                                       SYLLABUS

This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the
Clerk for the convenience of the reader. It has been neither reviewed nor approved by the
Court. In the interest of brevity, portions of an opinion may not have been summarized.

            Bryheim Jamar Baskin v. Rafael Martinez (A-70-18) (081982)

Argued January 7, 2020 -- Decided July 9, 2020

ALBIN, J., writing for the Court.

       In this Section 1983 civil rights lawsuit, the Court considers whether defendant
Detective Rafael Martinez, who chased and eventually shot plaintiff Bryheim Jamar
Baskin, is entitled to qualified immunity and therefore dismissal of the lawsuit on
summary judgment.

       Baskin alleges the shooting constituted excessive force in violation of his federal
constitutional rights. At the completion of discovery, Detective Martinez moved for
summary judgment, asserting that his use of deadly force, under all the circumstances,
was objectively reasonable, and therefore he was entitled to qualified immunity.

        Certain facts are essentially undisputed. In the afternoon of September 11, 2012,
Detective Martinez and other officers were on patrol in an area in Camden known for
significant drug activity. When officers observed Baskin pull out of a parking lot without
signaling, one unmarked patrol vehicle maneuvered in front of Baskin’s car for the
purpose of making a motor vehicle stop. To assist the stop, Detective Martinez, who was
in uniform, positioned his unmarked vehicle behind Baskin’s. Baskin suddenly put his
car in reverse and collided into Martinez’s vehicle. Baskin then fled on foot through a
residential area with a handgun tucked in the waistband of his shorts as the officers
pursued him, with Martinez yelling a number of times, “police, stop.”

       During the chase, Martinez saw Baskin drop the handgun, pick it up, and continue
to run with the gun in his hand. At that point, Martinez slowed to unholster his weapon.
Baskin ran into a walled-in backyard of a residence, where, out of Martinez’s sight, he
tossed the gun, which landed in the yard. Cornered, with no apparent means of escape,
Baskin ended his flight. What occurred immediately afterward is the subject of dispute.

       According to Baskin, when he realized he had nowhere to go, he placed his empty
hands over his head and remained in that position as Detective Martinez rounded the
corner. Baskin states that, despite keeping his open hands over his head and making no
threatening gesture, Detective Martinez shot him in the abdomen. Cherron Johnson, an
area resident, witnessed the events and corroborated Baskin’s account.
                                             1
        Detective Martinez testified that, during the chase, he lost sight of Baskin, who he
had last seen carrying a handgun. After carefully and slowly rounding the corner of a
home until he gained a full view of the backyard, Martinez observed Baskin standing
with his back facing the detective. Martinez stated that Baskin was turning around with
his right arm extended straight in front of him, pointing toward Martinez a black object
that he believed to be a gun. At that moment, Martinez explained, “I was in fear for my
life, and I pulled the trigger and I hit him in the abdomen area.”

      Immediately afterward, several officers arrived at the scene and retrieved two cell
phones near where Baskin fell. Elsewhere in the yard, the officers found a semiautomatic
handgun, loaded with eleven hollow-point bullets. Baskin was taken by ambulance to a
nearby hospital where he was treated for serious and permanent injuries.

       The trial court afforded Detective Martinez qualified immunity and granted
summary judgment in his favor. A split Appellate Division panel reversed. An appeal as
of right was filed, based on the dissent in the Appellate Division.

HELD: For summary judgment purposes, the Court must accept as true the sworn
deposition testimony of Baskin and the independent eyewitness, who both stated that
Baskin’s open and empty hands were above his head, in an act of surrender, when
Detective Martinez fired the shot. Under that scenario, a police officer would not have
had an objectively reasonable basis to use deadly force. The law prohibiting the use of
deadly force against a non-threatening and surrendering suspect was clearly established,
as evidenced by cases in jurisdictions that have addressed the issue. Thus, Detective
Martinez was not entitled to qualified immunity on summary judgment.

1. Section 1983 provides a cause of action for the deprivation of any rights secured by
law by any person acting under color of law. The Fourth Amendment guarantees every
person the right to be free from “unreasonable” seizures, and the United States Supreme
Court has held that the use of excessive force in the course of an arrest constitutes an
unreasonable seizure under the Fourth Amendment. The ultimate issue in analyzing any
excessive-use-of-force claim is whether, from the police officer’s perspective, the use of
force was objectively reasonable under all the circumstances. A police officer may only
use deadly force against a suspect when the officer reasonably believes that the suspect
poses a threat of serious bodily injury to the officer or others. (pp. 12-15)

2. The doctrine of qualified immunity generally protects government officials from civil
liability for discretionary acts that do not violate clearly established statutory or
constitutional rights of which a reasonable person would have known. In determining
whether qualified immunity applies in a particular case, a court ordinarily must address
two issues: (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
                                              2
officer’s actions. A right is “clearly established” if it would be clear to a reasonable
officer that his conduct was unlawful in the situation he confronted. (pp. 15-17)

3. For summary judgment purposes, the Court must accept as true the testimony of
Baskin and Johnson that as Detective Martinez rounded the corner of the house, Baskin
was standing with his open and empty hands above his head, signaling in a language
universally understood his intent to surrender. Numerous cases have made clear that it is
not objectively reasonable to shoot a suspect after he has placed his empty hands over 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 shooting the suspect -- using deadly force
against him -- when his hands are above his head in an act of submission and he no
longer poses a threat. Thus, an exercise of force that is reasonable at one moment can
become unreasonable in the next if the justification for the use of force has ceased.
(pp. 17-22)

4. In rendering a decision on qualified immunity, the Court does not sit as a trier of fact,
weighing the evidence and making credibility determinations. Rather, under the
standards that govern its review, the Court must accept that Baskin had his empty hands
above his head in a sign of surrender, made no threatening gestures, and no longer posed
a threat. Under that scenario, an objectively reasonable police officer would not have had
a justification to use deadly force. The two conflicting accounts of what occurred at the
time of the shooting, and any other disputed issues of material fact, must be submitted to
a jury for resolution. After the jury makes its ultimate findings, the trial court can
determine the merits of the application for qualified immunity. (pp. 22-24)

        JUSTICE SOLOMON, dissenting, notes that before Baskin was restrained, he
threatened lives by speeding away from one police vehicle, crashing into another, and
then fleeing the scene of the crash, in possession of a handgun, through a residential
neighborhood. Justice Solomon explains that, under the totality of the circumstances, a
reasonable officer at the scene would have no reason to know, in the split second that
Martinez fired his weapon, that Baskin no longer possessed a gun. Justice Solomon
concludes that, considering the alleged facts in a light most favorable to Baskin,
Martinez’s belief in the need to use deadly force to prevent Baskin’s escape and protect
against the threat of danger Baskin posed to Martinez and others was reasonable given
the totality of the circumstances from the perspective of an officer on the scene.

       AFFIRMED and REMANDED for further proceedings.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA and TIMPONE join in
JUSTICE ALBIN’s opinion. JUSTICE SOLOMON filed a dissent, in which
JUSTICES PATTERSON and FERNANDEZ-VINA join.



                                              3
                    SUPREME COURT OF NEW JERSEY
                          A-70 September Term 2018
                                     081982


                            Bryheim Jamar Baskin,

                             Plaintiff-Respondent,

                                        v.

                     Rafael Martinez, City of Camden and
                              Scott Thompson,

                            Defendants-Appellants.

                      On appeal from the Superior Court,
                             Appellate Division.

                    Argued                        Decided
                January 7, 2020                 July 9, 2020


            Timothy J. Galanaugh, Assistant City Attorney,
            argued the cause for appellants (Michelle Banks-
            Spearman, Camden City Attorney, attorney; Timothy
            J. Galanaugh, on the briefs).

            Paul R. Melletz argued the cause for respondent
            (Gerstein, Grayson, Cohen & Melletz, attorneys; Paul
            R. Melletz, on the brief).


