THE ESTATE OF FREDDY BAEZ JR. v.CAMDEN COUNTY et al

Filing 47

OPINION. Signed by Judge Robert B. Kugler on 8/9/2019. (dmr)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

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VERONICA CABRERA individually and
as Administratrix of the Estate of Freddy
Baez Jr., Deceased
Plaintiff,
v.
CAMDEN COUNTY
and
POLICE CHIEF JOHN SCOTT
THOMSON
and
CAMDEN COUNTY POLICE OFFICERS
JOHN DOE #’s 1–4

Civil No. 16-05653 (RBK)
OPINION

Defendants.
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KUGLER, United States District Judge:
THIS MATTER comes before the Court on Defendants’ Motion for Summary Judgment
[Doc. No. 42] on Plaintiff’s claims for Excessive Force (Count I); Failure to Intervene (Count
II); Conspiracy (Count III); Supervisory Liability (Count IV); Monell Liability (Count V); and
state law Wrongful Death and Survival claim claims (Counts VI and VII). For the reasons
below, the Court GRANTS Defendants’ Motion for Summary Judgment.

I. FACTUAL BACKGROUND
A. Introduction
1

This case involves the alleged use of deadly force. Two Camden County Police Officers
responded to a domestic dispute and shot and killed Freddy Baez, Jr. The estate of Mr. Baez
(“Plaintiff”) subsequently filed a lawsuit and argue that Freddy Baez was unarmed. The timeline
of events, in relevant part, is as follows.

1. November 23, 2015: Events the Night Before the Shooting
Freddy Baez, Jr. and Ashley Purnell had a child together. Pl. Resp. Statements of
Material Facts (“SMOF”) [Doc. No. 45-1] at ⁋ 3. The two broke up in early November 2015. Id.
According to Ashley’s mother, Rowshon Purnell, Baez physically abused Ashley. Id.
On November 23, 2015, a domestic dispute ensued between Ashley and Baez. Id. A
neighbor called the police. Id. at ⁋ 5. At approximately 9 P.M., the Camden County Police
Department (“CCPD”) responded and arrived at Baez’s home. Id. Minutes later, Baez posted
the following status on his Facebook account: “Family and friends I love u if I see judgement
[sic] day had enough of cops and hating ass bm.” Id. at ⁋ 6. This status also included a gun
emoji. Id.
Just hours later, another person called the Camden Police to report a second disturbance
at the Baez residence. Id. at ⁋ 7. When the police arrived, they overheard a male yelling at
Ashley to open the door. Id. The man did not permit the police in the house. Id. Ashley and
Baez continued to yell as the Police investigated. Id. The investigation also revealed that one of
them had expelled a fire extinguisher. Id.
2. November 24, 2015: Events in the Hour Before the Shooting
Ashley stayed at her mother’s the following day. At 6:18 P.M., Baez posted a Facebook
video in which he threatened Ashley. He stated “I’m about to put her ass on black. It’s a rap.

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I’m about to fuck it all up for her now because you know that I’m saying?” Id. at ⁋ 9. Carlos
Soto, a personal friend of Baez, also appeared in the video. Id. at ⁋ 10. He later told detectives
that Baez drank a pint of Hennessy before the recording. Id.
After posting this video, Baez called Ashley seven times. Id. at ⁋ 11. Ashley returned his
call and called back twice. Id. They also exchanged texts between roughly 6:30 P.M. and 6:50
P.M. Id. Ashley told Baez she wanted him to leave her alone. Id. Baez ignored these wishes
and traveled to Ashley’s mother’s home. According to Plaintiff, Baez went there to retrieve a
cellphone.
3. Baez Arrives at the Purnell Residence
Baez repeatedly banged and kicked Ashley’s mother’s door. Def. Exhibit D-13,
Statement of Rowshon Purnell of November 24, 2015 (“Rowshon Purnell Statement”) [Doc. No.
42-16]. Ashley refused to talk to him or go outside. Id. Ashley then told her mother to call the
police. Pl. Resp. SMOF at ¶ 12. Ashley also texted Baez and said the police were coming. Id.
at ⁋ 13. Baez responded, “I just ant [sic] my phones good [sic] diggij [sic] bitch.” Id. Ashley
said she would give him his cellphone once they resolved a previous dispute about a car and if
Baez left the house. Id. She then sent her last text to Baez: “Get away! U stupid tgey [sic] on
there [sic] way!” Id. Baez responded, “No u r.” Id.
4. Rowshon Purnell’s First 9-1-1 Call
Rowshon called 9-1-1 shortly after Ashley texted Baez. Rowshon told the dispatcher that
her “daughter’s son’s father” was banging on the door and refusing to go away. Id. at ⁋ 16. She
said, “[Ashley] doesn’t want nothin’ to do . . . he’s still knockin’ on my door.” Id. She also said
she did not know if he had a gun. Id. Two minutes later, CCPD Officers Johnathan Kerper and
Anthony Painchaud (“Defendants”) were dispatched to the scene. Id. at ⁋ 17.

