Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

Whesper v. Tulli


March 5, 2008


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

Per curiam.


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.


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 S.Ct. 3034, 97 L.Ed. 2d 523 (1987); Kirk v. City of Newark, 109 N.J. 173, 179, 185 (1998); and N.J.S.A. 59:5-3. As a consequence, he dismissed all claims against defendants.*fn5

Plaintiffs contend on appeal that they have established a Fourth Amendment violation and are entitled to a trial of their § 1983 damage claims, that Tulli is not entitled to qualified immunity, that the Dumont PD and the Borough caused Tulli to violate the Fourth Amendment through inadequate training, and that both entities are liable for damages. Plaintiffs also argue that the state law claims against Tulli do not fall within any of the immunity provisions of the TCA, that Dumont PD and the Borough are liable as the employers of Tulli, and that Anthony surmounted the TCA injury thresholds because he suffered permanent and severe injury and had medical expenses in excess of $3600. Finally, plaintiffs assert that they are entitled to recover punitive damages.


Summary judgment is designed to provide a prompt, businesslike and inexpensive method of resolving cases. Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 74 (1954). In reviewing a ruling on a summary judgment motion, we apply the same standard as that governing the trial court. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998); Antheunisse v. Tiffany & Co., 229 N.J. Super. 399, 402 (App. Div. 1988), certif. denied, 115 N.J. 59 (1989).

Where the facts are disputed, as here, a summary judgment motion must be considered on the basis that the nonmoving parties' assertions of fact are true and the court must "grant all the favorable inferences to the non-movant." Brill, supra, 142 N.J. at 536. The determination then is whether "'one party must prevail as a matter of law.'" Ibid. (quoting Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 251-52, 106 S.Ct. 2505, 2512, 91 L.Ed. 2d 202, 214 (1986)).



With respect to the federal claims against Tulli, plaintiffs argue that Tulli's decision to use handcuffs on a compliant arrestee, his failure to double-lock them, and his failure to check their tightness despite Anthony's complaints were in violation of his Fourth Amendment rights.*fn6 Defendants, on the other hand, argue that as a matter of law Tulli used reasonable force and acted in an objectively reasonable manner in handcuffing Anthony and, thus, did not violate the Fourth Amendment's prohibition against unreasonable seizures. Moreover, defendants argue that "to establish a violation of a person's civil rights pursuant to 42 U.S.C. § 1983 based upon police conduct requires proof of something beyond mere negligence."

42 U.S.C.A. § 1983 creates federal rights for violations of federal law and provides in pertinent part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, 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.

That right of action, however, is subject to a qualified immunity, which is determined by a two-part inquiry: first, taken in the light most favorable to the party asserting the injury, the facts alleged must show the officer's conduct violated a constitutional right. Saucier v. Katz, 533 U.S. 194, 202, 121 S.Ct. 2151, 2156, 150 L.Ed. 2d 272, 282 (2001). Second, the constitutional right must be clearly established so that "it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Ibid.

Before addressing the first prong, we note that "any violation of the Fourth Amendment is 'clearly established,' since it is clearly established that the protections of the Fourth Amendment apply to the actions of police." Wilson v. Layne, 526 U.S. 603, 615, 119 S.Ct. 1692, 1699, 143 L.Ed. 2d 818, 831 (1999). Thus, where, as here, a violation of the Fourth Amendment is alleged, we do not need to consider the second prong of Saucier.

Turning to the first prong, in Graham v. Connor the Court held that claims of excessive force in the course of making an arrest are "properly analyzed under the Fourth Amendment's 'objective reasonableness' standard, rather than under a substantive due process standard." 490 U.S. 386, 388, 109 S.Ct. 1865, 1868-69, 104 L.Ed. 2d 443, 450 (1989); see also, Saucier, supra, 533 U.S. at 207, 121 S.Ct. at 2159, 150 L.Ed. 2d at 285.

