suggesting that the
Officers would have been able to provide any meaningful medical
assistance or waited too long to call for help.
20

Furthermore,

there is no evidence that the Officers conspired with each other,
either explicitly or implicitly, to deprive of Brown of his
constitutional rights.

As such, dismissal is warranted on those

claims.

B.

The New Jersey Tort Claims Act

Next, the Officers argue that the state law tort claims must
be dismissed because Plaintiffs failed to properly serve them
with a notice of claim.

The New Jersey Tort Claims Act (“NJTCA”)

requires notice of a claim of injury against a public entity or
employee to be presented within ninety days of the accrual of a
cause of action. See N.J.S.A. 59:8–3 (“No action shall be brought
against a public entity or public employee under this act unless
the claim upon which it is based shall have been presented in
accordance with the procedure set forth in this chapter”).

After

the notice of claim is filed, a plaintiff must wait six months
before filing suit against the public entity or employee in an
appropriate court. Id.

A plaintiff is forever barred from

recovering damages from a public entity if “he fail[s] to file
his claim with the public entity within ninety (90) days.”
N.J.S.A. 59:8–8.
The Officers contend that the notice of claim submitted to
the City of Atlantic City was improper because it did not name
the Officers, even under John Doe designations, and because

21

Atlantic City was not a proper entity to accept service of a
notice of claim on behalf of the Officers.

Plaintiffs seemingly

concede that a notice of claim was only served upon the City of
the Atlantic City, not upon the Atlantic City Police Department
or the individual Officers.

However, Plaintiffs argue that the

notice of claim submitted to Atlantic City was sufficient and
they should be relieved of the notice of claim obligation because
the identities of the Officers were unknown to Plaintiffs and
“Atlantic City and the Atlantic City Prosecutor’s Office would
not provide the names of the officers involved in the incident.”
Pls.’ Opp. to Officers’ MSJ [Dkt. No. 155], at 15. Furthermore,
Plaintiffs contend that “the Defendant Officers have not been
prejudiced by not receiving the notice under the [NJTCA]” and
“have waived the right to make this argument by not filing a Rule
12(b)(6) Motion to Dismiss and conceding jurisdiction in this
matter to the Plaintiffs.” Id.
The Court finds Plaintiffs’ arguments, that they should be
relieved of the notice of claim requirements, unpersuasive,
because Courts have repeatedly held that plaintiffs must strictly
adhere to the NJTCA’s language, regardless of circumstances. See,
e.g., Baker v. Allen, 2006 WL 1128712, at *16 (D.N.J. Apr. 24,
2006)(“Strict compliance is required to satisfy the Tort Claims
Act, and the filing of a complaint is not a substitute for a
notice of claim”); Noble v. City of Camden, 112 F. Supp. 3d 208,
22

232–34 (D.N.J. 2015)(“the filing of the Complaint in this case
does not satisfy the notice requirement”).
The Officers cite compelling case law, which suggests that a
city and its police department are distinct entities for purposes
of serving of a notice of claim under the NJTCA. See Forcella v.
City of Ocean City, 70 F. Supp. 2d 512, 521 (D.N.J. 1999)(holding
that “the Ocean City Police Department should have received a
separate notice of claim from all other public entities,
including the City of Ocean City and DPS”).

However, it is not

immediately clear to this Court whether that is true for all
municipalities, or if the cited case involved a city with a
unique municipal structure. Without further briefing, the Court
is unable to determine whether the same distinction applies to
Atlantic City and the ACPD, as it relates to service under the
NJTCA.
Unfortunately, the Court has been unable to evaluate the
sufficiency of the actual notice of claims in this instance.
Despite the Court’s best efforts, it could not locate the
document anywhere in the record.10

10

Without the ability to review

Although the Officers’ Memorandum in Support of their Motion
for Summary Judgment has a placeholder citation for an exhibit,
it appears that, in an apparent error, the number of the exhibit
was never filled-in and was, perhaps, left out of the record
entirely. The Court acknowledges the possibility that it
overlooked the document among the voluminous exhibits submitted
to this Court, but, at this time, the Court does not believe that
the notice of claims was ever entered into the record.
23

the actual notice of claims, the Court cannot reach this issue.
As such, the Court will deny this aspect of the Officers’ Motion
for Summary Judgment, but without prejudice.

If the Officers

wish to renew their Motion for Summary Judgment on the NJTCA
issue, they must submit a copy of the notice of claims for this
Court’s inspection.

Additionally, the Court would encourage both

parties to provide more precise and responsive briefing on this
issue, if the motion is renewed.

C.

Municipal Liability

Finally, Atlantic City argues that Plaintiffs’ Monell claims
against the city must be dismissed.

It is well established that

municipal liability under § 1983 “may not be proven under the
respondeat superior doctrine, but must be founded upon evidence
that the government unit itself supported a violation of
constitutional rights.” Bielevicz v. Dubinon, 915 F.2d 845, 850
(3d Cir. 1990)(citing Monell v. New York City Dep’t of Soc.
Servs., 436 U.S. 658 (1978)).

