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Smith v. Mercuri

United States District Court, D. New Jersey

July 24, 2019

TERRENCE SMITH, Plaintiff,
v.
DET. MATTHEW MERCURI and RESERVE OFFICER CAMERON LUNG, #9067 Defendants.

          Derek A. Steenson, Esq. Attorney for Plaintiff

          Matthew B. Wieliczko, Esq. Dean R. Wittman, Esq. ZELLER & WIELICZKO, LLP Attorneys for Defendant, Matthew Mercuri

          J. Brooks DiDonato, Esq. PARKER MCCAY P.A. Attorney for Defendant, Cameron Lung

          OPINION

          ROBERT B. KUGLER, U.S. DISTRICT JUDGE

         I. INTRODUCTION

         Plaintiff Terrence Smith (“Plaintiff”) filed suit against the City of Burlington City and several Burlington City Police Department (“BCPD”) officers - Detective Matthew Mercuri (“Detective Mercuri” or “Mercuri”), Reserve Officer Cameron Lung (“Officer Lung” or “Lung”), and Officer Stephen Hesson (“Officer Hesson” or “Hesson”) - following an incident that occurred on February 23, 2015 at the Burlington Supermarket (hereinafter, “the Market”). In short, Plaintiff claims that, while he was waiting for a delivery truck to arrive at the Market, several BCPD officers conducted an illegal pat-down search of him; that a struggle ensued wherein the officers unnecessarily tripped Plaintiff and tackled him to the ground; and that one officer unlawfully deployed a K-9 while Plaintiff was on the ground with two other officers on top of him, and then again while Plaintiff was inside the Market. As summarized below, surveillance video and audio captures almost the entire encounter.

         Plaintiff initially brought claims against Defendants City of Burlington, Mercuri, Lung, and Hesson for the alleged deprivation of various constitutional rights. All allegations against Defendants City of Burlington County and Hesson were subsequently dismissed, leaving only Defendants Mercuri and Lung remaining in the case. Currently pending before the Court are motions for summary judgment filed by those remaining Defendants. For the reasons set forth below, Defendant Mercuri's motion will be denied in part and granted in part, while Defendant Lung's motion will be granted in its entirety.

         II. BACKGROUND

         A. Factual Background [1]

         The Court begins with the summary judgment record. On February 23, 2015, at approximately 11:02 a.m., the Burlington City Police Department received an anonymous call reporting that a tall, skinny black male wearing a black coat was selling drugs at the Burlington Supermarket. (Case Report [Docket Item 31, Ex. A] at 23.) Detective Mercuri and his K-9 partner, Max, were dispatched to the Market to investigate the call, along with Officer Lung. (Id.; Lung Dep. [Docket Item 31, Ex. N] at 8:12-9:5.)

         The incident in question was captured via a surveillance video (without audio) inside the Market (hereinafter, “Market Video”).[2]The Market Video depicts the entrance of the Market, from inside the Market, including a view of the sidewalk through the glass doors and windows. In addition, Officer Lung's Mobile Video Recorder (hereinafter, “Lung MVR”) provided audio of the interaction between Plaintiff and the officers. The Lung MVR also contains video of the street, including a view of Detective Mercuri's police vehicle.

         Plaintiff testified that, on the morning of February 23, 2015, he was working under the table at the Market and playing lottery tickets while waiting for a delivery truck to arrive. (Smith Dep. [Docket Item 31, at Ex. O] at 23:1-25.) At the time, he was 6 feet, 7 inches tall, and weighed approximately 225 to 230 pounds. (Id. at 70:21-71:13.)

         The surveillance video shows Plaintiff standing in the front of the store prior to the incident. (Market Video [Docket Item 31, Ex. M] at 12:00:00-12:10:15.) Detective Mercuri first enters the store and asks Plaintiff to step out onto the sidewalk to answer some questions. (Id. at 12:10:15.) While outside, Detective Mercuri can be heard telling Plaintiff that “someone called about you selling drugs.” (Lung MVR at 11:13:30-11:13:34.) Shortly thereafter, Detective Mercuri can be heard telling Plaintiff that he is going to do a pat-down and asking if Plaintiff has any weapons. (Lung MVR at 11:13:40-11:13-46.)

         Surveillance video shows Plaintiff turning around, facing the Market, and allowing Detective Mercuri to perform a pat-down search. (Market Video at 12:11:10.) It is difficult to see where Detective Mercuri's hands are throughout the pat-down; however, at one point, Detective Mercuri's hand can be seen grabbing Plaintiff's front left pants pocket. (Id. at 12:11:24.) Plaintiff alleges that at this time, Detective Mercuri squeezed and manipulated his pocket approximately four times. (Compl. [Docket Item 1] at ¶ 25.) Detective Mercuri can be heard asking about the contents of Plaintiff's pocket and instructing Officer Lung to conduct a further search. (Lung MVR at 11:14:00-11:14:06.) Plaintiff then turns around and faces the officers. (Market Video at 12:11:32.) Plaintiff testified that he turned around because he believed that the officers were “going beyond a pat-down.” (Smith Dep. at 34:16-19.) By this time, Officer Hesson had arrived and joined the other officers. (See Market Video at 12:11:32.) Plaintiff can be heard questioning the officers regarding the search of his pocket and whether they have permission to do so. (Lung MVR at 11:14:08-11:14:12.)

