Gibbons v. N.J. State Police
| Decision Date | 06 August 2020 |
| Docket Number | No. 18-1432,18-1432 |
| Citation | 969 F.3d 419 (Mem) |
| Parties | In Re: Willie GIBBONS; Arlane James; JRG, a minor, by his mother and legal guardian, Ikeya Crawford; and DKL and LMG, minors, by their mother and legal guard, Angel Stephens, v. NEW JERSEY STATE POLICE, et al. Noah Bartelt, Appellant |
| Court | U.S. Court of Appeals — Third Circuit |
Navarro W. Gray, Esq., Ronald C. Hunt, Esq., Hunt Hamlin & Ridley, Newark, NJ, Yvette C. Sterling, Esq., Burlington City, NJ, for Plaintiffs-Appellees.
Vincent J. Rizzo, Jr., Esq., Office of Attorney General of New Jersey, Division of Law, Trenton, NJ, for Defendants.
Marvin L. Freeman, Esq., Office of Attorney General of New Jersey, Department of Law & Public Safety, Trenton, NJ, for Defendant-Appellant.
Present: SMITH, Chief Judge, McKEE, AMBRO, CHAGARES, JORDAN, HARDIMAN, GREENAWAY, JR., SHWARTZ, KRAUSE, RESTREPO, BIBAS, PORTER, MATEY, and PHIPPS, Circuit Judges
The petition for rehearing filed by Appellees in the above-entitled case having been submitted to the judges who participated in the decision of this Court and to all the other available circuit judges of the circuit in regular active service, and no judge who concurred in the decision having asked for rehearing, and a majority of the judges of the circuit in regular service not having voted for rehearing, the petition for rehearing by the panel and the Court en banc, is denied. Judges McKee, Ambro, Jordan, Greenaway, Jr., Krause and Restrepo would grant rehearing by the court en banc. Judge McKee files the attached dissenting opinion sur rehearing, which is joined by Judges Ambro, Greenaway, Jr., Krause and Restrepo.
Today, we deny the Petition for Rehearing in this case even though our Opinion squarely contradicts controlling precedent established by our decision in Bennett v. Murphy .1 There, under circumstances substantively identical to those here, we held that "[if the victim] had stopped advancing and did not pose a threat to anyone but himself, the force used against him, i.e. deadly force, was objectively excessive[,]" and thus unreasonable.2 Bennett has been the law of this Circuit for eighteen years. The victim here posed no greater threat than the victim in Bennett . Yet, now we hold that Trooper Noah Bartelt is entitled to qualified immunity as a matter of law. We reach that conclusion even though Willie Gibbons, the victim here, was pointing a gun at his own head when fatally shot by Bartelt. There has been no intervening change in the law in the eighteen years since we decided Bennett , and our Opinion here does not suggest otherwise.
We can take some solace in the fact that, absent a substantive distinction between the facts here and those in Bennett , the rules of this Circuit dictate that Bennett continues to control and the decision here is a nullity insofar as it purports to reach a holding that is contrary to our decision in Bennett .3 A unanimous en banc court recently affirmed that "[w]e adhere strictly to that tradition."4 Nevertheless, as six judges of this Court agree, institutionally it would be far better for us to grant this petition for rehearing so that we could resolve the tension between this Opinion and Bennett en banc.5 I therefore must dissent from our failure to do so.
Assuming the truth of these allegations (as we must on summary judgment review),6 the relevant circumstances surrounding the shooting of Willie Gibbons here, and David Bennett in Bennett v. Murphy , are indistinguishable.