Thus, a municipality is liable

under § 1983 only when “execution of a government’s policy or
custom, whether made by its lawmakers or by those whose edicts or
acts may fairly be said to represent official policy, inflicts
the injury.” Monell, 436 U.S. at 694. In this case, Plaintiffs’
Monell claims are based on an Atlantic City’s alleged failure to
properly train, supervise, discipline, and enact policies, which

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allows police officers to conduct arrests with “the use of
illegal and excessive force.”
Where the policy at issue “concerns a failure to train or
supervise municipal employees, liability under § 1983 requires a
showing that the failure amounts to deliberate indifference to
the rights of persons with whom those employees will come into
contact.” Thomas v. Cumberland Cty., 749 F.3d 217, 222 (3d Cir.
2014) (quoting City of Canton v. Harris, 489 U.S. 378, 388
(1989)). Moreover, “the deficiency in training must have actually
caused the constitutional violation.” Thomas, 749 F.3d at 217
(quoting Canton, 489 U.S. at 391).
The Supreme Court has made clear that “[d]eliberate
indifference is a stringent standard of fault, requiring proof
that a municipal actor disregarded a known or obvious consequence
of his action.” Bd. of Cty. Comm’rs of Bryan Cty., Okl. v. Brown,
520 U.S. 397, 410 (1997)(internal quotations omitted). “A pattern
of similar constitutional violations by untrained employees is
‘ordinarily necessary’ to demonstrate deliberate indifference for
purposes of failure to train.” Connick v. Thompson, 131 S. Ct.
1350, 1360 (2011)(internal citation omitted).

Nevertheless, 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 490 n.10 (internal citation omitted).
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Liability in

single-incident, failure-to-train cases thus depends on “[t]he
likelihood that the situation will recur and the predictability
that an officer lacking specific tools to handle that situation
will violate citizens’ rights.” Bryan Cty., 520 U.S. at 409.
In the present case, Plaintiffs have offered no evidence in
the record of a history or pattern of excessive force by the
Atlantic City Police Department against armed suspects who are
attempting to evade arrest.

Therefore, Plaintiffs would need to

rely on a single-incident theory of liability. See Pratt, 2018 WL
3201785, at *11.

Even under a single-incident theory of

liability, Plaintiffs still have not offered any evidence that
would allow a reasonable jury to find that the risk of Brown’s
death was a “highly predictable consequence” of Atlantic City’s
failure to train its Officers or medical personnel. See Bryan
Cty., 520 U.S. at 409 (citing Canton, 489 U.S. at 390 n.10).11
Indeed, there was no evidence in the record suggesting that

11

Plaintiffs offer testimony suggesting that Atlantic City failed
to properly train officers on how to pursue a suspect, who is on
foot, while the officers are in a vehicle. However, as
previously noted, the pursuit itself was lawful and no shots were
fired while the Officers were in their vehicle. Thus, the manner
in which the pursuit was initiated had no impact on the alleged
excessive force, which occurred after Det. Ruzzo and Det. Herbert
had already exited the vehicle. Furthermore, to the extent
Plaintiffs’ claim that Atlantic City failed to properly train the
Officers, EMTS, or paramedics on rendering medical assistance,
Plaintiffs have failed to offer any evidence that better medical
care would have avoided Brown’s death or alleviated pain and
suffering.
26

Atlantic City failed to properly train officers on the use of
firearms.

Accordingly, Plaintiffs’ Monell claims against

Atlantic City must be dismissed.
D.

Additional Matters

On August 15, 2019, this Court entered an Order [Dkt. No.
164], temporarily granting Defendant Atlantic City’s request to
seal various grand jury and internal affairs documents.

However,

this Court notes that Atlantic City’s Motion to Seal [Dkt. No.
147] never addressed why a less restrictive alternative, such as
redactions, would not suffice for these documents.

Accordingly,

the Court will order Atlantic to file redacted versions of these
exhibits with thirty (30) days, or provide a justification as to
why redactions would not provide sufficient protection.

IV.

CONCLUSION
For the foregoing reasons, Atlantic City’s Motion for

Summary Judgment will be GRANTED and Plaintiffs’ claims against
Atlantic City will be DISMISSED WITH PREJUDICE.

Additionally,

the Officers’ Motion for Summary Judgment will be GRANTED IN
PART, and DENIED IN PART.
All claims against Det. Mason, the conspiracy claim, the
state law claim (regarding failure to render timely medical
assistance), and the § 1983 claim against Det. Ruzzo and Det.
Herbert (to the extent it pertains to any aspect of the incident

27

other than the moments between when Brown fell to the ground,
dropping his gun, and when the Officers called for medical
assistance) will be DISMISSED WITH PREJUDICE.
Plaintiffs’ § 1983 claim shall remain against Det. Ruzzo and
Det. Herbert as it relates to the moment that the fatal shot was
fired.

Additionally, the Officers’ motion is denied, without

prejudice, as it pertains to the state law tort claims (except
for those related to failure to render medical assistance, which
are dismissed for a failure of proof).

The Officers will be

permitted twenty-one (21) days from the date of this Opinion to
renew their motion regarding the NJTCA issue, with more
responsive briefing, accompanied by a copy of the notice of
claims.

An appropriate Order shall issue on this date.

DATED: August 30, 2019
s/Renée Marie Bumb
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE

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