BROWN v. HADDON TOWNSHIP

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

EDMOND BROWN,

Plaintiff, 1:18-cv-15122-NLH-AMD

v. OPINION

HADDON TOWNSHIP, POLICE CHIEF

MARK CAVALLO, in his official

capacity, and POLICE OFFICER

ROBERT MULHERN, in his

individual and official

capacity,

Defendants.

APPEARANCES:

CONRAD J. BENEDETTO

THE LAW OFFICES OF CONRAD J. BENEDETTO

1615 S. BROAD STREET

PHILADELPHIA, PA 19148

HILLARY MARA NAPPI

FRANK ROCCO SCHIRRIPA

HACH ROSE SCHIRRIPA & CHEVERIE LLP

112 MADISON AVE

10TH FL

NEW YORK, NY 10016

On behalf of Plaintiff

TIMOTHY R. BIEG

MADDEN & MADDEN

108 KINGS HIGHWAY EAST, SUITE 200

P.O. BOX 210

HADDONFIELD, NJ 08033-0389

On behalf of Defendants

HILLMAN, District Judge

This matter involves claims of excessive force and state

torts allegedly committed by a Haddon Township police officer,

and claims of municipal liability against Haddon Township and

its chief of police for inappropriate training and supervision

of the officer. Presently before the Court is Defendants’

motion for summary judgment. Defendants’ motion will be denied.

BACKGROUND1

On October 29, 2016,2 Plaintiff, Edmond Brown, was driving a

Ford F-150 pick-up truck northbound on Route 130 when Defendant

Haddon Township Police Officer Robert Mulhern observed a hanging

handicap parking placard obstructing Plaintiff’s view. Mulhern

turned on his lights and drove behind Plaintiff who continued

driving for about a quarter mile despite several opportunities

to turn off the highway. When Plaintiff approached an

intersection, Plaintiff crossed over a lane of traffic and then

over a low median demarking a left turn lane, where he stopped

1 The Court sets forth the following background from the police

vehicle dashcam video which captured the entire incident that

gives rise to this action.

2 The complaint states that the incident occurred on October 26,

2016. (Docket No. 1 at 1.) The documents provided in the

parties’ submissions confirm that the date of the incident is

October 29, 2016.

2

behind another car waiting at the red light. Mulhern followed

Plaintiff, exited his patrol car, approached Plaintiff, and

directed Plaintiff to turn left and pull over on Alabama Road,

which was a narrow residential street. Plaintiff complied.

Mulhern approached Plaintiff’s driver’s side window and

asked Plaintiff for his license, insurance, and registration.

Mulhern stated that he pulled over Plaintiff because he was not

permitted to drive with the handicap parking placard hanging

from the rear view mirror. Plaintiff related that he was

borrowing the truck, he did not know the location of the

insurance card, and he forgot his driver’s license. Mulhern

asked Plaintiff for his name, date of birth, social security

number, and address which he wrote down on a pad. Plaintiff

stated that his name was “Alhakeem Reid,” he was born on July

31, 1979, and provided 127-67-1120 as his social security

number. Mulhern asked Plaintiff to continue searching for the

insurance card and to hold it out the window if he found it.

Mulhern returned to his patrol car and provided the information

given by Plaintiff to dispatch personnel.

When Plaintiff displayed an insurance card out of the

window, Mulhern exited his patrol car and went to the driver’s

side of Plaintiff’s truck. Mulhern examined it and noted that

the insurance was outdated, and asked Plaintiff to try to locate

3

a current one. Mulhern returned to his patrol car and the

dispatch officer informed him that an “Alhakeem Reid” with a

Camden, New Jersey address came up, but with a different date of

birth and a different social security number.

Mulhern went back to Plaintiff’s vehicle. Mulhern asked

Plaintiff if he had a valid New Jersey driver’s license, despite

not having it with him, and Plaintiff said yes. Mulhern asked

Plaintiff to again relate his date of birth and social security

number. Plaintiff provided the same information, but when

Mulhern asked Plaintiff how old he was, Plaintiff stumbled and

could not provide an answer, saying he “just got up.” Mulhern

responded that at any time of day a person should know his date

of birth, social security number, and how old he is. Mulhern

stated that Plaintiff was stalling, and Plaintiff needed to tell

Mulhern the truth because the information Plaintiff provided him

“did not come up.” Plaintiff insisted he was telling the truth,

and stated that his name had a dash - “Al-Hakeem Reid.” Mulhern

asked Plaintiff why he did not provide his name with the dash

when he saw Mulhern writing it down, and Mulhern continued to

question the veracity of Plaintiff’s information. Plaintiff

insisted he was being truthful.

