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July 30, 1992

Sarah E. Fagan, et al., Plaintiffs,
The City of Vineland, et al., Defendants.

The opinion of the court was delivered by: WILLIAM G. BASSLER


 Defendants the City of Vineland, the Vineland Police Department Chief of Police Joseph P. Cassisi, Police Captain Mario R. Brunetta, Officer David Tesoroni, Officer Beny Velez, Officer Richard Putnam, Officer Phillip Bocelli, and Officer Peter Coccaro III (the "Vineland defendants") have filed five motions seeking summary judgment.

 The first motion asks for summary judgment in favor of all the Vineland defendants on the plaintiffs' claims under 42 U.S.C. § 1983 alleging a Fourteenth Amendment violation, arguing that the claim may only proceed as a Fourth Amendment violation. For the following reasons, this motion will be denied.

 The second motion seeks summary judgment in favor of all the Vineland defendants on (1) the plaintiffs' claims under 42 U.S.C. § 1983 of violation of their Fourteenth Amendment right to due process, and (2) plaintiffs' negligence claims under the New Jersey Tort Claims Act. For the following reasons, summary judgment will be granted in favor of the defendants on the claims under 42 U.S.C. § 1983, and the New Jersey Tort Claims Act claims will be dismissed for lack of jurisdiction.

 The third, fourth and fifth motions were filed individually by officers Richard Putnam, Peter Coccaro III, and Phillip Bocelli. For the reasons stated in the discussion of the second motion described above, these defendants are granted summary judgment on the claims under 42 U.S.C. § 1983, and the claims under the New Jersey Tort Claims act are dismissed.

 I. Introduction

 These are five consolidated lawsuits arising out of an automobile accident that followed the police pursuit of a car in Vineland, N.J.

 Plaintiffs are those who survived the accident, and the relatives and estates of those who did not. They allege that the their substantive due process rights as guaranteed by the Fourteenth Amendment were violated because the police involved in the chase recklessly disregarded police pursuit guidelines, and because the remaining Vineland defendants failed to train and supervise these officers. Plaintiffs also claim that the Vineland defendants are liable under the New Jersey Tort Claims Act. *fn1"

 The Vineland defendants have filed five motions for summary judgment.

 In the first, they argue that plaintiffs may not assert a Fourteenth Amendment substantive due process violation stemming from a police pursuit. Rather, they argue, the claim must be brought, under the Supreme Court's holding in Graham v. Connor, 490 U.S. 386, 104 L. Ed. 2d 443, 109 S. Ct. 1865 (1989), as a violation of the Fourth Amendment's prohibition of unreasonable searches and seizures. The second motion argues that, assuming the claim was appropriately brought as a Fourteenth Amendment claim, summary judgment is required because plaintiffs have failed to show that the Vineland defendants acted arbitrarily during the pursuit. Further, this motion argues, the Vineland defendants are entitled to good-faith immunity to any claims brought under the New Jersey Tort Claims Act.

 In three separate motions, defendant officers Putnam, Bocelli and Coccaro move for summary judgment on the state-law and Section 1983 claims, arguing that their actions were not arbitrary.

 For the purposes of this motion, the following background as described by the plaintiffs will be accepted as true. *fn2"

 A. The Pursuit

 Shortly before 2 a.m. on March 6, 1988, defendant Officer David Tesoroni ("Tesoroni") was on routine patrol on Landis Avenue in Vineland. Landis Avenue is the main street running through the city's business district, and is a popular gathering place and cruising spot for young people. As Tesoroni was heading west on Landis Avenue, he spotted a white Camaro heading east. As the car passed, Tesoroni saw a passenger in the Camaro stand up through the car's open T-top.

 The Camaro was driven by Jeffrey Pindale ("Pindale"), 19. In the front passenger seat was his wife, Wanda, and riding in back were his friends, Al Stavoli and Maurice Davis.

 In order to give the driver a warning for an offense described by Tesoroni as "riding on parts not intended for," Tesoroni made a U-turn on Landis Avenue and accelerated. In the meantime, Pindale turned right off Landis Avenue on to Eighth Street heading south. Tesoroni followed the Camaro on to Eighth Street, and as he made the turn, activated his overhead lights. He could not tell whether Pindale was speeding. The Camaro continued south on Eighth Street for two blocks, and then turned right onto Grape Street heading west, where it accelerated to between 35 and 40 miles per hour.

 The Camaro then proceeded through two stop signs, where it slowed but failed to stop, and Tesoroni continued to follow. The Camaro turned left on to Sixth Street heading south, and then left again on to Montrose Street heading east. Tesoroni was following at 30 to 35 miles per hour and the Camaro was pulling away at 35 to 40 miles per hour, in a residential area with a 25-mile-per-hour speed limit. At this point Tesoroni advised headquarters of his actions.

 The pursuit continued in this fashion in the same kind of residential neighborhood, and more stop signs were run. When Pindale reached Almond Street and East Avenue, he turned off his headlights. The pursuit continued, the Camaro traveling at about 40 miles per hour.

 Back at headquarters, defendant Sgt. Edgar Zatzariny ("Zatzariny") was in charge, and had the authority to order Tesoroni to discontinue the pursuit, but never did so. Zatzariny asked the dispatcher to ask Tesoroni why he was pursuing the Camaro, but Tesoroni never responded.

