Bryheim Jamar Baskin v. Rafael Martinez (081982) (Camden County & Statewide)
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Opinion
SYLLABUS
This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Court. In the interest of brevity, portions of an opinion may not have been summarized.
Bryheim Jamar Baskin v. Rafael Martinez (A-70-18) (081982)
Argued January 7, 2020 -- Decided July 9, 2020
ALBIN, J., writing for the Court.
In this Section 1983 civil rights lawsuit, the Court considers whether defendant Detective Rafael Martinez, who chased and eventually shot plaintiff Bryheim Jamar Baskin, is entitled to qualified immunity and therefore dismissal of the lawsuit on summary judgment.
Baskin alleges the shooting constituted excessive force in violation of his federal constitutional rights. At the completion of discovery, Detective Martinez moved for summary judgment, asserting that his use of deadly force, under all the circumstances, was objectively reasonable, and therefore he was entitled to qualified immunity.
Certain facts are essentially undisputed. In the afternoon of September 11, 2012, Detective Martinez and other officers were on patrol in an area in Camden known for significant drug activity. When officers observed Baskin pull out of a parking lot without signaling, one unmarked patrol vehicle maneuvered in front of Baskin’s car for the purpose of making a motor vehicle stop. To assist the stop, Detective Martinez, who was in uniform, positioned his unmarked vehicle behind Baskin’s. Baskin suddenly put his car in reverse and collided into Martinez’s vehicle. Baskin then fled on foot through a residential area with a handgun tucked in the waistband of his shorts as the officers pursued him, with Martinez yelling a number of times, “police, stop.”
During the chase, Martinez saw Baskin drop the handgun, pick it up, and continue to run with the gun in his hand. At that point, Martinez slowed to unholster his weapon. Baskin ran into a walled-in backyard of a residence, where, out of Martinez’s sight, he tossed the gun, which landed in the yard. Cornered, with no apparent means of escape, Baskin ended his flight. What occurred immediately afterward is the subject of dispute.
According to Baskin, when he realized he had nowhere to go, he placed his empty hands over his head and remained in that position as Detective Martinez rounded the corner. Baskin states that, despite keeping his open hands over his head and making no threatening gesture, Detective Martinez shot him in the abdomen. Cherron Johnson, an area resident, witnessed the events and corroborated Baskin’s account. 1 Detective Martinez testified that, during the chase, he lost sight of Baskin, who he had last seen carrying a handgun. After carefully and slowly rounding the corner of a home until he gained a full view of the backyard, Martinez observed Baskin standing with his back facing the detective. Martinez stated that Baskin was turning around with his right arm extended straight in front of him, pointing toward Martinez a black object that he believed to be a gun. At that moment, Martinez explained, “I was in fear for my life, and I pulled the trigger and I hit him in the abdomen area.”
Immediately afterward, several officers arrived at the scene and retrieved two cell phones near where Baskin fell. Elsewhere in the yard, the officers found a semiautomatic handgun, loaded with eleven hollow-point bullets. Baskin was taken by ambulance to a nearby hospital where he was treated for serious and permanent injuries.
The trial court afforded Detective Martinez qualified immunity and granted summary judgment in his favor. A split Appellate Division panel reversed. An appeal as of right was filed, based on the dissent in the Appellate Division.
HELD: For summary judgment purposes, the Court must accept as true the sworn deposition testimony of Baskin and the independent eyewitness, who both stated that Baskin’s open and empty hands were above his head, in an act of surrender, when Detective Martinez fired the shot. Under that scenario, a police officer would not have had an objectively reasonable basis to use deadly force. The law prohibiting the use of deadly force against a non-threatening and surrendering suspect was clearly established, as evidenced by cases in jurisdictions that have addressed the issue. Thus, Detective Martinez was not entitled to qualified immunity on summary judgment.
1. Section 1983 provides a cause of action for the deprivation of any rights secured by law by any person acting under color of law. The Fourth Amendment guarantees every person the right to be free from “unreasonable” seizures, and the United States Supreme Court has held that the use of excessive force in the course of an arrest constitutes an unreasonable seizure under the Fourth Amendment. The ultimate issue in analyzing any excessive-use-of-force claim is whether, from the police officer’s perspective, the use of force was objectively reasonable under all the circumstances. A police officer may only use deadly force against a suspect when the officer reasonably believes that the suspect poses a threat of serious bodily injury to the officer or others. (pp. 12-15)
2. The doctrine of qualified immunity generally protects government officials from civil liability for discretionary acts that do not violate clearly established statutory or constitutional rights of which a reasonable person would have known. In determining whether qualified immunity applies in a particular case, a court ordinarily must address two issues: (1) whether the evidence, viewed in the light most favorable to the plaintiff, establishes that the official violated the plaintiff’s constitutional or statutory rights, and (2) whether the right allegedly violated was “clearly established” at the time of the 2 officer’s actions. A right is “clearly established” if it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted. (pp. 15-17)
3. For summary judgment purposes, the Court must accept as true the testimony of Baskin and Johnson that as Detective Martinez rounded the corner of the house, Baskin was standing with his open and empty hands above his head, signaling in a language universally understood his intent to surrender. Numerous cases have made clear that it is not objectively reasonable to shoot a suspect after he has placed his empty hands over his head in an act of surrender. The law is also clear that a suspect’s conduct leading up to his attempt to surrender cannot alone justify shooting the suspect -- using deadly force against him -- when his hands are above his head in an act of submission and he no longer poses a threat. Thus, an exercise of force that is reasonable at one moment can become unreasonable in the next if the justification for the use of force has ceased. (pp. 17-22)
4. In rendering a decision on qualified immunity, the Court does not sit as a trier of fact, weighing the evidence and making credibility determinations. Rather, under the standards that govern its review, the Court must accept that Baskin had his empty hands above his head in a sign of surrender, made no threatening gestures, and no longer posed a threat. Under that scenario, an objectively reasonable police officer would not have had a justification to use deadly force. The two conflicting accounts of what occurred at the time of the shooting, and any other disputed issues of material fact, must be submitted to a jury for resolution. After the jury makes its ultimate findings, the trial court can determine the merits of the application for qualified immunity. (pp. 22-24)
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SYLLABUS
This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Court. In the interest of brevity, portions of an opinion may not have been summarized.
Bryheim Jamar Baskin v. Rafael Martinez (A-70-18) (081982)
Argued January 7, 2020 -- Decided July 9, 2020
ALBIN, J., writing for the Court.
In this Section 1983 civil rights lawsuit, the Court considers whether defendant Detective Rafael Martinez, who chased and eventually shot plaintiff Bryheim Jamar Baskin, is entitled to qualified immunity and therefore dismissal of the lawsuit on summary judgment.
Baskin alleges the shooting constituted excessive force in violation of his federal constitutional rights. At the completion of discovery, Detective Martinez moved for summary judgment, asserting that his use of deadly force, under all the circumstances, was objectively reasonable, and therefore he was entitled to qualified immunity.
Certain facts are essentially undisputed. In the afternoon of September 11, 2012, Detective Martinez and other officers were on patrol in an area in Camden known for significant drug activity. When officers observed Baskin pull out of a parking lot without signaling, one unmarked patrol vehicle maneuvered in front of Baskin’s car for the purpose of making a motor vehicle stop. To assist the stop, Detective Martinez, who was in uniform, positioned his unmarked vehicle behind Baskin’s. Baskin suddenly put his car in reverse and collided into Martinez’s vehicle. Baskin then fled on foot through a residential area with a handgun tucked in the waistband of his shorts as the officers pursued him, with Martinez yelling a number of times, “police, stop.”
During the chase, Martinez saw Baskin drop the handgun, pick it up, and continue to run with the gun in his hand. At that point, Martinez slowed to unholster his weapon. Baskin ran into a walled-in backyard of a residence, where, out of Martinez’s sight, he tossed the gun, which landed in the yard. Cornered, with no apparent means of escape, Baskin ended his flight. What occurred immediately afterward is the subject of dispute.
According to Baskin, when he realized he had nowhere to go, he placed his empty hands over his head and remained in that position as Detective Martinez rounded the corner. Baskin states that, despite keeping his open hands over his head and making no threatening gesture, Detective Martinez shot him in the abdomen. Cherron Johnson, an area resident, witnessed the events and corroborated Baskin’s account. 1 Detective Martinez testified that, during the chase, he lost sight of Baskin, who he had last seen carrying a handgun. After carefully and slowly rounding the corner of a home until he gained a full view of the backyard, Martinez observed Baskin standing with his back facing the detective. Martinez stated that Baskin was turning around with his right arm extended straight in front of him, pointing toward Martinez a black object that he believed to be a gun. At that moment, Martinez explained, “I was in fear for my life, and I pulled the trigger and I hit him in the abdomen area.”
