Opposition Brief — Manigault v. King (No. 09-417)

' BIC 3-203

No. 09-417

IN THE

Supreme Court of the United States

CAROL MANIGAULT, Individually and as Administratrix ad

Prosequendum and General Administratrix of the

Estate of Jelani Darren Manigault, Deceased, and

CaroL MANIGAULT and ANDREW MANIGAULT, Individually and

as Parents and Natural Guardian of Jelani Darren Manigault,

Petitioners,

v.

CHRISTOPHER KING, HARRY MARTINEZ, FRED WILLIAMS, JUDD

PETRONE, TOWNSHIP OF PRINCETON, MERCER COUNTY, STATE OF

NEW JERSEY, PRINCETON TOWNSHIP POLICE DEPARTMENT,

PRINCETON TOWNSHIP, JOHN/JANE Dorks 1-10; ABC Corp. 1-10

AND/OR XYZ ENTITIES 1-10,

Respondents.

On PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES Court OF APPEALS FOR THE THIRD CIRCUIT

BRIEF IN OPPOSITION FOR RESPONDENT

HARRY MARTINEZ

DouGLas SANCHEZ

Counsel of Record

J ACQUELINE CURKO

CRUSER, MITCHELL

AND SANCHEZ LLC

One Paragon Drive

Suite 159

Montvale, NJ 07645

(201) 474-7100

Counsel for Respondent

Harry Martinez

1

QUESTION PRESENTED

Did the Third Circuit err when it determined that

given the particular circumstances presented to Harry

Martinez on the date of the subject incident, which

included an armed and dangerous suspect who was in

the process of lunging at a fellow Officer, and viewing

the facts in the light most favorable to the Petitioners,

the use of deadly force was objectively reasonable and

thus not violative of the Fourth Amendment.

i

TABLE OF CONTENTS

etl FRESENIED ..............005:

RPE GAPINEIGINEDS 2......0cccccecceees

TABLE OF CITED AUTHORITIES .........

yg

COUNTER-STATEMENT OF THE CASE ...

A.

B.

Pacuial Dackeround ...................

Proceedings Below .............esee00-

REASONS FOR DENYING THE PETITION ...

I.

II.

III.

The Concurrent Findings Of Both The

District Court And The Third Circuit

Were Not Clearly Erroneous And,

Therefore, Should Not Be Disturbed ...

The Criteria Of Supreme Court Rule 10

rr

Summary Judgment Was Proper As

Officer Martinez’ Actions Were

Reasonable In Light Of The Attendant

I es bes cr ese sesevessees

A. The Qualified Immunity Standard ...

Page

10

1]

13

iil

Contents

Page

SPORE oa 0s 4405 4 Rede 15

i. Officer Martinez’ Conduct Did Not

Violate Jelani Manigault’s Constitutional

POPS ore rr rer ty oan rere er 15

a. Jelaniwas not “stopped in his tracks” and

posed a continuing threat ............. 19

b. It was impossible for the Officers to

diagnose Jelani’s mental health ........ 21

ec. The fact that the Officers came within 21

feet of Jelani does not render their

conduct unreasonable ................. 23

d. The fact that Officer Martinez’ actions

were objectively reasonable is not thrown

into doubt by the fact that his deposition

WAS NOC CONTUCTER gc scr ccceseccescs 25

CAPO SPEIRS 69.006 40950405 8a9 cove lean eS 28

iv

TABLE OF CITEDAUTHORITIES

Page

Cases:

Anderson v. Creighton,

— 6k Bo es arr er 4

Baumgartner v. United States,

Be A EOE) civ icc en vedeunservewess 10

Bodkin v. Edwards,

ee ns ceca eee seueaee evens 10

Carswell v. Homestead,

$81 F.8d. 235 (8™ Cir. 2004) ... 0... cee eens 19

Collins v. City of Harker Heights,

ee Wiis BURIED ocak reat cv cnnessacepes 25

Davis v. Scherer,

ee ee ee OD ns vc ne eve teen sea uneven 25

Graham v. Connor,

GO We, EE) ev veces eesensencseves passim

Groh v. Ramirez,

ee Oy ee GD onc kv se Kae ve cees es aess 13

Harlow v. Fitzgerald,

ie A ED. kg 6 sere hae esse ecto saw 13

Karnes v. Skrutski,

GS Fe G60 Ce Cir LGD) nce ccc ecw cess 14

vy

Cited Authorities

Lamont v. New Jersey,

2009 WL 483899 (D.N.J. 2009) ..

Mace v. City of Palestine,

333 F.3d 621 (5 Cir. 2003) ......

Pearson v. Callahan,

688 U.S. _, 129 S.Ct. 808 (2009)

Reese v. Anderson,

926 F.2d 494 (5 Cir. 1991) ......

Rhodes v. McDannel,

945 F.2d 117 (6 Cir. 1991) ......

Rodriguez v. City of Passaic,

730 F.Supp. 1314 (D.N.J.1990) ..

Saucier v. Katz,

G63e U.S. 104 (2001) ........008,

Siegert v. Gilley,

Pe We, COPA EOE) occ ecccvers

Smith v. Freland.