 When it turned on to Chestnut Avenue - a four-lane road, two lanes in each direction - the Camaro accelerated to 50 miles per hour, traveling west, still without headlights. Tesoroni continued his pursuit.

 During the chase on Chestnut Avenue, defendant Officer Richard Putnam ("Putnam") pulled out on to Chestnut Avenue from a sidestreet, facing his car eastward and blocking Chestnut Avenue's outside westbound lane. Putnam's headlights and overhead lights were on, but the Camaro sped past, Tesoroni still in pursuit. Putnam waived his arms in an unsuccessful effort to signal the Camaro to stop. There is some dispute, according to the plaintiffs, over whether he got out of his patrol car to waive his arms.

 Around this time, defendant Officer Beny Velez ("Velez") approached Chestnut Avenue at Sixth Street. He saw the Camaro pass by with Tesoroni one to two blocks behind. Velez turned onto Chestnut Avenue in front of Tesoroni but behind the Camaro, and became the lead vehicle in the pursuit, his overhead lights and siren on. Velez estimated that the Camaro was travelling at 70 to 80 miles per hour, and that he was travelling at 50 to 60 miles per hour. As Velez came over a rise at about Fourth Street and Chestnut Avenue he saw the Camaro some blocks ahead near the intersection with Holly Hill Terrace.

 Velez then radioed to headquarters that the Camaro was approaching the intersection of Chestnut Avenue and Delsea Avenue. At that intersection, the Camaro ran a red light and collided with a pickup truck traveling on Delsea Avenue. Killed were the occupants of the pickup truck, Christopher Duke and Michael Fagan, and one of the passengers in the Camaro, Al Stavoli. Wanda Pindale and Maurice Davis were severely injured, and Jeffrey Pindale, the driver, was less seriously injured.

 A witness to the collision, Anthony Campbell, saw four police cars approach the accident scene from westbound Chestnut Avenue.

 B. The Guidelines

 At the time of the accident, the City of Vineland had adopted the police pursuit guidelines promulgated in 1986 by the New Jersey Attorney General and County Prosecutors Association ("the guidelines"). They read, in part:

 A. When to pursue

 Generally, police officers shall make every responsible effort to apprehend a fleeing vehicle. Therefore, a pursuit may be initiated whenever a law violator refuses to stop and uses his vehicle to flee. The pursuit should always be tempered with common sense and the officer should be aware of the degree of hazard to which he exposes himself and others. The decision to conduct such a pursuit should depend upon the seriousness of the threat that the violator presents to other persons or to society in general; hence the objective of the pursuit must be to apprehend a violator, and the purpose of the apprehension must be to bring the perpetrator to trial.

 Guidelines at 3-4.

 The guidelines suggest that these factors be taken into account by an officer considering whether to pursue a suspect:

 1. The nature of the violation.

 2. The likelihood of successful apprehension.

 3. The hazard created by the high speed pursuit.

 4. The volume, type, speed and direction of the traffic.

 5. The nature of the area, whether residential, commercial, school zone, open highway, etc.

 6. The population density.

 7. Familiarity with the roads.

 8. The weather and road conditions; i.e., the width and curves of the roadway; stopping and sight distances.

 Guidelines at 4.

 Further, the guidelines offer three possible scenarios and suggest certain action:

 1. Non-hazardous violations such as motor vehicle equipment defects, inspection overdues, and registration violations, never warrant prolonged pursuit or the operation of a motor vehicle at excessive speeds. The risk exceeds the necessity for immediate apprehension.

 2. completed violations. Where the danger has passed, i.e., failure to obey a stop sign, a traffic signal, improper passing, or any other non-continual violation, a prolonged pursuit of a motor vehicle at excessive speeds is seldom warranted, particularly when it may cause a greater risk than the violator intended. The responsible discretion of the police officer is relied on very heavily to justify his decision to pursue or not to pursue.

 3. Indictable violations and continuing hazardous violations. Pursuit is often necessary to make an apprehension of one suspected of the commission of an indictable offense. In such instances serious potential for bodily harm or property loss may occur in the event that apprehension does not occur immediately. For example, in kidnapping, destruction or abandonment of critical contraband or evidence, commercial theft, burglaries or the flight of a first or second degree offender, the need to apprehend is paramount but must be weighed against the dangers involved to other highway users, pedestrians, the officer in pursuit and the suspect.

 Guidelines at 4-5.

 Plaintiffs' expert Leonard Territo, Ph.D., ("Territo") has testified that the pursuit violated these guidelines, and that the officers involved acted recklessly under the circumstances. His testimony, which the plaintiffs contend precludes summary judgment, is addressed below.

 II. Discussion

 A. Procedural History

 The two motions brought by all of the Vineland defendants are the second and third summary judgment motions brought by all of the Vineland defendants seeking dismissal of the claims alleging violation of due process. The first motion, which led to the resolution of the issues raised again in these two motions, was decided by U.S. District Court Judge Joseph Rodriguez in July 1991. Afterward, this case was transferred here. *fn4" Proper consideration of these motions requires an understanding of the first summary judgment motion and Judge Rodriguez's decision.

 The first motion for summary judgment by the Vineland defendants sought dismissal of the civil rights claims against them, and argued that the undisputed facts gave rise to neither a Fourteenth Amendment claim nor a Fourth Amendment claim. In support, defendants submitted a 41-page brief, which was met with a 49-page opposition brief ...

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