COREY BLAND VS. CITY OF NEWARK (L-2305-13, ESSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1800-19

COREY BLAND1 and VIRGINIA

BLAND,

Plaintiffs-Appellants,

v.

CITY OF NEWARK, CITY OF

NEWARK POLICE

DEPARTMENT, NEW JERSEY

DIVISION OF STATE POLICE,

STATE OF NEW JERSEY,

SERGEANT JAMES THOMPSON,

SERGEANT BRIAN MURPHY,

TROOPER II THOMAS

ESPINOZA, TROOPER II

WILLIAM LEGG, TROOPER

MIGUEL HOLGUIN, TROOPER

ANTHONY SARDANOPOLI,

TROOPER JOHN OLIVEIRA,

TROOPER STEPHEN RIEFLER,

DETECTIVE THOMAS

DELMAURO, DETECTIVE

BRIAN COSTA, DETECTIVE

1

We note that Corey Bland passed away while this appeal was pending, and

we entered a November 10, 2020 order permitting the substitution of his estate

as a party in this case.

DAVID MARTINEZ, DETECTIVE

RUBEN TORRES, SERGEANT

THOMAS ROE, and OFFICER

DANNY COSTA,

Defendants-Respondents.

______________________________

Argued November 1, 2021 – Decided November 16, 2021

Before Judges Fasciale and Sumners.

On appeal from the Superior Court of New Jersey,

Law Division, Essex County, Docket No. L-2305-13.

Peter Ventrice argued the cause for appellants

(Brause, Brause & Ventrice, LLC, and Lucas E.

Phillips, Jr., attorneys; Peter Ventrice, on the briefs).

Gary S. Lipshutz, First Assistant Corporation Counsel,

argued the cause for defendants Thomas del Mauro,

David Martinez, and Ruben Torres (Kenyatta K.

Stewart, Corporation Counsel, attorney; Gary S.

Lipshutz and Azeem M. Chaudry, Assistant

Corporation Counsel, on the brief).

Matthew Lynch, Deputy Attorney General, argued the

cause for defendants James Thompson, Brian Murphy,

William Legg, Miguel Holguin, Anthony Sardnopoli,

John Oliveira, and Stephen Riefler (Andrew J. Bruck,

Acting Attorney General, attorney; Jane C. Schuster,

Assistant Attorney General, of counsel; Matthew

Lynch, on the brief).

Karen Thompson argued the cause for amicus curiae

American Civil Liberties Union Foundation of New

Jersey (American Civil Liberties Union Foundation of

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New Jersey, attorneys; Karen Thompson, Alexander

Shalom, and Jeanne LoCicero, on the brief).

PER CURIAM

Plaintiffs appeal from two December 6, 2019 orders granting defendants '

James Thompson, Brian Murphy, Thomas Espinoza, William Legg, Miguel

Holguin, Anthony Sardanopoli, John Oliveira, Stephen Riefler (the State

defendants) and Thomas del Mauro, David Martinez, and Reuben Torres (the

Newark defendants) (collectively defendants) motions for summary judgment.

Plaintiffs argue that the motion judge erred by collaterally estopping plaintiffs

from litigating the issue of qualified immunity under the New Jersey Civil

Rights Act (CRA), N.J.S.A. 10:6-2, based on the decision rendered by the

United States Court of Appeals for the Third Circuit in Bland v. City of

Newark, 900 F.3d 77 (3d. Cir. 2018), and by dismissing plaintiffs' remaining

state law claims.

In March 2013, plaintiffs filed a complaint in the Superior Court of

Essex County alleging various state and federal claims arising from the

shooting of Bland during and following a car chase. Defendants removed the

action to federal court, and in June 2017, defendants moved for summary

judgment, asserting they were entitled to qualified immunity. The district

court judge denied defendants' motions for summary judgment and denied

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defendants' motions to stay the trial. Bland, 900 F.3d at 82. Defendants filed

a notice of appeal and an emergent request to stay the trial, which the Third

Circuit granted. Ibid.

The Third Circuit reversed the denial of summary judgment in a

published opinion. Id. at 87. The Third Circuit determined that the officers

who fired at Bland's vehicle in Lincoln Park and the terminus of the car chase

were entitled to qualified immunity as to plaintiffs' 42 U.S.C. § 1983 claims.

Id. at 84-87.

