cdTOCtest

The test is one of “objective reasonableness” in light of the
totality of the circumstances and “without regard to their
underlying intent or motivations.” Id. at 396-97, 109
S.Ct. at 1871-72.

The totality of the circumstances includes “the
severity of the crime at issue, whether the suspect poses
an immediate threat to the safety of the officers or others,
and whether he is actively resisting arrest or attempting
to evade arrest by flight.” Id. at 396, 109 S.Ct. at 1871-

72. See generally, Abraham v. Raso, 183 F. 3d 279 (3d
    Cir. 1999); Groman v. Township of Manalapan, 47 F. 3d
    628 (3d Cir. 1995); Hill v. Algor, 85 F. Supp. 2d 391,
    403 (D.N.J. 2000) (arrestee subject to Fourth
    Amendment protection up to pre-arraignment);
    Ridgeway v. City of Woolwich Township Police Dept., 924
    F. Supp. 653 (D.N.J. 1996); cf. Clark v. Buchko, 936 F.
    Supp. 212 (D.N.J. 1996) (accidental shooting not
    seizure under Fourth Amendment).

In June of 2000, the Attorney General issued a
revision on the Use of Force policy in Directives to Police
Enforcement. The Attorney General’s policy directive
places greater restrictions on police use of deadly force.
The officer cannot use deadly force if the officer
reasonably believes that an alternative exists to avert
danger. The officer cannot use a firearm solely to disable
a moving vehicle. The officer can only fire at a moving
vehicle if there is an imminent danger of death or serious
bodily injury, and it is the only means to eliminate the
danger. The directive also sets up a protocol in an officer’s
show or unholstering of a firearm. The directive also sets
forth a reporting requirement upon the use of deadly
force or when an injury results from a discharge of a
firearm.

V. SELECTIVE ENFORCEMENT

The evolving area of selective enforcement, also
known as “racial profiling”, against minorities regarding
motor vehicle stops and arrests, was recently explored in
State v. Ballard, 331 N.J. Super. 529 (App. Div. 2000). A
claim of selective enforcement is not a defense to a crime,
but a separate claim that the enforcement is
unconstitutional. Id.; United States v. Armstrong, 517
U.S. 456, 1165 S.Ct. 1480, 134 L.Ed. 2d 687 (1996).
In order to prove pp. Div. 1991) (defendant showed
colorable claim of selective enforcement that warranted
pretrial discovery).

VI. MISCELLANEOUS CASE LAW

A. Special Officers

The appointment and powers of special officers are

enumerated at N.J.S.A. 40A:14-146.8 to 146.18.

Although an off-duty police officer can have part-time

employment as a security guard, a special policeman

employed as a security guard for a private security

company cannot carry a firearm without a permit, or wear

his special policeman’s uniform and badge. In re Rawls,

197 N.J. Super. 78 (Law Div. 1984). See also, New Jersey

State Police Ass’n v. Attorney General, 201 N.J. Super. 75

(App. Div. 1985) (except for special officers appointed by

municipalities in excess of 300,000 in population, off-

duty special police officer cannot carry a handgun while

working for a private employer without a permit).

Campus police are not “state police” under N.J.S.A.

2C:39-6a and cannot while on duty carry firearms or

night sticks without written permission of the college’s

governing body. PBA Local 278 N.J. State Campus Police

v. Degnan, 175 N.J. Super. 102 (Ch. Div. 1980). See

N.J.S.A. 2C:39-6(10) (law amended to allow campus

police to carry weapons at all times with approval of

college governing body).

B. Procedures in Police Disciplinary Hearings

There was no violation of the Open Public Meetings

Act where an officer’s disciplinary hearing was held in

public and the governing body issued its decision to

public, notwithstanding that the governing body

deliberated and reached a decision in private. Della Serra

v. Borough of Mountainside, 196 N.J. Super. 6 (App. Div.

1984). Evidence of an officer’s past conduct cannot be

used in a disciplinary proceeding to prove charges, absent

a showing that the conduct was habitual. In re Phillips,

117 N.J. 567, 581 (1990). However, an officer’s prior

conduct can be considered to determine the appropriate

remedy. In re Phillips, 117 N.J. at 581; In re Morrison,

216 N.J. Super. 143, 160 (App. Div. 1987); In re

Wenderwicz, 195 N.J. Super. 126 (App. Div. 1984).

Information received from a legal wire tap concerning

an officer’s use of lewd and offensive language cannot be

disclosed to a police chief for use in a disciplinary

proceeding against the police officer. In re Spinelli, 212

N.J. Super. 526 (Law Div. 1986). A police officer has a

Fifth Amendment privilege to refuse to produce materials

which he has compiled in the course of an investigation

not authorized by his superiors and where he may be

exposed to a criminal charge of official misconduct.