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5. Rowshon Purnell’s Second 9-1-1 Call
Eight minutes after her first 9-1-1 call, Rowshon called 9-1-1 again. Id. at ⁋ 19. She
spoke with a different dispatcher and informed her that Baez continued to bang on her door. Id.
She said again that she did not know whether Baez had a gun. Id. The dispatcher immediately
asked her whether she saw a gun or whether Baez was known to carry a gun. Rowshon Purnell
responded, “No” and then said, “I don’t really know.” Id. During the same 9-1-1 call, she told
the dispatcher that Baez had given Ashley a black eye earlier in the day. Id.
6. The Officers Arrive at the Purnell Residence
Thirty seconds after Rowshon’s second 9-1-1 call, Officers Kerper and Painchaud
notified dispatch that they arrived to the area. Id. at ⁋ 23. According to Kerper, dispatch then
informed them that the suspect may have a firearm. Id. (emphasis added). The dispatcher told
the officers that the caller “[didn’t] know whether he (Baez) [had a gun] — even though no [gun]
was seen.” Id. at ⁋ 32.
The officers did not immediately find Rowshon’s home when they entered the
neighborhood. Id. at ⁋ 25. A man called down to the them from a second story window and
pointed to the location. Id. Painchaud found this odd, and suspected that the dispute must have
been loud for a distant neighbor to point it out on his own accord. Id.
The officers walked next to the side of the Purnell residence and approached the front of
the house. Id. As they approached, they de-holstered their firearms. Id. at ⁋ 29. Officer
Painchaud peeked around the corner of the house and saw a man on a small landing, hunched
over between the storm door and the main door. Id. ⁋ 32. Painchaud heard Baez say, “I need
my phone” in a low voice, even though he appeared to have a phone in his hand. Id. Baez
knocked repeatedly on the door. Id. Kerper and Painchaud briefly conferred and agreed that

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Painchaud would walk straight towards Baez while Kerper would take a wider turn to provide
“cover.” Id. at ⁋ 35. At that point, the officers still did not know if Baez had a gun. Id.
7. Accounts of the Shooting
The parties dispute what happened next. Painchaud claims that he approached Baez with
his weapon at a “low-ready position” (at a 45-degree angle facing downwards). Def. SMOF at ⁋
36. Painchaud explained:
As we came up and brought the light up, I asked Mr. Baez to show me his hands,
you know, as we were approaching he was knocking on the door. When I asked
him to show me his hands, his left hand came out from wherever it was tucked in
and he said, a fuck something. I don't know if it was fuck you or I heard fuck,
heard a bang, and I saw a muzzle flash. He had a gun in his left hand and at that
time, myself and Officer Kerper, returned fire and basically we retreated to cover.
We split paths. I retreated back to the corner of the building that we originally
came from.
Id.
Kerper recalls that Painchaud had his weapon pointed directly at Baez as he approached.
Id. at ⁋ 39. When Painchaud ordered Baez to put his hands up, Baez “turned and started to —
started to put his hands up. I can’t remember one hundred percent correctly.” Id. at ⁋ 38.
Kerper claims that Painchaud attempted to holster his weapon when Baez pulled out a pistol and
shot at Kerper. Id. Kerper heard the bullet whiz past his right ear and saw the muzzle flash of
Baez’s weapon. Id. Kerper shut his eyes. Id. When he opened them, he saw Painchaud
returning fire. He then fired at Baez as well. Id. Kerper then retreated across the courtyard to a
mulch bed. Id. Painchaud also retreated to his original position. Id. In total, Kerper fired
thirteen shots, and Painchaud fired eight shots. Id.
Plaintiff states that Baez had no weapon and did not fire. Pl. Resp. SMOF at ⁋ 39.
Further, Plaintiff states that the officers did not order Baez to raise his hands. Id. at ⁋ 36. In
addition, Plaintiff says that the officers were much closer to Baez during the shooting. Id. at ¶
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39. While the officers claim to have been ten feet away, Plaintiff claims they were five feet from
Baez. Id. ⁋ 43.
After the shooting began, Officer Painchaud saw Baez fall to the ground and radioed that
shots had been fired. Painchaud Dep. at 68:21 to 69:8. Officer Kerper yelled, “225! Code 5!
Shots fired! Shots fired at officers! Male down!” Dispatch Call at 6:59:51 P.M. (“6:59:51
Dispatch Call”) [Doc. No. 42-25]. Upon receiving Painchaud’s call, CCPD dispatch
immediately requested an ambulance. Baez appeared to be moving, so Kerper “screamed at the
top of [his] lungs” and told him twice not to move. Kerper Dep. at 55:23-56:3. At this point,
Baez fell over, face down. Id. at 56:13-15.
The officers then checked to see whether they were injured. According to Officer
Kerper,
Officer Painchaud and I both screamed to make sure the other was okay, he
screamed to me first. He asked me if I was hit, I felt my body briefly. This was
all within seconds. I said, I couldn’t feel any blood, and I couldn’t feel any holes.
I asked if he was hit. He said the same, that he wasn’t — couldn’t feel any blood
or couldn’t feel any holes.
Id. at 56:15-21. Kerper then radioed, “Shots fired! He’s still moving! Send 52s (ambulances)!”
Dispatch Call at 7:00:24 (“7:00:24 Dispatch Call”) [Doc. No. 42-27]. Painchaud also radioed,
“Suspect down. Shots fired at police. Shots fired. Suspect is down.” 7:00:45 P.M. Dispatch Call
(“7:00:45 P.M. Dispatch Call”) [Doc. No. 42-28].
8. Aftermath of the Shooting
Next, Officers Painchaud and Kerper secured the scene. Kerper Dep. at 57:3-9. The
officers observed Baez bleeding heavily. Id. at 57:22 to 58:20. Officer Kerper saw a silver .32
caliber revolver just to the right of Baez’s head. Id. He then kicked the weapon away from Baez
before placing him in handcuffs. Id. at 59:24 to 60:4.