954 F.2d 343 (6 Cir. 1992) ......

Tennessee v. Garner,

BPE Sey 2 CED ven ce ectsceuees

Young v. City of Killeen,

775 F.2d 1349 (5 Cir. 1985) .....

vi

Cited Authorities

Page

United States Constitution:

EE i, 3, 4

Statute:

i EE oo wk ok ae kNaraekenavedes 1, 8, 25

Rules:

pry eee ae Oa en a ee 26

Supreme Court Rule 10 ................008- 11, 12

1

INTRODUCTION

The petition for certiorari does not raise any

question that warrants review by this Court. The Third

Circuit’s decision does not conflict with the decision of

any other court of appeals. Nor does it conflict with any

decision of this Court. Moreover, the petition utterly fails

to identify an important unresolved question of federal

law that needs to be decided by this Court. Rather, the

petition is premised solely upon what Petitioners

perceive as error in the weight given by the two lower

courts to the clothing worn by Jelani Manigault on the

night in question and the distance the Officers

maintained from Jelani in their efforts to apprehend

him.

In reviewing whether the District Court properly

granted summary judgment in favor of Defendants, the

Third Circuit paid careful attention to the facts of this

case, correctly recognizing that the time period over

which the events transpired was swift and exigent. The

Defendant Officers were confronted in the middle of the

night with a suspect who was armed with a deadly

weapon, who did not respond to their repeated

commands, had previously stabbed another individual

just prior to the Officers’ arrival, and who was in the

process of lunging at another Officer with the apparent

intent to inflict either grievous bodily harm and/or kill

him. Measured against this factual backdrop, the Third

Circuit’s sound determination that the Officers’ conduct

was objectively reasonable does not warrant second

thought.

2

Lacking any case law conflict or other viable

argument for review, Petitioners misstate the impact of

Jelani Manigault’s clothing to support an implausible

claim that the Third Circuit articulated a holding that

threatens a “miscarriage of justice” based on an

asserted error of factual findings. (Pet. at 6). In reality,

the Third Circuit broke no new ground and, in fact,

simply applied a “totality of the circumstances” test,

reasoning that the Officers’ use of deadly force was

objectively reasonable given the precarious situation

which they confronted. This holding was premised on

the well-established principle handed down by this

Court in Tennessee v. Garner, 471 U.S. 1 (1985), which

emphasizes that “the use of deadly force in effecting an

arrest is constitutional when the officer has probable

cause to believe that the suspect poses a threat to the

officer.” Jd. at 11-12, 105 S.Ct., at 1701-1702.

Because the decision of the Third Circuit Court of

Appeals is correct and there is no mature conflict in the

courts of appeals, this Court’s review is not warranted.

Thus, the Petition should be denied.

COUNTER-STATEMENT OF THE CASE

Carol and Andrew Manigault (hereinafter

“Petitioners”) appeal from an Order entered by the

United States Court of Appeals for the Third Circuit

affirming the District Court’s grant of summary

judgment in favor of Defendants in this action brought,

inter alia, under 42 U.S.C. § 1983 (“Section 1983”) for

various alleged deprivations of Jelani Manigault’s

Constitutional rights. (Petitioner’s Appendix A). More

specifically, Petitioners allege that the shooting of Jelani

3

Manigault violated the Fourth Amendment’s guarantee

against unreasonable seizures insofar as it constituted

a “seizure” of Jelani’s person through the use of

excessive force.

There is no genuine dispute in this case about the

relevant historical facts, and the record evidence clearly

establishes four central realities which the Petitioners

do not deny or controvert. First, the Officers confronted

Jelani Manigault in the middle of the night in an area

cloaked in pitch darkness, where the only available light

source came from the Officers’ own flashlights. Second,

Jelani was armed with a bloody knife which he had used

to repeatedly stab Mr. Sword just moments prior to the

Officers’ arrival. Third, Jelani was completely

unresponsive to the Officers’ commands to drop his

weapon. Finally, at the time that Jelani was shot, he was

in the process of lunging at Officer King who was laying

on the ground, knife still in hand, and the three shots

which were fired to counter Jelani’s armed attack upon

Officer King were discharged in rapid succession, if not

virtually simultaneously.

The Petition for Certiorari conveys the impression

that the Third Circuit upheld a decision which neglected

to take into consideration Jelani Manigault’s purported

“mental disturbance” and suggests, if a suggestion it

is, that law enforcement officials should be forbidden

from employing deadly foree in an effort to protect

themselves, as well as innocent bystanders, from the

threat of serious bodily harm and/or imminent death at

the hands of an armed assailant based on esoteric

indicators of mental distress. That is a false impression.

The petition omits key details about the nature of the

4

events that transpired outside of the Swords’ residence,

as well as the conduct of Jelani Manigault. The petition

also misstates the issues raised below and preserved

for review, as well as the findings of the Third Circuit’s

decision.

The Constitutional question presented herein is

governed by the principles enunciated in Tennessee v.

Garner, 471 U.S. 1 (1985) and Graham v. Connor, 490

U.S. 386 (1989). These cases establish that claims of

excessive force are to be judged under the Fourth

Amendment’s “objective reasonableness” standard.

Graham, 490 U.S. at 388. Specifically, in Graham, the

Supreme Court held “that all claims that law

enforcement officers have used excessive force-deadly

or not-in the course of an arrest, investigation stop, or

other ‘seizure’ of a free citizen should be analyzed under

the Fourth Amendment and its ‘reasonableness’

standard, rather than under a ‘substantive due process’

approach.” 490 U.S. at 395.

Furthermore, for liability to attach, the right alleged

to have been violated “must have been ‘clearly

established’ in a more particularized, and hence more

relevant, sense.” Anderson v. Creighton, 483 U.S. 635,

640 (1987). If the law is not established clearly when an

official acts, he is entitled to qualified immunity because

he “could not reasonably be expected to anticipate

subsequent legal developments, nor could he fairly be

said to ‘know’ that the law forbade conduct not

previously identified as unlawful.” Siegert v. Gilley, 500

U.S. 226, 232 (1991).

