CARPENTER et al v. CHARD, JR. et al
Filing
38
OPINION. Signed by Judge Joseph H. Rodriguez on 9/30/2020. (rtm, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
DAVID J. CARPENTER
and
SUSAN CARPENTER, h/w
Plaintiffs,
v.
:
Hon. Joseph H. Rodriguez
:
Civil Action No. 18-10959
:
OPINION
:
PATROLMAN ALBERT
:
CHARD, JR., CHIEF OF POLICE
JODY FARABELLA, and CITY
:
OF MILLVILLE, NEW JERSEY,
THROUGH ITS POLICE
:
DEPARTMENT
:
Defendants.
:
This matter comes before the Court upon the Motion for Summary
Judgment filed by Plaintiffs, Mr. David J. Carpenter (“Carpenter”) and Mrs.
Susan Carpenter [Dkt. No. 29,] and the Motion for Summary Judgment
filed by Defendants, Patrolman Albert Chard, Jr., Chief of Police Jody
Farabella, and City of Millville, New Jersey, Through Its Police Department.
[Dkt. No. 30.] The Court has reviewed the written submissions of the
parties and considered the arguments advanced at the hearing on
September 22, 2020. For the reasons set forth below, as well as those set
1
forth on the record during the hearing, Plaintiffs’ Motion [Dkt. No. 29] will
be granted and Defendants’ Motion [Dkt. No. 30] will be denied.
I.
Background
On January 22, 2018, at approximately 3:16 p.m., uniformed Millville
Police Chard (“Chard”) was on foot directing traffic at the intersection of
High and Foundry Streets, in the City of Millville, New Jersey. [Dkt. No. 1
“Complaint” at Exhibit A “Investigation Report.”] Chard observed
Carpenter operating a red Ford pickup truck. [Id.] As Carpenter drove, he
“filmed the police action on his cellphone.” [Id.] Chard made a downward
motion for Carpenter to put down his phone. [Id.] These facts are not
contested.
In the video Carpenter was capturing at the time of the incident,
Carpenter can be heard saying, “What? No, no, no, I don’t have to,” in
response to Chard’s motion. [Dkt. No. 30-3 at Exhibit 1.] After which, the
video captures a sound and a potential image of Chard attempting to open
Carpenter’s vehicle on the front passenger-side door. [Id.] Chard does not
contest that he was attempting to open the door See Exhibit K
(Investigation Report) at 2. Carpenter can be heard saying, “[o]kay, okay,”
before stopping his truck. [Dkt. No. 30-3 at Exhibit 1.] Chard then appears
at the driver’s side window and both he and Carpenter appear to be
2
distressed. [Id.] Chard orders Carpenter to “put the phone down” and “turn
the car off.” [Id.] Carpenter states, “Hey, you want a lawsuit?” to which
Chard replies, “You want to get arrested?” As tensions increase, Carpenter
called 9-1-1 from inside his vehicle. [Id.] Carpenter was soon after notified
he would be placed under arrest. [See Investigation Report.]
Following the incident, Chard drafted a police investigation report
which in part stated:
The defendant was arrested, processed, and charged on
summons 0610/S 2018 000134 for 2C:29-1A (Obstruction);
2C:33-1E (Calling 911 without the need for 911 service); and
2C:12-1C (a) (Assault by Auto). The defendant was released
following processing. A VINE form was filled out along with the
CJP paperwork.
The following traffic summons were issued as well:
214402 39:4-97.3 Cell Phone Use While Driving
214403 39:4-80 Failure to Obey Police Officer Directing Traffic
214404 39:4-126 Failure to Use Proper Turn Signal
214405 39:4-97 Careless Driving.
[See Investigation Report.]
The Police Report describes an incident where Chard was
purposefully dragged by Carpenter’s vehicle: “As soon as I grabbed the
handle the driver attempted to pull away with my hand still attached. I was
unable to let go fast enough and was dragged across High Street to the east
near the southeast corner.” See Exhibit K (Investigation Report) at 2.
