RUSSELL v. CITY OF BAYONNE

Not for Publication

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

ESTATE OF MARIANO VARGAS, et al.,

Civil Action No. 14-1048

Plaintiffs,

OPINION

v.

COUNTY OF HUDSON, et al.,

Defendants.

John Michael Vazquez, U.S.D.J.

This matter arises out of a tragic incident involving Mariano Vargas (“Mariano”) and the

Bayonne Police Department (“BPD”), when BPD Officers shot and killed Mariano while the

officers were conducting a welfare check. Presently before the Court are motions for summary

judgment filed by (1) Plaintiff and Counterclaim Defendant Linda Vargas (“Linda”), D.E. 165;

and (2) Defendants the City of Bayonne (“Bayonne”), the BPD, Police Chief Robert Kupert,

Officer David McCrae, Officer Carrey, Officer Ralph Scianni, Officer Anthony Larwa, Sergeant

Paul Jamolawicz, Officer John Arndt, Captain Drew Sisk, Police Director O’Donnell, and

Lieutenant Robert Desczynski, D.E. 166. The Court reviewed all submissions1 made in support

and opposition of the motions, and considered the motions without oral argument pursuant to Fed.

1 Linda’s brief in support of her motion for summary judgment ((D.E. 165-2) will be referred to as

“Plf. Br.”; Defendants’ brief in opposition to Linda’s motion (D.E. 167) will be referred to “Defs.

Opp.”; Linda’s reply brief (D.E. 170) will be referred to as “Plf. Reply”; Defendants’ brief in

support of their motion for summary judgment (D.E. 166) will be referred to as “Defs. Br.”;

Plaintiffs’ brief in opposition to Defendants’ motion for summary judgment (D.E. 168) will be

referred to as “Plfs. Opp.”; and Defendants’ reply brief (D.E. 169) will be referred to “Defs.

Reply”.

R. Civ. P. 78(b) and L. Civ. R. 78.1(b). For the reasons that follow, Linda’s motion for summary

judgment is GRANTED and Defendants’ motion is DENIED.

I. FACTS AND PROCEDURAL HISTORY

A. Factual Background2

On March 21, 2012 two BPD officers shot and killed Mariano while they were conducting

a “welfare check” on him. Mariano suffered from a schizoaffective disorder that “manifested itself

with psychotic symptoms and periods of depression or mania.” DSOMF ¶ 3. Mariano was

diagnosed in 1998, and had periods of stability and instability. PSOMF ¶¶ 3, 6. In the years

leading up to the incident at issue, Mariano’s disorder was controlled by medication and he was

“essentially free of his symptoms.” PSOMF ¶ 17; DSMOF ¶ 13. Mariano had not gone off his

medications in the five years before the incident. PSOMF ¶ 18. Mariano’s wife, Linda, “normally

[] ensured that her husband’s pill box was filled and that he took his medication as prescribed.”

DSOMF ¶ 26.

On March 21, Linda was visiting the Vargas’ daughter in North Carolina. Linda previously

visited her daughter approximately three times without Mariano. Cert. of Counsel, Ex. 1 at T7:20-

8:13, D.E. 170-1. Mariano was not answering Linda’s phone calls on March 21 so Linda called

her sister, Denise, and asked Denise to check on him. Linda suspected that Mariano was not

answering the phone because he stopped taking his medication. PSOMF ¶¶ 19-20; DSOMF ¶ 27.

When Denise checked on Mariano, she also did not receive any response from him. Denise’s

friend then suggested that Denise call Grace Joynt, Mariano’s niece and a BPD officer. Denise

2 The factual background is largely taken from Defendants’ Statement of Undisputed Material

Facts (“DSOMF”) (D.E. 134-1) and Plaintiffs’ Counterstatement of Material Facts (“PSOMF”)

(D.E. 141). In addition, because Defendants failed to respond to PSOMF, all facts in PSOMF are

deemed admitted. See L. Civ. R. 56.1(a) (explaining that “any material fact not disputed shall be

deemed undisputed for purposes of the summary judgment motion”).

called Officer Joynt at approximately 6:30 p.m. PSOMF ¶¶ 21-22. Officer Joynt called the BPD

and reported the need for a welfare check. Id. ¶ 23. Officer Joynt informed the BPD that Mariano

may have stopped taking his medication and “they needed to get him to a hospital.” DSOMF ¶

32. Officer Joynt also requested that BPD officer Defendant McCrae be present at the scene

because McCrae was involved in a prior incident involving Mariano and the BPD in 2003. Id. ¶

30.

In 2003, Mariano barricaded himself inside his home while he was having a psychotic

episode. Mariano had a knife, and was threatening to harm himself and anyone who tried

approaching him. The BPD officers present during the 2003 incident contacted the Jersey City

Medical Center Emergency Psychiatric Unit (“JCMC EPU”), as they had an experienced

negotiator on staff. PSOMF ¶¶ 7-8. For several hours, the negotiator attempted to get Mariano to

give up his knife peacefully and exit his trailer. Id. ¶ 8. Eventually, the BPD officers forcefully

entered the Vargas’ trailer by breaking down the door, and charged Mariano. The BPD officers

attempted to use pepper spray to subdue Mariano but it had no effect. There was ultimately a

“struggle” to subdue Mariano. Three BPD officers, including Officer McCrae, were injured during

the struggle. PSOMF ¶ 11; DSOMF ¶¶ 11-12.

