THE ESTATE OF RICHARD BARD v. THE CITY OF VINELAND

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

THE ESTATE OF RICHARD BARD

and DANA GERMAN-BUNTON, as 1:17-cv-01452-NLH-AMD

administrator ad-prosequendum

of THE ESTATE OF RICHARD OPINION

BARD,

Plaintiffs,

v.

CHRISTOPHER PUGLISI,

Defendant.

APPEARANCES:

SOLOMON MORDECHAI RADNER

JOHNSON LAW, PLC

EXCOLO LAW PLLC

535 GRISWOLD ST.

SUITE 2632

DETROIT, MI 48226

CONRAD J. BENEDETTO

LAW OFFICES OF CONRAD J. BENEDETTO

1233 HADDONFIELD-BERLIN ROAD

SUITE 1

VOORHEES, NJ 08043

On behalf of Plaintiffs

A. MICHAEL BARKER

TODD J. GELFAND

BARKER, GELFAND & JAMES

LINWOOD GREENE

210 NEW ROAD

SUITE 12

LINWOOD, NJ 08221

On behalf of Defendants

HILLMAN, District Judge

This matter concerns claims by Plaintiff, Dana German-

Bunton, the mother of Richard Bard, the decedent, arising out of

the shooting death of Bard by Defendant City of Vineland Police

Officer Christopher Puglisi. Plaintiff claims that Defendant

violated Bard’s right to be free from the use of excessive force

in violation of the Fourth Amendment of the U.S. Constitution.

Presently before the Court is Defendant’s motion for summary

judgment. For the reasons expressed below, Defendant’s motion

will be granted.

BACKGROUND

Plaintiff’s Third Amended Complaint alleges the following:1

13. At the time of his death on April 17, 2016, Richard

Bard was thirty-one (31) years old.

14. Richard Bard had been involved in a motor vehicle

accident on January 13, 2013, wherein he sustained serious

injuries to his legs. Bard’s injuries included an open fracture

to his femur, a closed fracture to his femur, rib contusions, a

pulmonary contusion and pneumothorax; for which the decedent had

1 Since this action was filed, the Court has issued four opinions

which dismissed numerous claims and defendants. The operative

pleading is Plaintiffs’ Third Amended Complaint (Docket No. 51),

which contains one count against Defendant City of Vineland

Police Officer Christopher Puglisi brought pursuant to 42 U.S.C.

§ 1983.

pending surgeries.

15. Based on his existing injuries, it was not possible for

Richard Bard to walk briskly, much less run, from the Defendant

Officers.

16. On April 16, 2016, decedent, Richard Bard, and his

girlfriend, Ebony Bonner, attended a birthday party at a

friend’s home located at the Walnut Villa Complex on Florence

Avenue in Vineland, New Jersey.

17. At around 11:30 p.m., Richard Bard and an individual

named Jonathan Bain agreed to leave the party and walk together

to get cigarettes from another resident at the Walnut Villa

Complex.

18. It is alleged by the Vineland police that around 1:00

a.m. on April 17, 2016, Richard Bard and Jonathon Bain were

involved in a robbery of an individual near Seventh and Cherry

Streets in Vineland.

19. It is further alleged that Richard Bard and Jonathon

Bain fled on foot and were chased by the police.

20. A responding officer, Christopher Puglisi, shot at

Richard Bard four times before Bard fell to the ground near East

Avenue and Almond Street in Vineland.

21. Defendant did not provide adequate medical attention or

first aid after he shot Mr. Bard even though he was on the scene

and saw Mr. Bard lying in a pool of his own blood.

22. After the shooting, EMS was called. When EMS arrived,

Richard Bard was found unconscious lying on the side of road in

a pool of blood. He had sustained two gunshot wounds, including

one gunshot wound to his groin and one gunshot wound to his hip.

He suffered substantial blood loss at the scene.

23. Richard Bard was pronounced dead at Inspira Hospital by

Dr. William Martin at 2:05 a.m., on April 17, 2016.

24. After the shooting, family members of Richard Bard were

advised that he sustained two broken wrists. No explanation was

provided for how his wrists had been broken.

(Docket No. 51 at 2-3.)

