MENDELSON v. REYES et al

Filing 122

OPINION. Signed by Judge William J. Martini on 10/22/20. (gh, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

IVAN MENDELSON, as guardian of the
person and property of Joan Mendelson, an
incapacitated person,

Civ. No. 2:l6-cv-04831 (WJM)

OPINION

Plaintiff,
V.

P.O. JOEL REYES, eta!.,
Defendants.

WILLIAM J. MARTINI, U.S.D.J.:

This matter arises out of a police pursuit during which the fleeing vehicle struck and
severely injured a pedestrian, Joan Mendelson (“Ms. Mendelson”). Plaintiff Ivan
Mendelson, as guardian of Ms. Mendelson, filed this action against two individual Newark
police officers, Joel Reyes (“Officer Reyes”) and Ricardo Feliciano (“Officer Feliciano”),
and the City of Newark.’ Defendants Officer Reyes and Officer Feliciano now move, in
separate motions, for summary judgment on Count Three of Plaintiffs First Amended
Complaint, the sole remaining claim in this case. The Court did not hear oral argument.
Fed. R. Civ. P. 78(b). For the reasons set forth below, the Officers’ motions are
GRANTED.
I.

BACKGROUND2
A. The Pursuit

On August 27, 2015, at approximately 11:40 a.im, Officer Joel Reyes, while on duty
in a marked police car, observed in his vehicle’s rear-view or left-side mirror a Nissan
For purposes of clarity, the Court will refer to Ms. Mendelson either by her name or as “Plaintiff” Ms.
Mendelson passed away in 2020 during the pendency of this litigation. Am. Suggestion of Death, ECF No.
110. By way of Text Order on August 6, 2020, the Court deferred Ivan Mendelson’s obligation to move to
substitute the proper party under Federal Rule of Civil Procedure 25(a) until afier the Court resolved the
present motions. ECF No. 117.
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The Court will cite to the record using the following abbreviations: Officer Reyes’s Statement of
Undisputed Material Facts, “RSOF”; Officer Feliciano’s Statement of Undisputed Material Facts, “FSOF”;
Plaintiff’s Response to Officer Reyes’s Statement of Undisputed Material Facts, “PRRSOF”; and Plaintiffs
Response to Officer Feliciano’s Statement of Undisputed Material Facts, “PRFSOF.”

