FULLERTON v. TINTON FALLS

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

ROBERT FULLERTON, et al.,

os Civil Action No.:

Plaintiffs, 3:18-cv-3248-PGS-LHG

V.

TINTON FALLS, et al., MEMORANDUM AND ORDER

Defendants.

SHERIDAN, U.S.D.J.

This matter comes before the Court on Defendants’ motion for summary judgment on the

nine count Complaint. (ECF No. 29). During the course of this motion, Plaintiff voluntarily

dismissed Counts III, IV and V (Pls.’ Opp’n Br. 1, ECF No. 31, p. 32 of 48). As such, only the

six counts against Officer Reyes remain. They are:

Count 1: Excessive Use of Force under § 1983 (Count J);

Count II: Illegal Search/Seizure under § 1983 (Count ID);

Count VI: Violation of the New Jersey Civil Rights Act (NJCRA) (Count VI);

Count VII: Assault and Battery (Count VID;

Count VIII: Negligence (Count VIII; and

Count IX: Trespass to Chattels and Land (Count IX).

I.

On October 8, 2017 at about 5:00 p.m., Robert (father) and Bobbi Rene (daughter)

Fullerton were at home. (PSOMF 1). Bobbi Rene was cleaning her fish tank and many of the

fish tank materials were strewn about the kitchen. Robert requested that Bobbi Rene clean up her

fish tank because he was preparing dinner. Robert exited the kitchen and walked outside onto the

patio. (PSOMF { 1). When Robert returned a few minutes later, the kitchen was still in disarray;

and an argument erupted as Robert took Bobbi Rene’s laptop so she would clean the kitchen.

(Defs. Statement of Material Facts Not in Dispute (DSOMF) 4 1, ECF No. 29-1). This argument

continued as the father and daughter walked out to the patio and it lasted for approximately thirty

seconds to a minute. (PSOMF § 1); (see DSOMF 41). After the argument concluded, Bobbi Rene

went back inside while Robert remained on the patio. (See PSOMF 4 1).

Unbeknownst to Plaintiffs, Mr. Mercadante heard the argument, and called the Tinton Falls

Police believing the argument to be a possible domestic violence dispute to which Office Reyes

responded. (see DSOMF 4f 3, 5). Officer Yurcisin was also dispatched.

Arriving first, Officer Reyes interviewed Mr. Mercadante at the park across the street from

the Fullerton residence. (See DSOMF 4f 3, 5). Mr. Mercadante allegedly told Officer Reyes that

he had heard a man and woman yelling at each other from across the street, and pointed in the

direction of the Fullerton residence. (See id. 95). After speaking with Mr. Mercadante, Officer

Reyes proceeded, on foot, toward the Fullerton residence. (DSOMF 4 5).

Meanwhile, shortly after the 911 call was concluded, Lieutenant Kyle Pierson, a patrol

lieutenant with the TFPD called Robert Fullerton, his longtime friend. (PSOMF 2).

During the telephone conversation between Lt. Pierson and Robert, Lt. Pierson informed

Robert that the TFPD had received a call about some commotion near Plaintiffs’ Residence. (See

id.); (DSOMF § 10). Robert advised that he and Bobbi Rene had engaged in an innocuous

argument about cleaning a fish tank, but that the argument had concluded. (See PSOMF § 3).

Acknowledging this information, Lt. Pierson informed Robert that a police officer would be

following up. (DSOMF 10).

After the phone conversation ended, Lt. Pierson radioed Officers Reyes and Yurcisin to

alert them that he had just spoken with Robert, that the disturbance was a relatively harmless

father-daughter argument, and ordered the officers to “proceed with caution.” (PSOMF ff 3, 5).

To “proceed with caution” means: “Just slow down, turn off your lights and sirens, there’s no

reason to put the public at risk if I don’t believe it’s a situation that warrants us going through

lights and stop signs.” (Deposition of Kyle Pierson 24:17-20, Feb. 28, 2019, Defs.’ Ex. E to Finizio

Cert., ECF No. ECF No. 29-8); (see PSOMF 4 3). Officer Yurcisin verbally acknowledged receipt

of Lt. Pierson’s radio transmission; but it is unclear whether Officer Reyes heard Lt. Pierson’s

direction.