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Chard, then submitted a signed Affidavit of Probable Cause. [ See Dkt. No.
30-3 at Exhibit 4, “Affidavit of Probable Cause.”] The Affidavit provided the
factual basis of the charges, including the description of the traffic incident,
the circumstances of the offense of Carpenter’s 9-1-1 call to request a
supervisor for alleged harassment by police, and Chard’s statement of the
extent of the injury he sustained. [Id. at 9-10.]
On February 7, 2018, Chard was called to testify before a grand jury
by the Cumberland County Prosecutor’s Office. [See Compl. at Exhibit C
“Grand Jury Panel Transcript.”] Assistant Prosecutor Tonnisen questioned
Chard with the following exchange:
Q: While you were holding the door handle, did he drive which
dragged you across the street?
A: Yes.
See Exhibit M (Grand Jury Transcript) at 5. Thereafter, the grand jury
returned indictments against Carpenter for Aggravated Assault on a Police
Officer – Third Degree (N.J.S.A. 2C:12-1b(5)(a)); and Eluding – Third
Degree (N.J.S.A. 2C:29-1b). [Id.]
On April 2, 2018, at a plea and sentencing hearing in the Cumberland
County Superior Court, Judge Michael Silvanio accepted a plea agreement.
[See Dkt. No. 30-3 at Exhibit 5, “Transcript of April 2, 2018, Superior Court
Plea Hearing and Sentence.”] All of the charges, except the charge for Cell
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Phone Use While Driving, were dismissed by the State in exchange for the
plea because the prosecutor found that he had “no factual” support for the
remaining charges. [See Exhibit I (Transcript) at 4; Exhibit N (Plea Form).
This is the colloquy between the prosecute and the court as to the merits of
the plea agreement:
MR. HERNDON: However, with respect to the Indictment, we
did look at several videos, including the Defendant’s cell phone
video that he was using while driving, filming the incident. We
also did pull several surveillance videos after that. Had made a
determination, me and my supervisors, that after viewing the
video, that there were no indictable level offenses to which
Carpenter should have been indicted for. I believe he was
indicted for Aggravated Assault on a Law Enforcement Officer
as one of the offenses, and again, there was, in the State’s view,
no factual for that. So we’re agreeing to dismiss the Indictment
in exchange for Carpenter to plead guilty to the motor vehicle
violation of Operating a Cell Phone While Driving a Motor
Vehicle.
THE COURT: So the State is moving to dismiss the Indictment?
MR. HERNDON: Yes, Your Honor.
[See Exhibit I at 4-5].
As a result, Carpenter pleaded guilty to the traffic offense of operating
his motor vehicle while using a cellphone in violation of N.J.S.A. 39:4-97.3.
[Id.] The remaining criminal and traffic charges were dismissed, but
Carpenter was fined $400 plus court costs. As a result of being arrested and
charged, he lost his job, health insurance, and suffered other ailments
because of the public humiliation. [Id.]
5
Plaintiffs filed the Complaint [Dkt. No. 1] on June 22, 2018 alleging
five counts: Counts I and II are constitutional claims against Chard (I) and
a Monell Claim against Chief Farabella and the City of Millville (II), Count
III alleges a claim under the NJCRA, Count IV Negligence and respondeat
superior, and Count V is loss of consortium. Plaintiffs’ constitutional claims
against Chard are plead under the Fourth and Fourteenth, but do not
clearly identify a right other than “Carpenter had a right not to be indicted
based on perjured testimony.” Plaintiff claims under Monell allege that the
City has a custom of treating officers involved in aggressive police actions
with little or no meaningful consequence for the offending police officer.
Defendants filed a motion for summary judgment [Dkt. No. 30] on January
9, 2020.