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CCPD Sergeant Terry Watkins arrived at the scene and found a silver revolver in the
grass in front of the stoop. Pl. Resp. SMOF ¶ 51. CCPD Police then photographed the silver
revolver. They also recovered a .32 caliber class discharged lead bullet from the dwelling across
from the courtyard from the Purnell residence. Detectives then took statements of potential
witnesses in the area. Carlos Soto, Baez’s friend, confirmed that Baez carried a silver revolver.
Id. at ⁋ 53.
Doctors subsequently pronounced Baez dead at 7:25 P.M. During that time, hospital
staff recovered a .32 caliber class discharged lead bullet from Mr. Baez’s clothing. Report of the
Camden County Prosecutor’s Office, October 12, 2016 (“CCPO Report”) [Doc. No. 42-47] 1617. Dr. Gerald Feigin, M.D. performed the autopsy and concluded that Baez died of five
gunshot wounds. Autopsy Report [Doc. No. 42-29]. A toxicology detected two synthetic
cannabinoids in Baez’s blood. These cannabinoids have psychoactive (hallucinogenic) effects.
See Toxicology Report [Doc. No. 42-30].
9. The Timing of the Shots
Several witnesses in the area overheard the shooting. Four of them— Jermaine Hunt,
Barbara Jones, Ashley Purnell, and Rowshon Purnell— recall hearing a pause in the shooting.
Barbara Jones heard six shots and then went from her bed to her dresser to call the police.
Pl. Exhibit N, Barbara Jones Statement (“Jones Statement”) [Doc. No. 44-1] 2:31-38. After this
first round of firing, she heard yelling, profanity, and a male voice. Id. at 5:1-24. The male
voice said, “Now what, bitch? Now what, bitch? Come over here or stop or something to that
effect.” Id. at 4:41-43. She also heard a pause in the shooting that lasted about thirty seconds.
Id. at 5:33-40. Then she heard another four to six shots. Id. at 2:31-38.