Immediately afterward, several officers arrived at the scene and retrieved two cell phones near where Baskin fell. Elsewhere in the yard, the officers found a semiautomatic handgun, loaded with eleven hollow-point bullets. Baskin was taken by ambulance to a nearby hospital where he was treated for serious and permanent injuries.
The trial court afforded Detective Martinez qualified immunity and granted summary judgment in his favor. A split Appellate Division panel reversed. An appeal as of right was filed, based on the dissent in the Appellate Division.
HELD: For summary judgment purposes, the Court must accept as true the sworn deposition testimony of Baskin and the independent eyewitness, who both stated that Baskin’s open and empty hands were above his head, in an act of surrender, when Detective Martinez fired the shot. Under that scenario, a police officer would not have had an objectively reasonable basis to use deadly force. The law prohibiting the use of deadly force against a non-threatening and surrendering suspect was clearly established, as evidenced by cases in jurisdictions that have addressed the issue. Thus, Detective Martinez was not entitled to qualified immunity on summary judgment.
1. Section 1983 provides a cause of action for the deprivation of any rights secured by law by any person acting under color of law. The Fourth Amendment guarantees every person the right to be free from “unreasonable” seizures, and the United States Supreme Court has held that the use of excessive force in the course of an arrest constitutes an unreasonable seizure under the Fourth Amendment. The ultimate issue in analyzing any excessive-use-of-force claim is whether, from the police officer’s perspective, the use of force was objectively reasonable under all the circumstances. A police officer may only use deadly force against a suspect when the officer reasonably believes that the suspect poses a threat of serious bodily injury to the officer or others. (pp. 12-15)
2. The doctrine of qualified immunity generally protects government officials from civil liability for discretionary acts that do not violate clearly established statutory or constitutional rights of which a reasonable person would have known. In determining whether qualified immunity applies in a particular case, a court ordinarily must address two issues: (1) whether the evidence, viewed in the light most favorable to the plaintiff, establishes that the official violated the plaintiff’s constitutional or statutory rights, and (2) whether the right allegedly violated was “clearly established” at the time of the 2 officer’s actions. A right is “clearly established” if it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted. (pp. 15-17)
3. For summary judgment purposes, the Court must accept as true the testimony of Baskin and Johnson that as Detective Martinez rounded the corner of the house, Baskin was standing with his open and empty hands above his head, signaling in a language universally understood his intent to surrender. Numerous cases have made clear that it is not objectively reasonable to shoot a suspect after he has placed his empty hands over his head in an act of surrender. The law is also clear that a suspect’s conduct leading up to his attempt to surrender cannot alone justify shooting the suspect -- using deadly force against him -- when his hands are above his head in an act of submission and he no longer poses a threat. Thus, an exercise of force that is reasonable at one moment can become unreasonable in the next if the justification for the use of force has ceased. (pp. 17-22)
4. In rendering a decision on qualified immunity, the Court does not sit as a trier of fact, weighing the evidence and making credibility determinations. Rather, under the standards that govern its review, the Court must accept that Baskin had his empty hands above his head in a sign of surrender, made no threatening gestures, and no longer posed a threat. Under that scenario, an objectively reasonable police officer would not have had a justification to use deadly force. The two conflicting accounts of what occurred at the time of the shooting, and any other disputed issues of material fact, must be submitted to a jury for resolution. After the jury makes its ultimate findings, the trial court can determine the merits of the application for qualified immunity. (pp. 22-24)
JUSTICE SOLOMON, dissenting, notes that before Baskin was restrained, he threatened lives by speeding away from one police vehicle, crashing into another, and then fleeing the scene of the crash, in possession of a handgun, through a residential neighborhood. Justice Solomon explains that, under the totality of the circumstances, a reasonable officer at the scene would have no reason to know, in the split second that Martinez fired his weapon, that Baskin no longer possessed a gun. Justice Solomon concludes that, considering the alleged facts in a light most favorable to Baskin, Martinez’s belief in the need to use deadly force to prevent Baskin’s escape and protect against the threat of danger Baskin posed to Martinez and others was reasonable given the totality of the circumstances from the perspective of an officer on the scene.
AFFIRMED and REMANDED for further proceedings.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA and TIMPONE join in JUSTICE ALBIN’s opinion. JUSTICE SOLOMON filed a dissent, in which JUSTICES PATTERSON and FERNANDEZ-VINA join.
3 SUPREME COURT OF NEW JERSEY A-70 September Term 2018 081982
Bryheim Jamar Baskin,
Plaintiff-Respondent,
v.
Rafael Martinez, City of Camden and Scott Thompson,
Defendants-Appellants.
On appeal from the Superior Court, Appellate Division.
Argued Decided January 7, 2020 July 9, 2020
Timothy J. Galanaugh, Assistant City Attorney, argued the cause for appellants (Michelle Banks- Spearman, Camden City Attorney, attorney; Timothy J. Galanaugh, on the briefs).
Paul R. Melletz argued the cause for respondent (Gerstein, Grayson, Cohen & Melletz, attorneys; Paul R. Melletz, on the brief).
JUSTICE ALBIN delivered the opinion of the Court.
In this Section 1983 civil rights lawsuit, plaintiff Bryheim Jamar Baskin
claims that a justifiable police chase ended in an unjustifiable police shooting
1 -- the use of excessive force in violation of the Federal Constitution. The issue
before us is whether defendant Detective Rafael Martinez, who chased and
eventually shot Baskin, is entitled to qualified immunity and therefore
dismissal of the lawsuit on summary judgment.
On the summary judgment record before us, certain facts are undisputed.
The police gave chase to twenty-year-old Baskin after he crashed his car into
an unmarked patrol vehicle occupied by Detective Martinez. Baskin fled on
foot armed with a handgun, which he discarded out of Martinez’s sight. Then,
Baskin found himself trapped in a walled yard with no way to escape. At this
point, the accounts given by Baskin and a neighborhood eyewitness, on the one
hand, and Detective Martinez, on the other, starkly diverge.
According to Baskin and the eyewitness, Baskin put his hands above his
head and turned toward the pursuing police officer. His palms were open. He
held no weapon in his hand. He made no gesture that he was reaching for a
weapon and, at that moment, he posed no threat. Baskin and the eyewitness
state that while Baskin’s hands were in the air in a sign of surrender, Detective
Martinez shot him in the abdomen, causing serious and permanent injuries.
In contrast, Detective Martinez asserts that when Baskin finally came
into sight, Baskin turned and pointed in the detective’s direction an object that
looked like a gun. Only then, fearing for his life, says Detective Martinez, did
2 he discharge his weapon. Although no handgun was found where Baskin fell,
two cell phones were located nearby.
Despite those disputed facts, the trial court granted Detective Martinez
qualified immunity and dismissed Baskin’s Section 1983 action. A split three-
judge Appellate Division panel reversed and reinstated the case. Based on the
dissent in the Appellate Division, the issue of whether Detective Martinez is
entitled to qualified immunity comes to us on an appeal as of right. N.J.
Const. art. VI, § 5, ¶ 1(b); R. 2:2-1(a)(2).
We now affirm the Appellate Division majority. At the summary
judgment stage, in deciding the issue of qualified immunity, our jurisprudence
requires that the evidence be viewed in the light most favorable to Baskin.
Therefore, for summary judgment purposes, we must accept as true the sworn
deposition testimony of Baskin and the independent eyewitness, who both
stated that Baskin’s hands were above his head, in an act of surrender, when
Detective Martinez fired the shot. Under that scenario, a police officer would
not have had an objectively reasonable basis to use deadly force. The law
prohibiting the use of deadly force against a non-threatening and surrendering
suspect was clearly established, as evidenced by cases in jurisdictions that
have addressed the issue. Thus, Detective Martinez was not entitled to
qualified immunity on summary judgment.
3 The disputed issues of material fact -- whether Detective Martínez’s use
of deadly force was objectively reasonable -- are for a jury to resolve, not for a
court. Accordingly, we remand this matter for further proceedings consistent
with this opinion.
I.
A.
