CANALES et al v. TOWNSHIP OF TOMS RIVER et al
Filing
52
MEMORANDUM OPINION filed. Signed by Judge Mary L. Cooper on 2/20/2014. (jjc)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
DELOVI CANALES, et al.,
CIVIL ACTION NO. 11-3159 (MLC)
MEMORANDUM OPINION
Plaintiffs,
v.
TOWNSHIP OF TOMS RIVER, et al.,
Defendants.
COOPER, District Judge
Before the Court are two separate motions for summary judgment
by two groups of defendants in this matter: (1) the Township of
Toms River, the Township of Toms River Police Department, Scott
Kenny, Pat Jacques, Ed Mooney, Jim Carey, Chris McDowell, P.J.
Gambardella, and Kevin Scully (hereinafter “Township Defendants”)
(dkt. entry no. 43); and (2) the New Jersey State Police
(hereinafter “State Police”) (dkt. entry no. 46).
the State Police will be granted.
The motion by
The separate motion by the
Township Defendants will be granted in part and denied in part
without prejudice.
I.
FACTUAL BACKGROUND
According to the undisputed facts, Officer Christopher Matlosz
of the Lakewood Police Department was killed in the line of duty on
January 14, 2011.
(See dkt. entry no. 41, Am. Compl. at ¶ 15; dkt.
entry no. 43-2, Monaco Certif., Ex. C, Investigation Narrative.)
A
search began for the perpetrator by various law enforcement
agencies.
Law enforcement obtained information that the suspect
was lodged at the Howard Johnson’s Hotel (hereinafter “Hotel”) in
Toms River, New Jersey with a high-ranking gang member.
(Dkt.
entry no. 48-3, Stanzione Decl., Ex. C, Leskowski Dep. at 11-12;
Investigation Narrative.)
Law enforcement’s concern was that
“nobody else leaving the hotel would be transporting that suspect
out of the hotel.”
(Leskowski Dep. at 12.)
A sub-station and a command post for law enforcement were set
up near the Hotel.
(Investigation Narrative; dkt. entry no. 48-2,
Stanzione Decl., Ex. B, Henry Dep. at 6-8.)
Officers from numerous
law enforcement agencies –- including Brick Township, Toms River,
Lakewood, and the State Police, among others -- gathered at the
sub-station and command post.
(Investigation Narrative; dkt. entry
no. 48-5, Stanzione Decl., Ex. E, Kenny Dep. at 40-41.)
The
officers from the various agencies, including the State Police,
were dressed in a variety of uniforms and tactical gear, as well as
in plain clothes.
(Henry Dep. at 9, 20-21; Leskowski Dep. at 26-
28; Kenny Dep. at 41-42.)
Captain Henry (hereinafter “Capt. Henry”) of the Toms River
Police Department testified that he recalled interacting with
multiple officers from the State Police at the sub-station and
2
command post, but he did not know the majority of their names.
(Henry Dep. at 6-9.)
Capt. Henry testified that, to his knowledge,
there was no roster or sign-in for the various officers from
different agencies who were assisting in the operation.
(Id. at
25-26.)
That same evening, January 14, 2011, and into the early hours
of the morning on January 15, 2011, Delovi Canales, Alex Valcourt,
and Terrance Williams (collectively “Plaintiffs”) went to
Christopher’s Pub (hereinafter “Pub”), which is part of the Hotel
in Toms River.
(Dkt. entry no. 48-1, Stanzione Decl., Ex. A,
Canales Dep. at 11-13; dkt. entry no. 48-6, Stanzione Decl., Ex. F,
Valcourt Dep. at 10-13; dkt. entry no. 48-8, Stanzione Decl., Ex.
H, Williams Dep. at 17.)
On their way home from the Pub,
Plaintiffs were stopped by law enforcement at two different
locations.
These stops are the basis of the Plaintiffs’ claims
here.
A.
The Canales/Valcourt Stop
1.
Plaintiffs’ Version of Events
Delovi Canales (hereinafter “Canales”) and Alex Valcourt
(hereinafter “Valcourt”) left the Pub together around 1:00 A.M. on
January 15, 2011.
Canales was driving a 2007 Cadillac CTS, and
both were headed towards the home of Canales, which was
approximately seven to twelve minutes away.
3
(Canales Dep. at 15;
Valcourt Dep. at 14-16; Am. Compl. at ¶ 16.)
noticed a bright spotlight behind them.
Valcourt Dep. at 17.)
As they drove, they
(Canales Dep. at 16-17;
Canales eventually pulled over because the
spotlight was so bright that he could not see.
17.)
(Canales Dep. at
The vehicle with the spotlight also pulled over behind them.
Canales and Valcourt testified that there were no police sirens, no
overhead police lights, no “PA system,” nor anything else that
would have alerted them that the spotlight belonged to any type of
law enforcement.
(Id.; Valcourt Dep. at 17-18.)
Canales stuck his head out of the driver side window and
looked behind him.
(Canales Dep. at 18.)
He noticed figures
coming toward them that he identified as law enforcement officers,
although the officers did not show him a badge or identify
themselves.
(Id. at 18-19.)
Valcourt testified that he also saw
the figures approaching with flashlights, but at that time he did
not know that they were law enforcement.
(Valcourt Dep. at 18.)
Valcourt stated that someone approached the passenger side of the
car, so he rolled down the window, and the individual pointed a gun
in his face.
(Id. at 18.)
Canales and Valcourt differ somewhat in terms of the order of
what was said by whom next.
Canales testified that he asked the
officer who had approached the driver side of the car, “What’s
going on[?]”
(Canales Dep. at 18-19.)
4
Canales then heard a voice
on the passenger side of the car (where Valcourt was sitting) that
stated, “Snatch the one, get the one in the driver’s seat first,
since he has all the mouth.”
(Id. at 19-20.)
Valcourt testified
that as soon as the individual pointed a gun in his face, and
before Canales said anything, the person said “Put your hands on
the dashboard and if you move I will [f***ing] kill you.”
(Valcourt Dep. at 19.)
By this point, Valcourt believed that the
individuals who had approached the vehicle were law enforcement
because they were wearing tactical gear and the officer was wearing
a face mask, but he testified that they did not identify themselves
as law enforcement.
(Id. at 20.)
According to Valcourt, Canales
then asked the officer what was going on, and the officer said,
“Hey, get the driver, get the one with the mouth.”
(Id. at 19.)
Canales and Valcourt both testified that the officer on the
driver side then pulled Canales from his car, slammed him into the
ground, and placed a knee in his face.
at 20.)
(Id. at 20-22; Canales Dep.
The officer who pulled Canales from the car was in plain
clothes and was not wearing tactical gear.
Valcourt Dep. at 21.)
(Canales Dep. at 21;
This plain-clothes officer did not identify
himself as a police officer at any point.
(Canales Dep. at 29-30.)
Valcourt, who had been at several other depositions in this case,
testified that he was “pretty sure” that it was Defendant Sgt.
Scott Kenny (hereinafter “Sgt. Kenny”) of the Toms River Police
5
Department who pulled Canales out of the car.
21.)
(Valcourt Dep. at
At Valcourt’s deposition, defense counsel informed Valcourt
that Sgt. Kenny had testified that he was wearing tactical gear on
the night in question.
in S.W.A.T. gear.”
(Id.)
(Id.)
Valcourt responded, “No, he was not
Canales, who had not been at all of the
other depositions in this case, testified that he did not know who
the officer was.
(Canales Dep. at 20.)
According to Canales, the officer then said “Don’t [f***ing]
move or I’ll blow your head off.”
(Id.)
At the same time, another
officer, who was dressed in a tactical uniform, had a large gun
directed at him.
(Id. at 20-21.)
The plain-clothes officer then
placed metal handcuffs on Canales, and Canales remained on the
ground for approximately eleven minutes.
(Id. at 22, 28.)
Canales testified that when the officer allowed him off the
ground, rather than directing him to get up, the plain-clothes
officer lifted him off the ground by his handcuffs.
(Id. at 23.)
Then Canales was slammed down onto the hood of the unmarked police
car, which was behind his car, where he remained for approximately
eleven minutes.
(Id. at 24, 28; see also Valcourt Dep. at 30-31.)
After Canales was brought onto the hood of the unmarked police
car, Valcourt was pulled out of the car by who he believed was the
same plain-clothes officer.
(Valcourt Dep. at 24-25.)
According
to Valcourt, the officer put him on the ground and handcuffed him.
6
(Id. at 24-25.)
The officer then picked him up off the ground, and
Valcourt asked what was going on.
(Id. at 25-26.)
The plain-
clothes officer did not respond, but the officer who had pointed a
gun at him responded “Don’t you know what happened today.”
26.)
(Id. at
Valcourt responded that he had heard that an officer was shot
that day.
(Id. at 27.)
Valcourt testified that, while he did not
know it at the time of the incident, he believed based on
deposition testimony that the officer who had pointed the gun at
him for the duration of the stop was Defendant Officer Pat Jacques
(hereinafter “Jacques”) of the Toms River Police Department.
at 26-27.)
(Id.
Valcourt explained that he was then also taken to the
front of the unmarked police car.
(Id. at 27.)
Canales and Valcourt testified that, after being brought
behind Canales’s car to the front of the unmarked police car, the
law enforcement officers searched their pockets and obtained their
identifications.
Specifically, Canales testified that the plain-
clothes officer performed the search, while Valcourt testified that
“somebody” searched him.
(Id. at 29; Canales Dep. at 25.)
While
this was occurring, Canales and Valcourt were asked where they were
coming from, what they were doing there, and whether Canales had
been drinking.
(Canales Dep. at 25-26; Valcourt Dep. at 29.)
One
of the men asking questions identified himself as being a member of
the Federal Bureau of Investigation (hereinafter “FBI”).
7
(Canales
Dep. at 26; Valcourt Dep. at 29.)
According to Valcourt, after
this conversation, the officers in tactical gear proceeded to
search Canales’s car.
(Valcourt Dep. at 30.)
Canales testified that, around this point, he was allowed to
stand upright.
(Canales Dep. at 27.)
officer to remove his handcuffs.
He asked the plain-clothes
(Id.)
The plain-clothes officer
removed the handcuffs and instructed him to place his hands on the
top of his head.
(Id.)
Canales explained that, at this point, the
plain-clothes officer’s aggressiveness had subsided.
(Id. at 27-
28.)
Valcourt’s handcuffs were also removed.
(Valcourt Dep. at
35.)
The officers returned the identifications to Canales and
Valcourt and allowed Canales to remove his hands from his head.
(Id.; Canales Dep. at 28-29.)
Canales and Valcourt were then
allowed to leave the scene and proceed to Canales’s home.
(Canales
Dep. at 30; Valcourt Dep. at 37-38.)
Canales estimated that the entire incident lasted thirty-five
to forty minutes.
(Canales Dep. at 30.)
Valcourt estimated that
it lasted about twenty-five minutes to a half hour.
(Valcourt Dep.
at 32.)
As to which law enforcement agencies were present at the
scene, Canales testified that he was “pretty sure” he saw a Toms
River police car at the scene.
(Canales Dep. at 29.)
However,
Valcourt testified that he did not recall seeing any marked Toms
8
River vehicles and that no officers identified themselves as Toms
River Police.
(Valcourt Dep. at 32-33.)
When asked whether there
was anything that indicated that the State Police were at the
scene, both Canales and Valcourt replied in the negative.
(Id. at
33; Canales Dep. at 29.)
The day after the incident, Canales went to the Toms River
Police Department to file a complaint regarding the stop, but the
desk sergeant told him that there was no record of that stop having
been made.
(Canales Dep. at 50.)
Valcourt was not with Canales
when Canales went to file the complaint.
(Valcourt Dep. at 40.)
Valcourt suffered a bruised right knee following the incident,
but he did not seek treatment.
(Id. at 37.)
Canales testified to
more substantial physical injuries following the incident.
He
testified that the plain-clothes officer’s act of lifting him up by
his handcuffs with his hands cuffed behind his back caused injury
to his left shoulder.
(Canales Dep. at 31.)
Upon returning home,
Canales went to the emergency room and later sought care from a
physician, Dr. Lombardi.
(Id. at 32-36.)
The emergency room
doctors and Dr. Lombardi both independently concluded from X-rays
and an MRI that Canales’s clavicle was injured.
(Id. at 33-36.)
According to Canales, Dr. Lombardi told him that he could have
surgery or let it heal over time, and he opted to let his shoulder
heal over time because he could not be out of work following a
9
surgery.
(Id.)
Canales testified that he can no longer work out
because he cannot lift weights at the gym.
(Id. at 40, 43-44.)
He
stated that daily activities, such as putting on a coat, cause him
pain.
(Id. at 43-44.)
At the time of the incident, Canales was employed as a
“packer,” a position that was physical in nature, and the injury to
his shoulder interfered with his ability to work.
(Id. at 8, 43.)
Canales testified that, as a result of the incident and his
psychological and physical injuries, he was out of work for two to
three months and lost $3,000 to $4,000 in compensation.
42-43.)
(Id. at
He subsequently took another position at the same company
that did not require him to lift over five pounds.
(Id. at 44.)
Canales also saw a psychologist following the January 15, 2011
incident.
(Id. at 37.)
Canales testified that his previously-
diagnosed anxiety increased following this incident.
46.)
(Id. at 38,
The increased anxiety has led to bad dreams and problems with
focusing on simple tasks.
(Id. at 46-47.)
Alazopram for his anxiety.
He was prescribed
(Id. at 47.)
Valcourt testified that he too had suffered psychological
injuries from the trauma of the incident, but, as of the time of
his deposition, he had not sought treatment, although he was
considering it.
(Valcourt Dep. at 41.)
10
For some time after the
incident, Valcourt suffered from nightmares and cold sweats while
sleeping.
2.
(Id. at 42.)
Law Enforcement’s Version
Jacques and his superior officer Sgt. Kenny of the Toms River
Police Department initiated the Canales/Valcourt stop on January
15, 2011.
(Dkt. entry 48-4, Stanzione Decl., Ex. D, Jacques Dep.
at 7-8; Kenny Dep. at 7-8.)