Chard filed a counterclaim seeking personal injury damages because
Carpenter assaulted him with his automobile. Plaintiff moves for summary
judgment, [Dkt. No. 29] on Chard’s personal injury counterclaim, on the
grounds that Chard is beholden to the ‘verbal threshold’ and because Chard
has not suffered an injury. Chard claims he sustained compensable
personal injury as a result of actionable conduct by Carpenter and, based on
the underlying facts and circumstances of this matter, Chard’s
Counterclaim for damages is not subject to the ‘verbal threshold’ defense.
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II.
Standard of Review
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 (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 (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 (1986).
7
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 (1986). Once the moving party has met this burden, the
nonmoving party must identify, by affidavits or otherwise, specific facts
showing that there is a genuine issue for trial. Id.; Maidenbaum v. Bally’s
Park Place, Inc., 870 F. Supp. 1254, 1258 (D.N.J. 1994). Thus, to withstand
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 256–57. 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).
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III.
Discussion
A. Defendants’ Motion for Summary Judgment
1. Claims against Defendant Chard
The Complaint alleges general violations of the Fourth and
Fourteenth Amendments. Plaintiffs argue in their briefs that the right to be
free of an Indictment based on perjured testimony is old as the oath itself,
which has been administered time out of mind in Anglo-American courts.
Plaintiffs’ state constitutional claims allege improper seizure and false
arrest. In sum, Patrolman Chard’s false reports and grand jury testimony
violated “clearly established statutory or constitutional rights of which a
reasonable person would have known.” Id.
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). 1 Any analysis of 42 U.S.C. § 1983 should begin with the language of
the statute:
Plaintiffs’ State Constitutional claims under the New Jersey Civil Rights Act, N.J.S.A.
10:6-2, follow the analysis under 42 U.S.C. § 1983. Hedges v. Musco, 204 F.3d 109, 121
n.12 (3d Cir. 2000); Pettit v. New Jersey, 2011 WL 1325614, at *3 (D.N.J. Mar. 30, 2011)
(“This district has repeatedly interpreted NJCRA analogously to § 1983.”). As a result,
1
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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.
See 42 U.S.C. § 1983.
As the above language makes clear, Section 1983 is a remedial statute
designed to redress deprivations of rights secured by the Constitution and
its subordinate federal laws. See Baker v. McCollan, 443 U.S. 137, 145 n.3
(1979). By its own words, therefore, Section 1983 “does not . . . create
substantive rights.” Kaucher v. County of Bucks, 455 F.3d 418, 423 (3d Cir.
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 under § 1983: (1)
the Court will analyze Plaintiff’s state and federal constitutional claims concurrently,
using the analysis under § 1983.
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that the plaintiff was deprived of a “right or privileges secured by the
Constitution or the laws of the United States” and (2) that plaintiff was
deprived of his rights by a person acting under the color of state law.
Williams v. Borough of West Chester, Pa., 891 F.2d 458, 464 (3d Cir. 1989).
There is no dispute that Chard was acting under the color of state law
on the day of the incident and in his appearance before the grand jury. In
addition, it is well settled that the right to be free from an indictment
predicated upon false charges violates Plaintiffs’ right to due process
guaranteed by the Fourteenth Amendment. Black v. Montgomery Cty., 835
F.3d 358, 369 (3d Cir. 2016). In Black, the Third Circuit reaffirmed that “a
plaintiff may pursue a fabricated evidence claim against state actors under
the due process clause of the Fourteenth Amendment even if the plaintiff
was never convicted.” Id. (footnote omitted). The decision expanded on
the precedent set in Halsey v. Pfeiffer, 750 F.3d 273, 292 (3d Cir. 2014),
which considered the boundary between The Fourth Amendment, which
“forbids a state from detaining an individual unless the state actor
reasonably believes that the individual has committed a crime[,]” and The
Fourteenth Amendment’s protection which “protects defendants during an
entire criminal proceeding through and after trial.” Halsey v. Pfeiffer, 750
F.3d at 292 (citing Bailey v. United States, –––U.S. ––––, 133 S. Ct. 1031,
11
1037, 185 L.Ed.2d 19 (2013); Pierce v. Gilchrist, 359 F.3d 1279, 1285–86
(10th Cir. 2004) (quotation omitted)).
