United States District Court, D. New Jersey
WILLIAM J. MARTINI, District Judge.
This is an excessive force case. The undisputed facts establish that Defendant Jersey City Police Sergeant Thomas McVicar shot Plaintiff Kwadir Felton after Felton pointed a gun into a car where Sergeant McVicar was hiding. Defendants Sergeant McVicar, the City of Jersey City, Jersey City Police Chief Thomas K. Comey, Jersey City Police Director Samuel Jefferson, Jersey City Police Officer Dwayne Dowell, and Jersey City Police Officer Carlos Lugo move without opposition for summary judgment under Federal Rule of Civil Procedure 56. There was no oral argument. Fed.R.Civ.P. 78(b). For the reasons set forth below, the motion for summary judgment is GRANTED.
The following facts are undisputed. In early 2010, Jersey City Police Officer Sergeant Thomas McVicar was assigned to a New Jersey State Police drug investigation called "Operation Wetlands." City of Jersey City Defendants' Statement of Undisputed Material Facts ("DSM") ¶¶ 3, 9, 10, ECF No. 28-1. As part of the investigation, Sergeant McVicar and others conducted surveillance on various targets. Id. ¶ 12.
On January 10, 2010, Sergeant McVicar's surveillance team learned that a red Acura TL-a car that was familiar to the team-was going to be involved in a drug transaction. Id. ¶ 16. Sergeant McVicar proceeded to monitor the Acura from the back seat of his unmarked personal vehicle. Id. ¶¶ 18-20. The rear windows of Sergeant McVicar's vehicle were tinted; the front windows were not. Id. ¶ 22.
While Sergeant McVicar was surveilling the Acura TL, Plaintiff Felton leaned against Sergeant McVicar's rear window and attempted to look inside the vehicle. Id. ¶ 23. Sergeant McVicar reached for his police radio but accidentally dropped it. Id. ¶ 24. Felton reacted by "looking fully into the vehicle." Id. ¶ 24. Felton then bent down out of view, and Sergeant McVicar heard the racking of the slide of a gun. Id. ¶ 25. Felton reappeared in the window, this time holding his gun. Id. ¶ 26. Felton then looked into the vehicle's front non-tinted windows. Id. After repeatedly looking through the windows, Felton pointed his gun into the interior of the car. Id. ¶ 27. Felton then looked up and down the block as if to make sure no one was watching. Id. Fearing for his life, Sergeant McVicar shot Felton a single time. Id. ¶ 28.
On May 19, 2011, a state Grand Jury returned a 40-count indictment against Felton and 12 other individuals. Id. ¶ 29. Count 35 (possession of a weapon for an unlawful purpose) charged that:
Kwadir Felton on or about January 10, 2010... knowingly did possess a firearm with the purpose to use it unlawfully against the person or property of another... with the purpose to use it unlawfully against Sergeant Thomas McVicar....
Id. ¶ 32. Count 36 (aggravated assault) charged that:
Kwadir Felton on or about January 10, 2010... knowingly, under circumstances manifesting extreme indifference to the value of human life... knowingly pointed a loaded, Hi-Point Model C9, 9 millimeter handgun at Sergeant Thomas McVicar... under circumstances that manifested an extreme indifference to the value of a human life....
Id. ¶ 33.
On December 25, 2011, Felton filed the instant case alleging violations of his civil rights. ECF No. 1. Defendants answered the Complaint on April 30, 2012. ECF No. 9. Subsequently, on November 14, 2013, Felton was convicted on all counts in his state criminal trial. DSM ¶ 34.
On June 12, 2014, Defendants moved for summary judgment on all counts. ECF No. 28. Felton ...