Defendant’s motion for summary judgment provides more

details. According to Defendant’s statement of undisputed

material facts (Docket No. 77-2), which the Court will deem

undisputed:2

2 Although Plaintiffs filed a belated opposition to Defendant’s

motion for summary judgment, it consists of one argument based

on German-Bunton’s deposition testimony. (Docket No. 78.) The

opposition fails to comply with L. Civ. R. 56.1(a), which

requires that an opponent to a summary judgment motion file “a

responsive statement of material facts, addressing each

paragraph of the movant’s statement, indicating agreement or

disagreement and, if not agreed, stating each material fact in

dispute and citing to the affidavits and other documents

submitted in connection with the motion.” According to L. Civ.

R. 56.1(a), “any material fact not disputed shall be deemed

undisputed for purposes of the summary judgment motion.”

Similarly, Fed. R. Civ. P. 56(e) provides that “[i]f a party

fails to properly support an assertion of fact or fails to

properly address another party’s assertion of fact as required

by Rule 56(c), the court may: (1) give an opportunity to

1. Decedent Richard Bard was a “top leader” or “high

ranking” gang member in the street gang known as the Bloods.

(Exhibit 2, deposition of Plaintiff Dana German Bunton, page

54).

2. On April 16, 2016, decedent Richard Bard attended an

properly support or address the fact; (2) consider the fact

undisputed for purposes of the motion; (3) grant summary

judgment if the motion and supporting materials — including the

facts considered undisputed — show that the movant is entitled

to it; or (4) issue any other appropriate order.”

The Court finds it would be futile to provide Plaintiffs with

additional time to properly oppose Defendant’s motion because:

(1) Throughout this case, Plaintiffs have delayed the

proceedings and have failed to comply with this Court’s orders

(see, e.g., Docket No. 44, in resolving Defendant’s opposition

to Plaintiffs’ proposed third amended complaint because it

contained claims the Court had previously dismissed, the Court

stating, “Regurgitated claims that have already been dismissed

twice and have no new basis for assertion cannot proceed, for

all the same reasons the Court expressed in the prior two

opinions,” and further noting, “In light of past failures,

Plaintiff is reminded that if the third amended complaint is not

consistent with the law of the case as set forth in this and

prior opinions the Court will consider appropriate sanctions.”);

and

(2) Defendant filed his motion on February 20, 2020 (Docket

No. 77), but Plaintiffs failed to respond until this Court

reached out to counsel in August 2020 to inquire as to whether

they intended to file an opposition, at which time counsel filed

the aforementioned incomplete opposition (Docket No. 78) and a

motion to withdrawal as counsel (Docket No. 79). This Court

administratively terminated Defendant’s motion pending the

resolution of Plaintiffs’ counsel’s motion to withdraw. The

magistrate judge denied without prejudice counsel’s motion

(Docket No. 90), and Defendant’s motion was reactivated.

Overall, Plaintiffs have had a year and a half to submit an

opposition to Defendant’s motion in compliance with the Federal

and Local Rules of Procedure, and Plaintiffs have failed to do

so. Consequently, other than with regard to the testimony of

German-Bunton cited in Plaintiffs’ brief, the Court will deem

the facts presented in Defendant’s L. Civ. R. 56.1(a) statement

of undisputed material facts as undisputed.

alleged birthday party at a friend’s home located at the

Walnut Villa Complex on Florence Avenue in Vineland, NJ. (DI

51, Third Amended Complaint, page 2 paragraph 16; Exhibit 11

pages 9-10; Exhibit 12, page 3; Exhibit 13 page 7).

3. Plaintiff alleges that at or around 11:30pm, Bard and

another individual named Jonathan Bain agreed to leave the

party and walk together to get cigarettes. (DI 51, Third

Amended Complaint, page 2 paragraph 17; Exhibit 12 page 3;

Exhibit 12 page 5).

4. Bain was a Blood Gang member from New York. (Exhibit 4,

page 15).

5. The Vineland Police Department had information from a

confidential source prior that Bard and Bain had been

involved in selling drugs in the area and were robbing

subjects in the area and known to be together. (Exhibit 11,

page 7).

6. Richard Bard Sr., father of the deceased, reported to

the CCPO during the subsequent investigation that Ebony

Bonner, the mother of the deceased Bard’s children, told him

that she was with the deceased Bard and John Bain at an

apartment in Vineland when they left with guns, Bain having

said “someone is going to die tonight” before leaving.