[T]he question is whether the officers' actions are 'objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. An officer's evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force; nor will an officer's good intentions make an objectively unreasonable use of force constitutional. [Graham, supra, 490 U.S. at 397, 190 S.Ct. at 1872, 104 L.Ed. 2d at 456 (citations omitted).]

See also DelaCruz v. Borough of Hillsdale, 183 N.J. 149, 166 (2005) ("When a § 1983 . . . claim is leveled against a law enforcement officer for an alleged deprivation of Fourth Amendment rights, his or her conduct is to be evaluated through an objective lens that focuses on what a reasonable officer would have done under the circumstances.")*fn7

There are two elements of an action based on a violation of the Fourth Amendment: there must have been a seizure and the seizure must have been unreasonable. Leopardi v. Twp. of Maple Shade, 363 N.J. Super. 313, 330 (App. Div. 2003). It is undisputed here that the arrest of Anthony was a seizure. The issue then becomes whether the application of handcuffs and the failure to double-lock them was unreasonable.

"Determining whether the force used to effectuate a particular seizure is 'reasonable' under the Fourth Amendment requires a careful balancing of the nature and quality of the intrusion of the individual's Fourth Amendment interests against the countervailing governmental interests at stake." Graham, supra, 490 U.S. at 396, 109 S.Ct. at 1871, 104 L.Ed. 2d at 455 (citation omitted); see also DelaCruz, supra, 183 N.J. at 165-66.

Our Fourth Amendment jurisprudence has long recognized that the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it. Because the test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application, however, its proper application requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight. [Graham, supra, 490 U.S. at 396, 109 S.Ct. at 1871-72, 104 L.Ed. 2d at 455 (citations and quotations omitted).]

Additional factors in evaluating an excessive force claim were discussed in Sharrar v. Felsing, 128 F.3d 810, 822 (3d Cir. 1997). In addition to physical injury to the arrestee,

Other relevant factors include the possibility that the persons subject to the police action are themselves violent or dangerous, the duration of the action, whether the action takes place in the context of effecting an arrest, the possibility that the suspect may be armed, and the number of persons with whom the police officers must contend at one time. [Ibid.]

Our Supreme Court has construed § 1983 "to limit the rights of plaintiffs and to encourage disposition of the actions as a matter of law, at least when these actions arise out of an alleged unlawful arrest, search, or seizure by a law enforcement officer." Kirk, supra, 109 N.J. at 179. A "[q]ualified immunity 'is an immunity from suit rather than a mere defense to liability' that is effectively lost if the case is allowed to go to trial." Wildoner v. Borough of Ramsey, 162 N.J. 375, 387 (2000) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 2815, 86 L.Ed. 2d 411, 425 (1985)). Thus, "a defendant's entitlement to qualified immunity is a question of law to be decided early in the proceedings as possible, preferably on a properly supported motion for summary judgment or dismissal." Ibid.

Considering the Graham and Sharrar factors here, Anthony was not actively resisting arrest, Tulli knew that Anthony was not armed when he applied the handcuffs, and Tulli was dealing with only one arrestee. On the other hand, an act of domestic violence, especially an assault, signals a suspect who might be violent and might pose an immediate threat to the safety of the officers; the crime was of moderate severity; the handcuffing took place in the context of effectuating an arrest; the duration of the handcuffing behind his back was brief; there was no indication to Tulli that the handcuffs were too tight when he applied them and there was no complaint of physical injury until after Anthony was placed in Totten's squad car.

In the context of the surrounding circumstances, we are satisfied that the mere application of handcuffs to a compliant, unarmed arrestee, absent more, does not constitute excessive force because "the right to make an arrest . . . necessarily carries with it the right to use some degree of physical coercion . . . to effect it." Graham, supra, 490 U.S. at 396, 109 S.Ct. at 1871-72, 104 L.Ed. 2d at 455 ("[n]ot every push or shove" amounts to a violation of the Fourth Amendment); Davis v. Twp. of Paulsboro, 421 F. Supp. 2d 835, 856 (D.N.J. 2006) (mere act of applying handcuffs does not constitute excessive force); Lear v. Twp. of Piscataway, 236 N.J. Super. 550, 554 (App. Div. 1989) ("the use of shackles while transporting a prisoner is within the sound discretion of a custodial officer to prevent escape and protect the public safety" and does not constitute excessive force); Brady v. Dill, 24 F. Supp. 2d 129, 133 (D. Mass. 1998) ("routine handcuffing which caused pain and discomfort but no more lasting injury to Brady's shoulder . . . does not rise to the level of a constitutional violation"), rev'd on other grounds, 167 F.3d 104 (1st Cir. 1999).

