CARPENTER v. CHARD, JR.

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

DAVID J. CARPENTER :

and Hon. Joseph H. Rodriguez

SUSAN CARPENTER, h/w :

Civil Action No. 18-10959

Plaintiffs, :

OPINION

v. :

PATROLMAN ALBERT :

CHARD, JR., CHIEF OF POLICE

JODY FARABELLA, and CITY :

OF MILLVILLE, NEW JERSEY,

THROUGH ITS POLICE :

DEPARTMENT

:

Defendants.

:

This matter comes before the Court upon the Motion for Summary

Judgment filed by Plaintiffs, Mr. David J. Carpenter (“Carpenter”) and Mrs.

Susan Carpenter [Dkt. No. 29,] and the Motion for Summary Judgment

filed by Defendants, Patrolman Albert Chard, Jr., Chief of Police Jody

Farabella, and City of Millville, New Jersey, Through Its Police Department.

[Dkt. No. 30.] The Court has reviewed the written submissions of the

parties and considered the arguments advanced at the hearing on

September 22, 2020. For the reasons set forth below, as well as those set

forth on the record during the hearing, Plaintiffs’ Motion [Dkt. No. 29] will

be granted and Defendants’ Motion [Dkt. No. 30] will be denied.

I. Background

On January 22, 2018, at approximately 3:16 p.m., uniformed Millville

Police Chard (“Chard”) was on foot directing traffic at the intersection of

High and Foundry Streets, in the City of Millville, New Jersey. [Dkt. No. 1

“Complaint” at Exhibit A “Investigation Report.”] Chard observed

Carpenter operating a red Ford pickup truck. [Id.] As Carpenter drove, he

“filmed the police action on his cellphone.” [Id.] Chard made a downward

motion for Carpenter to put down his phone. [Id.] These facts are not

contested.

In the video Carpenter was capturing at the time of the incident,

Carpenter can be heard saying, “What? No, no, no, I don’t have to,” in

response to Chard’s motion. [Dkt. No. 30-3 at Exhibit 1.] After which, the

video captures a sound and a potential image of Chard attempting to open

Carpenter’s vehicle on the front passenger-side door. [Id.] Chard does not

contest that he was attempting to open the door See Exhibit K

(Investigation Report) at 2. Carpenter can be heard saying, “[o]kay, okay,”

before stopping his truck. [Dkt. No. 30-3 at Exhibit 1.] Chard then appears

at the driver’s side window and both he and Carpenter appear to be

distressed. [Id.] Chard orders Carpenter to “put the phone down” and “turn

the car off.” [Id.] Carpenter states, “Hey, you want a lawsuit?” to which

Chard replies, “You want to get arrested?” As tensions increase, Carpenter

called 9-1-1 from inside his vehicle. [Id.] Carpenter was soon after notified

he would be placed under arrest. [See Investigation Report.]

Following the incident, Chard drafted a police investigation report

which in part stated:

The defendant was arrested, processed, and charged on

summons 0610/S 2018 000134 for 2C:29-1A (Obstruction);

2C:33-1E (Calling 911 without the need for 911 service); and

2C:12-1C (a) (Assault by Auto). The defendant was released

following processing. A VINE form was filled out along with the

CJP paperwork.

The following traffic summons were issued as well:

214402 39:4-97.3 Cell Phone Use While Driving

214403 39:4-80 Failure to Obey Police Officer Directing Traffic

214404 39:4-126 Failure to Use Proper Turn Signal

214405 39:4-97 Careless Driving.

[See Investigation Report.]

The Police Report describes an incident where Chard was

purposefully dragged by Carpenter’s vehicle: “As soon as I grabbed the

handle the driver attempted to pull away with my hand still attached. I was

unable to let go fast enough and was dragged across High Street to the east

near the southeast corner.” See Exhibit K (Investigation Report) at 2.

Chard, then submitted a signed Affidavit of Probable Cause. [ See Dkt. No.

30-3 at Exhibit 4, “Affidavit of Probable Cause.”] The Affidavit provided the

factual basis of the charges, including the description of the traffic incident,

the circumstances of the offense of Carpenter’s 9-1-1 call to request a

supervisor for alleged harassment by police, and Chard’s statement of the

extent of the injury he sustained. [Id. at 9-10.]

On February 7, 2018, Chard was called to testify before a grand jury

by the Cumberland County Prosecutor’s Office. [See Compl. at Exhibit C

“Grand Jury Panel Transcript.”] Assistant Prosecutor Tonnisen questioned

Chard with the following exchange:

Q: While you were holding the door handle, did he drive which

dragged you across the street?