In this action brought primarily under 42 U.S.C. § 1983, Baskin alleges
that Detective Martinez shot him in the stomach while he was unarmed and in
the act of “surrendering” -- “standing with his hands up in the air facing” the
detective. In the complaint, Baskin claims that the shooting constituted
excessive force in violation of his federal constitutional rights and names as
defendants Detective Martinez, the Chief of Police of the Camden Police
Department, and the City of Camden. The Section 1983 claim against the
chief of police and the city is premised on their alleged failure to provide
training and supervision on “the lawful use of an officer’s service revolver.” 1
At the completion of discovery, Detective Martinez moved for summary
judgment, asserting that his use of deadly force, under all the circumstances,
was objectively reasonable, and therefore he was entitled to qualified
immunity. Although in deciding the issue of qualified immunity on summary
1 Baskin also asserted common law claims of assault, battery, and negligence. 4 judgment the evidence must be viewed in the light most favorable to Baskin,
we present here a more fulsome account of the critical events based on the
deposition testimony in the summary judgment record.
Certain facts are essentially undisputed. In the afternoon of September
11, 2012, Detective Martinez and other Camden police officers were on patrol
in unmarked vehicles in an area in Camden known for significant drug activity.
When officers observed Baskin pull out of a parking lot without signaling, one
unmarked patrol vehicle maneuvered in front of Baskin’s car for the purpose
of making a motor vehicle stop. To assist the stop, Detective Martinez, who
was in uniform, positioned his unmarked vehicle behind Baskin’s. With
unmarked police cars in front of and behind him, Baskin suddenly put his car
in reverse and collided into Martinez’s vehicle.2 Baskin fled on foot with a
handgun tucked in the waistband of his shorts as the officers pursued him, with
Martinez yelling a number of times, “police, stop.” Martinez followed close
behind as Baskin raced through a residential area and leapt over several fences.
During the chase, Martinez saw Baskin drop the handgun, pick it up, and
continue to run with the gun in his hand. At that point, Martinez slowed to
unholster his weapon. Baskin eventually ran into a walled-in backyard of a
2 In his deposition testimony, Baskin stated that the area where he was “cut off” by the unmarked vehicle is known for drug activity and shootings. He admitted to having drugs in his car. 5 residence, where, out of Martinez’s sight, he tossed the gun, which landed in
the rear of the yard. Cornered, with no apparent means of escape, Baskin
ended his flight. What occurred immediately afterward is the subject of
dispute.
According to Baskin, when he reached the walled-in backyard and
realized he had nowhere to go, he placed his empty hands over his head and
remained in that position as Detective Martinez rounded the corner of the
house and saw “[him] with [his] hands in the air.” Baskin believed that his
raised hands signaled that he was surrendering, so he said nothing as Detective
Martinez came into sight. 3 The only objects on his person were two cell
phones in the pocket of his shorts. Baskin states that, despite keeping his open
hands over his head and making no threatening gesture, Detective Martinez
shot him in the abdomen, causing grievous and permanent injuries .
Cherron Johnson, an area resident, witnessed the events and
corroborated Baskin’s account of the last moments of the chase. In her
deposition testimony, Johnson stated that she had just arrived home and had
stepped out of her car and was talking with a friend when she saw Baskin
3 During his deposition, Baskin was never asked a direct question whether he was facing Martinez when he was shot. In his Material Statement of Facts filed in response to the summary judgment motion, however, Baskin asserted that he “was standing with his hands up in the air facing [Detective] Martinez” when shot -- the same assertion made in his complaint. (emphasis added). 6 running with Detective Martinez in pursuit. She explained that when Baskin
ran behind the house and reached the wall, he placed his empty hands in the
air, and then Detective Martinez shot him. As Johnson described it, Baskin
“put his hands up and he turned around. And when he turned around, . . . he
just got shot.” At one point in her deposition testimony, she stated that Baskin
had completely turned around with his hands in the air when Martinez fired the
shot,4 and, at another point, she indicated that “it happened so fast, I’m not
sure if he was in the middle of turning around. I know his hands [were] in the
air, and you could see him turning around.” (emphasis added). She added, “I
really didn’t think it was right what happened . . . . I just know that I don’t
think he should have shot the boy.”
Detective Martinez gave a very different account from Baskin and
Johnson. In his testimony, he explained that, during the chase, he lost sight of
Baskin, whom he had last seen carrying a handgun. After carefully and slowly
rounding the corner of a home until he gained a full view of the backyard,
Martinez observed Baskin standing with his back facing the detective.
Martinez stated that Baskin was turning around with his right arm extended
straight in front of him, pointing toward Martinez a black object that he
4 Johnson was asked, “Was he completely turned around and his hands were in the air and that’s when he got shot?” She responded, “Right.” 7 believed to be a gun. At that moment, Martinez explained, “I was in fear for
my life, and I pulled the trigger and I hit him in the abdomen area.”
Immediately afterward, several officers arrived at the scene and retrieved
two cell phones near where Baskin fell. Elsewhere in the yard, the officers
found a semiautomatic handgun, loaded with eleven hollow-point bullets.
Baskin was taken by ambulance to a nearby hospital where he was treated for
serious and permanent injuries. 5
B.
Despite that conflicting testimony, the trial court afforded Detective
Martinez qualified immunity and granted summary judgment in his favor,
dismissing Baskin’s Section 1983 action. 6 The trial court highlighted
Detective Martinez’s likely perceptions during the chase. Detective Martinez
knew that he was pursuing a suspect with a gun and had a right “to protect
himself against someone who was known to be armed.” In the court’s view,
5 The Camden County Prosecutor’s Office investigated the shooting and concluded that Detective Martinez was justified in using deadly force because he “reasonably believed Bryheim Baskin’s actions placed him in imminent danger of death or bodily injury.” Baskin pled guilty to four charges relating to the events of that day: second-degree eluding, second-degree unlawful possession of a weapon, third-degree resisting arrest, and possession of less than half an ounce of cocaine with the intent to distribute. 6 The trial court did not address Baskin’s state law claims, but evidently those claims were dismissed as well. 8 even if it were to disregard Martinez’s belief that Baskin had an object in his
hand, “the fact that [Baskin], when confronted in that alley by the officer,
turned towards the officer” entitled Detective Martinez to “qualified
immunity.” The court concluded that Martinez had an objectively reasonable
basis for using deadly force under those circumstances. The court commented,
“[w]hat Baskin didn’t do was get on the ground, be passive, or anything of that
nature.” In its final summary judgment assessment, the court hardly
acknowledged the testimony of Baskin and Johnson that Baskin’s hands were
over his head when he was shot.
C.
A split Appellate Division panel reversed in an unpublished opinion.
The two-judge majority noted that qualified immunity ordinarily is a question
of law to be decided by the court, after viewing the facts in the light most
favorable to the plaintiff. The panel majority added, however, that disputed
issues of material fact must be resolved by the jury. The majority faulted the
trial court for “improperly weigh[ing] the eyewitness’ observations.” In its
view, Baskin’s and Martinez’s accounts about “what occurred in the moments
just before [Baskin] was shot differ[ed] in material respects.”
The majority observed that although Detective Martinez stated that he
shot Baskin because Baskin was pointing at him what appeared to be a gun, the
9 trial court accepted that Martinez’s use of deadly force would have been
justified even if Baskin had no weapon in his hand -- and even if Baskin’s
hands were raised over his head. According to the majority, whether Baskin
pointed an object at Detective Martinez or whether Baskin put his empty hands
over his head were “significantly material” facts in dispute that bore on any
determination of the objective reasonableness of Martinez’s actions and his
entitlement to qualified immunity. The majority did not suggest that those
were necessarily the only material facts in dispute, emphasizing that the jury
would decide any “who-what-when-where-why type of historical fact issues,”
quoting Brown v. State, 230 N.J. 84, 99 (2017) (quoting Schneider v.
Simonini, 163 N.J. 336, 359 (2000)).
The dissenting judge concluded that even taking into account all relevant
circumstances in the light most favorable to Baskin, Detective Martinez did
not violate Baskin’s federal constitutional rights. The dissenting judge
particularly focused on the events immediately before the shooting -- the fact
that Baskin had crashed his car into a police vehicle and then fled through a
residential neighborhood armed with a gun and therefore was a threat to the
pursuing officers.
As to the critical moments in the backyard, the dissenting judge credited
the account that “Martinez shot Baskin as he turned to face Martinez
10 immediately upon Martinez entering the backyard.” She also accepted that in
the “split second” that Martinez fired the shot, he “erred” because “Baskin was
not holding a gun”; and “for purposes of the motion, [Baskin’s hands] were
empty.” Nevertheless, the dissenting judge asserted, Martinez did not have “to
wait for a suspect he knew to be armed and extremely dangerous to swing all
the way around and face him so the detective could get a better look at the
suspect’s hands in the split second before he fired.” For that reason, she found
that “Detective Martinez’s mistake [was] an objectively reasonable one under
the ‘tense, uncertain, and rapidly evolving’ circumstances he faced,” quoting
Graham v. Connor, 490 U.S. 386, 397 (1989), and therefore would have
affirmed the trial court’s grant of summary judgment based on qualified
immunity.