Officer Reyes walked to the front door of the house, he knocked on the door and rang the

doorbell several times, but Plaintiffs did not immediately answer the door. (/d. J 13). Evidently,

while Officer Reyes was knocking on the front door, Robert was standing on his outdoor patio and

may have still been on the phone with Lt. Pierson. (PSOMF § 8). Robert eventually heard the

knocking and ended his phone conversation with Lt. Pierson to answer the door!. (/d).

The parties’ versions of what happened next differ in several important respects.

Plaintiffs allege that Robert Fullerton opened the front door of his residence expecting to

see a police officer on his front stoop, but nobody was there. (PSOMF 4 8). As Robert looked

outside, he saw Officer Reyes standing by the garage approximately twenty-five feet away from

him. (/d.). Robert walked outside, and stepped onto the front stoop. (/d. 4 9). As he walked onto

the stoop, and while the front door was still open, Sadie, Plaintiffs’ younger German Shepherd,

“brushed past [Robert]” in the direction of Officer Reyes. (Jd. J 9). Robert claims that Sadie was

neither barking nor growling as it ran toward Officer Reyes. (/d.).

' There were multiple signs warning of dogs on the front lawn: “BEWARE...DOGS WILL ATTACK;” “DO NOT

GET OUT OF YOUR CARS DOGS WILL ATTACK;” “WARNING! SECURITY DOG;” and “DOGS WILL

ATTACK DO NOT GO BEYOND THIS POINT.” (DSOMF 6). Some of the signs contained pictures of

Plaintiffs’ German Shepherds. (/d. 47). Officer Reyes denies that he saw these signs as he approached the

Fullerton residence. (/d. J 8).

Plaintiffs allege that Sadie was a few feet from Officer Reyes when Robert observed Reyes

pull his gun and point it at Sadie; Robert yelled several times to Officer Reyes, “Don’t shoot!”

(/d.). Despite Robert’s plea, Officer Reyes fired at Sadie, shooting the dog. (/d.). The dog

immediately turned away from Reyes and crossed Robert’s path when Officer Reyes fired again

hitting Sadie for the second time. (/d.). Plaintiffs claim that Sadie was then at a 90-degree angle

when Officer Reyes fired his third and final shot into Sadie. (/d.). The dog was allegedly knocked

backwards and stumbled around in the grass. (Id).

In shock, Robert claims that he ran toward the dog, but Officer Reyes ordered him to the

ground and pointed his gun at Robert’s face. (/d.). Robert complied, raised both his hands, and

continuously asked Officer Reyes why he had shot the dog. (/d.).

Immediately thereafter, Bobbi Rene heard popping noises and a dog whimpering from

outside. (/d. J 14). As Bobbi Rene approached the front door of the house, which was still open,

Hannah, the older German Shepherd, was directly in front of Bobbi Rene and exited the house

first. (/d.). Bobbi Rene claims that Hannah “wobbled” toward Officer Reyes, then Officer Reyes

fired at Hannah, and Reyes fired again a few moments later, shooting the dog once more. (See

id.). Plaintiffs allege that Officer Reyes then pointed his gun at Bobbi Rene’s face while she

repeatedly begged Officer Reyes not to shoot her. (/d.). Both dogs, still alive at this time, ran

toward the back of the house. (/d.). Bobbi Rene told Officer Reyes that she had to tend to her

dogs, so she ran past him toward the back of the house to look for the dogs. (Jd).

Officer Reyes’s account of the events, on the other hand, are quite different from Plaintiffs’.

According to Reyes, after he knocked on the door several times and nobody answered, he walked

toward the garage. (See DSOMF 13). Officer Reyes neither saw nor heard the Fullertons or the

dogs at this time. (See id.). Reyes alleges that a few seconds later, the front door of the Fullerton

residence opened suddenly, and he saw a German Shepherd (Sadie), “unleashed and uncontrolled,”

running toward him. (/d. { 14). Officer Reyes alleges that he took a few steps back to create space

between him and the dog, but the dog “charged” at him, and he was forced to shoot the dog for his

own safety. (id. J 15).