Sgt. Kenny and Jacques did not recall
who or which agency ordered that they stop the particular vehicle,
but they believed that the order came from the command post.
(Jacques Dep. at 7; Kenny Dep. at 7, 43.)
When asked whether he
knew the reason for that particular stop, Sgt. Kenny testified that
all he recalled was that the command post was not “sure if the
occupants were some how linked to the investigation that was going
on in Lakewood dealing with the Officer Matlosz shooting.”
Dep. at 9.)
(Kenny
Capt. Henry of the Toms River Police Department
testified that the purpose of the Canales/Valcourt stop was that
“the individuals matched a possible description of the suspected
shooter.”
(Henry Dep. at 19.)
Sgt. Kenny recalled that the command post had informed them
that backup would be arriving at the stop to provide assistance.
(Kenny Dep. at 45.)
Sgt. Kenny was driving a marked police car,
which had either Toms River or Dover written on it, and Jacques was
a passenger.
(Id. at 8-9; Jacques Dep. at 7-8.)
11
Jacques and Sgt.
Kenny testified that they were both wearing tactical uniforms.
(Jacques Dep. at 8; Kenny Dep. at 10-12.)
When the stop was initiated, only Jacques and Sgt. Kenny were
present.
(Jacques Dep. at 9.)
Sgt. Kenny testified that there was
an initial delay in the stop because he was not familiar with the
layout of the new emergency lights and siren system in the vehicle
he was driving and because he was wearing bulky tactical equipment
that made it more difficult for him to activate this new system.
(Kenny Dep. at 10-11.)
Sgt. Kenny believed that he was ultimately
able to activate the lights, but he was not sure if he activated
the siren.
(Id. at 11.)
Sgt. Kenny testified that Canales and
Valcourt pulled over within a few seconds after he activated the
emergency light system.
(Id. at 12.)
Jacques testified that he exited the marked police car and
approached Canales’s vehicle with his gun drawn.
(Jacques Dep. at
10.)
(Id. at 10.)
He ordered, “Police.
Show me your hands.”
Jacques stated that Canales and Valcourt complied with this
request.
(Id. at 11.)
Sgt. Kenny, on the other hand, testified that Canales was not
compliant with the orders.
According to Sgt. Kenny, after the stop
was initiated, they performed a “rapid take down” because they were
unsure of the reason that they were ordered to make the stop in the
first place.
(Kenny Dep. at 13.)
12
He testified that he and Jacques
exited their vehicle, “ran up to the vehicle, basically drew down
on the two occupants in the vehicle and gave them verbal commands
to remain there until we did have backup officers to assist us.”
(Id.)
Jacques approached the passenger side, and Sgt. Kenny
approached the driver side.
(Id. at 14)
Sgt. Kenny stated that he
identified himself and that “police” was written across their
tactical vests.
(Id.)
Sgt. Kenny testified that he ordered the
occupants to place their hands on the dashboard, but only the
passenger complied.
(Id.)
The driver (Canales) did not comply and
appeared agitated and defiant.
(Id.)
Canales kept his hands out
of sight on his lap as opposed to placing them on the dashboard.
(Id. at 14-15.)
Shortly after Jacques and Sgt. Kenny initiated the stop, two
plain-clothes officers arrived in an unmarked car.
Jacques Dep. at 11, 14.)
Sgt. Kenny did not recall emergency
lights or sirens as the unmarked car approached.
27.)
(Id. at 12, 15;
(Kenny Dep. at
The plain-clothes officers were not Toms River Police
Officers.
(Id. at 13; Jacques Dep. at 8-9.)
In fact, Capt. Henry
testified that the Toms River Police Department did not have any
plain-clothes officers involved in the stops on the night in
question.
(Henry Dep. at 15.)
Jacques and Kenny described the
plain-clothes officers as tall, muscular white males.
Dep. at 14; Kenny Dep. at 19.)
13
(Jacques
Jacques and Sgt. Kenny did not recognize the plain-clothes
officers, and the officers were not wearing any identifiers.
(Jacques Dep. at 14; Kenny Dep. at 15, 20.)
When asked how they
knew that the plain-clothes men were in fact officers, Sgt. Kenny
replied, “To be honest with you I can only assume that they were
from another agency and were backing us up.”
(Kenny Dep. at 16.)
He testified that they were working with several other agencies
that night, including the Ocean County Prosecutor’s Office and the
State Police, and that he assumed the two officers in question were
New Jersey State Police officers.
(Id. at 16-17.)
Jacques
similarly testified that he knew they were police officers because
he knew they were working with the Toms River Police Department
that night.
(Jacques Dep. at 14.)
Notably, the Toms River Police
Department’s call information log from the night in question
contains entries at 12:47 A.M. referencing the stop of the Cadillac
and informing Sgt. Kenny, “njsp PLAIN CLOTHES BACKING YOU UP.”
(Dkt. entry no. 48-7, Stanzione Decl., Ex. G, Toms River Police
Dep’t Incident # 11-2275, at 11.)1
1
The entry does not reference Sgt. Kenny by name and instead
says, “TO 208.” (Toms River Police Dep’t Incident # 11-2275, at
11.) Jacques testified that badge number 208 is Sgt. Kenny.
(Jacques Dep. at 26.) Capt. Henry testified that he may have been
the person who sent that transmission. (Henry Dep. at 17, 24-25.)
He explained that he wanted to alert his men that the unknown
individuals were “friendly” because many law enforcement agencies
were involved, and his officers did not know all of the officers
from these other agencies. (Id. at 17.)
14
Jacques testified that he observed one of the plain-clothes
officers remove the passenger (Valcourt) from the vehicle and walk
him to the rear of the car.
(Jacques Dep. at 16.)
Jacques
believed that the driver was also pulled out of the vehicle, but he
did not witness it because he was watching the passenger.
(Id.)
Sgt. Kenny similarly testified that both occupants were
removed from the vehicle by the plain-clothes officers, placed on
the ground, and handcuffed.
(Kenny Dep. at 20-21.)
Sgt. Kenny
explained that he did not “have a good observation of what happened
on the passenger side of the vehicle” based on where he was
standing.
(Id. at 21.)
He stated, “my attention was at best
keeping the scene safe, watching to make sure the officer that was
doing the handcuffing did not need assistance, but also trying to
monitor traffic so it didn’t roll up and hit any of us while all
this was going on.”
(Id.)
was slammed to the ground.
Despite this, he denied that the driver
(Id. at 20.)
He also did not remember
the driver being lifted up by his handcuffs.
(Id. at 21-22.)
He
did, however, recall that he advised the other officer to get out
of the middle of the street because they were in a dark area, and
Canales “was picked up and we did get him out of the middle of the
road.”
(Id. at 21-22.)
handling.”
(Id. at 22.)
Sgt. Kenny did not “remember any man
Canales was taken to the front of the
vehicle where there was more light.
15
(Id.)
Additionally, the two
plain-clothes officers obtained the occupants’ identifications, and
Sgt. Kenny recalled speaking to dispatchers about the
identifications.
(Id. at 23.)
According to Sgt. Kenny, throughout the stop, he and Jacques
acted as “cover officers,” who focused primarily on security and
safety, and the plain-clothes officers acted as “contact officers,”
who performed the investigation.
(Id. at 25-26.)
The primary
reason that Sgt. Kenny and Jacques acted as cover officers instead
of contact officers was that they were wearing tactical gear and
had rifles.
(Id. at 26.)
Jacques testified that the stop lasted less than ten minutes
and that Canales and Valcourt were cooperative during the stop.
(Jacques Dep. at 21-22.)
Sgt. Kenny estimated it was approximately
fifteen minutes from the time of the stop until the time the
occupants were released.
(Kenny Dep. at 24.)
Jacques and Sgt. Kenny testified that, to their recollections,
there were a total of six officers at the stop at most:
Jacques
and Sgt. Kenny; the two plain-clothes officers; and the FBI
detectives Joseph Leskowski (hereinafter “Det. Leskowski”) and
Defendant Kevin Scully (hereinafter “Det. Scully”).
28-29, 37; Jacques Dep. at 21-22.)
(See id. at
According to Jacques, he and
Sgt. Kenny were the only officers at the stop wearing tactical
uniforms.
(Jacques Dep. at 8.)
16
Neither Jacques nor Sgt. Kenny knew whether the plain-clothes
officers searched the vehicle.
(Id. at 23; Kenny Dep. at 23-24.)
Sgt. Kenny testified that once he was speaking on the radio with
dispatch, he “wasn’t really paying attention who did a search of
the vehicle or if one was done.”
(Kenny Dep. at 23.)
However, he
stated that he performed a cursory search of the outside of the
vehicle to see if there were any other people or weapons.
(Id. at
23-24.)
Det. Leskowski and Det. Scully were also present for part of
the Canales/Valcourt stop.
Both had been assigned to and were
reporting to the FBI’s Safe Streets Task Force on the night in
question.
(Leskowski Dep. at 5-6, 10-11.)
Their purpose in going
to the stops was that, as part of the task force, they had special
expertise, knowledge, and ability to identify persons associated
with the target of the task force’s investigation, “the Blood
gang.”
(Id. at 11, 23-25.)
Det. Leskowski testified that he and
Det. Scully were not making vehicle stops that evening but that
they had responded to the locations of the stops after the stops
had already been made.
(Id. at 12, 21.)
In particular, three
stops had been made that night, and Dets. Leskowski and Scully
responded to two of those stops.
(Id. at 13, 21.)
All the
individuals involved in the stops had been at the Hotel, or, more
specifically, the Pub.
(Id. at 13-14.)
17
By the time the FBI
detectives arrived at the stops, the scene was secure, the
detainees were identified, and the other officers on the scene were
simply running their names for warrants.
(Id. at 13.)
Det.
Leskowski testified that he and Det. Scully also asked some basic
questions to the detainees, including whether they knew what had
happened that night and what they had seen.
(Id. at 13-14.)
Det. Leskowski testified that, other than himself and Det.
Scully, he did not believe anyone else at the Canales/Valcourt stop
was in plain clothes.
(Id. at 16.)
He believed, but was not
positive, that there were State Police officers at the
Canales/Valcourt stop.
(Id. at 15.)
He stated most people were in
tactical gear and therefore everyone pretty much looked the same.
(Id.)
He believed that the State Police at the stop had been at
the command post earlier in the evening, but he could not recall
their names.
(Id. at 16-18.)
Det. Leskowski testified that when he arrived at the
Canales/Valcourt stop, the two occupants were seated to the right
back of the vehicle on the curb.
(Id. at 22.)
He spoke with one
of the individuals, who he believed was the driver.
23.)
(Id. at 22-
Det. Leskowski did not recognize the driver, and therefore,
he only asked generic questions regarding the target of the
evening’s investigation.
(Id. at 23-24.)
According to Det.
Leskowski, the driver did not understand what was happening and
18
wanted to get home because he had to work in the morning.
23.)
(Id. at
Det. Leskowski estimated that he was at the Canales/Valcourt
stop for “less than 30 seconds.”
(Id. at 20.)
Det. Scully testified that he was not sure whether, other than
Sgt. Kenny and Jacques, the other individuals on the scene were
actually officers.
(Monaco Certif., Ex. M, Scully Dep. at 9.)
He
did not recall what anyone was wearing at the scene, and he did not
know the reason for the stop.
(Id. at 9-10.)
He testified that he
was there to identify the occupants at the stop and that he did not
recognize them so they left.
(Id. at 10, 21.)
Det. Scully
believed the occupants were pleasant and cooperative during the
interaction.
B.
(Id. at 21.)
The Williams Stop
1.
Williams’s Version
Terrance Williams (hereinafter “Williams”) left the Pub at
approximately 1:30 A.M. on January 15, 2011.
17.)
(Williams Dep. at
He was driving a gray Ford Explorer with a New York license
plate that was registered to his grandmother.
(Id.)
On his way
home, he pulled into a McDonald’s drive-through, and he noticed
police vehicles behind him.
(Id. at 19-20.)
Williams testified
that some of the vehicles belonged to Dover Township and some to
Toms River Township.
(Id. at 20.)
After he got his food, he was
directed by the police into a parking spot.
19
(Id.)
The police ordered him to drop his keys to the ground outside
of the car.
(Id. at 22.)
Williams testified that an officer then
opened the driver side door, grabbed him by his shoulder, and
pulled him out of the car.
(Id.)
The officer brought him to the
back of his car, instructed him to spread his legs, and searched
him.
(Id.)
Williams testified that the officer “pulled [him] with
a little force to the back of the car” and that “[i]t was more than
enough force.”
(Id. at 22-23.)
The officer and his partner were
wearing tactical gear and had guns pointed at him.
(Id. at 23.)
After the officer searched him, the officer searched Williams’s car
extensively while the officer’s partner kept the gun pointed at
him.
(Id. at 23-24.)
According to Williams, the search lasted five to seven
minutes, at which point the officer and Williams had an exchange.
(Id. at 24.)
The officer said, “Come on.
over to the back of my car.”
arrested for something?”
(Id.)
(Id.)
I am going to walk you
Williams asked, “Am I being
The officer replied, “Come over to
the car and I will talk to you.”
(Id.)
acceded to the officer’s request.
Williams testified that he
He got into the back of a Toms
River police car, and the officer closed the door.
(Id. at 25.)
At this point, “all of the other officers got out of the vehicle.”
(Id.)
20
Another officer in plain clothes then opened the car door to
speak to him, and the plain-clothes officer’s partner, who was also
in plain clothes, was nearby.
(Id. at 26.)
Williams testified
that these plain-clothes officers looked at him and shook their
heads as if they did not know him.
(Id. at 25-26.)
The plain-
clothes officer asked Williams if he knew why the officers had
stopped him, and Williams responded that he did not.
(Id. at 26.)
Williams testified that the plain-clothes officer asked him if he
knew someone named “Itchy” or “Eachy” and showed him a picture on a
cell phone.
before.
(Id.)
(Id.)
Williams stated that he had never seen him
The plain-clothes officer then closed the door.