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Ashley and Rowshon Purnell heard a similar pause in the shooting. Ashley Purnell
recalls a pause that lasted between one minute and a minute and a half. Ashley Purnell
Statement at 21:7-9. However, she did not hear any commands from the officers at any point.
Id. at 21:41-44. Rowshon heard an initial flurry of seven to eight shots, a pause, and then more
shots. Rowshon Purnell Statement at 29:25-45.
Jermaine Hunt allegedly witnessed the shooting. Hunt heard gunshots from his bedroom.
Pl. Exhibit M, Jermaine Hunt Statement (“Hunt Statement”) [Doc. No. 44-1] 3:5-29. He laid on
the floor for cover. Id. He then got up and looked out the window. Id. He claims that he heard
about seven gunshots, and then an officer say, “get down [and] don’t move.” Id. at 4:1-32. He
then heard five more shots. Id. at 6:16-19. Hunt also stated that when he heard the gunshots, he
did not know whether Baez was up or down because he did not see Baez in the doorway. Id. at
6:11-14.
B. Procedural History
Based on the above events, the estate of Freddy Baez (“Plaintiff”) filed a Complaint
[Doc. No. 1] in this Court alleging various causes of action. Plaintiff claims that Officers
Painchaud and Kerper used excessive force against Baez (Count I — Excessive Force), failed to
intervene to prevent a constitutional violation (Count II — Bystander Liability), and conspired to
deprive Baez of his constitutional rights (Count III — Conspiracy). Plaintiff also claims that
Police Chief John Scott Thomson is liable on a theory of “supervisory liability” (Count IV —
Supervisory Liability). Finally, Plaintiff brings a Monell claim against Camden County and
Police Chief John Scott Thomson (Count V — Monell Claim). Plaintiff’s state law claims
include a wrongful death claim (Count VI — Wrongful Death) and a survival claim (Count VII
— Survival).

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Defendants Camden County, John Scott Thomson, Anthony Painchaud, and Jonathan
Kerper now move for summary judgment on all claims. Defendants argue that Plaintiff’s
excessive force claim (Count I), bystander liability claim (Count II) and conspiracy claim (Count
III) fail because there was no excessive force or constitutional violation, making the officers
entitled to qualified immunity. Defendants similarly argue that Plaintiff’s state claims —
wrongful death (Count VI) and survival (Count VII) — fail for the same reason.

II.

LEGAL STANDARD
Summary judgment is appropriate when the moving party “shows that there is no genuine

dispute as to any material fact and that the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). An issue is “material” if it could alter the outcome, and a dispute is
“genuine” if “a reasonable jury could return a verdict for the non-moving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The movant bears the burden of showing the
absence of a “genuine issue of material fact.” Aman v. Cort Furniture Rental Corp., 85 F.3d
1074, 1080 (3d Cir. 1996). The party may satisfy its burden by “produc[ing] evidence showing
the absence of a genuine issue of material fact” or “by ‘showing’—that is, pointing out to the
district court—that there is an absence of evidence to support the nonmoving party’s case.”
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
If the movant makes this showing, the nonmovant must “do more than simply show that
there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Instead, the nonmovant
must “point to concrete evidence in the record that supports each and every essential element of
his case.” Orsatti v. New Jersey State Police, 71 F.3d 480, 484 (3d Cir. 1995). “When opposing

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summary judgment, the nonmovant may not rest upon mere allegations, but rather must ‘identify
those facts of record which would contradict the facts identified by the movant.’” Corliss v.
Varner, 247 Fed. App’x. 353, 354 (3d Cir. 2007) (citation omitted). The Court’s role is not to
weigh the evidence and decide the truth, but to determine if there is a genuine issue for trial.
Anderson, 477 U.S. at 249, 106 S.Ct. 2505. In making that decision, “[a]ll facts and inferences
are construed in the light most favorable to the nonmoving party,” Boyle v. Cnty. of Allegheny
Pa., 139 F.3d 386, 393 (3d Cir. 1998), and credibility determinations are for the fact finder. Big
Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).
III.

DISCUSSION
Defendants make several arguments in support of their motion for summary judgment.

They argue that Plaintiff’s claims fail because they are entitled to qualified immunity and
because there is no triable issue of fact as to whether they used excessive force or violated any of
Baez’s constitutional rights. The Court addresses these arguments below, beginning with
Plaintiff’s federal excessive force, failure to intervene, and conspiracy claims against Officers
Painchaud and Kerper. The Court then considers Plaintiff’s related supervisory liability and
Monell claims against Chief Thompson and Camden County. Finally, the Court turns to
Plaintiff’s state law wrongful death and survival claims against all Defendants.
A. Federal Claims
Qualified immunity is an affirmative defense that “shields government officials from
civil damages liability unless the official violated a statutory or constitutional right that was
clearly established at the time of the challenged conduct.” Taylor v. Barkes, 135 S. Ct. 2042,
2044 (2015) (quoting Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012)). Qualified immunity
will not, however, act as a shield for “the official who knows or should know he is acting outside

