United States District Court, D. New Jersey
ROSE BROWN, INDIVIDUALLY, AND AS ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF SHAWN BROWN, Plaintiffs,
CITY OF ATLANTIC CITY, DET. JAMES HERBERT, DET. HOWARD MASON, AND DET. MICHAEL RUZZO, Defendants.
OFFICES OF ANDAIYE AL-UQDAH, Andaiye Al-Uqdah, Esq., Counsel
for Plaintiffs Rose Brown and the Estate of Shawn Brown.
& MCKEE, LLC James J. Carter, Esq.; Randy George McKee,
Esq., Counsel for Plaintiffs Rose Brown and the Estate of
HOAGLAND, LONGO, MORAN, DUNST & DOUKAS, LLP, Susan K.
O'Connor, Esq., Counsel for Defendant City of Atlantic
MICHAEL A. ARMSTRONG & ASSOCIATES, LLC, Morrison Kent
Fairbairn, Esq., Counsel for Defendant City of Atlantic City.
RENÉE MARIE BUMB UNITED STATES DISTRICT JUDGE.
Rose Brown and the Estate of Shawn Brown
(“Plaintiffs”) bring this civil action in
connection with a shooting that resulted in the death of
Shawn Brown (“Brown”) on September 9, 2014. Now,
this matter comes before the Court upon Motions for Summary
Judgment, filed by Defendant City of Atlantic City
(“Atlantic City”)[Dkt. No. 145] and Defendants
Det. James Herbert, Det. Howard Mason, and Det. Michael Ruzzo
(the “Detectives” or “Officers”)[Dkt.
No. 151]. For the reasons set forth herein, Atlantic
City's Motion for Summary Judgment will be
GRANTED. Additionally, the Officers'
Motion for Summary Judgment will be GRANTED IN PART
and DENIED IN PART.
FACTUAL AND PROCEDURAL BACKGROUND
September 9, 2014, Detectives Herbert, Mason, and Ruzzo were
on duty in Atlantic City, New Jersey, wearing plain clothes
while undercover drug purchases with the assistance of a
confidential informant. See Atlantic City's Statement of
Undisputed Material Facts (“AC SUMF”)[Dkt. No.
145-2], at ¶ 53. Shortly after completing a drug
purchase, the Officers were traveling in their vehicle to
another buy when Detective Herbert heard gunshots in the
vicinity. Id. at ¶ 57. The Officers contacted
dispatch for confirmation from “Shot Spotter” (an
acoustic device used to pinpoint the location of gunfire
within the city limits). See id. at ¶¶ 55,
57. Within a few minutes, dispatch confirmed that multiple
gunshots had been detected near Drexel Avenue on Route 30;
only two blocks away from the Officers'
location. Id. at ¶ 58. Due to their
proximity, the Officers immediately rerouted their vehicle to
the area of the shooting. Id.
turning onto Mediterranean Avenue, a confidential informant
gestured to indicate that the individual walking behind him,
later identified as Shawn Brown, was the
shooter. See AC SUMF, at ¶¶
64-65. The Officers observed that Brown “appeared
nervous, and was continuously looking over his
shoulder.” Id. After making eye contact with
the Officers in their vehicle, Brown began to flee down a
nearby side street. Id. at ¶¶ 70, 72.
While running away, the Officers observed Brown clutch at his
waistband and produce a handgun. Id. at ¶ 72.
The Officers, who were wearing badges around their necks,
repeatedly identified themselves as police and ordered Brown
to stop, but he neither stopped nor dropped the gun.
Id. at ¶¶ 73-74.
Officers pursued Brown in their vehicle as he rounded the
corner from North Bartlett Street onto Drexel Avenue, where
he stumbled into some vegetation. See AC SUMF at
¶¶ 75, 78. Det. Mason stopped the vehicle at the
corner of North Bartlett Street and Drexel Avenue, where Det.
Ruzzo exited the vehicle and moved towards Brown.
