The opinion of the court was delivered by: Honorable Jerome B. Simandle
On March 11, 2002, in the early morning hours, an unarmed Jason Remillard was fatally shot by Officer Charles Baldi after leading the officer on a foot pursuit. This action followed. Before the Court is a motion for summary judgment by Defendants. For the following reasons, the motion will be granted in part and denied in part.
At approximately 1:30 a.m. on March 11, 2002, Defendants Sergeant Charles Baldwin and Corporal Charles Baldi, in separate patrol cars, came upon a white Jeep Cherokee that matched the description of a vehicle that had been reported stolen. (Baldi Dep. Tr. 31:17-32:1.) Sergeant Baldwin, who was the first to come upon the jeep, followed behind the vehicle until the driver pulled over. As Defendant Baldi pulled up behind Baldwin, the two officers saw Plaintiff Remillard exit the driver's side of the vehicle.*fn1
According to the officers, Baldwin instructed Remillard to come toward him, but Plaintiff instead turned and ran in the opposite direction. (Id. at 36:12-21.) Baldwin told Baldi to pursue the fleeing Remillard while he remained with the vehicle and its passenger. Baldi first pursued Remillard in his patrol car, and then continued the pursuit on foot. According to Defendant Baldi, at some point during the foot pursuit Remillard stopped and placed his hands above his head against the external wall of a residence. (Id. at 24:11-14; 49:10-16.)
Once Remillard placed his hands against the wall, Baldi drew his service weapon in a "cover position" and ordered Remillard to get on the ground. (Id. at 32:2-10; Pl. Ex. A at 11.) According to Baldi, Remillard, without responding verbally, proceeded to lower his hands and turn towards Baldi.*fn2 As Remillard did so, Baldi maintains, Remillard raised his hands to his waist. (Pl. Ex. A at 12.) At that point, Baldi alleges that he lost sight of Plaintiff's hands. (Id.) Apparently fearing that Remillard was reaching for a weapon, Baldi fired a single fatal shot into Remillard's torso. (Baldi Dep. Tr. 50:17-51:11.) According to the Atlantic County Medical Examiner's Report, the bullet entered below Remillard's right rib cage, and exited directly across the body underneath the left side of his rib cage. (Pl. Ex. A.) In fact, Remillard was unarmed.
At the time of Remillard's death, Plaintiff Elizabeth Killian, though not married to Remillard, was pregnant with his child. On August 2, 2002, Elizabeth Killian gave birth to a son, Jason Peter-Paul Remillard, Jr. This suit was filed the following year by Plaintiffs, Susan Remillard, individually and as administratrix of the estate of Jason Remillard, the deceased; Elizabeth Killian, individually and as mother of the son of Jason Remillard; and Jason Remillard, Jr., an infant, by his mother, against Defendants City of Egg Harbor City, Mayor James E. McGeary, Public Safety Director Mark Emmer, Sergeant Charles Baldwin and Corporal Charles Baldi under 42 U.S.C. §§ 1983, 1986 and 1988 alleging violations of the Fourth and Fourteenth Amendments, and under state law.*fn3
II. SUMMARY JUDGMENT STANDARD OF REVIEW
Summary judgment is appropriate when the materials of record "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law."*fn4 Fed. R. Civ. P. 56(c). In deciding whether there is a disputed issue of material fact, the court must view the evidence in favor of the non-moving party by extending any reasonable favorable inference to that party; in other words, "the nonmoving party's evidence 'is to be believed, and all justifiable inferences are to be drawn in [that party's] favor.'" Hunt v. Cromartie, 526 U.S. 541, 552 (1999) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The threshold inquiry is whether there are "any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party."*fn5 Liberty Lobby, 477 U.S. at 250; Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 329-30 (3d Cir. 1995) (citation omitted).
A. Fourth Amendment Excessive Force Claim
Plaintiffs assert an excessive force claim under the Fourth Amendment. For the reasons now explained, the Court finds that there are questions of fact as to whether Defendant Baldi violated Jason Remillard's Fourth Amendment rights and, therefore, the Court will deny the motion as to that claim.
The Fourth Amendment prohibits the use of excessive force by a law enforcement officer. U.S. Const. amend XIV. See Carswell v. Borough of Homestead, 381 F.3d 235, 240 (3d Cir. 2004) (citing Graham v. Connor, 490 U.S. 386, 395 (1989)).
The test is an objective one, which scrutinizes the reasonableness of the challenged conduct. The facts to be examined include "the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officer or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Reasonableness is to be evaluated from the ...