For discussion on liability arising from false arrest, see
Connor v. Powell, 162 N.J. 397. In Connor, an officer
arrested plaintiff for aggravated assault and possession of
a weapon, a plastic fork. Finding no probable cause to
arrest defendant, the Supreme Court reversed a dismissal
of a § 1983 action for false arrest, false accusation and false
imprisonment. See also Plummer v. Department of
Corrections, 305 N.J. Super. 365 (App. Div. 1997)
(finding of immunity for detaining person as suspected
inmate).
For a discussion on liability for failure to act, see
Suarez v. Dosky, 171 N.J. Super. 1 (App. Div. 1979)
(police liable for failure to escort stranded occupants at
auto accident, where child and adult were struck and
killed by passing vehicles), certif. denied, 82 N.J. 300
(1980). For failure to provide medical treatment, see Del
Tufo v. Township of Old Bridge, 147 N.J. 90, 101 (1996)
(the police have a reasonable duty of care to provide
emergent medical assistance). It is plaintiff’s burden to
establish that the police were indifferent “to serious
known medical needs.” Id. The court found “common
sense dictates that a police officer is not obligated to seek
medical treatment for every arrestee involved in an
automobile accident.” Id. at 101. See also Battista v.
Olson, 213 N.J. Super. 137 (App. Div. 1986) (officer’s
failure to provide prompt medical assistance despite
knowing about defendant’s perilous condition resulted
in liability); Hake v. Manchester Township, 98 N.J. 302
(1985) (matter remanded for jury to consider if police’s
failure to provide prompt medical assistance to arrestee,
who committed suicide, deprived the arrestee of a chance
to be revived).
For a discussion concerning liability under Domestic
Violence Act, N.J.S.A. 2C:25-22, see Wildones, 162 N.J.
at 387-89 (claim of false arrest and imprisonment in a
husband-wife domestic violence situation); cf. Campbell
v. Campbell, 294 N.J. Super. 18 (Law Div. 1996) (found
liable for failure to make arrest under a domestic violence
order).
State law only provides for the State to indemnify
police officers and pay for counsel fees in civil suits, not
criminal suits. N.J.S.A. 59:10-1 et. seq; Chasin v.
Montclair State University, 159 N.J. 418, 463-64
(1999)(citing Helduser v. Kimmelman, 191 N.J. Super.
493 (App. Div. 1983)(discretion of Attorney General to
defend criminal actions)); Querques v. City of Jersey City,
198 N.J. Super. 566 (App. Div.)(where officer acquitted
of criminal charges not arising from or incidental to
official duties, officer not entitled to statutory
reimbursement by the city for his legal fees and expenses),
certif. denied, 101 N.J. 242 (1985).IV. THE USE OF FORCE
The United States Supreme Court addressed the
topic of police use of deadly force in Tennessee v. Garner,
471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed. 2d 1 (1985).
Garner states that the use of deadly force to apprehend a
suspect is a “seizure” under the Fourth Amendment and
therefore requires a balancing test, assessing whether the
totality of the circumstances justified the use of deadly
force to seize the suspect. Tennessee v. Garner, 471 U.S.
at 7-8, 105 S.Ct. at 1699. The use of deadly force to
prevent escape of an unarmed criminal suspect is
constitutionally unreasonable if the suspect poses no
immediate threat to the officer or to others. Before using
deadly force, the officer must have probable cause to
believe that the suspect poses a threat of serious physical
harm, either to the officer or to others and the use of
deadly force must be necessary to prevent the escape, and
state a warning if possible. 471 U.S. at 11-12, 105 S.Ct.
at 1701. The use of deadly force is also permissible to
prevent escape if the officer has “probable cause to believe
that the suspect has committed a violent crime, involving
the infliction or threatened infliction of serious physical
harm.” Id. Furthermore, deadly force cannot be justified
solely to prevent the escape of an unarmed felon who
poses no physical danger to himself or others, or solely on
the basis that a felony, such as a nighttime burglary of a
dwelling, has been committed. Id. at 21, 105 S.Ct. at
1706.Police use of force in the performance of their duties
is governed by N.J.S.A. 2C:3-7. Under the Code, deadly
force is justified to prevent the escape of a criminal suspect
if the officer makes known the purpose of the arrest, if
feasible, and if the officer reasonably believes that such
force creates “no substantial risk of injury to innocent
persons”; the person is suspected of committing,
attempting to commit or committed the crime of
homicide, kidnaping, sexual assault, criminal sexual
contact, aggravated sexual assault, aggravated criminal
sexual contact, arson, robbery, burglary of a dwelling;
and there is an imminent threat of deadly force to the
officer or another. N.J.S.A. 2C:3-7.In 1989, the United States Supreme Court examined
the police use of excessive force in the course of arrest.
Graham v. O’Connor, 490 U.S. 386, 109 S.Ct. 1865,
104 L.Ed. 2d 443 (1989). The use of excessive force is
also analyzed under the Fourth Amendment as a
“seizure.” Id. at 393-94, 109 S.Ct. at 1870-71 (1989).