D.
Defendants filed a notice of appeal as of right based on the dissent in the
Appellate Division. See N.J. Const. art. VI, § 5, ¶ 1(b); R. 2:2-1(a)(2). The
issue before this Court is limited to the one raised in the dissent -- whether
Detective Martinez was entitled to qualified immunity based on the summary
judgment record and therefore whether the trial court properly dismissed
Baskin’s Section 1983 lawsuit against defendants. See R. 2:2-1(a)(2).
11 E.
The fault line dividing the Appellate Division majority and dissent
likewise divides the parties. Baskin urges this Court to affirm the two-judge
majority essentially for the reasons given in the majority opinion. Defendants
ask this Court to adopt the reasoning of the dissenting judge and to confer on
Detective Martinez qualified immunity and dismiss Baskin’s Section 1983
lawsuit.
II.
The primary focus of Baskin’s lawsuit is his claim brought under 42
U.S.C. § 1983. “Section 1983 provides a cause of action for ‘the deprivation
of any rights, privileges, or immunities secured by the Constitution and laws’
by any person acting ‘under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory.’” Gomez v. Toledo, 446 U.S. 635,
638 (1980) (quoting 42 U.S.C. § 1983). Essentially, “Section 1983 is a means
of vindicating rights guaranteed in the United States Constitution and federal
statutes.” Gormley v. Wood-El, 218 N.J. 72, 97 (2014).
The specific constitutional right at issue here is the Fourth Amendment
right of every person to be free from “unreasonable” seizures. See U.S. Const.
amend. IV (declaring that “[t]he right of the people to be secure in their
12 persons . . . against unreasonable searches and seizures, shall not be violated”).
The United States Supreme Court in Graham held that the use of excessive
force in the course of an arrest constitutes an unreasonable seizure under the
Fourth Amendment. See 490 U.S. at 394.7
“While it is not always clear just when minimal police interference
becomes a seizure, there can be no question that apprehension by the use of
deadly force is a seizure subject to the reasonableness requirement of the
Fourth Amendment.” Tennessee v. Garner, 471 U.S. 1, 7 (1985) (citation
omitted); see also Brower v. County of Inyo, 489 U.S. 593, 595 (1989) (noting
that “a police officer’s fatal shooting of a fleeing suspect constitute[s] a Fourth
Amendment ‘seizure’” (citing Garner, 471 U.S. at 7)). The United States
Supreme Court has recognized that “[t]he intrusiveness of a seizure by means
of deadly force is unmatched. The suspect’s fundamental interest in his own
life need not be elaborated upon. The use of deadly force also frustrates the
interest of the individual, and of society, in judicial determination of guilt and
punishment.” Garner, 471 U.S. at 9.
7 The Fourth Amendment is applicable to the states through the Due Process Clause of the Fourteenth Amendment. Ker v. California, 374 U.S. 23, 33 (1963) (holding that the Fourth “Amendment’s proscriptions are enforced against the States through the Fourteenth Amendment” and that “the standard of reasonableness is the same under the Fourth and Fourteenth Amendments”). 13 The ultimate issue in analyzing any excessive-use-of-force claim under
the Fourth Amendment is whether, from the police officer’s perspective, the
use of force was objectively reasonable under all the circumstances. Graham,
490 U.S. at 396-97; Saucier v. Katz, 533 U.S. 194, 201-02 (2001), overruled
on other grounds by Pearson v. Callahan, 555 U.S. 223 (2009). In making that
assessment, a court does not view the events at issue “with the 20/20 vision of
hindsight.” Graham, 490 U.S. at 396. “The calculus of reasonableness must
embody allowance for the fact that police officers are often forced to make
split-second judgments -- in circumstances that are tense, uncertain, and
rapidly evolving -- about the amount of force that is necessary in a particular
situation.” Id. at 396-97. Among the factors that should be considered in
evaluating the reasonableness of an officer’s use of force are “the severity of
the crime at issue, whether the suspect poses an immediate threat to the safety
of the officers or others, and whether he is actively resisting arrest or
attempting to evade arrest by flight.” Id. at 396.
To be sure, however, the United States Supreme Court has given notice
that “[a] police officer may not seize an unarmed, nondangerous suspect by
shooting him dead.” Garner, 471 U.S. at 11. A police officer may only use
deadly force against a suspect when “the officer reasonably believes that the
suspect poses a threat of serious bodily injury to the officer or others.”
14 Lamont v. New Jersey, 637 F.3d 177, 185 (3d Cir. 2011) (citing Garner, 471
U.S. at 3, 11; Abraham v. Raso, 183 F.3d 279, 294 (3d Cir. 1999)); see also
O’Bert ex rel. Estate of O’Bert v. Vargo, 331 F.3d 29, 36 (2d Cir. 2003) (“It is
not objectively reasonable for an officer to use deadly force to apprehend a
suspect unless the officer has probable cause to believe that the suspect poses a
significant threat of death or serious physical injury to the officer or others.”).
With those general principles in mind, we turn to the doctrine of
qualified immunity.
The doctrine of qualified immunity generally protects government
officials from civil liability for discretionary acts that do “not violate clearly
established statutory or constitutional rights of which a reasonable person
would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
Qualified immunity is intended to spare deserving public officials of the costs
and expenses of litigation and standing trial, and therefore the qualified
immunity defense is typically interposed early in the proceedings of a case ,
Saucier, 533 U.S. at 200-01, such as on a motion for summary judgment,
Morillo v. Torres, 222 N.J. 104, 119 (2015). Whether an official is entitled to
the shield of qualified immunity ordinarily is a question of law to be decided
by the court. Brown, 230 N.J. at 98-99; see also Scott v. Harris, 550 U.S. 372,
15 381 n.8 (2007) (noting that after the court has “drawn all inferences in favor of
the nonmoving party to the extent supportable by the record,” the
reasonableness of a police officer’s actions “is a pure question of law”).
In determining whether qualified immunity applies in a particular case, a
court ordinarily must address two issues: (1) whether the evidence, viewed in
the light most favorable to the plaintiff, establishes that the official violated
the plaintiff’s constitutional or statutory rights, and (2) whether the right
allegedly violated was “clearly established” at the time of the officer’s actions.
Saucier, 533 U.S. at 201-02; see also Morillo, 222 N.J. at 117-18.8 “[A] right
is clearly established” if “it would be clear to a reasonable officer that his
conduct was unlawful in the situation he confronted.” Saucier, 533 U.S. at
202. In other words, “[t]he contours of the right must be sufficiently clear that
a reasonable official would understand that what he is doing violates that
right.” Gormley, 218 N.J. at 113 (alteration in original) (quoting Anderson v.
Creighton, 483 U.S. 635, 640 (1987)); see also Hope v. Pelzer, 536 U.S. 730,
741 (2002) (holding that cases involving “fundamentally similar” or
8 Since Saucier, the Supreme Court has clarified that courts have the discretion to address first the second prong -- whether the right was “clearly established” -- because a determination of that prong may be dispositive of the issue of qualified immunity. See Pearson v. Callahan, 555 U.S. 223, 236-37 (2009). If the right at issue is not clearly established, then the officer alleged to have violated that right will be entitled to qualified immunity. See id. at 243-45. 16 “materially similar” facts are not necessary for a clearly established finding,
but rather, the “salient question” is whether the law gave the officer “fair
warning” that his conduct was unlawful).
Under the qualified immunity jurisprudence discussed, we are required
not only to view the evidence in the light most favorable to Baskin, but also to
draw all reasonable inferences in his favor that are supported by the summary
judgment record. See Gormley, 218 N.J. at 86 (“[W]e must . . . view the
summary-judgment record through the prism of [the plaintiff’s] best case,
giving [the plaintiff] -- the non-moving party -- the benefit of the most
favorable evidence and most favorable inferences drawn from that evidence.”).
At this stage, we cannot give credence to Detective Martinez’s account of the
last moments of his encounter with Baskin, and we do not resolve disputed
issues of material fact as would a jury. We must accept as true the testimony
of Baskin and Johnson that as Detective Martinez rounded the corner of the
house, Baskin was standing with his open and empty hands above his head
-- not reaching for a weapon or making a threatening gesture. Perhaps, Baskin
was in the act of turning at that moment, but even that is a disputed fact.