While standing at Plaintiff’s window, Mulhern called

dispatch from his radio and asked them to perform a driver’s

4

license search with the same information as before but with

Plaintiff’s name with a dash - “Al-Hakeem Reid.” Dispatch

related that the name and date of birth did not come up.

Mulhern asked Plaintiff if he “wrote something else down” at the

DMV, and he told Plaintiff that never in his career had someone

told him their information and nothing had come back on file.

Mulhern told Plaintiff that he had “to work with” him. Mulhern

asked Plaintiff if he had anything with his name on it, and when

Plaintiff answered “no,” Mulhern stated that he could not just

let Plaintiff go. Mulhern stated if Plaintiff told him the

truth, it would be “quick and easy” and Plaintiff would be on

his way, but if not, Mulhern would have to bring Plaintiff to

the station, fingerprint him, and wait for the response, which

Mulhern stated was “ridiculous.”

Plaintiff insisted he was telling the truth, Mulhern

confirmed with Plaintiff again the information he provided, and

Mulhern asked for Plaintiff’s address, which he stated was 1121

12th Street. Mulhern asked Plaintiff if he had ever been

arrested, locked up, or issued a ticket, and Plaintiff responded

no. Mulhern stated that they were going to “figure out what was

going on” and asked Plaintiff to “shut the car off.” Until this

point, it had been about twenty minutes since Mulhern initiated

his stop of Plaintiff.

5

Mulhern, who had been leaning on the window ledge, took a

small step back. At that moment, instead of shutting off the

engine, Plaintiff put the truck into drive and sped forward.

Mulhern jumped up and appears to jump into the driver’s side

window perhaps in an attempt to control the vehicle or shut off

the ignition himself.3 He dangles from the window, holds the

window ledge for a second as Plaintiff sped across the street.

At the last second, Mulhern jumps off the vehicle just before

the truck collides violently with a car parked on the other side

of the road.

Mulhern immediately pulled out his gun and yelled at

Plaintiff multiple times, “Get the fuck out, Get the fuck down!”

Mulhern also called for back-up. Plaintiff exited the truck,

and Mulhern yelled for Plaintiff to get onto the ground and put

his hands where he could see them. Plaintiff went to the ground

and raised his hands, then kneeled with his hands up, eventually

leaning with his hands up against the bed of the truck. At this

point, Mulhern had his gun in his left hand, and Mulhern put his

right hand on Plaintiff’s shoulder in an attempt to wrestle

Plaintiff to the ground while continuously ordering Plaintiff to

get down. Plaintiff, however, spun out of Mulhern’s grip and

3 The dashcam video does not capture where Mulhern places his

hands in the truck.

6

started to run across the street toward where he had previously

stopped. Mulhern chased after Plaintiff, grabbing with his

right hand at Plaintiff’s unzipped sweatshirt from behind, his

firearm still in his left hand, and tried to stop Plaintiff, who

continued running.

The pair ran behind a passing car, which had happened upon

the unfolding scene and stopped in the road in the middle of the

melee, and toward Mulhern’s patrol car and into full view of the

dashcam. Mulhern continued his effort to corral Plaintiff, his

right hand tugging at the sweatshirt and his left arm extended

around his waist in an apparent attempt to slow Plaintiff’s

attempted escape. At this point Mulhern still held his firearm

in this left hand at approximately the center of Plaintiff’s

waistline angled down slightly and toward the stopped civilian

car. As Mulhern continues to attempt to restrain Plaintiff, the

firearm can be heard being discharged although neither Mulhern

nor Plaintiff have a discernable reaction to the fired shot.

Plaintiff soon spins face down on the lawn next to the curb,

however, and after getting on Plaintiff’s back, Mulhern

eventually restrains and cuffs him.