Plaintiffs, however, also contend that failing to double-lock the handcuffs violated Anthony's Fourth Amendment rights. There are a number of handcuff cases, some of which involve the issue of double-locking. In Glass v. City of Philadelphia, 455 F. Supp. 2d 302, 368 n.89 (E.D. Pa. 2006), the District Court observed that the Third Circuit had yet to address "the issue of whether failing to double-lock handcuffs when effectuating an arrest constitutes excessive force as a matter of law." However, based on an unreported District of New Jersey case,*fn8 the court concluded that "the use of single-locked handcuffs when effectuating an arrest is not, as a matter of law, excessive force." Ibid. As a consequence, the claim of excessive force had to be analyzed under the general Fourth Amendment reasonableness test. Ibid.

In Glass one of the two arresting officers failed to follow the Philadelphia Police Department policy of double-locked handcuffs. Ibid. The officers had reason to believe that the suspects were dangerous. Ibid. There was conflicting evidence over whether the suspects remained in their car or walked away, disregarding the officers instructions. Ibid. A crowd began to gather and the circumstances were volatile. Ibid. The handcuffs were applied for only a short period of time and the evidence regarding complaints about the cuffs was in conflict. Ibid. However, under the totality of the circumstances, the court concluded that the use of single-locked handcuffs did not constitute an unreasonable use of force. Id. at 369.

In Kopec, supra, 361 F.3d at 774, the court examined a claim of excessive force based on tight handcuffs. Kopec was found trespassing with his girlfriend on a frozen lake and refused to give the officer any identifying information. Ibid. The officer handcuffed Kopec, who immediately felt the handcuffs were too tight. Ibid. The officer ignored his pleas for help for ten minutes. Ibid. Then, plaintiff fainted from the pain and suffered severe nerve damage in his wrist. Ibid.

The Third Circuit reversed the trial judge's grant of summary judgment, finding that the officer "faced rather benign circumstances that hardly justified his failure to respond more promptly to Kopec's entreaties, at least to the extent to ascertain if the handcuffs were too tight." Id. at 777. In holding that the facts alleged, if proven, established that the officer's use of force was excessive in violation of the Fourth Amendment, the court reasoned:

Where, as here, a plaintiff alleges actual injury inflicted by a police officer in the course of an arrest, and supports his allegation with specific facts so that it cannot be said as a matter of law that the use of force was objectively reasonable, the issue of whether excessive force was employed must be left to the trier of fact. [Id. at 778 n.7.]

We have in the past determined that officers were not entitled to a qualified immunity from a plaintiff's claim of injury from the use of excessive force where the officers very tightly handcuffed plaintiff's hands behind his back, causing pain in his wrist and back. Leopardi, supra, 363 N.J. Super. at 322, 330. The plaintiff asked that the handcuffs be loosened, but the officers refused to loosen them. Ibid. Plaintiff had been mistakenly arrested for soliciting prostitution, a disorderly persons offense. Id. at 331. He was compliant and cooperative, did not pose an immediate threat, was more likely to have been a victim of violence from the prostitution, and was alone when arrested by three officers. Ibid. We concluded from the totality of the circumstances that the officers were not entitled to a qualified immunity and remanded the matter for trial. Id. at 332.