         Detective Mercuri and Officer Hesson are then seen grabbing Plaintiff's arms. (Market Video at 12:11:35.) Plaintiff can be heard continuing to express concern about the search. (Lung MVR at 11:14:12-11:14:18.) Plaintiff testified that he was asking the officers why they were “gripping” him. (Smith Dep. at 36:5-12.) Plaintiff can be seen brushing Officer Lung's hand away from searching his pocket. (Market Video at 12:11:40.) Plaintiff and the officers can be heard arguing throughout this encounter. (Lung MVR at 11:14:18-11:14:32.)

         Plaintiff then steps toward the officers again and Officer Hesson moves in behind Plaintiff. (Market Video at 12:11:49.) Immediately thereafter, a skirmish begins. (Id. at 12:11:50.) Plaintiff can initially be seen struggling, as all three officers grab hold of him. (Id.) Plaintiff testified that, prior to this encounter, the officers did not tell him he was under arrest. (Smith Dep. at 17-19.) Later in his deposition, Plaintiff testified that, at the start of the struggle, he asked the officers to take their hands off of him. (Id. at 86:6-12.)

         Soon after the clash begins, Plaintiff and the officers move a few feet away from the store, but Plaintiff quickly walks away, pulling the group of officers back toward the doorway of the Market. (Market Video at 12:11:54.) Plaintiff testified about this moment:

Q. So what does the video depict at this point? This is at 12:11:54.
A. In my mind I thought they were trying to pull me into the alley.
Q. What were they trying to pull you into the alley to do?
A. I don't know. Like, I don't think if it would have got prettier if I was in the alley versus where I pulled them at into the store. So my whole state of thought was I need to stay in the view of the camera like. I need to be where - if something bad is going to happen beyond this that it can be seen.

         (Smith Dep. at 38:3-15.) Detective Mercuri then releases his grip and breaks away from the struggle. (Market Video at 12:11:59.) Plaintiff, Officer Lung, and Officer Hesson move into the threshold of the Market. (Id. at 12:12:00.) Plaintiff testified that he “wasn't trying to get away” at this time. (Smith Dep. at 39:16-22.) Rather, Plaintiff again testified, it was his intention to get into the store to avoid being taken into the alley by the officers and out of sight of the video camera. (Id.)

         Plaintiff can then be seen being pulled from inside the Market and tackled to the ground by Officers Lung and Hesson. (Market Video at 12:12:02.) The view of Plaintiff and Officer Lung is largely obstructed once on the men are on the ground. (Id. at 12:12:05-12:12:14.) Plaintiff ultimately manages to force his way back onto his feet and drag the officers back toward the Market's doors. (Id. at 12:12:15.) The officers then tackle Plaintiff so that he is partially inside the Market with his legs on the outdoor sidewalk. (Id. at 12:12:17.)

         While this struggle ensued, Detective Mercuri returned to his police vehicle and retrieved the K-9. (Lung MVR at 11:14:41-11:14:53.) The K-9 exited the car and ran toward the scene, without a leash, as Detective Mercuri followed behind. (Id. at 11:14:53-11:14:56.) The K-9 arrives on the scene and first bites Officer Lung, who, along with Officer Hesson, was on top of Plaintiff. (Market Video at 12:12:19.) The K-9 quickly withdraws and returns to Detective Mercuri. (Id. at 12:12:19-12:12:21) Plaintiff then gets back on his feet inside the Market. (Id. at 12:12:24.)

         While inside the Market, Officer Lung grabs Plaintiff. (Id. at 12:12:24-12:12:30.) He then releases his grip on Plaintiff and Detective Mercuri deploys the K-9 once again. (Id. at 12:12:31.) At this time, Officer Hesson can be seen grabbing Plaintiff's shirt while the K-9 bites Plaintiff's leg. (Id.) Plaintiff can be seen holding his arms out. (Id. at 12:12:38-12:12:42.) The K-9 continues to bite Plaintiff's leg, on and off for several seconds, until Plaintiff falls to the ground. (Id. at 12:12:42.) Plaintiff was subsequently handcuffed by Officers Lung and Hesson.[3] (Mercuri Narrative [Docket Item 46, Ex. A] at 2.)