             JUSTICE ALBIN delivered the opinion of the Court.


      In this Section 1983 civil rights lawsuit, plaintiff Bryheim Jamar Baskin

claims that a justifiable police chase ended in an unjustifiable police shooting

                                        1
-- the use of excessive force in violation of the Federal Constitution. The issue

before us is whether defendant Detective Rafael Martinez, who chased and

eventually shot Baskin, is entitled to qualified immunity and therefore

dismissal of the lawsuit on summary judgment.

      On the summary judgment record before us, certain facts are undisputed.

The police gave chase to twenty-year-old Baskin after he crashed his car into

an unmarked patrol vehicle occupied by Detective Martinez. Baskin fled on

foot armed with a handgun, which he discarded out of Martinez’s sight. Then,

Baskin found himself trapped in a walled yard with no way to escape. At this

point, the accounts given by Baskin and a neighborhood eyewitness, on the one

hand, and Detective Martinez, on the other, starkly diverge.

      According to Baskin and the eyewitness, Baskin put his hands above his

head and turned toward the pursuing police officer. His palms were open. He

held no weapon in his hand. He made no gesture that he was reaching for a

weapon and, at that moment, he posed no threat. Baskin and the eyewitness

state that while Baskin’s hands were in the air in a sign of surrender, Detective

Martinez shot him in the abdomen, causing serious and permanent injuries.

      In contrast, Detective Martinez asserts that when Baskin finally came

into sight, Baskin turned and pointed in the detective’s direction an object that

looked like a gun. Only then, fearing for his life, says Detective Martinez, did

                                        2
he discharge his weapon. Although no handgun was found where Baskin fell,

two cell phones were located nearby.

      Despite those disputed facts, the trial court granted Detective Martinez

qualified immunity and dismissed Baskin’s Section 1983 action. A split three-

judge Appellate Division panel reversed and reinstated the case. Based on the

dissent in the Appellate Division, the issue of whether Detective Martinez is

entitled to qualified immunity comes to us on an appeal as of right. N.J.

Const. art. VI, § 5, ¶ 1(b); R. 2:2-1(a)(2).

      We now affirm the Appellate Division majority. At the summary

judgment stage, in deciding the issue of qualified immunity, our jurisprudence

requires that the evidence be viewed in the light most favorable to Baskin.

Therefore, for summary judgment purposes, we must accept as true the sworn

deposition 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 fired the shot. Under that scenario, a police officer would

not have had an objectively reasonable basis to use deadly force. The law

prohibiting the use of deadly force against a non-threatening and surrendering

suspect was clearly established, as evidenced by cases in jurisdictions that

have addressed the issue. Thus, Detective Martinez was not entitled to

qualified immunity on summary judgment.

                                         3
       The disputed issues of material fact -- whether Detective Martínez’s use

of deadly force was objectively reasonable -- are for a jury to resolve, not for a

court. Accordingly, we remand this matter for further proceedings consistent

with this opinion.

                                        I.

                                        A.

       In this action brought primarily under 42 U.S.C. § 1983, Baskin alleges

that Detective Martinez shot him in the stomach while he was unarmed and in

the act of “surrendering” -- “standing with his hands up in the air facing” the

detective. In the complaint, Baskin claims that the shooting constituted

excessive force in violation of his federal constitutional rights and names as

defendants Detective Martinez, the Chief of Police of the Camden Police

Department, and the City of Camden. The Section 1983 claim against the

chief of police and the city is premised on their alleged failure to provide

training and supervision on “the lawful use of an officer’s service revolver.” 1

       At the completion of discovery, Detective Martinez moved for summary

judgment, asserting that his use of deadly force, under all the circumstances,

was objectively reasonable, and therefore he was entitled to qualified

immunity. Although in deciding the issue of qualified immunity on summary


1
    Baskin also asserted common law claims of assault, battery, and negligence.
                                       4
judgment the evidence must be viewed in the light most favorable to Baskin,

we present here a more fulsome account of the critical events based on the

deposition testimony in the summary judgment record.

      Certain facts are essentially undisputed. In the afternoon of September

11, 2012, Detective Martinez and other Camden police officers were on patrol

in unmarked vehicles in an area in Camden known for significant drug activity.

When officers observed Baskin pull out of a parking lot without signaling, one

unmarked patrol vehicle maneuvered in front of Baskin’s car for the purpose

of making a motor vehicle stop. To assist the stop, Detective Martinez, who

was in uniform, positioned his unmarked vehicle behind Baskin’s. With

unmarked police cars in front of and behind him, Baskin suddenly put his car

in reverse and collided into Martinez’s vehicle.2 Baskin fled on foot with a

handgun tucked in the waistband of his shorts as the officers pursued him, with

Martinez yelling a number of times, “police, stop.” Martinez followed close

behind as Baskin raced through a residential area and leapt over several fences.

      During the chase, Martinez saw Baskin drop the handgun, pick it up, and

continue to run with the gun in his hand. At that point, Martinez slowed to

unholster his weapon. Baskin eventually ran into a walled-in backyard of a


2
  In his deposition testimony, Baskin stated that the area where he was “cut
off” by the unmarked vehicle is known for drug activity and shootings. He
admitted to having drugs in his car.
                                       5
residence, where, out of Martinez’s sight, he tossed the gun, which landed in

the rear of the yard. Cornered, with no apparent means of escape, Baskin

ended his flight. What occurred immediately afterward is the subject of

dispute.

      According to Baskin, when he reached the walled-in backyard and

realized he had nowhere to go, he placed his empty hands over his head and

remained in that position as Detective Martinez rounded the corner of the

house and saw “[him] with [his] hands in the air.” Baskin believed that his

raised hands signaled that he was surrendering, so he said nothing as Detective

Martinez came into sight. 3 The only objects on his person were two cell

phones in the pocket of his shorts. Baskin states that, despite keeping his open

hands over his head and making no threatening gesture, Detective Martinez

shot him in the abdomen, causing grievous and permanent injuries .

      Cherron Johnson, an area resident, witnessed the events and

corroborated Baskin’s account of the last moments of the chase. In her

deposition testimony, Johnson stated that she had just arrived home and had

stepped out of her car and was talking with a friend when she saw Baskin


3
   During his deposition, Baskin was never asked a direct question whether he
was facing Martinez when he was shot. In his Material Statement of Facts
filed in response to the summary judgment motion, however, Baskin asserted
that he “was standing with his hands up in the air facing [Detective] Martinez”
when shot -- the same assertion made in his complaint. (emphasis added).
                                       6
running with Detective Martinez in pursuit. She explained that when Baskin

ran behind the house and reached the wall, he placed his empty hands in the

air, and then Detective Martinez shot him. As Johnson described it, Baskin

“put his hands up and he turned around. And when he turned around, . . . he

just got shot.” At one point in her deposition testimony, she stated that Baskin

had completely turned around with his hands in the air when Martinez fired the

shot,4 and, at another point, she indicated that “it happened so fast, I’m not

sure if he was in the middle of turning around. I know his hands [were] in the

air, and you could see him turning around.” (emphasis added). She added, “I

really didn’t think it was right what happened . . . . I just know that I don’t

think he should have shot the boy.”

      Detective Martinez gave a very different account from Baskin and

Johnson. In his testimony, he explained that, during the chase, he lost sight of

Baskin, whom he had last seen carrying a handgun. After carefully and slowly

rounding the corner of a home until he gained a full view of the backyard,

Martinez observed Baskin standing with his back facing the detective.

Martinez stated that Baskin was turning around with his right arm extended

straight in front of him, pointing toward Martinez a black object that he



4
  Johnson was asked, “Was he completely turned around and his hands were in
the air and that’s when he got shot?” She responded, “Right.”
                                       7
believed to be a gun. At that moment, Martinez explained, “I was in fear for

my life, and I pulled the trigger and I hit him in the abdomen area.”