The Third Circuit in Halsey adopted the holding of the majority of
cases and held that
“[w]hen falsified evidence is used as a basis to initiate the
prosecution of a defendant, or is used to convict him, the
defendant has been injured regardless of whether the totality of
the evidence, excluding the fabricated evidence, would have
given the state actor a probable cause defense in a malicious
prosecution action that a defendant later brought against him. . .
.. To the best of our knowledge, every court of appeals that has
considered the question of whether a state actor has violated the
defendant's right to due process of law by fabricating evidence
to charge or convict the defendant has answered the question in
the affirmative.
Id. (citing Whitlock v. Brueggemann, 682 F.3d 567, 585 (7th Cir.
2012) (collecting court of appeals cases).
The gravamen of Black centered on the decision in Halsey and
reaffirmed that the “fabricating evidence is an affront to due process of law,
and state actors seeking to frame citizens undermines fundamental fairness
and are responsible for “corruption of the truth-seeking process.’” Black,
835 F.3d at 370.
The question before the Court is whether Chard is entitled to qualified
immunity. The doctrine of qualified immunity provides that “government
officials performing discretionary functions . . . are shielded from liability
12
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).
The doctrine of qualified immunity “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 incompetent or those who knowingly violate
13
the law.’” Ashcroft v. al-Kidd, 5623 U.S. 731, 743 (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 (3d Cir,
2006).
However, an officer is also entitled to qualified immunity “[i]f the
officer’s mistake as to what the law requires is reasonable[.]” 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. 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).
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The qualified immunity analysis gives great deference “to the
circumstances of police action, which are often ‘tense, uncertain, and
rapidly evolving.’” Groman v. Township of Manalapan, 47 F.3d 628, 634
(3d Cir. 1995) (quoting Graham, 490 U.S. at 396). See also Graham, 490
U.S. at 396-97 (analyzing reasonableness of use of force “from the
perspective of a reasonable officer on the scene, rather than with the 20/20
vision of hindsight”).
Here, there is no question that the right to be free from false charges
and indictment predicated upon false testimony was clearly established on
the day of the incident. Black, 835 F.3d at 370. Chard does not argue that
he was “mistaken” as to what the law requires. The issue on qualified
immunity is whether Chard “knowingly violate[d] the law’” when he
charged Carpenter with aggravated assault by auto and offered testimony to
support that charge, and other potential exaggerated charges, to the grand
jury. Ashcroft v. al-Kidd, 5623 U.S. at 743. The Court reviews Chard’s
actions under an objective standard of reasonableness at the moment of the
violations. 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
15
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).
There are three separate video recordings of the interaction between
Chard and Carpenter. The Court has reviewed this evidence and finds that
there are genuine issues of material fact related to whether Chard’s
characterization of the events in his police report and his grand jury
testimony are objectively reasonable. The video evidence consists of a
recording from three different perspectives. The central issue is whether
Chard was dragged by Carpenter so as to justify the assault by auto charge,
the eluding police charge, and others. The videos raise questions as to
whether Chard’s claim that he was dragged is not only objectively
reasonable, but truthful. It is undisputed that Chard authored his police
report before he reviewed, or allegedly even realized that such evidence
existed, the three videos. For this reason, the Court cannot conclude that
Chard’s police report and grand jury testimony, which lead to Carpenter’s
arrest and indictment, are an objectively reasonable assessment of the
events on January 22, 2018. Thus, qualified immunity cannot attach at this
time and summary judgment must be denied.
16
For the same reasons, summary judgment is denied as to the state law
claims because there is a question of fact as to whether Chard’s actions were
taken in good faith. N.J.S.A. 59:3-3 (Under the Tort Claims Act, a public
employee is not liable if he acts in good faith in the execution or
enforcement of any law.); Bombace v. City of Newark, 241 N.J. Super. 1, 8
(App. Div. 1990).
