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Cabrera v. Camden County

United States District Court, D. New Jersey

August 9, 2019

VERONICA CABRERA individually and as Administratrix of the Estate of Freddy Baez Jr., Deceased Plaintiff,
v.
CAMDEN COUNTY and POLICE CHIEF JOHN SCOTT THOMSON and CAMDEN COUNTY POLICE OFFICERS JOHN DOE #'s 1-4 Defendants.

          OPINION

          ROBERT B. KUGLER UNITED STATES DISTRICT JUDGE

         THIS MATTER comes before the Court on Defendants' Motion for Summary Judgment [Doc. No. 42] on Plaintiff's claims for Excessive Force (Count I); Failure to Intervene (Count II); Conspiracy (Count III); Supervisory Liability (Count IV); Monell Liability (Count V); and state law Wrongful Death and Survival claim claims (Counts VI and VII). For the reasons below, the Court GRANTS Defendants' Motion for Summary Judgment.

         I. FACTUAL BACKGROUND

         A. Introduction

         This case involves the alleged use of deadly force. Two Camden County Police Officers responded to a domestic dispute and shot and killed Freddy Baez, Jr. The estate of Mr. Baez (“Plaintiff) subsequently filed a lawsuit and argue that Freddy Baez was unarmed. The timeline of events, in relevant part, is as follows.

         1. November 23, 2015: Events the Night Before the Shooting

         Freddy Baez, Jr. and Ashley Purnell had a child together. Pl. Resp. Statements of Material Facts (“SMOF”) [Doc. No. 45-1] at ¶ 3. The two broke up in early November 2015. Id. According to Ashley's mother, Rowshon Purnell, Baez physically abused Ashley. Id.

         On November 23, 2015, a domestic dispute ensued between Ashley and Baez. Id. A neighbor called the police. Id. at ¶ 5. At approximately 9 P.M., the Camden County Police Department (“CCPD”) responded and arrived at Baez's home. Id. Minutes later, Baez posted the following status on his Facebook account: “Family and friends I love u if I see judgement [sic] day had enough of cops and hating ass bm.” Id. at ¶ 6. This status also included a gun emoji. Id.

         Just hours later, another person called the Camden Police to report a second disturbance at the Baez residence. Id. at ¶ 7. When the police arrived, they overheard a male yelling at Ashley to open the door. Id. The man did not permit the police in the house. Id. Ashley and Baez continued to yell as the Police investigated. Id. The investigation also revealed that one of them had expelled a fire extinguisher. Id.

         2. November 24, 2015: Events in the Hour Before the Shooting

         Ashley stayed at her mother's the following day. At 6:18 P.M., Baez posted a Facebook video in which he threatened Ashley. He stated “I'm about to put her ass on black. It's a rap. I'm about to fuck it all up for her now because you know that I'm saying?” Id. at ¶ 9. Carlos Soto, a personal friend of Baez, also appeared in the video. Id. at ¶ 10. He later told detectives that Baez drank a pint of Hennessy before the recording. Id.

         After posting this video, Baez called Ashley seven times. Id. at ¶ 11. Ashley returned his call and called back twice. Id. They also exchanged texts between roughly 6:30 P.M. and 6:50 P.M. Id. Ashley told Baez she wanted him to leave her alone. Id. Baez ignored these wishes and traveled to Ashley's mother's home. According to Plaintiff, Baez went there to retrieve a cellphone.

         3. Baez Arrives at the Purnell Residence

         Baez repeatedly banged and kicked Ashley's mother's door. Def Exhibit D-13, Statement of Rowshon Purnell of November 24, 2015 (“Rowshon Purnell Statement”) [Doc. No. 42-16]. Ashley refused to talk to him or go outside. Id. Ashley then told her mother to call the police. Pl. Resp. SMOF at ¶ 12. Ashley also texted Baez and said the police were coming. Id. at ¶ 13. Baez responded, “I just ant [sic] my phones good [sic] diggij [sic] bitch.” Id. Ashley said she would give him his cellphone once they resolved a previous dispute about a car and if Baez left the house. Id. She then sent her last text to Baez: “Get away! U stupid tgey [sic] on there [sic] way!” Id. Baez responded, “No u r.” Id.

         4. Rowshon Purnell's First 9-1-1 Call

         Rowshon called 9-1-1 shortly after Ashley texted Baez. Rowshon told the dispatcher that her “daughter's son's father” was banging on the door and refusing to go away. Id. at ¶ 16. She said, “[Ashley] doesn't want nothin' to do . . . he's still knockin' on my door.” Id. She also said she did not know if he had a gun. Id. Two minutes later, CCPD Officers Johnathan Kerper and Anthony Painchaud (“Defendants”) were dispatched to the scene. Id. at ¶ 17.

         5. Rowshon Purnell's Second 9-1-1 Call

         Eight minutes after her first 9-1-1 call, Rowshon called 9-1-1 again. Id. at ¶ 19. She spoke with a different dispatcher and informed her that Baez continued to bang on her door. Id. She said again that she did not know whether Baez had a gun. Id. The dispatcher immediately asked her whether she saw a gun or whether Baez was known to carry a gun. Rowshon Purnell responded, “No” and then said, “I don't really know.” Id. During the same 9-1-1 call, she told the dispatcher that Baez had given Ashley a black eye earlier in the day. Id.

         6. The Officers Arrive at the Purnell Residence

         Thirty seconds after Rowshon's second 9-1-1 call, Officers Kerper and Painchaud notified dispatch that they arrived to the area. Id. at ¶ 23. According to Kerper, dispatch then informed them that the suspect may have a firearm. Id. (emphasis added). The dispatcher told the officers that the caller “[didn't] know whether he (Baez) [had a gun] - even though no [gun] was seen.” Id. at ¶ 32.

         The officers did not immediately find Rowshon's home when they entered the neighborhood. Id. at ¶ 25. A man called down to the them from a second story window and pointed to the location. Id. Painchaud found this odd, and suspected that the dispute must have been loud for a distant neighbor to point it out on his own accord. Id.

         The officers walked next to the side of the Purnell residence and approached the front of the house. Id. As they approached, they de-holstered their firearms. Id. at ¶ 29. Officer Painchaud peeked around the corner of the house and saw a man on a small landing, hunched over between the storm door and the main door. Id. ¶ 32. Painchaud heard Baez say, “I need my phone” in a low voice, even though he appeared to have a phone in his hand. Id. Baez knocked repeatedly on the door. Id. Kerper and Painchaud briefly conferred and agreed that Painchaud would walk straight towards Baez while Kerper would take a wider turn to provide “cover.” Id. at ¶ 35. At that point, the officers still did not know if Baez had a gun. Id.

         7. Accounts of the Shooting

         The parties dispute what happened next. Painchaud claims that he approached Baez with his weapon at a “low-ready position” (at a 45-degree angle facing downwards). Def SMOF at ¶ 36. Painchaud explained:

As we came up and brought the light up, I asked Mr. Baez to show me his hands, you know, as we were approaching he was knocking on the door. When I asked him to show me his hands, his left hand came out from wherever it was tucked in and he said, a fuck something. I don't know if it was fuck you or I heard fuck, heard a bang, and I saw a muzzle flash. He had a gun in his left hand and at that time, myself and Officer Kerper, returned fire and basically we ...

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