      Immediately afterward, several officers arrived at the scene and retrieved

two cell phones near where Baskin fell. Elsewhere in the yard, the officers

found a semiautomatic handgun, loaded with eleven hollow-point bullets.

Baskin was taken by ambulance to a nearby hospital where he was treated for

serious and permanent injuries. 5

                                       B.

      Despite that conflicting testimony, the trial court afforded Detective

Martinez qualified immunity and granted summary judgment in his favor,

dismissing Baskin’s Section 1983 action. 6 The trial court highlighted

Detective Martinez’s likely perceptions during the chase. Detective Martinez

knew that he was pursuing a suspect with a gun and had a right “to protect

himself against someone who was known to be armed.” In the court’s view,



5
  The Camden County Prosecutor’s Office investigated the shooting and
concluded that Detective Martinez was justified in using deadly force because
he “reasonably believed Bryheim Baskin’s actions placed him in imminent
danger of death or bodily injury.” Baskin pled guilty to four charges relating
to the events of that day: second-degree eluding, second-degree unlawful
possession of a weapon, third-degree resisting arrest, and possession of less
than half an ounce of cocaine with the intent to distribute.
6
  The trial court did not address Baskin’s state law claims, but evidently those
claims were dismissed as well.
                                       8
even if it were to disregard Martinez’s belief that Baskin had an object in his

hand, “the fact that [Baskin], when confronted in that alley by the officer,

turned towards the officer” entitled Detective Martinez to “qualified

immunity.” The court concluded that Martinez had an objectively reasonable

basis for using deadly force under those circumstances. The court commented,

“[w]hat Baskin didn’t do was get on the ground, be passive, or anything of that

nature.” In its final summary judgment assessment, the court hardly

acknowledged the testimony of Baskin and Johnson that Baskin’s hands were

over his head when he was shot.

                                       C.

      A split Appellate Division panel reversed in an unpublished opinion.

The two-judge majority noted that qualified immunity ordinarily is a question

of law to be decided by the court, after viewing the facts in the light most

favorable to the plaintiff. The panel majority added, however, that disputed

issues of material fact must be resolved by the jury. The majority faulted the

trial court for “improperly weigh[ing] the eyewitness’ observations.” In its

view, Baskin’s and Martinez’s accounts about “what occurred in the moments

just before [Baskin] was shot differ[ed] in material respects.”

      The majority observed that although Detective Martinez stated that he

shot Baskin because Baskin was pointing at him what appeared to be a gun, the

                                        9
trial court accepted that Martinez’s use of deadly force would have been

justified even if Baskin had no weapon in his hand -- and even if Baskin’s

hands were raised over his head. According to the majority, whether Baskin

pointed an object at Detective Martinez or whether Baskin put his empty hands

over his head were “significantly material” facts in dispute that bore on any

determination of the objective reasonableness of Martinez’s actions and his

entitlement to qualified immunity. The majority did not suggest that those

were necessarily the only material facts in dispute, emphasizing that the jury

would decide any “who-what-when-where-why type of historical fact issues,”

quoting Brown v. State, 230 N.J. 84, 99 (2017) (quoting Schneider v.

Simonini, 163 N.J. 336, 359 (2000)).

      The dissenting judge concluded that even taking into account all relevant

circumstances in the light most favorable to Baskin, Detective Martinez did

not violate Baskin’s federal constitutional rights. The dissenting judge

particularly focused on the events immediately before the shooting -- the fact

that Baskin had crashed his car into a police vehicle and then fled through a

residential neighborhood armed with a gun and therefore was a threat to the

pursuing officers.

      As to the critical moments in the backyard, the dissenting judge credited

the account that “Martinez shot Baskin as he turned to face Martinez

                                       10
immediately upon Martinez entering the backyard.” She also accepted that in

the “split second” that Martinez fired the shot, he “erred” because “Baskin was

not holding a gun”; and “for purposes of the motion, [Baskin’s hands] were

empty.” Nevertheless, the dissenting judge asserted, Martinez did not have “to

wait for a suspect he knew to be armed and extremely dangerous to swing all

the way around and face him so the detective could get a better look at the

suspect’s hands in the split second before he fired.” For that reason, she found

that “Detective Martinez’s mistake [was] an objectively reasonable one under

the ‘tense, uncertain, and rapidly evolving’ circumstances he faced,” quoting

Graham v. Connor, 490 U.S. 386, 397 (1989), and therefore would have

affirmed the trial court’s grant of summary judgment based on qualified

immunity.

                                        D.

      Defendants filed a notice of appeal as of right based on the dissent in the

Appellate Division. See N.J. Const. art. VI, § 5, ¶ 1(b); R. 2:2-1(a)(2). The

issue before this Court is limited to the one raised in the dissent -- whether

Detective Martinez was entitled to qualified immunity based on the summary

judgment record and therefore whether the trial court properly dismissed

Baskin’s Section 1983 lawsuit against defendants. See R. 2:2-1(a)(2).




                                        11
                                       E.

      The fault line dividing the Appellate Division majority and dissent

likewise divides the parties. Baskin urges this Court to affirm the two-judge

majority essentially for the reasons given in the majority opinion. Defendants

ask this Court to adopt the reasoning of the dissenting judge and to confer on

Detective Martinez qualified immunity and dismiss Baskin’s Section 1983

lawsuit.

                                       II.

                                       A.

      The primary focus of Baskin’s lawsuit is his claim brought under 42

U.S.C. § 1983. “Section 1983 provides a cause of action for ‘the deprivation

of any rights, privileges, or immunities secured by the Constitution and laws’

by any person acting ‘under color of any statute, ordinance, regulation,

custom, or usage, of any State or Territory.’” Gomez v. Toledo, 446 U.S. 635,

638 (1980) (quoting 42 U.S.C. § 1983). Essentially, “Section 1983 is a means

of vindicating rights guaranteed in the United States Constitution and federal

statutes.” Gormley v. Wood-El, 218 N.J. 72, 97 (2014).

      The specific constitutional right at issue here is the Fourth Amendment

right of every person to be free from “unreasonable” seizures. See U.S. Const.

amend. IV (declaring that “[t]he right of the people to be secure in their

                                       12
persons . . . against unreasonable searches and seizures, shall not be violated”).

The United States Supreme Court in Graham held that the use of excessive

force in the course of an arrest constitutes an unreasonable seizure under the

Fourth Amendment. See 490 U.S. at 394.7

      “While it is not always clear just when minimal police interference

becomes a seizure, there can be no question that apprehension by the use of

deadly force is a seizure subject to the reasonableness requirement of the

Fourth Amendment.” Tennessee v. Garner, 471 U.S. 1, 7 (1985) (citation

omitted); see also Brower v. County of Inyo, 489 U.S. 593, 595 (1989) (noting

that “a police officer’s fatal shooting of a fleeing suspect constitute[s] a Fourth

Amendment ‘seizure’” (citing Garner, 471 U.S. at 7)). The United States

Supreme Court has recognized that “[t]he intrusiveness of a seizure by means

of deadly force is unmatched. The suspect’s fundamental interest in his own

life need not be elaborated upon. The use of deadly force also frustrates the

interest of the individual, and of society, in judicial determination of guilt and

punishment.” Garner, 471 U.S. at 9.