On the evening of January 4, 1994, Pennsylvania State Police responded to a domestic dispute call in Greenburg, Pennsylvania.7 David Bennett, a 25-year-old volunteer firefighter, had told his girlfriend that he was going to kill himself after discovering her with another man.8 His girlfriend called 911.9 When police arrived, they found Bennett standing in the courtyard outside of her apartment holding a shotgun pointed vertically at his own head. He repeated to the police that he wanted to kill himself.10
A standoff began, which lasted for over an hour. Finally, as police began to encircle Bennett, he became agitated and started walking towards the officers. When they ordered him to halt, he stopped moving. Four seconds later, a police sharpshooter, Francis Murphy, fatally shot Bennett. When Murphy opened fire, he was outside of the police cordon and approximately 80 feet away from Bennett.11
Bennett's estate brought a civil rights action under 42 U.S.C. § 1983 alleging police had used excessive force. The District Court denied the defendant officer's motion for summary judgment based on qualified immunity and the officer appealed. In affirming the denial of summary judgment and remanding for trial, we held: "[i]f, as the plaintiff's evidence suggested, David Bennett had stopped advancing and did not pose a threat to anyone but himself , the force used against him, i.e. deadly force, was objectively excessive."12
In late May of 2011, Angel Stephens became concerned that her boyfriend, Willie Gibbons, had stopped taking his medication for schizophrenia
. Stephens called the police after she and Gibbons had an argument.13 However, when police arrived at their house, they could not initially identify who was the victim as the statements of Gibbons and Stephens conflicted.14 Police told Stephens that she could not get a restraining order because "there was no fighting or nothing done," unless Gibbons had threatened her "with a knife or a gun."15
At that point, Stephens for the first time accused Gibbons of threatening her with a gun.16 Police then questioned Gibbons, but he denied threatening Stephens.17 Police searched Gibbons’ truck for weapons before leaving the scene; they found none.18 Thereafter, Stephens did obtain a restraining order from Municipal Court prohibiting Gibbons from possessing firearms or returning to the shared house.19 The police escorted Gibbons back to the house to retrieve essential items and informed him that he would need to "request a police escort" to go there again.20
The next day, May 25, Gibbons returned to the police station to file a Citizen's Complaint based upon the events of the previous night. He alleged that police had harassed him.21 Later that day, while working with his father, Gibbons discovered he had left a tool that he needed in the shared house. As previously instructed, Gibbons called to ask for a police escort in order to retrieve the tool. Trooper Michael Korejko answered the phone. Korejko knew that Gibbons had filed a complaint against the police.22 When Gibbons explained that he needed to get his drill and other items from the house, Korejko declined to help, saying "we are pretty busy."23 He now told Gibbons that he was not "allowed over there unless [he had] a court order from a judge to get those items."24
Gibbons then tried to call Stephens. When he could not get her on the phone, he went to the house to ask her for the drill he needed.25 Stephens was on the telephone with a friend when Gibbons arrived, and the friend took it upon himself to call the police.26 Even though Stephens’ friend only told police that "he's out there in front of her house," the dispatcher inexplicably told the officer who eventually responded that Gibbons had "showed up [at the house], with a handgun ..."27
When Trooper Phillip Conza arrived at Stephens’ house, he told Stephens he had heard that Gibbons had a gun.28 Stephens did not express any concern for her safety.29 Nevertheless, Conza suggested she come down to the police station.30 As she drove to the station, Stephens passed Gibbons walking on the side of the road. She called the police to report that he was headed towards the police station, believing he was likely going there to turn himself in.31 The dispatcher asked Stephens whether Gibbons had a gun and Stephens told the officer that she hadn't seen him holding one.32 The dispatcher then asked whether she had seen a gun earlier and Stephens confirmed that she had.33
Hearing that a gun might be involved, Bartelt, who was on desk duty at the state police barracks, asked for permission to "head that way" in order to look for Gibbons.34 Four officers in the area then converged on the sparsely populated stretch of road where Stephens had indicated she saw Gibbons. Trooper Daniel Hider was the first to arrive, and he saw someone matching Gibbons’ description.35 Rather than immediately confront him, Hider decided to continue driving and made an immediate right turn to loop back so he could get in front of Gibbons.36
Bartelt was only a few blocks away when he heard Hider report a sighting. Conza, who had spoken with Stephens earlier, was directly behind Bartelt in another car, and Korejko was moments behind the two of them.37 The video camera in Bartelt's car was active, but as he proceeded towards Gibbons’ location, Bartelt inexplicably manually disabled his camera.38
Driving northbound, Bartelt immediately identified Gibbons from across the street. Gibbons was also heading northbound on foot at "a normal" walking pace on the other side of the road.39 Bartelt slowed and rolled down his window; Gibbons noticed him and said clearly, without shouting, "stay away from me."40 Bartelt responded by driving his car across the double yellow line, directly towards Gibbons on the far side of the road. Gibbons repeated, "stay away from me,"41 and Bartelt ignored him. Instead, he instructed Gibbons to "come over here."42
What happened next is disputed. Conza, who was approximately seven feet behind Bartelt,43 stopped his car and jumped out. He saw Bartelt pointing his gun at a "male standing with one ar[m] up."44 Conza was interrupted at this point when giving a subsequent report of the incident.45 When he resumed, he became more vague,...
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