On March 21, 2012, BPD officers, including Officer McCrae, and an ambulance arrived at

the Vargas’ residence by 7:00 p.m. PSOMF ¶ 24. The BPD officers could see Mariano through a

window but Mariano failed to respond to attempts to communicate. DSOMF ¶¶ 34, 37. In

addition, either Officer Joynt or Denise gave Defendant Sergeant Jamolawicz a key to the Vargas’

trailer. Id. ¶ 35; PSOMF ¶ 32. Every time that Defendant Jamolawicz tried to unlock the door

with the key, Mariano re-locked the door from the inside. DSOMF ¶ 35.

The BPD has a written policy that provides “if an individual refuses the officer’s

recommendation of treatment and it is clear that the individual is a threat to himself or others, the

member shall contact the . . . JCMC MPU to respond to the scene.” PSOMF ¶ 52. The policy

continues that the BPD officer “shall take the steps necessary to safeguard the scene and will stay

in close proximity to the disturbed person and psychiatric evaluator while an assessment is made.”

Id. The BPD officers who responded to Officer Joynt’s call for a welfare check did not follow the

policy.3 After attempting to communicate with Mariano for approximately twenty minutes, the

BDP decided to forcefully enter the Vargas residence. PSOMF ¶ 39.

Two BPD officers physically broke the back door and at least six BPD officers entered the

home. Defendant Arndt entered with his gun drawn, and Officer McCrae had a shield. DSOMF

¶ 45; PSOMF ¶ 40-41. According to Officer McCrae, when they entered the trailer, Mariano had

a long knife in his hand and was advancing towards the officers. DSOMF ¶ 46. Plaintiffs disagree

with Defendants’ account that Mariano was holding the knife when the officers first encountered

Mariano in the trailer. PSOMF ¶ 46. Within 15 to 30 seconds of the BPD officers’ entrance,

Officer Larwa shot twice at Mariano. DSOMF ¶¶ 46-55. Defendants state that Mariano continued

to attack the officers, so Officer Arndt shot Mariano once in the chest and Officer Larwa directed

two more shots at Mariano. Id. ¶¶ 56-57. Mariano died as a result of the gunshots. PSOMF ¶ 2.

3 To this end, as is discussed below, the officers arguably did not believe that Mariano was a threat

to himself or others when the officers first arrived at the scene. At the time, Mariano was not

responding to the officers but, apparently, was also not indicating that he was a threat to himself.

Yet, if accurate, these facts undercut any claim of exigent circumstances justifying a warrantless

entry.

B. Procedural History

Plaintiffs - the Estate of Mariano Vargas,4 Lisa M. Russell as executor of the Estate of

Mariano Vargas, Lisa M. Russell, and Linda G. Vargas - filed suit on February 18, 2014, D.E. 1,

and filed a First Amended Complaint (“FAC”) on February 28, 2014, D.E. 3. The FAC asserts

Section 1983 and New Jersey Civil Rights Act (“NJCRA”) claims against Bayonne and the

individual BPD Officer Defendants, in addition to multiple common law tort claims. D.E. 3.

Defendants filed an answer to the FAC. D.E. 26. On February 27, 2018, Defendants were granted

leave to file an amended answer that includes counterclaims against Plaintiff Linda Vargas for

frivolous litigation and negligence. D.E. 110. Defendants filed their amended answer and

counterclaims on March 1, 2018.5 D.E. 111.

On February 19, 2019, the parties were granted leave to file motions for summary judgment

as to certain Section 1983 and NJCRA claims, and the remaining counterclaim for negligence.6

D.E. 158. The parties filed the instant motions on September 9, 2019. D.E. 165, 166.

4 Plaintiff the Estate of Mariano Vargas does not have standing to assert claims in this matter.

Rather, the claims here must be brought by the executor of the decedent’s will or the administrator

ad prosequendum. Endl v. New Jersey, 5 F. Supp. 3d 689, 696 (D.N.J. 2014) (citing N.J.S.A.

2A:31-2). Because standing involves subject matter jurisdiction, Plaintiff the Estate of Mariano

Vargas is sua sponte dismissed as a Plaintiff in this matter. Lisa M. Russell, as executor of the

Estate of Mariano Vargas, is also a Plaintiff in this matter and is a proper party to assert claims on

behalf of Mariano Vargas’ estate.

5 Linda filed a motion to dismiss the counterclaims on March 22, 2018. D.E. 117. On February

19, 2019, the Court administratively terminated her motion and provided Linda with leave to file

a motion for summary judgment as to the negligence counterclaim. D.E. 158. In addition, the

Court dismissed Defendants’ counterclaim for frivolous litigation after Defendants agreed to

withdraw the claim. D.E. 153, 158.

6 Plaintiffs agreed to withdraw Counts 1 through 3, 5 through 8, and 18 of the FAC, D.E. 152,

which the Court then dismissed, D.E. 158.

II. SUMMARY JUDGMENT STANDARD

A moving party is entitled to summary judgment where “the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a). A fact in dispute is material when it “might affect the outcome of the suit

under the governing law” and is genuine “if the evidence is such that a reasonable jury could return

a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

Disputes over irrelevant or unnecessary facts will not preclude granting a motion for summary

judgment. 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 nonmoving

party’s evidence ‘is to be believed and all justifiable inferences are to be drawn in his favor.’”

Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting Anderson, 477 U.S. at

255)). A court’s role in deciding a motion for summary judgment is not to evaluate the evidence

and decide the truth of the matter but rather “to determine whether there is a genuine issue for

trial.” Anderson, 477 U.S. at 249.

A party moving for summary judgment has the initial burden of showing the basis for its

motion and must demonstrate that there is an absence of a genuine issue of material fact. Celotex

Corp. v. Catrett, 477 U.S. 317, 323 (1986). After the moving party adequately supports its motion,

the burden shifts to the nonmoving party to “go beyond the pleadings and by her own affidavits,

or by the depositions, answers to interrogatories, and admissions on file, designate specific facts

showing that there is a genuine issue for trial.” Id. at 324 (internal quotation marks omitted). To

withstand a properly supported motion for summary judgment, the nonmoving party must identify

specific facts and affirmative evidence that contradict the moving party. Anderson, 477 U.S. at

250. “[I]f the non-movant’s evidence is merely ‘colorable’ or is ‘not significantly probative,’ the

court may grant summary judgment.” Messa v. Omaha Prop. & Cas. Ins. Co., 122 F. Supp. 2d

523, 528 (D.N.J. 2000) (quoting Anderson, 477 U.S. at 249-50)).

Ultimately, there is “no genuine issue as to any material fact” if a party “fails to make a

showing sufficient to establish the existence of an element essential to that party’s case.” Celotex

Corp., 477 U.S. at 322. “If reasonable minds could differ as to the import of the evidence,”

however, summary judgment is not appropriate. See Anderson, 477 U.S. at 250-51.

III. ANALYSIS

A. Plaintiff Linda Vargas’ Motion for Summary Judgment

Linda seeks summary judgment as to the negligence counterclaim asserted against her.

Through the counterclaim, Defendants allege that Linda is liable for Mariano’s death because she

failed to ensure that Mariano was taking his medication. Linda maintains that Defendants seek to

hold her liable based on a non-existent duty. Plf. Br. at 5-10.

In New Jersey, a party asserting a negligence claim must establish four elements: “(1) a

duty of care, (2) a breach of that duty, (3) actual and proximate causation, and (4) damages.” Jersey

Cent. Power & Light Co. v. Melcar Util. Co., 212 N.J. 576, 594 (2013) (citations omitted). “The

threshold inquiry in a negligence action is whether the defendant owed the plaintiff a duty of care.”

Leonard v. Golden Touch Transp. of N.Y. Inc., 144 F. Supp. 3d 640, 644 (D.N.J. 2015) (quoting

Holmes v. Kimco Realty Corp., 598 F.3d 115, 118 (3d Cir. 2010)); see also Fortugno Realty Co.

v. Schiavone-Bonomo Corp., 39 N.J. 382, 393 (1963) (“To render defendants liable there must be

found a breach of a duty, which duty, if observed, would have averted the plaintiff’s injuries.”).

Under New Jersey law, “[w]hether a defendant owes a legal duty, as well as the scope of the duty

owed, are questions of law for the court to decide.” D’Alessandro v. Hartzel, 422 N.J. Super. 575,

579 (App. Div. 2011); see also Velazquez ex rel. Velazquez v. Jiminez, 172 N.J. 240, 263 (2002)

(“The question of duty is one of law to be decided on a case-by-case basis.”).

Ordinarily, “absent a special relationship, there is no duty to control a third person’s

conduct.” Champion ex rel. Ezzo v. Dunfee, 398 N.J. Super. 112, 122 (App. Div. 2008). In this

instance, Defendants ask this Court to create a new duty – under New Jersey law - that requires a

spouse to ensure that his or her partner continues ongoing medical care. This Court declines to

impose this novel duty on the facts presented here.

To determine whether a duty exists, courts “first consider the foreseeability of harm to a

potential plaintiff, and then analyze whether accepted fairness and policy considerations support

the imposition of a duty.” Jerkins ex rel. Jerkins v. Anderson, 191 N.J. 285, 294 (2007) (internal

citations omitted). In addition to foreseeability, courts consider the following factors: “the

relationship of the parties; the nature of the risk; the ability to exercise care; and public policy

considerations.” Desir ex rel. Estiverne v. Vertus, 214 N.J. 303, 317 (2013). “Foreseeability as a

component of a duty to exercise due care is based on the defendant’s knowledge of the risk of

injury.” J.S. v. R.T.H., 155 N.J. 330, 338 (1998). Whether the injury was foreseeable is an

objective inquiry, and may be based on actual or constructive knowledge. Id. But “[e]ven if the

risk is foreseeable, a legal duty does not necessarily arise.” Sacci v. Metaxas, 355 N.J. Super. 499,

508 (App. Div. 2002).

As framed by Defendants’ counterclaim, the risk of injury here is whether Mariano would

stop taking his medication without Linda’s supervision and suffer from a resulting injury.

Defendants establish that Linda “normally” ensured that Mariano’s pill box was filled and “that

he took his medication as prescribed.” DSOMF ¶ 26. While Mario had not stopped taking his

medication in the five years before the incident, he previously went off his medication on occasion.