Indeed, by placing his hands above his head and without saying a word, as
17 Baskin claims, he signaled in a language universally understood his intent to
surrender.
Our constitutional jurisprudence makes clear what every police officer
understands -- it is not objectively reasonable to shoot a person suspected of
committing a crime after he has placed his empty hands above his head in an
act of surrender. Jurisdictions that have addressed that scenario embrace that
simple and seemingly incontrovertible proposition.
In Hemphill v. Schott, the plaintiff in a Section 1983 civil rights action
had committed serious crimes, including assault with a deadly weapon, when
confronted by a police officer. 141 F.3d 412, 417 (2d Cir. 1998). Accepting
as true the plaintiff’s “version of the facts” for summary judgment purposes,
the United States Court of Appeals for the Second Circuit concluded that the
officer’s “alleged decision to use potentially deadly force upon a suspect who
stopped and raised his arms in the air when commanded to do so [did] not
qualify as reasonable” under the circumstances. Ibid. The court reasoned that,
although the plaintiff was suspected of committing an “extremely violent”
crime, “to allow the nature of the crime alone to justify the use of such severe
force would thwart a central purpose of the Fourth Amendment limitations on
use of force in making arrests, which is to preserve determination of guilt and
punishment for the judicial system.” Ibid. Thus, the court concluded that the
18 plaintiff’s “statement of facts, construed most favorably to him, describe[d] a
constitutionally unreasonable seizure” and therefore held that the trial court
erred in granting summary judgment on qualified immunity grounds. Id. at
417-18.
In Gray-Hopkins v. Prince George’s County, a Section 1983
excessive-force case, the summary judgment record presented two starkly
different accounts of the shooting death of Hopkins after the police stopped the
car in which he was a passenger. 309 F.3d 224, 227-28 (4th Cir. 2002). In the
defendants’ version, Hopkins grabbed an officer’s gun and struggled for
control of that gun when another officer fatally shot him. Id. at 228. In the
plaintiff’s version, Hopkins exited the vehicle and had his hands raised, and at
no point threatened the officer or grabbed for his gun when he was shot dead
by the other officer. Ibid. The United States Court of Appeals for the Fourth
Circuit affirmed the district court’s denial of qualified immunity because,
based on the evidence supporting plaintiff’s version, Hopkins was not resisting
arrest or posing a threat to the safety of the officers and had “his hands raised
over his head at the time of the fatal shot.” Id. at 230-31. On those facts, the
court held that “a trier of fact could clearly conclude that a Fourth Amendment
violation occurred.” Id. at 231.
19 Other jurisdictions have reached similar conclusions when a suspect had
placed his hands in the air in an act of surrender. See, e.g., Henderson as Tr.
for Henderson v. City of Woodbury, 909 F.3d 933, 939-40 (8th Cir. 2018)
(finding that the trial court erred by granting qualified immunity because,
based on the plaintiff’s version of the facts, the suspect “fully and
unequivocally surrendered to police, lay still, and was shot and killed anyway ”
in violation of the suspect’s “clearly established constitutional rights”);
Longoria v. Pinal County, 873 F.3d 699, 709-11 (9th Cir. 2017) (reversing
grant of qualified immunity because material facts were disputed and because
the suspect’s “Fourth Amendment right not to be shot dead while unarmed,
surrounded by law enforcement, and in the process of surrendering [was]
clearly established”); Kanae v. Hodson, 294 F. Supp. 2d 1179, 1185-86 (D.
Haw. 2003) (“In [the plaintiff’s] version of events, [the officer] could see [the
plaintiff’s] hands in the air and therefore knew that shooting [him] would
clearly violate [his] Fourth Amendment rights. Accordingly, the court
concludes that [the officer] has not established that he is entitled to summary
judgment on qualified immunity grounds.” (emphasis added)); see also
Ciminillo v. Streicher, 434 F.3d 461, 467-69 (6th Cir. 2006) (denying qualified
immunity and noting that courts have found that it is not objectively
reasonable to use deadly force even “against a visibly armed plaintiff who had
20 his hands over his head in the surrender position” (internal quotation
omitted)).9
The law is also clear that a suspect’s conduct leading up to his attempt to
surrender cannot alone justify shooting the suspect -- using deadly force
against him -- when his hands are above his head in an act of submission and
he no longer poses a threat. Thus, “an exercise of force that is reasonable at
one moment can become unreasonable in the next if the justification for the
use of force has ceased.” Lytle v. Bexar County, 560 F.3d 404, 413 (5th Cir.
2009); see also Lamont, 637 F.3d at 184 (“Even where an officer is initially
justified in using force, he may not continue to use such force after it has
become evident that the threat justifying the force has vanished.”); Waterman
9 A case that reached a different conclusion is not in any way similar to the circumstances here. In Conde ex rel. Estate of Mack v. City of Atlantic City, a police officer responded to a report of a man armed with a gun. 293 F. Supp. 3d 493, 497 (D.N.J. 2017). On his arrival at the scene, the officer commanded Derrick Mack to stop. Id. at 505. Mack turned toward the officer with only one hand raised and the other hand near his waistband area. Id. at 502-03. Independent eyewitnesses supported the officer’s version of events. Id. at 503- 04. One eyewitness explained that Mack never fully stopped and that “both hands did not come straight up in the air in a surrender posture.” Id. at 503. Instead, Mack’s “left [hand] came up first and then the right began to rise as Mack appeared to turn toward the officer.” Ibid. It was then that the officer shot Mack, who later died of his wounds. Id. at 497-98, 502. On that summary judgment record, the district court concluded that “the undisputed evidence shows that, at the very least, the possibility existed for Mack to reach into his waistband, where [the officer] and others state he holstered the weapon.” Id. at 506. On those facts, the court granted the officer qualified immunity. Id. at 501-02. The summary judgment record here is very different. 21 v. Batton, 393 F.3d 471, 481 (4th Cir. 2005) (“[F]orce justified at the
beginning of an encounter is not justified even seconds later if the justification
for the initial force has been eliminated.”); Ellis v. Wynalda, 999 F.2d 243,
247 (7th Cir. 1993) (“When an officer faces a situation in which he could
justifiably shoot, he does not retain the right to shoot at any time thereafter
with impunity.”).
III.
The law is not in doubt here, however disputed the facts may be about
whether Baskin’s hands were empty and up in the air just moments before the
shooting. Although for qualified immunity purposes, we must consider the
totality of the circumstances through the perspective of an objectively
reasonable police officer on the scene -- an officer facing “tense, uncertain,
and rapidly evolving” events, Graham, 490 U.S. at 396-97 -- we must also
accept Baskin’s version of those events that are in dispute and draw all
reasonable inferences in his favor. In rendering a decision on qualified
immunity, we do not sit as a trier of fact, weighing the evidence and making
credibility determinations. That role is exclusively reserved for the jury in our
system of justice.
We understand that police officers must often make split-second
decisions in highly volatile situations. We do not minimize the challenges or
22 dangers facing a police officer engaged in pursuit of a suspect who is observed
carrying a gun. Here, Baskin does not dispute that he attempted to elude the
police, crashing his car into Detective Martinez’s unmarked patrol vehicle, and
that he took flight armed with a gun. We accept that Detective Martinez had a
legitimate and obvious basis to be concerned for his safety. During the chase,
had Baskin turned toward him with the gun in his hand, Detective Martinez
would likely have had an objectively reasonable basis to use deadly force to
protect himself from the threat of death or serious bodily injury. However, the
justification for use of deadly force at one point in a dangerous encounter does
not give an officer the right to shoot a suspect when the use of deadly force
can no longer be justified. See, e.g., Lytle, 560 F.3d at 413. Although police
officers would have a right to use deadly force against a suspect during a gun
battle, they would not have a right to shoot the suspect after he threw down his
weapon, placed his hands over his head, and surrendered. Cf. Lamont, 637
F.3d at 184.
Detective Martinez said that when he rounded the corner of the house,
Baskin turned toward him pointing an object that appeared to be a gun. If that
account were uncontested, and the object was, say a cell phone, Detective
Martinez’s objectively reasonable mistake of fact would not preclude his
entitlement to qualified immunity. See Saucier, 533 U.S. at 205 (“If an officer
23 reasonably, but mistakenly, believed that a suspect was likely to fight back, for
instance, the officer would be justified in using more force than in fact was
needed.”).