7
  The Fourth Amendment is applicable to the states through the Due Process
Clause of the Fourteenth Amendment. Ker v. California, 374 U.S. 23, 33
(1963) (holding that the Fourth “Amendment’s proscriptions are enforced
against the States through the Fourteenth Amendment” and that “the standard
of reasonableness is the same under the Fourth and Fourteenth Amendments”).
                                       13
      The ultimate issue in analyzing any excessive-use-of-force claim under

the Fourth Amendment is whether, from the police officer’s perspective, the

use of force was objectively reasonable under all the circumstances. Graham,

490 U.S. at 396-97; Saucier v. Katz, 533 U.S. 194, 201-02 (2001), overruled

on other grounds by Pearson v. Callahan, 555 U.S. 223 (2009). In making that

assessment, a court does not view the events at issue “with the 20/20 vision of

hindsight.” Graham, 490 U.S. at 396. “The calculus of reasonableness must

embody allowance for the fact that police officers are often forced to make

split-second judgments -- in circumstances that are tense, uncertain, and

rapidly evolving -- about the amount of force that is necessary in a particular

situation.” Id. at 396-97. Among the factors that should be considered in

evaluating the reasonableness of an officer’s use of force are “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.

      To be sure, however, the United States Supreme Court has given notice

that “[a] police officer may not seize an unarmed, nondangerous suspect by

shooting him dead.” Garner, 471 U.S. at 11. A police officer may only use

deadly force against a suspect when “the officer reasonably believes that the

suspect poses a threat of serious bodily injury to the officer or others.”

                                        14
Lamont v. New Jersey, 637 F.3d 177, 185 (3d Cir. 2011) (citing Garner, 471

U.S. at 3, 11; Abraham v. Raso, 183 F.3d 279, 294 (3d Cir. 1999)); see also

O’Bert ex rel. Estate of O’Bert v. Vargo, 331 F.3d 29, 36 (2d Cir. 2003) (“It is

not objectively reasonable for an officer to use deadly force to apprehend a

suspect unless the officer has probable cause to believe that the suspect poses a

significant threat of death or serious physical injury to the officer or others.”).

      With those general principles in mind, we turn to the doctrine of

qualified immunity.

                                         B.

      The doctrine of qualified immunity generally protects government

officials from civil liability for discretionary acts that do “not violate clearly

established statutory or constitutional rights of which a reasonable person

would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

Qualified immunity is intended to spare deserving public officials of the costs

and expenses of litigation and standing trial, and therefore the qualified

immunity defense is typically interposed early in the proceedings of a case ,

Saucier, 533 U.S. at 200-01, such as on a motion for summary judgment,

Morillo v. Torres, 222 N.J. 104, 119 (2015). Whether an official is entitled to

the shield of qualified immunity ordinarily is a question of law to be decided

by the court. Brown, 230 N.J. at 98-99; see also Scott v. Harris, 550 U.S. 372,

                                         15
381 n.8 (2007) (noting that after the court has “drawn all inferences in favor of

the nonmoving party to the extent supportable by the record,” the

reasonableness of a police officer’s actions “is a pure question of law”).

      In determining whether qualified immunity applies in a particular case, a

court ordinarily must address two issues: (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.

Saucier, 533 U.S. at 201-02; see also Morillo, 222 N.J. at 117-18.8 “[A] right

is clearly established” if “it would be clear to a reasonable officer that his

conduct was unlawful in the situation he confronted.” Saucier, 533 U.S. at

202. In other words, “[t]he contours of the right must be sufficiently clear that

a reasonable official would understand that what he is doing violates that

right.” Gormley, 218 N.J. at 113 (alteration in original) (quoting Anderson v.

Creighton, 483 U.S. 635, 640 (1987)); see also Hope v. Pelzer, 536 U.S. 730,

741 (2002) (holding that cases involving “fundamentally similar” or


8
  Since Saucier, the Supreme Court has clarified that courts have the
discretion to address first the second prong -- whether the right was “clearly
established” -- because a determination of that prong may be dispositive of the
issue of qualified immunity. See Pearson v. Callahan, 555 U.S. 223, 236-37
(2009). If the right at issue is not clearly established, then the officer alleged
to have violated that right will be entitled to qualified immunity. See id. at
243-45.
                                         16
“materially similar” facts are not necessary for a clearly established finding,

but rather, the “salient question” is whether the law gave the officer “fair

warning” that his conduct was unlawful).

                                        C.

      Under the qualified immunity jurisprudence discussed, we are required

not only to view the evidence in the light most favorable to Baskin, but also to

draw all reasonable inferences in his favor that are supported by the summary

judgment record. See Gormley, 218 N.J. at 86 (“[W]e must . . . view the

summary-judgment record through the prism of [the plaintiff’s] best case,

giving [the plaintiff] -- the non-moving party -- the benefit of the most

favorable evidence and most favorable inferences drawn from that evidence.”).

At this stage, we cannot give credence to Detective Martinez’s account of the

last moments of his encounter with Baskin, and we do not resolve disputed

issues of material fact as would a jury. We must accept as true the testimony

of Baskin and Johnson 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. Perhaps, Baskin

was in the act of turning at that moment, but even that is a disputed fact.

Indeed, by placing his hands above his head and without saying a word, as




                                        17
Baskin claims, he signaled in a language universally understood his intent to

surrender.

      Our constitutional jurisprudence makes clear what every police officer

understands -- 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. Jurisdictions that have addressed that scenario embrace that

simple and seemingly incontrovertible proposition.

      In Hemphill v. Schott, the plaintiff in a Section 1983 civil rights action

had committed serious crimes, including assault with a deadly weapon, when

confronted by a police officer. 141 F.3d 412, 417 (2d Cir. 1998). Accepting

as true the plaintiff’s “version of the facts” for summary judgment purposes,

the United States Court of Appeals for the Second Circuit concluded that the

officer’s “alleged decision to use potentially deadly force upon a suspect who

stopped and raised his arms in the air when commanded to do so [did] not

qualify as reasonable” under the circumstances. Ibid. The court reasoned that,

although the plaintiff was suspected of committing an “extremely violent”

crime, “to allow the nature of the crime alone to justify the use of such severe

force would thwart a central purpose of the Fourth Amendment limitations on

use of force in making arrests, which is to preserve determination of guilt and

punishment for the judicial system.” Ibid. Thus, the court concluded that the

                                       18
plaintiff’s “statement of facts, construed most favorably to him, describe[d] a

constitutionally unreasonable seizure” and therefore held that the trial court

erred in granting summary judgment on qualified immunity grounds. Id. at

417-18.

      In Gray-Hopkins v. Prince George’s County, a Section 1983

excessive-force case, the summary judgment record presented two starkly

different accounts of the shooting death of Hopkins after the police stopped the

car in which he was a passenger. 309 F.3d 224, 227-28 (4th Cir. 2002). In the

defendants’ version, Hopkins grabbed an officer’s gun and struggled for

control of that gun when another officer fatally shot him. Id. at 228. In the

plaintiff’s version, Hopkins exited the vehicle and had his hands raised, and at

no point threatened the officer or grabbed for his gun when he was shot dead

by the other officer. Ibid. The United States Court of Appeals for the Fourth

Circuit affirmed the district court’s denial of qualified immunity because,

based on the evidence supporting plaintiff’s version, Hopkins was not resisting

arrest or posing a threat to the safety of the officers and had “his hands raised

over his head at the time of the fatal shot.” Id. at 230-31. On those facts, the

court held that “a trier of fact could clearly conclude that a Fourth Amendment

violation occurred.” Id. at 231.




                                        19
      Other jurisdictions have reached similar conclusions when a suspect had

placed his hands in the air in an act of surrender. See, e.g., Henderson as Tr.

for Henderson v. City of Woodbury, 909 F.3d 933, 939-40 (8th Cir. 2018)

(finding that the trial court erred by granting qualified immunity because,

based on the plaintiff’s version of the facts, the suspect “fully and

unequivocally surrendered to police, lay still, and was shot and killed anyway ”

in violation of the suspect’s “clearly established constitutional rights”);

Longoria v. Pinal County, 873 F.3d 699, 709-11 (9th Cir. 2017) (reversing

grant of qualified immunity because material facts were disputed and because

the suspect’s “Fourth Amendment right not to be shot dead while unarmed,

surrounded by law enforcement, and in the process of surrendering [was]

clearly established”); Kanae v. Hodson, 294 F. Supp. 2d 1179, 1185-86 (D.