In June 2019, the district court judge followed the Third Circuit's

instructions and entered summary judgment in favor of defendants, declined to

exercise supplemental jurisdiction over plaintiffs' remaining state law claims,

and remanded the case to the Superior Court. The following November,

defendants moved for summary judgment based on collateral estoppel. The

motion judge granted defendants' motions for summary judgment, determining

that plaintiffs were procedurally barred from relitigating the issue of qualified

immunity, and dismissed plaintiffs' remaining state law claims with prejudice.

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On appeal,2 plaintiffs raise the following arguments for this court's

consideration:

POINT I

THE THIRD CIRCUIT'S FINDING OF QUALIFIED

IMMUNITY ON PLAINTIFFS' FEDERAL SECTION

1983 CLAIMS SHOULD NOT HAVE ENTITLED

DEFENDANTS TO SUMMARY JUDGMENT ON

PLAINTIFF[S'] CLAIMS UNDER THE [CRA] AND

NEW JERSEY COMMON LAW WHERE THERE

WERE GENUINE ISSUES OF MATERIAL FACT

THAT, VIEWED IN THE LIGHT MOST

FAVORABLE TO PLAINTIFFS, ESTABLISHED

THAT DEFENDANTS' USE OF DEADLY FORCE

WAS NOT OBJECTIVELY REASONABLE.

POINT II

PLAINTIFFS' CLAIMS BROUGHT UNDER THE

[CRA] AND NEW JERSEY COMMON LAW WERE

NOT BARRED BY RES JUDICATA OR BY

COLLATERAL ESTOPPEL.

POINT III

DEFENDANTS WERE NOT ENTITLED TO

SUMMARY JUDGMENT UNDER THE DOCTRINE

OF QUALIFIED IMMUNITY.

2

For the purposes of this appeal, we rely on the facts detailing the

circumstances of the carjacking and ensuing car chase as set forth by the Third

Circuit. See Bland, 900 F.3d at 80-82.

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POINT IV

DEFENDANTS WERE NOT ENTITLED TO

SUMMARY JUDGMENT ON PLAINTIFFS' NEW

JERSEY STATE COMMON LAW CAUSES OF

ACTION FOR ASSAULT AND BATTERY,

NEGLIGENCE, OR PLAINTIFFS' PER QUOD

CLAIM.

I.

Plaintiffs assert the motion judge erred by granting defendants' motions

for summary judgment and by determining that defendants were entitled to

qualified immunity based on the Third Circuit's decision in Bland. Plaintiffs

argue that because the Third Circuit only addressed whether defendants were

entitled to qualified immunity under Section 1983, our state courts "must

perform [their] own analysis under the New Jersey State Constitution." The

American Civil Liberties Union Foundation of New Jersey echoes plaintiffs'

position, contending the motion judge was not bound by the Third Circuit's

determination that the defendants were entitled to qualified immunity as to

plaintiffs' CRA claim because it creates a separate state cause of action.

We review a grant of summary judgment using the same standard that

governs the motion judge's decision. RSI Bank v. Providence Mut. Fire Ins.

Co., 234 N.J. 459, 472 (2018) (citing Bhagat v. Bhagat, 217 N.J. 22, 38

(2014)). Summary judgment is appropriate when "the pleadings, depositions,

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interrogatories and admissions on file, together with the affidavits, if any,

show that there is no genuine issues at to any material fact challenged and that

the moving party is entitled to a judgment as a matter of law." R. 4:46-2(c);

Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 528-29 (1995). "When

no issue of fact exists, and only a question of law remains, this [c]ourt affords

no special deference to the legal determinations of the [motion judge] ." RSI

Bank, 234 N.J. at 472 (quoting Templo Fuente De Vida Corp. v. Nat'l Union

Fire Ins. Co., 224 N.J. 189, 199 (2016)).

Collateral estoppel, also referred to as issue preclusion, "bars relitigation

of any issue which was actually determined in a prior action, generally

between the same parties, involving a different claim or cause of action." In re

Liquidation of Integrity Ins. Co., 214 N.J. 51, 66 (2013) (internal citations

omitted) (quoting N.J. Div. of Youth & Family Servs. v. R.D., 207 N.J. 88,

114 (2011)); see Doe v. Hesketh, 828 F.3d 159, 171-74 (3d Cir. 2016).

Collateral estoppel arises "[w]hen an issue of fact or law is actually litigated

and determined by a valid and final judgment, and the determination is

essential to the judgment." Winters v. N. Hudson Reg'l Fire & Rescue, 212

N.J. 67, 85 (2012) (alteration in original) (quoting Restatement (Second) of

Judgments § 27 (1982)). The result is "the determination is conclusive in a

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subsequent action between the parties, whether on the same or a different

claim." Ibid. (quoting Restatement (Second) of Judgments § 27).