At this point, back-up officers arrived. When Mulhern

turned Plaintiff over into a seated position, Plaintiff stated

“my leg, you shot me.” Mulhern stated, “Are you shot?” and

7

questioned whether Plaintiff was actually shot and where he was

shot. Plaintiff related that he heard Mulhern’s gun go off

during their struggle.4 The officers put on gloves, located the

bullet wound, and called for an ambulance. Plaintiff was

transported to Cooper Hospital, where he was treated for an

entry and exit wound to his upper thigh.

Based on the foregoing incident, Plaintiff claims that

Mulhern violated his rights under the Fourth Amendment and the

New Jersey Civil Rights Act by using excessive force. Plaintiff

also claims that Haddon Township violated his constitutional and

NJCRA rights for its inadequate training and supervision of

Mulhern. Plaintiff claims that Mulhern, Haddon Township, and

Police Chief Mark Cavallo also committed the state law torts of

assault and battery, negligence, and gross negligence.

Defendants have moved for summary judgment on all of

Plaintiff’s claims. Mulhern argues that his actions do not

constitute excessive force, and he is entitled to qualified

immunity. Haddon Township and Police Chief Mark Cavallo reject

Plaintiff’s municipal liability claims. Defendants further

argue that Plaintiff’s state law claims fail on the same bases

as Plaintiff’s constitutional claims, and because Plaintiff’s

4 As discussed below, Mulhern later testified that Plaintiff had

attempted to grab Mulhern’s gun.

8

injuries do not meet the proper tort threshold. Plaintiff has

opposed Defendants’ motion in all respects.

DISCUSSION

A. Subject Matter Jurisdiction

Plaintiff has brought his claims pursuant to 42 U.S.C. §

1983 and New Jersey state law. This Court has jurisdiction over

Plaintiff’s federal claims under 28 U.S.C. § 1331, and

supplemental jurisdiction of Plaintiff’s state law claims under

28 U.S.C. § 1367.

B. Summary Judgment Standard

Summary judgment is appropriate where the Court is satisfied

that the materials in the record, including depositions,

documents, electronically stored information, affidavits or

declarations, stipulations, admissions, or interrogatory answers,

demonstrate that there is no genuine issue as to any material fact

and that the moving party is entitled to a judgment as a matter of

law. Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986); Fed. R.

Civ. P. 56(a).

An issue is “genuine” if it is 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

9

substantive law, a dispute about the fact might affect the

outcome of the suit. Id. 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. Industrial Crating Co., 358 F.3d 241, 247 (3d Cir.

2004)(quoting Anderson, 477 U.S. at 255).

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. 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. Anderson, 477 U.S. at 256-

57. A party opposing summary judgment must do more than just

rest upon mere allegations, general denials, or vague

statements. Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir.

2001).

10

C. Analysis

1. Plaintiff’s § 1983 & NJCRA claims5

Section 1983 is not a source of substantive rights, but

provides a vehicle for vindicating the violation of other

federal rights. Graham v. Connor, 490 U.S. 386, 393-94 (1989).

Section 1983 provides in relevant part:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any State

or Territory . . . 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 . . . .

42 U.S.C. § 1983. To state a claim for relief under § 1983, a

plaintiff must allege the violation of a right secured by the

Constitution or laws of the United States, and that the alleged

deprivation was committed or caused by a person acting under

5 Like § 1983, the New Jersey Civil Rights Act, N.J.S.A. 10:6-2,

et seq. (NJCRA), is a means of vindicating substantive rights

and is not a source of rights itself. Gormley v. Wood–El, 93

A.3d 344, 358 (N.J. 2014). Because the NJCRA was modeled after

§ 1983, and creates a private cause of action for violations of

civil rights secured under either the United States or New

Jersey Constitutions, the NJCRA is interpreted analogously to §

1983. See Norman v. Haddon Township, 2017 WL 2812876, at *4

(D.N.J. 2017). Thus, Plaintiff’s NJCRA violation claims will

proceed or fail for the same reasons as Plaintiff’s § 1983

claims.

11

color of state law. West v. Atkins, 487 U.S. 42, 48 (1988);

Piecknick v. Pennsylvania, 36 F.3d 1250, 1255-56 (3d Cir. 1994).

For Plaintiff’s claims against Mulhern in his personal

capacity, the qualified immunity doctrine governs the analysis.