But that account is sharply contested. And as earlier noted, under the
qualified immunity and summary judgment standards that govern our review,
based on the testimony of Baskin and a neighborhood eyewitness, we must
accept that Baskin had his empty hands above his head in a sign of surrender,
made no threatening gestures, and no longer posed a threat. Under that
scenario, an objectively reasonable police officer would not have had a
justification to use deadly force.
The two conflicting accounts of what occurred at the time of the
shooting, and any other disputed issues of material fact, must be submitted to a
jury for resolution. See Brown, 230 N.J. at 99. After the jury makes its
ultimate findings, the trial court can determine the merits of the application for
qualified immunity. See ibid.
IV.
In summary, the law prohibiting the use of deadly force against a
surrendering suspect -- one with empty hands in the air and posing no
imminent threat -- was clearly established at the time of the events in this case.
Based on the facts that we must accept as true for purposes of determining the
24 issue of qualified immunity on the summary judgment record, an objectively
reasonable police officer would not have been justified in using deadly force.
Therefore, the trial court erred in granting Detective Martinez qualified
immunity and dismissing Baskin’s Section 1983 lawsuit. Where the ultimate
truth lies is a matter for a jury to determine. After the jury makes its
factfindings, Detective Martinez is free to renew his qualified immunity
application if there is a basis to do so.
Accordingly, we affirm the judgment of the Appellate Division and
remand for proceedings consistent with this opinion.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA and TIMPONE join in JUSTICE ALBIN’s opinion. JUSTICE SOLOMON filed a dissent, in which JUSTICES PATTERSON and FERNANDEZ-VINA join.
25 SUPREME COURT OF NEW JERSEY A-70 September Term 2018 081982
JUSTICE SOLOMON, dissenting.
This appeal as of right requires the Court to determine whether the
Appellate Division correctly reversed the trial court’s grant of summary
judgment in favor of a police officer who pursued and shot a fleeing suspect.
It is undisputed that the suspect possessed a handgun throughout the pursuit
and, while out of the officer’s view, discarded his weapon in the backyard
where he was shot. It is disputed whether the suspect’s hands were empty and
raised as he turned toward the officer and was shot.
The Appellate Division majority concluded that the contents and
position of the suspect’s hands were disputed material facts precluding
summary judgment. The dissent asserted that the qualified immunity doctrine
1 required that summary judgment be granted in favor of the officer because his
actions were reasonable considering the totality of the circumstances,
irrespective of the disputed facts.
The majority concludes that viewing the disputed facts in the light most
favorable to the suspect -- who resisted arrest, crashed into a police car, and
fled on foot through a residential neighborhood while armed with a handgun --
the officer’s use of deadly force as he turned a blind corner and, for an instant,
saw the suspect turn with raised hands, was the result of an unreasonable
“mistaken understanding.” Saucier v. Katz, 533 U.S. 194, 205 (2001). I
disagree. Even if a jury were to resolve the disputed facts in Baskin’s favor,
Martinez would still be entitled to qualified immunity, and therefore I dissent.
The summary judgment record reveals that early one afternoon, the
Camden Police Department deployed its Strategic Multi-Agency Shooting and
Homicide Team (the Team), consisting of two unmarked police vehicles and
five uniformed police officers, to canvass a high-crime neighborhood where
there had been recent shootings. While on patrol, the Team observed plaintiff
Bryheim Jamar Baskin enter a vehicle and exit a parking lot without signaling .
The Team arranged for one unit to provide backup while the other performed a
vehicle stop.
2 Baskin initially pulled over, but then sped off in reverse and crashed into
the backup vehicle occupied by Detective Rafael Martinez and his partner.
After the collision, Baskin got out of his car and fled on foot. Martinez gave
chase and heard an officer yell “gun.” Martinez also observed the butt of a
handgun in Baskin’s right pocket during the chase.
Followed by other officers, Martinez pursued Baskin through a
residential area and over several fences. As Baskin turned down an alley, the
handgun fell from his pocket, and Martinez observed Baskin reach down, pick
it up, and continue on, pistol in hand. As Martinez moved through the alley,
he lost sight of Baskin, who ran into a backyard, where a wall blocked his exit.
At that time, Martinez unholstered his service weapon and continued the
pursuit. Once Martinez neared the end of the alley, he positioned himself to
gain a full view of the backyard, unaware that a wall blocked Baskin’s exit. At
that moment, Baskin began to turn around. Martinez fired a single round into
Baskin’s torso.
Baskin was taken by ambulance to a nearby hospital where he was
treated for serious and permanent injuries and survived. At the time of
Baskin’s arrest, he possessed $1000 and less than a half-ounce of cocaine. In
addition, the police retrieved two cell phones near where Baskin fell, and a
3 semiautomatic handgun loaded with eleven hollow-point bullets elsewhere in
the backyard.
The Camden County Prosecutor’s Office (the Prosecutor’s Office)
investigated the incident. The Prosecutor’s Office concluded that Martinez’s
actions were justified under N.J.S.A. 2C:3-4 and 3-5 because he “reasonably
believed Bryheim Baskin’s actions placed him in imminent danger of death or
bodily injury.” The New Jersey Attorney General’s Office, Division of
Criminal Justice, reviewed the Prosecutor’s Office’s investigation and agreed
with its determination. Baskin was later charged in a fourteen-count
indictment and pled guilty to four of the criminal charges filed against him:
second-degree eluding an officer, N.J.S.A. 2C:29-2; second-degree unlawful
possession of a weapon, N.J.S.A. 2C:39-5; third-degree resisting arrest,
N.J.S.A. 2C:29-2; and possession with intent to distribute less than half an
ounce of cocaine, N.J.S.A. 2C:35-5. Baskin was ultimately sentenced to a
four-year term of imprisonment.
During his plea colloquy, Baskin admitted he was aware police officers
“pulled up behind [him] and attempted to stop [his] vehicle.” Baskin
acknowledged that “instead of stopping, [he] attempted to elude those officers
by speeding off at a high rate of speed,” thereby “creat[ing] a risk of harm or
injury to the pursuing officers and also to the population [and] community at
4 large.” Baskin also testified that, at times during the pursuit, he looked back to
see if the uniformed police officers continued to pursue him.
Thereafter, Baskin filed a complaint under 42 U.S.C. § 1983 (Section
1983) against Martinez, the City of Camden, and the Chief of Police of the
Camden Police Department (collectively, defendants). Baskin claimed that
Martinez’s use of excessive force at the time of Baskin’s apprehension and
arrest violated his federal constitutional rights.
Baskin testified in a deposition taken during discovery in the Section
1983 action that his path was blocked by a brick wall at the end of the
backyard where he was shot, and that he discarded his handgun in that yard,
remained silent, and put his empty, open hands up near his ears to signal his
surrender. According to Baskin, he was shot as he turned to face Martinez.
An eyewitness, in a statement to police and at her deposition, stated that
Baskin was shot when he put his empty hands in the air and began to turn
around. No evidence places Baskin’s hands above his head when he was shot.
At Martinez’s deposition in the Section 1983 action, he testified that he
proceeded down the alley believing Baskin was armed. Martinez stated that as
Baskin turned around, his arms were extended at a “90-degree angle,”
“pointing straight in front of him,” and that he had a “black object” “[i]n his
right hand.”
5 At the conclusion of discovery, the trial court granted defendants’
motion for summary judgment, finding that Martinez was entitled to qualified
immunity because his use of deadly force was reasonable under the totality of
the circumstances. Baskin appealed. The Appellate Division reversed in a
split decision. The majority concluded that the contents and position of
Baskin’s hands during the shooting were disputed issues of material fact
precluding summary judgment. The dissenting judge asserted that Martinez is
entitled to qualified immunity because he acted reasonably under the totality of
the circumstances, even under Baskin’s version of the disputed facts; I agree.
Baskin brought this action under Section 1983, which “provides a cause
of action for a person who has been deprived of his or her well-established
federal constitutional or statutory rights by any person acting under the color
of state law.” Schneider v. Simonini, 163 N.J. 336, 353 (2000). A police
officer like Martinez, performing his or her official duties, acts under the color
of state law. See State v. Crawley, 187 N.J. 440, 460-61 (2006) (holding that a
police officer who lawfully performs official functions and acts in objective
good faith operates “under color of law in the execution of his duties”).