Our Court has explained that "'[i]n general, the binding effect of a

judgment is determined by the law of the jurisdiction that rendered it,' and that

this rule applies with equal force when considering the effect to be given to a

federal court judgment in a state court proceeding." Gannon v. Am. Homes

Prods., Inc., 211 N.J. 454, 469 (2012) (quoting Watkins v. Resort Int'l Hotel &

Casino, Inc., 124 N.J. 398, 411 (1991)). Federal law and New Jersey law have

"almost identical" requirements to establish collateral estoppel. Del. River

Port Auth. v. FOP, Penn-Jersey Lodge 30, 290 F.3d 567, 573 n.10 (3d Cir.

2002). The Third Circuit's collateral estoppel doctrine required that a party

demonstrate that

(1) the identical issue was previously adjudicated; (2)

the issue was actually litigated; (3) the previous

determination was necessary to the decision; and (4)

the party being precluded from relitigating the issue

was fully represented in the prior action.

[Howard Hess Dental Lab'ys Inc. v. Dentsply Int'l,

Inc., 602 F.3d 237, 247-48 (3d Cir. 2010) (quoting

Szehinskyj v. Att'y Gen. of U.S., 432 F.3d 253, 255

(3d Cir. 2005)).]3

3

To successfully assert collateral estoppel in New Jersey, a party asserting the

bar must demonstrate that:

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A party may establish that an issue is "identical" under the first prong by

demonstrating "that the same general legal rules govern both cases and that the

facts of both cases are indistinguishable as measured by those rules." Suppan

v. Dadonna, 203 F.3d 228, 233 (3d. Cir. 2000) (quoting Charles Alan Wright,

Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 4425

at 253 (1981)).

A federal court's decision not to exercise supplemental jurisdiction over

state law claims does not impede the application of collateral estoppel. See

Tarus v. Borough of Pine Hill, 189 N.J. 497, 521 (2007) (noting that despite

the district court judge dismissing a plaintiff's state-law claims "without

prejudice" after dismissing the plaintiff's federal claims, a plaintiff was

(1) the issue to be precluded is identical to the issue

decided in the prior proceeding; (2) the issue was

actually litigated in the prior proceeding; (3) the court

in the prior proceeding issued a final judgment on the

merits; (4) the determination of the issue was essential

to the prior judgment; and (5) the party against whom

the doctrine is asserted was a party to or in privity

with a party to the earlier proceeding.

[Winters, 212 N.J. at 85 (quoting Olivieri v. Y.M.F.

Carpet, Inc., 186 N.J. 511, 521 (2006)).]

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"estopped from relitigating his contention that defendants lacked probable

cause because that issue was actually determined in a prior action") (internal

quotation marks omitted).

This case concerns the Third Circuit's grant of qualified immunity to

defendants. "Qualified immunity is a doctrine that shields government

officials from a suit for civil damages when 'their conduct does not violate

clearly established statutory or constitutional rights of which a reasonable

person would have known.'" Gormley v. Wood-El, 218 N.J. 72, 113 (2014)

(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). This doctrine

provides immunity from suit and balances "the need to hold public officials

accountable when they exercise power irresponsibly and the need to shield

officials from harassment, distraction, and liability when they perform their

duties reasonably." Ibid. (quoting Pearson v. Callahan, 555 U.S. 223, 231

(2009)).

To resolve the question of whether a party is entitled to qualified

immunity at summary judgment, a judge must determine: "(1) whether the

evidence, viewed in the light most favorable to the plaintiff, establishes that

the official violated the plaintiff's constitutional or statutory rights, and (2)

whether the right allegedly violated was 'clearly established' at the time of the

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officer's actions." Baskin v. Martinez, 243 N.J. 112, 128 (2020) (quoting

Saucier v. Katz, 533 U.S. 194, 201-02 (2001)). Judges have discretion in

choosing which prong to address first. Morillo v. Torres, 222 N.J. 104, 118

(2015); Pearson, 555 U.S. at 236.

"For purposes of analyzing the qualified-immunity defense . . . the

examination for [Section 1983 and the CRA] is the same." Morillo, 222 N.J. at

116. This is because our Legislature "anticipated that New Jersey courts

would apply the well-established law concerning the affirmative defense of

qualified immunity in adjudicating damage claims under the [CRA]." Ibid.

(alteration in original) (quoting Ramos v. Flowers, 429 N.J. Super. 13, 24

(App. Div. 2012)).