“Qualified immunity shields government officials from civil

damages liability unless the official violated a statutory or

constitutional right that was clearly established at the time of

the challenged conduct.” Reichle v. Howards, 566 U.S. 658, 132

S. Ct. 2088, 2093 (2012). In order to determine whether a

government official is entitled to qualified immunity, two

questions are to be asked: (1) has the plaintiff alleged or

shown a violation of a constitutional right, and (2) is the

right at issue “clearly established” at the time of the

defendant's alleged misconduct? Pearson v. Callahan, 555 U.S.

223, 236 (2009). Courts are “permitted to exercise their sound

discretion in deciding which of the two prongs of the qualified

immunity analysis should be addressed first.” Id. It is the

defendant's burden to establish entitlement to qualified

immunity. Kopec v. Tate, 361 F.3d 772 (3d Cir. 2004).

a. Plaintiff’s excessive force claims against

Mulhern

In determining whether excessive force was used in

effecting an arrest, the Fourth Amendment’s “objective

12

reasonableness” test is applied. Sharrar v. Felsing, 128 F.3d

810, 820–21 (3d Cir. 1997) (citing Graham v. Connor, 490 U.S.

386, 396 (1989)). The objective reasonableness test “requires

careful attention to the facts and circumstances of each

particular case, including the severity of the crime at issue,

whether the suspect poses an immediate threat to the safety of

the officers or others, and whether he is actively resisting

arrest or attempting to evade arrest by flight.” Id. (relying

on Graham, 490 U.S. at 396; Groman v. Township of Manalapan, 47

F.3d 628, 634 (3d Cir. 1995)). “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.” Id.

Even though the determination of whether an officer acted

in an objectively reasonable manner or made a reasonable mistake

of law, and is thus entitled to qualified immunity, is a

question of law that is properly answered by the court, not a

jury, the Third Circuit has recognized that a judge should not

decide the objective reasonableness issue until all the material

historical facts are no longer in dispute. Curley v. Klem, 499

13

F.3d 199, 211, 211 n.12 (3d Cir. 2007). To do this, “[a] judge

may use special jury interrogatories, for instance, to permit

the jury to resolve the disputed facts upon which the court can

then determine, as a matter of law, the ultimate question of

qualified immunity.” Id. In other words, “[w]hen the ultimate

question of the objective reasonableness of an officer's

behavior involves tightly intertwined issues of fact and law, it

may be permissible to utilize a jury in an advisory capacity, .

. . but responsibility for answering that ultimate question

remains with the court.” Id.

In this case, the Court must deny summary judgment and

employ the special interrogatory procedure for the jury to

resolve the disputed facts regarding Plaintiff’s excessive force

claim against Mulhern. Plaintiff contends that Mulhern acted

unreasonably because Mulhern improperly escalated a routine

traffic stop into a violent shooting. Mulhern contends that it

was Plaintiff’s actions that escalated a routine traffic stop

and Mulhern’s subsequent use of force was necessary and

reasonable under the circumstances. While the dashcam video

captured almost every moment of the incident at issue, Plaintiff

and Mulhern have each presented their recitation of what

occurred, which views differ from each other, and may differ

from or add additional details to what is depicted in the video.

14

As a result, a jury must consider all of the evidence to flesh

out the facts of what actually occurred before the Court may

make a determination as to the reasonableness of Mulhern’s

actions, and as to the “clearly established” prong of the

qualified immunity analysis.

The following are several examples of disputed facts that

require a jury’s resolution, although there may be many other

facts requiring a jury’s consideration:6

1. When Plaintiff suddenly accelerated instead of turning off

the engine as Mulhern requested, a jury must determine

whether, when Mulhern jumped onto the truck’s open window,

he (a) did so for his own safety, (b) tried to grab the

steering wheel and gear shift, (c) steered the truck into a

parked car, or (d) did all or some of these actions.

2. After the crash, when Mulhern pointed his gun at Plaintiff

and ordered Plaintiff to put his hands where Mulhern could

see them and get on the ground, a jury must determine

6 The Court provides these examples of jury interrogatories only

to show that disputed facts need to be resolved before the Court

can undertake the qualified immunity analysis. At trial, the

actual special interrogatories submitted to the jury will be

posed by the parties and approved by the Court, and they will

not necessarily be framed as presented here.

15

whether Plaintiff was resisting Mulhern’s commands or was

confused by Mulhern’s commands.