(Id.)
The officer that had originally pulled him out of the car and
given him direction came over to him and informed him that there
was a murder.
(Id.)
anything about that.
Williams responded that he did not know
(Id.)
Williams testified that the officer
replied “not a problem, not a problem.
Just give us a few minutes,
let us run your name to make sure you don’t have no warrants and
I’ll let you go.”
(Id. at 26-27.)
Williams asked the officer why
his name was being run if he was not the person in question, and
the officer replied that it was “protocol.”
(Id. at 27.)
The two plain-clothes officers on the scene left at this
point, but the two officers in tactical gear remained as did a
21
Dover Township officer in “regular clothes.”
(Id. at 29-30.)
Williams testified that the officer who had originally taken him
out of his car allowed him to exit the police car and return to his
car to eat his food; however, the officers wanted Williams to stay
while they checked his identification.
(Id. at 29-30.)
Williams
was eventually permitted to leave, and he testified that the entire
incident lasted twenty minutes.
(Id. at 33.)
Williams testified that he was not physically injured from the
incident but that he suffered mental injury.
(Id. at 33.)
He
described the incident as degrading and said that the officers did
not “have to take [his] manhood from [him] in order to locate what
[they were] looking for, especially if [they knew] before [they]
stopped [him that he was] not the person [they were] looking for.”
(Id. at 41.)
2.
Law Enforcement’s Version
The record is very limited regarding law enforcement’s
recollection of the Williams stop.
Defendant Officer Chris
McDowell (hereinafter “McDowell”) and Defendant Officer Jim Carey
(hereinafter “Carey”) of the Toms River Police Department were
involved with the Williams stop on January 15, 2011 in the
McDonald’s parking lot.
(Dkt. 43-13, Monaco Certif., Ex. J, Carey
22
Dep. at 6-8.)2
Carey believed that the command post instructed
them to stop Williams’s car, but was not positive as there were a
lot of people involved that evening.
(Carey Dep. at 8.)
Capt.
Henry testified that, as with the Canales/Valcourt stop, the
purpose of the stop was that “the individuals matched a possible
description of the suspected shooter.”
(Henry Dep. at 19.)
Carey also testified that they were advised over the radio
that there were “friendlies” at the location of the Williams stop.
(Carey Dep. at 14.)
Consistent with Carey’s testimony, an entry in
the Toms River Police Department Incident Report from approximately
12:51 A.M. on January 15, 2011 also states, “TO UNITS AT MAC-D’S
TWO UNDERCOVERS IN THE VEHICLE NEXT TO YOU, THEY ARE FRIENDLYS.”
(Toms River Police Dep’t Incident # 11-2275, at 11.)
undercover officers’ vehicle was unmarked.
(Carey Dep. at 14.)
Carey and McDowell were wearing tactical gear.
McDowell Dep. at 14.)
The
(Id. at 7;
Carey testified that he and McDowell
utilized overhead lights to make the stop but did not activate the
sirens.
(Carey Dep. at 13.)
Carey believed that he had a long gun
drawn, but he was not sure whether McDowell’s gun was also drawn.
(Id.)
According to Carey, McDowell was controlling the stop, and
Carey was providing cover.
(Id. at 15.)
McDowell testified that
McDowell described the interaction as “contact” with a
citizen, and Carey referred to it as a “modified high risk” motor
vehicle stop. (Carey Dep. at 6, 8, 13; Monaco Certif., Ex. I,
McDowell Dep. at 12.)
2
23
he greeted Williams while Williams was in his car and asked him to
keep his hands where the officers could see them.
at 12, 14.)
(McDowell Dep.
Williams was cooperative and put down his sandwich.
(Id. at 14; see also Carey Dep. at 16.)
Williams asked McDowell,
“What’s this about,” and McDowell replied that he would explain
shortly.
(McDowell Dep. at 14.)
the vehicle.
(Id.)
McDowell asked Williams to exit
Carey did not remember Williams being
handcuffed or being placed in a Toms River police vehicle.
(Carey
Dep. at 16.)
Det. Leskowski and Det. Scully, as well as Officer Ed Mooney
and Officer P.J. Gambardella, two other defendants in this case,
arrived at the Williams stop after the stop had been initiated.
(Id. at 15; Leskowski Dep. at 14-16; Monaco Certif., Ex. K, Mooney
Dep. at 13-15; id., Ex. L, Gambardella Dep. at 9.)
According to
Carey’s testimony, once the vehicle was stopped and the paperwork
obtained, “we turned the stop essentially over to Det. Scully for
interview purposes.”
(Carey Dep. at 16.)
Det. Scully testified
that Williams was pleasant and cooperative during their
interaction.
C.
(Scully Dep. at 22.)
Toms River Law Enforcement Protocols
Plaintiffs have provided the Court with the Toms River Police
Department’s Training Brief on High Risk Motor Vehicles Stops and
Occupant Control.
(See dkt. entry no. 48-9, Stanzione Decl., Ex.
24
I, Toms River Police Dep’t Training Br.)
Of note, that document
reveals that officers are trained to identify themselves and their
purpose when initiating the stop.
(Id. at 91.)
The officer
initiating the stop, the primary officer, “issues all commands.”
(Id. at 92-94.)
Additional units on the scene are directed not to
“engage in stop unless requested by primary officer.”
(Id. at 94.)
Plaintiffs also submitted a Tom Rivers Police Department
Memorandum dated October 1, 2009 from Capt. Henry.
(See dkt. entry
no. 48-10, Stanzione Decl., Ex. J, Toms River Police Dep’t Mem.)
This memorandum describes procedures for responding to critical
incidents.
Specifically, the initial responding officer on the
scene is designated as the incident commander and becomes the
primary contact for managing incoming resources.
(Id.)
That
officer remains in command until relieved by a supervisor.
(Id.)
The supervisor on the scene is required, inter alia, to generate a
“[c]omplete list of all officers on scene.”
3
(Id.)3
In addition to the foregoing, the parties have submitted, as
part of the summary judgment record, reports of purported experts
regarding the constitutionality and propriety of Defendants’
conduct in this matter. (See dkt. entry no. 46-3, Rizzo Decl., Ex.
A, Manning Report; id., Ex. B, Celeste Report.) These reports do
not add anything factual to the record.
The question of the
propriety of Defendants’ conduct is an issue of law to be decided
by the Court “rather than by expert opinion.” See Carswell v.
Borough of Homestead, 381 F.3d 235, 244 (3d Cir. 2004). Therefore,
the Court will disregard these reports.
25
II.
PROCEDURAL HISTORY
Plaintiffs initially filed a complaint in the United States
District Court for the District of New Jersey on June 1, 2011.
(See dkt. entry no. 1.)
That complaint was amended, and before the
Court is Plaintiffs’ amended complaint (hereinafter “the
Complaint”), which was filed on June 10, 2013.
41, Am. Compl.)
(See dkt. entry no.
The Complaint names as defendants:
Township of
Toms River; Toms River Police Department; Scott Kenny; Pat Jacques;
Ed Mooney; Jim Carey; Chris McDowell; P.J. Gambardella; Kevin
Scully; and the State Police.
(See id.)
Based on the Canales/Valcourt stop and the Williams stop, the
Complaint asserts several causes of action, including:
(1)
claims under 42 U.S.C. § 1983 for violations of the
Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments
of the United States Constitution (id. at ¶¶ 33-35);
(2)
claims under 42 U.S.C. § 1983 based on the alleged
failure to train, supervise, discipline, and control the
individual defendants, thereby demonstrating a “policy
of misconduct” (id. at ¶¶ 39-47);
(3)
claims under 42 U.S.C. § 1985 for conspiracy to deprive
Plaintiffs of their rights protected by the United
States Constitution by using unlawful and excessive
force (id. at ¶¶ 36-38); and
(4)
several state claims, such as assault, malicious
prosecution, false arrest, and negligence (id. at ¶¶ 4872).
Township Defendants cross-claimed against the State Police for
contribution and indemnification if they are held liable to
26
Plaintiffs.
(See dkt. entry no. 42, Twp. Defs.’ Answer, Cross-
Claims, & Counterclaim.)
They also counterclaimed against
Plaintiffs arguing that the Complaint was frivolous and seeking
attorneys’ fees under 42 U.S.C. § 1988.
(See id.)
All of the defendants have moved for summary judgment against
Plaintiffs.
(See dkt. entry no. 43, Twp. Defs.’ Mot. for Summ. J.;
dkt. entry no. 46, State Police Mot. for Summ. J.)
The State
Police also moved for summary judgment as to the cross-claims
asserted against them by the Township Defendants.
(State Police
Mot. for Summ. J.)
III. SUMMARY JUDGMENT STANDARD
Motions for summary judgment are governed by Rule 56, which
provides that the Court “shall grant 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. 56(a).
The movant has the initial burden of proving
the absence of a genuinely disputed material fact relative to the
claims in question.
331 (1986).
Celotex Corp. v. Catrett, 477 U.S. 317, 323,
Material facts are those “that could affect the
outcome” of the proceeding, and “a dispute about a material fact is
‘genuine’ if the evidence is sufficient to permit a reasonable jury
to return a verdict for the non-moving party.”
Lamont v. New
Jersey, 637 F.3d 177, 181 (3d Cir. 2011) (citing Anderson v.
27
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Celotex Corp., 477
U.S. at 322-23).
If the movant demonstrates an absence of genuinely disputed
material facts, then the burden shifts to the non-moving party to
demonstrate, through specific facts, the existence of at least one
genuine issue for trial.
See Matsushita Elec. Indus. Co., Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 586–87 (1986); Williams v.
Borough of W. Chester, 891 F.2d 458, 460–61 (3d Cir. 1989).
Summary judgment is “proper if, viewing the record in the light
most favorable to the non-moving party and drawing all inferences
in that party’s favor, there is no genuine issue of material fact
and the moving party is entitled to judgment as a matter of law.”
United States ex rel. Kosenske v. Carlisle HMA, Inc., 554 F.3d 88,
94 (3d Cir. 2009).
“[A]t the summary judgment stage the judge’s
function is not himself to weigh the evidence and determine the
truth of the matter but to determine whether there is a genuine
issue for trial.”
Anderson, 477 U.S. at 249.
IV.
A.
PARTIES’ ARGUMENTS
Township Defendants’ Arguments
Township Defendants argue that Plaintiffs have failed to
establish the liability of the Township of Toms River and the Toms
River Police Department (collectively “Toms River”) based on a
municipal custom or policy.
(Dkt. entry no. 43-3, Twp. Defs.’ Br.
28
in Supp. of Mot. for Summ. J. at 9.)
The burden is on Plaintiffs
to establish the policy or custom that violated their
constitutional rights, and such policy or custom cannot be based on
a single act.
(Id. at 10 (citing Fletcher v. O’Donnell, 867 F.2d
791, 793 (3d Cir. 1989); Gittlemacker v. Prasse, 428 F.2d 1, 3 (3d
Cir. 1970)).)
Plaintiffs have failed to present any facts that
would support their claim that Toms River had an official policy
(or that there existed a custom or practice) to violate a citizen’s
constitutional rights.
(Id. at 11-12.)
Nor can Plaintiffs show
that the police officers involved had policymaking authority that
could give rise to municipal liability.
(Id. at 12.)
Finally,
Plaintiffs did not establish that the municipality failed to train
and supervise its employees and that such failures rose to a level
of deliberate indifference.
(Id. at 12-13.)
Township Defendants further contend that the individual police
officers are entitled to qualified immunity.
(Id. at 14.)
First,
the stops themselves did not violate the constitutional rights of
Plaintiffs because: (a) a police officer was murdered earlier in
the day; (b) Plaintiffs were at the Pub, which is part of the
Hotel, and the police were notified that the suspect was possibly
staying at the Hotel; and (c) Plaintiffs matched the description of
the suspected shooter.
(Id. at 15-16.)
Secondly, with respect to
the allegations of excessive force at the Canales/Valcourt stop,
29
the Township Defendants assert that the Toms River officers present
at the scene were not involved in the removal of Canales from his
vehicle.
(Id. at 16.)
Sgt. Kenny and Officer Jacques, the Toms
River personnel at the stop, were wearing tactical gear, but
Canales and Valcourt testified that they were removed from the
vehicle by plain-clothes officers.
(Id. at 16-17.)
With respect
to the Williams stop, nothing in the record suggests that any force
was used against Williams.
(Id. at 18.)
Rather, he was taken from
his vehicle, patted down, and then asked a series of questions.
(Id. at 17.)
injuries.
He was not handcuffed, and he did not suffer any
(Id. at 17-18.)
Township Defendants also contend that they should be granted
summary judgment on the 42 U.S.C. § 1985 claims against them for
conspiracy to deprive Plaintiffs of their federal rights because
Plaintiffs have failed to allege or establish discriminatory animus
or a conspiratorial agreement.
(Id. at 19-20.)
Finally, Township
Defendants argue that summary judgment should be granted on the
state law claims for the same reasons that the federal claims
cannot succeed –- namely, that the Toms River officers did not have
any physical contact with Plaintiffs and that Plaintiffs failed to
demonstrate any pattern of prior, similar events.
30
(Id. at 21-22.)
B.
New Jersey State Police’s Arguments
The State Police assert that the State Police itself and the
unnamed individual officers in their official capacities, as arms
of the State of New Jersey, are entitled to sovereign immunity, and
thus, the claims against them for money damages are barred by the
Eleventh Amendment of the United States Constitution.
(Dkt. entry
no. 46-1, State Police’s Br. in Supp. of Mot. for Summ. J. at 4-5
(citing Will v. Mich. Dep’t of State Police, 491 U.S. 58, 70-71
(1989)).)
The State of New Jersey has not waived this immunity for
suits in federal court.
(Id. at 6.)
Moreover, the State Police
argue that state officials in their official capacities and the
state itself are not “persons” for purposes of 42 U.S.C. § 1983.
(Id. at 9-11 (citing Will, 491 U.S. at 64).)
The State Police further seek summary judgment on Plaintiffs’
claims against it under section 1983 premised on respondeat
superior liability because the statute precludes recovery on this
theory.
