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Duwana Johnson, Plaintiff v. Manchester Township

August 29, 2011


The opinion of the court was delivered by: Thompson, U.S.D.J.




This matter comes before the Court upon Defendant Joseph Howell's Motion for Summary Judgment [docket # 22]. Plaintiff opposes the motion [27]. The Court has decided the motions upon the submissions of the parties and without oral argument, pursuant to Fed. R. Civ. P. 78(b). For the reasons stated below, Defendant's motion is granted in part and denied in part, and Plaintiff's state law claims are dismissed on jurisdictional grounds.


This case arises out of a police motor vehicle stop during which Defendant Sgt. Joseph Howell's gun discharged, causing a bullet fragment to hit Plaintiff Duwana Johnson, who was sitting in the front passenger seat of the vehicle.

Shortly after 9:00pm on the night of May 23, 2009, South Toms River police officers Michael Schneidt and Christopher Watkins observed Plaintiff's brother, Franklin Johnson, driving a minivan. Schneidt recognized Johnson from previous encounters and knew that Johnson's license had been suspended and that there were active warrants for his arrest. (McKenna Certification Ex. B., Investigation Report, at 1.) As the officers made a U-turn to get behind Johnson's minivan, Johnson made an illegal right turn, at which time the officers turned on their emergency lights and siren in order to stop the vehicle. (Id.) Johnson turned left onto Route 166 and ran a stop sign, eventually stopping at the corner of Route 166 and Water Street. (Id.) The officers approached the vehicle and ordered Johnson to put the vehicle in park and turn the engine off. (Id.) Johnson asked what he had done wrong and asked if he could complete his left turn onto Water Street and park at the 7-11 convenience-store on the corner. (Id. at 1--2.) The officers once again told Johnson to park the vehicle and turn off the engine, but Johnson instead pulled away and accelerated through a red light, passing several cars, crossing into oncoming traffic, and forcing another vehicle to swerve out of the way. (Id. at 2.) The officers lost sight of the vehicle and began heading back to Toms River via the Water Street overpass over Garden Street Parkway when they observed Johnson's minivan entering the Parkway heading south. (Id.) They accordingly relayed this information to other units, noting that Johnson was likely heading toward Exit 80 to return to his residence in Manitou Park. (Id.)

Defendant Howell, a Manchester Township Detective-Sergeant who had been assigned as a member of the Ocean County Regional SWAT Team to a multi-agency gang patrol initiative, was riding along with Lt. Daniel Evanowski of the South Toms River Police Department on the night in question. (Joseph Howell Certification ¶¶ 1, 14, 18, 22.) Howell and Evanowski heard radio transmissions stating that Johnson had fled a motor vehicle stop and that one of the occupants was believed to be Corey Milligan, an individual whom Howell and other SWAT members believed to be in possession of a missing police hand-gun. (Id. at ¶ 24.) Evanowski drove a short distance to the southbound ramp for Exit 80 and was in the process of positioning the patrol car in the direction of the exiting vehicles when he and Howell saw a maroon minivan speeding down the exit ramp. (Id. at ¶ 33 -- 34.) The minivan, after turning off the exit ramp and onto Double Trouble Road, came to a stop at a red light behind another vehicle in the right-most lane. (Id. at ¶ 29.) Evanowski followed and stopped the patrol car directly behind the minivan, activating his emergency lights. Howell and Evanowksi did not discuss or plan out their ensuing approach of the minivan. (Id. at ¶ 31.)

Howell noticed that Evanowski had exited the patrol car and was quickly moving forward toward the driver's side of the minivan. (Id. at ¶ 33.) Howell got out of the patrol car to take a "cover" position, gripping his flashlight with his left hand, drawing his gun with his right hand, and placing his gun-hand on his left wrist for support. (Id. at ¶ 37.) Upon assuming this "cover" position near the right rear corner of the minivan, Howell realized that his flashlight was backwards such that it was pointing toward himself rather than the minivan. (Id. at ¶ 38.) As it was nighttime and therefore dark outside, he apparently was unable to see inside the minivan and needed illumination,*fn1 (id. at ¶ 39.) Rather than take the time to re-position the flashlight, Howell instead opted to activate his weapon-mounted light. (Id.) However, when he attempted to press the light switch with his right index finger, the gun discharged-most likely as a result of his finger slipping and hitting the trigger. (Id. at ¶¶ 39, 46.) The bullet from the gun shattered the middle passenger-side window of the minivan, (Guy P. Ryan, Esq., Certification Exs. A, C & D, Photographs of Broken Minivan Window), and a fragment of the bullet lodged in Plaintiff's shoulder.

Howell was subsequently charged with violating the Manchester Township Police Department's Code of Conduct for Accidental Discharge of a Firearm. (Howell Certification ¶ 52.) An Internal Affairs investigation sustained this allegation. (Id.) The Ocean County Prosecutor's Office reviewed the incident and concluded that the discharge was accidental. (McKenna Certification Ex. G, Letter from First Assistant Prosecutor Ronald F. DeLigny to Chief William Brase, February 18, 2010.) Howell served a five-day negotiated suspension, underwent a psychological evaluation, completed an additional ten hours of firearms training, and has since been restored to active duty. (Id. at ¶¶ 54--55.) Plaintiff's brother Franklin Johnson was convicted of a violation of New Jersey's eluding statute, N.J.S.A. 2C:29-2b. (Id. at ¶ 50.)

Plaintiff filed the Complaint [1] on February 17, 2010. Plaintiff claims that Howell's actions constituted an excessive use of force in violation of the Fourth Amendment, an assault and battery, an intentional infliction of emotional distress, negligence, and a violation of the New Jersey Civil Rights Act ("NJCRA"). (See generally Compl.) Plaintiff further seeks to hold Manchester Township liable for the police department's failure to train its officers adequately as required under the Constitution. (Id. at ¶¶ 30--39.)

Defendants now move for summary judgment on the ground that an accidental shooting does not constitute excessive force because the Fourth Amendment requires more than negligence. (Br. in Supp. 17--22.) Defendants further argue that Manchester Township is not liable under Monell because there was no underlying unconstitutional conduct, and even if there were, Plaintiff has not established that training deficiencies caused her injury. (Id. at 23--28.) Finally, Defendants argue that Howell is immunized from state law claims by New Jersey's "pursuit immunity" statute. (Id. at 28--30.)

Plaintiff maintains that Howell's act of pointing the weapon was not accidental and constituted a seizure in and of itself. (Pl.'s Resp. 21--26.) Plaintiff further argues that Howell's actions were not objectively reasonable, in light of Evanowski's testimony that he did not use his flashlight because the area was well-lit and that he did not draw his own weapon. (Id. at 24--28.)

Plaintiff also asserts that a genuine issue of material fact exists as to whether Howell was adequately trained because he did not receive any training in using his hand-held flashlight in conjunction with his weapon-mounted light and the need for this training was obvious. (Id. at 30.) Finally, Plaintiff asserts that neither "pursuit ...

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