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Sentra approach and drive past him without slowing down for a nearby speed bump. RSOF
¶ 1, ECF No. 105-3; PRRSOF ¶ 1, ECF No. 112-1; Harriott Cert., Ex. A at 26:17-27:19,
ECF No. 106. While Officer Reyes could not discern the Nissan’s exact speed, he testified
that he could hear the vehicle’s engine racing as it approached and passed him “at a high
rate of speed.” RSOF ¶ 1-2, ECF No. 105-3; PRRSOF ¶ 1, ECF No. 112-1. Officer Reyes
followed the vehicle to identify the vehicle’s license plate number. RSOF ¶ 3, ECF No.
105-3. When he entered the vehicle’s license plate into his mobile computer, it registered
a “hit,” indicating that a stop notice was in effect for the vehicle. Id. ¶ 4. Before clicking
the next screen on his mobile computer for information about the “hit,” Officer Reyes
radioed dispatch, provided the dispatcher with the license plate number, and advised that
he was going to pull the vehicle over. Id. ¶ 5; PRRSOF ¶ 6, ECF No. 112-1. He then
activated his lights and sirens to initiate a car stop. R$OF ¶ 8, ECF No. 105-3. The driver
of the Nissan Sentra, later identified as Nathaniel Young (“Young”), sped away. Id. ¶ 9.
Officer Reyes determined that Young was committing the second-degree offense of
eluding, so he pursued Young’s vehicle down several streets at varying speeds averaging
29.4 miles per hour. Harriott Cert., Ex. A at 11:17-11:19, ECF No. 106; Harriott Cert., Ex.
Gatl2,ECFNo. 106.
Officer Reyes testified that once Young fled, he could not pay attention to his mobile
computer and to pursuing Young at the same time, and thus never proceeded to the next
screen on his computer to identify the reason for the stop notice. Harriott Cert, Ex. A at
15:16-15:20, ECF No. 106. Instead, Officer Reyes continued to provide dispatch with the
vehicle’s license plate number to ascertain the reason for the stop notice and to notify them
the vehicle was fleeing, but radio interference hindered dispatch’s ability to hear the plate
number and provide Officer Reyes with the requested information. Id. at 11:11-11:16.
Officer Feliciano, also operating a marked police car and on regular patrol duty in
the area, testified that he heard sirens in close proximity and witnessed a vehicle run a stop
sign as the vehicle was fleeing from a pursuing police cruiser. FSOF ¶J 1-3, ECF No. 1073. Officer Feliciano adjusted his radio from his district’s channel to the neighboring
district’s channel and heard Officer Reyes informing dispatch as to the direction of the
eluding vehicle. Id. ¶ 5-6, 25. Upon encountering the eluding vehicle at an intersection,
Officer Feliciano joined the pursuit and became the primary unit ahead of Officer Reyes.
Id. ¶J 27-29. At the time Officer Feliciano initiated the pursuit, his vehicle’s lights and
sirens were on and he notified dispatch on his district’s channel that a pursuit was ongoing.
Id. ¶ 30-32. Officer Feliciano attempted to ascertain from dispatch the initial reason for
Officer Reyes’s pursuit of the vehicle and whether the pursuit should continue. Id. ¶ 42.
Approximately thirty-two seconds after Officer Feliciano joined the pursuit, and
before dispatch could provide Officer Feliciano with details on the fleeing vehicle, Young
ran a red light at an intersection and collided with an oncoming civilian vehicle. Id. at ¶J
46-51. Young exited his vehicle and fled on foot until the Officers apprehended him. Id.
¶ 56-58. Upon returning to their vehicles with Young, the Officers discovered that
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Young’s vehicle had struck and severely injured a pedestrian, Ms. Mendelson. Id. ¶ 59;
Harriott Cert., Ex. A at 13:2-13:1 1. ECF No. 106. The entire pursuit lasted less than two
minutes. Haniott Cert., Ex. G at 12, ECF No. 106. It was not until after the Officers
apprehended Young that Officer Reyes learned the stop notice on Young’s vehicle was for
a suspended vehicle registration. Hathott Cert., Ex. A at 64:15-64:23, ECF No. 106.
B. The Vehicular Pursuit Policies

At the time of the pursuit, both the New Jersey Attorney General’s Office and the
Newark Police Department had similar pursuit policies establishing guidelines for the
initiation and continuation of vehicular pursuits of fleeing suspects. Harriott Cert., Exs. F,
G, ECF No. 106. Officer Reyes and Officer Feliciano were aware of these policies and
received training on them twice a year. RSOF ¶ 14, ECF No. 105-3; FSOF ¶J 6 1-63, ECF
No. 107-3.
Under both pursuit policies, “[a] police officer has the authority to attempt the stop
of any person suspected of having committed any criminal offense or traffic violation.”
Harriott Cert., Ex. B at 5, ECF No. 106; Harriott Cert., Ex. C at 1, ECF No. 106. While it
is the violator who initiates the pursuit, a police officer may only pursue the violator under
two circumstances: (1) “when the officer reasonably believes that the violator has
committed an offense of the first or second degree” or (2) “when a police officer reasonably
believes that the violator poses an immediate threat to the safety of the public or other
police officers.” Harriott Cert., Ex. B at 5, ECF No. 106. Pursuits for motor vehicle
offenses are not authorized “unless the violator’s vehicle is being operated so as to pose an
immediate threat to the safety of another person.” Id.
Even where a pursuit is authorized, “a pursuit should not be automatically
undertaken.” Id. Both pursuit policies require a police officer to “weigh the need for
iimnediate apprehension against the risk created by the pursuit.” Id.; Harriott Cert., Ex. C
at 1, ECF No. 106. Specifically, the pursuit policies state that an officer must consider the
following factors prior to initiating the pursuit: (1) the likelihood of successful
apprehension; (2) whether the identity of the violator makes later apprehension possible;
(3) the degree of risk created by pursuit (vehicular traffic, nature of the area, pedestrian
traffic, environmental factors, and road conditions); and (4) the officer’s driving skills,
familiarity with roads, and police vehicle. Harriott Cert., Ex. B at 5-6, ECF No. 106;
Harriott Cert., Ex. C at 1-2, ECF No. 106.
Following the incident here, the Essex County Prosecutor’s Office and the Newark
Police Department’s Office of Professional Standards conducted investigations into the
pursuit and whether the Officers had violated the above procedures. Harriott Cert., Exs. F,
G, ECF No. 106. Both Offices determined that there was no evidence to suggest violations
of the pursuit policies. Id.
II.