(Id. at 11.)
The standard for imposing liability premised
on the supervisor’s failure to train is “extremely high” and
requires the plaintiff to show that the supervisor’s actions were
the moving force behind the violation.
(Id. at 12-14.)
The State
Police argue that, because Plaintiffs have no facts to support the
claim for supervisory liability beyond conclusory statements, it
31
should be granted summary judgment on the claims for supervisory
liability against the State Police.
(Id. at 14-15.)
The State Police conclude that it should be granted summary
judgment on the state constitutional and tort claims asserted
against it because Plaintiffs have failed to prove “beyond mere
assumption and surmise” that any of the identified law enforcement
officers were in fact members of the State Police.
(Id. at 15.)
Because Plaintiffs cannot establish that the unidentified officers
were members of the State Police, the State Police cannot be held
liable for failure to train or discipline such officers merely
based on a theory of respondeat superior or vicarious liability.
(Id.)
C.
Plaintiffs’ Arguments
Plaintiffs argue that there are various issues of material
fact that preclude the granting of summary judgment.
(Dkt. entry
no. 48, Pls.’ Br. in Opp’n of Mot. for Summ. J. at 7.)
For
example, Valcourt identified Sgt. Kenny as the individual who
assaulted Canales, which contradicts the Township Defendant’s
assertion that Toms River officers did not have physical contact
with Plaintiffs.
(Id.)
Even if Sgt. Kenny was not the aggressor,
Plaintiffs assert that “Sgt. Kenny directed and was responsible for
unwarranted conduct of all officers.”
(Id.)
Furthermore,
Plaintiffs argue that the purported basis for the motor vehicle
32
stop -– that they matched the description of the suspect -– is
questionable because the suspect was nineteen years old, and all
Plaintiffs were between the ages of thirty-three and forty-four.
(Id.)
Plaintiffs contend that the only characteristic they share
in common with the suspect is ethnicity –- African American.
(Id.)
Plaintiffs argue that they have successfully asserted
municipal liability against Toms River based on its failure to
train or supervise its employees with respect to high-risk motor
vehicle stops.
(Id. at 8-9.)
The Toms River Police Department has
a training brief addressing the protocol for high-risk motor
vehicle stops, and Capt. Henry sent a memorandum to all police
personnel addressing the protocol for critical incident response.
(Id. at 9-10.)
The officers did not follow these protocols in the
stops of Plaintiffs.
(Id. at 9-10.)
Specifically, the training
brief directs officers to give a series of commands to motor
vehicle occupants on how to exit the vehicle, but the officers at
the Canales/Valcourt stop did not give these commands and instead
pulled Canales out of the vehicle.
(Id. at 9.)
The memorandum
directs the incident commander -- the first responding officer on
the scene and thus Sgt. Kenny at the Canales/Valcourt stop –- to
gather a complete list of all officers on the scene, but Sgt. Kenny
neglected to obtain this information.
33
(Id. at 10.)
Plaintiffs contend that the individual Toms River police
officers are not entitled to qualified immunity because they failed
to protect Plaintiffs from bodily harm.
(Id. at 11-12.)
They
argue that it is no defense that the Toms River officers at the
Canales/Valcourt stop were not involved in the removal of Canales
from the car because (a) Valcourt testified that Sgt. Kenny in fact
removed Canales, which creates a fact issue, and (b) the stop was
made under Sgt. Kenny’s control.
(Id. at 13-16.)
Plaintiffs also
assert that “more than enough force” was used in the Williams stop,
and it is undisputed that the Williams stop “would have traumatized
any individual.”
(Id. at 15.)
With respect to the section 1985 conspiracy claim, Plaintiffs
argue that they were racially profiled, which supports a claim of a
conspiracy motivated by discriminatory animus.
(Id. at 16-17.)
As
to the state-law claims, Plaintiffs argue that Defendants are not
entitled to good faith immunity under state law (N.J.S.A. 59:3-3)
because the question of good faith is typically one for the finder
of fact.
(Id. at 18-19.)
They assert that summary judgment should
be denied on these state-law claims for the same reasons it should
be denied on the federal claims.
(Id. at 19-21.)
Finally,
Plaintiffs argue that the State Police are not entitled to summary
judgment because there is an issue of material fact as to whether
34
they were involved in the stops.
created by Toms River.
D.
(Id.)
This issue of fact was
(Id. at 22.)
Township Defendants’ Reply
The Township Defendants argue that a single incident is
generally insufficient to support a failure to train/supervise
claim, and Plaintiffs have not identified other, similar incidents.
(Dkt. entry no. 50, Twp. Defs.’ Reply Br. at 2.)
With regard to
Plaintiffs’ arguments against qualified immunity based on the
alleged dispute of fact as to whether Sgt. Kenny physically removed
Canales from the vehicle, the Township Defendants argue that “the
record is overwhelmingly clear that the Toms River officers at the
various scenes were dressed in ‘SWAT’ gear,” and thus, the Toms
River officers were not involved in the removal of Canales from the
vehicle.
E.
(Id. at 3.)
State Police’s Reply
The State Police argue that Plaintiffs conceded that their
belief in the involvement of the State Police in the
Canales/Valcourt stop is based only on representations of Toms
River personnel. (Dkt. entry no. 51, State Police Reply Br. at 12.)
However, the testimony of the Toms River officers is clear
that they were merely assuming that the plain-clothes officers were
State Police officers.
(Id. at 2-3.)
35
These conclusory and
assumptive statements are not based on personal knowledge and are
not admissible testimony at trial.
V.
A.
(Id. at 4.)
ANALYSIS
Liability of Government Actors
There are three groups of government actors that are
defendants in this case: (1) the State Police; (2) the individual
municipal defendants; and (3) the municipality –- the Township of
Toms River.
There are different standards governing the liability
of these three different groups of defendants in federal court.
1.
The New Jersey State Police
The State Police as an entity of the State of New Jersey is
entitled to state-sovereign immunity under the Eleventh Amendment.
The Eleventh Amendment provides, “The judicial power of the United
States shall not be construed to extend to any suit in law or
equity, commenced or prosecuted against one of the United States by
citizens of another state, or by citizens or subjects of any
foreign state.”
U.S. Const. amend. XI.
With a few exceptions, the
Eleventh Amendment prevents a state entity from being a defendant
in a lawsuit.
Congress can abrogate state-sovereign immunity through an
unequivocal expression, or a state can waive its own immunity to
suit.
Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense
Bd., 527 U.S. 666, 670 (1999).
But Congress did not abrogate
36
state-sovereign immunity in section 1983.
U.S. 159, 169 n.17 (1985).
Kentucky v. Graham, 473
And the State of New Jersey has not
waived its sovereign immunity in federal courts.
Lassoff v. New
Jersey, 414 F.Supp.2d 483, 488 (D.N.J. 2006) (dismissing claims
asserted against the New Jersey State Police and its officials in
their official capacities as barred by the Eleventh Amendment).
Thus, none of these exceptions are present in this case.
In addition to these immunity issues, states and state
officials in their official capacities, are not “persons” for
section 1983 purposes.
Will, 491 U.S. at 64-65.
Therefore, the
Court will grant summary judgment to the State Police as to all
direct claims and cross-claims.
Plaintiffs have also asserted claims against unnamed
individual officers of the New Jersey State Police.
Claims against
the individual officers in their individual capacities would not be
barred by the Eleventh Amendment.
Lassoff, 414 F.Supp.2d at 489.
However, following ample discovery, Plaintiffs have not been able
to identify any individual State Police officers.
The belief that
such officers were present at the stops arises only from the call
information log transcript (which does not identify any individual
officers) and from speculation by Toms River officers during their
depositions.
Because Plaintiffs have failed to identify any
37
individual State Police officers during discovery, Plaintiffs’
claims against these unnamed officers cannot proceed.
2.
The Individual Toms River Officers
The individual Toms River police officers have all asserted
that they are protected by the doctrine of qualified immunity.
“Qualified immunity is intended to shield government officials
performing discretionary functions, including police officers,
‘from liability from civil damages insofar as their conduct does
not violate clearly established statutory or constitutional rights
of which a reasonable person would have known.’”
Kopec v. Tate,
361 F.3d 772, 776 (2004) (quoting Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982)).
Qualified immunity is not merely a defense from
liability but is also immunity from the lawsuit itself.
Katz, 533 U.S. 194, 200 (2001).
Saucier v.
For this reason, the United States
Supreme Court has urged lower courts to resolve it as early as
possible in the litigation.
Id. at 200-01.
The defendant government official bears the burden of
establishing the right to qualified immunity.
776.
Kopec, 361 F.3d at
In determining the applicability of qualified immunity,
courts must “ask: (1) whether the facts alleged by the plaintiff
show the violation of a constitutional right, and (2) whether the
law was clearly established at the time of the violation.”
38
Kelly
v. Borough of Carlisle, 622 F.3d 248, 253 (3d Cir. 2010)
[hereinafter “Kelly I”] (citing Saucier, 533 U.S. at 201).4
“For a constitutional right to be clearly established, its
contours must be sufficiently clear that a reasonable official
would understand that what he is doing violates that right.”
Hope
v. Pelzer, 536 U.S. 730, 739 (2002) (internal quotation marks and
citation omitted).
“This inquiry ‘must be undertaken in light of
the specific context of the case.’”
Kelly I, 622 F.3d at 253
(quoting Saucier, 533 U.S. at 201).
The Court of Appeals for the
Third Circuit “has adopted a broad view of what constitutes an
The United States Supreme Court had initially intended for
these inquiries to be resolved sequentially. A determination that
the first inquiry was not satisfied –- i.e., that the facts alleged
viewed in the light most favorably to the plaintiff would not
violate a constitutional right –- would end the analysis, and the
official would be entitled to immunity. See Saucier, 533 U.S. at
201; Kopec, 361 F.3d at 776. A court would only inquire as to
whether the right was “clearly established” if the first step was
answered affirmatively and there were a violation of constitutional
rights. Saucier, 533 U.S. at 201. However, the Court later ruled
that judges are “permitted to exercise their sound 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 Court stated a preference for the order it initially
articulated in Saucier, but explained that some circumstances might
warrant answering the “clearly established” inquiry first. See id.
For example, “[t]here are cases in which it is plain that a
constitutional right is not clearly established but far from
obvious whether in fact there is such a right.” Id. at 237. The
Court believed that allowing the second inquiry to be resolved
first in some cases would avoid an unnecessary academic exercise by
judges and the unnecessary expenditure of scarce judicial
resources. Id.
4
39
established right of which a reasonable person would have known.”
Kopec, 361 F.3d at 778 (quoting Burns v. Cnty. of Cambria, 971 F.2d
1015, 1024 (3d Cir. 1992)).
“‘[O]fficials can still be on notice
that their conduct violates established law even in novel factual
circumstances,’ as long as the law gave the defendant officer ‘fair
warning’ that his conduct was unconstitutional.”
Kelly I, 622 F.3d
at 259-60 (quoting Hope, 536 U.S. at 741).
“If the wrongfulness of the officer’s conduct would have been
clear,” a court must consider “whether the officer made a
reasonable mistake as to what the law requires.”
Carswell v.
Borough of Homestead, 381 F.3d 235, 242, 243 (3d Cir. 2004).
“[T]here are circumstances wherein a police officer’s violation of
a law may be within the bounds of reason, even though the law in
question can be said, from the comfort of an armchair, to be
‘clearly established.’”
Kelly v. Borough of Carlisle, Nos. 12-
4020, 12-4021, 2013 WL 6069275, at *4 (3d Cir. Nov. 19, 2013)
[hereinafter “Kelly II”].
“The qualified immunity standard gives
ample room for mistaken judgments by protecting all but the plainly
incompetent or those who knowingly violate the law.”
Kelly I, 622
F.3d at 254 (quoting Gilles v. Davis, 427 F.3d 197, 203 (3d Cir.
2005)).
“[Q]ualified immunity may be granted when there is a
breakdown in the legal fiction that reasonably competent police
officers know every clearly established law.”
40
Kelly II, 2013 WL
6069275, at *6.
However, the Third Circuit has cautioned that
“[i]f the law was clearly established, the immunity defense
ordinarily should fail, since a reasonably competent public
official should know the law governing his conduct.”
Kelly I, 622
F.3d at 254 (quoting Harlow, 457 U.S. at 818-19).
“[Q]ualified immunity is an objective question to be decided
by the court as a matter of law.”
Carswell, 381 F.3d at 242.
However, the jury “determines disputed historical facts material to
the qualified immunity question.”
Id.
A district court may employ
special interrogatories to the jury for this purpose.
Id.
Once
the jury resolves the disputed facts, “[t]he court must make the
ultimate determination on the availability of qualified immunity as
a matter of law.”
Id.; see also Harvey v. Plains Twp. Police
Dep’t, 421 F.3d 185, 194 n.12 (3d Cir. 2005).
For each claim, the Court will apply this framework to each
individual defendant to the extent the claims are asserted against
him and determine whether that defendant is entitled to immunity.
3.
The Municipality
A municipality, like Toms River, may not be held liable under
section 1983 on a vicarious liability theory.
Soc. Servs., 436 U.S. 658, 694 (1978).
Monell v. Dep’t of
Rather, “it is when
execution of a government’s policy or custom, whether made by its
lawmakers or by those whose edicts or acts may fairly be said to
41
represent official policy, inflicts the injury that the government
as an entity is responsible under § 1983.”
Id.
Municipal liability may be established by an official policy,
by a custom or practice, by the failure of decision makers to
adequately train employees, or by actions taken or decisions made
by a municipal employee who is responsible for establishing
municipal policy on relevant topics.
City of Canton v. Harris, 489
U.S. 378, 387 (1989); Monell, 436 U.S. at 694; Jiminez v. All Am.
Rathskeller, Inc., 503 F.3d 247, 250 (3d Cir. 2007).
However, “the
inadequacy of police training may serve as the basis for § 1983
liability only where the failure to train amounts to deliberate
indifference to the rights of persons with whom the police come
into contact.”