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the law.” Noble v. City of Camden, 112 F. Supp. 3d 208, 225 (D.N.J. 2015) (quoting Butz v.
Economou, 438 U.S. 478, 506–07 (1978)). In deciding whether qualified immunity applies, the
Court must decide whether the facts alleged, taken in a light most favorable to the plaintiff, make
out: (1) a violation of a constitutional right; and (2) that the constitutional right at issue was
“clearly established” at the time of a defendant’s alleged misconduct. Saucier v. Katz, 533 U.S.
194, 201 (2001). Courts may consider these issues in either order. Id. at 236.
Although the question of qualified immunity is generally a question of law, “a genuine
issue of material fact will preclude summary judgment on qualified immunity.” Giles v.
Kearney, 571 F.3d 318, 326 (3d Cir. 2009); see also Curley v. Klem, 298 F.3d 271, 278 (3d Cir.
2002) (noting that “a decision on qualified immunity will be premature when there are
unresolved disputes of historical fact relevant to the immunity analysis”). In other words, the
Court must deny summary judgment if, on a plaintiff’s version of the facts, defendants violated
the plaintiff’s clearly established constitutional rights.
For the reasons that follow, Officers Painchaud and Kerper are entitled to qualified
immunity because no reasonable jury could find that they violated a clearly established
Constitutional right. Thus, they are entitled to summary judgment on Plaintiff’s Section 1983
claims.
1. Excessive Force in Violation of 42 U.S.C. § 1983 (Count I)
To prove a Fourth Amendment excessive force claim, a plaintiff must demonstrate that
(1) a seizure occurred, and (2) the seizure was unreasonable. Abraham v. Raso, 183 F.3d 279,
288 (3d Cir. 1999). To determine whether a seizure was reasonable, courts assess whether an
officer’s conduct was objectively reasonable under the circumstances. Graham v. Connor, 490
U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). Although reasonableness is often a

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factual question, summary judgment is appropriate “if the district court concludes, after resolving
all factual disputes in favor of the plaintiff, that the officer’s use of force was objectively
reasonable under the circumstances.” Kopec v. Tate, 361 F.3d 772, 777 (3d Cir. 2004) (citation
omitted).
Although the standard for summary judgment is not higher for deadly force cases,
see Lamont v. New Jersey, 637 F.3d 177, 182 (3d Cir.2011), the Third Circuit has instructed
courts to be “cautious” when the victim is deceased and cannot testify. Abraham, 183 F.3d at
294. Thus, the Court “may not simply accept what may be a self-serving account by the
officer.” Id. Instead, the Court must examine circumstantial evidence and determine if it would
“tend to discredit the police officer[s’] story, and consider whether this evidence could convince
a rational fact finder that the officer[s] acted unreasonably.’” Id. The non-moving party,
however, must still “present affirmative evidence — whether direct or circumstantial — to defeat
summary judgment, and may not rely simply on the assertion that a reasonable jury could
discredit the opponent's account.” Estate of Smith v. Marasco, 318 F.3d 497, 514 (3d Cir. 2003).
Here, even considering the caution applicable in this deadly force case, the Court finds
that the officers’ conduct was objectively reasonable under the totality of the circumstances
based on the direct and circumstantial evidence of record. The Court examines that evidence in
light of the parties’ arguments below.
a. Whether Baez Possessed and Fired a Weapon at the Officers

The parties first dispute whether the evidence suggests that Baez had and fired a weapon
at the officers. Plaintiff claims that Baez neither had a weapon nor fired at the officers. See Pl.
Resp. SMOF ¶¶ 39, 53. To support this position, Plaintiff points to three pieces of missing
circumstantial evidence and inconsistencies in the officers’ testimony. First, Plaintiff argues that
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there is no ballistic evidence showing Baez fired the gun. Second, Plaintiff argues that Dr.
Feigin conducted no nitrate or gunpowder residue tests on Baez’s hands to determine if he fired
the gun.1 Third, Plaintiff claims that the record contains no fingerprint evidence indicating that
Baez handled the gun.
Although the Court is sensitive to the fact that Baez cannot testify, the Court finds that
there is simply no “circumstantial evidence that, if believed, would … discredit the police
officer[s’] story.” Abraham, 183 F.3d at 294 (quoting Scott, 39 F.3d at 915). To the contrary,
Defendant has produced direct and circumstantial evidence that provides overwhelming support
for the fact that Baez had a gun and fired at officers.
As to the circumstantial evidence, Defendants rely on six facts. First, Defendants argue
that when Sergeant Watkins arrived at the scene, he found a silver revolver in the grass in front
of the stoop. Pl. Resp. SMOF ¶ 51. Second, they argue that the police photographed the silver
revolver at the scene. Third, Defendants point out that in his statement to detectives following
the incident, Baez’s friend, Carlos Soto, confirmed that Baez carried a silver revolver. Fourth,
Defendants note that police recovered a .32 caliber class discharged lead bullet from the dwelling
across the courtyard from the Purnell residence. Fifth, Defendants highlight that hospital staff
recovered a .32 caliber class discharged lead bullet from Mr. Baez’s clothing. Finally,
Defendants note that the night before the shooting, Baez posted on Facebook, “Family and