After he fired at Sadie, Officer Reyes claims that he saw Robert Fullerton exit the house.

Officer Reyes ordered Robert to the ground at gunpoint as Robert shouted profanities and

asked why the dogs were shot. (See id. 4 16). As his gun was pointed at Robert, Officer Reyes

then saw a second German Shepherd (Hannah) emerge from the house, charging at him “in the

same aggressive manner” as the first dog. (/d. § 19). Officer Reyes alleges that, once again, for

his safety, he was forced to shoot the second dog. (Jd. $4 19, 21). Officer Reyes then saw Bobbi

Rene exit the house and he ordered her to the ground at gunpoint. (/d. 4 22). Bobbi Rene also

used profanity when asking why Officer Reyes shot the dogs. (See id). Bobbi Rene did not

comply with Officer Reyes’ orders to lay on the ground and instead ran after the injured dogs. (/d.

23). Officer Reyes still pointed his gun at Robert.

The parties agree that a few minutes later Officer Yurcisin arrived at the scene, at which

point Officer Reyes put his gun away. (PSOMF 4 23). Moments later, several TFPD officers,

including Lt. Pierson, and other local police officers arrived at the scene. (See id. 24). Both dogs

were immediately taken to a local veterinary hospital to receive emergency medical care. (See

DSOMF 4 24). Sadie died while Hannah lived, but suffered severe injuries. (/d.).

The incident was investigated by the TFPD Internal Affairs Unit and the Monmouth

County Prosecutor’s Office. (Jd. J 25). The TFPD concluded that Officer Reyes did not violate

any policies, guidelines, or procedures concerning the discharge of his firearm. (Jd 426). The

TFPD, however, also found that Officer Reyes failed to activate his Mobile Video Recorder

(MVR) camera and microphone upon arrival at the scene; as such, Officer Reyes received a one-

day suspension. (/d. § 27). The Monmouth County Prosecutor’s Office similarly concluded that

Officer Reyes’s firearm discharge was conducted within the relevant guidelines. (/d. J 29).

II.

The standard for granting summary judgment is a “stringent one.” Robinson v. Winslow

Twp., 973 F. Supp. 461, 466 (D.N.J. 1997). Summary judgment is appropriate under Fed. R. Civ.

P. 56 when the moving party demonstrates that there is no genuine issue of material fact and the

evidence establishes the moving party’s entitlement to judgment as a matter of law. Celotex Corp.

v. Catrett, 477 U.S. 317, 322-23 (1986); Fed. R. Civ. P. 56(a).

A factual dispute is genuine if a reasonable jury could return a verdict for the non-movant,

and it is material if, under the substantive law, it would affect the outcome of the suit. Anderson

v, Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); United States ex rel. Greenfield v. Medco Health

Sols., Inc., 880 F.3d 89, 93-94 (3d Cir. 2018). In considering a motion for summary judgment, a

district court may not make credibility determinations or engage in any weighing of the evidence;

instead, the non-moving party’s evidence “is to be believed and all justifiable inferences are to be

drawn in his favor.” Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting

Anderson, 477 U.S. at 255).

Moreover, only disputes over facts that might affect the outcome of the lawsuit under

governing law will preclude the entry of summary judgment. Anderson, 477 U.S. at 247-48;

Greenfield, 880 F.3d at 93. Ifa court determines, “after drawing all inferences in favor of [the

non-moving party], and making all credibility determinations in his favor - that no reasonable jury

could find for him, summary judgment is appropriate.” Alevras v. Tacopina, 226 F. App’x 222,

227 (3d Cir. 2007).

Here, the chief argument of Officer Reyes is that the doctrine of qualified immunity

applies, and summary judgment should be granted. To the contrary when there are disputed facts,

“those issues must be determined by the jury.” Monteiro v. City of Elizabeth, 436 F.3d 397, 405

(3d Cir. 2006) (citing Johnson v. Jones, 515 U.S. 304, 313 (1995).

