GIAVANNA ROBERSON v. BOROUGH OF GLASSBORO; POLICE CHIEF FRANKLIN BROWN, JR.; DEPUTY CHIEF JOHN POLILLO; LIEUTENANT RYAN KNIGHT; SERGEANT BRUCE VIGLIOTTA; CORPORAL MIKE FANFARILLO; DETECTIVE JACK MANNING; OFFICER RICHARD HENRY; OFFICER THOMAS BRUYNELL, OFFICER SEAN AITKEN
CIV. NO. 1:20-02765
ALTAIF HASSAN v. BOROUGH OF GLASSBORO; POLICE CHIEF FRANKLIN BROWN, JR.; DEPUTY CHIEF JOHN POLILLO; LIEUTENANT RYAN KNIGHT; SERGEANT BRUCE VIGLIOTTA; CORPORAL MIKE FANFARILLO; DETECTIVE JACK MANNING; OFFICER RICHARD HENRY; OFFICER THOMAS BRUYNELL, OFFICER SEAN AITKEN
CIV. NO. 1:20-02769
UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY
November 5, 2021
Hon. Joseph H. Rodriguez
I. Background
The facts of this case are largely undisputed. Defendants are the Glassboro Police Department and police officers employed there. On Monday, October 1, 2018 around 4:30 p.m., Defendants Henry and Bruynell responded to a shoplifting incident at a T-Mobile retail store in the College Town Shopping Center in Glassboro, New Jersey (the “Shopping Center“). [Dkt. 17, SUMF ¶ 1].2 James Mitchell (“Mitchell“), a bystander in the shopping center, entered the store and informed Henry and Bruynell that “a male pointed a handgun at a vehicle in the complex and then got into the vehicle on the driver‘s side and drove away.” [SUMF ¶ 4]. Mitchell described the gunman‘s vehicle as a black Dodge Charger but did not provide the state or number on the vehicle‘s license plate or identify any other distinguishing features about the car. [Dkt. 17-4 at 3-4]. Mitchell then pointed at a black Dodge Charger as it drove through the parking lot and
Henry, Bruynell, and Mitchell exited the store as Henry advised other officers by radio of Mitchell‘s report. [SUMF ¶¶ 8-9]. Henry radioed that the Charger left the Shopping Center parking lot by travelling south on Donald Barger Boulevard. [Exh. D at 20:39:32-36]. Henry did not mention the driver‘s race or physical characteristics. [See id.]. Approximately thirty seconds later, Bruynell entered his patrol vehicle and drove toward Donald Barger Boulevard while Henry remained at the Shopping Center with Mitсhell.3 [SUMF ¶¶ 8-10; Dkt. 17-4 at 7]. As he turned south onto Donald Barger Boulevard, Bruynell stated that he “lost the direction” of the Charger and that he would “check the high school” located approximately two blocks south of the Shopping Center along Donald Barger Boulevard. [Exh. D at 20:40:28-34].
Defendant Aitken was in his patrol vehicle at a different end of the Shopping Center parking lot when he heard Henry‘s radio report. [SUMF ¶ 11]. Aitken saw a black Dodge Charger travelling south on Donald Barger Boulevard. Aitken followed the vehicle as it made a left onto Carpenter Street, which intersects with Donald Barger Boulevard approximately one-and-one-half blocks away from the Shopping Center. [SUMF ¶ 12; Dkt. 17-4 at 17]. Approximately seventy seconds after hearing Henry‘s initial report, and five seconds after Bruynell reported that he “lost the direction,” Aitken announced that he believed “that charger” was on “Carpenter.” [Exh. D at 20:40:38-44]. Hassan was driving this Dodge Charger and Roberson was a passenger.
Aitken followеd this Charger through traffic for several blocks along with Defendant Manning, who joined the pursuit in an unmarked police vehicle. [SUMF ¶ 13]. Aitken activated his overhead lights and sirens and ordered the Dodge Charger to stop. [SUMF ¶ 14]. The Charger ultimately stopped on a street on Rowan‘s campus, an area “heavily populated with students and pedestrians. [Dkt. 19 at 6-7]. Bruynell arrived at the scene shortly thereafter. [Dkt. 17-4 at 7]. Defendants Polillo, Knight, Vigliotta, Fanfarillo, and Manning all arrived at the scene as well. [SUMF ¶ 16; Dkt. 17-4 at 7]. Defendants Aitken, Bruynell, Manning, Fanfarillo, and Vigliotta drew their firearms and pointed them toward the Charger. [Compl. ¶ 19; Dkt. 17-4 at 20]. Aitken ordered the passengers of the Charger to exit the vehicle one-by-one.4 [SUMF ¶ 15]. Plaintiff and Roberson complied with orders and exited the vehicle. Vigliotta handcuffed Hassan and Roberson and placed them in separate police vehicles. [SUMF ¶ 17]. Plaintiffs do not allege, and video evidence does not show, that Defendants continued to point their weapons at Plаintiffs after Plaintiffs entered the police vehicles. Hassan consented to have his car searched. [SUMF ¶ 19]. Defendants searched the car, did not find a firearm, and released Hassan and Roberson. [SUMF ¶ 20]. The entire encounter lasted approximately thirty-four minutes.