2. Claims Against Chief Farabella and the City of
Millville
Plaintiff alleges claims unconstitutional policy and/or custom
pursuant to Monell v. Dept. Soc. Servs. of New York, 436 U.S. 658, 691
(1978) against Chief Farabella and the City of Millville. Defendants move
for summary judgment on the ground that Plaintiff has not produced
sufficient evidence of the existence of a policy or custom.
Plaintiffs’ claim that Chief Farabella has ratified a custom of “shock
and awe” behavior by his police force which includes several examples of
police misconduct in the use of force and his lack of action concerning the
alleged attempt of Chard to enter Carpenter’s vehicle and Chard’s
falsification of a police report and related grand jury testimony.
Of particular note are two arrests, which pre-date the underlying
incident, that involve excessive force and aggressive “shock and awe”
behavior. First, Audra Capps suffered several broken ribs as a result of
17
excessive force employed by of Patrolman Dixon in the course of her arrest;
Dixon pleaded guilty to aggravated assault. See Exhibit D. Second, Alonzo
Williams, suffered several fractures of his facial bones when Patrolman
Profitt slammed his head to the concrete floor of the police station; Profitt
pleaded guilty to aggravated assault. See Exhibit E. Plaintiff argues that his
injuries, while not physical in nature flow from similar police shock and
awe tactics: Carpenter suffered the public disgrace and the humiliation of
arrest and indictment, loss of employment, and loss of health benefits. Mrs.
Carpenter has brought a loss of consortium claim.
A municipality is not liable under 42 U.S.C. § 1983 on a respondeat
superior theory. Monell v. Dept. Soc. Servs. of New York, 436 U.S. 658, 691
(1978). However, a government entity may be liable for its agent’s actions
upon a demonstration that a policy or custom of the municipality caused, or
was a “moving force” behind, the alleged violation of Plaintiff’s rights.
Kentucky v. Graham, 473 U.S. 159, 166 (1985) (quoting Polk County v.
Dodson, 454 U.S. 312, 326 (1981)); Beck v. City of Pittsburgh, 89 F.3d 966,
971 (3d Cir. 1996).
Policy or custom may be established in two ways. “Policy is made
when a ‘decisionmaker possess[ing] final authority to establish municipal
policy with respect to the action’ issues an official proclamation, policy, or
18
edict.” Andrews v. City of Philadelphia, 895 F.2d 1469, 1480 (3d Cir. 1990)
(citations omitted). “A course of conduct is considered to be a ‘custom’
when, though not authorized by law, ‘such practices of state officials [are]
so permanent and well settled’ as to virtually constitute law.” Id. (citations
omitted). Custom requires proof of knowledge and acquiescence by the
decisionmaker. McTernan v. City of York, PA, 564 F.3d 636, 657 -658 (3d
Cir. 2009).
Moreover, supervisors can be liable if they “established and
maintained a policy, practice or custom which directly caused [the]
constitutional harm,” or if they “participated in violating plaintiff's rights,
directed others to violate them, or, as the person[s] in charge, had
knowledge of and acquiesced in [their] subordinates' violations.” Santiago
v. Warminster Twp., 629 F.3d 121, 129 (3d Cir. 2010) (citations omitted).
Thus, in order to prevail against the government entity, “[a] plaintiff must
identify the challenged policy, attribute it to the city itself, and show a
causal link between execution of the policy and the injury suffered.” Losch
v. Parkesburg, 736 F.2d 903, 910 (3d Cir. 1984).
Further, a plaintiff must show that the municipality acted with
“deliberate indifference” to the known policy or custom. Canton v. Harris,
489 U.S. 378, 388 (1989). “A showing of simple or even heightened
19
negligence will not suffice.” Board of County Comm’rs of Bryan County,
Okl. v. Brown, 520 U.S. at 397, 407 (1997). Finally, to prevail on a failure to
train, discipline or control claim, a plaintiff must “show both
contemporaneous knowledge of the offending incident or knowledge of a
prior pattern of similar incidents and circumstances under which the
supervisor’s actions or inaction could be found to have communicated a
message of approval to the offending subordinate.” Montgomery v. De
Simone, 159 F.3d 120, 127 (3d Cir. 1998) (citations omitted).