A: Yes.

See Exhibit M (Grand Jury Transcript) at 5. Thereafter, the grand jury

returned indictments against Carpenter for Aggravated Assault on a Police

Officer – Third Degree (N.J.S.A. 2C:12-1b(5)(a)); and Eluding – Third

Degree (N.J.S.A. 2C:29-1b). [Id.]

On April 2, 2018, at a plea and sentencing hearing in the Cumberland

County Superior Court, Judge Michael Silvanio accepted a plea agreement.

[See Dkt. No. 30-3 at Exhibit 5, “Transcript of April 2, 2018, Superior Court

Plea Hearing and Sentence.”] All of the charges, except the charge for Cell

Phone Use While Driving, were dismissed by the State in exchange for the

plea because the prosecutor found that he had “no factual” support for the

remaining charges. [See Exhibit I (Transcript) at 4; Exhibit N (Plea Form).

This is the colloquy between the prosecute and the court as to the merits of

the plea agreement:

MR. HERNDON: However, with respect to the Indictment, we

did look at several videos, including the Defendant’s cell phone

video that he was using while driving, filming the incident. We

also did pull several surveillance videos after that. Had made a

determination, me and my supervisors, that after viewing the

video, that there were no indictable level offenses to which

Carpenter should have been indicted for. I believe he was

indicted for Aggravated Assault on a Law Enforcement Officer

as one of the offenses, and again, there was, in the State’s view,

no factual for that. So we’re agreeing to dismiss the Indictment

in exchange for Carpenter to plead guilty to the motor vehicle

violation of Operating a Cell Phone While Driving a Motor

Vehicle.

THE COURT: So the State is moving to dismiss the Indictment?

MR. HERNDON: Yes, Your Honor.

[See Exhibit I at 4-5].

As a result, Carpenter pleaded guilty to the traffic offense of operating

his motor vehicle while using a cellphone in violation of N.J.S.A. 39:4-97.3.

[Id.] The remaining criminal and traffic charges were dismissed, but

Carpenter was fined $400 plus court costs. As a result of being arrested and

charged, he lost his job, health insurance, and suffered other ailments

because of the public humiliation. [Id.]

Plaintiffs filed the Complaint [Dkt. No. 1] on June 22, 2018 alleging

five counts: Counts I and II are constitutional claims against Chard (I) and

a Monell Claim against Chief Farabella and the City of Millville (II), Count

III alleges a claim under the NJCRA, Count IV Negligence and respondeat

superior, and Count V is loss of consortium. Plaintiffs’ constitutional claims

against Chard are plead under the Fourth and Fourteenth, but do not

clearly identify a right other than “Carpenter had a right not to be indicted

based on perjured testimony.” Plaintiff claims under Monell allege that the

City has a custom of treating officers involved in aggressive police actions

with little or no meaningful consequence for the offending police officer.

Defendants filed a motion for summary judgment [Dkt. No. 30] on January

9, 2020.

Chard filed a counterclaim seeking personal injury damages because

Carpenter assaulted him with his automobile. Plaintiff moves for summary

judgment, [Dkt. No. 29] on Chard’s personal injury counterclaim, on the

grounds that Chard is beholden to the ‘verbal threshold’ and because Chard

has not suffered an injury. Chard claims he sustained compensable

personal injury as a result of actionable conduct by Carpenter and, based on

the underlying facts and circumstances of this matter, Chard’s

Counterclaim for damages is not subject to the ‘verbal threshold’ defense.

II. Standard of Review

A court will grant a motion for summary judgment if there is no

genuine issue of material fact and if, viewing the facts in the light most

favorable to the non-moving party, the moving party is entitled to judgment

as a matter of law. Pearson v. Component Tech. Corp., 247 F.3d 471, 482

n.1 (3d Cir. 2001) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986));

accord FED. R. CIV. P. 56 (c). Thus, this Court will enter summary judgment

only when “the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to

judgment as a matter of law.” FED. R. CIV. P. 56(c).

An issue is “genuine” if supported by evidence such that a reasonable

jury could return a verdict in the nonmoving party’s favor. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is “material” if, under

the governing substantive law, a dispute about the fact might affect the

outcome of the suit. Id. In determining whether a genuine issue of material

fact exists, the court must view the facts and all reasonable inferences

drawn from those facts in the light most favorable to the nonmoving party.