PROCEDURAL HISTORY

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Based on the facts above, Ms. Mendelson’s guardian filed the Complaint in this
action on her behalf, later amending it to bring the following four Counts: (I) Officers
Reyes and Feliciano violated Ms. Mendelson’s Fourteenth Amendment due process rights
(Count One); (2) the City of Newark failed to properly train, or have a proper policy
regarding training of, police officers and police dispatchers (Count Two); (3) the Officers’
willful misconduct renders them liable under the New Jersey Tort Claims Act (“TCA”)
(Count Three); and (4) the Defendants’ negligent conduct renders them liable under the
TCA (Count Four). Am. Compl. ¶J 39-74, ECF No. 15.
By way of Order and Opinion dated February 28, 2017, resolving Defendants’
motions to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court dismissed
the First Amended Complaint as to the City of Newark and dismissed Counts One and Four
as to the Officers. ECF Nos. 46, 47. The Court permitted Count Three—the claim that the
Officers’ willful misconduct renders them liable under the TCA—to proceed.3 Id. The
Officers now move for summary judgment on Count Three, the sole remaining claim
against them in Plaintiffs First Amended Complaint. ECF Nos. 105, 107. The motions
are fully briefed and ripe for resolution.
III.

LEGAL STANDARD

Federal Rule of Civil Procedure 56 provides for summary judgment “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.” Fed. R. Civ. P. 5 6(a); see Celotex Corp. v. Catrett, 477 U.s.
317, 322-23 (1986); Turner v. Schering-Plough Corp., 901 F.2d 335, 340 (3d Cir. 1990).
A factual dispute is genuine if a reasonable jury could find for the non-moving party, and
is material if it will affect the outcome of the trial under governing substantive law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court considers all

In dismissing the claims over which the Court had original jurisdiction and allowing the TCA claim against
the Officers to proceed, the Court opted to exercise supplemental jurisdiction over Count Three pursuant to
28 U.S.C. § 1367(c), though it did not expressly cite to the statute. The United States Court of Appeals for
the Third Circuit “recognize[sJ that, ‘where the claim over which the district court has original jurisdiction
is dismissed before trial, the district court mitst decline to decide the pendent state claims unless
considerations of judicial economy, convenience, and fairness to the parties provide an affirmative
justification for doing so.” Hedges v. Musco, 204 F.3d 109, 123 (3d Cir. 2000) (quoting Borough of West
I1/Ifflin v. Lancaster, 45 f.3d 780, 788 (3d Cir.1995)) (emphasis in original). At this stage of the litigation,
where the case has been pending before this Court for four years, and where the Court dismissed the claims
over which it had original jurisdiction three and a half years ago, and where the parties have since spent
that time engaged in discovery on Count Three and participating in settlement conferences before the
Honorable Mark Falk, U.S.C.M.J., the Court finds that it would be inefficient, inconvenient, and unfair to
the litigants to now remand this matter to state court.