(Exhibit 4, page 6; Exhibit 11 page 12; Exhibit 12 page 3;

exhibit 13, page 7).

7. Richard Bard, Sr., told the CCPO Investigator Ron Cuff

that “his son was not a good person and if he shot at the

cops, he was trying to kill them, so he understands why the

officers shot back.” (Exhibit 4, page 6).

8. At or around 12:58 a.m. on April 17, 2016, four separate

calls came to the Cumberland County Communications Center

reporting shots fired and someone hit in the head in the

area of 7th and Cherry Streets, though it was later

determined that the crime victim, Alejandro R. Abreu-Abreu

had not been shot in the head. (Exhibit 3, page 9; Exhibit

12 page 2-3).

9. Decedent Richard Bard and John Bain robbed Alejandro

Abreu-Abreu in the area of 7th and Cherry Streets in

Vineland. (Exhibit 3, p.3).

10. Prior to the robbery, Alejandro Abreu-Abreu was at El

Coqui Restaurant helping the owner, Tony Marty, with the

business cleanup after which the two (Marty and Abreu-Abreu)

and another male named Secundino “Tony” Pena left around 1:00

a.m. Abreu left on his bicycle while Marty and Pena warmed

up Marty’s pickup truck. (Exhibit 5, page 2; Exhibit 10, page

2; Exhibit 11 page 4; Exhibit 13 pages 8-9).

11. In front of 7th Street, Abreu was attacked by two males

dressed in all black, pushed off his bicycle and struck 4-5

times in the head with a gun or guns. As he yelled for

assistance, he was hit harder. The attackers searched his

pockets, while shouting racial slurs, and took his cell phone

and possibly a $115 money order. (Exhibit 5, page 2; Exhibit

3, pages 1-2; Exhibit 10 pages 1-2, page 4-6; Exhibit 13

pages 8-9).

12. Marty and Pena approached in Marty’s vehicle during the

attack, when the suspects shot at least three rounds at

Marty’s vehicle then fled. (Exhibit 5, page 2; Exhibit 11

page 4, 6).

13. Secundino “Tony” Pena and Enemencio Gomez-Pena reported

that as they drove up in the pickup truck, the two black

males, later identified as Bard and Bain, shot at them, then

ran. (Exhibit 3, Cumberland County Prosecutor’s Office

Internal Affairs Investigation Report of Detective Scott

Csaszar, p.1).

14. Information was dispatched to the Vineland police,

after which Vineland Officer Maslanich located two suspects

matching the description. (Exhibit 3 at p. 2).

15. Defendant Officer Puglisi was with Vineland Sgt. Scarpa

starting a meal break when they heard a dispatch of “shots

fired,” so the two headed in the direction of where the

shots were reported. (Exhibit 1, page 16-17).

16. Two additional radio transmissions which Defendant

Officer Puglisi heard on his way confirmed that shots had

apparently been fired and one suggested that there was a

possible victim with a gunshot to the head. (Exhibit 1, page

18).

17. Detective Ryan Breslin of the CCPO later learned that

Abreu-Abreu had sustained an injury to the head but that it

was not a gunshot, and not life threatening, speaking to the

staff at AtlantiCare Regional Medical Center (Exhibit 3,

page 4).

18. Defendant Officer Puglisi arrived at the scene of the

Abreu robbery when other officers were already at that

location. (Exhibit 1 page 18).

19. At the Abreu robbery scene, Defendant Officer Puglisi

left, after Officer Maslanich, and went with Maslanish to

look for the suspects. (Exhibit 1, page 18)

20. Officer Maslanich first spotted two males fitting the

“dark clothing” description in the area of Quince and East.

(Exhibit 1, page 18).

21. Defendant Officer Puglisi arrived in a separate police

vehicle as Maslanich was exiting his vehicle. (Exhibit 3 at

p.2; Exhibit 4 page 27).

22. Defendant Officer Puglisi sensed one of the suspects was

going to run so he tried to pull his police vehicle in front

of the suspect to block him, but the suspect fled. (Exhibit

1, page 19).