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

Initially, the moving party has the burden of demonstrating the

absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477

U.S. 317, 323 (1986). Once the moving party has met this burden, the

nonmoving party must identify, by affidavits or otherwise, specific facts

showing that there is a genuine issue for trial. Id.; Maidenbaum v. Bally’s

Park Place, Inc., 870 F. Supp. 1254, 1258 (D.N.J. 1994). Thus, to withstand

a properly supported motion for summary judgment, the nonmoving party

must identify specific facts and affirmative evidence that contradict those

offered by the moving party. Andersen, 477 U.S. at 256–57. Indeed, the

plain language of Rule 56(c) mandates the entry of summary judgment,

after adequate time for discovery and upon motion, against a party who

fails to make a showing sufficient to establish the existence of an element

essential to that party’s case, and on which that party will bear the burden

of proof at trial. Celotex, 477 U.S. at 322.

In deciding the merits of a party’s motion for summary judgment, the

court’s role is not to evaluate the evidence and decide the truth of the

matter but to determine whether there is a genuine issue for trial.

Anderson, 477 U.S. at 249. Credibility determinations are the province of

the finder of fact. Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d

1358, 1363 (3d Cir. 1992).

III. Discussion

A. Defendants’ Motion for Summary Judgment

1. Claims against Defendant Chard

The Complaint alleges general violations of the Fourth and

Fourteenth Amendments. Plaintiffs argue in their briefs that the right to be

free of an Indictment based on perjured testimony is old as the oath itself,

which has been administered time out of mind in Anglo-American courts.

Plaintiffs’ state constitutional claims allege improper seizure and false

arrest. In sum, Patrolman Chard’s false reports and grand jury testimony

violated “clearly established statutory or constitutional rights of which a

reasonable person would have known.” Id.

Plaintiff’s Constitutional claims are governed by Title 42 U.S.C. §

1983, which provides a civil remedy against any person who, under color of

state law, deprives another of rights protected by the United States

Constitution. See Collins v. City of Harker Heights, 503 U.S. 115, 120

(1992).1 Any analysis of 42 U.S.C. § 1983 should begin with the language of

the statute:

1 Plaintiffs’ State Constitutional claims under the New Jersey Civil Rights Act, N.J.S.A.

10:6-2, follow the analysis under 42 U.S.C. § 1983. Hedges v. Musco, 204 F.3d 109, 121

n.12 (3d Cir. 2000); Pettit v. New Jersey, 2011 WL 1325614, at *3 (D.N.J. Mar. 30, 2011)

(“This district has repeatedly interpreted NJCRA analogously to § 1983.”). As a result,

Every person who, under color of any statute, ordinance, regulation,

custom, or usage, of any State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen of the United States or

other person within the jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the Constitution and laws,

shall be liable to the party injured in an action at law, suit in equity, or

other proper proceeding for redress.

See 42 U.S.C. § 1983.

As the above language makes clear, Section 1983 is a remedial statute

designed to redress deprivations of rights secured by the Constitution and

its subordinate federal laws. See Baker v. McCollan, 443 U.S. 137, 145 n.3

(1979). By its own words, therefore, Section 1983 “does not . . . create

substantive rights.” Kaucher v. County of Bucks, 455 F.3d 418, 423 (3d Cir.

2006) (citing Baker, 443 U.S. at 145, n.3).

To state a cognizable claim under Section 1983, a plaintiff must allege

a “deprivation of a constitutional right and that the constitutional

deprivation was caused by a person acting under the color of state law.”

Phillips v. County of Allegheny, 515 F.3d 224, 235 (3d Cir. 2008) (citing

Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996)). Thus, a plaintiff must

demonstrate two essential elements to maintain a claim under § 1983: (1)

the Court will analyze Plaintiff’s state and federal constitutional claims concurrently,

using the analysis under § 1983.

that the plaintiff was deprived of a “right or privileges secured by the

Constitution or the laws of the United States” and (2) that plaintiff was

deprived of his rights by a person acting under the color of state law.

Williams v. Borough of West Chester, Pa., 891 F.2d 458, 464 (3d Cir. 1989).