City of Canton, 489 U.S. at 388.
“[A] plaintiff must show that an official who has the power to
make policy is responsible for either the affirmative proclamation
of a policy or acquiescence in a well-settled custom.”
v. Dubinon, 915 F.2d 845, 850 (3d Cir. 1990).
Bielevicz
However, this does
not necessarily require the plaintiff’s evidence to identify the
responsible decision maker, as “[p]ractices so permanent and well
settled as to have the force of law [are] ascribable to municipal
decisionmakers.”
Id. (internal quotation marks and citation
omitted).
42
“Once a § 1983 plaintiff identifies a municipal policy or
custom, he must ‘demonstrate that, through its deliberate conduct,
the municipality was the moving force behind the injury alleged.’”
Berg v. Cnty. of Allegheny, 219 F.3d 261, 276 (3d Cir. 2000)
(quoting Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown, 520 U.S.
397, 404 (1997)); see also Kelly I, 622 F.3d at 263.
If a
plaintiff identifies a policy that is itself unconstitutional, the
plaintiff need not additionally show a pattern of constitutional
deprivations.
See Brown v. City of Pittsburgh, 586 F.3d 263, 292
(3d Cir. 2009).
However, if “the policy or custom does not
facially violate federal law, causation can be established only by
‘demonstrat[ing] that the municipal action was taken with
deliberate indifference as to its known or obvious consequences.
A
showing of simple or even heightened negligence will not suffice.’”
Berg, 219 F.3d at 276 (quoting Bd. of Cnty. Comm’rs of Bryan Cnty.,
520 U.S. at 407).
Where a policy is not itself unconstitutional, the general
rule is that “[p]roof of a single incident of unconstitutional
activity is not sufficient to impose liability under Monell.”
Brown, 586 F.3d at 292-93, 296 (quoting City of Okla. City v.
Tuttle, 471 U.S. 808, 823-84 (1985)).
“Failure to adequately
screen or train municipal employees can ordinarily be considered
deliberate indifference only where the failure has caused a pattern
43
of violations.”
Berg, 219 F.3d at 276.
The Third Circuit has
stated that it is conceivably possible to maintain a failure-totrain claim without showing a pattern, but “the burden on the
plaintiff in such a case is high.”
Id. (noting Canton’s example of
arming officers without training them).
Moreover, the deficiency
in training must be closely related to the ultimate injury; merely
proving that the injury could have been avoided with better
training is insufficient to impose municipal liability.
Kline v.
Mansfield, 255 Fed.Appx. 624, 629 (3d Cir. 2007).
B.
The Claims
1.
Claims Brought Under Section 1983
The majority of Plaintiffs’ claims are brought under 42 U.S.C.
§ 1983.
In order to state a prima facie case pursuant to section
1983, “the plaintiff must demonstrate that a person acting under
the color of law deprived him of a federal right.”
at 268.
Berg, 219 F.3d
Section 1983 itself “is not a source of substantive rights
and does not provide redress for common law torts.”
Id.
Rather,
it is the vehicle through which plaintiffs can seek redress against
government officials for violations of federal statutory and
constitutional rights.
See id.
Township Defendants do not dispute that they were acting under
the color of state law at the time of the events in question.
The
issues before the Court are whether Plaintiffs’ rights were in fact
44
violated and whether Township Defendants can be held liable for
those violations.
a.
Eighth Amendment Claims
Plaintiffs assert that their rights to “protection from cruel
and unusual punishment secured by the Eighth Amendment” were
violated by Township Defendants’ conduct.
(Am. Compl. at ¶ 34.)
However, it is undisputed that Plaintiffs were never criminal
defendants and were not prosecuted in connection with these stops.
Therefore, the Eighth Amendment is not the relevant constitutional
guarantee.
As the United States Supreme Court has stated,
[T]he State does not acquire the power to punish with
which the Eighth Amendment is concerned until after it
has secured a formal adjudication of guilt in accordance
with due process of law. Where the State seeks to
impose punishment without such an adjudication, the
pertinent constitutional guarantee is the Due Process
Clause of the Fourteenth Amendment.
Ingraham v. Wright, 430 U.S. 651, 671 n.40 (1977).
Therefore, the
Court will grant Township Defendants’ motion for summary judgment
on the Eighth Amendment claims.
b.
Due Process Claims
Plaintiffs also argue that the actions of Township Defendants
deprived them of their rights to life, liberty, and property
without due process of law.
(Am. Compl. at ¶ 34.)
However, “when
government behavior is governed by a specific constitutional
amendment, due process analysis is inappropriate.”
45
Berg, 219 F.3d
at 268.
Plaintiffs here challenge the constitutionality of the
stops and the force used in executing the stops, which is governed
by the Fourth Amendment.
See Graham v. Connor, 490 U.S. 386, 394
(1986) (stating that section 1983 claims regarding investigatory
stops and excessive force claims in the context of such stops are
“most properly characterized as [claims] invoking the protections
of the Fourth Amendment”).
Therefore, the Court will grant
Township Defendants’ motion for summary judgment as to Plaintiffs’
due process claims.
c.
Sixth Amendment Claims
Plaintiffs allege that Township Defendants’ actions also
violated their Sixth Amendment right “to be informed of the nature
and cause of the accusation against them.”
(Am. Compl. at ¶ 34.)
However, as the Court has stated with regard to the Eighth
Amendment claims, Plaintiffs were never criminally charged or
prosecuted.
As a result, the protections afforded by the Sixth
Amendment are not applicable.
See Kelly v. Borough of Sayreville,
107 F.3d 1073, 1076 (3d Cir. 1997) (affirming the district court’s
dismissal of the plaintiff’s Sixth Amendment claim because the
plaintiff was “not a criminal defendant” and thus those protections
were not applicable).
The Court will grant summary judgment to
Township Defendants on the Sixth Amendment claims as well.
46
d.
Fourth Amendment Claims
The crux of actions alleged in the Complaint fall within the
ambit of the Fourth Amendment.
The Court will address the
constitutionality of (1) the stops; (2) the government officials’
conduct during the stops; and (3) the amount of force used by the
officials.
i.
The Stops
The Fourth Amendment prevents “unreasonable searches and
seizures.”
U.S. Const. amend. IV.
The Third Circuit has adopted a
three-step process for analyzing a plaintiff’s section 1983 Fourth
Amendment seizure claim:
First, we must determine whether he was seized for
Fourth Amendment purposes. If so, we next determine
whether that seizure violated the Fourth Amendment’s
prohibition against unreasonable seizures. Finally, if
there has been a Fourth Amendment violation, we must
determine which of the defendants, if any, may be held
liable for it.
Berg, 219 F.3d at 269.
(a)
Was there a seizure?
A person is seized for purposes of the Fourth Amendment “if he
is detained by means intentionally applied to terminate his freedom
of movement.”
Id.
Traffic stops result in temporary seizures of
both drivers and passengers.
Arizona v. Johnson, 555 U.S. 323, 333
(2009); Brendlin v. California, 551 U.S. 249, 263 (2007).
Defendants do not, nor could they, seriously challenge that
47
Plaintiffs were subjected to a seizure for Fourth Amendment
purposes when law enforcement officers pulled them over after they
left the Pub.
See United States v. Fogle, 515 F.Supp.2d 474, 483
(D.N.J. 2007) (“We find that in this case a Fourth Amendment
seizure of defendant occurred when the [vehicle] pulled over and
stopped [on the street] in response to police lights, and defendant
complied with the police directive over the PA system that he
remain in the vehicle.”)
(b)
Does the seizure violate the Fourth
Amendment?
The general rule is that, in order for a seizure to be
reasonable, “it must be effectuated with a warrant based on
probable cause.”
United States v. Robertson, 305 F.3d 164, 167 (3d
Cir. 2002) (citing Katz v. United States, 389 U.S. 347, 356-57
(1967)).
However, under Terry v. Ohio, 392 U.S. 1 (1968), in the
absence of a warrant, an officer may, without running afoul of the
Fourth Amendment, “conduct a brief, investigatory stop when the
officer has reasonable, articulable suspicion that criminal
activity is afoot.”
Robertson, 305 F.3d at 167 (quoting Illinois
v. Wardlow, 528 U.S. 119, 123 (2000)).
“This rule applies whether
the criminal activity is ongoing or has already been completed.”
Fogle, 515 F.Supp.2d at 482.
Reasonable suspicion is a lower “standard than probable cause
and requires a showing considerably less than preponderance of the
48
evidence.”
Wardlow, 528 U.S. at 123.
It “can be established with
information that is different in quantity or content than that
required to establish probable cause” and “can arise from
information that is less reliable than that required to show
probable cause.”
Alabama v. White, 496 U.S. 325, 330 (1990).
Courts must consider the “totality of the circumstances” in
determining the existence of reasonable suspicion.
F.3d at 167.
Robertson, 305
The analysis for reasonable suspicion is objective,
and the subjective intent of the officer is not relevant.
United
States v. Goodrich, 450 F.3d 552, 559 (3d Cir. 2006).
Notwithstanding that the reasonable suspicion standard is less
demanding than the standard for probable cause, reasonable
suspicion “unequivocally demands that ‘the detaining officers must
have a particularized and objective basis for suspecting the
particular person stopped of criminal activity.’”
United States v.
Brown, 448 F.3d 239, 247 (3d Cir. 2006) (emphasis added) (quoting
United States v. Cortez, 449 U.S. 411, 417-18 (1981)).
“[T]he
‘reasonable suspicion’ inquiry is highly fact-dependent in nature.”
Goodrich, 450 F.3d at 553.
Reasonable suspicion can arise from a combination of one or
more factors, including:
specialized knowledge and investigative inferences . . . ,
personal observation of suspicious behavior . . . ,
information from sources that have proven to be reliable,
and information from sources that –- while unknown to the
49
police –- prove by the accuracy and intimacy of the
information provided to be reliable at least as to the
details contained within that tip . . . .
United States v. Nelson, 284 F.3d 472, 478 (3d Cir. 2002) (internal
citations omitted).
While reasonable suspicion may arise from
information obtained from other sources, Adams v. Williams, 407
U.S. 143, 147 (1972), officers must have “some ‘reason to believe
not only that the [tipster] was honest but also that he was well
informed.’”
Brown, 448 F.3d at 250 (quoting White, 496 U.S. at
332).
Courts use a flexible standard assessing the reliability and
value of a tip in light of the totality of the circumstances.
United States v. Valentine, 232 F.3d 350, 354-57 (3d Cir. 2000)
(finding reasonable suspicion based on face-to-face tip in
conjunction with surrounding circumstances).
Circumstances that
may contribute to a finding of reasonable suspicion or can serve to
“corroborate an otherwise insufficient tip” include:
the
individual’s presence in a high crime area; the individual’s
presence on the street in late hours; nervous or evasive behavior;
and walking away or fleeing from police.
Brown, 448 F.3d at 251;
see also United States v. Navedo, 694 F.3d 463, 470-72 (3d Cir.
2012); Valentine, 232 F.3d at 356-57.
Moreover, when a tip is one
of the primary reasons for the stop, that tip “must provide a
particularized and objective basis for suspecting (1) the
50
particular persons stopped (2) of criminal activity.”
Goodrich,
450 F.3d at 560.
Courts are mindful that the determination of whether
reasonable suspicion exists is often made by officers on the fly
under exigent circumstances.
Robertson, 305 F.3d at 168.
As a
result, courts are “reluctant to ‘second-guess’ investigative
decisions made by officers in hot pursuit of criminal suspects.”
Id. at 167.
With respect to stops that have been made on the basis of a
third-party’s description of a suspect, the Third Circuit has
emphasized that the description must “satisfy the Fourth
Amendment’s ‘demand for specificity.’”
Brown, 448 F.3d at 247
(quoting Terry, 392 U.S. at 21 n.18.).
For example, the Third
Circuit has found that the description of “African-American males
between 15 and 20 years of age, wearing dark, hooded sweatshirts
and running south on 22nd Street” in Philadelphia, who were
approximately 5’8” and 6’ tall, was insufficient to give rise to
reasonable suspicion for a stop.
Id. at 247-48.
In contrast, a
description of “the two-toned color of the car, the presence of a
third brake light in the rear window, and five or more young,
white, male passengers” was found, along with other factors, to
support reasonable suspicion.
at 481 n.5).
Id. at 248 (citing Nelson, 284 F.3d
Moreover, when the individual detained does not
51
closely resemble the description of the suspect, that description
alone will not support a finding of reasonable suspicion.
See id.
(“Indeed, about the only thing Brown and Smith had in common with
the suspects is that they were black.”).
The Court in this case cannot conclude that the stops were
supported by reasonable suspicion.
Sgt. Kenny, Jacques, and Carey
did not know with certainty the purpose or justification for the
stops, but testified that they stopped Plaintiffs’ vehicles because
they were ordered to from the command post and assumed that the
command post thought that Plaintiffs might have some connection to
the suspect or the shooting.
Kenny Dep. at 7, 9, 43.)
(Carey Dep. at 8; Jacques Dep. at 7;
Capt. Henry testified that both the
Canales/Valcourt stop and the Williams stop were made because the
individuals involved matched the description of the suspect.
(Henry Dep. at 19.)
However, the record does not contain any
information as to what the description of the suspect was.
Nor
does it reveal how police developed the description of the suspect
or why police believed the shooter was in the vicinity of the
Hotel.
Moreover, the record does not address why police believed
that Plaintiffs matched the description of the suspect.
Therefore,
the Court is unable to evaluate the totality of the circumstances,
including the reliability of the command post’s basis of knowledge
52
and the specificity of any description.
See Brown, 448 F.3d at
247, 250-51; Valentine, 232 F.3d at 354-57.
Plaintiffs have argued that the vehicles of Canales and
Williams do not resemble one another, and therefore, they could not
have resembled any description of a vehicle utilized by the
suspect.
(Pls.’ Br. in Opp’n of Mots. for Summ. J. at 7.)
Furthermore, they have argued that the suspect was nineteen years
old, and Plaintiffs are between thirty-three and forty-four years
of age; thus, Plaintiffs could not have resembled the suspect.
