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Brittingham v. City of Camden

May 18, 2009


The opinion of the court was delivered by: Simandle, District Judge



This matter is before the Court upon Defendants' motion for summary judgment [Docket Item 57]. This case arises out of an incident which took place on August 8, 2006, in which Plaintiff Raheen Brittingham*fn1 was shot in the shoulder by Camden County Prosecutor's Office Investigator Brian DeCosmo. Plaintiff alleges that the shooting constituted an unreasonable seizure which violated his rights under the Fourth and Fourteenth Amendments of the United States Constitution. Plaintiff brought suit against Mr. DeCosmo, the Camden County Prosecutor's Office ("CCPO"), and various governmental entities, asserting claims pursuant to 42 U.S.C. § 1983 and New Jersey common law.

The principal issue to be decided is whether Officer DeCosmo is entitled to qualified immunity for the force used upon Plaintiff on the evening of August 8, 2006, or whether the evidence, when viewed in the light most favorable to Plaintiff, reveals a material dispute of fact concerning the reasonableness of Officer DeCosmo's use of force. For the reasons set forth below, the Court finds that such factual disputes exist in this case, and will grant in part and deny in part Defendants' motion for summary judgment.


A. Facts

1. Undisputed Facts Leading up to the Shooting

On the evening of April 8, 2006, police officers from the Camden Police Department responded to a series of 911 phone calls indicating that a riot and several fights were occurring between groups of adolescent girls around Tenth Street in Camden, New Jersey. (Connell Cert. Ex. 8 at 290-294.) Defendant DeCosmo of the Camden County Prosecutor's Office and Officer John Kemp of the Camden Police Department were on patrol that evening and responded to the 911 calls in a marked police car at approximately 10:45 p.m. (DeCosmo Dep. at 54.) Officers DeCosmo and Kemp were both assigned to the Camden County Domestic Violence Task Force and were functioning as partners during all relevant times during the evening in question. (Connell Cert. Ex. 8 at 40.) Defendant DeCosmo observed "[a] large fight consisting mostly of teenagers, many females" and estimated that approximately one hundred individuals were involved. (DeCosmo Dep. at 56.) The crowd of individuals began to disperse and cease fighting once the police authorities arrived, but kept reforming in smaller groups in a three or four block radius around the area. (Connell Cert. Ex. 8 at 45.)

At 10:58 p.m., a 911 call was placed indicating that a disturbance was taking place at nearby 2058 Kossuth Street, in which the 911 operator was advised by the female caller that "they have guns and knives." (Id. at 81.) Defendant DeCosmo and Officer Kemp, along with other officers, reported to the scene, but found the area to be clear. (DeCosmo Dep. at 59.) Several additional 911 calls placed around that time indicated that, by approximately 11:05 p.m., one of the disturbances had moved to Phillip Street.*fn2 (Connell Cert. Ex. 8 at 290.)

2. Plaintiff's Account of the Shooting

According to Plaintiff, on the evening of August 8, 2006, he was returning from his girlfriend's house to a relative's residence near Phillip Street. (R. Brittingham Dep. at 40.) Upon his approach, he encountered his fifteen-year-old sister, Derenda Brittingham, and a group of girls yelling at another group of girls. (Id. at 42-43.) At the scene of this dispute, Plaintiff observed a gold minivan; inside the minivan was Bridgette Owens Parker, the mother of thirteen-year-old Nidjha Owens, who was one of the girls at whom Derenda Brittingham was yelling. (Id. at 45-46.)

Plaintiff approached the minivan and spoke with Ms. Parker. In order to break up the fight, Plaintiff suggested to Ms. Parker that she gather Nidjha and Nidjha's friends and leave, and that Plaintiff would take his sister Derenda away. (Id. at 46-47.) Ms. Parker agreed with Plaintiff's plan. (Id.) According to Plaintiff, "she grabbed her peoples; I grabbed my peoples and . . . everything was over." (Id. at 47.) Derenda departed the scene and went across the street to her friend Charlene Vaughn's house, which is located at 1950 Phillip Street. (D. Brittingham Dep. at 27.) Plaintiff's account of these events is consistent with the testimony of Ms. Parker, who recalled gathering her family in her van as Plaintiff sent his sister away from the scene. (Parker Dep. at 24-25.)

According to Plaintiff, after he and Ms. Parker had broken up the fight, two police vehicles arrived on the scene. (R. Brittingham Dep. at 54.) One of the police vehicles drove by Plaintiff and shined a light upon him as it passed. (Id. at 57.) After both police cars came to a stop, Plaintiff walked between the vehicles toward 1950 Phillip Street, the house which Derenda had just entered, in order to speak with his sister about the events of that evening. (Id. at 59, 69.) According to Plaintiff, none of the officers in either police car said anything to him as he walked to the house. (Id. at 61.) Plaintiff reached the house, walked through the "wide open" front door, (id. at 70), closed the door behind him, and walked a short distance in the apartment from the front door to the kitchen in order to get a glass of water. (Id. at 73-74, 94.) Derenda Brittingham and several other women were in the house when Plaintiff entered. (D. Brittingham Dep. at 40.)