Id. at ¶ 79. At that point, Brown turned to
face the Officers with his gun pointed in their direction.
Id. at ¶ 81. In response, Det. Ruzzo fired four to
six rounds at Brown. Id. at ¶ 82. Detective
Herbert sought cover behind the vehicle's metal frame,
but then exited the vehicle and fired one to two shots at
Brown. Id. at ¶¶ 83, 85. After Det. Ruzzo
and Det. Herbert had begun firing at Brown, still holding the
handgun, Brown turned and began running down Drexel Avenue.
Id. at ¶ 89. Det. Ruzzo fired one or two more
rounds at Brown before he observed blood on Brown's
shirt. Id. Brown fell to the sidewalk and dropped
his gun. Id.
parties offer differing accounts of what occurred after Brown
fell to the ground. The Officers state that they observed
Brown attempt to stand up and move towards his gun, causing
Det. Ruzzo and Det. Herbert to each fire an additional round
to subdue the perceived threat. Id. at ¶ 91.
However, two witnesses contend that Brown was facing the
Officers, with both hands raised without a gun, yelling
“don't shoot, ” when Det. Ruzzo and Det.
Herbert each fired their final shots at Brown. See
Deposition of Dekrex Davis (“Davis
Deposition”)[Dkt. No. 155-4]; Gertrude Pettus Statement
to Investigators, Sept. 15, 2014 (“Pettus Statement -
9/15/14”)[Dkt. No. 155-9]. After firing his final
round, Det. Herbert approached Brown with his gun drawn,
instructed Brown not to move, and stood over Brown's gun
(which was loose on the ground near his body). See
AC SUMF, at ¶ 91. After the last gunshots, Brown
allegedly told the Officers he was “done” and
pushed himself further away from his weapon. Id. at
approximately 12:57 p.m., Det. Herbert notified dispatch that
multiple shots had been fired and requested an ambulance.
See AC SUMF, at ¶ 93. Det. Ruzzo also requested
an ambulance at 12:58 p.m. Due to the nature of Brown's
injuries, Det. Herbert, at 12:58 p.m. once again emphasized
to dispatch that an ambulance was needed. Id. at
¶ 106. The entire sequence, from when the Officers first
witnessed Brown with a handgun to when an ambulance was
called, lasted approximately one minute. Id. at
¶ 99. The Officers did not administer any medical
assistance, such as CPR, to Brown at the scene. Prior to the
ambulance's arrival, Sergeant Craig Mulhern arrived at
the scene, where he handcuffed and searched Brown, finding
that Brown had been carrying forty (40) bags of heroin.
Id. at ¶ 110.
and EMTs arrived at the scene at approximately 1:01 p.m. and
left for the hospital at 1:15 p.m., after Brown had been
intubated and administered epinephrine. See AC SUMF,
at ¶ 107. At that time, Brown was unresponsive, his
pulse was weak, he was unconscious, and he had agonal
respiration. Id. When Brown arrived at AtlantiCare
Regional Medical Center, at 1:19 p.m., he was asystolic, with
his pupils fixed and dilated. Id. at ¶ 108.
Brown later coded in the operating room and was pronounced
dead at 2:16 p.m. Id. The record contains no
evidence indicating that Brown would have survived if he had
received different, or more expedient, medical care.
autopsy, performed by Daksha Shah, M.D., Designated Medical
Examiner (the “DME”), on September 10, 2014,
determined that three (3) bullets struck Brown. See
AC SUMF, at ¶ 114. The DME found that the gunshot wound
to the right side of Brown's chest caused his death.
Id. According to the DME, the fatal shot had a
downward trajectory and hit Brown on the front side of his
chest, passing through his right lung and exiting out his
back. See Autopsy Report [Dkt. No. 145-8, Ex. 43],
at 5. The DME noted that Brown's other two (2) gunshot
wounds, to his lower back and the lateral side of his left
thigh, did not cause any internal injuries or pass through
any major organs. Id. Because the fatal shot hit
Brown on the front of his chest, the evidence suggests that
the fatal shot was likely one of the final shots fired by
Det. Ruzzo or Det. Herbert, occurring after Brown had fallen
and was turning towards the Officers. However, it is unknown
whether the fatal shot was fired by Det. Ruzzo or Det.