23. The two subjects, later identified as Bard and Bain,

fled in two different directions. (Exhibit 3 at page 2;

Exhibit 4 page 27).

24. Officer Maslanich chased the suspect later identified

as Bain. (Exhibit 3, page 2; Exhibit 4 page 27).

25. Defendant Officer Puglisi pursued Bard on foot.

(Exhibit 3, page 2; Exhibit 4, page 29; Exhibit 1, page 19).

26. Officer Puglisi’s MVR video captured Bard running

around his police vehicle. (Exhibit 1, page 22; Exhibit 13

page 4).

27. Surveillance video captured that Puglisi pursued Bard

northbound on South East Avenue in the area between the west

curb line and the residences on the west side of South East

Avenue. (Exhibit 3, page 4).

28. Defendant Officer Puglisi shouted repeatedly at Bard to

stop and show his hands while chasing Bard and with the

aid of a flashlight on his weapon, observed Bard reach into

his waistband, then observed something silver in Bard’s hand.

(Exhibit 4, page 30; Exhibit 1 page 14; 19, 26; Exhibit 13

page 4).

29. Defendant Puglisi was shot at, at least two times, during

the foot pursuit. Puglisi was shot at from the direction of

Bard. (Exhibit 3, page 2; Exhibit 4, page 30 Exhibit 1,

pages 23-24). Puglisi is certain that Bard was firing at him

while Bard was still running from him. (Exhibit 1, pages 36-

37; Exhibit 13 pages 11- 13).

30. Defendant Officer Puglisi immediately made an evasive

move when he saw the silver object in Bard’s hand and heard

the first shot pass by his head; Puglisi described hearing a

big explosion and his ear popped as something went by,

Puglisi estimates two inches from his ear. (Exhibit 4 page

4; 8; 11-12; Exhibit 1, page 19, 23, 27; Exhibit 13 pages 12-

13).

31. Defendant Officer Puglisi returned fire, striking Bard,

with Bard getting off at least one more shot while Puglisi

returned fire. (Exhibit 3, page 2; exhibit 4 page 22, 30;

exhibit 1, page 20, 27; Exhibit 13 page 11-13).

32. After firing a first set of shots, Defendant Officer

Puglisi’s gun jammed, so he replaced the magazine with a

spare, when he observed Bard appearing to be falling to the

ground. (Exhibit 1, page 20, 27; Exhibit 13, pages 11-13).

33. Vineland Police Officer Moughan saw Officer Puglisi

chasing someone before seeing Puglisi dodge left and come

back up with his weapon drawn and then saw and heard Puglisi

fire his weapon, but he could not see what or who Puglisi

fired at. (Exhibit 4, page 22; Exhibit 13 page 6).

34. Puglisi saw that Bard began falling and believed Bard

might have been shot, so he approached and radioed that

shots had been fired. (Exhibit 1, page 20).

35. Defendant Officer Puglisi repeatedly commanded Bard to

put his hands behind his back, thinking Bard might still

have the weapon which he had fired at Puglisi, under his

body, until Bard finally put his hands behind his back.

(Exhibit 1, page 20).

36. Defendant Officer Puglisi tried to re-holster his

weapon but was unable due to adrenaline, so he placed his

weapon on the ground next to him and Officer Moughan, who was

covering Defendant Officer Puglisi, covered as Puglisi

approached Bard to handcuff him. (Exhibit 1 page 20).

37. Officer Puglisi’s handcuffs were stuck and as Puglisi

tried to free his handcuffs, Officer Maslanich ran by yelling

“cuff him.” (Exhibit 1 page 20).

38. Vineland Police Officer Joshua Shepperd arrived at the

location of the Bard shooting as Officer Puglisi was

handcuffing Bard and heard Puglisi ask Bard why Bard had

shot at him/Puglisi. (Exhibit 4 page 3; Exhibit 1 page 21).

39. Bard looked at Puglisi as if to answer “I don’t know”

and told the officers he was bleeding a lot. (Exhibit 1,

page 21, 27).

40. Bard was taken to Inspira Medical Center (Vineland)

where he was pronounced dead. (Exhibit 3, page 2).

41. The cause of death was determined to be a gunshot wound

to the thigh. The toxicology report was positive for alcohol

and marijuana. (Exhibit 3, page 20).

