298 F.3d 271 (3rd Cir. 2002), 01-1093, Curley v. Klem

Docket Nº:01-1093.
Citation:298 F.3d 271
Party Name:Corvet CURLEY; Elaine Curley, Appellants, v. Ronald KLEM, a Police Officer sued in his individual capacity; John Doe; Bill Doe, two currently unknown Police Officers also sued in their individual capacities.
Case Date:August 02, 2002
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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298 F.3d 271 (3rd Cir. 2002)

Corvet CURLEY; Elaine Curley, Appellants,

v.

Ronald KLEM, a Police Officer sued in his individual capacity; John Doe; Bill Doe, two currently unknown Police Officers also sued in their individual capacities.

No. 01-1093.

United States Court of Appeals, Third Circuit

August 2, 2002

Argued Sept. 28, 2001

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[Copyrighted Material Omitted]

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David S. Gould (argued), Steven L. Salzman, New York, NY, for Appellants.

Leonard C. Leicht (argued), Morgan, Melhuish, Monaghan, Arvidson, Arbutyn & Lisowski, Livingston, NJ, for Appellee.

BEFORE: ROTH, AMBRO and FUENTES, Circuit Judges.

OPINION

FUENTES, Circuit Judge.

This is an appeal from a grant of summary judgment dismissing plaintiff's complaint on the ground that the defendant was shielded from liability by the doctrine of qualified immunity. The defendant, Ronald Klem, a New Jersey State Trooper, shot and seriously injured Corvet Curley, a Port Authority Police Officer, when he mistook Curley for an armed criminal suspect. Klem had been chasing a "tall black male" who had fled in a car after

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murdering a police officer. The chase ended on the George Washington Bridge where, after colliding with another vehicle, the suspect shot himself to death. Moments later, Klem arrived at the toll plaza still in pursuit of the suspect. In response to a radio transmission about the chase, Curley, dressed in a standard Port Authority police uniform, also arrived at the plaza. Two witnesses at the scene recognized Curley to be a police officer. Klem, claiming to see a "tall thin black male" with a gun aimed at him, fired his shotgun at Curley.

Alleging violations of his constitutional rights and New Jersey law, Curley brought this 42 U.S.C. § 1983 action against Klem, who invoked the protection of qualified immunity. On cross motions for summary judgment, the District Court dismissed all of Curley's claims, concluding that Klem's conduct was objectively reasonable and, thus, Klem was shielded by the qualified immunity doctrine.

In light of the disputed historical facts pertinent to determining the objective reasonableness of Klem's conduct, we will reverse the grant of summary judgment in favor of Klem and remand for further proceedings.

I.

At approximately 8:30 p.m., on November 20, 1997, Klem received a radio transmission while on duty advising that a police officer had been shot and killed in Long Branch, New Jersey and that the suspect had fled the scene in the murdered officer's patrol car. The transmission further reported that the suspect had subsequently fired shots at a state trooper on the Garden State Parkway.

Shortly thereafter, Klem received another radio message, this time from State Trooper Michael Michie. According to Curley, Michie stated that the suspect was a "tall, black male" and that he had now carjacked a green Toyota Camry. Klem claims that Michie described the suspect as a "thin, black male."

The suspect, Deon Bailey, had stolen the green Camry at the Interchange 10 rest area of the New Jersey Turnpike. He then continued north on the Turnpike toward the George Washington Bridge. Klem was positioned near the Turnpike's Interchange 14 when he first saw Bailey, who by this point was being pursued by Troopers Robert Mosher and Ronald Drayton. At his deposition, Klem testified that he was aware that they were pursuing a single perpetrator who had shot a police officer in Long Branch and was fleeing north in a series of stolen cars. Mosher was in the lead car closest to Bailey, Drayton was in the second car, and Klem followed close behind them. Mosher advised the other Troopers by radio that Bailey was shooting at him. As the chase continued, one of Bailey's bullets struck Klem's front windshield. Eventually, Mosher dropped out of the chase, fearing that he had been injured by one of Bailey's shots, and Klem became the lead Trooper. Klem and Drayton followed Bailey to the upper level toll plaza of the George Washington Bridge, where Bailey then swerved toward the toll lane farthest to the left. Klem saw Bailey's vehicle stop just beyond the tollbooths but did not know why it had stopped. Later, it became clear that the Camry had stopped because it had collided with a Nissan Pathfinder.

