On appeal from the Superior Court of New Jersey, Law Division, Burlington County, L- 3434-97, L-3677-98, L-3678-98.
Before Judges Pressler, Wallace, Jr. and Ciancia
The opinion of the court was delivered by: Wallace, Jr., J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: November 6, 2002
Decedent was fatally shot by the police after he brandished a weapon inside his parents' home. Plaintiffs filed these wrongful death actions against individual police officers and the Township of Mount Laurel. The separate complaints were consolidated pursuant to an order dated April 19, 1999. Defendants sought summary judgment, relying on good faith immunity in the enforcement of any law under N.J.S.A. 59:3-3. The Law Division judge agreed and dismissed plaintiffs' complaint. On appeal, plaintiffs contend it was error to dismiss their complaint because they established a prima facie case of willful misconduct which the jury should decide. We agree that a question of fact for the jury exists and reverse.
The record on the motion for summary judgment established the following facts. On the night of December 11, 1996, police officers Timothy Connors, Arthur Dorst, and Michael Stone responded to a domestic violence complaint between decedent Lonnie Clarke, IV, and his parents, plaintiffs Lonnie Clarke, III, and Mary Jane Clarke. Lonnie wanted to leave the house and drive the car, but his parents objected because they believed he was intoxicated. Officer Dorst was aware that Lonnie had a prior psychological history. After speaking with the parents, at least one of the officers went to Lonnie's downstairs bedroom and spoke to him. Lonnie said he just wanted to be left alone. The officers returned to speak with the parents who informed them that Lonnie had previously stolen their vehicle and credit cards.
After investigating the call, the police officers left the house. While outside the house, the police heard a gun shot. Officer Stone, the senior officer at the scene, requested help. The police noticed Lonnie began to break through the screen of the ground-level bedroom window with the butt of a rifle. Officer Stone re-entered the house and removed the parents.
Officer Dorst attempted to speak with Lonnie. Lonnie yelled that someone was going to die tonight, and he was going to kill some cops. Lonnie then retreated back into the bedroom. The police called the tactical team.
Officer Connors spoke to the parents who by this time were located at a neighbor's house. He was informed that the only way into the house was the front doorway. Officer Connors then entered the house, positioned himself at the top of the stairway inside the front door, and turned off the lights. His intention was to contain Lonnie in the downstairs portion of the home and prevent access to the second floor. At some point, Lonnie left his bedroom and approached the stairs with his rifle pointed at Officer Connors. Officer Connors fired his weapon at Lonnie, who retreated to his bedroom.
Officer Frank Kanicki, who had responded to the earlier call for help, also entered the home. He positioned himself on the opposite side of the staircase from Officer Connors.
Meanwhile, Lonnie was talking to Officer Dorst at the front window and requested an open telephone line. Lonnie continued to threaten the police. Lonnie yelled that he had forty-eight bullets and he was going to get the police. Officer Connors saw Lonnie leave his bedroom and open the bolt on his rifle as if to reload the weapon. Officers Connors and Kanicki instructed Lonnie to drop the gun and stay where he was. Lonnie refused and started walking up the stairs with his rifle pointed towards Officer Kanicki. Officer Connors then fired his weapon several times, killing Lonnie. The SWAT/tactical force team, which had been called, arrived sometime after the incident.
At his deposition, Officer Connors stated he was aware of the Mt. Laurel Police Department procedures in effect in December 1996 addressing proper course of action when faced with hostage, barricade, or sniper situations. He said the procedure was essentially that which was later codified in General Order 99-1 (G0 99-1). Phase I of the GO 99-1 pertains to actions taken by the police upon arrival at the scene and provides that the first officer who arrives shall: (1) assume command until the arrival of a senior officer; (2) contain the suspect; (3) establish a perimeter; (4) reinforce the perimeter containment area with officers from adjacent jurisdictions when needed; (5) avoid confrontation when possible in favor of controlling and containing the situation until the arrival of trained Tactical and/or Critical Incident Negotiation Personnel; (6) when confronted by hostage/barricaded subjects, shall not initiate tactical actions other than those necessary to protect the lives and safety of themselves or others consistent with the New Jersey Code of Criminal Justice, N.J.S.A. 2C:3-1 to 2C:3-10, the Attorney General Guidelines concerning the use of force, and the Mt. Laurel Police Department's use of force policy as identified in GO 98-2; and (7) evacuate the affected area, if possible. Phases II and III of GO 99-1 pertain to the actions by the officer in charge of the tactical team.
Officer Connors stated that the same basic information contained in GO 99-1 existed in prior orders and that he was trained to avoid confrontation. Furthermore, he received in-service training three to four times a year concerning how to deal with barricaded subjects and snipers. He acknowledged that one month prior to the shooting incident, he had received training on the use of different levels of force, including when to use such force with barricaded subjects. Officer Connors maintained that police procedure in December of 1996 required of the first officer to arrive in a sniper or barricaded subject situation: to assume command until a senior officer or supervisor arrived; to establish a perimeter, meaning to set officers up in locations to allow a suspect certain movement but containment at the same time; and to reinforce the perimeter containment areas with officers from adjacent jurisdictions. Although he could not recall reading a procedure that required officers to avoid confrontation until the arrival of trained tactical and/or critical incident negotiation personnel, he stated that officers were trained to avoid confrontation and were aware of such procedures.
Additionally, Officer Connors acknowledged that he received training prior to 1996, in accordance with the New Jersey Code of Criminal Justice, that basically states that officers confronted by hostage or barricaded subject incidents shall not initiate tactical actions other than ...