Brown v. Mount Laurel Twp., Civil Action No. 13-6455

• Decision Date: 21 September 2016
• Docket Number: Civil Action No. 13-6455
• Parties: DENNIS K. BROWN, et al., Plaintiffs, v. MOUNT LAUREL TOWNSHIP, et al., Defendants.
• Court: U.S. District Court — District of New Jersey

DENNIS K. BROWN, et al., Plaintiffs, v. MOUNT LAUREL TOWNSHIP, et al., Defendants.

Civil Action No. 13-6455

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

September 21, 2016

Hon. Joseph H. Rodriguez

OPINION

Plaintiffs Dennis Brown (in his own right and on behalf of the Estate of David Brown) and Dorothy Brown (in her own right and on behalf of the Estate of David Brown) (collectively Plaintiffs), bring this civil rights complaint naming several members of the New Jersey State Police and others and members of the Mount Laurel Township Police Departments Defendants.¹ Currently before the Court are five motions. Both the StateDefendants and the Mount Laurel Defendants move, separately, to dismiss the Second Amended Complaint pursuant to Fed. R. Civ. P. 12(b)(6). State Defendants move, pursuant to L. Civ. R. 5.2(e), to seal certain documents attached to its brief in support of its motion. Plaintiffs move to dismiss State Defendants' motion to dismiss and separately seek permission to file a sur-reply in opposition to State Defendants' motion to dismiss.²

The Court held a hearing on September 12, 2016 at which time the Court granted the motion to seal and granted the Defendants' motions as to Plaintiffs' claims against the individual Defendants in their official capacities. For the reasons expressed on the record that day and for those that follow, State Defendants' motion to seal is granted, State Defendants' Motion to Dismiss is granted in part and denied in part, Mount Laurel Defendants' Motion to Dismiss is granted in part and denied in part and Plaintiffs' Motions to dismiss and for permission to file a sur-reply are, respectively, denied and dismissed as moot.

I. General Background

Plaintiffs allege that from the late evening of October 27, 2011 into the morning of October 28, 2011, members of the New Jersey State Police, and several members of the Mount Laurel Police Department were involved in astand-off type situation with the deceased, David Brown ("Decedent"). The incident began when Decedent's telephone conversation with his brother Harry Brown caused Harry concern that Decedent was suicidal. (Second Amended Complaint "SAC" ¶68). Harry spoke with their mother, Dorothy Brown, and Dorothy spoke with Decedent by phone. Id. at ¶69. When Harry went to his brother's residence at some point before midnight, Decedent answered the door carrying a .38 caliber pistol. Id. at ¶71. The brothers watched television and Harry coaxed Decedent into putting the gun away. Id. at ¶¶71-72. Several hours passed and Harry eventually left his brother. Id. As he exited the residence he heard a single bang sound and, at the time, believed the sound to be a gunshot. Id. at ¶73. Harry re-entered the house and started to the bedroom, only to find the door locked. Id.

Harry sent a text-message to Michael Radano, a friend of Decedent. Id. at ¶74. Radano worked in a mental facility and Harry informed him that Decedent had discharged a gun and asked for assistance. Id. As Harry waited for Radano, he entered the bedroom and found Decedent holding the same .38 caliber pistol and appearing to be in a daze; Harry thought the daze could be the result of Xanax. Id. at ¶75. When Radano arrived, Decedent became upset and went down stairs to look at Radano's vehicle.Id. at ¶¶75-77. At this point, Harry took possession of the .38 caliber pistol and noticed that it was cool, indicating to him that this gun had not recently been fired as he first believed. Id.

Decedent told Radano he was not welcome; apparently the two were no longer on friendly terms. Id. at ¶80. Radano persisted and accompanied Harry into the residence and upstairs, but the door to Decedent's room was closed. Id. at ¶82. Neither man attempted to open to door. Id.

It is alleged that Radano did not want to leave Decedent alone and asked Harry to retrieve the gun. Id. at ¶83. Radano took the gun and locked it in his car and told Harry they needed to call the police. Id. at 84. Although Harry insisted the police would make matters worse, Radano called "911" while Harry went back inside to check on Decedent. Id. By now, it was approximately 4:20 a.m. on October 28, 2011.

In its attempt to distinguish facts, highlight contradictions, and challenge the information given to the police, the Complaint makes reference to several police reports and accounts for the purpose of putting the events into a timeline.³ In this regard, the Complaint avers that theBurlington County Central Communications reported that the "911" caller stated that Decedent had "locked himself inside a bedroom," that he "had access to weapons," and that the caller had already seized one of the weapons." Id. at ¶86. As a result, two Mount Laurel Police Officers, Orange and Rutkowski, were dispatched to Decedent's residence. Id. at ¶87.