The Court notes that, with regard to this second piece of “missing” circumstantial evidence, Dr.
Feigin provided a valid reason for not conducting the tests: “the test has been disproven … if
anybody is shot anywhere within 30 feet, [gunpowder residue] could be on the hands.” Pl.
Exhibit T, Feigin Deposition (“Feigin Dep.”) [Doc. No. 44-3] at 8:15-21. In other words,
because the officers were within 30 feet of Baez when they shot him, Dr. Feigin believed there
would be gunpowder residue on Baez’s hands regardless of whether he fired a gun.
1

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friends I love u if I see judgement day had enough of cops and hating ass bm,” followed by a gun
emoji.
Defendants also point to direct evidence that supports the fact that Baez had a gun and
shot at officers. First, Officer Painchaud stated “Shots fired at officers!” in his first radio call.
and “Shots fired at police” in his second radio call at 7:00:45 P.M. Second, both officers claimed
in their depositions that Baez fired his weapon at them. See Painchaud Dep. at 51:24 to 52:11;
Kerper Dep. at 40:2-6. This evidence, both circumstantial and direct, support the Officer’s
testimony that Baez had and fired a weapon.
Contrary to this evidence, Plaintiff has failed to adduce any evidence to create a genuine
dispute of material fact as to whether Baez had and fired a gun at police. At best, Plaintiff’s
argument seems to hinge on the unsupported belief that the police could have adduce additional
circumstantial evidence. For example, the police should have (or could have) done additional
scientific testing to affirmatively prove Baez possessed a gun. Because they did not provide
these unnamed tests, Plaintiff asserts that Defendants are “missing” pieces of circumstantial
evidence.
The Court rejects Plaintiff’s argument. Simply suggesting that the police could have
produced more does not negate the presence of other direct and circumstantial evidence
suggesting Baez had a gun and fired it at police. Indeed, Plaintiff’s reliance on allegedly missing
evidence amounts to the kind of argumentation that the Third Circuit held could not defeat
summary judgment in Smith. See Estate of Smith, 318 F.3d at 514 (explaining that a nonmovant must still “present affirmative evidence” and “may not rely simply on the assertion that a
reasonable jury could discredit the opponent’s account”). Further, Dr. Feigin’s testimony
undercuts Plaintiff’s seemingly baseless conspiracy theory. See supra at n. 1. Finally, Plaintiff

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fails to understand that, without presenting a single piece of direct or circumstantial evidence that
would create a genuine issue of material fact, this Court will not deny a defendant’s wellsupported motion for summary judgment. See Lane v. City of Camden, No. 11-cv-5584, 2015
WL 5603039 (granting summary judgment because plaintiffs could not point to any affirmative
evidence, either direct or circumstantial, to dispute that the decedent advanced on the officers
with a knife). At bottom, Plaintiff here has failed to adduce evidence to oppose the motion. The
Court therefore finds no genuine dispute of material fact as to whether Baez had and used a
firearm.
a. Inconsistencies in Defendants’ Testimony
Next, Plaintiff suggests that a jury must consider the evidence in this case because
inconsistencies in the officers’ testimony calls into question the credibility of their claim that
Baez shot at them. Pl. Resp. SMOF at ¶ 39. The inconsistencies include: (1) whether Officer
Painchaud approached Baez with his weapon in a “low-ready position” or pointed his weapon
directly at Baez, (2) whether Baez started to put his hands up when ordered to do so, (3) how far
the officers were from Baez at the time of the shooting, and (4) the officers’ failure to mention a
pause in the shooting. See Plaintiff’s Opp’n Brief [Doc. No. 45] at 8.
The central issue is whether the factual discrepancies are material to the claims before the
Court. See Jersey Cent. Power & Light Co. v. Lacey Twp., 772 F.2d 1103, 1109 (3d Cir. 1985)
(“[T]he mere existence of factual issues where those issues are not material to claims before this
Court will not suffice to defeat a motion for summary judgment.”) As such, a party may not
defeat a motion for summary judgment by simply pointing to immaterial evidentiary
inconsistencies. See Friedrich v. Cadle Co., 33 F. App'x 638, 639 (3d Cir. 2002) (emphasis
added); see also Smith v. City of Brooklyn Park, 757 F.3d 765, 773-74 (8th Cir. 2014) (alleged