Hassan and Roberson filed a complaint alleging excessive force in violation of Fourth Amendment rights under
II. Legal Standard
A court will grant a motion for summary judgment if there is no genuine issue of material fact and if, viewing the facts in the light most favorable to the non-moving party, the moving party is entitled to judgment as a matter of law. Pearson v. Component Tech. Corp., 247 F.3d 471, 482 n.1 (3d Cir. 2001) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)); accord
An issue is “genuine” if supported by evidence such that a reasonable jury could return a verdict in the nonmoving party‘s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is “material” if, under the governing substantive law, a dispute about the fact might affect the outcome of the suit. Id. In determining whether a genuine issue of material fact exists, the court must view the facts and all reasonable inferences drawn from those facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
The moving party has the initial burden to demonstrate the absence of a genuine issue of material fact. Celotex Corp, 477 U.S. at 323. Once the moving party has met this burden, the nonmoving party must identify, by affidavits or otherwise, specific facts showing that there is a
In deciding the merits of a party‘s motion for summary judgment, the court‘s role is not to evaluate the evidence and decide the truth of the matter, but to determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249.
III. Analysis
a. Plaintiffs’ § 1983 and NJCRA Claims
In general,
The NJCRA “is a state law corollary to
There is no dispute that Defendants acted under the color of state law when they ordered Plaintiffs to stop and exit their car at gunpoint. The only issue is whether Defendants violated Plaintiff‘s constitutional rights in doing so. Plaintiffs allege that Defendants “deprived Plaintiff[s] of their right to be free from excessive and unreasonable use of force under the Fourth and Fourteenth Amendment of the United States Constitution.”5 [Compl. ¶ 25]. Thus, the specific question before the Court is whether Defendants used excessive force and violated Plaintiffs’ Fourth Amendment rights when they pointed guns at and handcuffed Plaintiffs.
The right to be free from excessive force during a seizure emanates from the Fourth Amendment‘s prohibition against unreasonable seizures. Graham v. Connor, 490 U.S. 386, 394-95 (1989). “A seizure occurs only ‘when [a police officer], by means of physical force or show of authority, has in some way restrained the liberty of a citizen.‘” United States v. Crandell, 554 F.3d 79, 84 (3d Cir. 2009) (quoting Terry v. Ohio, 392 U.S. 1, 20 n.16 (1968). “Police officers are privileged to commit a battery pursuant to a lawful arrest, but the рrivilege is negated by the use of excessive force” that amounts to a violation of the arrestee‘s Fourth Amendment rights. Groman v. Twp. of Manalapan, 47 F.3d 628, 634 (3d Cir. 1995) (citing Edwards v. City of Phila., 860 F.2d 568, 572 (3d Cir. 1988)).
Use of force is excessive and therefore unconstitutional if it is “unreasonable.” Groman, 47 F.3d at 634; Curley, 298 F.3d at 279-80. Determining whether use of force is reasonable “requires careful attention to the facts and circumstances of each particular case, including the
the possibility that the persons subject to the police action are themselves violent or dangerous, the duration of the police officers’ 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.
McNeil v. City of Easton, 694 F. Supp. 2d 375, 392 (E.D. Pa. 2010) (citing Estate of Smith v. Marasco, 430 F.3d 140, 150 (3d Cir. 2005)). Courts must weigh these factors objectively and “from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396-97 (citations omitted).
“[T]he use of drawn guns may give rise to a Fourth Amendment excessive force claim.” Donahue v. City of Hazleton, Pa., No. 3:14-CV-01351, 2020 WL 4461240, at *3 (M.D. Pa. Apr. 13, 2020), report and recommendation adopted sub nom. Donahue v. City of Hazleton, No. CV 3:14-1351, 2020 WL 4445988 (M.D. Pa. Aug. 3, 2020) (citing Baker v. Monroe Twp., 50 F.3d 1186, 1193 (3d Cir. 1995)). However, “[t]here is no per se rule regarding when the use of drawn guns and handcuffs prior to a formal arrest would constitute excessive force. Rather, the use of guns and handcuffs ‘must be justified by the circumstances.‘” Pikel v. Garrett, 55 F. App‘x 29, 32 (3d Cir. 2002) (quoting Baker, 50 F.3d at 1191-95).