The Complaint further attempts to posit narratives from some of the Defendants, without identifying the source of the report. In this manner, the Complaint claims that Orange's narrative includes an admission by Harry that Decedent answered the door holding a gun and that when he left the home, Harry heard a loud bang that he believed to be a gunshot and that Harry took the weapon from Decedent. Id. at ¶93. In addition, Orange was told by Harry that Harry could not find a bullet hole from the loud bang he heard and that Harry now theorizes that the loud bang could have been from a "firecracker" or "his brother punching the wall." Id. Althoughthe Complaint avers that Harry willingly shared that Decedent was recently suffering from depression, it specifically disputes that Harry told Orange that Decedent also suffered from schizophrenia. Id. at ¶¶95-97. Rather, Harry relayed that an uncle suffered from schizophrenia. Id. at ¶¶97. According to the Complaint, Orange was unwilling to accept Harry's explanation that the loud bang emanated from something other than a gun.

At 4:40 a.m., Decedent closed the front door to the house and members of the New Jersey State Police Crisis Negotiation Team ("CNT") and Technical Emergency and Mission Specialists ("TEAMS") unit were summoned to the scene. Id. at ¶¶104-107. The Complaint states that the "decision to summon the T.E.A.M.S. Unit and the approval of same the above officers was made without the information, inquiry, and analysis necessary to determine whether summoning T.E.A.M.S. Unit was necessary or appropriate at this time based on the information known to police; particularly Harry Brown's explanation that a gun was never fired inside the home. Id. at ¶105. Over the next hour and a half, several different tactical units arrived at the scene and at 6:05 a.m. the T.E.A.M.S. Unit moved the Ballistics Engineered Armored Counter Attack Truck ("BEARCAT") onto the front law of the residence. By 4:40 a.m. members of CNT and TEAMS units were summoned to the scene. Id. at ¶121. By thistime a "battle plan" was formed to show a "threat of overwhelming military-type force[.]" Id. at ¶120. Several large black SUVs arrived and the officers present created a hard perimeter around the residence. Id. No one from Decedent's family was allowed to communicate with or approach Decedent, including Dorothy Brown who arrived after the BEARCAT. Id. at ¶¶102-103; ¶132. At this point, Decedent remained in the house and at approximately 7:30 a.m. several canisters of chemical munitions were sent into the house. Id. at ¶140. Then, the Complaint avers the following:

State police Documents claims that [Decedent] fired several shotgun rounds through this bedroom window over the BEARCAT at 7:36 a.m. Plaintiffs believe that if any such shots were fired, these were intended to introduce air into the bedroom to counteract the effects of the chemical munitions, which made the atmosphere in the residence unbreathable, so that [Decedent], fearing he would be shot by police if he left the residence, could stay in the residence[.]"

Id. at ¶141.

According to the Burlington County Medical Examiners, Decedent took his own life and cause of death was confirmed by a self-inflicted gunshot wound to the head. (Ex. A, Burlington County Medical Examiner's report; SAC ¶149). The Complaint disputes this conclusion.

Plaintiffs allege a number of claims against State Defendants and the Mount Laurel Defendants stemming from the incident.

II. Procedural History

Plaintiffs filed their complaint initial on or about October 25, 2013. (Dkt. No. 1). However, the complaint lacked a proper electronic signature and a signed complaint was filed on February 27, 2014. (Dkt. No. 3). On April 2, 2014, Fuentes, McNulty, Wilson, and the Crisis Team filed a motion to dismiss the complaint. (Dkt. No. 12). On November 25, 2014, Plaintiffs were ordered to file an amended complaint and did so on January 20, 2015. (Dkt. Nos. 32, 41). On or about February 12, 2015, State Defendants were served with a copy of the complaint. State Defendants thereafter filed a motion to dismiss. (Dkt. No. 93). On December 17, 2015, Plaintiffs' were granted leave to file their Second Amended Complaint. (Dkt. No. 110). The claims are as follows.

COUNT I: VIOLATIONS OF FOURTH AMENDMENT SURVIVAL AND WRONGFUL DEATH PURSUANT TO 42 U.S.C. §1983 Against Defendants Jones; Orange; Rutkowski; Harty; Cresong; Colligan; Cribben; Modugno; Howard; Riedener; Dever; Pincus; Colligan; Palladino; Rudderow; And Police Officers John Doe 1, John Doe 2, John Doe 3, John Doe 4, John Doe 5, John Doe 6, John Doe 7, John Doe 8, John Doe 9, And John Doe 10 Of The Mount Laurel Township Police Department;

COUNT II: VIOLATIONS OF FOURTEENTH AMENDMENT SURVIVAL AND WRONGFUL DEATH PURSUANT TO 42 U.S.C. §1983 Against Defendants Jones; Orange; Rutkowski; Harty; Cresong; Colligan; Cribben; Modugno; Howard; Riedener; Dever; Pincus; Colligan; Palladino; Rudderow; And Police Officers John Doe 1, John Doe 2, John Doe 3, John Doe 4,John Doe 5, John Doe 6, John Doe 7, John Doe 8, John Doe 9, And John Doe 10 Of The Mount Laurel Township Police Department;

COUNT III: VIOLATIONS OF

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