On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. CAM-L-5739-01.
Before Judges Conley, Carchman and Wecker.
The opinion of the court was delivered by: Conley, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This is a tragic case. Howard and Michelle Strumph were married and resided in Voorhees with their two children, Jennifer, age ten, and Willem, age one. Howard has multiple sclerosis and is confined to a wheelchair, although he can walk with great effort. On the date in question, the Strumphs had hired Richard Ventura, the son of their cleaning lady, to help prepare for Willem's first birthday party. Howard heard his wife call for help from downstairs and wheeled to the landing to see what was going on. He observed Ventura attempting to sexually assault his wife. Howard activated the alarm system and retrieved his gun. In the meantime, Jennifer had called 911. While she was on the phone, Howard fired five shots at Ventura. Three shots hit him and he was rendered a paraplegic. One shot hit Michelle in the chest. She collapsed unconscious onto the floor. Unbeknownst to Howard, police officers were about to enter the house in response to Jennifer's 911 call when they heard the gunshots. Jennifer ran out of the house and told the police that her father had shot her mother and Ventura, who was"acting crazy."
The police did not enter the house for over an hour. Howard was on the phone with the police for the entire time pleading for officers to enter the home and provide medical attention to Michelle. The officers continually assured Howard that help was on the way. After a little over an hour, SWAT officers entered the home, but by then Michelle had expired. Howard filed a 42 U.S.C. § 1983 action on Michelle's behalf alleging that the officers and the Voorhees Police Department (VPD) acted with deliberate indifference and violated her constitutional rights by not intervening sooner. After full discovery, the defendants' motion for summary judgment was granted. Howard appeals; we affirm.
The focus of the 1983 claim is upon the delay in entering the home. We, therefore, limit our recitation of the summary judgment record to the facts, all undisputed, relating to the police response. According to the VPD Dispatch Log, Jennifer's phone call came in at 3:15 p.m., and police were dispatched to the scene instantly, with the first unit arriving at 3:16 p.m. Six additional officers arrived between 3:16 and 3:26 p.m. Three more officers arrived between 3:40 and 3:47 p.m.
The supervising officer was Chief Hummel. His answers to interrogatories reflect that he was advised of the shooting at 3:26 p.m. and arrived at the scene at 3:30 p.m. The first ambulance was dispatched to the scene at 3:21 p.m. and arrived at the scene at 3:28 p.m. The SWAT team was initially dispatched at 3:22 p.m., and did not enter the home until approximately 4:31 p.m. Shots were heard being fired inside the residence at 3:24 p.m.
Ventura was removed from the house at 4:35 p.m. Michelle was transported from the scene by ambulance at 4:39 p.m. and arrived at the hospital at 4:43 p.m. The Voorhees Fire Department report's narrative section describes the paramedics' activities thusly:
[The ambulance] was dispatched for standby for police activity. Crew was assigned... to retrieve victims from a shooting. police handcarried [Michelle] to [the ambulance]. Patient was evaluated and found to have single gunshot wound to chest.... Patient was pulseless, lower extremities were mottled, upper extremities cyanotic. Patient determined obvious dead-on-arrival. Patient was transported to [the hospital] for pronouncement.
Chief Hummel testified during his deposition that he had no personal knowledge of Howard's condition before the incident. When he arrived on the scene, Jennifer told him that Ventura was"acting crazy" and that Howard had shot Michelle. He said that his first goal was for the SWAT team to enter the residence and remove the injured people, and the second was to take Howard into custody. Chief Hummel estimated that it took ten minutes from the time he left his office for the Strumph residence for the police to gather intelligence on the situation inside. He stated that within another five minutes, the plan was developed.
When asked why officers did not enter the home during the fifteen minute period when the plan was being formulated, Chief Hummel stated:
[P]atrol officers are not trained to take ground, property or space that is controlled by a person who is armed.... That situation, that's why they are just trying to contain the situation because the shooter has control of the interior of the house. He has control of the crime scene. We only have control outside the crime scene. They are trained to do that.
Chief Hummel also said that for an officer to approach a window in a house during a situation like the one in this case"would be a dangerous situation for that officer. He is exposing ...