Haw. 2003) (“In [the plaintiff’s] version of events, [the officer] could see [the

plaintiff’s] hands in the air and therefore knew that shooting [him] would

clearly violate [his] Fourth Amendment rights. Accordingly, the court

concludes that [the officer] has not established that he is entitled to summary

judgment on qualified immunity grounds.” (emphasis added)); see also

Ciminillo v. Streicher, 434 F.3d 461, 467-69 (6th Cir. 2006) (denying qualified

immunity and noting that courts have found that it is not objectively

reasonable to use deadly force even “against a visibly armed plaintiff who had

                                        20
his hands over his head in the surrender position” (internal quotation

omitted)).9

      The law is also clear that a suspect’s conduct leading up to his attempt to

surrender cannot alone justify shooting the suspect -- using deadly force

against him -- when his hands are above his head in an act of submission and

he no longer poses a threat. Thus, “an exercise of force that is reasonable at

one moment can become unreasonable in the next if the justification for the

use of force has ceased.” Lytle v. Bexar County, 560 F.3d 404, 413 (5th Cir.

2009); see also Lamont, 637 F.3d at 184 (“Even where an officer is initially

justified in using force, he may not continue to use such force after it has

become evident that the threat justifying the force has vanished.”); Waterman


9
  A case that reached a different conclusion is not in any way similar to the
circumstances here. In Conde ex rel. Estate of Mack v. City of Atlantic City, a
police officer responded to a report of a man armed with a gun. 293 F. Supp.
3d 493, 497 (D.N.J. 2017). On his arrival at the scene, the officer commanded
Derrick Mack to stop. Id. at 505. Mack turned toward the officer with only
one hand raised and the other hand near his waistband area. Id. at 502-03.
Independent eyewitnesses supported the officer’s version of events. Id. at 503-
04. One eyewitness explained that Mack never fully stopped and that “both
hands did not come straight up in the air in a surrender posture.” Id. at 503.
Instead, Mack’s “left [hand] came up first and then the right began to rise as
Mack appeared to turn toward the officer.” Ibid. It was then that the officer
shot Mack, who later died of his wounds. Id. at 497-98, 502. On that
summary judgment record, the district court concluded that “the undisputed
evidence shows that, at the very least, the possibility existed for Mack to reach
into his waistband, where [the officer] and others state he holstered the
weapon.” Id. at 506. On those facts, the court granted the officer qualified
immunity. Id. at 501-02. The summary judgment record here is very different.
                                        21
v. Batton, 393 F.3d 471, 481 (4th Cir. 2005) (“[F]orce justified at the

beginning of an encounter is not justified even seconds later if the justification

for the initial force has been eliminated.”); Ellis v. Wynalda, 999 F.2d 243,

247 (7th Cir. 1993) (“When an officer faces a situation in which he could

justifiably shoot, he does not retain the right to shoot at any time thereafter

with impunity.”).

                                        III.

      The law is not in doubt here, however disputed the facts may be about

whether Baskin’s hands were empty and up in the air just moments before the

shooting. Although for qualified immunity purposes, we must consider the

totality of the circumstances through the perspective of an objectively

reasonable police officer on the scene -- an officer facing “tense, uncertain,

and rapidly evolving” events, Graham, 490 U.S. at 396-97 -- we must also

accept Baskin’s version of those events that are in dispute and draw all

reasonable inferences in his favor. In rendering a decision on qualified

immunity, we do not sit as a trier of fact, weighing the evidence and making

credibility determinations. That role is exclusively reserved for the jury in our

system of justice.

      We understand that police officers must often make split-second

decisions in highly volatile situations. We do not minimize the challenges or

                                        22
dangers facing a police officer engaged in pursuit of a suspect who is observed

carrying a gun. Here, Baskin does not dispute that he attempted to elude the

police, crashing his car into Detective Martinez’s unmarked patrol vehicle, and

that he took flight armed with a gun. We accept that Detective Martinez had a

legitimate and obvious basis to be concerned for his safety. During the chase,

had Baskin turned toward him with the gun in his hand, Detective Martinez

would likely have had an objectively reasonable basis to use deadly force to

protect himself from the threat of death or serious bodily injury. However, the

justification for use of deadly force at one point in 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. See, e.g., Lytle, 560 F.3d at 413. Although police

officers would have a right to use deadly force against a suspect during a gun

battle, they would not have a right to shoot the suspect after he threw down his

weapon, placed his hands over his head, and surrendered. Cf. Lamont, 637

F.3d at 184.

      Detective Martinez said that when he rounded the corner of the house,

Baskin turned toward him pointing an object that appeared to be a gun. If that

account were uncontested, and the object was, say a cell phone, Detective

Martinez’s objectively reasonable mistake of fact would not preclude his

entitlement to qualified immunity. See Saucier, 533 U.S. at 205 (“If an officer

                                       23
reasonably, but mistakenly, believed that a suspect was likely to fight back, for

instance, the officer would be justified in using more force than in fact was

needed.”).

      But that account is sharply contested. And as earlier noted, under the

qualified immunity and summary judgment standards that govern our review,

based on the testimony of Baskin and a neighborhood eyewitness, we must

accept that Baskin had his empty hands above his head in a sign of surrender,

made no threatening gestures, and no longer posed a threat. Under that

scenario, an objectively reasonable police officer would not have had a

justification to use deadly force.

      The two conflicting accounts of what occurred at the time of the

shooting, and any other disputed issues of material fact, must be submitted to a

jury for resolution. See Brown, 230 N.J. at 99. After the jury makes its

ultimate findings, the trial court can determine the merits of the application for

qualified immunity. See ibid.

                                       IV.

      In summary, the law prohibiting the use of deadly force against a

surrendering suspect -- one with empty hands in the air and posing no

imminent threat -- was clearly established at the time of the events in this case.

Based on the facts that we must accept as true for purposes of determining the

                                        24
issue of qualified immunity on the summary judgment record, an objectively

reasonable police officer would not have been justified in using deadly force.

Therefore, the trial court erred in granting Detective Martinez qualified

immunity and dismissing Baskin’s Section 1983 lawsuit. Where the ultimate

truth lies is a matter for a jury to determine. After the jury makes its

factfindings, Detective Martinez is free to renew his qualified immunity

application if there is a basis to do so.

      Accordingly, we affirm the judgment of the Appellate Division and

remand for proceedings consistent with this opinion.



       CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA and TIMPONE
join in JUSTICE ALBIN’s opinion. JUSTICE SOLOMON filed a dissent, in
which JUSTICES PATTERSON and FERNANDEZ-VINA join.




                                            25
                    SUPREME COURT OF NEW JERSEY
                         A-70 September Term 2018
                                    081982


                            Bryheim Jamar Baskin,

                             Plaintiff-Respondent,

                                       v.

                     Rafael Martinez, City of Camden and
                              Scott Thompson,

                            Defendants-Appellants.


                      JUSTICE SOLOMON, dissenting.


      This appeal as of right requires the Court to determine whether the

Appellate Division correctly reversed the trial court’s grant of summary

judgment in favor of a police officer who pursued and shot a fleeing suspect.

It is undisputed that the suspect possessed a handgun throughout the pursuit

and, while out of the officer’s view, discarded his weapon in the backyard

where he was shot. It is disputed whether the suspect’s hands were empty and

raised as he turned toward the officer and was shot.

      The Appellate Division majority concluded that the contents and

position of the suspect’s hands were disputed material facts precluding

summary judgment. The dissent asserted that the qualified immunity doctrine

                                       1
required that summary judgment be granted in favor of the officer because his

actions were reasonable considering the totality of the circumstances,

irrespective of the disputed facts.