(Id.)
They assert that the only trait they have in common with the
suspect is that they are African American (id.), which, if true,
would be inadequate to support reasonable suspicion.
F.3d at 248.
Brown, 448
Township Defendants have not responded to this line
of argument.
Given the absence of information relating to the source of the
description of the suspect and how Plaintiffs resembled this
description, the Court cannot conclude that these stops were based
on reasonable suspicion.
This is not to say conclusively that
reasonable suspicion did not support the stops.
Rather, the Court
cannot conclude that reasonable suspicion existed based on the
inadequate record here.
Thus, the Court will assume for the
purposes of analyzing liability for the stop that the stop in fact
violated Plaintiffs’ Fourth Amendment rights.
53
(c)
Who is liable?
Since the Court cannot conclude that reasonable suspicion
supported the stop, the Court will next determine who, if anyone,
is liable for the violation.
The individuals identified as
defendants in this case are Sgt. Kenny, Jacques, Mooney, Carey,
McDowell, Gambardella, and Det. Scully.
(See Am. Compl.)
However,
not one of these defendants is the individual responsible for
ordering the cars stopped and thus the individual who would have
needed reasonable suspicion for the stops.
The individual who
ordered the stops has not been identified, and the parties have
reached the close of discovery.
The Court finds that the individual defendants are entitled to
qualified immunity.
“Plausible instructions from a superior or
fellow officer support qualified immunity where, viewed objectively
in light of the surrounding circumstances, they could lead a
reasonable officer to conclude that the necessary legal
justification for his actions exists . . . .”
Myers v. Med. Ctr.
of Del., 28 Fed.Appx. 163, 167 (3d Cir. 2002) (quoting Bilida v.
McCleod, 211 F.3d 166, 174-75 (1st Cir. 2000)); see also United
States v. Hensley, 469 U.S. 221, 232 (1985) (stating that a stop
made in reliance on a flyer or broadcast issued without reasonable
suspicion violates the Fourth Amendment, but an officer making the
stop would be entitled to qualified immunity).
54
The facts here show that numerous officers from a variety of
law enforcement agencies were cooperating in the pursuit of an
armed suspect who had shot another police officer.
Their
activities in this pursuit were coordinated by the command posts.
The command posts, comprised of other officers, radioed officers in
the field and directed them to stop certain vehicles whose
occupants may have had involvement in the shooting.
It was
objectively reasonable for officers in the field to believe that
the officers at the command post had reasonable suspicion for the
stops.
Therefore, the individual defendants who made these stops
in reliance on the directives of their peers and superiors are
entitled to qualified immunity.
See Rogers v. Powell, 120 F.3d
446, 456 (3d Cir. 1997) (officer who had been inaccurately told by
another officer that there was a warrant for the plaintiff’s arrest
was immune from suit).
The Court will grant summary judgment to
Defendants Sgt. Kenny, Jacques, Mooney, Carey, McDowell,
Gambardella, and Det. Scully on Plaintiffs’ claim for a Fourth
Amendment violation based on the stop itself.
ii.
Conduct During the Stops
Plaintiffs also allege that the conduct of Township Defendants
during the stop also violated their constitutional rights.
The
conduct of law enforcement during the course of a stop can convert
an investigatory stop into an arrest for Fourth Amendment purposes.
55
See Baker v. Monroe Twp., 50 F.3d 1186, 1193 (3d Cir. 1995).
In
evaluating police conduct, a court will consider the “intrusiveness
of all aspects of the incident” and the reasonableness of the
officers’ conduct in terms of their concerns for safety.
See id.
The issue is that, once the officers’ conduct, in light of the
surrounding circumstances, becomes unreasonable and the stop is
transformed into an arrest, probable cause is required for the
detention.
The Court, in considering Township Defendants’ actions
throughout the course of the stop, is cognizant that “traffic stops
are ‘especially fraught with danger to police officers.’”
Johnson,
555 U.S. at 330 (quoting Michigan v. Long, 463 U.S. 1032, 1047
(1983)).
This risk of harm can be minimized “if the officers
routinely exercise unquestioned command of the situation.”
Id.
(quoting Maryland v. Wilson, 519 U.S. 408, 414 (1997)).
The Court will consider each type of Township Defendants’
alleged conduct during the stops to evaluate whether the actions
were reasonable.
(a)
Impact of the Toms River Police
Department Protocols
As an initial matter, the Court finds that the Toms River
training brief and critical response memorandum and any failure to
follow them do not, in and of themselves, amount to a violation of
Plaintiffs’ federally secured rights.
56
These protocols may aid in
the orderly administration of a stop by creating presumptions of
which officer is in charge of the stop and by encouraging that
officer to compile a list of all individuals on the scene.
e.g., Toms River Police Dep’t Mem.)
(See
But failure to abide by these
protocols does not necessarily result in a violation of a citizen’s
Fourth Amendment rights.
The manner in which they executed the
stop and their conduct during the stop may still be deemed
reasonable for constitutional purposes, even if not commendable.
See Ray v. Twp. of Warren, 626 F.3d 170, 178 n.14-15 (3d Cir. 2010)
(explaining that officer’s failure to follow internal protocol did
not inherently reflect a lack of reasonableness and stating,
“Although the officers acted within the bounds of reasonableness,
we cannot say that all of their actions were commendable.”).
Therefore, the Court finds that Township Defendants’ alleged
failure to follow department protocols did not amount to a Fourth
Amendment violation.
(b)
Display of Weapons
The Court will examine the officers’ display of guns during
the stops.
The undisputed facts show that Sgt. Kenny and Jacques
approached Canales’s vehicle with their guns drawn.
Similarly, it
is undisputed that Carey had a gun pointed at Williams during the
course of the stop.
It is unclear from the record whether McDowell
also had a gun pointed at Williams.
57
Williams testified that
McDowell also had a gun pointed at him, Carey testified that he was
not sure if McDowell also had a gun pointed at Williams, and the
record is silent as to McDowell’s testimony on the issue.
(See
Williams Dep. at 23; Carey Dep. at 13.)
There is no per se rule prohibiting the use of guns at an
investigatory stop.
Baker, 50 F.3d at 1193; United States v.
Trullo, 809 F.2d 108, 113 (1st Cir. 1987) (use of a gun at stop
does not automatically convert stop into an arrest requiring
probable cause).
The question for the Court is whether the use of
guns at the stop was reasonable under the circumstances.
Baker, 50
F.3d at 1193; see also United States v. Eisenberg, 807 F.2d 1446,
1451 (8th Cir. 1986) (“The officers may take such steps as are
reasonably necessary to protect their personal safety and to
maintain the status quo so that the limited purpose of the stop may
be achieved.” (internal quotation marks and citation omitted));
United States v. Hardnett, 804 F.2d 353, 357 (6th Cir. 1986)
(“Where the display or use of arms is viewed as reasonably
necessary for the protection of the officers, the courts have
generally upheld investigatory stops made at gunpoint.” (internal
quotation marks and citations omitted)).
The Court finds that the use of guns here was reasonable.
Township Defendants, having been ordered to stop the vehicles of
Canales and Williams as part of a manhunt for an armed suspect who
58
had shot a police officer, would have been concerned for their
safety in approaching these vehicles and their occupants.
See
Hardnett, 804 F.2d at 357 (finding that it was reasonable for
officers to display their weapons when approaching a vehicle that
officers had been told contained armed occupants).
Therefore, the
Court finds that Plaintiffs’ rights were not violated by the
officers’ display of their guns.
(c)
Removal from Vehicles
It is also undisputed that after the stop was made, all three
Plaintiffs were removed from the vehicles, Canales and Valcourt by
the plain-clothes officers and Williams by McDowell with Carey
right near him.5
This does not offend the Fourth Amendment.
Once
a vehicle has been lawfully stopped –- and the Court has already
concluded that the Township Defendants did not violate Plaintiffs’
rights with regard to the stop –- officers are permitted to remove
both the driver and passengers from the vehicle.
See Johnson, 555
U.S. at 331 (citing Wilson, 519 U.S. at 415; Pennsylvania v. Mimms,
434 U.S. 106, 110-11 (1977)).
Plaintiffs’ rights were not violated
by their removal from their vehicles.
(d)
Use of Handcuffs
The undisputed facts also show that Canales and Valcourt were
handcuffed during the stop.
As with the displaying of guns, the
5
The manner in which they were removed will be addressed
under the excessive force analysis.
59
fact that citizens are handcuffed in the course of an investigatory
stop does not necessarily turn that stop into an arrest.
Baker, 50
F.3d at 1193; United States v. Kapperman, 764 F.2d 786, 790 n.4
(11th Cir. 1985).
Once again, the touchstone is the reasonableness
of the police conduct under the circumstances.
at 790 n.4.
Kapperman, 764 F.2d
Here, Township Defendants believed that the occupants
of the vehicle in question may be connected to the shooting of a
police officer.
The officers needed to keep Plaintiffs at the
scene long enough for their identifications to be checked and for
Det. Scully and Det. Leskowski to arrive to see if Plaintiffs were
familiar to them.
Their concern for their safety during the
detention was reasonable given their belief that Plaintiffs could
be dangerous.
Therefore, it was not a violation of Plaintiffs’
rights for the officers to use handcuffs during the course of the
stop.
(e)
Duration of the Stops
The duration of a stop can, in the totality of the
circumstances, be too long to be justified as an investigatory
stop.
See United States v. Sharpe, 470 U.S. 675, 686 (1985).
In
determining “whether a detention is too long in duration to be
justified as an investigative stop, we . . . examine whether the
police diligently pursued a means of investigation that was likely
to confirm or dispel their suspicions quickly, during which time it
60
was necessary to detain” an individual.
Id. (finding that a
twenty-minute detention did not violate the defendant’s Fourth
Amendment rights).
The Supreme Court has cautioned that judges
“should not indulge in unrealistic second-guessing.”
Id.
While a
judge may be able to imagine an alternative means of accomplishing
the ends of the stop that would have been less intrusive, this does
not render the officers’ actions unreasonable.
Id. at 686-87.
“The question is not simply whether some other alternative was
available, but whether the police acted unreasonably in failing to
recognize or to pursue it.”
Id. at 687.
The exact durations of the stops in this case are disputed by
the parties.
Viewing the record in the light most favorable to
Plaintiffs, the Canales/Valcourt stop lasted thirty-five to forty
minutes according to Canales.
(Canales Dep. at 30.)
Valcourt
estimated twenty-five to thirty minutes (Valcourt Dep. at 32), but
for the purposes of the analysis the Court will accept Canales’s
version of the events.
Williams testified that he was stopped by
the police for approximately twenty minutes.
33.)
(Williams Dep. at
During this time, officers were attempting to identify the
men, ensure the safety of the situation, and await the arrival of
Det. Scully and Det. Leskowski to determine whether they recognized
the men.
Det. Scully and Det. Leskowski were driving to multiple
stops at multiple locations in their efforts to identify the
61
suspect.
They had special knowledge and experience about gang
members in the area, so their presence was important to the
operation.
Moreover, these stops were in the midst of a multi-
jurisdictional manhunt for the shooter of another police officer.
The Court is mindful of the difficulty in orchestrating an
operation of that size and finds that the officers were diligent in
accomplishing the purposes of the stops.
Whether the stops could
have been completed more quickly is not the inquiry.
The Court
concludes that the officers acted reasonably in terms of the length
of the detention, and Plaintiffs’ rights were not violated by the
duration of the stops.
iii. Pat Downs/Searches
Plaintiffs all allege that their persons were searched in some
manner by the officers.
Canales and Valcourt allege that the
officers went through their pockets to obtain their identification.
(Valcourt Dep. at 29; Canales Dep. at 25.)
Canales identified the
officer who took his wallet as the same plain-clothes officer who
had forcibly removed him from the car.
(Canales Dep. at 25.)
Valcourt simply testified that “somebody” went into his pockets.
(Valcourt Dep. at 29.)
Sgt. Kenny testified that their
identifications were obtained by the plain-clothes officers, but he
did not elaborate on how they were obtained.
62
(Kenny Dep. at 23.)
Williams also alleges that the officer who pulled him out of
the car –- who was McDowell based on Carey’s and McDowell’s
testimony –- searched him.
the search.
He does not elaborate on the manner of
(Williams Dep. at 22; see also McDowell Dep. at 12,
14; Carey Dep. at 15.)
The excerpted testimony of Carey and
McDowell that is part of the summary judgment record does not
address the accusation that they searched Williams.
However, it is
apparent from their testimony that McDowell was controlling the
stop, and Carey was providing cover, and thus, it is likely that,
under Williams’s version of the facts, McDowell performed the
search in Carey’s presence.
(See Carey Dep. at 15.)
The record
does not suggest that any other Defendants other than the
aforementioned were remotely involved in either of the alleged
searches.
The Court must evaluate whether Plaintiffs have stated a
constitutional violation with respect these alleged searches and,
if so, who, if anyone, can be liable.
In the course of an
investigative stop, like the ones at issue here, an officer may
constitutionally conduct “a reasonable search for weapons for the
protection of the police officer, where he has reason to believe
that he is dealing with an armed and dangerous individual,
regardless of whether he has probable cause to arrest the
individual for a crime.”
Terry, 392 U.S. at 27.
63
In circumstances
in which police have detained a suspect whom they were told was
armed and dangerous by other officers, courts have upheld the
limited search for weapons.
See, e.g., Robertson, 305 F.3d at 170;
Stokes v. O’Connor, Nos. 93-16, 93-208, 1994 WL 829066, at *10 (D.
Del. June 30, 1994) (where plaintiff was stopped during manhunt for
armed felon, police were justified in conducting a pat-down search
of plaintiff for weapons while they waited for other officials to
identify him).
However, “when a protective search goes beyond a search for
weapons and becomes a search for evidence, it is no longer valid
under Terry.”
Baker, 50 F.3d at 1194 (citing Minnesota v.
Dickerson, 508 U.S. 366 (1993)).