0

Guided by these fundamental principles, the lower

courts correctly ruled that there was no Constitutional

violation, as the totality of circumstances was such that

Officer Martinez and his fellow Officers were confronted

in the darkness with a suspect brandishing a bloody knife

who was consciously disregarding the Officers’ repeated

pleas to stop and drop his weapon. The encounter was then

brought swiftly to a head, becoming confrontational only

because Jelani chose to make it so by first, stabbing William

Sword, and later charging at Officer King with a knife. In

response, Officers King and Martinez discharged a rapid

sequence of three bullets within a two to three second

window, at most, that ceased once Jelani fell to the ground.

These seconds are critical on appeal because

Petitioners erroneously see them as unfolding only one

way— in slow motion. Notwithstanding this interpretation,

this is a prototypical case where the Officers, faced with

an armed and dangerous suspect, were forced to make

split-second judgments in the heat of the moment. Even if

their assessment of the threat was mistaken, it was not

unreasonable, as they were forced to assess the situation

in the midst of rapidly evolving events in an environment

of extreme tension. Therefore, the District Court’s and

the ‘Third Circuit’s conclusions that Officer Martinez is

entitled to judgment as a matter of law must stand.

A. Factual Background:

On January 23, 2003, the Princeton Township Police

Department reccived a 911 emergency call from a

panicked Mrs. Martha Sullivan Sword, reporting that

an intruder had entered her home. She further reported

that her husband had been stabbed and that he and

6

her brother were engaged in a struggle to defend

against the intruder. Prior thereto, Mrs. Sword was

awoken by the sound of her dogs barking. As she was

getting up, she heard the doorbell ringing. Mrs. Sword

woke her husband, William Sword and informed him that

someone was at the door. They went downstairs together

to see who was at the door. Turning on the outside light,

they observed Jelani Manigault standing outside the

door. As Mr. Sword opened the door, asking if Jelani

needed help, Jelani pushed past them and entered the

home.

As he walked toward the kitchen, Jelani became

very agitated and began to act erratically, proceeding

to rummage through the kitchen drawers and grabbing

an eight (8) inch knife. Without provocation, Jelani

brutally attacked Mr. Sword, stabbing him fourteen (14)

times in total and inflicting eight (8) major wounds.

Screaming, Mrs. Sword ran upstairs to get her brother,

Robert Sullivan.

Mr. Sullivan ran downstairs and began to struggle

with Jelani in an attempt to aid Mr. Sword, who was

covered in blood. Mr. Sullivan put his arm around

Jelani’s throat and lifted him back off his feet. When

Mr. Sword was freed from Jelani, he grabbed a frying

pan and hit Jelani on the head, temporarily knocking

him out. When Jelani came to, he once again had the

knife in his possession. Mr. Sword approached Jelani

from behind and hit him on the head with the pan again.

Somehow Mr. Sullivan was able to usher Jelani

outside. As it turned out, Mr. Sullivan had not locked

the door properly and Jelani re-entered the kitchen with

7

the knife in his possession again. As Jelani began to cut

himself, Mr. Sullivan began to scream at him to get out

of the house as loud as he could. Subsequently, Jelani

walked outside with the bloody knife still in his hand.

Police Officers Christopher King, Harry Martinez,

Frederick Williams and Judd Petrone arrived at the

scene in response the 911 call within minutes of each

other. Upon their arrival, they received a second update

via radio indicating that the male intruder had left the

house and was coming down the driveway. The area

surrounding the home was cloaked in darkness and,

unbeknownst to the Officers, the lawn was unkempt, the

terrain was uneven and the ground was spotted with

protruding tree trunks.

When Sgt. Petrone first observed Jelani, he was

approximately 30 feet away. Sgt. Petrone illuminated

Jelani with his flashlight as it was totally pitch dark. He

positioned himself to the left of Jelani who was covered

in blood, holding a knife up at head level in his right

hand. Officer Martinez was positioned on his right.

At this time, Officer King began to run across the

yard toward Officers Petrone and Martinez. As he

approached, he could hear the Officers repeatedly

pleading for Jelani to drop the knife. Officer King took

up position approximately 20 feet away from Jelani,

equidistant from Officers Martinez and Petrone, but in

between them. As Officer King was closing his distance

from 30 feet to 20 feet, he could hear Officer Martinez

repeating his commands. Jelani’s hands were both raised

above his head and he was pivoting, eventually coming

to a stop facing Officer King.

8

They continued to plead with Jelani to drop his

weapon to no avail. Suddenly and without warning,

Jelani broke into arun toward Officer King. Right before

Jelani began his charge toward Officer King, Officer

King overheard him say “go ahead and kill me,” or

“vou’re going to have to kill me.” Sgt. Petrone looked

to get a shot at Jelani but was unable to because Officer

Martinez was in the line of fire.

Officer King began to retreat backwards but tripped

over a protruding tree stump, falling to the ground. As

Jelani approached, Officer King shouted for him to

“stop.” Realizing that Jelani was not complying and

fearing for his life, Officer King discharged his weapon

once. Jelani then “made a turn almost like he wasn’t

phased or hit. He just made a turn toward another

threat .. . Still standing with the knife up .. .”

Instantaneously, Officer Martinez fired two shots at

Jelani who was now facing his direction. Officer King

testified that he and Officer Martinez fired their

weapons almost at the same time and that the time

between the first and second shots was “well under a

second... asecond wouldn’t even be close, it was almost

the exact same time.” As Officer Williams put it, “[a]s

the first shot was fired, the shots that came after them

happened so quickly.”

