On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-3175-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman and Ashrafi.
Plaintiff James Carter appeals from orders dated June 26, 2009, granting summary judgment to defendants on his claims for injuries after he was shot and wounded by Trenton Police officers. We affirm the decision of the trial court dismissing plaintiff's claims for the reasons stated in the succinct and comprehensive oral opinion of Judge Douglas Hurd. We add the following comments to summarize the facts and to highlight disputed legal issues raised on appeal.
Plaintiff's statement of material facts, submitted for the summary judgment record as required by Rule 4:46-2(b), admitted the material facts alleged by the moving defendants and only disputed matters that do not affect disposition of the summary judgment motions. The relevant facts are as follows.
After midnight on June 8, 2003, plaintiff was sitting on his porch in Trenton when he heard a girl yelling that a friend of plaintiff, Marion Kind, had shot a woman. As it turned out, Kind had killed a woman in a bar and also shot her husband. The police had obtained Kind's name and description from witnesses in the bar and were looking for him.
Kind came to plaintiff's house and sat with him for a while on the porch. Plaintiff saw that Kind was very upset. Kind told plaintiff he had shot someone and did not expect to live much longer. He reloaded a handgun in plaintiff's presence. Kind left plaintiff's home and walked toward an alley, still very upset. Plaintiff followed Kind and at the same time called 911 on his cell phone, reporting that his friend had a gun and might kill himself or hurt someone else. He told the police where Kind was going. Plaintiff then approached Kind in the dark alley to talk to him. He was standing immediately next to Kind when Trenton police officers arrived at about 1:00 a.m.
Lieutenant Winters approached the two men in the alley from the front and turned a flashlight on them. Winters recognized Kind and saw that he had his hand behind his back. He yelled to the men to show their hands. Plaintiff held his hand high up, holding a cell phone, and he told Winters that he was the one who had called the police. According to Winters, he ordered plaintiff to step away from Kind, but plaintiff stayed where he was. Kind suddenly pointed his gun and fired a shot at Winters from a distance of ten to twenty feet. Winters fell to his hands and knees to avoid being shot.
At the same time, Sergeants Merlino and Hill were approaching in the alley from the side of the two men. They could see only profiles of the men, with plaintiff between them and Kind. As Merlino saw Kind fire a shot at Winters and then saw Winters go to the ground, he thought Winters had been shot and was about to be shot again and killed. Merlino began firing toward Kind and plaintiff. Kind turned toward Merlino and fired a shot, but he missed Merlino, too.
Sergeant Hill also began firing his gun at Kind and plaintiff. The two sergeants fired all twenty-eight of their rounds. Both Kind and plaintiff were hit by the police gunshots, and they fell to the ground. Plaintiff was hit twice, in the leg and foot, but the record before us does not contain medical evidence describing the severity of his injuries.
When the firing stopped, Lieutenant Winters got off the ground and yelled to the other officers to cease fire. He approached the two men on the ground, put his foot on Kind's arm, and kicked Kind's handgun away from his reach. By that time, other officers had arrived, and they handcuffed both Kind and plaintiff.
Medical emergency personnel also soon arrived. Plaintiff felt an item on the back of his leg, and then realized that someone had cut off his pants. He had been barefoot and was not wearing anything under his pants. With his pants left in the alley and naked from the waist down, plaintiff was taken by ambulance to a hospital, where he was treated for his injuries.
Until the next morning, plaintiff remained under police guard handcuffed to his hospital bed, and family members were not permitted to see him. A police officer asked him whether he had been with Kind in the bar where the victims had been shot. The next morning, after the police determined that plaintiff was not involved in the shooting and ...