There is no dispute that Chard was acting under the color of state law

on the day of the incident and in his appearance before the grand jury. In

addition, it is well settled that the right to be free from an indictment

predicated upon false charges violates Plaintiffs’ right to due process

guaranteed by the Fourteenth Amendment. Black v. Montgomery Cty., 835

F.3d 358, 369 (3d Cir. 2016). In Black, the Third Circuit reaffirmed that “a

plaintiff may pursue a fabricated evidence claim against state actors under

the due process clause of the Fourteenth Amendment even if the plaintiff

was never convicted.” Id. (footnote omitted). The decision expanded on

the precedent set in Halsey v. Pfeiffer, 750 F.3d 273, 292 (3d Cir. 2014),

which considered the boundary between The Fourth Amendment, which

“forbids a state from detaining an individual unless the state actor

reasonably believes that the individual has committed a crime[,]” and The

Fourteenth Amendment’s protection which “protects defendants during an

entire criminal proceeding through and after trial.” Halsey v. Pfeiffer, 750

F.3d at 292 (citing Bailey v. United States, –––U.S. ––––, 133 S. Ct. 1031,

1037, 185 L.Ed.2d 19 (2013); Pierce v. Gilchrist, 359 F.3d 1279, 1285–86

(10th Cir. 2004) (quotation omitted)).

The Third Circuit in Halsey adopted the holding of the majority of

cases and held that

“[w]hen falsified evidence is used as a basis to initiate the

prosecution of a defendant, or is used to convict him, the

defendant has been injured regardless of whether the totality of

the evidence, excluding the fabricated evidence, would have

given the state actor a probable cause defense in a malicious

prosecution action that a defendant later brought against him. . .

.. To the best of our knowledge, every court of appeals that has

considered the question of whether a state actor has violated the

defendant's right to due process of law by fabricating evidence

to charge or convict the defendant has answered the question in

the affirmative.

Id. (citing Whitlock v. Brueggemann, 682 F.3d 567, 585 (7th Cir.

2012) (collecting court of appeals cases).

The gravamen of Black centered on the decision in Halsey and

reaffirmed that the “fabricating evidence is an affront to due process of law,

and state actors seeking to frame citizens undermines fundamental fairness

and are responsible for “corruption of the truth-seeking process.’” Black,

835 F.3d at 370.

The question before the Court is whether Chard is entitled to qualified

immunity. The doctrine of qualified immunity provides that “government

officials performing discretionary functions . . . are shielded from liability

for civil damages insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person

should have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Thus,

government officials are immune from suit in their individual capacities

unless, “taken in the light most favorable to the party asserting the injury, . .

. the facts alleged show the officer’s conduct violated a constitutional right”

and “the right was clearly established” at the time of the objectionable

conduct. Saucier v. Katz, 533 U.S. 194, 201 (2001). Courts may exercise

discretion in deciding which of the two prongs of the qualified immunity

analysis should be addressed first in light of the circumstances in the

particular case at hand. Pearson v. Callahan, 555 U.S. 223, 236 (2009).

The doctrine of qualified immunity “balances two important

interests—the need to hold public officials accountable when they exercise

power irresponsibly and the need to shield officials from harassment,

distraction, and liability when they perform their duties reasonably” and it

“applies regardless of whether the government official’s error is a mistake

of law, a mistake of fact, or a mistake based on mixed questions of law and

fact. Id. (internal quotation omitted). Properly applied, qualified immunity

“protects ‘all but the plainly incompetent or those who knowingly violate

the law.’” Ashcroft v. al-Kidd, 5623 U.S. 731, 743 (2011) (quoting Malley v.

Briggs, 475 U.S. 335, 341 (1986)).

For a right to be clearly established, “[t]he contours of the right must

be sufficiently clear that a reasonable official would understand that what

he is doing violates that right.” Saucier, 533 U.S. at 202 (quoting Anderson

v. Creighton, 483 U.S. 635, 640 (1987)). That is, “[t]he relevant, dispositive

inquiry in determining whether a right is clearly established is whether it

would be clear to a reasonable officer that his conduct was unlawful in the

situation he confronted.” Couden v. Duffy, 446 F.3d 483, 492 (3d Cir,

2006).

However, an officer is also entitled to qualified immunity “[i]f the

officer’s mistake as to what the law requires is reasonable[.]” Couden, 446

F.3d at 492 (internal citations omitted). Further, “[i]f officers of reasonable

competence could disagree on th[e] issue, immunity should be recognized.”

Malley, 475 U.S. at 341. See also Brosseau v. Haugen, 543 U.S. 194, 198

(2004) (The general touchstone is whether the conduct of the official was

reasonable at the time it occurred.). Finally, because qualified immunity is

an affirmative defense, the burden of proving its applicability rests with the

defendant. See Beers-Capital v. Whetzel, 256 F.3d 120, 142, n.15 (3d Cir.

2001).