The Third Circuit held that defendants were entitled to qualified

immunity as to plaintiffs' Section 1983 claims, reversing the district court and

remanding with an order to grant summary judgment to defendants. Bland,

900 F.3d at 87. The Third Circuit determined that as to the events that

transpired at Lincoln Park, the State defendants were entitled to qualified

immunity because they were reasonable in their belief that Bland was armed,

that Bland posed a serious risk to himself and others because of his driving,

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and that they did not violate Bland's clearly established constitutional rights by

firing their weapons. Id. at 84-85.

The Third Circuit also determined that as to the events that transpired at

the terminus, the Newark defendants were entitled to qualified immunity

because they reasonably believed Bland was armed, Bland continued to pose a

serious risk through his driving, and he threatened to kill the officers after he

crashed and as the officers approached his vehicle. Id. at 85-86. Plaintiffs

failed to identify any "cases with similar facts that, in 2011, would have 'put

every reasonable offic[er] on notice' that using deadly force in such a situation

violated clearly established constitutional rights." Id. at 86 (alteration in

original) (quoting Fields v. City of Philadelphia, 862 F.3d 353, 361 (3d. Cir.

2017)). And further, the Third Circuit noted that even "accepting . . . the truth

of [plaintiffs'] assertions regarding the [car's] immobility and the officers'

ability to see Bland's hands, [its] conclusion remains the same." Ibid.

Torrez and Martinez, who arrived on the scene late and began shooting,

were also entitled to qualified immunity because plaintiffs failed to present

"caselaw demonstrating that [they] . . . violated a clearly established right by

joining in the chaotic scene and discharging their weapons." Ibid. The Third

Circuit noted that in a recent decision, "the [Supreme] Court granted qualified

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immunity to an officer who arrived late to an armed confrontation between

multiple officers and individuals" and, upon one of the civilians firing their

weapon at the officers, the late-arriving officer returned fire without warning,

killing another individual. Ibid. (citing White v. Pauly, 137 S. Ct. 548, 551

(2017) (per curiam)). The Third Circuit further observed that

[i]n reversing the denial of qualified immunity, the

[Supreme] Court stated that "[c]learly established

federal law does not prohibit a reasonable officer who

arrives late to an ongoing police action in

circumstances like [in White] from assuming that

proper procedures . . . have already been followed,"

and that "[n]o settled Fourth Amendment principle

requires that officer to second-guess the earlier steps

already taken by his or her fellow officers."

[Id. at 87 (third and fifth alterations in original)

(quoting White, 137 S. Ct. at 551).]

The Third Circuit concluded that because there is no controlling law to the

contrary, Torrez and Martinez were entitled to qualified immunity. Ibid.

We conclude that collateral estoppel is appropriate in this case as a result

of the Third Circuit's decision in Bland. The CRA claim raised before the

motion judge is identical to the issue now raised because, as previously noted,

our courts analyze qualified immunity under the CRA in the same fashion that

federal courts analyze qualified immunity under Section 1983. Morillo, 222

N.J. at 116; see Suppan, 203 F.3d at 233. Resolving defendants' qualified

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immunity defense was necessary to the Third Circuit's decision in Bland, as

qualified immunity renders defendants immune from suit as to those claims.

Finally, collateral estoppel is being asserted against plaintiffs, who were

parties to the federal action and had a full and fair opportunity to litigate the

issue of qualified immunity. All the elements of collateral estoppel apply to

the present action, and we therefore agree with the motion judge that plaintiffs

are barred from relitigating the issue of qualified immunity.

II.

Having concluded that plaintiffs are collaterally estopped from

relitigating whether defendants are entitled to qualified immunity, we now turn

to plaintiffs' remaining arguments.

Plaintiffs argue that defendants are not entitled to qualified immunity

under the CRA because our Court has previously interpreted the protections of

Article I, Paragraph 7 of the New Jersey Constitution more broadly than the

protections afforded by the Fourth Amendment. Plaintiff provides several

examples of our Court taking a more expansive view of our State

Constitution's protections as compared to the United States Constitution. See,

e.g., State v. Pierce, 136 N.J. 184, 208-09 (1994) (rejecting a blanket rule

permitting warrantless automobile searches incident to all arrests); State v.

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Hempele, 120 N.J. 182, 215 (1990) (establishing a reasonable expectation of

privacy in garbage left curbside under our State Constitution); State v.