According to Plaintiff's evidence, once he reached the kitchen, the front door was "kicked open," and, according to Plaintiff, Defendant DeCosmo immediately shot Plaintiff in the shoulder. (R. Brittingham Dep. at 74; D. Brittingham Dep. at 40.) According to Plaintiff, Officer DeCosmo gave no warning, did not "yell any commands" or "say freeze" upon entering the apartment, but instead burst through the door and shot Plaintiff almost instantaneously. (R. Brittingham Dep. at 95-96.) Plaintiff collapsed to the floor, (id. at 100), at which point Derenda, who had witnessed the shooting from the living room couch, ran to him and told Officer DeCosmo not to shoot Plaintiff again. (D. Brittingham Dep. at 40.) Officer DeCosmo and Derenda brought Plaintiff to the living room couch, on which he laid until the ambulance arrived. (Id. at 100.) Plaintiff's version of the events, in which Officer DeCosmo burst through the door and immediately shot Plaintiff without issuing a warning, is corroborated by the testimony of Derenda Brittingham and Amirah Cotton, both of whom witnessed the shooting and testified to a similar series of events at their respective depositions. (D. Brittingham Dep. at 40; A. Cotton Dep. at 33-36.)

3. Defendants' Account of the Shooting

Defendants' account of these events differs markedly from Plaintiff's. According to Officer DeCosmo, upon the officers' arrival at the intersection of Phillip Street and Jefferson Street, they observed a black woman standing outside of a brown minivan. (DeCosmo Dep. at 60; Connell Cert. Ex. 8 at 115.) Officers DeCosmo and Kemp approached the woman, who stated to the officers that a black man in a dark coat with fur on the hood had just pointed a gun in her face and in her daughter's face.*fn3 (DeCosmo Dep. at 60.) According to the woman, the man with the gun left, walking down Phillip Street. (Id.) Officers DeCosmo and Kemp drove down Phillip Street in the direction the witness had identified, and soon encountered an individual, Mr. Brittingham, wearing a dark coat with a fur-lined collar whom they believed matched the description given by the witness. (Id. at 61-62.)

Officer DeCosmo pulled the police vehicle over approximately forty feet from Plaintiff, and Officer Kemp pointed a light from the police vehicle at Plaintiff. (Id. at 62.) Officer DeCosmo exited the vehicle and said to Plaintiff, "police, let me see your hands." (Id. at 64.) According to Defendants, Plaintiff stopped, looked at the officers, reached into his waistband to "ma[ke] an adjustment . . . [as if] to move an object," (such as a firearm, Defendants suggest), and then ran toward one of the apartments on Phillip Street. (Id.; Connell Cert. Ex. 8 at 86.) Officer DeCosmo began to chase after Plaintiff, who reached the 1950 Phillip Street apartment, opened the door, entered, and slammed the door shut behind him. (Connell Cert. Ex. 8 at 86.) Before the door was closed, Officer DeCosmo could see several women and children in the apartment's living room. (Id.)

Officer DeCosmo "ran into the door without turning the knob," (id.), and, "through [his] momentum of going through the door, . . . ended up in the . . . living room of the apartment." (DeCosmo Dep. at 82.) In the apartment, Officer DeCosmo observed Plaintiff through a "cutout wall" through which one could look into the kitchen from the living room. (Id. at 83.) According to Officer DeCosmo, Plaintiff appeared to be hiding and assuming a "combat position" in the kitchen. (Id.) Officer DeCosmo testified that he identified himself as a police officer and repeatedly ordered Plaintiff to raise his hands, which Plaintiff did not do. (Id. at 89, 101.) According to Officer DeCosmo, Plaintiff then came out from behind the pillar, at which point the officer saw "his arm and shoulder begin to raise from his waistband."*fn4 (Id. at 105.) Officer DeCosmo "fired one round, one shot hitting him in his right shoulder." (Id.)

Officer Kemp could not see Plaintiff during this confrontation. According to Officer Kemp's deposition testimony, he, with DeCosmo, yelled "police, police, show us your hands, show us your hands" at Plaintiff prior to Officer DeCosmo's pursuit. (Kemp Dep. at 20.) As DeCosmo chased after Plaintiff, Officer Kemp "lost a visual" on the two men. (Id. at 25.) Officer Kemp then followed them to the apartment, where, from the doorway he could observe Plaintiff "moving back and forth" in the kitchen. (Id. at 26.) Officer Kemp testified that he and Officer DeCosmo repeatedly yelled "police" and "show us your hands." (Id.) At this point, however, some people from inside the apartment rushed out and knocked Officer Kemp down, after which he heard a shot fired. (Id.)

After he was shot, Plaintiff was transferred to a couch in the living room, at which point Officer DeCosmo said, "I'm sorry that I had to shoot you . . ., but we got a report of a man, a person meeting your description that just pointed a gun in a lady's face and a little kid's face." (DeCosmo Dep. at 119-20.) According to Defendants, Plaintiff responded by stating, "I had to, they were going to kill my sister." (Id. at 120.) In an investigation after the shooting, the police recovered a ...

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