Where police have searched
through a detainee’s wallet and pocketbook, the Third Circuit has
determined this to be a “full-scale search[] for evidence, having
nothing to do with a limited Terry-frisk, and having no probable
cause justification.”
Id.
For the same reasons that officers in this case were permitted
to handcuff Plaintiffs and point guns at them, the officers at the
stops in question would have been justified in patting down
Plaintiffs to determine if they were armed.
However, the facts
viewed in the light most favorable to Plaintiffs suggest that these
searches may have gone beyond a limited Terry-frisk and were not
simply a search for weapons.
64
As in Baker, the officers in this case removed Canales’s and
Valcourt’s wallets from their pockets.
Sgt. Kenny’s testimony
suggests that after the individuals were handcuffed, he obtained
the drivers licenses from the plain-clothes officers.
Dep. at 22-23.)
(See Kenny
If Canales and Valcourt were handcuffed, it would
have been difficult for them to obtain their own identifications to
give to the police.
Rather, the officers would have had to
retrieve the identifications themselves.
Therefore, the Court
finds that, the facts viewed in the light most favorable to
Plaintiffs Canales and Valcourt indicate that the search of their
persons exceeded the permissible bounds of the Fourth Amendment.
The Court must determine who, if anyone, can be held
responsible for this violation.
The record reflects that the
plain-clothes officers performed the illegal search, while Jacques
and Sgt. Kenny were present.
The plain-clothes officers are not
named defendants in this action.
None of the individual defendants
in this case were responsible for the unconstitutional searches,
and thus, they are entitled to qualified immunity.
With respect to Williams, he alleges that after the officers
removed him from the car, the officer (likely McDowell based on
McDowell’s testimony) “told me to spread my legs and he searched me
at that time.”
(Williams Dep. at 22.)
The excerpts of Defendants’
testimony are silent as to whether Williams was searched and in
65
what manner.
The Court finds that Williams’s testimony alone is
insufficient to demonstrate that this search occurred or that it
exceeded the permissible bounds of Terry.
Moreover, Williams’s
statement does not disclose the nature of the search.
His
statement that he was searched is consistent with both a search
that complies with Terry –- a mere pat down of his clothing for
weapons –- as well as a more intrusive search that exceeds the
bounds of Terry.
In response to Township Defendants’ submissions
showing a lack of evidence on this claim, Williams bore the burden
of coming forward with factual references supporting his claim for
relief.
See Matsushita Elec. Indus. Co., Ltd., 475 U.S. at 586–87;
Williams, 891 F.2d at 460–61.
Williams had the opportunity to
elaborate on the nature of the search during his deposition.
Carey
and McDowell –- the officers who effectuated the stop of Williams –
- were also deposed, and Williams could have questioned them about
the alleged search and provided the Court with excerpts from those
depositions.
In spite of these opportunities, Williams failed to
provide evidence that would support a Fourth Amendment violation
based on the search of Williams’s person, other than his bare
allegation.
For these reasons, summary judgment is granted in favor of
Defendants as to the alleged searches of the Plaintiffs’ persons.
66
iv.
Car Search
The Court must also evaluate whether the alleged searches of
Plaintiffs’ cars violated the Fourth Amendment.
In Michigan v.
Long, 463 U.S. 1032 (1983), the Supreme Court held that, as an
extension of Terry, “the search of the passenger compartment of an
automobile, limited to those areas in which a weapon may be placed
or hidden, is permissible if the police officer possesses a
reasonable belief . . . that the suspect is dangerous and the
suspect may gain immediate control of weapons” when he re-enters
the vehicle.
Id. at 1049-50 (quoting Terry, 392 U.S. at 21).
However, the rationale of Long does not extend to protective
searches in trunks.
See Valance v. Wisel, 110 F.3d 1269, 1277-78
(7th Cir. 1997).
Valcourt testified that during the stop, the individuals
wearing tactical gear “proceeded to strip search the vehicle . . .
[l]ike open all the doors, the trunk, going under seats, glove
compartments.”
(Valcourt Dep. at 30.)
Sgt. Kenny and Jacques did
not know at the time of their depositions whether the car was
searched or whether the plain-clothes officers searched the
vehicle.
(Jacques Dep. at 23; Kenny Dep. at 23-24.)
Sgt. Kenny
testified that he performed a “cursory search from outside” the
vehicle to see if there were any other persons or weapons in plain
view.
(Kenny Dep. at 23.)
Williams also testified that the two
67
officers who initiated his stop –- likely Carey and McDowell based
on their testimony -– “proceeded to go through my entire vehicle.”
(Williams Dep. at 23.)
He elaborated, “They pulled everything out
of the dashboard, they pulled everything out of the backseat,
anything I had in a bag. . . . They went through my entire car.”
(Id. at 23-24.)
With respect to Williams, once again, the Court finds that the
evidence is insufficient to support a violation of the Fourth
Amendment.
First, Williams does not specifically state that his
trunk was searched.
His testimony suggests that the officers
performed a thorough search of the passenger compartment of the
car.
This search was permissible under Long.
Because Carey and
McDowell believed they were stopping someone who was involved with
the suspect in the officer shooting, they had reason to fear for
their safety once Williams returned to the car.
They were
permitted to search the passenger compartment of the car for
weapons under Long.
Williams did not provide the Court with
deposition excerpts of his questioning of McDowell and Carey about
this search and whether it extended to the trunk.
His bare
allegation is insufficient to support this claim.
As to the Canales/Valcourt stop, the Court finds that the
record, viewed in the light most favorably to Plaintiffs, suggests
that the car and its trunk were in fact searched by officers on the
68
scene.
Valcourt testified that the car was searched by officers in
tactical gear, and Sgt. Kenny and Jacques were not certain whether
the plain-clothes officers performed any search.
While the search
of the passenger compartment of the vehicle was proper under Long,
the search of the trunk as alleged by Valcourt exceeds the scope of
Long.
The facts viewed in the light most favorable to Canales
suggests that his Fourth Amendment rights were violated as to the
search of the trunk.6
Despite the Court’s finding that Canales’s rights were
potentially violated, once again, there is insufficient evidence in
the record to suggest that any of the named defendants are the
perpetrators.
Valcourt testified that the officers who searched
the car were in tactical gear, and he testified that Sgt. Kenny was
in plain clothes.
(Valcourt Dep. at 21, 30.)
Sgt. Kenny and
Jacques testified that they were both wearing tactical gear and
that they did not search the car and did not know whether the
plain-clothes officers did.
10-12, 23-24.)
(Jacques Dep. at 8, 23; Kenny Dep. at
To hold Sgt. Kenny and Jacques responsible based on
Valcourt’s testimony would allow Valcourt to contradict himself; he
stated that Sgt. Kenny was in plain clothes but that it was the
6
The car belonged to Canales, and thus, his rights, and not
Valcourt’s, would have been violated if the trunk were in fact
searched. See Rakas v. Illinois, 439 U.S. 128, 148 (1978) (search
of vehicle did not violate rights of passengers who were in vehicle
with the consent of the owner of the vehicle).
69
officers in tactical gear who searched his car.
Viewing these
facts in the light most favorable to Canales, a jury could not find
by a preponderance of the evidence that Sgt. Kenny and Jacques were
the individuals who searched his car.
As a result, Township
Defendants are entitled to qualified immunity, and the Court will
grant summary judgment with respect to the alleged automobile
searches.
v.
Excessive Force
The Court must next consider whether the manner in which the
stops were effectuated violated Plaintiffs’ constitutional rights – that is, whether the officers used excessive force during the
detention.
“To state a claim for excessive force as an unreasonable
seizure under the Fourth Amendment, a plaintiff must show that a
‘seizure’ occurred and that it was unreasonable.”
at 776 (quotation omitted).
Kopec, 361 F.3d
“The test of reasonableness under the
Fourth Amendment is whether under the totality of the
circumstances, ‘the officers’ actions are objectively reasonable in
light of the facts and circumstances confronting them, without
regard to their underlying intent or motivations.’”
Id. (quoting
Graham, 490 U.S. at 397).
While reasonableness for Fourth Amendment purposes is
typically a question for the jury, an officer can prevail on a
70
summary judgment motion if the court concludes that the use of
force, under the circumstances, was objectively reasonable.
Id. at
777; see also Abraham v. Raso, 183 F.3d 279, 290 (3d Cir. 1999)
(“[S]ince we lack a clearly defined rule for declaring when conduct
is unreasonable in a specific context, we rely on the consensus
required by a jury decision to help ensure that the ultimate legal
judgment of ‘reasonableness’ is itself reasonable and widely
shared.”)
In evaluating the reasonableness of the officer’s
conduct for excessive force claims, a variety of factors are
relevant, including:
the severity of the crime at issue, whether the suspect
poses an immediate threat to the safety of the officers
or others, [] whether he actively is resisting arrest or
attempting to evade arrest by flight[,] . . . the
possibility that the persons subject to the police
action are 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.
Kopec, 361 F.3d at 776-77.
Moreover, courts are cautioned to judge
reasonableness from the perspective of the officer on the scene,
who may be required to make split-second judgments.
U.S. at 396-97.
Graham, 490
If after conducting this analysis, a court
concludes that “the use of force is objectively unreasonable,
officers are not entitled to qualified immunity.”
Orr, 512 Fed.Appx. 242, 246 (3d Cir. 2013).
71
Christian v.
In Kopec v. Tate, 361 F.3d 772 (3d Cir. 2004), the plaintiff
alleged that the officer put handcuffs on him that were overly
tight and that the officer failed to respond for about ten minutes
to the plaintiff’s requests for the handcuffs to be loosened.
at 777.
Id.
Noting that the circumstances were “benign” and that the
officer was not tending to other people or matters at the time of
the requests, the court concluded that these facts, if credited,
would establish an excessive force claim.
Id.
In denying the
officer qualified immunity, the court stated that an arrestee’s
right “to be free from the use of excessive force in the course of
his handcuffing clearly was established [in 2000 when the officer]
acted in this case, and that a reasonable officer would have known
that employing excessive force in the course of handcuffing would
violate the Fourth Amendment.”
Id. at 778.
The focus of the excessive force analysis here is on the force
allegedly used against Canales when he was removed from the car and
handcuffed.
While Valcourt and Williams also assert that they
endured excessive force, the record does not support these claims
following ample discovery.
The Complaint alleges force against Valcourt because he was
“forcibly thrust . . . into the snow filled ground and then asked .
. . to get on his knees,” and then was lifted by his handcuffs.
(See Am. Compl. at ¶ 22.)
Yet none of Defendants testified that
72
Valcourt was thrust onto the snow-covered ground, and notably,
Valcourt’s testimony at his deposition did not suggest undue force.
He stated, “Then my door opens and I get pulled out of the car and
I get put on the ground and handcuffed,” but this does not indicate
a violent thrust onto the snowy ground.
(Valcourt Dep. at 24.)
Valcourt did not testify that he was lifted up by his handcuffs.
(Id. at 24-26.)
Similarly, while Williams testified that the
officers removed him from the car with “more than enough force”
(Williams Dep. at 22-23), there is no evidence that the officers
used excessive force against him other than his bare assertion.
Williams does not elaborate on what he meant by this.
Moreover,
McDowell testified that he simply asked Williams to exit the car.
(McDowell Dep. at 14.)
Williams’s allegation of “more than enough
force” is inadequate at this stage in the proceedings to support an
excessive force claim.
With respect to Canales, however, the Court finds that there
is a genuine issue of material fact as to whether Canales was
subjected to excessive force during the stop.
Canales and Valcourt
testified that, without identifying himself, the plain-clothes
officer pulled Canales out of the car and “slammed” him to the
ground.
(Canales Dep. at 20-21, 29-30; Valcourt Dep. at 20-22.)
Valcourt believed that the plain-clothes officer was Sgt. Kenny.
(Valcourt Dep. at 21.)
Canales also testified that the plain-
73
clothes officer said “Don’t [f***ing] move or I’ll blow your head
off.”
(Canales Dep. at 20.)
The plain-clothes officer handcuffed
him and left him on the ground for eleven minutes.
28.)
(Id. at 22,
Canales testified that when the plain-clothes officer allowed
him to get up from the ground, rather than directing him to get up,
the officer lifted him off the ground by his handcuffs and slammed
him onto the hood of the police car.
(Id. at 23-24, 28.)
Canales
explained that this act of lifting him up while his hands were
cuffed behind him injured his shoulder, and this injury has
interfered with his ability to perform daily activities.
(Id. at
31, 40-43.)
Sgt. Kenny, in contrast, denied that Canales was slammed on
the ground, and he did not remember Canales being lifted by his
handcuffs.
(Kenny Dep. at 20.)
He testified that based on where
he was standing, he could not see the passenger side of the vehicle
very well, which implies that he could see the driver side of the
vehicle.
(Id. at 20-21.)
He also explained that his attention was
called in several directions, including monitoring traffic, keeping
the scene safe, and seeing if the other officers needed assistance.
(Id. at 21.)
Jacques, on the other hand, testified that he could
not see if the driver (Canales) was pulled out of the car because
he was watching the passenger.
(Jacques Dep. at 16.)
74
While more force may be justified for a non-compliant
detainee, the record, viewed in the light most favorable to
Plaintiffs, indicates that Canales was, in fact, cooperative.
Jacques and Sgt. Kenny gave inconsistent testimony regarding
Canales’s demeanor when the stop was initiated.
Jacques testified
that Canales and Valcourt were cooperative, but Sgt. Kenny
testified that Canales was not compliant and was agitated and
defiant.
(Id. at 11; Kenny Dep. at 14.)
The Court accepts
Jacques’ testimony for the purposes of this motion, as it is more
favorable to Plaintiffs.
Viewing these facts in the light most favorable to Plaintiffs,
a jury could find that Canales was cooperative during the stop, but
nonetheless was ripped from his car and slammed to the ground by
the plain-clothes officer.
A jury could find that he was
handcuffed, and then lifted up by his handcuffs, thereby
permanently injuring his shoulder.
Considering the factors
articulated by the Third Circuit in Kopec, while the plain-clothes
officer here would have believed that Canales was a suspect in an
investigation of a severe crime (shooting of a police officer) and
that Canales was armed and dangerous, Canales was not actively
resisting his removal from the vehicle or the use of the handcuffs.