See PSOMF ¶¶ 17-18. Defendants, however, do not establish that the prior occasions when

Mariano stopped taking his medication were in any way attributable to Linda. Rather, the parties

provide no explanation as to why Mariano did not continue his medications, when it occurred, or

provide any further information about the prior lapses. And critically, Linda visited her daughter

approximately three times before the March 2012 trip. During each prior trip, Mariano did not

travel with Linda and he provided for himself without incident. Cert. of Counsel, Ex. 1 at T7:20-

8:13. Accordingly, Defendants fail to provide sufficient evidence for the Court to determine that

Mariano’s failure to take his medication without Linda’s supervision was foreseeable.

Moreover, Defendants fail to provide any legal authority demonstrating that a duty might

be appropriate here. Defendants discuss a number of cases that address the duty of a spouse to

warn third parties about a spouse’s dangerous proclivities. Defendants, however, fail to identify a

single case in which a Court determined that a spouse has a duty to keep the other spouse safe

under conditions similar to those in this case.

Defendants first rely on J.S. v. R.T.H., which imposed a duty to warn of or prevent sexual

abuse committed by a spouse. The New Jersey Supreme Court’s decision was “[b]ased in large

measure on the strong public policy of protecting children from sexual abuse.” 155 N.J. at 351.

The New Jersey Supreme Court also relied on “a plethora of statutes designed to prevent the sexual

abuse of children,” including N.J.S.A. 9:6-8.10. Id. at 343. The statute requires individuals who

have reasonable cause to believe that child abuse occurred to report the abuse. See N.J.S.A. 9:6-

8.10. The strong public policy basis, which is supported by statutory reporting requirements,

simply is not present in this matter. Thus, J.S. does not aid Defendants.

Next, Defendants discuss a number of cases that involve the voluntary assumption of a

duty, including O’Neill v. Suburban Terrance Apartment, Inc., 110 N.J. Super. 541 (App. Div.

1970). See Defs. Opp. at 5-7. These cases address the scope of a voluntary assumption of a duty,

not whether the Court should impose a duty in the first instance. Moreover, there is no evidence

that Linda assumed such a duty here.7 Although Linda “normally” set up Mariano’s medication,

she left him alone on prior occasions without supervision. In addition, “normally” does not equate

to on every occasion. These cases, therefore, are also inapplicable.

Accordingly, Defendants fail to provide the Court with a legal or factual basis to impose a

new duty here. Because no legal duty exist, Defendants cannot establish that Linda was in any

way liable for Mariano’s death. Linda’s motion for summary judgment, therefore, is granted and

Defendants’ counterclaim is dismissed.

B. Defendants’ Motion for Summary Judgment

Plaintiffs assert claims pursuant to 42 U.S.C. § 1983 and the NJCRA, N.J.S.A. 10:6-2.

Section 1983, in relevant part, provides as follows:

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[.]

Section 1983 does not provide substantive rights; rather, Section 1983 provides a vehicle for

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

To prove a Section 1983 claim, a plaintiff must demonstrate that (1) a person deprived her of a

right secured by the Constitution or federal law; and (2) the person who deprived her of that right

7 To find an individual negligent based on a voluntarily assumed duty, there must also be proof of

reasonable reliance by the injured party. See Ceneviva v. Homes, No. 09-2452, 2011 WL 2470596,

at *3 (D.N.J. June 20, 2011) (quoting Johnson v. Souza, 71 N.J. Super. 240, 242-43 (App. Div.

1961)). Defendants have provided no evidence as to reasonable reliance.

acted under color of state law. Velez v. Fuentes, No. 15-6939, 2016 WL 4107689, at *2 (D.N.J.

July 29, 2016).

The NJCRA provides a private cause of action to

[a]ny person who has been deprived of any substantive due process

or equal protection rights, privileges or immunities secured by the

Constitution or laws of the United States, or any substantive rights,

privileges or immunities secured by the Constitution or laws of this

State, or whose exercise or enjoyment of those substantive rights,

privileges or immunities has been interfered with or attempted to be

interfered with, by threats, intimidation or coercion by a person

acting under color of law, may bring a civil action for damages and

for injunctive or other appropriate relief.

N.J.S.A. 10:6-2. The “NJCRA was modeled after § 1983, [so] courts in New Jersey have

consistently looked at claims under the NJCRA through the lens of § 1983 and have repeatedly

construed the NJCRA in terms nearly identical to its federal counterpart.” Velez, 2016 WL

4107689, at *5 (internal quotations and citation omitted). Therefore, the Court considers

Plaintiffs’ Section 1983 and NJCRA claims together.

Here, Plaintiffs allege that Defendants violated Mariano’s Fourth Amendment rights as

incorporated to state and local government actors through the Fourteenth Amendment.