B. Proceedings Below

By way of Amended Memorandum and Order dated

August 138, 2008, the District Court, Honorable Anne E.

Thompson, U.S.D.J., granted summary judgment as to

all Defendants on the Section 1983 claim. (Petitioner’s

9

Appendix B). The District Court found that the following

material facts had been established: (1) the Officers

responded to a 911 eall that an intruder had stabbed

someone inside the Sword’s residence; (2) the Officers

encountered Decedent in the front yard of the Sword’s

home; (3) it was dark and the only light came from the

Officers’ flashlights; (4) Decedent’s clothes were blood-

stained and he was holding a knife at the level of his

head; (5) Decedent ignored the Officers’ repeated

commands; (6) Decedent abruptly began to charge

towards Officer King who tripped over a tree stump;

(7) Decedent continued to advance and Officer King

fired his gun while Decedent was approximately 6 feet

away, knife still in hand; (8) almost instantaneously,

Officer Martinez fired two shots at Decedent. Viewing

this evidence in the light most favorable to the

Manigaults, drawing all justifiable inferences in their

favor, and considering the controlling law, the District

Court determined that the Officers’ use of force was

reasonable.

The United States Court of Appeals for the Third

Circuit, Judges Sloviter, Ambro and Jordan, upheld the

District Court’s decision, reasoning that the Officers’

use of deadly force was objectively reasonable given the

circumstances presented to them at the time. Justice

Ambro, writing for the panel, found that at the time

Jelani was shot, he was covered in blood, armed with a

deadly weapon, did not respond to commands and was

in the process of lunging at an Officer who had fallen to

the ground. Contrary to Petitioners’ assertion, the Third

Circuit did consider the facts that Jelani was not wearing

a jacket or shoes and had slit wrists, and determined

that these indicators did not render the Officers’ actions

10

unconstitutional, given the darkness of the scene and

the brief time period in which the events unfolded. On

this score, the Third Circuit held that there were no

genuine issues of material fact that existed over whether

the Officers used deadly force in an objectively

unreasonable manner.

The Menigaults now present this appeal, arguing

there are genuine issues of material fact regarding

the reasonableness of the use of deadly force in

the aforementioned circumstances. However, the

undisputed facts unequivocally establish the heightened

immediacy of the threat the Officers faced. Given these

facts, the District Court and the Third Circuit properly

concluded that it was reasonable as a matter of law for

Officer Martinez to use deadly force in light of the

substantial risk created by Jelani Manigault’s violent

and uncooperative behavior.

REASONS FOR DENYING THE PETITION

I. The Concurrent Findings Of Both The District

Court And The Third Circuit Were Not Clearly

Erroneous And, Therefore, Should Not Be

Disturbed

Much to their disdain, both lower courts below

decided against the Petitioners. However, to accept writ

would be an unjustified departure from the long-

established practice not to reverse findings of fact

concurred in by two lower courts unless shown to be

clearly erroneous. Bodkin v. Edwards, 255 U.S. 221

(1921); see also Baumgartner v United States, 322 U.S.

665 (1944). An examination of the evidence in this case

1]

not only fails to disclose such clear error but, on the

contrary, wholly supports the conclusions of the lower

courts by a clear preponderance.

II. The Criteria Of Supreme Court Rule 10 Are not

Satisfied

This Court has complete discretion to determine

whether to grant a petition for certiorari, however,

generally a party petitioning for a writ must be able to

demonstrate that:

(a) a United States court of appeals has

entered a decision in conflict with the decision

of another United States court of appeals on

the same important matter...

(b) astate court of last resort has decided

an important federal question in a way that

conflicts with the decision of another state

court of last resort or of a United States court

of appeals; [or]

(c) a state court or a United States court

of appeals has decided an important question

of federal law that has not been, but should

be, settled by this Court, or has decided an

important federal question in a way that

conflicts with relevant decisions of this Court.

Supreme Court Rule 10.

12

In the instant matter, a fair reading of the petition

reveals that none of the Rule 10 criteria have been met.

While Petitioners characterize this situation as one

involving a “miscarriage of justice,” they wholly fail to

demonstrate how the Third Circuit rendered a decision

that is in clear disconnect with the decision of another

circuit court on the same matter and based on the same

facts presented here. Quite to the contrary, the Third

Circuit’s holding is directly on par with various decisions

by other circuits which hold that an officer’s conduct

which makes the need for deadly force more likely does

not constitutionally disable the officer from later using

deadly force to defend himself. See, e.g., Young v. Crty

of Killeen, 775 F.2d 1349 (5 Cir. 1985); Rhodes v.

McDannel, 945 F.2d 117 (6 Cir. 1991); Reese v.

Anderson, 926 F.2d 494 (5" Cir. 1991); Mace v. City of

Palestine, 333 F.8d 621 (5'" Cir. 2003). These examples

are a mere sampling of countless cases which all support

the general principle that an officer may reasonably use

deadly force when he or she confronts an armed suspect

in close proximity whose actions indicate an intent to

attack.

The other Rule 10 criteria are also absent. The New

Jersey Supreme Court did not decide an important

federal question, let alone decide it in a way that

conflicts with the rulings of the high court of any other

state, or of any United States court of appeals.

Additionally, there is no important question of federal

law for this Court to settle. As such, the petition for

certiorari should be denied.

13

HI. Summary Judgment Was Proper As Officer

Martinez’ Actions Were Reasonable In Light Of

The Attendant Circumstances

A. The Qualified Immunity Standard

This case implicates anew the question of whether

and under what circumstances a Police Officer is afforded

immunity while acting during the scope of employment.

