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Whesper v. Tulli

March 5, 2008

ANTHONY WHESPER AND MARIA WHESPER, PLAINTIFFS-APPELLANTS,
v.
POLICE OFFICER PAUL TULLI, DUMONT POLICE DEPARTMENT AND BOROUGH OF DUMONT, NEW JERSEY, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Bergen County, Docket No. L-619-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: December 12, 2007

Before Judges Stern, C.S. Fisher and C.L. Miniman.

Plaintiffs Anthony Whesper and Maria Whesper appeal from a summary judgment dismissing their personal injury claims against Police Office Paul Tulli, Dumont Police Department (Dumont PD) and Borough of Dumont (Borough) under 42 U.S.C.A. § 1983 for Fourth Amendment claims and under the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3, for state law claims. Because defendants enjoy qualified and good faith immunities from these claims, we affirm.

I.

The claims arise out of an arrest made on February 2, 2003, after the Englewood Police Department (Englewood PD) requested the assistance of the Dumont PD in apprehending Anthony pursuant to an arrest warrant issued in connection with a domestic violence complaint made by Anthony's former mother-in-law stemming from an alleged assault on her at Englewood Hospital. The Englewood PD advised the Dumont PD that Anthony would be taking his son to his former wife's house in Dumont later that day. Tulli and Officer Steven Brown were advised of the warrant. Subsequently, they identified Anthony's vehicle and pulled him over a short distance from his former wife's residence. Another squad car driven by Officer Luke Totten arrived at the scene.

Anthony is a large man, five feet eleven inches tall and over 300 pounds. Anthony did not "resist the arrest in any way," according to Tulli, who recalled "him being indifferent," except that Anthony "want[ed] to know what this was all about." According to Totten's report of the incident, Tulli handcuffed Anthony with his hands behind his back and then put him in the back of Totten's patrol car. Anthony was taken to headquarters, a three-minute ride from the scene of the arrest, where he remained for a few hours until he was picked up by the Englewood police.

Anthony believes that Tulli restrained him with only one set of handcuffs because Anthony felt both of his hands touching. Tulli took him to Totten's car where, because of his large size, his legs could not fit between the back seat and the divider. As a result, he lay on his back across the back seat. His back was wedged between the bottom of the seat and the bottom back portion of the seat. While lying on his back, the handcuffs compressed his wrists and caused severe pain. Anthony told the driver that he "was feeling pain from the pressure of the cuffs." The record does not reveal when, during the three-minute trip to headquarters, Anthony began to feel pain.

When Anthony arrived at the police station, he mentioned to another officer that his "wrists [were] killing [him] and the other guy won't listen." A few minutes later, the handcuffs were removed and the officer told him, "[d]on't worry, I'll double-lock these."*fn1 Anthony was then handcuffed to a railing in the cell area, where he waited for the Englewood police to pick him up. The second set of handcuffs was removed only when he used the phone and went to the bathroom.*fn2

Anthony sought medical attention several weeks after he was released from custody. Dr. Monte Pellmar's report states that he first evaluated Anthony on February 24, 2003. Anthony complained of "discomfort in the upper back and neck as well as his shoulders, numbness and tingling in the right hand involving the entire hand, and shock-like sensations from the right wrist into the digits." After re-evaluating Anthony on March 3, 2003, Dr. Pellar's impression of the injury was "[c]arpal tunnel syndrome subsequent to trauma at the right wrist, and muscle spasm in the cervical paraspinal musculature."

Plaintiff's liability expert, Vincent Feoranz, stated in his report that several "deviations" from "accepted principles and practices" "individually and collectively were the direct and proximate causes of the injury to Anthony."*fn3 Based on the depositions of Anthony and Tulli, a photograph of Anthony's wrist one day after the incident, the Dumont Police Department Policy and Procedure Manual, and the Bergen County Law & Public Safety Institute, Feoranz concluded the following:

1. The arresting officer failed to double lock the handcuffs.

2. The arresting officer failed to check the tightness of the handcuffs. Per his own admission, Officer Tull[i] failed to use the accepted finger tip method to check the tightness of the handcuffs.

3. The officer who transported to the police station, failed to check the handcuff tightness when [Anthony] complained.

4. Placing [Anthony] on his back in the patrol vehicle, with his hands cuffed behind him was the probable cause of the handcuffs tightening accidentally. Even if [Anthony], as Officer Tull[i] states, was placed sitting upright in the patrol vehicle, which is doubtful d[ue] to [Anthony's] bulk, the fact that his hands were handcuffed behind him and pressed between him and the car seat would still cause the handcuffs to tighten if they were not properly double locked.

5. The Dumont Police Department Policy and

[P]rocedure Manual failed to provide proper instruction and guidance on the use of handcuffs and how to prevent injuries to restrained persons.

6. The Dumont Police Department failed to properly instruct or provide refresher training to their officers on proper handcuffing techniques.

7. Officer Tull[i] did not complete the twenty two week Bergen County Police Academy. Instead he attended a seventeen week program [offered] by the Ocean County Police Academy.*fn4

8. When hired by the Dumont Police Department, Officer Tull[i] was not given a written exam to ascertain if the training he received at [t]he Ocean County Academy was comparable to the training he would have received at the Bergen County Police Academy.

After discovery was complete, defendants sought a summary judgment dismissing all claims against them. As to the Fourth Amendment claims under § 1983 and the state law claims, the motion judge found that applying handcuffs was a discretionary police function. The motion judge rejected plaintiffs' contention that the absence of a Dumont PD standard establishing when handcuffs were to be applied triggered liability. He concluded that defendants acted reasonably and in good faith in performing discretionary functions and were entitled to immunity under Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed. 2d 396 (1982); Anderson v. Creighton, 483 U.S. 635, 107 ...


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