1. Claims Against the Officer Defendants

Plaintiffs’ claim against the Individual Defendants focuses on the BPD officers’ entry into

Mariano’s trailer without a warrant.8 The Officer Defendants argue that there was not a

8 Plaintiffs also allege that breaking into Mariano’s home was an unlawful use of excessive force.

Plfs. Opp. at 22-23. The Fourth Amendment guarantees people the right to be secure from

unreasonable seizures. The use of excessive force against a person may constitute an unreasonable

seizure. Graham v. Connor, 490 U.S. 386, 395 (1989). Plaintiffs, however, provide no legal

support for their argument that the Fourth Amendment protection from the use of excessive force

extends beyond the person and to a structure, and the Court is not aware of any. Consequently,

the Court focuses its inquiry solely on Plaintiffs’ warrantless entry allegations.

constitutional violation, and even assuming there was, they are entitled to qualified immunity.9

Defs. Br. at 11-15; Defs. Reply at 9-10. Given that these issues are intertwined, the Court addresses

them together.

Qualified immunity can protect a municipal officer from liability in a Section 1983 case.

Wright v. City of Philadelphia, 409 F.3d 595, 599 (3d Cir. 2005). “Qualified immunity shields

government officials from personal liability for civil damages insofar as their conduct does not

violate clearly established statutory or constitutional rights of which a reasonable person would

have known.” Paszkowski v. Roxbury Twp. Police Dep’t, No. 13-7088, 2014 WL 346548, at *2

(D.N.J. Jan. 30, 2014). A court must engage in the following two-part inquiry to determine

whether qualified immunity applies: (1) whether the allegations, taken in the light most favorable

to the party asserting the injury, show that defendant’s conduct violated a constitutional right; and

(2) whether the constitutional right at issue was clearly established at the time of the alleged

violation. Pearson v. Callahan, 555 U.S. 223, 232 (2009). Courts have discretion to consider

either prong of the two-part analysis first. Id. at 236.

“The issue of qualified immunity is generally a question of law, although a genuine issue

of material fact will preclude summary judgment on qualified immunity.” Giles v. Kearney, 571

F.3d 318, 326 (3d Cir. 2009). Moreover, qualified immunity is an affirmative defense for which

a defendant bears the burden of proof. See Goldenbaum v. DeLorenzo, No. 08-1127, 2010 WL

5139991, at *11 (D.N.J. Dec. 10, 2010). In deciding qualified immunity questions at summary

judgment, a court must view the material facts in the light most favorable to the plaintiff. Id.; see

9 To establish liability for a defendant under Section 1983, that defendant “must have personal

involvement in the alleged wrongdoing.” Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005).

Although Defendants do not seek summary judgment on these grounds, the Court notes that

Plaintiffs’ claims are asserted against Defendants as a whole, and Plaintiffs fail to clearly explain

how each Defendant was personally involved in the March 21 incident.

also Scott v. Harris, 550 U.S. 372, 378 (2007). Thus, summary judgment may be granted to an

officer if, when interpreting the facts in the light most favorable to the non-moving party, the court

determines that the evidence does not support a violation of a clearly established constitutional

right. Mitchell v. Forsyth, 472 U.S. 511, 546 (1985) (stating that “when a trial court renders a

qualified immunity decision on a summary judgment motion, it must make a legal determination

very similar to the legal determination it must make on a summary judgment motion on the

merits”); see also Tolan v. Cotton, 572 U.S. 650, 656-57 (2014); Scott, 550 U.S. at 378.

a. Constitutional Violation

The Fourth Amendment protects persons from “unreasonable searches and seizures.” U.S.

Const. amend. IV. “Warrantless searches and seizures inside someone’s home . . . are

presumptively unreasonable unless the occupants consent or probable cause and exigent

circumstances exist to justify the intrusion.” United States v. Coles, 437 F.3d 361, 365-66 (3d Cir.

2006) (citing Steagald v. United States, 451 U.S. 204, 211 (1981); Payton v. New York, 445 U.S.

573, 586 (1980)). The state has the burden to demonstrate that an exception to the warrant

requirement is present. United States v. Mallory, 765 F.3d 373, 383 (3d Cir. 2014).

Defendants maintain they had consent to enter Mariano’s residence without a warrant.

Defs. Reply at 9. Specifically, Defendants argue that they reasonably believed they had consent

to enter the premises because Linda asked Officer Joynt to ensure Mariano’s well-being, and

Officer Joynt provided a key and encouraged the BPD officers to enter the trailer. Id. Voluntary

consent is an exception to the warrant requirement, and a third party may provide consent if she

has authority over the premises or effects that are searched. United States v. Stabile, 633 F.3d 219,

230 (3d Cir. 2011). However, consent from a third party does not trump “the express refusal of

consent by a physically present resident.” Id. (quoting Georgia v. Randolph, 547 U.S. 103, 120

(2006)).

Here, the undisputed material facts reflect that Mariano did not consent to the BPD’s

warrantless entry into his home. Mariano never gave verbal consent, and no party contends

otherwise. In addition, every time Defendant Jamolawicz tried to unlock the door, Mariano locked

it again from the inside. DSOMF ¶ 35. Thus, even assuming that Linda provided valid consent to

enter the residence through Officer Joynt, which the Court is not deciding,10 Mariano’s failure to

provide consent through his conduct negated the BPD’s ability to enter without a warrant. As a

result, the consent exception does not apply here.