The resolution of this purely legal question turns on

whether the conduct of which a plaintiff complains

violated clearly established statutory or Constitutional

rights of which a reasonable person would have known.”

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Immunity

attaches regardless of whether the government official’s

error is “a mistake of law, a mistake of fact, or a mistake

based on mixed questions of law and fact.” Groh v.

Ramirez, 540 U.S. 551, 567 (2004).

In Saucier v Katz, the Supreme Court mandated

the familiar two-step sequence for resolving qualified

immunity claims. 533 U.S. 194 (2001). Because the

question of whether an officer is entitled to qualified

immunity is distinct from whether he used unreasonable

force to begin with, the Supreme Court in Saucier

articulated a new framework for analyzing qualified

immunity claims. First, a court must decide whether the

facts that a plaintiff has established are sufficient to

make out a violation of a Constitutional right. Jd. at 201.

If the plaintiff fails to make out a Constitutional

violation, the qualified immunity inquiry is at an end;

the officer is entitled to immunity.

14

If evidence of a Constitutional violation has been

adduced, Courts evaluating a qualified immunity claim

move to the second step of the analysis: to determine

whether the Constitutional right was clearly established.

Id. at 199. To be “clearly established” for purposes of

qualified immunity, the contours of the right must be

sufficiently clear such that a reasonable official would

understand that what he is doing violates that right.

Karnes v. Skrutski, 62 F.3d 485, 492 (8™ Cir. 1995). That is,

in the factual scenario established, would a reasonable

officer have understood that his actions were prohibited?

If it would not have been clear to a reasonable officer what

the law required under the facts alleged, he is entitled to

qualified immunity. Officers who make reasonable mistakes

as to what the law requires are entitled to qualified

immunity. Saucier, 533 U.S. at 205.

Recently, the Supreme Court jettisoned this two-step

approach in Pearson v. Callahan, 588 U.S. _, 129 S.Ct.

808 (2009). In Pearson, the unanimous Court held that the

order of the analysis laid out in Sawcier “should not be

regarded as mandatory.” /d. at 818. Instead, lower courts

may use their discretion to skip to the second question

and avoid the Constitutional decision altogether. By noting

that in many instances a court need not reach whether a

Constitutional violation is alleged to determine if qualified

immunity is appropriate, the Pearson Court stated that

the first prong “sometimes results in a substantial

expenditure of scarce judicial resources on difficult

questions that have no effect on the outcome of the

case.” /d. Thus, courts are permitted to decide “which

of the two prongs of the qualified immunity analysis

should be addressed first in light of the circumstances

in the particular case at hand.” /d.

15

So guided, summary judgment may be upheld here

without ever addressing the Constitutional question,

by virtue of the fact that the alleged unlawfulness of

Officer Martinez’ conduct in light of the attendant

circumstances was not readily apparent, and thus not

violative of clearly established law. However, because the

parties briefed and both the District Court and the Third

Circuit decided the case at hand in pre-Pearson fashion, it

makes sense to adhere to a sequential mode of analysis

here. We therefore face two questions: (1) whether Officer

Martinez’ conduct violated Jelani’s Constitutional rights,

and if so, (2) whether those rights were clearly established

at the time of the shooting’.

ANALYSIS

i. Officer Martinez’ Conduct Did Not Violate Jelani

Manigault’s Constitutional Rights

In Graham v. Connor, the Supreme Court outlined

the standard governing the right to be free from excessive

force. 490 U.S. 386 (1989). The test is an objective one,

which scrutinizes the reasonableness of the challenged

conduct. /d. at 395. This “reasonableness” inquiry takes

into account only the facts and circumstances known to

the government actor at the time of his or her action.

Rodriguez v. City of Passaic, 730 F. Supp. 1314 (D.N.J.

1990). In other words, for a court to determine the

1. Because there was no Constitutional violation, we do

not need to address the second prong of the qualified immunity

analysis. Respondents do note, however, that a determination

that the force used by Officer Martinez was excessive and thus

violated Jelani’s Constitutional rights would not end the

qualified immunity inquiry.

16

reasonableness of an officer’s action, it “must stand in his

shoes and judge the reasonableness of his actions based

upon the information he possessed and the judgment he

exercised in responding to that situation.” Jd. Knowledge

of facts and circumstances gained by the officer after the

completion of the act is irrelevant to a determination of

the reasonableness of that officer’s judgment vis-a-vis the

conduct at issue. /d.

Because police officers are often forced to make split-

second judgments in “circumstances that are tense,

uncertain, and rapidly evolving, the amount of force that

is necessary in a particular situation, and the

reasonableness of the officer’s belief as to the

appropriate level of force, should be judged from that

on-scene perspective.” Graham, 490 U.S. at 396-397.

With these considerations in mind, the Graham Court

fashioned a test that cautioned against the “20/20 vision

of hindsight” in favor of deference to the judgment of

reasonable officers on the scene. /d.

Chief Justice Rehnquist explained that the test of

reasonableness in this context “requirles] 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.” /d. at 396. Thus, pursuant to Graham, we

must avoid substituting our personal notions of proper

police procedure for the instantaneous decision of the

Officers at the scene. We must never “allow the

theoretical, sanitized world of our imagination to replace

the dangerous and complex world that police officers

17

face every day.” Smith v. Freland, 954 F.2d 348, 347

(6'" Cir. 1992).