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evidence and inferences drawn therefrom in the light most favorable to the non-moving
party. Andreoli v. Gates, 482 F.3d 641, 647 (3d Cir. 2007).
Initially, the moving party has the burden of demonstrating the absence of a genuine
issue of material fact. Celotex Coip.. 477 U.S. at 323. 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. The opposing party must do more than
just rest upon mere allegations, general denials, or vague statements. Saldana v. Kmart
Corp.. 260 f.3d 228, 232 (3d Cir. 2001). Rather, to withstand a proper motion for summary
judgment, the nonmoving party must identify specific facts and affirmative evidence that
contradict those offered by the moving party. Anderson, 477 U.S. at 256-57.
IV.

DISCUSSION

Count Three alleges that the Officers are liable under the TCA for willfully
undertaking a high-speed chase of Young’s vehicle in violation of the pursuit policies. The
TCA confers absolute immunity upon police officers “except where the police officer
engages in willful misconduct.” Tice v. Cramer, 133 N.J. 347, 356 (1993).
In their separate motions for summary judgment, the Officers argue that they
pursued Young’s vehicle in compliance with the pursuit policies and that they are entitled
to absolute immunity under the TCA. See Reyes Br., ECF No. 105-2; Feliciano Br., ECF
No. 107-1. In opposition to each motion, Plaintiff argues that the Officers automatically
undertook the pursuit without first considering the risk factors enumerated in the pursuit
policies, thereby knowingly violating the policies. See P1. Opp’n Br., ECF No. 112; P1.
Opp’n Br., ECF No. 113. Plaintiff argues that there is thus a genuine issue of fact as to
whether the Officers engaged in willful misconduct.
In the context of a police vehicular pursuit, willful misconduct has two elements:
(1) disobeying either a specific lawful command of a superior or a specific lawful standing
order; and (2) knowing of the command or standing order, knowing that it is being violated,
and intending to violate it. fielder v. Stonack, 141 N.J. 101, 125-26 (1995). The general
maxim is where a rule or policy leaves no discretion to an officer, a knowing violation of
the rule or policy would constitute willful misconduct. Chunkoo v. City ofNewark Police
Dep’t, No. A-4286-16T3, 2019 WL 150154$, at *5 (N.J. Super. Ct. App. Div. Apr. 4,
2019), cert. denied, 238 N.J. 590 (2019), and cert. denied, 23$ N.J. 601 (2019).
Conversely, “where officers are allowed decision-making discretion, the law will grant
them substantial leeway and immunity.” Id.
Here, the Attorney General’s Pursuit Policy constitutes the relevant standing order.
See id. The Policy gave Officer Reyes and Officer Feliciano discretion to pursue Young’s
vehicle if they reasonably believed Young was committing the second-degree offense of
eluding or Young posed an immediate threat to public safety. See id. (“We recognize that