The doctrine of qualified immunity, meanwhile, allows police officers
“to perform their duties without being encumbered by the specter of being
6 sued personally for damages, unless their performance is not objectively
reasonable.” Morillo v. Torres, 222 N.J. 104, 108 (2015). Qualified immunity
thus serves as an affirmative defense to shield law enforcement from liability
for discretionary actions taken while acting reasonably under the color of state
law. Brown v. State, 230 N.J. 84, 97-98 (2017). In this way, “[q]ualified
immunity protects all officers ‘but the plainly incompetent or those who
knowingly violate the law.’” Connor v. Powell, 162 N.J. 397, 409 (2000)
(quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)); see, e.g., Morillo, 222
N.J. at 108 (dismissing civil rights causes of action because “[i]t cannot be
said as a matter of law that no reasonably competent officer would have
believed that probable cause existed”).
In practice, the “defense of qualified immunity interposes a significant
hurdle for plaintiffs seeking to recover for asserted violations of civil rights at
the hands of law-enforcement officials.” Morillo, 222 N.J. at 116. That hurdle
comes into particularly sharp relief at the summary judgment stage. Generally,
summary judgment is proper when, viewed in the light most favorable to the
non-moving party, “the pleadings, depositions, answers to interrogatories and
admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact challenged and that the moving party is
entitled to a judgment or order as a matter of law.” RSI Bank v. Providence
7 Mut. Fire Ins. Co., 234 N.J. 459, 472 (2018) (quoting R. 4:46-2(c)). In the
qualified immunity context, “if ‘a reasonable officer could have believed that
his conduct was justified,’ the police officer is entitled to qualified immunity ”
-- and, thus, summary judgment -- as a matter of law. Conde v. City of
Atlantic City, 293 F. Supp. 3d 493, 506 (D.N.J. 2017) (quoting City & County
of San Francisco v. Sheehan, 575 U.S. 600, 135 S. Ct. 1765, 1777 (2015)).
Generally, “application of the defense of qualified immunity is a legal
question for the court rather than the jury” that should be raised before trial.
Brown, 230 N.J. at 98-99; see also Pearson v. Callahan, 555 U.S. 223, 232
(2009) (noting “the importance of resolving immunity questions at the earliest
possible stage in litigation” (quoting Hunter v. Bryant, 502 U.S. 224, 227
(1991))). Because the grant of qualified immunity “relieves an eligible
defendant from the burden of trial,” Brown, 230 N.J. at 99, “a summary
judgment motion is an appropriate vehicle for deciding that threshold question
of immunity when raised,” Morillo, 222 N.J. at 119.
Courts apply a two-pronged test in analyzing whether an officer is
entitled to qualified immunity. Bennett v. Murphy, 274 F.3d 133, 136-37 (3d
Cir. 2001); see also Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). First, a
court must determine whether, “‘[t]aken in the light most favorable to the party
asserting the injury,’” the facts alleged “show that the challenged conduct
8 violated a statutory or constitutional right. Second, the court must determine
‘whether the right was clearly established.’” Morillo, 222 N.J. at 117
(alteration in original) (citation omitted) (quoting Saucier, 533 U.S. at 201).
“An officer might correctly perceive all of the relevant facts but have a
mistaken understanding as to whether a particular amount of force is legal in
those circumstances. If the officer’s mistake as to what the law requires is
reasonable, however, the officer is entitled to the immunity defense.” Saucier,
533 U.S. at 205.
Courts decide the legal issue of qualified immunity by applying that test
when there are no disputed material historical or foundational facts. Morillo,
222 N.J. at 119. Where material facts are in dispute, however, the jury may
determine “the who-what-when-where-why type of historical fact issues.”
Brown, 230 N.J. at 99 (quoting Schneider, 163 N.J. at 359); see Curley v.
Klem, 298 F.3d 271, 278 (3d Cir. 2002) (“[T]he existence of disputed,
historical facts material to the objective reasonableness of an officer’s conduct
will give rise to a jury issue.”); see also Hill v. Algor, 85 F. Supp. 2d 391, 401
(D.N.J. 2000) (“[W]here factual issues relevant to the determination of
qualified immunity are in dispute, the Court cannot resolve the matte r as a
question of law.”). But cf. Schneider, 163 N.J. at 360 (“hold[ing] that[,] in
Section 1983 cases when disputed historical facts are relevant to either
9 probable cause or the existence of a reasonable, but mistaken, belief
concerning its existence, the trial court must submit the disputed factual issue
to the jury,” but finding that trial court’s resolution of factual dispute was
“harmless error” in light of Court’s probable cause analysis).
To resolve whether Martinez acted in an objectively reasonable manner
and was thus entitled to qualified immunity as a matter of law or whether a
factual dispute required that the case be presented to a jury, we consider the
specific contours of Baskin’s Section 1983 claim. See Saucier, 533 U.S. at
205 (holding that the qualified immunity inquiry “must accommodate limitless
factual circumstances”).
The right to be free from “unreasonable searches and seizures” under the
Fourth Amendment of the United States Constitution is the well-established
constitutional right Baskin asserts was violated in this case. Baskin contends
that he had a “clearly established” constitutional right to be free from
Martinez’s use of deadly force, which was “excessive under objective
standards of reasonableness.” Id. at 201-02; see also Kopec v. Tate, 361 F.3d
772, 776-78 (3d Cir. 2004) (Fourth Amendment allows law enforcement to
exercise only “objectively reasonable” force in effectuating arrest). Martinez
counters that Baskin’s constitutional right was not clearly established because
10 “a reasonable officer could have believed that [Martinez’s] conduct was
justified.” Sheehan, 135 S. Ct. at 1777. The Court is obliged to consider what
constitutes a “clearly established” right for qualified immunity purposes in
general and in the context of an alleged violation of the Fourth Amendment in
particular.
Many Section 1983 cases rise or fall on the “clearly established” prong
of qualified immunity. See, e.g., Brown, 230 N.J. at 90 (holding officer did
not violate clearly-established right given “the lack of clarity in the law”);
Morillo, 222 N.J. at 125 (“This was not a setting in which the application of
the statutory exemption . . . was ‘clearly established’ in the framework of our
law.”).
A clearly established right is one of which the contours are “sufficiently
clear that a reasonable official would understand that what he is doing violates
that right.” Saucier, 533 U.S. at 202 (quoting Anderson v. Creighton, 483 U.S.
635, 640 (1987)). “The dispositive point in determining whether a right is
clearly established is whether a reasonable officer in the same situation clearly
would understand that his actions were unlawful.” Morillo, 222 N.J. at 118.
In other words, “[i]f it would not have been clear to a reasonable officer what
11 the law required under the facts alleged, he is entitled to qualified immunity.”
Bennett, 274 F.3d at 136-37 (emphasis added).
As such, it is a “longstanding principle that ‘clearly established law’
should not be defined ‘at a high level of generality.’” White v. Pauly, 580
U.S. ___, 137 S. Ct. 548, 552 (2017) (quoting Ashcroft v. al-Kidd, 563 U.S.
731, 742 (2011)). Indeed, “the clearly established law must be ‘particularized’
to the facts of the case.” Ibid. (quoting Anderson, 483 U.S. at 640); see
Sheehan, 135 S. Ct. at 1776 (“Qualified immunity is no immunity at all if
‘clearly established’ law can simply be defined as the right to be free from
unreasonable searches and seizures.”). A contrary standard would allow
plaintiffs “to convert the rule of qualified immunity . . . into a rule of virtually
unqualified liability simply by alleging violation of extremely abstract rights.”
White, 137 S. Ct. at 552 (quoting Anderson, 483 U.S. at 639).
Importantly, the Supreme Court of the United States has emphasized that
the “clearly established” prong’s requisite particularity and “specificity [are]
especially important in the Fourth Amendment context.” Mullenix v. Luna,
577 U.S. ___, 136 S. Ct. 305, 308 (2015).
Once again, the “use of force is contrary to the Fourth Amendment if it
is excessive under objective standards of reasonableness.” Saucier, 533 U.S.
12 at 202. The Fourth Amendment’s reasonableness standard “is not capable of
precise definition or mechanical application.” Bell v. Wolfish, 441 U.S. 520,
559 (1979). As such, courts take a “totality of the circumstances” approach in
analyzing the reasonableness of a law enforcement officer’s use of force. See
Tennessee v. Garner, 471 U.S. 1, 8-9 (1985); see also Abraham v. Raso, 183
F.3d 279, 289 (3d Cir. 1999) (“[R]easonableness should be assessed in light of
the ‘totality of the circumstances . . . .’” (quoting Graham v. Connor, 490 U.S.
386, 396 (1989))).