On this score, it is prudent to understand the

dangers and limitations imposed upon officers when

confronting a suspect with a weapon. What constitutes

reasonable action may seem quite different to someone

like Officer Martinez, facing an armed assailant, than

to someone analyzing the question at leisure. In a very

real sense, a police officer on the scene must make an

instantaneous call in close cases. The range of

permissible action must accommodate marginal cases

sufficiently that fear of potential civil liability does not

induce paralysis of action. Measured against these

standards, it is beyond question that Officer Martinez’

actions were objectively reasonable.

Contrary to Petitioners’ implication, it is undisputed

that it took no more than mere seconds from the time

Jelani charged Officer King to the time that all three

shots were fired. Officer King recalled that he and

Officer Martinez fired their weapons almost at the same

time and that the time between the first and second

shots was “well under a second.” He further stated that

“La] second wouldn't even be close, it was almost the

exact same time.” Likewise, both Officers Petrone and

Williams stated that the three gunshots came within split

seconds of each other. As Officer Williams put it, “[a]s

the first shot was fired, the shots that came after them

happened so quickly that I really- you know, there wasn’t

like a span of time between the first shot where I could

get a mental picture of what was going on.”

18

The Manigaults discount the celerity with which

these events unfolded. However, the crux of the matter

is that it appeared to all who had a view of Jelani at the

relevant time that he was an out-of-control individual.

The very real danger the Officers perceived was

immediately intensified when Jelani lunged at Officer

King with the knife in an apparent attempt to cause him

physical harm. Because the use of firearms is so

commonplace nowadays, the destructive potential of

edged weapons is far from appreciated, resulting in the,

“He’s only got a knife” mentality. When an armed

suspect charges, the entire scenario will transpire in an

incredibly short period of time, as here, and the

techniques used to counter the attack must be clean

and decisive. A seemingly insignificant puncture wound

can result in significant blood loss that anyone short of

a surgical staff on site would be powerless to abate.

Based on his years of training and expertise, upon

observing Jelani charge toward Officer King and

subsequently turn and face him still holding the knife

in the air, Officer Martinez was left with no choice but

to discharge his weapon.

At the same time, Officer Martinez had to concern

himself not only with Jelani’s level of threat, but with

the background of his target, the “use-of-force”

continuum, shot placement, communication with the

suspect as well as the other Officers, and control of

Jelani’s advancement upon Officer King, who was down

on the ground, scrambling in the darkness. Rejecting

the “vision of hindsight” so condemned by the Grakam

Court, it is evident that any lapse in response by Officer

Martinez may well have rendered the situation

catastrophic.

19

Although the events which form the basis for this

lawsuit are, indeed, tragic, we cannot fail to look past

the fact of the shooting to the danger any reasonable

person would have believed Jelani posed on that

rugged, wooded landscape in the middle of the night.

Certainly with the luxury of hindsight one can parse each

discrete act within those mere seconds and analyze each

as if under a microscope. However, one must not lose

sight of the fact that Officer Martinez had no such luxury

and was forced to act in the blink of an eye. In this

regard, the District Court properly noted that it was

“mindful that its ‘recitation of events is a discussion in

slow motion of an incident that took place in a matter of

seconds.” (citing Carswell v Homestead, 381 F.3d. 235,

240 (3 Cir. 2004) (Appendix B). Keeping in mind that a

threat that may seem inappreciable in retrospect may

appear more substantial to an officer whose own life or

safety is at stake, there is no doubt that the force used

by Officer Martinez was objectively reasonable.

However, Petitioners posit that the Officers’ use of force

was excessive notwithstanding this factual backdrop.

Their argument comprises four separate parts. We

address each in turn:

a. Jelani was not “stopped in his tracks” and

posed a continuing threat

The Court must reject the Petitioners unfounded

allegations that the shooting was unreasonable since

‘“Jelani did not pose a threat to anyone” after the first

bullet fired by Officer King, as this assertion is squarely

at odds with the sworn testimony of Officers King,

Petrone and Williams. While Courts have, on occasion,

recognized that an officer’s use of deadly force, which

20

may initially be reasonable, may become unreasonable

as the course of events unfolds, this is not one of those

situations. That multiple shots were fired does not

suggest the Officers shot excessively as much as it

indicates that they sought to ensure the elimination of

a deadly threat.

Officer Petrone testified that he could not tell where,

if anywhere, the first shot struck Jelani and that, in fact,

he did not observe Jelani double over or bend at the

waist. Officer Petrone stated that Jelani “made a turn

almost like he wasn’t phased or hit. He just made a

turn toward another threat... Still standing with

the knife up...” In actuality, Jelani had merely turned

in the direction of another Officer, to wit, Officer

Martinez. To be sure, Officer Petrone was attempting

to maneuver himself into a position where he too “could

take a shot.” Had Officer Martinez not been in Officer

Petrone’s line of fire, Officer Petrone would have

discharged his weapon as well.

As there are no conflicting accounts of Jelani’s

whereabouts or his menacing acts, there are only

witnesses, the ones closest to the action, who all saw

Jelani charge toward Officer King with his knife in the

air, there is no genuine issue as to whether the threat

posed by Jelani had ceased at the time that all three

shots were fired.

21

b. It was impossible for the Officers to diagnose

Jelani’s mental health

Petitioners make much of the fact that Jelani was

not wearing a jacket and/or shoes at the time of the

encounter and that he had slit wrists, devoting a

considerable portion of their petition urging that the

Officers should have, somehow, diagnosed Jelani as a

“mentally and emotionally disturbed man.” To accept

such a proposition would wholly remove this case from

any semblance of rationality.