II.

At the outset, the parties agree that (a) the killing of a person’s dog by a law enforcement

officer constitutes a seizure under the Fourth Amendment (Brown v. Muhlenberg Twp., 269 F. 3d

205, 210 (3d Cir. 2001)); and (b) “the pointing of a weapon at an individual constitutes a seizure

because that act “would have conveyed to a reasonable person,” that he was not to leave. United

States v. Lowe, 791 F.3d 424, 430 (3d Cir. 2015) (quoting Cal. v. Hodari D., 499 U.S. 621, 627-

28 (1991)). In assessing qualified immunity in this type of case, the Courts ordinarily apply the

objective reasonable standard. See Graham v. Connor, 490 U.S. 386, 394-95 (1989). Qualified

immunity protects the state actor for his reasonable actions.

More specifically, the next issue is whether qualified immunity protects Officer Reyes for

shooting the dogs. The Third Circuit has held that while public safety is a legitimate governmental

interest in the context of dogs, the state may not destroy a pet when the pet does not pose an

“imminent” danger to the officer or others, and when the owner(s) is looking on and is “desirous

of retaining custody” of the pet. Brown, supra at 269 F.3d at 210-11. The Brown court concluded

that because the plaintiffs’ pet dog did not pose an immediate threat to the officer, and the officer

knew the dog belonged to the plaintiffs, the officer’s shooting of the dog constituted an

unreasonable seizure; and thus denied the officer qualified immunity. See, e.g., VA. Chappell v.

Horsham Twp. Police Dep’t, CIVIL ACTION NO. 2:16-cv-02650, 2018 U.S. Dist. LEXIS

198171, at *18-21 (E.D. Pa. Nov. 20, 2018); Pettit v. New Jersey, Civil Action No. 09-cv-3735

(NLH), 2011 U.S. Dist. LEXIS 35452, at *20 (D.N.J. Mar. 30, 2011); Dziekan v. Gaynor, 376 F.

Supp. 2d 267, 271 (D. Conn. 2005).

As noted, there are two different versions of the facts regarding the conduct of the dogs.

The varying facts must be assessed by a jury.

Similarly, the issue of whether qualified immunity protects Officer Reyes for pointing his

weapon at Robert and Bobbi Rene must be determined. To resolve this issue, use the Graham

reasonableness test to determine whether a police officer’s act of drawing his weapon and pointing

it at citizens during an encounter was reasonable under the circumstances. See, e.g., Stiegel v.

Peters Twp., 600 F. App’x 60, 66-67 (3d Cir. 2014); Mellott v. Heemer, 161 F.3d 117, 123 (3d Cir.

1998). Here, when looking at the reasonableness of Officer Reyes’ actions, the facts are in dispute.

Plaintiffs state that they were unarmed and the dogs were friendly, while Officer Reyes states that

the dogs were growling and he was in fear for his life, as he was quelling the situation. A jury

must determine the facts. Monteiro v. City of Elizabeth, 436 F.3d 397, 405 (3d Cir. 2006) (citing

Johnson v. Jones, 515 U.S. 304, 313 (1995); see Azurdia v. City of New York, 18-cv-04189-ARR-

PK, 2019 U.S. Dist. LEXIS 52967, at *19-25 (E.D.N.Y. Mar. 28, 2018). As such, summary

judgment is denied on Counts I and II.

IV.

In Count VI of Plaintiffs’ Amended Complaint, Plaintiffs allege unreasonable seizure in

violation of state constitutional protections under the New Jersey Civil Rights Act (“NJCRA”).

The NJCRA, which creates a private cause of action for violations of civil rights under either the

federal Constitution or New Jersey Constitution, “was modeled after § 1983 and is interpreted

analogously therewith in this District.” Geissler v. City of Atl. City, 198 F. Supp. 3d 389, 394

(D.N.J. 2016); see Pettit, 2011 U.S. Dist. LEXIS 35452, at *10 (“This district has repeatedly

interpreted NJCRA analogously to § 1983.”).