Defendants also rely on the exigent circumstances exception. Exigent circumstances may

justify a warrantless intrusion when police “reasonably believe that someone is in imminent

danger.” Parkhurst v. Trapp, 77 F.3d 707, 711 (3d Cir. 1996). Imminence, or “the existence of a

true emergency” is critical. Mallory, 765 F.3d at 384. Here, Officer Joynt called the BPD to

request a welfare check on Mariano. DSOMF ¶ 29. Officer Joynt informed the BPD that Mariano

may not have been taking his medication and needed to go to the hospital. Id. ¶¶ 32-33. Officer

Joynt also told the BPD that Mariano could become violent when he was not taking his

medications. Id. ¶ 32. One of the responding BPD officers, Officer McCrae, was also

independently aware of Mariano’s mental illness from the 2003 incident during which McCrae

was injured. Id. ¶ 31. However, only a welfare check was requested. While possibilities were

suggested – Mariano potentially not taking his medication and, if so, Mariano could potentially

10 The Court notes that even under Defendants’ account of the incident, it does not appear that

Linda ever spoke with Officer Joynt. See DSOMF ¶¶ 27-28 (explaining that Linda called her

sister, and that Linda’s sister then called Officer Joynt for help).

become violent – there was no indication that Mariano had in fact stopped taking his medication

or was in fact violent.

Once at the trailer, BPD officers tried to communicate with Mariano, but Mariano did not

respond and he remained in the locked trailer. Id. ¶¶ 34-35. In addition, Plaintiffs contend that

although Mariano was unresponsive to the BPD, while the BPD remained outside of the trailer,

the BPD officers did not observe any behavior indicating that Mariano was a threat to himself or

others. PSOMF ¶¶ 35-37. In fact, no one besides Mariano was in, or known to be in, the trailer.

The BPD officers could see Mariano through the windows, id. ¶ 37, but did not know that he had

a knife until they had broken into the trailer, id. ¶ 47. Based on this evidence, a reasonable jury

could conclude that exigent circumstances did not exist due to lack of any indication of imminent

danger when the BPD officers decided to break into the trailer. Accordingly, a jury could also

conclude that a constitutional violation occurred when the BPD officers entered the trailer without

a warrant.

b. Clearly Established Right

In their motion for summary judgment, Defendants focus on whether the use of force

violated a clearly established right. Defs. Br. at 12-16. This argument puts the cart before the

horse because the threshold question is whether the BPD officers were legally inside the trailer

when they decided to use deadly force. Defendants, however, fail to address whether the need for

a warrant or the exceptions to the warrant requirement were clearly established at the time of the

incident. As a result, Defendants have not shown that they are entitled to qualified immunity at

this time. Consequently, Defendants motion for summary judgment is denied as to the Section

1983 and NJCRA claims against the Individual Defendants.

2. Count 11 - Negligent Training and Supervision

Defendants also seek summary judgment dismissing Count 11, which asserts a claim for

negligent training and supervision.11 While not at all apparent from the FAC, the parties treat

Count 11 as a Monell claim. See Defs. Br. at 16; Plf. Br. at 12. The Court will therefore do the

same.

A municipality may be liable under Section 1983 “if the plaintiff identifies a municipal

‘policy’ or ‘custom’ that was the ‘moving force’ behind the injury.” Jewell v. Ridley Township,

497 F. App’x 182, 185 (3d Cir. 2012) (quoting Monell v. Dep’t of Soc. Servs. of N.Y.C., 436 U.S.

658, 694 (1978)). In addition, a Monell claim may also be premised on a municipality’s failure to

train, supervise, and discipline its employees. Plaintiffs here assert a failure to train Monell claim

– specifically that the BPD failed to train officers on how to perform welfare checks and interact

with people suffering from mental illness.

For claims involving police officers, the alleged failure to train can only serve as a basis

for Section 1983 liability where “the failure amounts to deliberate indifference to the rights of

persons with whom those employees will come into contact.” Thomas v. Cumberland County, 749

F.3d 217, 222 (3d Cir. 2014) (quoting Carter v. City of Philadelphia, 181 F.3d 339, 357 (3d Cir.

11 Plaintiffs initially asserted claims against Bayonne and the BPD, but now contend that the BPD

is the real party in interest. Although Defendants do not seek summary judgment on these grounds,

the Court notes that administrative arms of a municipality such as police departments and the

municipality itself are treated as a single entity for purposes of Section 1983. Bonenberger v.

Plymouth Township, 132 F.3d 20, 29 n.4 (3d Cir. 1997) (“As in past cases, we treat the

municipality and its police department as a single entity for purposes of section 1983 liability.”).

As a result, local police departments are not subject to suit under Section 1983 or the NJCRA

“because the police department is merely an administrative arm of the local municipality, and is

not a separate judicial entity.” See Padilla v. Township of Cherry Hill, 110 F. App’x 272, 278 (3d

Cir. 2004) (finding that in “Section 1983 actions, police departments cannot be sued in conjunction

with municipalities) (internal quotation omitted); Castoran v. Pollak, No. 14-2531, 2017 WL

4805202, at *7 (D.N.J. Oct. 25, 2017) (dismissing Section 1983 and NJCRA claims asserted

against local police department).

1999)). In addition, “‘the deficiency in training must have actually caused’ the constitutional

violation.” Id. at 223 (quoting City of Canton v. Harris, 489 U.S. 378, 391 (1989)).

