The opinion of the court was delivered by: Hillman, District Judge
This case involves the July 2003 police shooting death of Eric Quick in the woods along Interstate 295 in Bellmawr, New Jersey. Thirty-nine bullets were fired by three state troopers, with eighteen of the bullets striking Quick. Presently before the Court is defendants' motion for summary judgment. For the reasons set forth below, the Court finds that defendants are entitled to qualified immunity on plaintiff's claim pursuant to 42 U.S.C. § 1983, that plaintiff lacks standing to assert her claims under the New Jersey Survivor's Act, and plaintiff's remaining state law claims are barred by the New Jersey Tort Claims Act. Therefore, the defendants' motion for summary judgment is granted in its entirety.
As stated above, this lawsuit arose from the fatal police shooting of decedent Eric Quick on July 21, 2003. Plaintiff Angelika Lamont, Administrator Ad Prosequendum of the Estate of Eric Quick, initially filed suit in the Superior Court of New Jersey, Law Division, Camden County, on April 14, 2004. Listed as defendants were the State of New Jersey, New Jersey Division of State Police, and state troopers Mark Manzo, Christopher Modarelli, and Keith Moyer. The complaint included claims pursuant to 42 U.S.C. § 1983; the New Jersey Wrongful Death Act, N.J.S.A. 2A:31-1 et seq.; and the New Jersey Survivors Act, N.J.S.A. 2A:15-1 et seq. The complaint also included state law tort claims for loss of consortium.
The defendants removed the action to federal court on May 27, 2004. The matter was initially before the Honorable Freda L. Wolfson. On September 3, 2004, the defendants moved to dismiss plaintiff's § 1983 claims against the State of New Jersey, the New Jersey Division of State Police, and the individual defendants in their official capacities. The parties came to an agreement on the matter, and on October 22, 2004, Judge Wolfson entered an order dismissing with prejudice all claims brought pursuant to § 1983 against the state defendants and the individual defendants in their official capacities.
On January 20, 2005, Judge Wolfson administratively terminated the case pending the outcome of a state grand jury investigation into the troopers' conduct. The grand jury concluded in December 2005 that the troopers should bear no criminal liability for their actions. The Court then reopened the case on January 19, 2006. On July 5, 2006, the matter was reassigned to this Court.
On May 22, 2008, defendants filed the instant motion for summary judgment. In the brief accompanying their motion, defendants argue: (1) that Manzo, Modarelli, and Moyer are entitled to qualified immunity on claims brought pursuant to § 1983; (2) that the plaintiff's claims under the New Jersey Survivor's Act must be dismissed for lack of standing; and (3) that Manzo, Modarelli, and Moyer are immune from plaintiff's state law tort claims under the protections of the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 et seq. Oral argument was held on September 29, 2008.
On July 21, 2003, decedent Eric Quick ("Quick") was driving in Magnolia Borough, New Jersey. At approximately 10:00 p.m., he stopped to ask Officer James Pratt ("Pratt") of the Magnolia Police Department for directions. Pratt ran the license plate of the vehicle Quick was driving and discovered that the vehicle had been reported stolen. He then began to pursue Quick in his police car.*fn2 The vehicular pursuit ended when Quick abandoned his vehicle at mile-post 27.7 of Interstate I-295. At that point, Quick ran into a heavily wooded area off the side of the highway. He was wearing a white tee shirt, sweat pants, and socks.
Meanwhile, news of the pursuit had been sent over the police radio. Officer Robert Swanson ("Swanson") of the Bellmawr Municipal Police Department arrived on the scene just as Quick abandoned his vehicle. Swanson decided to follow Quick into the woods. Officer John Kirkbride ("Kirkbride"), then of the Magnolia Municipal Police Department, arrived after Quick had already entered the woods. On the ride to the scene, Kirkbridge heard over the radio that Quick had fled into the woods, and he offered the suggestion of setting up a perimeter. Kirkbride did not enter the woods himself.*fn3
State Troopers Mark Manzo ("Manzo"), Christopher Modarelli ("Modarelli"), Keith Moyer ("Moyer"), Joseph Carson ("Carson"), and Thomas Hollywood ("Hollywood"), of the Division of the New Jersey State Police, also arrived after Quick had entered the woods. Hollywood helped to establish a perimeter around the woods, while Manzo, Modarelli, Moyer, and Carson went into the woods to apprehend Quick.*fn4
The woods were dark and dense. The officers relied on their flashlights for visibility. Soon after entering the woods, Modarelli encountered Quick. In Modarelli's words, Quick was "[l]aying on the floor of the woods in like a thicket brush ....
[H]e was laying in a fetal position with his back to me." When Modarelli announced himself, Quick "got up and ran." Moyer and Carson observed this encounter and confirmed Modarelli's account.
The officers pursued Quick as he ran. During the chase, Quick became caught in a thicket. Trapped, he turned towards the officers. The officers each described Quick as assuming a "bladed position,"*fn5 with his left foot back and right shoulder forward. Quick's left hand was at his forehead, and his right hand was tucked into his left waistband.
The five officers had Quick surrounded in a semi-circle. From Quick's point of view, Moyer was furthest to the left, followed by Modarelli, Carson, and Manzo. Swanson was behind Manzo. Quick's right shoulder was pointed towards Manzo, the officer furthest to the right. Each of the officers testified that he was able to see Quick's right hand tucked into his left waistband. Each of the officers testified that he believed Quick was holding a weapon.
All of the officers except Swanson, who was directly behind Manzo, pointed their guns at Quick. Various officers shouted contradictory commands at Quick, including "Don't move!" and "Show me your hands!" Quick then made a sudden movement, rapidly removing his right hand from the left side of his waistband.
In response to Quick's movement, Moyer, Modarelli, and Manzo opened fire. Carson's flashlight was hit at the beginning of the shooting and he fell to the ground.*fn6 Swanson, positioned directly behind another officer, did not fire. The shooting lasted somewhere between 2 and 10 seconds.*fn7 The officers did not reload their weapons during the shooting.
After the shooting, the troopers were transported back to the barracks by Hollywood. Hollywood testified that during the ride, "one of the troopers had asked me, because I guess he had seen me go near the body, asked me if I had seen the gun and at which time, I told him no, I didn't see it." The troopers were first questioned about the incident two days later.
It was later determined that Quick had, indeed, been clutching an object in his right hand. The object was not a gun, but rather a two-inch long glass crack pipe. Modarelli, Moyer, and Manzo had collectively fired thirty-nine shots. Eighteen bullets struck Quick, approximately half entering through the back of Quick's body. Those bullets that ...