Therefore, because summary judgment has been denied on Plaintiffs’ excessive force and

unreasonable seizure claims under § 1%83, summary judgment is_likewise denied-on Plaintiffs’

constitutional claim pursuant to the NJCRA (Count VI).

V.

Plaintiffs allege common law tort claims against Officer Reyes under New Jersey law:

assault and battery, negligence, and trespass to chattels and land (Counts VII — IX). Officer Reyes

moves for summary judgment on all these claims.

Common law tort claims—arising from both intentional and negligent conduct—against

public entities and public employees are governed by the New Jersey Tort Claims Act (“NJTCA”),

N.J. Stat. Ann. § 59:1-1, et seq. Booker v. Twp. of Willingboro, Civil No. 10-4886 (JBS/JS), 2012

USS. Dist. LEXIS 87435, at *16 (June 22, 2012); Velez v. City of Jersey City, 180 N.J. 284 (2004).

The NJTCA “was enacted with the purpose of limiting a public entity’s or a public employee’s

liability in certain situations.” R.K. v. Y.A.L.E. Schs., Inc., 621 F. Supp. 2d 188, 199 (D.N.J. 2008);

Davis v. Township of Paulsboro, 371 F. Supp. 2d 611, 617 (D.N.J. 2005).

Here, Plaintiffs allege (1) that Officer Reyes committed assault and battery against them

and their two dogs by pointing his weapon at Plaintiffs and shooting the dogs; (2) that Officer

Reyes was negligent in his actions; and (3) that Officer Reyes interfered with their possessory

rights to their real and personal property by entering their land and shooting their dogs, thus

constituting trespass to chattels and land.

A. Assault and Battery

Under New Jersey law, “[a] person is subject to liability for the common law tort of assault

if: (a) he acts intending to cause a harmful or offensive contact with the person of the other or a

third person, or an imminent apprehension of such a contact, and (b) the other is thereby put in

such imminent apprehension.” Leang v. Jersey City Bd. of Educ., 198 N.J. 557, 591 (2009)

(citation and internal quotation marks omitted). A battery includes a preceding assault, and

extends to the actual, “nonconsensual touching” of another. Jd.

Here, Officer Reyes argues that his actions were lawful and reasonable. He also asserts an

affirmative defense of self-defense, claiming that he was impelled to defend himself against the

uncontrolled dogs that confronted him. See Hagopian v. Fuchs, 66 N.J. Super. 374, 379 (N.J.

Super. Ct. App. Div. 1961). As detailed above, there are genuine disputes of material fact about

the behavior of Plaintiffs’ dogs and, accordingly, whether it was reasonable for Officer Reyes to

shoot the dogs and point his weapon at Plaintiffs. Therefore, Plaintiffs’ assault and battery claims

will proceed to trial.

B. Negligence

Next regarding Plaintiffs’ negligence claim, “[n]negligence may be defined as a failure

to exercise, in the given circumstances, that degree of care for the safety of others, which a

person of ordinary prudence would exercise under similar circumstances.” (N.J. Model Civil Jury

Charge 5.10A, Revised Jan. 2019). To establish a prima facie case of negligence, Plaintiffs must

prove the following: “(1) duty of care, (2) breach of duty, (3) proximate cause, and (4) actual

damages.” Wartsila NSD N. Am., Inc. v. Hill Int'l, Inc., 342 F. Supp. 2d 267, 278 (D.N.J. 2004)

(citations and internal quotation marks omitted). In this case, Officer Reyes maintains, once again,

that he acted reasonably under the circumstances based on the situation with which he was

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confronted. Still, these are factual questions for a jury to decide, and as such, summary judgment

is denied on the negligence claim.

C. Trespass to Chattels and Land

Generally, “[a]n action for trespass arises upon the unauthorized entry onto another’s

property, real or personal.” Pinkowski v. Township of Montclair, 299 N.J. Super. 557, 571 (N.J.

Super. Ct. App. Div. 1997) (citing State v. Wouters, 71 N.J. Super. 479, 485 (N.J. Super. Ct. App.