Other courts, too, have permitted excessive-force handcuffing claims to go to trial where the arrestee complained of pain from the handcuffs, whether or not they were double-locked. See Palmer v. Sanderson, 9 F.3d 1433, 1436 (9th Cir. 1993) (Palmer complained of pain from tight handcuffs, was bruised and the officer did not justify the use of tight handcuffs); Walton v. City of Southfield, 995 F.2d 1331, 1342 (6th Cir. 1993) (excessive force claim can be premised on handcuffing if officer knew Walton's arm was injured and she posed no threat); McPherson v. Auger, 842 F. Supp. 25, 27, 30 (D. Me. 1994) (handcuffs applied too tightly and officer ignored complaints of pain, refusing to loosen the handcuffs).

However, trial is not always required. The year after Kopec was decided, the Third Circuit considered another handcuff case in Gilles v. Davis, 427 F.3d 197 (3d Cir. 2005). Gilles alleged that his handcuffs were excessively tight in violation of his Fourth Amendment rights. Id. at 203. The court held that because the plaintiff displayed no signs of discomfort at the time he was handcuffed, and because he did not receive treatment until two and a half years after the arrest, "the facts alleged constitute insufficient evidence as a matter of law for excessive force by handcuffing." Id. at 208.

In Brassell v. Turner the plaintiff alleged that the arresting officer failed to double-lock his handcuffs, which tightened down on his wrists each time he moved, causing pain and disfigurement. 468 F. Supp. 2d 854, 861 (S.D. Miss. 2006). Brassell sat in a squad car for forty-five minutes with his hands behind his back and when he got out of the vehicle his hands were bluish purple and extremely uncomfortable. Ibid. Brassell never told Turner that the cuffs were too tight. Id. at 862. The District Court concluded that Turner's actions were entitled to qualified immunity in these circumstances. Ibid.

In light of our conclusion that the decision to apply handcuffs to Anthony was objectively reasonable, we are satisfied that Tulli is entitled to a qualified immunity under federal law because, unlike the officer in Kopec, supra, 361 F.3d at 774, he did not apply the handcuffs too tightly and Anthony did not complain in Tulli's presence that the handcuffs were causing him pain. In fact, Anthony admitted in his deposition that he did not have any pain from the handcuffs until he was placed in Totten's squad car. He further testified that he experienced severe pain after he was put into the car, and that he complained to the driver about it. Although Anthony complained of pain to Totten, that does not destroy Tulli's qualified immunity.


Plaintiffs have also asserted TCA claims against Tulli respecting the handcuffing of Anthony. Plaintiffs argue that Officer Tulli was negligent when he handcuffed Anthony, "who had been at all times cooperative and compliant, and failed to double-lock the handcuffs, knowing that such a failure would cause [Anthony] pain." Plaintiff additionally argues that Tulli failed to check the tightness of the handcuffs and to check on Anthony's "condition" until seven minutes later, despite "[Anthony's] continual entreaties for help." According to plaintiff, Tulli is not protected by good faith immunity because Tulli was not acting "in the execution or enforcement of any law," and he "acted with complete awareness to [Anthony's] pain." Thus, they argue, the "New Jersey Tort Claims Act does not protect Defendants from such gross negligence."

Defendants argue, "Plaintiff's allegations that Officer Tulli did not act in good faith because Officer Tulli was 'completely aware' of [Anthony's] pain is made without any factual foundation, and completely ignores the true chronology of events and the evidence adduced during discovery." They argue that Tulli's conduct was subjectively reasonable, mainly because "there is absolutely no evidence presented by [plaintiffs] to support the contention that . . . Tulli had acted with bad faith or [acted] willfully or maliciously."

The trial judge found that Tulli was performing a discretionary function in applying handcuffs and acted in good faith, and therefore was protected from liability for a discretionary act under N.J.S.A. 59:3-2(a) and by good faith immunity under N.J.S.A. 59:3-3. Accordingly, the motion judge dismissed plaintiff's state law claims against Tulli.

