United States District Court, D. New Jersey
VERONICA CABRERA individually and as Administratrix of the Estate of Freddy Baez Jr., Deceased Plaintiff,
CAMDEN COUNTY and POLICE CHIEF JOHN SCOTT THOMSON and CAMDEN COUNTY POLICE OFFICERS JOHN DOE #'s 1-4 Defendants.
B. KUGLER UNITED STATES DISTRICT JUDGE
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
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.
November 23, 2015: Events the Night Before the Shooting
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.
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.
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.
November 24, 2015: Events in the Hour Before the Shooting
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
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.
Baez Arrives at the Purnell Residence
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
Rowshon Purnell's First 9-1-1 Call
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.
Rowshon Purnell's Second 9-1-1 Call
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.
The Officers Arrive at the Purnell Residence
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.
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.
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.
Accounts of the Shooting
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 ...