According to Klem, he did not see any other law enforcement officers in the area at the time the Bailey vehicle had stopped. He then took his shotgun, exited the vehicle, and approached the Camry with his shotgun at hip height. The lights and siren from his car remained active. Klem contends that, while moving toward the

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Camry, he saw a toll collector signal him with rapid arm motions toward the center of the toll plaza, where Curley happened to be. Curley argues that the toll collector, Tyrone Jenkins, was simply directing him toward the Camry.

Klem testified that when he reached the passenger side window of the Camry, at about 9:25 p.m., he looked in but could see no one. In contrast, Curley contends that Klem could not have looked through the window because, otherwise, he would have seen that Bailey's dead body was sprawled across the front seat. Bailey had committed suicide inside the Camry by firing a bullet into his mouth. Chris Freader, a toll collector who had previously stepped out of his tollbooth after the Camry had crashed into the Pathfinder, testified that he had no difficulty seeing Bailey's body inside the Camry. Trooper Drayton, who arrived on the scene soon after Klem, reported that he did not see Klem look into the Camry from the passenger side.

Klem states that, as he turned toward the center of the plaza, he saw a tall, thin, black male in a three point stance with a gun pointed directly at him, and that he believed that man to have been the fleeing suspect. 1 The man with the gun, however, was actually Curley, a Port Authority police officer who had come to the scene in response to a radio transmission he had received about the Bailey chase. Curley is 6 feet 4 inches tall, weighs 174 pounds, and is black. Curley contends that his gun was only pointed in the direction of the Camry, and that he was not aiming it at anybody or anything. Freader said that he did not see Curley aim his gun at Klem or position himself in the three point stance described by Klem. Thomas Mulligan, a motorist who was present at the scene, also testified that he never saw Curley take a three-point stance or aim his gun at anyone.

Curley was wearing his Port Authority police uniform, which includes a police belt, a large, yellow-rimmed police patch on the shoulder, a silver chest badge, a navy blue shirt, a black tie, and a standard navy blue police jacket. Like Klem, he was not wearing his police hat. Klem maintains that Curley's clothing was dark and that he could not tell that Curley was wearing a uniform of any kind. Klem admitted, however, that there was sufficient light for him to see that Curley was a light-skinned black male. Freader, who was standing farther away from Curley than was Klem, claims that he had no difficulty identifying Curley's uniform as that of a police officer. Mulligan also testified that he recognized Curley as a police officer upon seeing him in his uniform.

Immediately after seeing Curley, Klem did not shoot his weapon at him. Asked later why he failed to shoot when Curley's gun was allegedly pointed directly at him, he explained that he "had froze in fear." From this point on, Klem and Curley offer dramatically different accounts of what transpired. Klem claims that, after a few seconds passed, he screamed for Curley to drop his gun, that Curley responded by bringing his hands down and peddling back towards the Pathfinder for cover, and that he finally shot Curley after Curley had raised his arms up and down three or four times. Klem contends that Curley had partial cover behind the Pathfinder when he shot him, and that he had shouted for Curley to drop his gun several times before shooting. Klem insists that "both arms were up outstretched in front of

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him." Immediately after Klem shot Curley, he heard someone yell that he had just shot a cop.

In contrast, Curley claims that he did not hear or even see Klem at any time prior to getting shot by him. He explains that he had run about halfway to the Camry, which was about 25 to 30 feet away, realized he had no cover from a potential attack by the suspect, and then began to peddle back so that he could find cover behind his open car door. According to Curley, just as he began moving towards his car, standing out in the open about midway between the Pathfinder and the Camry, he was struck down by Klem's shotgun. He claims that he never got in a three point stance, never pointed his gun at anyone, and never raised his arms up and down as Klem describes. Curley does admit, however, that he approached the Camry with his gun extended in front of him and held with both hands.

Both Trooper Drayton and Mulligan testified that they did not see Curley raise his arms up in the manner described by Klem. Mulligan and Freader claimed that, at the moment of the shooting, Curley's gun was down at his side and not pointed at anyone. Drayton, Mulligan, and Freader all testified that they did not see Curley in a three point stance aiming his...

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