The liability of public employees is governed by Chapter 3 of the TCA. N.J.S.A. 59:3-1 to -14. Generally, "a public employee is liable for injury caused by his act or omission to the same extent as a private person." However, any such liability is subject to any immunity provided by law and, where the public entity is immune from liability for that injury, so too is the public employee. N.J.S.A. 59:3-1(b), (c). The first public employee immunity provides that "[a] public employee is not liable for an injury resulting from the exercise of judgment or discretion vested in him." N.J.S.A. 59:3-2(a). This immunity, however, is a qualified one and does not cover conduct constituting bad faith, malice or willful misconduct. Burke v. Deiner, 97 N.J. 465, 472-73 (1984); Martin v. Twp. of Rochelle Park, 144 N.J. Super. 216, 222 (App. Div. 1976). Thus, in the context of police action, the analysis of liability for discretionary acts becomes subsumed by the immunity for good faith enforcement of any law.

N.J.S.A. 59:3-3 provides in pertinent part that "[a] public employee is not liable if he acts in good faith in the execution or enforcement of any law." "In order to succeed under [this section], a public employee must show that the challenged conduct was undertaken with objective or subjective good faith." Dunlea v. Twp. of Belleville, 349 N.J. Super. 506, 509 (App. Div.) (citing Bombace v. City of Newark, 125 N.J. 361, 374 (1991)), certif. denied, 174 N.J. 189 (2002).*fn9 "The same standard of objective reasonableness that applies in Section 1983 actions also governs questions of good faith arising under the Tort Claims Act, N.J.S.A. 59:[3]-3." Wildoner, supra, 162 N.J. at 387 (citing Lear, supra, 236 N.J. Super. at 553; Hayes v. County of Mercer, 217 N.J. Super. 614, 621-22 (App. Div.), certif. denied, 108 N.J. 643 (1987)).

"It is clear under our case law that mere negligence on the part of a public employee is generally not sufficient to defeat the good-faith immunity provided by N.J.S.A. 59:3-3." Dunlea, supra, 349 N.J. Super. at 509. Rather, to defeat good-faith immunity plaintiffs must demonstrate that Tulli acted recklessly. Schick v. Ferolito, 167 N.J. 7, 19-20 (2001).

Plaintiffs' claims that Tulli acted negligently in not double-locking the handcuffs are of no moment because Tulli did not "intentionally commit an act of an unreasonable character in disregard of a known or obvious risk." Dunlea, supra, 349 N.J. Super. at 512 (quoting Schick, supra, 167 N.J. at 19-20). We have already determined that Tulli's actions were objectively reasonable under § 1983 and he is entitled to the good-faith immunity provided by the TCA. N.J.S.A. 59:3-3.



Plaintiffs seek to impose liability on the Borough and the Dumont PD for their injuries under a number of theories. Initially, it is well established that "a local government may not be sued under a § 1983 claim for an injury inflicted solely by its employees or agents." Monell v. N.Y. City Dept. of Soc. Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 2037-38, 56 L.Ed. 2d 611, 638 (1978). Thus, the Borough and the Dumont PD could never have any responsibility under the doctrine of respondeat superior for any § 1983 liability of their employees. In any event, we have concluded that Tulli is immune from such liability.

With respect to their TCA claims, plaintiffs argue that the Borough and the Dumont PD are liable under the doctrine of respondeat superior for the injuries Anthony sustained while handcuffed because the public entities are not afforded immunity under N.J.S.A. 59:2-2(a) for the acts of their employees. This claim must of necessity be considered only in the context of Totten's alleged failure to respond to Anthony's pleas for help during the three-minute ride to headquarters because we have already decided that Tulli is entitled to the good-faith immunity of N.J.S.A. 59:3-3. This is so because N.J.S.A. 59:2-29(b) provides, "[a] public entity is not liable for an injury resulting from an act or omission of a public employee where the public employee is not liable." Our Supreme Court has observed that "[t]he primary liability imposed on public entities is that of respondeat superior: when the public employee is liable for acts within the scope of that employee's employment, so too is the entity; conversely, when the public employee is not liable, neither is the entity." Tice v. Cramer, 133 N.J. 347, 355 (1993). Therefore, we must consider whether Totten would have been immune from the plaintiffs' claims had he been joined in this lawsuit.