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the officers cannot be found to have committed willful misconduct in initiating the
pursuit.”). The record reflects the Officers appropriately exercised that discretion.
It is also clear that the Policy imposed a non-discretionary duty on the Officers to
consider multiple risk factors (likelihood of successful apprehension, identity of the
violator, degree of risk created by pursuit, the officer’s characteristics) before engaging in
the pursuit. See Id. (“The policies state unqualifiedly that the officers ‘must’ do so.”). The
critical issue, therefore, hinges not on whether the Officers undertook a satisfactory
analysis of these factors, but whether the Officers chose to undertake the analysis at all
before they pursued Young’s vehicle.
As to Officer Reyes, Plaintiff has not raised a genuine issue of fact as to whether he
undertook a risk analysis before engaging in the pursuit. Officer Reyes was familiar with
the Attorney General’s Pursuit Policy and received training on it twice a year. He knew of
the Policy’s provision requiring him to conduct a risk analysis. Plaintiff makes much of
the fact that when Officer Reyes was asked at his deposition whether he automatically
decided to pursue Young once he observed Young eluding, Officer Reyes answered, “Yes.”
Harriott Cert., Ex. A at 22:13-22:21, ECF No. 106. When asked whether he believed he
went through the thought process of conducting a risk analysis before pursuing Young,
the pursuit
I was just focused on
Officer Reyes answered, “No. At the time, no.
Officer Reyes’s deposition testimony
and the apprehension.” Id. at 24:15-24:25. While
may not be consistent with the Pursuit Policy’s requirements, the record reflects that
Officer Reyes’s conduct at the time of the pursuit was consistent with those requirements.
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The record reflects Officer Reyes considered the degree of risk created by the
pursuit, which began only after Officer Reyes attempted to stop Young’s vehicle. Young
did not stop, but sped away and engaged in eluding Officer Reyes. Officer Reyes testified
that at the time of the pursuit there was some traffic, no children were outside because
school was not out, and he was travelling at a speed that “was not one to cause concern”
and that was considerate of the amount of traffic. Id. at 22:25-23:17. He was driving a
marked police car equipped with both sirens and overhead lights. He testified that if he
thought the pursuit posed a safety risk to himself or pedestrians, he could have terminated
the pursuit. Id. at 23:18-23:23. Additionally, he testified that had he known the stop notice
on Young’s vehicle was for a suspended vehicle registration, he would not have pursued
or continued to pursue Young because the safety risk involved in pursuing for a suspended
registration would have been unwarranted. Id. at 61:15-62:11, 64:3-64:6. In the Police
Pursuit Report that Officer Reyes completed after the incident, Officer Reyes marked the
boxes indicating road conditions were dry, traffic was light, and weather was clear at the
time of the pursuit. Harriott Cert., Ex. F, ECF No. 106.
Considering the foregoing evidence and inferences drawn therefrom in the light
most favorable to Plaintiff, the Court finds a genuine issue of fact does not exist as to
Officer Reyes’s conduct. Police pursuits are inherently dangerous, unpredictable situations
in which police officers must make critical, split-second decisions to ensure those whom
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the law has determined be apprehended are apprehended without injury to other drivers,
passengers, bystanders, or pedestrians. The record reflects Officer Reyes made such splitsecond decisions in accordance with the pursuit policies. Absent an inference of willful
misconduct, he is entitled to absolute immunity under the TCA. The Court will grant
Officer Reyes’s motion for summary judgment.
As to Officer Feliciano, Plaintiff has not raised a genuine issue of fact as to whether
Officer Feliciano engaged in willful misconduct when he joined the pursuit of Young’s
vehicle. Officer Feliciano was familiar with the Attorney General’s Pursuit Policy and
received training on it twice a year. Although he answered “yes” when asked at his
deposition whether he automatically joined the pursuit of Young’s vehicle afier observing
Young run a stop sign at an intersection while fleeing, Officer Feliciano’s testimony as to
his actual conduct demonstrates otherwise. Afanador Cert., Ex. A at 61:19-61:22, ECF
No. 107-2. Officer Feliciano testified that at the time he decided to join the pursuit, he
assessed the risk by considering the time of day, the volume of vehicle and pedestrian
traffic, the weather, and the condition of his police vehicle, a marked unit with sirens and
overhead lights. Id. at 45:16-46:20, 46:16-48:11, 97:10-97:12. He testified further that
when he undertook the pursuit, he was not driving at an excessive speed and he continued
to communicate with dispatch to ascertain more information on the eluding vehicle. Id. at
48:12-48:14, 48:23-49:24.
Considering the foregoing evidence and inferences drawn therefrom in the light
most favorable to Plaintiff, the Court finds that a genuine issue of fact does not exist as to
Officer Feliciano’s conduct. Absent an inference of willful misconduct, he is entitled to
absolute inmiunity under the TCA. The Court will grant Officer Feliciano’s motion for
summary judgment.
V.

CONCLUSION

For the reasons stated above, the Officers’ separate motions for suimmary judgment,
ECF Nos. 105, 107, are GRANTED. Count Three of Plaintiffs First Amended Complaint,
the sole remaining claim against them, is DISMISSED with prejudice. The Officers’
Third-Party Complaints against Nathaniel Ernest Young, Jr., for indemnification and
contribution, ECF Nos. 56, 66, are DISMISSED as moot.
An appropriate Order follows.

W1/ £M’ARTINI, U.S.D.J.

/

Date: October 21, 2020

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