See Kopec, 361 F.3d at 776-77.
Moreover, there were several
officers on the scene, so the plain-clothes officer was not dealing
75
with several people all at once.
See id. at 777.
Notably, the
most painful use of force, the lifting of Canales up by his
handcuffs, was used after Canales was handcuffed and secured.
The
Court finds that an issue of fact exists as to whether Canales’s
right to be free from the use of excessive force was violated in
the course of his handcuffing and the lifting of Canales after he
was handcuffed.
The right to be free from excessive force in the
course of handcuffing was clearly established on the night in
question.
See id. at 778 (right to be free from excessive force in
course of handcuffing clearly established by 2000).
Sgt. Kenny and Jacques defend the claims against them by
arguing that they are not the individuals who had physical contact
with Canales, but rather it was the unknown plain-clothes officers.
The Court rejects this argument for two reasons.
First, Valcourt
testified that Sgt. Kenny was the plain-clothes officer, and the
Court must view the facts in the light most favorable to
Plaintiffs.
injury.
Thus, Sgt. Kenny may have directly inflicted the
And second, an officer may be directly liable under
section 1983 where he fails to intervene when a constitutional
violation by another officer takes place in his presence.
Mensinger, 293 F.3d 641, 650-51 (3d Cir. 2002).
Smith v.
This potential
liability for failing to intervene does not depend on the ranks of
the officers in question; the duty to intervene applies whether it
76
is a superior officer, a lower ranked officer, or an officer of the
same rank.
Id. at 651.
“However, an officer is only liable if
there is a realistic and reasonable opportunity to intervene.”
Id.
The Third Circuit has determined that this duty to intervene was
clearly established by 1995.
Garbacik v. Janson, 111 Fed.Appx. 91,
94 (3d Cir. 2004) (“[W]e clarified in 1995 that liability will lie
if an officer ‘had knowledge of and acquiesced in’ a § 1983
violation.”
(quoting Baker, 50 F.3d at 1190-91)).
Sgt. Kenny and Jacques were present when Canales was subjected
to the arguably unconstitutional conduct.
“If so, each defendant
may have had actual knowledge of the treatment of [the] plaintiff
by the other officers.”
See Christian, 512 Fed.Appx. at 245.
The
Court finds no evidence that Sgt. Kenny and Jacques attempted to
intervene in the treatment of Canales, which “does not rule out
possible acquiescence.”
See id.
Thus, there is a dispute of
material fact as to who inflicted the excessive force, whether Sgt.
Kenny and/or Jacques had knowledge of the excessive use of force by
the plain-clothes officer, and whether they had a “realistic and
reasonable opportunity to intervene.”
See Smith, 293 F.3d at 651.
Therefore, Sgt. Kenny and Jacques are not entitled to qualified
immunity on the claim of excessive force.
For these reasons, the Court will deny summary judgment on the
excessive force claim of Plaintiff Canales as to Defendants Sgt.
77
Kenny and Jacques.
As there is no evidence of excessive force by
any other defendants, the Court will grant summary judgment as to
all the other individual defendants.
e.
Equal Protection Claims
Plaintiffs also allege that Township Defendants violated their
right to “equal protection of the law.”
(Am. Compl. at ¶ 34.)
The
basis of this claim appears to be that they were racially profiled.
They have argued that the only thing they had in common with the
suspect was their race –- African American.
(Pls.’ Br. in Opp’n
Mot. for Summ. J. at 7.)
“To make an equal protection claim in the profiling context,
[the plaintiff is] required to prove that the actions of [law
enforcement] (1) had a discriminatory effect and (2) were motivated
by a discriminatory purpose.”
197, 205-06 (3d Cir. 2002).
Bradley v. United States, 299 F.3d
Proof of discriminatory effect
requires proof that the plaintiff is a member of a protected class
and that he “was treated differently from similarly situated
individuals in an unprotected class.”
Id. at 206.
In some cases,
discriminatory effect may be shown by “submitting statistical
evidence of bias.”
Id.
The record cannot support Plaintiffs’ equal protection claim
on the basis of racial profiling.
While it undisputed that
Plaintiffs, as African Americans, are members of a protected class,
78
see id., there is no evidence that they were treated any
differently than similarly situated members of an unprotected
class.
There is absolutely no evidence that had the suspect been a
white male, the police would have continued to stop African
American men leaving the vicinity of the Hotel instead of stopping
white men.
See Alvin v. Calabrese, 455 Fed.Appx. 171, 177-78 (3d
Cir. 2011).
Moreover, Plaintiffs have not submitted any
statistical evidence that could support their claim.
Therefore,
the Court will grant summary judgment on the equal protection
claim.
2.
Claims Against the Municipality
Plaintiffs have asserted various claims against Toms River in
this matter based on –- inter alia -– failure to exercise due care;
failure to properly train, discipline, restrain, and control
employees; and failure to take adequate precautions in the hiring
and retention of employees.
47.)
(See, e.g., Am. Compl. at ¶¶ 41, 45-
They allege that this demonstrates “a policy of condoning
misconduct” and that, “[g]iven the incident of January 14, 2011
involving Officer Christopher Matlosz and the reaction to same by
police officers, special training, supervision and control should
have been employed to prevent African Americans from being
subjected to inappropriate arrests and searches.”
46.)
79
(Id. at ¶¶ 45-
Following discovery, Plaintiffs cannot, beyond mere conclusory
allegations, establish an official policy, a custom or practice, or
a failure of decision makers to adequately train employees.
City of Canton, 489 U.S. at 387; Monell, 436 U.S. at 694.
See
Nor have
Plaintiffs come forward with evidence of a pattern of violations.
Berg, 219 F.3d at 276.
In fact, the record suggests that the
events of January 15, 2011 were anything but customary for Toms
River.
Numerous law enforcement agencies attempted to coordinate a
massive manhunt for a suspect who had shot another police officer.
Viewing the record in the light most favorable to Plaintiffs,
despite Defendants’ efforts at organization, there was some
disorder and confusion.
Yet Plaintiffs cannot show that this was
the result of any policy, custom, or failure to train on the part
of Toms River as opposed to the chaotic circumstances of the day.
At this stage in the litigation, Plaintiffs have not met their
burden, in response to Township Defendants’ submissions, of
demonstrating the presence of at least one disputed issue of fact
to support their Monell claims.
See Matsushita Elec. Indus. Co.,
Ltd., 475 U.S. at 586–87; Williams, 891 F.2d at 460–61.
The Court
will grant summary judgment on these claims.
3.
Conspiracy Claim Under 42 U.S.C. § 1985(3)
Plaintiffs have also asserted a claim for conspiracy under 42
U.S.C. § 1985(3) against Defendants Sgt. Kenny and Jacques, as well
80
as the unnamed State Police officers, based on the alleged
excessive use of force against them, most notably against Plaintiff
Canales.
Section 1985(3) provides in pertinent part:
If two or more persons in any State or Territory
conspire . . . , for the purpose of depriving, either
directly or indirectly, any person or class of persons
of the equal protection of the laws, or of equal
privileges and immunities under the laws; . . . the
party so injured or deprived may have an action for
the recovery of damages occasioned by such injury or
deprivation, against any one or more of the
conspirators.
An essential element under section 1985(3) is the existence of
a conspiracy.
See Farber v. City of Paterson, 440 F.3d 131,
134 (3d Cir. 2006) (citing United Bhd. of Carpenters & Joiners
v. Scott, 463 U.S. 825, 828-29 (1983)).
“To survive a motion
for summary judgment on [a] section 1985(3) claim, [the
plaintiff is] required to put forward facts that would allow a
reasonable factfinder to conclude that [the defendants] formed
a conspiracy to deprive him of his rights.”
Estate of Oliva
ex rel. McHugh v. New Jersey, 604 F.3d 788, 802 (3d Cir.
2010).
“[D]irect evidence of conspiracy is rarely available
and . . . the existence of a conspiracy must usually be
inferred from the circumstances.”
Maxberry v. Sallie Mae
Educ. Loans, 532 Fed.Appx. 73, 76 (3d Cir. 2013) (quoting
Capogrosso v. Supreme Ct. of N.J., 588 F.3d 180, 184 (3d Cir.
81
2009)), cert. denied, No. 13-7339, 2014 WL 210696 (U.S. Jan.
21, 2014).
Nonetheless, there must be “some factual basis to
support the existence of the elements of a conspiracy:
agreement and concerted action.”
Id. (quoting Capogrosso, 588
F.3d at 185).
The record is devoid of any evidence of direct or
circumstantial evidence of any conspiracy on the part of Sgt.
Kenny, Jacques and the plain-clothes officers.
See Livingston
v. Borough of Edgewood, 430 Fed.Appx. 172, 178-79 (3d Cir.
2011) (affirming lower court’s dismissal of conspiracy claims
where there was “insufficient evidence in the record to
establish the requisite ‘meeting of the minds,’ and therefore,
the existence of a conspiracy,” since the plaintiff failed to
proffer direct or circumstantial evidence “sufficient to a
reasonable finding of conspiratorial agreement or concerted
efforts” by the defendants).
Therefore, the Court will grant
summary judgment to Defendants on the conspiracy claim.
4.
State Law Claims
Plaintiffs have also asserted various state law claims.
The
claims against Toms River, include: negligence under a theory of
respondeat superior; negligence under theories of failure to train,
supervise, discipline, and control the individual defendants;
negligent hiring, retention, and deployment of dangerous employees;
82
malicious prosecution; and false arrest.
(Am. Compl. at ¶¶ 53-67.)
Plaintiffs assert claims for false arrest and malicious prosecution
against all the remaining individual defendants and additionally
allege intentional and negligent assault against Sgt. Kenny and
Jacques.
(Id. at ¶¶ 48-52, 68-72.)
These claims against Toms River and its employees are subject
to the limitations of the New Jersey Tort Claims Act (hereinafter
“Act”), N.J.S.A. 59:1-1 et seq.
See N.J.S.A. 59:1-2.
That Act
provides, in part, that “[n]o action shall be brought against a
public entity or public employee . . . unless the claim upon which
it is based shall have been presented in accordance with the
procedure set forth in this chapter.”
N.J.S.A. 59:8-3.
The Act
requires that, prior to filing a complaint in court, a prospective
plaintiff file a claim with either the Attorney General or the
department/agency responsible for the injury that details the
circumstances and the nature of the injury caused by the public
entity or its employees.
N.J.S.A. 59:8-4 to 59:8-7.
This notice
of claim “shall be presented as provided in this chapter not later
than the 90th day after accrual of the cause of action.”
59:8-8.
N.J.S.A.
The accrual date is generally the date on which the
alleged tort was committed.
Beauchamp v. Amedio, 164 N.J. 111, 117
(2000).
83
The filing of a timely notice of claim as a precondition to
filing a lawsuit is a jurisdictional requirement.
See Madej v.
Doe, 194 N.J. Super. 580, 588-89 (Super. Ct. 1984).
The
requirement applies to claims based on negligence as well as
intentional torts.
294-95 (2004).
Velez v. City of Jersey City, 180 N.J. 284,
The legislative goals underlying the notice
requirement are:
(1) to allow the public entity at least six months for
administrative review with the opportunity to settle
meritorious claims prior to the bringing of suit; (2) to
provide the public entity with prompt notification of a
claim in order to adequately investigate the facts and
prepare a defense; (3) to afford the public entity a
chance to correct the conditions or practices which gave
rise to the claim; and (4) inform the State in advance
as to the indebtedness or liability that it may be
expected to meet.
Beauchamp, 164 N.J. at 121-22 (internal quotation marks and
citations omitted).
In order to serve these goals, the Act only
allows the claimant to file suit “[a]fter the expiration of six
months from the date notice of claim is received.”
N.J.S.A. 59:8-
8.
The record here suggests that Plaintiffs did not satisfy the
procedural requirements of the Act.
(See Twp. Defs.’ Answer,
Cross-Claims, & Counterclaim, at Affirmative Defenses ¶¶ 12-13.)
Plaintiffs’ claims accrued on January 15, 2011, the date of the
underlying conduct, and thus, such notices of claims should have
been and were filed by mid-April 2011.
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The notice of claims were
filed by Plaintiffs with the Township of Toms River and the Toms
River Police Department as follows: by Canales on January 31, 2011;
by Valcourt on February 28, 2011; and by Williams on March 22,
2011.
(See dkt. entry no. 22, Pls.’ Br. in Opp’n to Ocean Cnty.
Prosecutor’s Office Mot. to Dismiss, Ex. A, Notices of Claims.)
However, Plaintiffs did not wait the requisite six months before
initiating a suit in this Court.
They initiated the suit on June
1, 2011, just over two months after the last plaintiff, Williams,
filed his notice of claim and only four months after the first
plaintiff, Canales, filed his notice of claim.
1.)
(See dkt. entry no.
Thus, the procedure dictated by the Act was not followed, and
Defendants’ Motion for Summary Judgment will be granted as to
Plaintiffs’ state law claims.7
VI.
CONCLUSION
For the reasons stated, and for good cause showing, the Court
will (1) grant the State Police’s Motion for Summary Judgment in
its entirety as to all direct claims and cross-claims; (2) deny the
Township Defendants’ Motion for Summary Judgment without prejudice
with respect to the excessive force claims by Plaintiff Canales
against Sgt. Kenny and Jacques under section 1983; (3) grant the
7
This grant of summary judgment is without prejudice. If
Plaintiffs are able to demonstrate compliance with the Act to the
Court, the Court is amenable to reconsidering this grant. However,
the Court cautions that if the parties revisit this issue, the
parties must adequately brief the issues relating to these state
law claims.
85
Township Defendants’ Motion for Summary Judgment without prejudice
on the state law claims; and (4) grant the remainder of the
Township Defendants’ Motion for Summary Judgment.
The Court will
issue an appropriate order and judgment.
s/ Mary L. Cooper
MARY L. COOPER
United States District Judge
Dated: February 20, 2014
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