3. When Plaintiff attempted to evade being apprehended by

Mulhern at the truck by running away, and then during the

ensuing struggle, a jury must determine (a) whether Mulhern

shot Plaintiff accidently, which is supported by his

statement that the gun “kinda went of[f],” which Mulhern

stated at the time of the shooting, and his apparent

surprise, whether feigned or not, that Plaintiff had been

shot (Docket No. 40-2 at 12), or (b) whether the shooting

occurred intentionally as Mulhern stated in his deposition

and soon after the incident: “Officer Mulhern pursued the

driver and caught him a short distance away, with his gun

still drawn. The driver began to fight him again and

turned towards him, causing Officer Mulhern to believe the

driver was trying to take his gun. Officer Mulhern fired

one (1) round to stop the attack. After the round was

fired, Officer Mulhern holstered his weapon and continued

fighting the driver.” (Docket No. 40-13 at 5.)

4. A jury must determine whether Mulhern’s view of the

“totality of the situation” is credible, as he stated

during the investigation, “Officer Mulhern said he did not

know if the driver had a weapon, but knew he did not want

16

to be caught. He said he was in fear that the driver was

going to disarm him and do whatever it took get away when

he fired his weapon.” (Docket No. 40-13 at 6.)

5. A jury must assess the credibility of Plaintiff’s statement

that he has no memory of what occurred between the time he

started to run after the crash and when he was on the

ground saying he had been shot (Docket No. 36-3 at 32), but

that he posed no immediate threat to the public7 or Mulhern,

his “actions were passive and nonviolent,” and “at no point

did he ever touch Mulhern.”8

7 Plaintiff testified that he panicked and did not initially pull

over because he had an unregistered firearm in the truck.

Plaintiff further testified that although he told Mulhern he did

not have his driver’s license on him, he actually did, but it

was in the bag containing the firearm. Plaintiff testified that

he provided Mulhern with his brother’s name and he did not

provide his real social security number or birth date. (Docket

No. 36-3 at 29.) Plaintiff further testified that he had been

incarcerated several times in various state and county prisons

for robbery and other charges, despite telling Mulhern that he

had never been arrested or been in jail. (Docket No. 36-3 at

25-27.)

8 Plaintiff’s brief states, “Plaintiff testified that at no point

did he ever touch Officer Mulhern.” (Docket No. 40 at 15.)

Plaintiff’s deposition testimony provides:

Q. And you're saying that prior to running, you don't

recall any physical altercation between you and the

officer?

A. Never touched.

Q. He never touched you, you never touched him?

A. No.

17

The resolution of these issues, and perhaps others, will

permit this Court to determine: whether the severity of the

crime at issue was increased by Plaintiff’s actions of lying

about his identity and then attempting to flee, or by Mulhern’s

jumping onto the truck door and the effect, if any, that had on

the crash into the parked car;9 whether Plaintiff’s actions posed

an immediate threat to the safety of Mulhern and others, or

whether Mulhern’s actions placed Plaintiff and others in

danger;10 whether it was objectively reasonable for Mulhern to

(Docket No. 36-3 at 31, Page 41, Lines 14-20.) The video shows

that prior to Plaintiff refusing to get on the ground after the

crash, Plaintiff and Mulhern never touched. The video also

shows, however, that once Plaintiff refused to get on the

ground, Plaintiff and Mulhern did indeed “touch.”

9 See Lamont v. New Jersey, 637 F.3d 177, 184 (3d Cir. 2011)

(“Even where an officer is initially justified in using force,

he may not continue to use such force after it has become

evident that the threat justifying the force has vanished.”);

id. at 185 (“It has long been the law that an officer may not

use deadly force against a suspect unless the officer reasonably

believes that the suspect poses a threat of serious bodily

injury to the officer or others. In short, the dispute in this

case is about the facts, not the law. The doctrine of qualified

immunity is therefore inapposite.”).

10 It was unknown at the time whether anyone was in the parked

vehicle the truck rammed when Plaintiff first sought to flee,

and it is unclear whether there were any pedestrians in the

area. During the entire encounter, cars in the ordinary course

of traffic regularly drove down Alabama Road, which is a rather

narrow street, and passed closely by Mulhern and Plaintiff’s

truck. One red vehicle passed by after Plaintiff crashed the

truck but before he ran, and it stopped a few short feet away.