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inconsistencies in officers’ statements do not create genuine issue of material fact when multiple
officer statements support the material fact that suspect was armed).
The Court finds that Plaintiff’s alleged inconsistencies have no impact on the issues
before the Court. See Jersey Cen. Power, 772 F.2d at 1109 (explaining “the factual issue in
dispute must be material to the resolution of the dispute. That is, it must be outcome
determinative under the applicable law”) (internal citation omitted). Said another way, none of
the supposed inconsistencies impact the Officer’s reasonable belief that Baez possessed and fired
a weapon. First, the precise angle of Officer Painchaud’s weapon as he approached Baez is
irrelevant. Second, this theory that Baez initially complied is not outcome determinative. When
viewed in a light most favorable to Plaintiff, these theories merely suggest that Baez was not a
threat initially. His initial non-threatening behavior, however, does not undercut evidence that he
later brandished and fired a weapon. Plaintiff simply mischaracterizes the relevant inquiry
before the Court.
Relatedly, Plaintiff’s focus on the distance of the Officers and this supposed pause during
the shooting is misplaced. For example, whether the officers were five or ten feet away from
Baez at the time of the shooting does not create a dispute as to whether the officers reasonably
believed that Baez posed a threat. The theory of the delay also offers little support to the
question of the Officer’s objective reasonableness. For example, even if there was a thirty
second pause in the shooting, no reasonable juror could infer that this period coincided with
police acting unreasonably. After all, nothing about the pause allows one to reason that Baez no
longer presented a threat, which the Court will discuss further below. Again, Plaintiff offers a
minor distinction that bears no discernable difference on the evidence of objective
reasonableness.

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b. The Officers’ Use of Force Was Objectively Reasonable
Having “determined the relevant set of facts and drawn all inferences in favor of the
nonmoving party to the extent supportable by the record,” Scott v. Harris, 550 U.S 372, 381 at n.
8 (2007), the Court turns to whether the officers conduct was objectively reasonable under those
circumstances.
In making that determination, courts consider the totality of the circumstances, judged
“from the perspective of the officer at the time of the incident and not with the benefit of
hindsight.” Santini v. Fuentes, 795 F.3d 410, 417 (3d Cir. 2015). The calculus must allow “for
the fact that police officers are often forced to make split-second judgments—in circumstances
that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a
particular situation.” Graham, 490 U.S. at 396–97. In assessing the totality of the circumstances,
courts may consider “all of the relevant facts and circumstances leading up to the time that the
officers allegedly used excessive force,” not just the facts and circumstances at the “precise
moment that excessive force is applied.” Rivas v. City of Passaic, 365 F.3d 181, 198 (3d Cir.
2004). Under Graham, relevant factors include “the severity of the crime at issue, whether the
suspect poses an immediate threat to the safety of the officer or others, and whether he is actively
resisting arrest or attempting to evade arrest by flight.” Graham, 490 U.S. at 396. Other relevant
factors include “the possibility that the persons subject to the police action are themselves violent
or dangerous, the duration of the action, whether the action takes place in the context 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.” Sharrar v. Felsing, 128 F.3d 810, 822 (3d Cir.
1997). Courts may also consider whether the “physical force applied was of such an extent as to
lead to injury.” Id.

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Here, the Court finds that the officers’ conduct was objectively reasonable under the
circumstances. As noted above, the undisputed record shows that the officers discharged their
weapons because Baez fired at them—an extremely serious crime—and posed an immediate
threat to their safety. Indeed, the officers responded to a highly-charged domestic dispute having
been informed that Baez was possibly armed— additional facts that support the officers’
reasonable belief that Baez posed a dangerous threat to themselves and the surrounding
community. See Conde v. City of Atl. City, 293 F. Supp. 3d 493, 501-502 (D.N.J. 2017) (stating
that while there were some questions of fact as to whether decedent possessed a gun, the
officer’s belief that Mack had a gun was objectively reasonable). That Baez shot at the officers
in an act of resistance further supports the reasonableness of the officers’ conduct. Although the
Court regrets that Baez lost his life and appreciates how his loss may impact those around him, it
must find that under these dangerous and rapidly evolving circumstances, no reasonable jury
could find that the officers acted unreasonably in shooting Baez.
This, however, does not end the excessive force inquiry. As the Third Circuit has noted,
officers who are “initially justified in using force” 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.
Here, Plaintiff suggests that even if the officers were justified in firing at Baez, a genuine
dispute of material fact exists as to whether their actions eventually became unreasonable. Pl.’s
Br. at 9, 13. Plaintiff’s argument is based on the witnesses that heard a pause in the shooting.
See Hunt Statement at 4:1-32; 6:16-19; Jones Statement at 5:33-40; Ashley Purnell Statement at
21:7-9; Rowshon Purnell Statement at 29:25-45.
Even viewed in the light most favorable to Plaintiff, evidence of a pause in the shooting
fails to suggest that the officers continued to shoot at Baez after he was down and no longer a