The qualified immunity analysis gives great deference “to the

circumstances of police action, which are often ‘tense, uncertain, and

rapidly evolving.’” Groman v. Township of Manalapan, 47 F.3d 628, 634

(3d Cir. 1995) (quoting Graham, 490 U.S. at 396). See also Graham, 490

U.S. at 396-97 (analyzing reasonableness of use of force “from the

perspective of a reasonable officer on the scene, rather than with the 20/20

vision of hindsight”).

Here, there is no question that the right to be free from false charges

and indictment predicated upon false testimony was clearly established on

the day of the incident. Black, 835 F.3d at 370. Chard does not argue that

he was “mistaken” as to what the law requires. The issue on qualified

immunity is whether Chard “knowingly violate[d] the law’” when he

charged Carpenter with aggravated assault by auto and offered testimony to

support that charge, and other potential exaggerated charges, to the grand

jury. Ashcroft v. al-Kidd, 5623 U.S. at 743. The Court reviews Chard’s

actions under an objective standard of reasonableness at the moment of the

violations. Graham, 490 U.S. at 396. “Other relevant factors include the

possibility that the persons subject to the police action are themselves

violent or dangerous, the duration of the action, whether the action takes

place in the context of effecting an arrest, the possibility that the suspect

may be armed, and the number of persons with whom the police officers

must contend at one time.” Sharrar v. Felsing, 128 F.3d 810, 822 (3d Cir.

1997).

There are three separate video recordings of the interaction between

Chard and Carpenter. The Court has reviewed this evidence and finds that

there are genuine issues of material fact related to whether Chard’s

characterization of the events in his police report and his grand jury

testimony are objectively reasonable. The video evidence consists of a

recording from three different perspectives. The central issue is whether

Chard was dragged by Carpenter so as to justify the assault by auto charge,

the eluding police charge, and others. The videos raise questions as to

whether Chard’s claim that he was dragged is not only objectively

reasonable, but truthful. It is undisputed that Chard authored his police

report before he reviewed, or allegedly even realized that such evidence

existed, the three videos. For this reason, the Court cannot conclude that

Chard’s police report and grand jury testimony, which lead to Carpenter’s

arrest and indictment, are an objectively reasonable assessment of the

events on January 22, 2018. Thus, qualified immunity cannot attach at this

time and summary judgment must be denied.

For the same reasons, summary judgment is denied as to the state law

claims because there is a question of fact as to whether Chard’s actions were

taken in good faith. N.J.S.A. 59:3-3 (Under the Tort Claims Act, a public

employee is not liable if he acts in good faith in the execution or

enforcement of any law.); Bombace v. City of Newark, 241 N.J. Super. 1, 8

(App. Div. 1990).

2. Claims Against Chief Farabella and the City of

Millville

Plaintiff alleges claims unconstitutional policy and/or custom

pursuant to Monell v. Dept. Soc. Servs. of New York, 436 U.S. 658, 691

(1978) against Chief Farabella and the City of Millville. Defendants move

for summary judgment on the ground that Plaintiff has not produced

sufficient evidence of the existence of a policy or custom.

Plaintiffs’ claim that Chief Farabella has ratified a custom of “shock

and awe” behavior by his police force which includes several examples of

police misconduct in the use of force and his lack of action concerning the

alleged attempt of Chard to enter Carpenter’s vehicle and Chard’s

falsification of a police report and related grand jury testimony.

Of particular note are two arrests, which pre-date the underlying

incident, that involve excessive force and aggressive “shock and awe”

behavior. First, Audra Capps suffered several broken ribs as a result of

excessive force employed by of Patrolman Dixon in the course of her arrest;

Dixon pleaded guilty to aggravated assault. See Exhibit D. Second, Alonzo

Williams, suffered several fractures of his facial bones when Patrolman

Profitt slammed his head to the concrete floor of the police station; Profitt

pleaded guilty to aggravated assault. See Exhibit E. Plaintiff argues that his

injuries, while not physical in nature flow from similar police shock and

awe tactics: Carpenter suffered the public disgrace and the humiliation of

arrest and indictment, loss of employment, and loss of health benefits. Mrs.

Carpenter has brought a loss of consortium claim.

A municipality is not liable under 42 U.S.C. § 1983 on a respondeat

superior theory. Monell v. Dept. Soc. Servs. of New York, 436 U.S. 658, 691

(1978). However, a government entity may be liable for its agent’s actions

upon a demonstration that a policy or custom of the municipality caused, or

was a “moving force” behind, the alleged violation of Plaintiff’s rights.

Kentucky v. Graham, 473 U.S. 159, 166 (1985) (quoting Polk County v.