Herbert. See AC SUMF, at ¶ 114.
Atlantic County Prosecutor's Office (“ACPO”)
conducted an extensive investigation into the events
surrounding Brown's death. See AC SUMF, at
¶ 109. At the conclusion of the investigation, the ACPO
presented the case to a Grand Jury, which heard testimony
from multiple witnesses and examined evidence. Id.
at ¶ 133. Ultimately, the Grand Jury returned a
“no bill, ” indicating that the Grand Jury found
that the evidence was insufficient to support criminal
charges against Det. Herbert or Det. Ruzzo. Id. at
¶ 134. Following the conclusion of the ACPO
investigation and the Grand Jury proceedings, the Internal
Affairs Unit of the Atlantic City Police Department performed
its own investigation into the shooting. Id. at
¶ 138. The Internal Affairs investigation concluded that
the Officers' use of deadly force was legal, proper, and
justified. Id. at ¶ 139. The investigation
further concluded that neither Det. Herbert nor Det. Ruzzo
violated any rules, regulations, policies, or procedures.
September 8, 2015, Plaintiffs commenced this action against
the City of Atlantic City, the Atlantic City Police
Department, and Police Officers John Does #1-3 [Dkt. No. 1],
alleging, among other things, constitutional violations for
failure to train, excessive force, and failure to render
timely and proper medical assistance. On May 30, 2016,
Plaintiffs filed an Amended Complaint, which contained five
causes of action, specifically: (Count I) Violations of the
Fourth, Fifth, and Fourteenth Amendments of the U.S.
Constitution under 42 U.S.C. § 1983 against the
Defendant Officers; (Count II) Violations of the Fourth,
Fifth, and Fourteenth Amendments of the U.S. Constitution
under 42 U.S.C. § 1983 (a.k.a. Monell claims)
against Atlantic City; (Count 3) Assault, Battery,
Negligence, Spoliation of Evidence, Wrongful Death under
N.J.S.A. § 2A:31, and a Survivor Action under N.J.S.A.
§ 2A:15-3 against the Defendant Officers; (Count IV)
Conspiracy to Violate Civil Rights against the Defendant
Officers; and (Count V) Punitive Damages against the
Defendant Officers. Among other forms of requested relief,
Plaintiffs seek ten million dollars ($10, 000, 000) in
damages. The Atlantic City Police Department was dismissed as
a defendant, with prejudice, in January 2017. Discovery
concluded in November 2018. Now, this matter comes before the
Court upon Motions for Summary Judgment, filed by the
Officers and Atlantic City.
Summary Judgment Standard
judgment shall be granted if “the movant shows 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). A fact is “material” only if
it might impact the “outcome of the suit under the
governing law.” Gonzalez v. Sec'y of Dept of
Homeland Sec., 678 F.3d 254, 261 (3d Cir. 2012). A
dispute is “genuine” if the evidence would allow
a reasonable jury to find for the nonmoving party.
determining the existence of a genuine dispute of material
fact, a court's role is not to weigh the evidence; all
reasonable inferences and doubts should be resolved in favor
of the nonmoving party. Melrose, Inc. v. City of
Pittsburgh, 613 F.3d 380, 387 (3d Cir. 2010). However, a
mere “scintilla of evidence, ” without more, will
not give rise to a genuine dispute for trial. Saldana v.
Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001). Moreover,
a court need not adopt the version of facts asserted by the
nonmoving party if those facts are “utterly discredited
by the record [so] that no reasonable jury” could
believe them. Scott v. Harris, 550 U.S. 372, 380
(2007). In the face of such evidence, summary judgment is