There are genuine issues of material fact related to whether Chief
Farabella was deliberately indifferent to his officers’ custom of using shock
and awe tactics. Despite happening after the Profitt and Dickinson assaults
of their arrestees, there is no mention of the Carpenter incident in Chard’s
2018 work performance evaluation. See Exhibit H (Supplemental Report of
John G. Peters, Ph.D., Dec. 11, 2019) at 11 (noting: “A content assessment of
the evaluation instrument for the evaluation period November 1, 2017
through October 31, 2018 failed to include and/or comment on the arrest of
Carpenter and the charges filed against him.”). Carpenter submits an
expert report of John G. Peters 2 on the issues of police aggression and the
2
Dr. Peters is a former Philadelphia police officer and is offered as an expert on use of force and police practices.
He submitted two reports in this matter.
20
City’s acquiescence to and tolerance of police misconduct. In addition to
highlighting the absence of the Carpenter incident within Chard’s 2018
work performance evaluation, Peters expanded on the systemic effect, and
precursory activity, of such an omission:
Chief Farabella testified on June 12, 2019 that he had recently
received the Internal Affairs investigative report about the Chard-Carpenter
incident and had “looked” at it (Farabella Deposition 41:12). Although
Chief Farabella had not yet made a decision about the Internal Affairs
report findings, he testified the report did not call for Chard to be
disciplined (43:19) and did not call for any remedial training of Chard.
Exhibit J (Peters Preliminary Report) at 13.
Peters highlights that this testimony is at odds with Chief Farabella’s
acknowledgment that the video of the incident did not support Chard’s
allegation that he was “dragged across” the intersection by Carpenter:
The Chief also has knowledge that Chard was not dragged across the
street by Carpenter’s vehicle (Farabella deposition, 62:13-14), and agreed
the surveillance video footage did not show Chard “running” to stay with
the pickup truck(73:13). Based upon video evidence, it was clear to the
Chief that Chard had embellished or intentionally misrepresented the facts
of the incident to make Chard look like the victim. Shockingly, Chief
Farabella testified that he had no concerns with how Chard had handled the
incident (39:11). Id.
In addition, Chard drafted his account of the incident in his police
report before he was privy to the contents of, or allegedly even knew about
the existence of, any of the video evidence. In that report, he recounts the
incident as follows: “As soon as I grabbed the handle the driver attempted
to pull away with my hand still attached. I was unable to let go fast enough
21
and was dragged across High Street to the east near the southeast corner.”
See Exhibit K (Investigation Report) at 2. The resulting criminal complaint
alleges that Carpenter committed “the offense of assault by auto specifically
by knowingly and recklessly causing injury to Ptlm. Chard as he ordered
defendant to stop his vehicle. Defendant proceeded to drag Ptlm. Chard by
the door handle causing pain and injury to his right arm.” See Exhibit L.
There is no dispute that if an internal affairs investigation into the
Carpenter incident occurred, Defendants did not disclose the results of the
investigation. Plaintiffs claim this is further evidence of deliberate
indifference to a custom because either Chief Farabella was mistaken, and
no internal affairs (“IA”) investigation of Chard was initiated or Defendants
have decided not to produce the IA report. The lack of consequence,
despite Chief Farabella’s apparent agreement that the videos do not
comport with Chard’s description of the incident, creates a genuine issue of
fact as to whether a custom of protecting the officers who exercise their
authority in an excessive manor existed. Peters’ Report expands on this
issue.