“Ordinarily, a pattern of similar constitutional violations by untrained employees is

necessary to demonstrate deliberate indifference for purposes of failure to train.” Thomas, 749

F.3d at 223 (internal quotations, citations, and brackets omitted). As discussed, Plaintiffs contend

that the BPD failed to train officers on how to conduct welfare checks and interact with individuals

with mental illness. The BPD does not have any formal written policies that address conducting a

welfare check, PSOMF ¶ 61; and nobody within the department received any training on how

officers should manage people suffering from psychiatric problems, id. ¶ 62. The BPD does have

a written policy stating that “if an individual refuses the officer’s recommendation of treatment

and it is clear that the individual is a threat to himself or others, the member shall contact the . . .

JCMC MPU to respond to the scene.” PSOMF ¶ 52. There is no question that the BPD officers

present on March 21 did not adhere to this policy and no officer received any training regarding

this policy. Thus, Plaintiffs provide sufficient evidence demonstrating that training did not occur.

Plaintiffs, however, provide no evidence of a pattern of similar constitutional violations, which is

typically necessary to establish deliberate indifference.

But “in certain situations, the need for training can be said to be so obvious, that failure to

do so could properly be characterized as ‘deliberate indifference’ to constitutional rights even

without a pattern of constitutional violations.” Thomas, 749 F.3d at 223 (internal quotations

omitted) (citing Canton, 489 U.S. at 390 n.10). “Liability in single-incident cases depends on the

likelihood that the situation will recur and the predictability that an officer lacking specific tools

to handle that situation will violate citizens' rights.” Thomas, 749 F.3d at 223–24 (internal

quotation, citation, and bracket omitted). In Thomas, the plaintiff was seriously injured during a

fight in prison. To support his Monell claim, the plaintiff provided evidence demonstrating that

fights regularly occurred in the prison where he was detained. Id. at 220, 225. While Thomas’

evidence of other fights was “not sufficient to create a pattern of violations,” the Third Circuit

determined that “they are relevant to whether his injury was a ‘highly predictable consequence’ of

the failure to train on de-escalation techniques for single-incident liability.” Id. at 225. The

evidence of prior fights, in addition to an expert’s opinion that the failure to provide training “was

a careless and dangerous practice not aligned with prevailing standards” created a material issue

of fact as to whether the defendant county acted with deliberate indifference. The Circuit

continued that because corrections officers have no reason to know how to de-escalate a conflict

to avoid a constitutional injury, the failure to train officers on a situation that frequently occurred

was “akin to ‘a failure to equip law enforcement officers with specific tools to handle recurring

situations.’” Id. (quoting Board of Cty. Com’rs of Bryan Cty., Okl. v. Brown, 520 U.S. 397, 409

(1997)). As a result, the Third Circuit concluded that summary judgment was not appropriate as

to the county defendant. Id. at 227.

In this instance, the BPD had a prior interaction with Mariano in 2003 when Linda called

Officer Joynt for help because Mariano was having a psychotic episode. PSOMF ¶¶ 7-11. As a

result, the BPD was aware of Mariano’s mental health issues. Id. ¶ 66. In fact, Officer McCrae

was present at the incident at issue here and in 2003. Id. ¶¶ 30-31. Further, Defendant Sisk, who

was also present at the incident at issue, testified that the BPD received calls for welfare checks on

emotionally disturbed individuals “fairly frequently.” Sisk Dep T24:21-25:5. This evidence

creates a material issue of fact as to whether BPD policy makers knew that officers were likely to

be faced with a situation involving people with mental illness. In addition, given the inherent

unpredictability of a person in the middle of a psychotic episode,12 it is a predicable consequence

that an individual who lacks training as to how to adequately deal with mental illness would violate

a mentally ill individual’s constitutional rights when required to interact with the individual.

Finally, like Thomas, Plaintiffs’ liability expert opines that the BPD failed to train its officers in

nationally recognized policies and procedures for dealing with parties in mental crisis. PSOMF ¶

74. Accordingly, there is a material issue of fact as to whether the BPD acted with deliberate

indifference.

Defendants argue that the BPD’s training was appropriate because it followed the Attorney

General’s guidelines in training BPD officers. Defs. Br. at 19. Defendants provide no facts to

support this statement, and the AG’s guidelines do not provide any specific instructions or

guidance on handling people with mental illness. Defendants also fail to provide any legal support

for their argument that national guidance is irrelevant in the current situation. In fact, Defendants

argument is undercut by Thomas. As discussed, in Thomas, the Third Circuit determined that the

plaintiff’s expert opinion evidence, which relied on national standards for prison training, was

relevant to whether the county acted with deliberate indifference. Thomas, 749 F.3d at 225.

Assuming that a jury finds that a constitutional injury occurred here, there are sufficient

facts by which a reasonable jury could also conclude that the lack of training caused Plaintiffs’

injury. Namely, Defendants maintain that “[t]he decision to enter without calling medical

assistance was made on past experience with police interactions with Mr. Vargas and the fact that

he was not communicating in any way with anyone on the scene.” Defs. Br. at 17; see also

12 The Court uses psychotic episodes merely as an example. Beyond psychotic episodes – when a

person is experiencing a break with reality – persons undergoing the symptoms of other forms of

mental illness can present the same or similar challenges to police officers and first responders,

such as a clinically depressed person who is suicidal.

