NOT FOR PUBLICATION WITHOUT THE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
A-1800-19
2
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
A-1800-19
3
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.
A-1800-19
4
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.
A-1800-19
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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,
A-1800-19
6
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
A-1800-19
7
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:
A-1800-19
8
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)).]
A-1800-19
9
"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
A-1800-19
10
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,
A-1800-19
11
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
A-1800-19
12
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
A-1800-19
13
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
A-1800-19
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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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