      The majority concludes that viewing the disputed facts in the light most

favorable to the suspect -- who resisted arrest, crashed into a police car, and

fled on foot through a residential neighborhood while armed with a handgun --

the officer’s use of deadly force as he turned a blind corner and, for an instant,

saw the suspect turn with raised hands, was the result of an unreasonable

“mistaken understanding.” Saucier v. Katz, 533 U.S. 194, 205 (2001). I

disagree. Even if a jury were to resolve the disputed facts in Baskin’s favor,

Martinez would still be entitled to qualified immunity, and therefore I dissent.

                                        I.

      The summary judgment record reveals that early one afternoon, the

Camden Police Department deployed its Strategic Multi-Agency Shooting and

Homicide Team (the Team), consisting of two unmarked police vehicles and

five uniformed police officers, to canvass a high-crime neighborhood where

there had been recent shootings. While on patrol, the Team observed plaintiff

Bryheim Jamar Baskin enter a vehicle and exit a parking lot without signaling .

The Team arranged for one unit to provide backup while the other performed a

vehicle stop.

                                        2
      Baskin initially pulled over, but then sped off in reverse and crashed into

the backup vehicle occupied by Detective Rafael Martinez and his partner.

After the collision, Baskin got out of his car and fled on foot. Martinez gave

chase and heard an officer yell “gun.” Martinez also observed the butt of a

handgun in Baskin’s right pocket during the chase.

      Followed by other officers, Martinez pursued Baskin through a

residential area and over several fences. As Baskin turned down an alley, the

handgun fell from his pocket, and Martinez observed Baskin reach down, pick

it up, and continue on, pistol in hand. As Martinez moved through the alley,

he lost sight of Baskin, who ran into a backyard, where a wall blocked his exit.

At that time, Martinez unholstered his service weapon and continued the

pursuit. Once Martinez neared the end of the alley, he positioned himself to

gain a full view of the backyard, unaware that a wall blocked Baskin’s exit. At

that moment, Baskin began to turn around. Martinez fired a single round into

Baskin’s torso.

      Baskin was taken by ambulance to a nearby hospital where he was

treated for serious and permanent injuries and survived. At the time of

Baskin’s arrest, he possessed $1000 and less than a half-ounce of cocaine. In

addition, the police retrieved two cell phones near where Baskin fell, and a




                                       3
semiautomatic handgun loaded with eleven hollow-point bullets elsewhere in

the backyard.

      The Camden County Prosecutor’s Office (the Prosecutor’s Office)

investigated the incident. The Prosecutor’s Office concluded that Martinez’s

actions were justified under N.J.S.A. 2C:3-4 and 3-5 because he “reasonably

believed Bryheim Baskin’s actions placed him in imminent danger of death or

bodily injury.” The New Jersey Attorney General’s Office, Division of

Criminal Justice, reviewed the Prosecutor’s Office’s investigation and agreed

with its determination. Baskin was later charged in a fourteen-count

indictment and pled guilty to four of the criminal charges filed against him:

second-degree eluding an officer, N.J.S.A. 2C:29-2; second-degree unlawful

possession of a weapon, N.J.S.A. 2C:39-5; third-degree resisting arrest,

N.J.S.A. 2C:29-2; and possession with intent to distribute less than half an

ounce of cocaine, N.J.S.A. 2C:35-5. Baskin was ultimately sentenced to a

four-year term of imprisonment.

      During his plea colloquy, Baskin admitted he was aware police officers

“pulled up behind [him] and attempted to stop [his] vehicle.” Baskin

acknowledged that “instead of stopping, [he] attempted to elude those officers

by speeding off at a high rate of speed,” thereby “creat[ing] a risk of harm or

injury to the pursuing officers and also to the population [and] community at

                                        4
large.” Baskin also testified that, at times during the pursuit, he looked back to

see if the uniformed police officers continued to pursue him.

      Thereafter, Baskin filed a complaint under 42 U.S.C. § 1983 (Section

1983) against Martinez, the City of Camden, and the Chief of Police of the

Camden Police Department (collectively, defendants). Baskin claimed that

Martinez’s use of excessive force at the time of Baskin’s apprehension and

arrest violated his federal constitutional rights.

      Baskin testified in a deposition taken during discovery in the Section

1983 action that his path was blocked by a brick wall at the end of the

backyard where he was shot, and that he discarded his handgun in that yard,

remained silent, and put his empty, open hands up near his ears to signal his

surrender. According to Baskin, he was shot as he turned to face Martinez.

An eyewitness, in a statement to police and at her deposition, stated that

Baskin was shot when he put his empty hands in the air and began to turn

around. No evidence places Baskin’s hands above his head when he was shot.

      At Martinez’s deposition in the Section 1983 action, he testified that he

proceeded down the alley believing Baskin was armed. Martinez stated that as

Baskin turned around, his arms were extended at a “90-degree angle,”

“pointing straight in front of him,” and that he had a “black object” “[i]n his

right hand.”

                                         5
      At the conclusion of discovery, the trial court granted defendants’

motion for summary judgment, finding that Martinez was entitled to qualified

immunity because his use of deadly force was reasonable under the totality of

the circumstances. Baskin appealed. The Appellate Division reversed in a

split decision. The majority concluded that the contents and position of

Baskin’s hands during the shooting were disputed issues of material fact

precluding summary judgment. The dissenting judge asserted that Martinez is

entitled to qualified immunity because he acted reasonably under the totality of

the circumstances, even under Baskin’s version of the disputed facts; I agree.

                                        II.

      Baskin brought this action under Section 1983, which “provides a cause

of action for a person who has been deprived of his or her well-established

federal constitutional or statutory rights by any person acting under the color

of state law.” Schneider v. Simonini, 163 N.J. 336, 353 (2000). A police

officer like Martinez, performing his or her official duties, acts under the color

of state law. See State v. Crawley, 187 N.J. 440, 460-61 (2006) (holding that a

police officer who lawfully performs official functions and acts in objective

good faith operates “under color of law in the execution of his duties”).

      The doctrine of qualified immunity, meanwhile, allows police officers

“to perform their duties without being encumbered by the specter of being

                                        6
sued personally for damages, unless their performance is not objectively

reasonable.” Morillo v. Torres, 222 N.J. 104, 108 (2015). Qualified immunity

thus serves as an affirmative defense to shield law enforcement from liability

for discretionary actions taken while acting reasonably under the color of state

law. Brown v. State, 230 N.J. 84, 97-98 (2017). In this way, “[q]ualified

immunity protects all officers ‘but the plainly incompetent or those who

knowingly violate the law.’” Connor v. Powell, 162 N.J. 397, 409 (2000)

(quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)); see, e.g., Morillo, 222

N.J. at 108 (dismissing civil rights causes of action because “[i]t cannot be

said as a matter of law that no reasonably competent officer would have

believed that probable cause existed”).

      In practice, the “defense of qualified immunity interposes a significant

hurdle for plaintiffs seeking to recover for asserted violations of civil rights at

the hands of law-enforcement officials.” Morillo, 222 N.J. at 116. That hurdle

comes into particularly sharp relief at the summary judgment stage. Generally,

summary judgment is proper when, viewed in the light most favorable to the

non-moving party, “the pleadings, depositions, answers to interrogatories and

admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact challenged and that the moving party is

entitled to a judgment or order as a matter of law.” RSI Bank v. Providence

                                          7
Mut. Fire Ins. Co., 234 N.J. 459, 472 (2018) (quoting R. 4:46-2(c)). In the

qualified immunity context, “if ‘a reasonable officer could have believed that

his conduct was justified,’ the police officer is entitled to qualified immunity ”

-- and, thus, summary judgment -- as a matter of law. Conde v. City of

Atlantic City, 293 F. Supp. 3d 493, 506 (D.N.J. 2017) (quoting City & County

of San Francisco v. Sheehan, 575 U.S. 600, 135 S. Ct. 1765, 1777 (2015)).

