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Brown v. City of Atlantic City

United States District Court, D. New Jersey

August 30, 2019


          LAW OFFICES OF ANDAIYE AL-UQDAH, Andaiye Al-Uqdah, Esq., Counsel for Plaintiffs Rose Brown and the Estate of Shawn Brown.

          CARTER & MCKEE, LLC James J. Carter, Esq.; Randy George McKee, Esq., Counsel for Plaintiffs Rose Brown and the Estate of Shawn Brown.

          HOAGLAND, LONGO, MORAN, DUNST & DOUKAS, LLP, Susan K. O'Connor, Esq., Counsel for Defendant City of Atlantic City.

          MICHAEL A. ARMSTRONG & ASSOCIATES, LLC, Morrison Kent Fairbairn, Esq., Counsel for Defendant City of Atlantic City.



         Plaintiffs 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.


         On 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.[1] Id. at ¶ 58. Due to their proximity, the Officers immediately rerouted their vehicle to the area of the shooting. Id.

         Upon turning onto Mediterranean Avenue, a confidential informant gestured to indicate that the individual walking behind him, later identified as Shawn Brown, was the shooter.[2] 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.

         The 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.[3] 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.

         The 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.[4] 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 ¶ 105.

         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.

         Paramedics 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.

         An 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.[5] See AC SUMF, at ¶ 114.

         The 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. Id.

         On 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, [6]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.[7] 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.


         A. Summary Judgment Standard

         Summary 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. Id.

         In 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 ...

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