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Brittingham v. City of Camden

September 23, 2009


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




This matter is before the Court on Defendant's June 1, 2009 motion for reconsideration pursuant to Local Civil Rule 7.1(i)[Docket Item 68]. Defendant DeCosmo, an officer with the Camden County Prosecutor's Office, contends that the court erred in denying him summary judgment on his state law immunity from an assault and battery claim arising out of a shooting incident. Because Defendant fails to identify any previously presented area of controlling law or material fact overlooked by the Court, the motion is denied.


A brief summary of the relevant factual allegations follows. A fuller account of the parties' competing narratives in this case can be found in this Court's opinion on the motion for summary judgment [Docket Item 65]. On the evening of April 8, 2006, Defendant DeCosmo of the Camden County Prosecutor's Office and Officer John Kemp of the Camden Police Department responded to several 911 calls at different locations about groups of girls fighting in the streets, possibly with guns and/or knives. One such call led them to Phillips Street and ultimately led Officer DeCosmo into an apartment in which he shot Plaintiff in the shoulder.

Beyond these basic facts, the details of the night's events are in dispute. It is important to emphasize here that the Court is not evaluating the allegations of either Party for credibility, nor drawing any conclusions about the truth of what happened that night. The Court is merely assessing whether there are any genuine factual disputes over material issues. For that purpose, the competing versions of the facts are described below.

Plaintiff claims that he came to the scene on Phillips Street to help end the fighting in which his sister was involved.

He had succeeded in doing so when the police arrived. Then, after the arrival of police vehicles, Plaintiff passed between two police vehicles on his way toward the house that his sister had just entered, in order to speak with his sister about the events of that evening. According to Plaintiff, none of the officers in either police car said anything to him as he moved to the house. Plaintiff reached the house and entered the kitchen in order to get a glass of water. Once he reached the kitchen, the front door was kicked open and Defendant DeCosmo immediately shot Plaintiff in the shoulder without any verbal warning. Much of Plaintiff's account is corroborated by the testimony of his sister, Derenda Brittingham, and Amirah Cotton, both of whom witnessed the shooting and testified to a similar series of events at their respective depositions.

According to Defendant Officer DeCosmo, upon the officers' arrival at Phillip Street, a woman told them that a black man in a dark coat with fur on the hood had just pointed a gun at her and her daughter and left down Phillips Street. The officers drove a short distance and found Plaintiff, who met the description. Pulling over about forty feet from Plaintiff, DeCosmo exited the vehicle and instructed Plaintiff to show his hands. Plaintiff stopped, looked at the officers, reached into his waistband to make an adjustment as if to move an object, and then ran toward one of the apartments on Phillip Street. Officer DeCosmo chased Plaintiff into the apartment and observed Plaintiff who appeared to be hiding and assuming a "combat position" in the kitchen. Officer DeCosmo identified himself as a police officer and repeatedly ordered Plaintiff to raise his hands, which Plaintiff did not do. Plaintiff then came out from behind the pillar, at which point the officer saw his arm and shoulder begin to raise from his waistband. Officer DeCosmo fired one round into Plaintiff's right shoulder. Officer Kemp's testimony corroborates Defendant's account.

Plaintiff filed this complaint on January 12, 2007, asserting claims based upon the Fourth and Fourteenth Amendments to the United States Constitution, as well as upon New Jersey common law, against the City of Camden, the County of Camden, the Camden Police Department, the Camden County Prosecutor's Office, the State of New Jersey, and Officers Kemp and DeCosmo. In its July 9, 2007 Opinion and Order [Docket Items 24 and 25], the Court granted the State's motion to dismiss all claims against it. By stipulation of the parties [Docket Item 36], the claims against the City of Camden, the City of Camden Police Department, and Officer Kemp were dismissed on May 2, 2008. Defendant thereafter filed a motion for summary judgment [Docket Item 57].

In its May 18, 2009 opinion on the motion for summary judgment, the Court denied Defendant's request for summary judgment on the issues of qualified immunity and state law immunity under the New Jersey Tort Claims Act (NJTCA). The Court found that Plaintiff's evidence indicated the following: that Plaintiff may not have been fleeing the police; that DeCosmo could not reasonably have felt threatened by the alleged upward movement of Plaintiff's arm, because DeCosmo burst through the door and shot Plaintiff instantaneously; and that no officer ordered Plaintiff to stop or otherwise warned him of the imminent use of force. The Court concluded that there was therefore dispute over the critical facts used to assess whether DeCosmo behaved reasonably, and whether his actions constituted willful misconduct.

On June 1, 2009, Defendant filed a motion for reconsideration pursuant to Local Civil Rule 7.1(i) [Docket Item 68]. Defendant asks that the Court reconsider its ...

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