event an escape beyond the shopping center was attempted. All of the agents in the immediate area of the bank were armed with shotguns except for those in the bank who had handguns only. Shotguns were used in the hope that such a show of fire and manpower would dissuade any attempt at resistance or escape.
The FBI watched and listened as the car made several passes at the bank while the occupants discussed possible problems or detection. Finally, they decided that the moment was right and parked directly in front of the bank. As soon as the plaintiff and John Calarco exited the vehicle, the FBI moved into action. Plaintiff rushed up to the bank and entered the first set of doors only to find the inner doors locked. He also observed law enforcement officers in the bank whom he believed to be FBI agents with drawn guns. He turned to flee and raced out of the bank.
At the precise moment plaintiff and Calarco exited the automobile, agents in the camper began their exit. The first agent was observed by Frank Vuono from the driver's seat in the getaway car. He yelled: "Get back in there * * *" and fired a shot from his .38 weapon and threatened to fire again. This first shot by Vuono was equivalent to the splitting of an atom. It was the catalyst for the chain reaction which followed. Plaintiff denies that the first shot was fired by Vuono, but the court specifically finds that it was.
The agents who had been in the camper opened fire. They not only struck Vuono and the plaintiff as he fled from the bank but three agents in the bank.
Those agents thinking they had been fired upon by the robbers immediately commenced firing their handguns. Those agents who were on the roofs and in the van, some of whom saw Vuono shoot, heard handguns fired from the front of the bank, saw an injured agent, saw and heard the other agents firing their weapons and saw the plaintiff run and dive into the car with a weapon, joined in the firing. From the moment plaintiff jumped from his car until the last shot was fired, thirty-three seconds had elapsed. In that short period of time, eleven agents had used their weapons a total of thirty-nine times and had fired a total of 281 bullets and buckshot pellets. Frank Vuono was dead. Plaintiff had received sixty-five wounds. Four agents had been wounded. The automobile had been hit approximately 141 times.
Two factual assertions by plaintiff of his actions during this Armageddon require specific attention. Plaintiff contends that his pistol never left his rear waistband and that he raised his hands in a gesture of surrender in front of the bank and shouted, "O.K. O.K.," only to be hit repeatedly, requiring him to seek shelter in the car.
The court accepts plaintiff's contention that he never fired his automatic, because such conclusion is supported by the scientific and physical evidence or the lack of it. The court, however, rejects his contention that he never carried or displayed the weapon. Plaintiff testified that he did not take out his weapon upon leaving the car for fear that it would be observed. The court finds that contention incredible, because plaintiff had placed a pantyhose mask over his head and put on green rubber gloves before leaving the car. To suggest that these would not attract attention but a weapon would is to ignore reality. Furthermore, several agents at different vantage points observed plaintiff with gun in hand. Finally, when plaintiff was removed from the vehicle the gun was found nestled in the left front of his sweat shirt and not in his rear waistband.
As to his claim of purported surrender, the evidence does not support his testimony. Plaintiff testified that when he was a few feet from the getaway car he attempted to surrender. Plaintiff's version was tailored so as to coincide with a tape of the incident that he had obtained under the Freedom of Information Act. On that tape, indeed the plaintiff is heard to say "O.K. O.K." However, what plaintiff did not know was that the tape recorder (as opposed to the transmitter) was only activated by plaintiff's presence in the car on the passenger seat. Therefore, since those words appear on that tape recording, by necessity they must have been spoken by plaintiff while inside the vehicle, rather than outside as he contends.
Even if plaintiff's version were true, which it is not, the actions of his co-conspirator cannot be ignored. The court began this opinion with recognition of the principle that even a criminal in the course of committing a crime has certain rights. If he surrenders upon command, does not resist, and makes no attempt to flee, he cannot and should not be physically harmed, no matter how serious the crime just committed may be. It is at this moment that the wheels of justice must begin to turn and be permitted to run their course.
However, a person acting in concert with others may have forfeited his right to effectuate such a surrender. One's co-conspirator is one's agent. If that person has used deadly force against police officers and they are reasonably in fear that he will continue to do so, the one inclined to surrender may not be able to dissolve his association where his partner, in close proximity, appears to have plans to carry on the battle. Having determined to enter into an illegal enterprise, the plaintiff may have deprived himself of the right and ability to disassociate himself from the venture under such circumstances. In other words, if the FBI had the right to shoot at Mr. Vuono, plaintiff cannot complain that he was hit because he was nearby, despite his unilateral desire to surrender.
From these facts Mr. Amato contends that the actions taken by the FBI to implement the plan for his arrest were negligent. The theory of negligence advanced is that the officers used excessive and unreasonable force to make the arrests. Under the Federal Tort Claims Act, New Jersey law controls on the issue of use of force by the officers.
New Jersey law limits the amount of force that may be utilized by law enforcement officers to that amount which reasonably appears to be necessary to effectuate arrests. State v. Williams, 29 N.J. 27, 39, 148 A.2d 22 (1959). The determination of whether or not excessive force was used in any situation is to be made on the basis of the facts as they reasonably appear to the officer at the time of the occurrence. Id. The tort law of negligence imposes a duty to act reasonably under the circumstances, and when an emergency condition exists, a police officer's conduct is measured against the demands of the emergency.
"The rule of law in determining negligence in this type of situation is that when one is confronted with an emergency, with no time for thought, or to weigh alternative courses of action, but must make a speedy decision based on impulse and instinct gained from experience, the finder of fact, using the reasonable man test, may absolve him from liability even if a wiser course might have been selected if time permitted due deliberation be given to the matter."