      Generally, “application of the defense of qualified immunity is a legal

question for the court rather than the jury” that should be raised before trial.

Brown, 230 N.J. at 98-99; see also Pearson v. Callahan, 555 U.S. 223, 232

(2009) (noting “the importance of resolving immunity questions at the earliest

possible stage in litigation” (quoting Hunter v. Bryant, 502 U.S. 224, 227

(1991))). Because the grant of qualified immunity “relieves an eligible

defendant from the burden of trial,” Brown, 230 N.J. at 99, “a summary

judgment motion is an appropriate vehicle for deciding that threshold question

of immunity when raised,” Morillo, 222 N.J. at 119.

      Courts apply a two-pronged test in analyzing whether an officer is

entitled to qualified immunity. Bennett v. Murphy, 274 F.3d 133, 136-37 (3d

Cir. 2001); see also Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). First, a

court must determine whether, “‘[t]aken in the light most favorable to the party

asserting the injury,’” the facts alleged “show that the challenged conduct

                                         8
violated a statutory or constitutional right. Second, the court must determine

‘whether the right was clearly established.’” Morillo, 222 N.J. at 117

(alteration in original) (citation omitted) (quoting Saucier, 533 U.S. at 201).

“An officer might correctly perceive all of the relevant facts but have a

mistaken understanding as to whether a particular amount of force is legal in

those circumstances. If the officer’s mistake as to what the law requires is

reasonable, however, the officer is entitled to the immunity defense.” Saucier,

533 U.S. at 205.

      Courts decide the legal issue of qualified immunity by applying that test

when there are no disputed material historical or foundational facts. Morillo,

222 N.J. at 119. Where material facts are in dispute, however, the jury may

determine “the who-what-when-where-why type of historical fact issues.”

Brown, 230 N.J. at 99 (quoting Schneider, 163 N.J. at 359); see Curley v.

Klem, 298 F.3d 271, 278 (3d Cir. 2002) (“[T]he existence of disputed,

historical facts material to the objective reasonableness of an officer’s conduct

will give rise to a jury issue.”); see also Hill v. Algor, 85 F. Supp. 2d 391, 401

(D.N.J. 2000) (“[W]here factual issues relevant to the determination of

qualified immunity are in dispute, the Court cannot resolve the matte r as a

question of law.”). But cf. Schneider, 163 N.J. at 360 (“hold[ing] that[,] in

Section 1983 cases when disputed historical facts are relevant to either

                                        9
probable cause or the existence of a reasonable, but mistaken, belief

concerning its existence, the trial court must submit the disputed factual issue

to the jury,” but finding that trial court’s resolution of factual dispute was

“harmless error” in light of Court’s probable cause analysis).

      To resolve whether Martinez acted in an objectively reasonable manner

and was thus entitled to qualified immunity as a matter of law or whether a

factual dispute required that the case be presented to a jury, we consider the

specific contours of Baskin’s Section 1983 claim. See Saucier, 533 U.S. at

205 (holding that the qualified immunity inquiry “must accommodate limitless

factual circumstances”).

                                        III.

      The right to be free from “unreasonable searches and seizures” under the

Fourth Amendment of the United States Constitution is the well-established

constitutional right Baskin asserts was violated in this case. Baskin contends

that he had a “clearly established” constitutional right to be free from

Martinez’s use of deadly force, which was “excessive under objective

standards of reasonableness.” Id. at 201-02; see also Kopec v. Tate, 361 F.3d

772, 776-78 (3d Cir. 2004) (Fourth Amendment allows law enforcement to

exercise only “objectively reasonable” force in effectuating arrest). Martinez

counters that Baskin’s constitutional right was not clearly established because

                                        10
“a reasonable officer could have believed that [Martinez’s] conduct was

justified.” Sheehan, 135 S. Ct. at 1777. The Court is obliged to consider what

constitutes a “clearly established” right for qualified immunity purposes in

general and in the context of an alleged violation of the Fourth Amendment in

particular.

                                        A.

      Many Section 1983 cases rise or fall on the “clearly established” prong

of qualified immunity. See, e.g., Brown, 230 N.J. at 90 (holding officer did

not violate clearly-established right given “the lack of clarity in the law”);

Morillo, 222 N.J. at 125 (“This was not a setting in which the application of

the statutory exemption . . . was ‘clearly established’ in the framework of our

law.”).

      A clearly established right is one of which the contours are “sufficiently

clear that a reasonable official would understand that what he is doing violates

that right.” Saucier, 533 U.S. at 202 (quoting Anderson v. Creighton, 483 U.S.

635, 640 (1987)). “The dispositive point in determining whether a right is

clearly established is whether a reasonable officer in the same situation clearly

would understand that his actions were unlawful.” Morillo, 222 N.J. at 118.

In other words, “[i]f it would not have been clear to a reasonable officer what




                                        11
the law required under the facts alleged, he is entitled to qualified immunity.”

Bennett, 274 F.3d at 136-37 (emphasis added).

      As such, it is a “longstanding principle that ‘clearly established law’

should not be defined ‘at a high level of generality.’” White v. Pauly, 580

U.S. ___, 137 S. Ct. 548, 552 (2017) (quoting Ashcroft v. al-Kidd, 563 U.S.

731, 742 (2011)). Indeed, “the clearly established law must be ‘particularized’

to the facts of the case.” Ibid. (quoting Anderson, 483 U.S. at 640); see

Sheehan, 135 S. Ct. at 1776 (“Qualified immunity is no immunity at all if

‘clearly established’ law can simply be defined as the right to be free from

unreasonable searches and seizures.”). A contrary standard would allow

plaintiffs “to convert the rule of qualified immunity . . . into a rule of virtually

unqualified liability simply by alleging violation of extremely abstract rights.”

White, 137 S. Ct. at 552 (quoting Anderson, 483 U.S. at 639).

                                         B.

      Importantly, the Supreme Court of the United States has emphasized that

the “clearly established” prong’s requisite particularity and “specificity [are]

especially important in the Fourth Amendment context.” Mullenix v. Luna,

577 U.S. ___, 136 S. Ct. 305, 308 (2015).

      Once again, the “use of force is contrary to the Fourth Amendment if it

is excessive under objective standards of reasonableness.” Saucier, 533 U.S.

                                         12
at 202. The Fourth Amendment’s reasonableness standard “is not capable of

precise definition or mechanical application.” Bell v. Wolfish, 441 U.S. 520,

559 (1979). As such, courts take a “totality of the circumstances” approach in

analyzing the reasonableness of a law enforcement officer’s use of force. See

Tennessee v. Garner, 471 U.S. 1, 8-9 (1985); see also Abraham v. Raso, 183

F.3d 279, 289 (3d Cir. 1999) (“[R]easonableness should be assessed in light of

the ‘totality of the circumstances . . . .’” (quoting Graham v. Connor, 490 U.S.

386, 396 (1989))).