Defendants concede that they seized Plaintiffs but argue that they are entitled to summary judgment because the seizure was lawful. Defendants first argue that they had probable cause to arrest Plaintiffs and that probable cause is a complete defense to
Defendants next argue that their use of force did not amount to a constitutional violation because it was objectively reasonable under the circumstances. [Dkt. 17-1 at 18-19]. Considering the events as they unfolded, the Court agrees.
Defendants Henry and Bruynell received an eyewitness report that an individual brandished a firearm in a retail parking lot at approximately 4:30 p.m. on a Monday afternoon and drove away in a black Dodge Charger. Henry reported that the Charger left the parking lot and drove southbound on Donald Barger Boulevard. Although Bruynell lost visual contact with the Charger, Aitken identified a black Dodge Charger travelling southbound on the same road within approximately ninety seconds and two blocks of Henry‘s initial radio report. Defendants ordered the vehicle to pull over, five officers drew their weapons, and ordered a then-unknown number of passengers out of the car. Defendants placed the passengers in handcuffs, Plaintiffs inside police cars, and stopped pointing their weapons at Plaintiffs. Defendants then searched the Charger and released Plaintiffs without physical injury after failing to recover a firearm. No reasonable juror could find that Defendants acted unreasonably under these undisputed facts.
Groman, 47 F.3d at 634 (” [S]ummary judgment is appropriate if, as a matter of law, the evidence would not support a reasonable jury finding that thе police officers’ actions were objectively unreasonable.“). See also Samoles v. Lacey Twp., No. CIV.A. 12-3066 FLW, 2014 WL 2602251, at *8 (D.N.J. June 11, 2014) (finding it objectively reasonable for police officers, “acting on information that a gun was present and had been used in a threatening manner, to have their service weapons unholstered and targeted at Plaintiffs throughout the time necessary to secure Plaintiffs and ensure that there was no other individual present with the gun.“).
The factors used to weigh the reasonableness of police conduct support this conclusion. With respect to the severity of the crime, brandishing and pointing a firearm may constitute a fourth-degree aggravated assault under New Jersey law.
Although Plaintiffs did not resist arrest, Defendants placed Plaintiffs in handcuffs while Defendants searched Plaintiffs’ car and did not use additional physical force to subdue Plaintiffs.
Plaintiffs do not allege or submit evidence to show that Defendants held Plaintiffs at gunpoint after placing them in handcuffs. Cf. Baker, 50 F.3d at 1193 (permitting excessive force claim where officers pointed guns at handcuffed individuals standing outside of an apartment while other officers executed a search warrant). Likewise, Plaintiffs do not argue or offer evidence that they suffered physical injury.6 See Courtright v. City of Battle Creek, 839 F.3d 513, 519 (6th Cir. 2016) (“[W]hen there is no allegation of physical injury, the handcuffing of an individual incident to a lawful arrest is insufficient as a matter of law to state a claim of excessive force under the Fourth Amendment.” (quoting Neague v. Cynkar, 258 F.3d 504, 508 (6th Cir. 2001))). Thus, both the resisting arrest and physical injury factors favor finding that the use of force was reasonable.
With respect to the “number of persons” factor, Defendants сlaim, and Plaintiffs do not dispute, that tinted windows prevented defendants from seeing into Plaintiffs’ car and knowing how many people were inside.7 [Dkt. 17 at 20]. Thus, while hindsight might suggest that a small team of armed officers was unnecessary to investigate the two unarmed Plaintiffs, the officers acted with the information available to them at the time. Graham, 490 U.S. at 396. Given the information available to Defendants, their decision to draw their firearms was “justified by the circumstances.” Pikel, 55 F. App‘x at 32.