Dodson, 454 U.S. 312, 326 (1981)); Beck v. City of Pittsburgh, 89 F.3d 966,

971 (3d Cir. 1996).

Policy or custom may be established in two ways. “Policy is made

when a ‘decisionmaker possess[ing] final authority to establish municipal

policy with respect to the action’ issues an official proclamation, policy, or

edict.” Andrews v. City of Philadelphia, 895 F.2d 1469, 1480 (3d Cir. 1990)

(citations omitted). “A course of conduct is considered to be a ‘custom’

when, though not authorized by law, ‘such practices of state officials [are]

so permanent and well settled’ as to virtually constitute law.” Id. (citations

omitted). Custom requires proof of knowledge and acquiescence by the

decisionmaker. McTernan v. City of York, PA, 564 F.3d 636, 657 -658 (3d

Cir. 2009).

Moreover, supervisors can be liable if they “established and

maintained a policy, practice or custom which directly caused [the]

constitutional harm,” or if they “participated in violating plaintiff's rights,

directed others to violate them, or, as the person[s] in charge, had

knowledge of and acquiesced in [their] subordinates' violations.” Santiago

v. Warminster Twp., 629 F.3d 121, 129 (3d Cir. 2010) (citations omitted).

Thus, in order to prevail against the government entity, “[a] plaintiff must

identify the challenged policy, attribute it to the city itself, and show a

causal link between execution of the policy and the injury suffered.” Losch

v. Parkesburg, 736 F.2d 903, 910 (3d Cir. 1984).

Further, a plaintiff must show that the municipality acted with

“deliberate indifference” to the known policy or custom. Canton v. Harris,

489 U.S. 378, 388 (1989). “A showing of simple or even heightened

negligence will not suffice.” Board of County Comm’rs of Bryan County,

Okl. v. Brown, 520 U.S. at 397, 407 (1997). Finally, to prevail on a failure to

train, discipline or control claim, a plaintiff must “show both

contemporaneous knowledge of the offending incident or knowledge of a

prior pattern of similar incidents and circumstances under which the

supervisor’s actions or inaction could be found to have communicated a

message of approval to the offending subordinate.” Montgomery v. De

Simone, 159 F.3d 120, 127 (3d Cir. 1998) (citations omitted).

There are genuine issues of material fact related to whether Chief

Farabella was deliberately indifferent to his officers’ custom of using shock

and awe tactics. Despite happening after the Profitt and Dickinson assaults

of their arrestees, there is no mention of the Carpenter incident in Chard’s

2018 work performance evaluation. See Exhibit H (Supplemental Report of

John G. Peters, Ph.D., Dec. 11, 2019) at 11 (noting: “A content assessment of

the evaluation instrument for the evaluation period November 1, 2017

through October 31, 2018 failed to include and/or comment on the arrest of

Carpenter and the charges filed against him.”). Carpenter submits an

expert report of John G. Peters2 on the issues of police aggression and the

2 Dr. Peters is a former Philadelphia police officer and is offered as an expert on use of force and police practices.

He submitted two reports in this matter.

City’s acquiescence to and tolerance of police misconduct. In addition to

highlighting the absence of the Carpenter incident within Chard’s 2018

work performance evaluation, Peters expanded on the systemic effect, and

precursory activity, of such an omission:

Chief Farabella testified on June 12, 2019 that he had recently

received the Internal Affairs investigative report about the Chard-Carpenter

incident and had “looked” at it (Farabella Deposition 41:12). Although

Chief Farabella had not yet made a decision about the Internal Affairs

report findings, he testified the report did not call for Chard to be

disciplined (43:19) and did not call for any remedial training of Chard.

Exhibit J (Peters Preliminary Report) at 13.

Peters highlights that this testimony is at odds with Chief Farabella’s

acknowledgment that the video of the incident did not support Chard’s

allegation that he was “dragged across” the intersection by Carpenter:

The Chief also has knowledge that Chard was not dragged across the

street by Carpenter’s vehicle (Farabella deposition, 62:13-14), and agreed

the surveillance video footage did not show Chard “running” to stay with

the pickup truck(73:13). Based upon video evidence, it was clear to the

Chief that Chard had embellished or intentionally misrepresented the facts

of the incident to make Chard look like the victim. Shockingly, Chief

Farabella testified that he had no concerns with how Chard had handled the

incident (39:11). Id.

In addition, Chard drafted his account of the incident in his police

report before he was privy to the contents of, or allegedly even knew about

the existence of, any of the video evidence. In that report, he recounts the

incident as follows: “As soon as I grabbed the handle the driver attempted

to pull away with my hand still attached. I was unable to let go fast enough

and was dragged across High Street to the east near the southeast corner.”