Given the high frequency of use-of-force incidents by Millville
police officers, several of these uses of force are likely to be
excessive, but given Chief Farabella’s demonstrated
incompetency to conduct internal investigations, compile data,
and discipline officers, he and the City of Millville repeatedly
22
demonstrate how they ratify police officer misconduct and
protect them. The result is an organizational culture that
officers know will protect them when they engage in errant
behavior, particularly in their uses of force.
See Exhibit H (Peters Supplemental Report) at 6.
Peters further observed:
If the Chief decided not to take any significant corrective action
in an attempt to alter Chard’s outrageous behavior, such
behavior would have been ratified by the Chief, thereby creating
or reinforcing an organizational atmosphere that intentionally
protected his law enforcement officers.
See id.
To the extent that a fact-finder could conclude that Chard fabricated
or unjustifiably levied charges against Carpenter in an effort to exercise
power and also escaped any consequence for his alleged behavior, Peters
opines that the Chief’s inaction and actions “coupled with that of the City of
Millville, show an organizational culture that clearly is biased toward
protecting Millville police officers and confirming that the City and the
police department administration have your back and will protect you –
even if police officers demonstrate outrageous behavior. See id.
(Supplemental Report) at 7. This is the very definition of a custom; a
genuine issue of fact exists as to whether Chief Farabella had “knowledge of
and acquiesced [to his] subordinates' violations.” Santiago v, 629 F.3d at
129. Summary judgment is denied.
23
B. Plaintiffs’ Motion for Summary Judgment on the Counterclaim
The Counterclaim alleges that Patrolman Chard was struck by the
automobile operated by David Carpenter while Chard was on duty at a
traffic control during a police emergency. Chard alleges that this was done
intentionally, negligently and carelessly causing him permanent injuries,
requiring the care and treatment of physicians, and medications. He
further argues that the pain and limitations will remain for the rest of his
life and he will continue to suffer disruption to his daily routine. For these
reasons, Chard seeks a judgment against David Carpenter for damages,
including the total amount of any Worker’s Compensation liens together
with interest, counsel fees and the costs of suit.
Plaintiff moves for summary judgment on the ground that Chard’s
claims for non-economic recovery are foreclosed by the verbal threshold
insurance restriction set forth in N.J.S.A. 39:6A-8(a). That statute,
colloquially referred to as the "verbal threshold," provides as follows:
"[A] person who is subject to this subsection... [who files suit] as a
result of bodily injury, arising out of the ownership, operation, maintenance
or use of such automobile in this State, [must prove that he or she] has
sustained a bodily injury which results in death; dismemberment;
significant disfigurement or significant scanning; displaced fractures; loss
of a fetus; or a permanent injury within a reasonable degree of medical
probability, other than scarring or disfigurement. An injury shall be
considered permanent when the body part or organ, or both, has not healed
24
to [function normally and will not heal to function normally with fu1ther
medical treatment . . . [.]”
Under the Act, in order to recover non-economic damages, a Plaintiff
subject to the verbal threshold must prove, by objective credible medical
evidence, an injury falling into one or more of six categories: 1) death, 2)
dismemberment, 3) significant disfigurement or scarring, 4) displaced
fracture, 5) loss of a fetus, or 6) permanent injury within a reasonable
degree of medical probability.
The verbal threshold requires a two-part analysis. First, the "verbal
threshold" is applicable to a named insured under a standard insurance
policy who elects the verbal threshold as his option. N.J.S.A. 39:6A-8.
Chard admits that he did select the verbal threshold on his personal policy
of insurance in effect at the time of this incident. Thus, it is the second part
of the analysis that is in dispute.
The second portion of the analysis asks whether the Plaintiff is
required to maintain PIP coverage or has a right to receive PIP coverage
through the policy of an immediate resident family member such as a
spouse or parent. See, Koff v. Carubba, 290 N.J. Super 544 (App. Div.)
certif. den. 146 NJ. 498 (1996); see also, Echeverri v. Blakely, 384 NJ.