Its presence appears to have hindered Plaintiff’s escape and

18

draw his weapon in an attempt to apprehend Plaintiff; whether it

was possible that Plaintiff was armed; whether it was

objectively reasonable for Mulhern to keep the gun unholstered

as the foot chase unfolded; and whether it was a proper “split-

second judgment” as to the use of force “in circumstances that

are tense, uncertain, and rapidly evolving.” See Graham, 490

U.S. at 396-97.

Only after this “highly individualized and fact specific”

inquiry into the totality of the circumstances confronting

Mulhern, Santini v. Fuentes, 795 F.3d 410, 417 (3d Cir. 2015),

may the Court determine as a matter of law whether Mulhern’s

actions were objectively reasonable, and whether the

circumstances presented a “clearly established” constitutional

right which was violated, so that Mulhern should or should not

be afforded the protections of qualified immunity.11 See James

v. New Jersey State Police, 957 F.3d 165, 171–74 (3d Cir. 2020)

allow Mulhern to ultimately apprehend Plaintiff. The firing of

Mulhern’s weapon in close proximity to and even aimed at the

innocent occupant or occupants of the stopped car appears to

violate the Defendant municipality’s deadly force policy as the

bullet could have easily struck an innocent third party.

11 The Court recognizes that it is permitted to exercise

discretion in deciding which of the two prongs of the qualified

immunity analysis to address first. Pearson v. Callahan, 555

U.S. 223, 236 (2009). In a case involving an allegation of

unreasonable use of deadly force, reason dictates first

resolving all the relevant historical facts.

19

(quoting Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011)) (“When

properly applied, [qualified immunity] protects ‘all but the

plainly incompetent or those who knowingly violate the law.’”).

Consequently, Mulhern’s motion for summary judgment must be

denied at this time.

b. Plaintiff’s Monell claims

Municipalities and other local government units are among

those “persons” to which § 1983 liability applies. Monell v.

New York City Dep’t of Social Services, 436 U.S. 658, 690

(1978). Local governments, however, cannot be held liable for

the actions of their employees solely based on the doctrine of

respondeat superior. Id. at 691-95; Bielevicz v. Dubinon, 915

F. 2d 845, 849-50 (3d Cir. 1990). In order to successfully

state a claim for municipal liability, a plaintiff must allege

that the employees’ actions were pursuant to a policy or custom

of the municipality itself. Monell, 436 U.S. at 694; Watson v.

Abington, 478 F.3d 144, 155 (3d Cir. 2007).

To show the existence of a policy or custom under Monell, a

plaintiff must allege that the municipality acted or failed to

act in any one of three ways. First, the municipality adopted

an official policy that deprives citizens of their

constitutional rights. Monell, 436 U.S. at 694. Second, it

tolerated or adopted an unofficial custom that results in the

20

unlawful stripping of constitutional rights. Natale v. Camden

County Correctional Facility, 318 F.3d 575 (3d Cir. 2003).

Third, it failed to “train, supervise, or discipline” its

employees so as to prevent them from unlawfully depriving

citizens of their constitutional rights. City of Oklahoma v.

Tuttle, 471 U.S. 808 (1985). “A municipality’s failure to train

its employees in a relevant respect must amount to ‘deliberate

indifference to the rights of persons with whom the [untrained

employees] come into contact.’” Connick v. Thompson, 131 S. Ct.

1350, 1359 (2011) (citation omitted).

Municipal liability under § 1983 must be based on the

“execution of a government's policy or custom” that actually

results in a constitutional violation. Smith v. Gransden, 553

F. App’x 173, 178 (3d Cir. 2014) (quoting Monell, 436 U.S. at

694–95). If no officer committed a “violation in the first

place, there can be no derivative municipal claim.” Id.

(quoting Mulholland v. Gov't Cnty. of Berks, Pa., 706 F.3d 227,

238 n.15 (3d Cir. 2013); City of L.A. v. Heller, 475 U.S. 796,

799 (1986) (“[I]f the [officer] inflicted no constitutional

injury . . ., it is inconceivable that [the city] could be

liable . . . .”).