See Exhibit K (Investigation Report) at 2. The resulting criminal complaint

alleges that Carpenter committed “the offense of assault by auto specifically

by knowingly and recklessly causing injury to Ptlm. Chard as he ordered

defendant to stop his vehicle. Defendant proceeded to drag Ptlm. Chard by

the door handle causing pain and injury to his right arm.” See Exhibit L.

There is no dispute that if an internal affairs investigation into the

Carpenter incident occurred, Defendants did not disclose the results of the

investigation. Plaintiffs claim this is further evidence of deliberate

indifference to a custom because either Chief Farabella was mistaken, and

no internal affairs (“IA”) investigation of Chard was initiated or Defendants

have decided not to produce the IA report. The lack of consequence,

despite Chief Farabella’s apparent agreement that the videos do not

comport with Chard’s description of the incident, creates a genuine issue of

fact as to whether a custom of protecting the officers who exercise their

authority in an excessive manor existed. Peters’ Report expands on this

issue.

Given the high frequency of use-of-force incidents by Millville

police officers, several of these uses of force are likely to be

excessive, but given Chief Farabella’s demonstrated

incompetency to conduct internal investigations, compile data,

and discipline officers, he and the City of Millville repeatedly

demonstrate how they ratify police officer misconduct and

protect them. The result is an organizational culture that

officers know will protect them when they engage in errant

behavior, particularly in their uses of force.

See Exhibit H (Peters Supplemental Report) at 6.

Peters further observed:

If the Chief decided not to take any significant corrective action

in an attempt to alter Chard’s outrageous behavior, such

behavior would have been ratified by the Chief, thereby creating

or reinforcing an organizational atmosphere that intentionally

protected his law enforcement officers.

See id.

To the extent that a fact-finder could conclude that Chard fabricated

or unjustifiably levied charges against Carpenter in an effort to exercise

power and also escaped any consequence for his alleged behavior, Peters

opines that the Chief’s inaction and actions “coupled with that of the City of

Millville, show an organizational culture that clearly is biased toward

protecting Millville police officers and confirming that the City and the

police department administration have your back and will protect you –

even if police officers demonstrate outrageous behavior. See id.

(Supplemental Report) at 7. This is the very definition of a custom; a

genuine issue of fact exists as to whether Chief Farabella had “knowledge of

and acquiesced [to his] subordinates' violations.” Santiago v, 629 F.3d at

129. Summary judgment is denied.

B. Plaintiffs’ Motion for Summary Judgment on the Counterclaim

The Counterclaim alleges that Patrolman Chard was struck by the

automobile operated by David Carpenter while Chard was on duty at a

traffic control during a police emergency. Chard alleges that this was done

intentionally, negligently and carelessly causing him permanent injuries,

requiring the care and treatment of physicians, and medications. He

further argues that the pain and limitations will remain for the rest of his

life and he will continue to suffer disruption to his daily routine. For these

reasons, Chard seeks a judgment against David Carpenter for damages,

including the total amount of any Worker’s Compensation liens together

with interest, counsel fees and the costs of suit.

Plaintiff moves for summary judgment on the ground that Chard’s

claims for non-economic recovery are foreclosed by the verbal threshold

insurance restriction set forth in N.J.S.A. 39:6A-8(a). That statute,

colloquially referred to as the "verbal threshold," provides as follows:

"[A] person who is subject to this subsection... [who files suit] as a

result of bodily injury, arising out of the ownership, operation, maintenance

or use of such automobile in this State, [must prove that he or she] has

sustained a bodily injury which results in death; dismemberment;

significant disfigurement or significant scanning; displaced fractures; loss

of a fetus; or a permanent injury within a reasonable degree of medical

probability, other than scarring or disfigurement. An injury shall be

considered permanent when the body part or organ, or both, has not healed

to [function normally and will not heal to function normally with fu1ther

medical treatment . . . [.]”

Under the Act, in order to recover non-economic damages, a Plaintiff

subject to the verbal threshold must prove, by objective credible medical

evidence, an injury falling into one or more of six categories: 1) death, 2)

dismemberment, 3) significant disfigurement or scarring, 4) displaced

fracture, 5) loss of a fetus, or 6) permanent injury within a reasonable

degree of medical probability.

The verbal threshold requires a two-part analysis. First, the "verbal

threshold" is applicable to a named insured under a standard insurance

policy who elects the verbal threshold as his option. N.J.S.A. 39:6A-8.