Without much belaboring the point, even if Jelani

had cuts on his wrists, none of the Officers observed

same at any point prior to the shooting. Likewise, the

Officers did not observe that Jelani was without shoes,

as they were, for obvious reasons, not focused on his

feet in the pitch darkness. It was not until after the

shooting that any Officer observed slits on Jelani’s

wrists or discerned whether Jelani was wearing shoes.

Even assuming, arguendo, that the Officers had

made these observations, the decisive factor weighing

against the Petitioners’ argument is that the Officers,

in responding to an emergency situation, are not making

clinical determinations about an individual’s mental well-

being based solely on the fact that he may not be wearing

a jacket and/or shoes. From the diagnostic standpoint

alone, legitimate manifestations of mental illness are not

likely to be in this form. Even if they were, same would

not defeat the reasonableness of the Officers’ actions

in response to the lethal threat posed by Jelani.

See Lamont v. New Jersey, 2009 WL 483899 (D.N.J. 2009)

(where the fact that plaintiff was in sweatpants and

22

shoeless did not create an issue of material fact as to

the defendant officers’ decision to use deadly force).

Moreover, none of the Officers, save for Officer King,

ever heard Jelani say anything along the lines of “kill

me, kill me.” Only Officer King testified that Jelani made

a comment, which was either “go ahead and kill me,” or

“you're going to have to kill me.” But at the moment

that sentence ended is when Jelani charged, giving

Officer King no time to even process these words. The

Petitioners’ allegations do not at all take into account

that the Officers were in the dark, dense woods, relying

on their flashlights for visibility, facing an armed and

bloody Jelani who had stabbed an innocent homeowner

just minutes prior thereto, and he refused to voluntarily

surrender his weapon.

Notably, Dr. Weinapple, Jelani’s psychiatrist,

discharged him from Princeton Medical Center without

any medication and without any diagnosis of mental

illness. If a licensed medical practitioner, whose field of

expertise is assessing mentally and emotionally

disturbed individuals, did not find Jelani to be mentally

disturbed, the notion that Jelani’s purported mental

disturbance should have been “obvious” to the Officers

is illogical.

This is not a situation where the Officers failed to

use any judgment and immediately fired without

attempting to defuse the situation. Rather, the Officers

testified that they would have maintained their

positions and attempted to reason with Jelani for an

indefinite period of time had he not charged Officer

King with a weapon. Therefore, giving due regard to

23

the pressures faced by the Officers, it is unreasonable

to suggest that they should have disregarded the

obvious dangers presented.

c. The fact that the Officers came within 21 feet

of Jelani does not render their conduct

unreasonable

Another issue raised by the Petitioners which the

Court must equally reject is that the Officers allegedly

did something that was tactically incorrect in their

approach that contributed to the need to use deadly

force, namely, by coming within 21 feet of Jelani. The

fallacy in this argument lies in the fact that the

Petitioners have consistently gravely distorted what has

come to be known as the “21-foot rule.”

There is absolutely no “policy” that mandates that

the Officers must maintain any specific distance from

an armed suspect. The “21-foot rule” is a “reaction time”

calculation fairly standard in law enforcement training,

which states that, in the time it takes the average officer

to recognize a threat, draw his sidearm and fire 2 rounds

at center mass, an average subject charging at the

officer with a knife or other cutting or stabbing weapon

can cover a distance of 21 feet. There is no authority in

any jurisdiction, however, for the proposition that

coming within 21 feet of a suspect ipso facto creates a

cause of action for a Constitutional violation.

This distance should only be referenced as a very

loose guideline, naturally subject to limitations and

exceptions. In reality, all street officers must, by the very

nature of their assignment, cluse the distance to a

24

suspect in order to control the situation. Each situation

confronted is going to be different with unforeseen

variables. Officers need the latitude to evaluate the

situation in their, as well as the public’s, best safety

interests. If there must be error, it is far better to err in

the favor of one’s survival when faced with a suspect

with a knife that has the present ability and

demonstrated intent to use it, than to ask an officer to

hold fire in order to ascertain whether the suspect will,

in fact, injure or murder the officer. The high numbers

of officer mortalities in recent years illustrate the

unreasonableness of such a notion. As noted by the

Graham Court, the “public interest may be better

served by action taken ‘with independence and without

fear of consequences.” 490 U.S. at 819.

Moreover, when referring to distances, the Officers’

actions are invariably going to be a reaction to the

suspect’s behavior. What the Petitioners fail to point out

is that the Officers took up position around Jelani at

approximately 20 feet. It was Jelani who closed the

distance by charging at Officer King. Under these

circumstances, it is hard to imagine what choice Officer

Martinez and his fellow Officers had but to react as they

did.

Even if the Court assumes that the Officers violated

proper procedures by narrowing their perimeter, this

alleged breach does not suffice to overcome qualified

immunity, as the act that justified the shooting was

Jelani charging at Officer King. As Jelani created the

situation that ostensibly warranted the use of deadly

force, there is no triable issue of material fact in this

regard. Indeed, the Third Circuit thoroughly considered

25

Petitioners’ claims vis-a-vis the distance within which

the Officers came toward Jelani and reasoned that, even

assuming there to have been an abandonment of

protocol, this could not form the basis for a remedy under

42 U.S.C. § 1983 or deprive the Officers of qualified

immunity. Relying on this Court’s decisions in Collins v

City of Harker Heights, 503 U.S. 115 (1992) (holding that

§1983 does not provide a remedy if there is no violation

of federal law) and Davis v Scherer, 468 U.S. 183 (1984)

(noting that officials do not lose qualified immunity

where they violate administrative directives), the Third

Circuit appropriately determined that the Officers did

not violate Jelani’s Constitutional rights.

d. The fact that Officer Martinez’ actions were

objectively reasonable is not thrown into

doubt by the fact that his deposition was not

conducted

Lastly, Petitioners argue the deposition of Officer

Martinez was not conducted, thus there remains a

genuine issue of material fact which was not given due

deference by the lower courts. The extent to which this

argument lacks merit need not be addressed at length’*.