Here, because the Court cannot yet determine whether

Mulhern violated Plaintiff’s constitutional rights, the

21

assessment of Plaintiff’s municipal liability claims against

Haddon Township and its police chief may await the outcome of

Plaintiff’s claims against Mulhern. These defendants’ motion

for summary judgment must be denied at this time.12

2. Plaintiff’s Tort Claims

Plaintiff has asserted several claims against all

defendants under New Jersey state law: assault and battery,

negligence, and gross negligence. New Jersey’s Tort Claims Act

(NJTCA) governs tort claims against public employees. Under the

NJTCA, “A public employee is not liable if he acts in good faith

in the execution or enforcement of any law. Nothing in this

section exonerates a public employee from liability for false

12 The Court anticipates a two-phase trial. In the first phase,

a jury will resolve the historical facts by answering special

interrogatories so that the Court can determine whether Mulhern

is entitled to qualified immunity. Depending on the outcome of

phase one, the Court will then continue to phase two with the

same jury to consider Haddon Township’s liability, if necessary.

The Court has found that bifurcation of the two claims is the

proper course because it will ultimately conserve judicial

resources and allow the Court a fuller and clearer assessment of

the plaintiff’s Monell claims after the jury has resolved

outstanding factual disputes involving the individual defendant

officer’s alleged wrongdoing. See Zampetis v. City of Atlantic

City, 1:15-cv-01231-NLH-AMD, 2018 WL 5729905, at *2 (D.N.J.

2018) (discussing Alvarez v. City of Atlantic City, et al.,

1:15-cv-02061-NLH-JS, Docket No. 79 (discussing Harrison v. City

of Atlantic City, et al., 1:14-cv-06292-NLH-AMD; Norman v.

Haddon Township, et al., 1:14-cv-06034-NLH-JS); Taylor v.

Ambrifi, et al., 1:15-cv-3280-NLH-KMW, Docket No. 269).

22

arrest or false imprisonment.” N.J.S.A. 59:3-3. The NJTCA

strips a public employee of any immunity, however, if that

employee is found to have engaged in “willful misconduct.”

N.J.S.A. 59:3-14(a).

The same “objective reasonableness” standard that is used

to determine whether a defendant enjoys qualified immunity from

actions brought pursuant to 42 U.S.C. § 1983 is used to

determine questions of good faith arising under N.J.S.A. 59:3-3.

See Mantz v. Chain, 239 F. Supp. 2d 486, 507-08 (D.N.J. 2002)

(citing Lear v. Township of Piscataway, 566 A.2d 557 (N.J.

Super. Ct. App. Div. 1989)). Furthermore, willful misconduct is

“the commission of a forbidden act with actual (not imputed)

knowledge that the act is forbidden . . . . [I]t requires much

more than an absence of good faith and much more than

negligence.” PBA Local No. 38 v. Woodbridge Police Dep't, 832

F. Supp. 808, 830 (D.N.J. 1993) (internal quotations omitted)).

Because the determination of whether Mulhern’s actions were

objectively reasonable must await a jury’s resolution of

disputed historical facts, the Court cannot determine whether

Mulhern is entitled to “good faith immunity” for Plaintiff’s

tort claims. This is also true for Plaintiff’s tort claims

23

against Haddon Township. 13 See N.J.S.A. 59:2-2 (“A public

entity is not liable for an injury resulting from an act or

omission of a public employee where the public employee is not

liable.”). Defendants’ motion for summary judgment on

Plaintiff’s state law tort claims must be denied at this time.14

CONCLUSION

For the reasons expressed above, Defendants’ motion for

summary judgment on all of Plaintiff’s claims must be denied.

An appropriate Order will be entered.

Date: July 7, 2021 s/ Noel L. Hillman

At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.

13 Police Chief Cavallo was sued in his official capacity.

Plaintiff’s claims against Cavallo are thus one-and-the-same as

his claims against Haddon Township. Monell, 436 U.S. at 690

n.55 (official capacity suits “generally represent only another

way of pleading an action against an entity of which an officer

is an agent”).

14 Defendants also argue that Plaintiff’s state law claims fail

because his injuries do not meet the tort threshold under the

NJTCA, N.J.S.A. 59:9-2(d), which provides: “No damages shall be

awarded against the public entity or public employee for pain

and suffering resulting from any injury; provided, however, that

this limitation on recovery of damages for pain and suffering

should not apply in cases of permanent loss of bodily function,

permanent disfigurement or dismemberment where the medical

treatment expenses are in excess of $3,600.00.” The Court will

consider this argument, if necessary, following the resolution

of whether Mulhern is entitled to good faith immunity.

24