         Plaintiff was then taken to the hospital under police custody. (Smith Dep. at 63:6-25.) Plaintiff testified he had bite marks on his ankle and leg following the encounter and that he still has scars. (Id. at 64:12-17, 66:9-10.) Plaintiff further states that he has occasional pain in his ribs, which manifests itself approximately twice a month. (Id. at 66:5-66:4.) In addition, Plaintiff claims that he is unable to play basketball like he used to. (Id. at 66:16-23.) As of the time of his deposition, Plaintiff worked at the Bordentown Inn performing maintenance duties and cooking. (Id. at 67:1-68:25.)

         After Plaintiff was removed from the scene, another officer returned to the Market to view the surveillance footage. (Mercuri Narrative at 2.) According to officers, the video revealed that Plaintiff threw an object behind the shelves during the incident.[4](Id.) Several officers searched the area and found a plastic sandwich bag with eight individually wrapped packets of marijuana. (Id.)

         Detective Mercuri later prepared an Affidavit of Probable Cause. (Aff. of Probable Cause [Docket Item 31, Ex. C] at 10.) Plaintiff was initially charged in Superior Court of New Jersey, Burlington County, Criminal Part, with Aggravated Assault on Police, Distribution of Marijuana, Resisting Arrest, Possession of Marijuana, and Possession of CDS Paraphernalia. (Id. at 6-9.) Plaintiff was then indicted by a grand jury on charges of Resisting Arrest (Third Degree) and Aggravated Assault of a Law Enforcement Officer. (Grand Jury Indictment [Docket Item 31, Ex. F] at 11-12.) Plaintiff subsequently pled guilty to a disorderly person's offense for loitering. (Transcript of Trial, New Jersey v. Smith, Indictment No. 15-07-7071 ( N.J.Super. Ct. Apr. 26, 2016) [Docket Item 31, Ex. L] at 24:1-29:15.) In April 2016, he was tried before a Burlington County jury on the Resisting Arrest charge, and was found not guilty. (Id. at 21:1.)

         B. Procedural History

         On February 23, 2017, Plaintiff filed a Complaint in the U.S. District Court for the District of New Jersey naming as Defendants the City of Burlington, Detective Mercuri, Officer Lung, and Officer Hesson. [Docket Item 1.] Count Three of the Complaint was later dismissed by stipulation between the parties. [Docket Item 18.] All claims asserted against Defendants Hesson and the City of Burlington were also dismissed by stipulation, pursuant to Fed.R.Civ.P. 41(a). [Docket Items 55 & 56.]

         The remaining Counts against Defendants Mercuri and Lung are as follows: (1) violation of the Fourth and Fourteenth Amendments of the U.S. Constitution under 42 U.S.C. § 1983 (Count One); and (2) violation of the New Jersey Constitution and New Jersey Civil Rights Act, N.J.S.A. § 10:6-2 (Count Two). (Compl. at ¶¶ 45-49.) Specifically, Plaintiff alleges under each Count that he was: deprived of the right to be free from unlawful detention; subjected to an unlawful search and seizure; subjected to an excessive use of force; deprived of the right to be secure in one's person and property; deprived of the right to be free from malicious prosecution; and deprived of his right to due process of law.[5] (Id.) To the extent possible, the Court addresses these poorly-plead categories of constitutional claims separately below.

         After discovery was completed, Defendants Lung and Mercuri filed the pending motions for summary judgment. [Docket Items 31 & 46.] Plaintiff timely opposed both motions [Docket Items 32 & 50], and both Defendants filed reply briefs. [Docket Items 39 & 57.] The summary judgment motions are now fully briefed and ripe for disposition. The Court decides these motions without oral argument pursuant to Fed.R.Civ.P. 78.

         III. STANDARD OF REVIEW

         At summary judgment, the moving party bears the initial burden of demonstrating that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); accord Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once a properly supported motion for summary judgment is made, the burden shifts to the non-moving party, who must set forth specific facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). In reviewing a motion for summary judgment, the court is required to examine the evidence in light most favorable to the non-moving party, and resolve all reasonable inferences in that party's favor. Scott v. Harris, 550 U.S. 372, 378 (2007); Halsey v. Pfeiffer, 750 F.3d 273, 287 (3d Cir. 2014).

         The fact that this case includes surveillance video footage presents an “added wrinkle” to the usual standard which requires courts “to view the facts and draw reasonable inferences ‘in the light most favorable to the party opposing the [summary judgment] motion.'” Scott, 550 U.S. at 378. Where there is video footage related to the claims, the Court will not draw inferences that are “blatantly” inconsistent with the video evidence. See id. at 380- 81 (“When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment . . . [and thus, t]he Court of Appeals should not have relied on such visible fiction; it should have viewed the facts in the light depicted by the videotape.”)

         A factual dispute is material when it “might affect the outcome of the suit under the governing law, ” and genuine when “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. The non-moving party “need not match, item for item, each piece of evidence proffered by the movant, ” but must simply present more than a “mere scintilla” of evidence on which a jury could reasonably find for ...


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