Article by Betsy G. Ramos

The plaintiff Bryheim Jamar Baskin claimed that a justifiable police chase ended in an unjustifiable police shooting due to the use of excessive force in violation of the Federal Constitution.  The issue decided by the New Jersey Supreme Court in Baskin v. Martinez, 243 N.J. 112 (2020) was whether the defendant Detective Rafael Martinez, who chased and eventually shot Baskin, was entitled to qualified immunity and, hence, a dismissal of the lawsuit on a summary judgment basis.

Certain facts were undisputed.  The police chased 20 year old Baskin after he crashed his car into an unmarked car occupied by Detective Martinez.  Baskin fled on foot with a handgun, which he discarded out of Martinez’s sight.  Thereafter, Baskin found himself trapped in a walled yard with no way to escape.  It is at that point, that the facts become disputed.

According to Baskin and an eyewitness, Baskin put his hands up above his head and turned toward the pursuing police officer with his palms open and no weapon.  He claims that he made no gesture that he was reaching for a weapon and that he posed no threat.  Baskin and the eyewitness state that Baskin’s hands were in the air in a sign of surrender when Detective Martinez shot him in the abdomen, causing serious and permanent injuries.

On the other hand, Detective Martinez asserts that when Baskin finally came into sight, he turned and pointed in the detective’s direction with an object that looked like a gun.  Detective Martinez claimed that he feared for his life and, only at that time, did he discharge his weapon.  There was no handgun found where Baskin fell.  There were two cell phones located nearby.

Based upon these facts, the trial court granted Detective Martinez qualified immunity and dismissed Baskin’s §1983 action.  A split three judge Appellate Division panel reversed and reinstated the case.  Due to the dissent in the Appellate Division, the issue of whether Detective Martinez was entitled to qualified immunity came to the Supreme Court as an appeal as of right.

The Supreme Court did affirm the Appellate Division majority, but it was a split decision of a 4-3 vote.  Regardless, the Supreme Court affirmed the Appellate Division, finding in favor of the plaintiff on a summary judgment basis.

The Court noted that it must accept as true the testimony of Baskin and the independent eyewitness, who both stated that Baskin’s hands were above his head, in an act of surrender when Detective Martinez shot him.  Under that scenario, a police officer would not have had an objectively reasonable basis to use deadly force.  The use of deadly force is prohibited against a non-threatening and surrendering suspect.  Hence, the Supreme Court concluded that Detective Martinez was not entitled to qualified immunity on a summary judgment basis.

The Court discussed what was needed to establish qualified immunity, which is as follows:

1.Whether the evidence, viewed in the light most favorable to the plaintiff, establishes that the official violated the plaintiff’s constitutional or statutory rights; and

2.Whether the right allegedly violated was “clearly established” at the time of the officer’s actions.  A right would be clearly established “if it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.”

Further, the Court pointed out that under the qualified immunity case law, the Court is required not only to view the evidence in the light most favorable to the plaintiff but also to draw all reasonable inferences in his favor that are supported by the summary judgment record.  Based upon the facts, the Court cannot give credence to Detective Martinez’s account of the last moments of his encounter with Baskin and cannot resolve the disputed issues of material fact as would a jury.  The Court must accept as true the testimony of Baskin and the eyewitness that, as Detective Martinez “rounded the corner of the house, Baskin was standing with his open and empty hands above his head – not reaching for a weapon or making a threatening gesture.”

Under the law, it is clear that every police officer would understand that “it is not objectively reasonable to shoot a person suspected of committing a crime after he has placed his empty hands above his head in an act of surrender.”  The law is also clear that a suspect’s conduct leading up to his attempt to surrender cannot alone justify using deadly force against the suspect when his hands are above his head in an act of submission and he no longer poses a threat.  While the facts may be disputed as to whether Baskin’s hands were empty and up in the air, for qualified immunity purposes, the Court must consider the totality of the circumstances through the perspective of an objectively reasonable police officer on the scene.  The Court must also accept Baskin’s version of these events that are in dispute and draw all reasonable inferences in his favor.

The Court noted its understanding that police officers often must make split second decisions in highly volatile situations and does not minimize the challenges of dangers facing a police officer engaged in pursuit of a suspect who is observed carrying a gun.  The Court accepted that Detective Martinez had a legitimate and obvious basis to be concerned for his safety.  Had Baskin turned toward him with a gun in his hand, Detective Martinez would likely have had an objectively reasonable basis to use deadly force to protect himself.  The Court stated that “the justification for use of deadly force at one point and a dangerous encounter does not give an officer the right to shoot a suspect when the use of deadly force can no longer be justified.”

Detective Martinez testified that when he rounded the corner, he saw Baskin turning toward him pointing an object that appeared to be a gun.  However the facts were sharply disputed as to whether that occurred and whether Baskin pointed anything at him, even if it turned out just to be a cell phone.

Because of the conflicting accounts of what occurred at the time of the shooting and other disputes of material fact, the Supreme Court found that this issue must be submitted to a jury for resolution of the facts.  At that point, the trial court can determine the merits of the application for qualified immunity.  After the jury makes its fact findings, Detective Martinez will be able to renew his qualified immunity application if there is a basis to do so.  Hence, the Supreme Court affirmed the judgment of the Appellate Division and remanded the case back to the trial court.

Betsy G. Ramos, Esq. is a member of the firm’s Executive Committee and Co-Chair of the Litigation Group. She is an experienced litigator with over 25 years’ experience handling diverse matters. Her practice areas include tort defense, insurance coverage, Tort Claims Act and civil rights defense, business litigation, employment litigation, construction litigation, estate litigation and general litigation.