We apply the same standards to review the reasonableness of Totten's action as we did in reviewing the actions of Tulli. The record before us does not establish precisely when Anthony complained during the three-minute ride to police headquarters. In order to check the handcuffs, Totten would have had to radio for assistance because he was alone in the squad car with Anthony and then wait on the side of the road until another unit arrived to provide support. Then Totten would have had to get Anthony out of the vehicle to check his cuffs. We are satisfied that Totten's decision to proceed to headquarters when the trip was so short was objectively reasonable under the totality of the circumstances. Thus, Totten's actions enjoyed a qualified immunity and the Borough and the Dumont PD are not liable as the employer for any injuries resulting from Totten's actions.


Plaintiffs also assert a direct § 1983 claim against the Borough and the Dumont PD based on an alleged failure to provide adequate training to Tulli and on an alleged failure to adopt a policy requiring double-locking of handcuffs. It is undisputed that Officer Tulli was hired by the Borough and the Dumont PD after working for another police department in Ocean County, where he completed training at the Ocean County Police Academy. It is also undisputed that Tulli was not given a written examination in Dumont to ascertain the extent of his training at that academy, nor was he required to go to the Bergen County Police Academy for retraining on handcuffing techniques.

In his report, plaintiffs' expert did not establish any standard applicable to the preparation of police department policy and procedure manuals or to any duty of individual police departments to provide training to experienced recruits. He made no comparison of the training given by each of the academies except to point out that the Bergen County Police Department did offer a course in handcuffing that was available for retraining. Nor did he establish any standard requiring police departments to give written examinations to new employees who were experienced police officers.

In his deposition, plaintiffs' expert admitted that he was not sure whether recertification in handcuffing was required and testified that the basis for his opinion that it should have been done was that the injury to Anthony may not have occurred. He also admitted that there was no requirement that a police department retrain an officer on handcuffing techniques. Plaintiffs' expert further testified that he assumed that Tulli did not receive the same quality of training in Ocean County as he would have in Bergen County because the Bergen County training was five weeks longer than the one in Ocean County. He conceded that Tulli completed basic training and received his certificate of completion from the State. Finally, he admitted that he did not know of any law, rule or statute requiring a police department to give a police officer a written test prior to hiring. It would have only been necessary if that were the policy of the Dumont PD.

"[T]he inadequacy of police training may serve as the basis for § 1983 liability only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact." Canton v. Harris, 489 U.S. 378, 388, 109 S.Ct. 1197, 1204, 103 L.Ed. 2d 412, 426 (1989). "The issue in a [failure to properly train case] is whether that training program is adequate; and if it is not, the question becomes whether such inadequate training can justifiably be said to represent 'city policy.'" Id. at 390, 109 S.Ct. at 1205, 103 L.Ed. 2d at 427. "In resolving the issue of a city's liability, the focus must be on the adequacy of the training program in relation to the tasks the particular officers must perform. That a particular officer may be unsatisfactorily trained will not alone suffice to fasten liability on the city, for the officer's shortcomings may have resulted from factors other than a faulty training program." Id. at 390-91, 109 S.Ct. at 1206, 103 L.Ed. 2d at 428.

In the absence of any proofs from plaintiffs that the inadequacy of handcuff training was "so obvious" and "so likely to result in the violation of constitutional rights," it cannot be said that the acts of the Borough and the Dumont PD "amount[ed] to deliberate indifference to the rights of persons with whom the police come into contact." Id. at 388, 109 S.Ct. at 1204, 103 L.Ed. 2d at 426. The personal opinions of plaintiffs' expert do not require a trial with respect to the direct § 1983 claims against the Borough and the Dumont PD.

Because we have concluded that plaintiffs are not entitled to a trial on liability, we need not address the issues they have raised respecting their ability to satisfy the injury and monetary thresholds of the TCA, N.J.S.A. 59:9-2(d), or their entitlement to punitive damages as these issues are moot.


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.