42. A black automatic handgun with no magazine was found on

the south east corner of the former Cumberland Cleaners

property. (Exhibit 3 at page 5; Exhibit 4 page 13).

43. On South East Avenue, a shell casing was found in the

roadway near the curb line and a black handgun magazine was

found on the sidewalk. (Exhibit 3, page 5).

44. During processing of the scene of the Bard shooting,

the New Jersey State Police located a silver-colored revolver

on the north side of 300 South East Avenue, in the vicinity

where Bard was secured, behind a large bush, later

identified as a Smith and Wesson model .357 Magnum Revolver.

(Exhibit 3, page 7; Exhibit 6, page 2; Exhibit 8, page 2).

45. Inspection of the revolver at the scene revealed it had

six (6) expended cartridge casings in its revolving cylinder.

(Exhibit 8, page 2).

46. The Smith and Wesson .357 Magnum revolver had DNA from

two contributors, one of which was matched to Alejandro

Abreu-Abreu. (Exhibit 7, page 4).

47. Video surveillance was recovered from 306 East Avenue

which showed Officer Puglisi chasing Bard northbound on South

East Avenue between the west curb line and residences on the

west side of South East Avenue. Officer Puglisi is seen

pursuing Bard initially with no flashlight and depicts

Puglisi activating the flashlight during the pursuit.

(Exhibit 3, page 4).

48. During processing of the scene CCPO investigators

located a second shell casing in the grassy area in the

vicinity of 300 South East Avenue between the sidewalk and

west curb line near where the first shell casing had been

located in the roadway. (Exhibit 3, page 8).

49. Both shell casings were determined to be from Officer

Puglisi’s duty weapon. (Exhibit 3, page 8; 18).

50. A bullet strike was located near the rear side door of

218 South East Avenue and a corresponding projectile,

determined to be from Officer Puglisi’s duty weapon, was

located in the residence on the floor. (Exhibit 3 page 8).

51. It was determined that this was the other of the two

shots fired by Officer Puglisi, with the other having struck

Bard. (Exhibit 3, page 8).

Defendant has moved for summary judgment arguing that the

undisputed material fact show that his use of force against

Bard was objectively reasonable and it did not violate Bard’s

constitutional rights. Plaintiff has opposed Defendant’s

motion on one basis: Bard’s mother testified that the

injuries Bard sustained in the January 13, 2013 motor vehicle

accident, as well as his bronchitis, rendered him incapable of

running the distance he is alleged to have run.

DISCUSSION

A. Subject Matter Jurisdiction

Plaintiffs have brought his claims pursuant to 42 U.S.C. §

1983. This Court has jurisdiction over Plaintiffs’ federal

claims under 28 U.S.C. §§ 1331, 1343 and 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

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).

As noted above, supra note 2, the Court will deem all the

statements of material fact set forth by Defendant as undisputed

for purposes of summary judgment, except with regard to Bard’s

mother’s testimony regarding her son’s inability to run. See

Fed. R. Civ. P. 56(e); L. Civ. R. 56.1(a).

C. Analysis

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

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 Defendant 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).

In determining whether excessive force was used in

effecting an arrest, the Fourth Amendment’s “objective

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

F.3d 199, 211, 211 n.12 (3d Cir. 2007).

Here, there is only one fact in dispute: Bard’s mother,

German-Bunton, testified that due to a January 13, 2013 motor

vehicle accident, which resulted in a pin in Bard’s leg, and

because of his bronchitis, Bard would not have been able to run

the requisite distance testified to by Defendant and other

witnesses. (Docket No. 78.)

Even accepting German-Bunton’s perception of her son’s

inability to run as true, the undisputed evidence from

Defendant, dash cam and surveillance video as described by

Defendant’s statement of undisputed facts, and other witnesses’

eye-witness testimony, shows that Bard did indeed run. The

undisputed evidence shows that after beating and robbing a man

who had been riding his bicycle, Bard and his accomplice shot at

least three rounds at the man’s friends who drove by in their

truck, and ran away. After police were notified of “shots

fired” and it appeared at first that the man may have been shot

in the head due to the severe head wounds, Defendant, who had

been on a meal break, arrived at the scene of the robbery. With

this information, Defendant and another officer proceeded to

look for the suspects in their separate patrol cars. They

spotted the suspects, and Defendant attempted to stop the

suspects with his patrol car, but they ran in opposite

directions. Defendant pursued one suspect, who turned out to be

Bard, on foot.