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threat. This is because none of the four witnesses who heard a pause actually saw Baez during
the shooting. For instance, Jermaine Hunt stated that when he heard the gunshots, he did not
know whether Baez was up or down because he did not see Baez in the doorway. Hunt
Statement at 6:11-14. Nor does his statement describe whether the officers had neutralized the
threat when he heard the shots. In addition, neither Barbara Jones nor Rowshon Purnell saw
Baez during the shooting. Finally, although Ashley Purnell said that she saw an officer fire one
more shot at Baez as she looked out the door, she later recanted this statement, indicating that
she never saw anyone shoot. CCPO Report at 13. Again, Plaintiff merely points to a
discrepancy in factual accounts to allege a material difference in a material fact. The alleged
pause, even taken in a light most favorably to Plaintiff, has no bearing on the issue of objective
reasonableness.
In conclusion, Plaintiff offers no triable facts to overcome qualified immunity as to the
officers’ split-second decision about when the threat was neutralized. In the absence of any
affirmative evidence that the officers continued to use force absent a threat, this Court must
conclude that Officers Painchaud and Kerper acted reasonably in using deadly force against
Baez. See Scott, 550 U.S. at 381 n. 8 (the reasonableness of a police officer's actions “is a pure
question of law” once the Court has “determined the relevant set of facts and drawn all
inferences in favor of the nonmoving party to the extent supportable by the record ”) (emphasis
added). The Court therefore rejects Plaintiff’s argument that the officers acted unreasonably and
grants summary judgment to the officers on Count I.

2. Failure to Intervene and Conspiracy Claims (Counts II and III)
In addition to Plaintiff’s excessive force claim, Plaintiff claims that Defendants violated
his Constitutional rights because after the pause in the shooting, the officers had a duty to
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prevent the continued use of deadly force on Baez. Pl. Br. at 10. In support of the conspiracy
claim, Plaintiff similarly argues that there are “material facts in dispute as to whether the Officers
formed a meeting of the minds when they continued to shoot Baez after they had time to
determine that he was no longer a threat.” Pl. Br. at 11. Defendants, however, argue that these
claims must fail because they did not use excessive force or violate any of Baez’s constitutional
rights. Defendants’ Brief in Support of Motion for Summary Judgment (“Def. Br.”) [Doc. No.
42] 21, 22.
The Court agrees with Defendants that both claims must fail. As explained above,
Defendants did not use excessive force, and without an underlying constitutional violation, both
conspiracy and failure to intervene claims are not cognizable. See Bryant v. City of Philadelphia,
518 F. App’x 89, 93 (3d Cir. 2013) (“In the absence of demonstrating that any of the Defendants
engaged in excessive force or committed another constitutional violation, [plaintiff] [] also
cannot succeed on a claim of failure to intervene.”); Hickson v. Marina Assocs., 743 F. Supp. 2d
362, 377 (D.N.J. 2010) (finding that the plaintiff could not proceed with his conspiracy claim
without “any violation of his federal constitutional or statutory rights”). Thus, the Court grants
summary judgment to the officers on Counts II and III.
3. Supervisory Liability and Monell Claims (Count IV and V)
Plaintiff does not oppose Defendants’ Motion as to Plaintiff’s claim for Supervisory
Liability (Count IV) or Plaintiff’s Monell claim (Count V) against Chief Thompson and Camden
County. Pl. Br. at 1. Thus, the Court grants Defendants’ summary judgment on Counts IV and
V.
B. Remaining State Law Claims

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Finally, the Court turns to Plaintiff’s remaining wrongful death and survival claims, which
arise under New Jersey state law (Counts VI and VII). As with Plaintiff’s other claims, Defendants
are entitled to summary judgment because Counts VI and VII are predicated upon a showing of
liability against Defendants, and as explained above, Plaintiff has not made this showing. Thus,
the Court grants Defendants’ motion for summary judgment on these claims.
IV.

CONCLUSION
For the foregoing reasons, the Court GRANTS Defendant’s Motion for Summary

Judgment. An Order shall issue.

Dated: 08/09/2019

s/ Robert B. Kugler
ROBERT B. KUGLER
United States District Judge

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