With respect to the duration of the incident, the entire interаction was relatively brief. Approximately thirty-four minutes elapsed between when Defendants stopped Plaintiffs and when Plaintiffs were released. [See Exh. D]. Defendants only pointed their weapons for
Plaintiffs resist this reading of the facts principally because there is “no dispute that the officers’ [sic] stopped plaintiffs’ [sic] under the mistaken belief they were involved in criminal activity.” [Dkt. 19 at 20-21]. However, Plaintiffs have not identified any facts suggesting that Defendants could have or should have recognized their mistake and acted differently. Cf. Henry v. Purnell, 652 F.3d 524, 532-33 (4th Cir. 2011) (finding that a disputed issue of material fact existed surrounding the reasonableness of an officer‘s mistaken use of force because “[t]here were several facts that [the officer] knew or should have known that would have alerted any reasonable officer” to his mistake). The undisputed facts show that Defendants only learned of their mistake after they searched Plaintiffs’ car and did not recover a gun. The Court cannot rely on hindsight to fаult Defendants’ otherwise reasonable conduct. Graham, 490 U.S. at 396. See also Henry v. Purnell, 501 F.3d 374, 382 (4th Cir. 2007) (“[A] mistaken understanding of the facts that is reasonable in the circumstances can render a seizure based on that understanding reasonable under the Fourth Amendment.” (citation and quotations omitted)).
Plaintiffs also argue that Defendants are not entitled to summary judgment because Defendants “made the reckless decision to pull over any black male in the vicinity driving a black charger [sic]....” [Dkt. 27]. This argument unreasonably characterizes the facts as they unfolded. Defendants did not pull over just “any black Charger” in the “vicinity.” Rather, they
Taken together, the undisputed facts demonstrate that no reasonable juror could find that Defendants acted unreasonably when arresting Plaintiffs. While Defendants mistakenly subjected Plaintiffs to a frightening and frustrating encounter, the record is devoid of evidence to show that Defendants violated Plaintiffs’ Fourth Amendment rights under the circumstances. As a result, Plaintiffs’
Even if Plaintiffs’
“To be clearly established, ‘[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.‘” Diana v. Oliphant, 441 F. App‘x 76, 80 (3d Cir. 2011) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). See also Curley v. Klem, 499 F.3d 199, 207 (3d Cir. 2007) (“The question at this second step is whether the right that was violated was clearly established, or, in other words, ‘whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.‘” (quoting Saucier v. Katz, 533 U.S. 194, 202 (2001))). Qualified immunity therefore protects “all but the plainly incompetent or those who knowingly violate the law.” Olson v. Ako, 724 F. App‘x 160, 164 (3d Cir. 2018) (citing Malley v. Briggs, 475 U.S. 335, 341, 343 (1986)). “[W]hether an officer made a reasonable mistake of law and is thus entitled to qualified immunity is a question of law that is properly answered by the court, not a jury.” Id. at 211.
Both prongs of this test require the Court to find that qualified immunity shields Defendants from liability. As discussed above, Plaintiffs have failed to identify evidence showing that Defendants violated Plaintiffs’ Fourth Amendment rights by using force that was objectively unreasonable under the circumstances. Even if a reasonable juror could find a Fourth Amendment violation, Plaintiffs’ right not to be placed at gunpoint and handcuffed during the investigation of a firearms offense was not “clearly established.” Plaintiffs have not cited—and the Court is unaware of—any case law stating that police conduct analogous to Defendants’ constitutes a Fourth Amendment violation. See City of Tahlequah, Oklahoma v. Bond, No. 20-1668, 2021 WL 4822664, at *2 (U.S. Oct. 18, 2021) (noting that “clearly established” rights must be established with “specificity” in Fourth Amendment cases). To the contrary, courts in this circuit have refused to find Fourth Amendment violations where police officers used analogous or stronger force. See, e.g., Sharrar v. Felsing, 128 F.3d 810, 822 (3d Cir. 1997) (finding no excessive force where a SWAT team used “Rambo-type” behavior to arrest four individuals where the officers had been advised that “at least one of the men ... had used a gun in a violent episode which was still unaccounted for.“); Samoles, 2014 WL 2602251, at *8 (finding that officers reasonably drew weapons when investigating a suspect accused of brandishing a firearm); Wade v. Colaner, No. CIVA 06-3715 (FLW), 2010 WL 1490590, at *9 (D.N.J. Apr. 13, 2010) (finding that an officer reasonably drew his weapon where there was a possibility that a driver pulled over for a traffic violation was carrying a firearm). Because the evidence cannot show that Defendants violated Plaintiffs’ clearly established Fourth Amendment rights, qualified immunity defeats Plaintiffs’
Plaintiffs have also failed to identify any evidence that Defendants were “incompetent” or “knowingly violated the law” when bringing Plaintiffs into custody at gunpoint. See Olson, 724
IV. Conclusion
For the reasons discussed above, the Court will grant Defendants’ motions for summary judgment. Appropriate orders will follow.
November 5, 2021
/s/ Joseph H. Rodriguez
Hon. Joseph H. Rodriguez, USDJ