DSOMF ¶¶ 40-41; 60. But Plaintiffs’ medical expert, Dr. First, opines that “it was erroneous on

the part of the BPD to assume that Mariano’s previous interactions with the BPD in 2003 were

directly applicable or relevant to the proper course of action during the Incident.” PSOMF ¶ 70.

Thus, a jury could find that had the BDP officers received proper training, they would have known

that forcibly entering Mariano’s trailer without a warrant was not the appropriate action to ensure

Mariano’s well-being. These material issues of fact preclude granting summary judgment to

Defendants for the Monell claim.

3. Statutory Immunity

Defendants argue that they are immune from suit pursuant to the New Jersey Tort Claims

Act (the “NJTCA”) and the community caretaking doctrine.13 Defs. Br. at 25-28. Generally, the

NJTCA provides public employees such as police officers with immunity from tort liability.

N.J.S.A. 59:3-3 provides that “[a] public employee is not liable if he acts in good faith in the

execution or enforcement of any law.” The NJTCA, however, does not provide immunity if the

conduct at issue “constituted a crime, actual fraud, actual malice or willful misconduct.” N.J.S.A.

59:3-14. Willful misconduct “is not immutably defined but takes its meaning from the context

and purpose of its use.” Fielder v. Stonack, 141 N.J. 101, 124 (1995). It falls somewhere “between

simple negligence and the intentional infliction of harm.” Id. (quoting Foldi v. Jeffries, 93 N.J.

13 Defendants appear to believe that the NJTCA and community caretaking doctrine afford them

complete immunity from this suit. The NJTCA immunities, however, do not apply to Section 1983

claims. See Bostrom v. N.J. Div. of Youth & Family Servs., 969 F. Supp. 2d 393, 418 (D.N.J. 2013)

(“[I]t is well established that the New Jersey Tort Claims Act provides no immunity to public

officers sued under federal law.” (citing Tice v. Cramer, 133 N.J. 347, 375 (1993))). The same is

true as to Defendants’ arguments under the community caretaking doctrine. See Smith v. Township

of Warren, No. 14-7178, 2016 WL 7409952, at *17 (D.N.J. Dec. 22, 2016) (explaining that “[t]he

Supremacy Clause of the United States Constitution dictates that a state statute, such as the TCA,

cannot provide immunity from a claim under a federal statute”).

533, 549 (1983)). While willful misconduct “need not involve the actual intent to cause harm,

there must be some knowledge that the act is wrongful.” Id. (internal citation omitted). Moreover,

to satisfy the requirement of willfulness or wantonness there must

be a “positive element of conscious wrongdoing.” Our cases

indicate that the requirement may be satisfied upon a showing that

there has been a deliberate act or omission with knowledge of a high

degree of probability of harm and reckless indifference to

consequences.

Id. (quoting Berg v. Reaction Motors Div., Thiokol Chem. Corp., 37 N.J. 396, 414 (1962)).

Defendants maintain that they were forced to make a quick decision about whether Mariano

posed a danger to himself or others. When viewed in the moment, Defendants argue that the

Individual Defendants’ conduct was “objectively reasonable and made in good faith.” Defs. Br.

at 26. While this might be an appropriate conclusion if the jury was only tasked with considering

Defendants’ use of deadly force once the BPD officers already entered the trailer, Defendants

overlook what proceeded that interaction. When the Individual Defendants first encountered

Mariano, they could see him through the window of the Vargas’ trailer. The BPD Defendants did

not observe a weapon and Mariano did not appear to be an imminent threat to himself or others.

Yet, Defendants decided to forcefully enter Mariano’s trailer, DSOMF ¶ 45, PSMOF ¶ 41, instead

of following BPD policy by calling the JCMC EPU or obtaining a warrant. PSOMF ¶ 52. In light

of these facts, a reasonable jury could conclude that the BPD officers acted with willful

misconduct, rather than in good faith. Therefore, the Court denies Defendants’ motion for

summary judgment on these grounds.

Defendants also maintain that they are immune from suit under the community caretaking

doctrine, citing N.J.S.A. 30:4-27.7. Defs. Br. at 27. The statute provides as follows:

A law enforcement officer . . . acting in good faith pursuant to P.L.

1987, c. 116 and P.L. 2009, c. 112'* who takes reasonable steps to

assess, take custody of, detain or transport an individual for the

purposes of mental health assessment or treatment is immune from

civil or criminal liability.

N.J.S.A. 30:4-27.7(a) (emphasis added). Again, there are material issues of fact as to whether the

Individual BPD Defendants acted reasonably. Contra Catlett v. N.J. State Police, No. 12-153,

2015 WL 9272877, at *4 (D.N.J. Dec. 18, 2015) (dismissing state law claims due to N.J.S.A. 30:4-

27.7 because there was no indication that defendant acted in bad faith or unreasonably).

Accordingly, summary judgment is denied to Defendants under either statute.

IV. CONCLUSION

For the reasons set forth above, Plaintiff Linda Vargas’ motion for summary judgment

(D.E. 165) is GRANTED, and Defendants’ motion (D.E. 166) is DENIED. An appropriate Order

accompanies this Opinion.

Dated: June 26, 2020

o\ yO ©. Y —

John\Michael Vazquez, U.S.D.J. )

DL. 1987, c. 116 and P.L. 2009, c. 112 address the involuntary commitment of individuals with

mental illness.

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