      Proper application of the reasonableness test requires special “attention

to the facts and circumstances of each particular case, including the severity of

the crime at issue, whether the suspect poses an immediate threat to the safety

of the officers or others, and whether [the suspect] is actively resisting arrest

or attempting to evade arrest by flight.” DelaCruz v. Borough of Hillsdale,

183 N.J. 149, 165 (2005) (quoting Graham, 490 U.S. at 396). The analysis

also “requires a careful balancing of the nature and quality of the intrusion on

the individual’s Fourth Amendment interests against the countervailing

governmental interests at stake.” Curley, 499 F.3d at 207 (quoting Graham,

490 U.S. at 396).

      When balancing the government’s interest against the nature of the

intrusion, the reasonableness of an officer’s “use of force must be judged from

                                        13
the perspective of a reasonable officer on the scene, rather than with the 20/20

vision of hindsight.” DelaCruz, 183 N.J. at 165 (quoting Graham, 490 U.S. at

396). That allows reviewing courts to take into account that “police officers

are often forced to make split-second judgments -- in circumstances that are

tense, uncertain, and rapidly evolving -- about the amount of force that is

necessary in a particular situation.” Id. at 167-68 (quoting Graham, 490 U.S.

at 396-97). Hence, the Fourth Amendment does not require that an officer be

correct -- it merely requires that the officer act reasonably. See Heien v. North

Carolina, 574 U.S. 54, 60-61 (2014) (“To be reasonable is not to be perfect,

and so the Fourth Amendment allows for some mistakes on the part of

government officials . . . .”); see also Bennett, 274 F.3d at 137 (“An officer

may still contend that he reasonably, but mistakenly, believed that his u se of

force was justified by the circumstances as he perceived them . . . .”);

DelaCruz, 183 N.J. at 167 (“[A]n officer is free to argue that his conduct was

reasonable in conjunction with his version of the facts.”).

      The Court’s emphasis on specificity in the context of a qualified

immunity analysis in response to an alleged violation of the Fourth

Amendment recognizes that “[i]t is sometimes difficult for an officer to

determine how the relevant legal doctrine, here excessive force, will apply to




                                       14
the factual situation the officer confronts.” Mullenix, 136 S. Ct. at 308

(alteration in original) (quoting Saucier, 533 U.S. at 205).

      For example, in Brosseau v. Haugen, the Supreme Court of the United

States reversed the Ninth Circuit’s denial of qualified immunity to an officer

who shot and killed a fleeing felon. 543 U.S. 194, 201 (2004). The Ninth

Circuit had found that the officer violated the rule set forth in Garner -- that

“deadly force is only permissible where ‘the officer has probable cause to

believe that the suspect poses a threat of serious physical harm, either to the

officer or to others.’” Haugen v. Brosseau, 339 F.3d 857, 873 (9th Cir. 2003)

(quoting Garner, 471 U.S. at 11). The Supreme Court disagreed and held that

the circuit court’s reliance on the “general test[]” for excessive force set out in

Garner “was mistaken.” Brosseau, 543 U.S. at 199. The correct inquiry, the

Court explained, was whether it was clearly established that the Fourth

Amendment prohibited the officer’s conduct in the “‘situation [she]

confronted’: whether to shoot a disturbed felon, set on avoiding capture

through vehicular flight, when persons in the immediate area [were] at risk

from that flight.” Id. at 199-200 (quoting Saucier, 533 U.S. at 202).

      Similarly, in Mullenix, the issue before the Supreme Court was whether

the Fifth Circuit properly held that a police officer violated a clearly

established right when he shot and killed a fleeing motorist during a

                                        15
high-speed chase. 136 S. Ct. at 307-08. The Court discussed excessive force

cases that involved car chases, “reveal[ing] the hazy legal backdrop against

which [the officer] acted.” Id. at 309. According to the Court, even accepting

that the factual circumstances before it “fall somewhere between” cases in

which the force used was found excessive and those in which it was found to

be reasonable, “qualified immunity protects actions in the ‘hazy border

between excessive and acceptable force.’” Id. at 312 (quoting Brosseau, 543

U.S. at 201).

      Those cases reveal the context-dependent inquiry that must be performed

here to determine whether Martinez is entitled to qualified immunity.

Although Martinez used deadly force against Baskin, the use of deadly force is

not per se unreasonable. Garner, 471 U.S. at 11. The Court must therefore

consider Martinez’s use of deadly force in the totality of the circumstances

present in this case. Graham, 490 U.S. at 396.

                                      IV.

      I agree with the Appellate Division dissent that summary judgment is not

precluded by the existence of a genuine issue of fact as to whether Baskin’s

hands were empty and raised at the time of his shooting. See, e.g., Conde, 293

F. Supp. 3d at 505-06 (holding that the officer’s use of deadly force was not

unreasonable where the suspect’s hands were raised because the possibility

                                       16
existed for the suspect to reach into his waistband for the weapon he was

believed to be carrying). Even if an officer is mistaken in believing a suspect

is armed, qualified immunity will still apply if the officer’s mistaken belief

was objectively reasonable. See, e.g., Krueger v. Fuhr, 991 F.2d 435, 439 (8th

Cir. 1993) (noting that, “even assuming” the suspect fatally shot by an officer

was established to have been “unarmed at the time of the shooting, that fact

would not preclude entry of [summary] judgment” in favor of the officer

whose “belief that he was facing an armed and dangerous suspect was

objectively reasonable”); Conde, 293 F. Supp. 3d at 505 (“[A]s long as [the

officer’s] belief that [the suspect] was armed is reasonable, qualified immunity

applies even if [the officer] was mistaken.”). Furthermore, Martinez’s actions

are considered “from the perspective of a reasonable officer on the scene,

rather than with the 20/20 vision of hindsight.” DelaCruz, 183 N.J. at 165

(quoting Graham, 490 U.S. at 396). Even if Baskin’s account of the events is

accepted as true for purposes of summary judgment, Martinez reasonably

believed that he confronted an armed and dangerous suspect who posed an

immediate threat to his life when he shot Baskin.

      Here, before he was restrained, Baskin threatened the lives of police

officers and the general public by speeding away from one police vehicle and

crashing into another. Baskin, armed with a gun, then fled the scene of the

                                       17
crash on foot and led the police on a pursuit through a residential

neighborhood in the middle of the afternoon. Baskin thus “openly . . .

exhibited a total willingness to commit dangerous acts against police officers ”

and displayed an “apparent disregard for innocent bystanders.” Ridgeway v.

City of Woolwich Twp. Police Dep’t, 924 F. Supp. 653, 658 (D.N.J. 1996).

      Additionally, Baskin posed “an immediate” threat because he was in

possession of a handgun while actively resisting arrest. DelaCruz, 183 N.J. at

165 (quoting Graham, 490 U.S. at 396). Those facts reasonably led Martinez

to conclude that Baskin, who had committed serious crimes “involving the

infliction or threatened infliction of serious physical harm” -- crashing into a

police vehicle in an attempt to escape -- was dangerous and willing to use

deadly force against the officer and others. Garner, 471 U.S. at 11-12.

      Martinez unholstered his service weapon only after he entered the alley

and observed Baskin pick up the gun from the ground and run out of

Martinez’s view into a backyard. It was then that Baskin threw his gun away.

As Martinez rounded the corner and for an instant saw Baskin turn towards

him, Martinez’s belief that Baskin was armed -- even if mistaken -- was

reasonable given the “tense, uncertain, and rapidly evolving” circumstances

before him. DelaCruz, 183 N.J. at 167 (quoting Graham, 490 U.S. at 397).




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      The totality of the circumstances establishes that a reasonable officer at

the scene would have no reason to know, in the split second that Martinez fired

his weapon, that Baskin no longer possessed a gun. Thus, considering the

alleged facts in a light most favorable to Baskin -- that his hands were empty

and raised -- Martinez’s belief in the need to use deadly force to prevent

Baskin’s escape and protect against the threat of danger Baskin posed to

Martinez and others was reasonable given the totality of the circumstances

from the perspective of an officer on the scene. Particularizing the law to the

facts of the case, White, 137 S. Ct. at 552, Martinez’s use of deadly force falls

within Garner’s parameters because “a reasonable officer could have believed

that [Martinez’s] conduct was justified.” Sheehan, 135 S. Ct. at 1777 (quoting

Billington v. Smith, 292 F.3d 1177, 1189 (9th Cir. 2002)). The record

establishes that Martinez acted reasonably under extraordinarily dangerous

circumstances, and that defendants are therefore entitled to qualified immunity

as a matter of law. Accordingly, I dissent.




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