Proper application of the reasonableness test requires special “attention
to the facts and circumstances of each particular case, including the severity of
the crime at issue, whether the suspect poses an immediate threat to the safety
of the officers or others, and whether [the suspect] is actively resisting arrest
or attempting to evade arrest by flight.” DelaCruz v. Borough of Hillsdale,
183 N.J. 149, 165 (2005) (quoting Graham, 490 U.S. at 396). The analysis
also “requires a careful balancing of the nature and quality of the intrusion on
the individual’s Fourth Amendment interests against the countervailing
governmental interests at stake.” Curley, 499 F.3d at 207 (quoting Graham,
490 U.S. at 396).
When balancing the government’s interest against the nature of the
intrusion, the reasonableness of an officer’s “use of force must be judged from
13 the perspective of a reasonable officer on the scene, rather than with the 20/20
vision of hindsight.” DelaCruz, 183 N.J. at 165 (quoting Graham, 490 U.S. at
396). That allows reviewing courts to take into account that “police officers
are often forced to make split-second judgments -- in circumstances that are
tense, uncertain, and rapidly evolving -- about the amount of force that is
necessary in a particular situation.” Id. at 167-68 (quoting Graham, 490 U.S.
at 396-97). Hence, the Fourth Amendment does not require that an officer be
correct -- it merely requires that the officer act reasonably. See Heien v. North
Carolina, 574 U.S. 54, 60-61 (2014) (“To be reasonable is not to be perfect,
and so the Fourth Amendment allows for some mistakes on the part of
government officials . . . .”); see also Bennett, 274 F.3d at 137 (“An officer
may still contend that he reasonably, but mistakenly, believed that his u se of
force was justified by the circumstances as he perceived them . . . .”);
DelaCruz, 183 N.J. at 167 (“[A]n officer is free to argue that his conduct was
reasonable in conjunction with his version of the facts.”).
The Court’s emphasis on specificity in the context of a qualified
immunity analysis in response to an alleged violation of the Fourth
Amendment recognizes that “[i]t is sometimes difficult for an officer to
determine how the relevant legal doctrine, here excessive force, will apply to
14 the factual situation the officer confronts.” Mullenix, 136 S. Ct. at 308
(alteration in original) (quoting Saucier, 533 U.S. at 205).
For example, in Brosseau v. Haugen, the Supreme Court of the United
States reversed the Ninth Circuit’s denial of qualified immunity to an officer
who shot and killed a fleeing felon. 543 U.S. 194, 201 (2004). The Ninth
Circuit had found that the officer violated the rule set forth in Garner -- that
“deadly force is only permissible where ‘the officer has probable cause to
believe that the suspect poses a threat of serious physical harm, either to the
officer or to others.’” Haugen v. Brosseau, 339 F.3d 857, 873 (9th Cir. 2003)
(quoting Garner, 471 U.S. at 11). The Supreme Court disagreed and held that
the circuit court’s reliance on the “general test[]” for excessive force set out in
Garner “was mistaken.” Brosseau, 543 U.S. at 199. The correct inquiry, the
Court explained, was whether it was clearly established that the Fourth
Amendment prohibited the officer’s conduct in the “‘situation [she]
confronted’: whether to shoot a disturbed felon, set on avoiding capture
through vehicular flight, when persons in the immediate area [were] at risk
from that flight.” Id. at 199-200 (quoting Saucier, 533 U.S. at 202).
Similarly, in Mullenix, the issue before the Supreme Court was whether
the Fifth Circuit properly held that a police officer violated a clearly
established right when he shot and killed a fleeing motorist during a
15 high-speed chase. 136 S. Ct. at 307-08. The Court discussed excessive force
cases that involved car chases, “reveal[ing] the hazy legal backdrop against
which [the officer] acted.” Id. at 309. According to the Court, even accepting
that the factual circumstances before it “fall somewhere between” cases in
which the force used was found excessive and those in which it was found to
be reasonable, “qualified immunity protects actions in the ‘hazy border
between excessive and acceptable force.’” Id. at 312 (quoting Brosseau, 543
U.S. at 201).
Those cases reveal the context-dependent inquiry that must be performed
here to determine whether Martinez is entitled to qualified immunity.
Although Martinez used deadly force against Baskin, the use of deadly force is
not per se unreasonable. Garner, 471 U.S. at 11. The Court must therefore
consider Martinez’s use of deadly force in the totality of the circumstances
present in this case. Graham, 490 U.S. at 396.
I agree with the Appellate Division dissent that summary judgment is not
precluded by the existence of a genuine issue of fact as to whether Baskin’s
hands were empty and raised at the time of his shooting. See, e.g., Conde, 293
F. Supp. 3d at 505-06 (holding that the officer’s use of deadly force was not
unreasonable where the suspect’s hands were raised because the possibility
16 existed for the suspect to reach into his waistband for the weapon he was
believed to be carrying). Even if an officer is mistaken in believing a suspect
is armed, qualified immunity will still apply if the officer’s mistaken belief
was objectively reasonable. See, e.g., Krueger v. Fuhr, 991 F.2d 435, 439 (8th
Cir. 1993) (noting that, “even assuming” the suspect fatally shot by an officer
was established to have been “unarmed at the time of the shooting, that fact
would not preclude entry of [summary] judgment” in favor of the officer
whose “belief that he was facing an armed and dangerous suspect was
objectively reasonable”); Conde, 293 F. Supp. 3d at 505 (“[A]s long as [the
officer’s] belief that [the suspect] was armed is reasonable, qualified immunity
applies even if [the officer] was mistaken.”). Furthermore, Martinez’s actions
are considered “from the perspective of a reasonable officer on the scene,
rather than with the 20/20 vision of hindsight.” DelaCruz, 183 N.J. at 165
(quoting Graham, 490 U.S. at 396). Even if Baskin’s account of the events is
accepted as true for purposes of summary judgment, Martinez reasonably
believed that he confronted an armed and dangerous suspect who posed an
immediate threat to his life when he shot Baskin.
Here, before he was restrained, Baskin threatened the lives of police
officers and the general public by speeding away from one police vehicle and
crashing into another. Baskin, armed with a gun, then fled the scene of the
17 crash on foot and led the police on a pursuit through a residential
neighborhood in the middle of the afternoon. Baskin thus “openly . . .
exhibited a total willingness to commit dangerous acts against police officers ”
and displayed an “apparent disregard for innocent bystanders.” Ridgeway v.
City of Woolwich Twp. Police Dep’t, 924 F. Supp. 653, 658 (D.N.J. 1996).
Additionally, Baskin posed “an immediate” threat because he was in
possession of a handgun while actively resisting arrest. DelaCruz, 183 N.J. at
165 (quoting Graham, 490 U.S. at 396). Those facts reasonably led Martinez
to conclude that Baskin, who had committed serious crimes “involving the
infliction or threatened infliction of serious physical harm” -- crashing into a
police vehicle in an attempt to escape -- was dangerous and willing to use
deadly force against the officer and others. Garner, 471 U.S. at 11-12.
Martinez unholstered his service weapon only after he entered the alley
and observed Baskin pick up the gun from the ground and run out of
Martinez’s view into a backyard. It was then that Baskin threw his gun away.
As Martinez rounded the corner and for an instant saw Baskin turn towards
him, Martinez’s belief that Baskin was armed -- even if mistaken -- was
reasonable given the “tense, uncertain, and rapidly evolving” circumstances
before him. DelaCruz, 183 N.J. at 167 (quoting Graham, 490 U.S. at 397).
18 The totality of the circumstances establishes that a reasonable officer at
the scene would have no reason to know, in the split second that Martinez fired
his weapon, that Baskin no longer possessed a gun. Thus, considering the
alleged facts in a light most favorable to Baskin -- that his hands were empty
and raised -- Martinez’s belief in the need to use deadly force to prevent
Baskin’s escape and protect against the threat of danger Baskin posed to
Martinez and others was reasonable given the totality of the circumstances
from the perspective of an officer on the scene. Particularizing the law to the
facts of the case, White, 137 S. Ct. at 552, Martinez’s use of deadly force falls
within Garner’s parameters because “a reasonable officer could have believed
that [Martinez’s] conduct was justified.” Sheehan, 135 S. Ct. at 1777 (quoting
Billington v. Smith, 292 F.3d 1177, 1189 (9th Cir. 2002)). The record
establishes that Martinez acted reasonably under extraordinarily dangerous
circumstances, and that defendants are therefore entitled to qualified immunity
as a matter of law. Accordingly, I dissent.
Related
Cite This Page — Counsel Stack
Bryheim Jamar Baskin v. Rafael Martinez (081982) (Camden County & Statewide), Counsel Stack Legal Research, https://law.counselstack.com/opinion/bryheim-jamar-baskin-v-rafael-martinez-081982-camden-county-nj-2020.