Div. 1962)). A defendant is liable in trespass to land for an “intentional entry onto another’s land,

regardless of harm . .. A defendant is also liable if he recklessly or negligently, or as a result of an

abnormally dangerous activity enters onto another’s land, and the entry causes harm.” Ross vy.

Lowitz, 222 N.J. 494, 510 (2015). Trespass to chattel “occurs when personal property, in the actual

use of the owner, is injured or taken by a trespasser, so that the owner is deprived of the use of it.”

Grisafi v. Sony Elecs. Inc., 2019 U.S. Dist. LEXIS 72876, at *26 (D.N.J. Apr. 30, 2019) (quoting

Arcand v. Brother Int’l Corp., 673 F. Supp. 2d 282, 312 (D.N.J. 2009)) (internal citation and

quotation marks omitted). “All that is required . . . is interference with the chattel as a direct or

indirect result of an act done by the actor.” Grisafi, 2019 U.S. Dist. LEXIS 72876, at *26.

Here, Officer Reyes lawfully entered Plaintiffs’ property as a result of the 911 call to which

he was ordered to respond. Therefore, summary judgment is granted in favor of Officer Reyes on

Plaintiffs’ trespass to land claim. Nevertheless, Plaintiffs present a cognizable claim that Sadie

and Hannah—Plaintiffs’ chattel—were harmed as a result of Officer Reyes’s actions.

Alternatively, Officer Reyes argues that even if Plaintiffs could prove prima facie cases of

their common law tort claims, he is nevertheless immune from liability under “good faith”

immunity exception under the NJTCA, since he was “act[ing] in good faith in the execution or

enforcement of any law.” N.J. Stat. Ann. § 59:3-3. To overcome immunity under a “good faith”

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theory, “a plaintiff must prove more than ordinary negligence ... Summary judgment under section

59:3-3 is appropriate if a public official establishes that his or her ‘acts were objectively reasonable

or that they performed them with subjective good faith.’” Nicini v. Morra, 212 F.3d 798, 815 (3d

Cir. 2000) (quoting, in part, Canico v. Hurtado, 144 N.J. 361, 365 (1996)).

In this case, as explained above, the reasonableness of Officer Reyes’ actions—the

question upon which this case turns—rests on disputed factual issues that cannot be resolved at

the summary judgment stage. As such, summary judgment is denied on all of Plaintiffs’ tort claims

except trespass to land.

VI.

Finally, Defendants argue that under § 1983 and the NJCRA, Plaintiffs cannot recover

punitive damages against Officer Reyes. A jury may assess punitive damages against a defendant

“when the defendant’s conduct is shown to be motivated by evil motive or intent, or when it

involves reckless or callous indifference to the federally protected rights of others.” Smith v. Wade,

461 US. 30, 56 (1983); see DeLuzio v. Monroe County, 271 F. App’x 193, 198 (3d Cir. 2008). As

set forth above, there are factual disputes regarding Officer Reyes’s actions. Therefore, summary

judgment is denied on this issue.

ORDER

This matter, having come before the Court on Defendants’ Motion for Summary Judgment

(ECF No. 29), and the Court having carefully reviewed and taken into consideration the

submissions of the parties, as well as the arguments and exhibits therein presented, and for good

cause shown, and for all of the foregoing reasons,

ITISonthis 29th gay of September, 2020,

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ORDERED that Defendant’s Motion for Summary Judgment (ECF No. 29) is granted in

part and denied in part; and it is further;

ORDERED that the motion for summary judgment is denied with regard to Counts I, II,

VI, VII and VIII; and it is further;

ORDERED that the motion for summary judgment is granted on Counts III, IV, and V as

Plaintiff agreed to dismiss them. All claims against the Borough of Tinton Falls and Chief of

Police John A. Scrivanic are dismissed with prejudice; and it is further;

ORDERED that with regard to Count IX, the motion for summary judgment is granted

with regard to the trespass to land cause of actions and denied with regard to trespass to chattel;

and it is further;

ORDERED that the motion to strike punitive damages is denied.

f& HWM oe

PETER G. SHERIDAN, U.S.D.J.

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