With the aid of the flashlight on his weapon, Defendant

repeatedly yelled for Bard to stop, but Bard ignored Defendant’s

commands. Defendant observed Bard reach into his waistband,

then observed something silver in Bard’s hand. At this point,

Bard shot at Defendant twice, with one bullet passing two inches

from Defendant’s ear. Defendant returned fire, striking Bard,

with Bard getting off at least one more shot while Defendant

returned fire.

Aware that Bard fell to the ground and that he might have

been shot, Defendant approached Bard and repeatedly commanded

Bard to put his hands behind his back, thinking Bard might still

have his weapon under his body, until Bard finally put his hands

behind his back. Defendant cuffed Bard, and he was transported

to the hospital, where he was pronounced dead from a gunshot

wound to the thigh. The post-incident investigation, including

ballistic and DNA analysis, as well as witness interviews and

video footage, corroborate the above events. Even when

considering Bard’s mother’s opinion as to his mobility in the

light most favorable to Plaintiff, no reasonable juror could

conclude that Bard did not flee from the robbery scene and later

the officers pursuing him when all the objective and uncontested

evidence proves conclusively that he did.

This series of uncontroverted events meets the Graham

objectively reasonable test, and presents the epitome of

Graham’s “split-second judgment” as to the use of force “in

circumstances that are tense, uncertain, and rapidly evolving.”

Salaam v. Wolfe, 806 F. App’x 90, 93 (3d Cir. 2020) (quoting

Graham, 490 U.S. at 396-97). Defendant was aware that Bard and

his accomplice had just robbed and possibly shot a bicyclist, as

well as shot three times at the bicyclist’s friends, which are

severe crimes and posed an immediate threat to the public and

the officers. Defendant encountered Bard who was actively

evading apprehension, and then Bard shot at Defendant two times,

which clearly proved that Bard was armed, in addition to

Defendant having observed Bard retrieve a silver object from his

pants. To protect himself and the safety of others it was

objectively reasonable for Defendant to shoot twice at Bard who

was actively shooting at him. Defendant ceased fire once he saw

Bard fall and immediately thereafter handcuffed Bard in case

Bard’s gun was under his body. Where, as here, an “officer has

probable cause to believe that the suspect poses a threat of

serious physical harm, either to the officer or to others, it is

not constitutionally unreasonable to prevent escape by using

deadly force.” Kisela v. Hughes, --- U.S. ---, 138 S. Ct. 1148,

1152 (U.S. 2018) (quoting Tennessee v. Garner, 471 U.S. 1

(1985)).

Thus, after a “highly individualized and fact specific”

inquiry into the totality of the circumstances confronting

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

it is evident that Defendant’s actions were objectively

reasonable. As such, as a matter of law Defendant did not

violate Bard’s constitutional rights under the Fourth Amendment.

Defendant is entitled to qualified immunity and judgment in his

favor on Plaintiffs’ claims against him. See, e.g., Salaam, 806

F. App’x at 93, 93 n.3 (3d Cir. 2020) (affirming district

court’s finding that plaintiff’s excessive force claims failed

as a matter of law, despite some disputed facts the district

court properly explained that even when viewing the facts in the

light most favorable to the plaintiff no reasonable jury could

have concluded that the use of force violated his constitutional

rights, and therefore the defendant officers were entitled to

qualified immunity) (citing Kisela, 138 S. Ct. at 1152 (noting

that “[q]ualified immunity attaches when an official's conduct

does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.”)); see

also James v. New Jersey State Police, 957 F.3d 165, 171–74 (3d

Cir. 2020) (assessing the “clearly established” prong of the

qualified immunity analysis and reversing district court’s

denial of qualified immunity to officer who shot a non-compliant

suspect in split-second encounter, 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.’” - and finding that the officer

“deserve[d] neither label”).

CONCLUSION

For the reasons expressed above, Defendant’s motion for

summary judgment in his favor on Plaintiffs’ Fourth Amendment

claim must be granted. An appropriate Order will be entered.

Date: July 22, 2021 s/ Noel L. Hillman

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