25
Super 10, 16 (App. Div. 2006). PIP coverage applies to "the named insured
and members of his family residing in his household who sustained bodily
injury as a result of an accident while occupying, entering into, alighting
from or using an automobile, or as a pedestrian, caused by an automobile
or by an object propelled by or from an automobile...[.]”Harbold v. Olin,
287 NJ. Super. 35, 38 (App. Div. 1996) (emphasis in original).
The facts underlying the interaction between the parties is
documented in the discussion on Defendants’ motion for summary
judgment and will not be recounted here. In addition, during oral
argument, counsel narrowed the issue on this motion before the Court: the
only issue is whether the verbal threshold applies to Chard. If it does,
Chard agrees he cannot sustain his burden of proving that the injuries he
alleges are permanent.
In support of the motion, Carpenter claims that the verbal threshold
applies to Chard’s claim because at the time of Chard's alleged injury, he
was either attempting to enter the vehicle or was a pedestrian. Carpenter
argues that either scenario entitles Chard to receive “PIP” benefits for any
medical treatment resulting from this accident. Therefore, Chard satisfies
both elements of the verbal threshold analysis and the verbal threshold
applies to him as it relates to the subject accident.
26
Chard claims that he should not be subject to the verbal threshold
provisions of his private automobile insurance policy, because he was “on
duty” rendering his personal motor vehicle insurance inapplicable to his
claim. Chard relies on two New Jersey cases to support his conclusion that
the legislative intent of the statute permits a case by case review of
application of PIP. See Beaugard v. Johnson, 281 N.J. Super. 165 (App. Div.
1995) (15 year-old plaintiff passenger in a school bus determined not to be a
person who had the right to receive PIP benefits because she was not
injured while occupying ‘an automobile’, and therefore not bound by the
verbal threshold of her father’s automobile liability policy); Ibarra v.
Vetrano, 302 N.J. Super. 578 (App. Div. 1997) (plaintiff mother of named
insured determined not to be “an immediate family member” of household
and therefore not subject to verbal threshold). Neither case compels the
result Chard seeks. The decision in Beaugard turned on the fact that the
vehicle at issue, a school bus, was not an automobile under the law. In
Ibarra, the court found that the plaintiff’s relationship to the policy holder
was to tenuous to warrant application of the verbal threshold.
Chard, nonetheless, claims that the legislative intent of N.J.S.A.
39:6A-4 permits his claim because he is not a traditional pedestrian, but a
police officer injured while on duty. Parsing the plain language of the
27
statute, Chard claims he was not “occupying, entering into, alighting from
or using an automobile, or as a pedestrian[,]” when he sustained his
injuries. His presence and conduct as a uniformed police officer,
performing his law enforcement obligations of directing vehicular traffic
while stationed within an intersection, are not the characteristics of a
‘pedestrian’.
Chard offers no support for his claim that statutory interpretation of
the word “pedestrian” should exempt his activities while on duty or for his
policy argument that his injuries sustained during his police activity do not
further the legislative intent of PIP. PIP coverage applies to the named
insured who sustained bodily injury as a result of “an accident while
occupying, entering into, alighting from or using an automobile, or as a
pedestrian, caused by an automobile[.]” N.J.S.A. 39:6A-4. PIP benefits
advance the legislative policy injuries in automobile-related accidents
should be quickly and effectively compensated, without regard to fault.
Even though Chard agrees that his hospital and medical expenses
were paid by the workers compensation insurance provided by the City of
Millville, so that compensation has already been quick and effective, his
argument that he is exempt finds no support in his submissions.
Summary judgment is granted in favor of Carpenter.
28
IV.
Conclusion
For the reasons stated above, Plaintiffs’ Motion for Summary
Judgment [Dkt. No. 29] will be granted, and Defendants’ Motion for
Summary Judgment [Dkt. No. 30] will be denied.
An appropriate Order shall issue.
Dated: September 30, 2020
s/ Joseph H. Rodriguez
HON. JOSEPH H. RODRIGUEZ,
United States District Judge
29
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