It is not enough to pose philosophic doubts

regarding the conclusiveness of undisputed evidentiary

2. Officer Martinez was not produced for deposition due

to medical reasons as determined by the Honorable John J.

Hughes, U.S.M.J. An Order dated February 28, 2008 permitted

a Rule 35 Independent Medical Examination (IME) if

Petitioners sought to dispute the conclusions contained in the

narrative medical report prepared by Officer Martinez’

physician. No IME was ever conducted.

26

facts. Whatever impressions Petitioners hope to elicit

through Officer Martinez’ deposition testimony are

inconsequential to the resolution of this matter.

Petitioners argue as if there were a mens rea to be

established in this case. However, because the relevant

test in this case is whether Officer Martinez’ use of force

was objectively reasonable in light of the circumstances

confronting him, the focus is on the viewpoint of a

reasonable police officer in his position, and his

intentions or subjective impressions are wholly

irrelevant. Considering the already large record

compiled, which includes Officer Martinez’ voluntary

statement, the absence of a Rule 56(f) affidavit, the

irrelevance of the discovery request, and the conjectural

nature of the Petitioners’ contentions, the Third Circuit

did not err in upholding the motion for summary

judgment and deciding in Officer Martinez’ favor.

This decision is consistent with binding high court

precedent, which states:

[T]he question is whether the officers’ actions

are “objectively reasonable” in light of the

facts and circumstances confronting them,

without regard to their underlying intent

or motivation. An officer’s evil intentions will

not make a Fourth Amendment violation out

of an objectively reasonable use of force; nor

will an officer’s good intentions make an

objectively unreasonable use of force

constitutional.

Graham, supra, 490 U.S. at 397, 109 S.Ct. 1865.

Illustrative of this point is the Fifth Circuit’s decision in

27

Mace v Palestine, 333 F.3d 621 (5 Cir. 2003), in which

the court held it was improper to consider the defendant

Officer’s subjective intent as evidence of whether a

reasonable officer could have perceived a threat of

danger to himself or others in the circumstances before

him.

It is undisputed that Jelani was agitated and

brandishing a knife. Jelani did not respond to commands

to drop his knife. The record evidence is also

uncontradicted that when he was shot, Jelani was

raising his knife toward the officers. The record further

shows that this event took place in the darkness and on

rough terrain, which limited the Officers’ ability to

retreat or to keep Jelani from harming others in the

area. Based on the foregoing, it was objectively

reasonable for Officer Martinez to make the split-second

determination that Jelani posed a threat of serious

physical harm and that deadly force was necessary. Any

purportedly disputed fact issues are, thus, immaterial

because their resolution would not alter the ultimate

conclusion.

28

CONCLUSION

While the loss of any life is regrettable and even

heartbreaking, the core uncontested details of this case

reveal an encounter where the use of deadly force was, as

sad as the outcome might be, imperative and, thus,

objectively reasonable. The law does not require a

reasonable officer to await physical harm before taking

self-protective action; by then, it is often too late to take

safety precautions. The only objectively reasonable

response in this situation was to use deadly force.

The Third Circuit correctly stated the applicable rules

of law and its rationales and properly concluded that the

Defendants’ actions were objectively reasonable. The

Circuit Court’s unwillingness to find the existence of a

material issue of fact based on nothing more than Jelani’s

clothing and Petitioner’s inability to gauge Officer

Martinez’ subjective impressions cannot be described as

a conflict with the decisions of any other circuit court or

any other decision of this Court. The Third Circuit did not

ignore, or otherwise faii to accord appropriate respect to,

a controlling decision of this Court. Nor is this the situation

where an intervening decision of this Court created a

conflict with a previousiy issued court of appeals decision

that was not yet final. The petition also fails to establish

that this case presents an important question of federal

law that has not yet, but should be, resolved by this Court.

Petitioners’ asserted error consists solely of purported

erroneous factual findings. Such a plea is, in all events,

antithetical to the principles of judicial restraint that guide

this Court’s exercise of certiorari jur‘sdiction. Even if a

mere plea for error correction could justify granting

certiorari, the petition fails because the Third Circuit’s

decision was plainly correct.

29

Finally, even if the question presented in the petition

could be said to have some general significance, in the

abstract (and it does not), as to how law enforcement

officials should apprehend “mentally distraught”

individuals, resolution of this question is adequately

analyzed by the objective reasonableness standard set

forth in Graham and its progeny. A suspect’s mental

condition is simply but one factor to be considered in

the totality of circumstances test. This case involves

nothing more than a straight-forward application of

established legal principles. To be sure, the frequency

with which the question presented here has arisen and

been decided by this Court makes clear that this issue

need not be addressed again. Accordingly, Officer

Martinez was entitled to qualified immunity and the

petition for a writ of certiorari should be denied.

Respectfully submitted,

DOUGLAS SANCHEZ

Counsel of Record

JACQUELINE CURKO

CRUSER, MITCHELL

AND SANCHEZ LLC

One Paragon Drive

Suite 159

Montvale, NJ 07645

(201) 474-7100

Counsel for Respondent

Harry Martinez