Viruet v. Sylvester, 131 N.J. Super. 599, 602, 331 A.2d 286 (App. Div.), cert. denied, 68 N.J. 138, 343 A.2d 426 (1975), (where police officer left his vehicle to approach decedent in his car, and the officer observed the vehicle proceed forward as if to run him over, the application of the emergency doctrine required the conclusion that the officer was not negligent when he fired shots at the oncoming vehicle that killed the decedent). Where an offender offers physical resistance to arrest, a law enforcement officer need not retreat, but may become the aggressor and use such force as is necessary to overcome the resistance and to protect himself from serious injury. State v. Williams, 29 N.J. at 39; Wimberly v. Paterson, 75 N.J. Super. 584, 594, 183 A.2d 691 (App. Div.), cert. denied, 38 N.J. 340, 184 A.2d 652 (1962). Even when law enforcement officers are legally justified in firing their weapons, they are held to a duty of extraordinary care in the use of their firearms when the shooting causes harm to innocent bystanders. Davis v. Hellwig, 21 N.J. 412, 416, 122 A.2d 497 (1956). Under New Jersey law there is a presumption that a police officer acted with ordinary caution and in good faith in the performance of his duties. State v. Williams, 29 N.J. at 44-45.
Here, the FBI had a duty to arrest plaintiff and his co-conspirators, who were committing an attempted armed bank robbery. Plaintiff's burden is to demonstrate that the officers used excessive and unreasonable force to effectuate the arrests. In essence, plaintiff charges that too many agents fired too many shots for too long a period of time. Initially the court finds that there was no negligence on the part of the FBI in having too many agents on the scene. On the contrary, the more agents the greater the show of force, the more likely that there will be no resistance.
As to the number of shots fired, it is not appropriate in the court's view to place emphasis on the total number of shots fired, although it is more dramatic to do so. Under such circumstances, the agents do not have the luxury of holding a conference to allocate responsibility and decide who will respond and who will not. The action must be viewed from the eyes of each agent individually and not collectively. Each fired his weapon in the sincere and reasonable belief that either the agent himself or one of his colleagues was in mortal danger. No single agent fired without reasonable cause and none fired an excessive number of times considering all of the surrounding circumstances.
In evaluating the actions of the FBI at the scene, it is important to consider what information they possessed regarding the plaintiff and his accomplices. Plaintiff had a long criminal record of armed robberies. He was currently being investigated for numerous unsolved robberies. He was known to use firearms for said robberies and was capable of violence. He associated with other known, violent criminals, one of whom was his partner in crime in this venture, Frank Vuono. Plaintiff's modus operandi was to use a mask and gloves, and he followed that practice in preparation for this robbery.
Furthermore, the FBI knew the robbers had weapons and actually heard them being loaded by way of the transmission. They also listened in as the robbers donned their gloves and masks (pantyhose).
Even FBI agents are to be judged by a standard of reasonableness and not perfection. In retrospect, far too many shots were fired than were necessary, but hindsight is not the standard by which the matters are to be judged. In the same respect, the firing may have continued longer than necessary. At some point, Mr. Vuono was dead and plaintiff incapacitated. But those facts were not readily apparent at the time, and it is impossible to determine when in that thirty-second period of time the agents were justified in concluding that no further danger existed. Even when the firing ceased the agents approached the vehicle with great caution, because they still were not certain that the danger had ended.
Viewing all of the facts and circumstances of the emergency created by the actions of the plaintiff and his co-conspirators, the court finds that the agents acted reasonably to cause the arrests of the robbers and to protect themselves and their colleagues from bodily injury. Because the agents acted reasonably, defendant has no liability for plaintiff's injuries.
The government contends that even if the FBI were found to be negligent, that plaintiff is barred by his own contributory negligence from any recovery. Under New Jersey law, contributory negligence of the plaintiff will bar recovery in a negligence action if the contributory negligence was greater than the negligence of the defendant. N.J. Stat. Ann. § 2A:15-5.1. Because the plaintiff has proven no negligence of the defendant it is unnecessary to reach a determination of contributory negligence. Furthermore, to discuss plaintiff's conduct in terms of negligence standards may tend to confuse rather than clarify what is in issue. Plaintiff's conduct was not negligent in the traditional sense. He entered into a conspiracy to commit an intentional criminal act. His accomplice fired the first shot which set the forces of destruction in motion. Plaintiff bears responsibility for those acts. Return fire was foreseeable. Confusion was foreseeable. Injury and death were foreseeable.
Each individual agent who was placed in fear of bodily harm or who reasonably believed that he or his colleagues were in such danger had the right to respond with equal force. Having gone to a bank with the intention of robbing it, armed with loaded weapons, and firing such weapon at an FBI agent, the plaintiff is responsible for the foreseeable consequences. It is foreseeable that: he who lives by the gun shall die by the gun.
There is a line over which a law enforcement officer may not cross. That line must be drawn on a case by case basis depending on all of the surrounding circumstances as viewed by a reasonable officer at the time and place involved. However, one must also recognize the risks of this profession and the brief time allotted to evaluate such risk and respond to it. We must not permit or encourage the use of force unless it is reasonable and necessary. On the other hand, we should not condemn the use of force when it is essential to protect the law enforcement officer or the public.
The fact that such a claim could be heard in the courts of our society is a recognition of the great value we place on the rights of the individual, no matter how anti-social his behavior has been. The rejection of his claim is not a rejection of the right to assert such claims under appropriate circumstances, but merely a finding that those circumstances do not exist in this case.
With the increasing incidence of crime in our society, we must constantly remind law enforcement officers to act with restraint, particularly in the face of the mounting frustration they must encounter in combating crime. We must also recognize their invaluable and frequent heroic contribution to our society and not hold them liable for the acts done in the proper performance of their duties.
For the foregoing reasons, judgment shall be entered in favor of the defendant and against the plaintiff. Counsel for the defendant shall submit an appropriate form of order in accordance with this opinion.