On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. 6481-99.
Before Judges Skillman, Lefelt and Winkelstein.
The opinion of the court was delivered by: Skillman, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
In this appeal, we consider the "state-created danger" doctrine, recognized by a majority of the federal circuit courts of appeal, under which state and local officials who create a danger of harm by private actors that otherwise would not have existed may be held liable for a violation of the substantive due process rights of the injured party. Although the Supreme Court of the United States has not yet determined whether this is a viable cause of action, we accept the doctrine as formulated by the Third Circuit Court of Appeals. However, we conclude that plaintiffs' claim, which rests upon local officials' insistence upon inspecting a store in a high- crime neighborhood after its normal closing hour and refusing to accompany the owner and his employees to their car after the inspection, following which the owner and an employee were shot, does not provide a basis for imposition of liability under the state-created danger doctrine.
Gustavo Rodriguez owned a grocery store in a high-crime area in the City of Camden. Rodriguez's brothers, Julio and Ricardo Jacques, worked in the store. The three men would usually open for business around 7:00 a.m. and close between 9:00 and 9:30 p.m.
Around 9:30 p.m. on March 13, 1998, while the brothers were in the process of closing, a group of six to eight officials of the City of Camden arrived at the store. These officials, who apparently included representatives of the licensing, health, fire and police departments, told Rodriguez they were there to conduct an inspection. Expressing concern that a late-night inspection would create an increased personal safety risk for him and his brothers, Rodriguez asked the inspectors to return the next morning when the store opened for business. However, the inspectors insisted upon conducting the inspection that night. When the inspection was completed approximately an hour-and-a-half later, one of the inspectors issued Rodriguez a summons for operating without a license. As the inspectors were getting ready to leave, Rodriguez asked them to wait while he and his brothers re- closed the store, so they could all leave together under the protection of the armed members of the inspection team. However, the inspectors refused to delay their departure and left the store.
Approximately five minutes later, as they were re-closing the store, the brothers heard the sound of the alarm in Rodriguez's car. When Julio went outside to investigate, he observed "side-swipe" damage to the car and a man who Julio could not understand, due to his limited comprehension of English, apparently trying to tell him something about the damage. Julio went back into the store to get his brother. When Julio and Rodriguez left the store to look at the damage to the car and speak to the man, they were both shot. As Julio was running back into the store, he saw Rodriguez heading in the direction of the shooter. Julio survived the shooting, but the police discovered Rodriguez's lifeless body a block from the store around 11:45 p.m. According to Julio, the shooting occurred approximately ten minutes after the inspection team left the store. The person who shot Rodriguez and Julio was never apprehended.
Plaintiffs Betzaida Gonzales and Ramona Checo, as co- administrators of Rodriguez's estate and guardians ad litem for his minor children, and Julio Jacques, brought this action against the City of Camden and the alleged individual members of the inspection team. Plaintiffs' complaint asserted claims under the Civil Rights Act, 42 U.S.C.A. § 1983, as well as under State law.
After expiration of the time for discovery, defendants moved for summary judgment. In opposition to the motion, plaintiffs relied upon affidavits by Julio and Ricardo Jacques recounting what occurred on the evening of the shootings.
The trial court concluded in an oral opinion that defendants could not be held liable under the state-created danger doctrine because plaintiffs' proofs could not support a finding that defendants' actions created an opportunity that otherwise would not have existed for the commission of a crime, that defendants "wilfully disregarded" the brothers' safety by refusing to stay until they re-closed the store, or that Rodriguez's death and Julio's injuries were a "direct result" of defendant's actions. Accordingly, the court granted summary judgment dismissing plaintiffs' complaint.
The Civil Rights Act, 42 U.S.C.A. § 1983, provides in pertinent part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . , subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
Section 1983 does not create any substantive rights; it only establishes remedies for deprivations of rights established elsewhere in the United States Constitution or federal statutes. Baker v. McCollum, 443 U.S. 137, 144, ...