Chard admits that he did select the verbal threshold on his personal policy

of insurance in effect at the time of this incident. Thus, it is the second part

of the analysis that is in dispute.

The second portion of the analysis asks whether the Plaintiff is

required to maintain PIP coverage or has a right to receive PIP coverage

through the policy of an immediate resident family member such as a

spouse or parent. See, Koff v. Carubba, 290 N.J. Super 544 (App. Div.)

certif. den. 146 NJ. 498 (1996); see also, Echeverri v. Blakely, 384 NJ.

Super 10, 16 (App. Div. 2006). PIP coverage applies to "the named insured

and members of his family residing in his household who sustained bodily

injury as a result of an accident while occupying, entering into, alighting

from or using an automobile, or as a pedestrian, caused by an automobile

or by an object propelled by or from an automobile...[.]”Harbold v. Olin,

287 NJ. Super. 35, 38 (App. Div. 1996) (emphasis in original).

The facts underlying the interaction between the parties is

documented in the discussion on Defendants’ motion for summary

judgment and will not be recounted here. In addition, during oral

argument, counsel narrowed the issue on this motion before the Court: the

only issue is whether the verbal threshold applies to Chard. If it does,

Chard agrees he cannot sustain his burden of proving that the injuries he

alleges are permanent.

In support of the motion, Carpenter claims that the verbal threshold

applies to Chard’s claim because at the time of Chard's alleged injury, he

was either attempting to enter the vehicle or was a pedestrian. Carpenter

argues that either scenario entitles Chard to receive “PIP” benefits for any

medical treatment resulting from this accident. Therefore, Chard satisfies

both elements of the verbal threshold analysis and the verbal threshold

applies to him as it relates to the subject accident.

Chard claims that he should not be subject to the verbal threshold

provisions of his private automobile insurance policy, because he was “on

duty” rendering his personal motor vehicle insurance inapplicable to his

claim. Chard relies on two New Jersey cases to support his conclusion that

the legislative intent of the statute permits a case by case review of

application of PIP. See Beaugard v. Johnson, 281 N.J. Super. 165 (App. Div.

1995) (15 year-old plaintiff passenger in a school bus determined not to be a

person who had the right to receive PIP benefits because she was not

injured while occupying ‘an automobile’, and therefore not bound by the

verbal threshold of her father’s automobile liability policy); Ibarra v.

Vetrano, 302 N.J. Super. 578 (App. Div. 1997) (plaintiff mother of named

insured determined not to be “an immediate family member” of household

and therefore not subject to verbal threshold). Neither case compels the

result Chard seeks. The decision in Beaugard turned on the fact that the

vehicle at issue, a school bus, was not an automobile under the law. In

Ibarra, the court found that the plaintiff’s relationship to the policy holder

was to tenuous to warrant application of the verbal threshold.

Chard, nonetheless, claims that the legislative intent of N.J.S.A.

39:6A-4 permits his claim because he is not a traditional pedestrian, but a

police officer injured while on duty. Parsing the plain language of the

statute, Chard claims he was not “occupying, entering into, alighting from

or using an automobile, or as a pedestrian[,]” when he sustained his

injuries. His presence and conduct as a uniformed police officer,

performing his law enforcement obligations of directing vehicular traffic

while stationed within an intersection, are not the characteristics of a

‘pedestrian’.

Chard offers no support for his claim that statutory interpretation of

the word “pedestrian” should exempt his activities while on duty or for his

policy argument that his injuries sustained during his police activity do not

further the legislative intent of PIP. PIP coverage applies to the named

insured who sustained bodily injury as a result of “an accident while

occupying, entering into, alighting from or using an automobile, or as a

pedestrian, caused by an automobile[.]” N.J.S.A. 39:6A-4. PIP benefits

advance the legislative policy injuries in automobile-related accidents

should be quickly and effectively compensated, without regard to fault.

Even though Chard agrees that his hospital and medical expenses

were paid by the workers compensation insurance provided by the City of

Millville, so that compensation has already been quick and effective, his

argument that he is exempt finds no support in his submissions.

Summary judgment is granted in favor of Carpenter.

IV. Conclusion

For the reasons stated above, Plaintiffs’ Motion for Summary

Judgment [Dkt. No. 29] will be granted, and Defendants’ Motion for

Summary Judgment [Dkt. No. 30] will be denied.

An appropriate Order shall issue.

Dated: September 30, 2020

s/ Joseph H. Rodriguez

HON. JOSEPH H. RODRIGUEZ,

United States District Judge