Novembrino, 105 N.J. 95, 157-58 (1987) (refusing to adopt the good-faith

exception to the exclusionary rule under our State Constitution); State v. Hunt,

91 N.J. 338, 344-47 (1982) (establishing a reasonable expectation of privacy in

telephone toll billing records); State v. Alston, 88 N.J. 211, 233-35 (1981)

(expanding the criteria for standing to challenge the validity of a search under

our State Constitution); State v. Johnson, 68 N.J. 349, 354 (1975) (requiring

further criteria to demonstrate the validity of a non-custodial consent to a

search under our State Constitution).

We emphasize that an official's entitlement to qualified immunity is

analyzed the same under federal and New Jersey law. See Morillo, 222 N.J. at

107-08. The Third Circuit determined that defendants were entitled to

qualified immunity under the same standard that governs our courts, and we

agree with that conclusion.

Plaintiffs argue Baskin demonstrates that our Court has a "more

expansive view of constitutional protections that must be afforded to plaintiffs

in excessive use of deadly force cases." But unlike the present case, the Court

in Baskin addressed the issue of qualified immunity without a preceding

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federal court decision determining defendants were entitled to qualified

immunity. See 243 N.J. at 125 (noting that the issue before the Court was

"whether [a detective] was entitled to qualified immunity based on the

summary judgment record"). Here, the federal courts have resolved the issue

of qualified immunity, and as previously noted, plaintiffs are estopped from

relitigating the issue in state court. See In re Liquidation of Integrity Ins. Co.,

214 N.J. at 66.

Plaintiffs argue that the Supreme Court's decision in Tennessee v.

Garner, 471 U.S. 1 (1985), established that the defendant's conduct violated a

clearly established constitutional right that officers may not shoot a fleeing

unarmed suspect. But the Third Circuit rejected plaintiffs' reliance on Garner,

noting that Garner "'lay[s] out excessive-force principles at only a general

level' and 'do[es] not by [itself] create clearly established law outside an

obvious case,'" Bland, 900 F.3d at 85 (alterations in original) (quoting White,

137 S. Ct. at 552). And as to whether this is an "obvious case" contemplated

by the Supreme Court, the Third Circuit explained that the present case is

"quite different from the one presented in Garner, where the officer pursued

and shot a nondangerous suspect in the back of the head, even though the

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officer was 'reasonably sure' the suspect was unarmed." Ibid. (quoting Garner,

471 U.S. at 3-4).

Plaintiffs also argue the motion judge erred by finding that defendants

acted in good faith and granting summary judgment as to the assault and

battery and negligence claims. Plaintiffs assert that because the Tort Claims

Act (TCA), N.J.S.A. 59:1-1 to 12-3, claims turn on whether the defendants'

actions were reasonable, the claims must be submitted to the jury.

"A defendant's entitlement to qualified immunity based on objectively

reasonable conduct 'is a question of law to be decided [as] early in the

proceedings as possible, preferably on a properly supported motion for

summary judgment or dismissal.'" N.E. for J.V. v. N.J. Div. of Youth &

Family Servs., 449 N.J. Super. 379, 404 (App. Div. 2017) (alteration in

original) (quoting Wildoner v. Borough of Ramsey, 162 N.J. 375, 387 (2000)).

Public officials are afforded immunity from suit under the TCA when they

"act[] in good faith in the execution of enforcement of any law." N.J.S.A.

59:3-3. We consider "[t]he same standard of objective reasonableness that

applies in Section 1983 actions" to determine whether a public official acted in

good faith under the TCA. Wildoner, 162 N.J. at 387. A public employee acts

with objective reasonableness "if the actor's conduct did not violate a clearly

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established constitutional or statutory right." N.E., 449 N.J. Super. at 405

(citing Gormley, 218 N.J. at 113).

Again, the Third Circuit determined that defendants' actions both at

Lincoln Park and the terminus were reasonable and that they did not violate a

clearly established constitutional right. Bland, 900 F.3d at 84-87. As a result,

the motion judge properly dismissed plaintiffs' assault and battery claim, as

well as plaintiffs' negligence claim. See Canico v. Hurtado, 144 N.J. 361, 366

(1996) (explaining that negligence is insufficient to overcome an officer's

showing of good faith to pierce qualified immunity under N.J.S.A. 59:3-3).

Because the motion judge properly dismissed plaintiffs' CRA, assault

and battery, and negligence claims, we agree that plaintiffs' per quod claim

was properly dismissed as moot. See Kibble v. Weeks Dredging & Constr.

Co., 161 N.J. 178, 190 (1990) (noting that "a per quod claim is derivative of

the injured spouse's personal injury cause of action").

Affirmed.

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