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TORTS — Police — Tort Claims Act — Willful Misconduct A-1116-01T3; Appellate Division; opinion by Wallace, J.A.D.; decided and approved for publication February 7, 2003. Before Judges Pressler, Wallace and Ciancia. On appeal from the Law Division, Burlington County, L-3434-97, L-3677-98, L-3678-98. [Sat below: Judge LeBon.] DDS No. 36-2-2782 Decedent was fatally shot by the police after he brandished a weapon inside his parents’ home. Plaintiffs filed these wrongful-death actions against individual police officers and Mount Laurel. Summary judgment was granted to defendants based on their reliance on good-faith immunity in the enforcement of any law under N.J.S.A. 59:3-3. On the night of December 11, 1996, police officers Timothy Connors, Arthur Dorst and Michael Stone responded to a domestic-violence complaint between decedent Lonnie Clarke IV and his parents, plaintiffs Lonnie Clarke III and Mary Jane Clarke. Lonnie wanted to leave the house and drive the car, but his parents objected because they believed he was intoxicated. Officer Dorst was aware that Lonnie had a prior psychological history. After investigating the call, the police officers left the house. While outside the house, the police heard a gun shot. Officer Stone, the senior officer at the scene, requested help. Officer Stone re-entered the house and removed the parents. Officer Dorst attempted to speak with Lonnie. Lonnie yelled that someone was going to die tonight, and he was going to kill some cops. Lonnie then retreated back into the bedroom. The police called the tactical team. Officer Connors stated he was aware of the Mount Laurel Police Department procedures in effect in December 1996 addressing proper course of action when faced with hostage, barricade or sniper situations. He said the procedure was essentially that which was later codified in General Order 99-1 (GO 99-1). Officer Connors maintained that police procedure in December 1996 required of the first officer to arrive in a sniper or barricaded subject situation: to assume command until a senior officer or supervisor arrived; to establish a perimeter, meaning to set officers up in locations to allow a suspect certain movement but containment at the same time; and to reinforce the perimeter containment areas with officers from adjacent jurisdictions. Although he could not recall reading a procedure that required officers to avoid confrontation until the arrival of trained tactical and/or critical incident negotiation personnel, he stated that officers were trained to avoid confrontation and were aware of such procedures. The commander of the SWAT/tactical force team on that date, Lieutenant Michael Dugan, could not recall ever entering inside a private house and taking up a perimeter inside the house to prevent a suspect from gaining access to a second or higher floor. He explained that the establishment of a perimeter required the containment of a suspect “within a room or within a building, or from the outside, whatever is tactically feasible with regard to the officers’ and civilian safety.” He stated that, when possible, the police officers should avoid confrontation and wait for the trained tactical officers to arrive. Plaintiffs obtained the services of Reginald Mallard to render an expert report concerning the conduct of defendants on the night of the incident. At the time of his report in April 2001, Mallard was a training officer for the Connecticut Police Academy. In his report, Mallard criticized Officer Connors for entering the premises to establish a perimeter inside the house, and he opined that Officer Connors’ conduct contradicted SWAT fire discipline and personal threat management. Pursuant to N.J.S.A. 59:3-3, “[a] public employee is not liable if he acts in good faith in the execution or enforcement of any law.” However, 59:3-14, the public-employee immunity exception, limits the good-faith provision and provides, “[n]othing in this act shall exonerate a public employee from liability if it is established that his conduct was outside the scope of his employment or constituted . . . willful misconduct.” Tice v. Cramer, 133 N.J. 347, 356 (1993), held that the statute “confers absolute immunity, except where the police officer engages in willful misconduct.” Willful misconduct is not defined in the act. Fielder v. Stonack, 141 N.J. 101 (1995), noted that “willful misconduct is not immutably defined but takes its meaning from the context and purpose of its use.” Id. at 124. Additionally, the Court explained that “[p]rior decisions have suggested that willful misconduct is the equivalent of reckless disregard for safety,” and is “more than an absence of ‘good faith.’” Ibid. The Court expanded on the meaning of willful misconduct in Alston v. City of Camden, 168 N.J. 170 (2001). There, the trial court instructed the jury that “a violation of standing orders constitutes willful misconduct if defendant intentionally disobeys a specific standing order which he or she is aware.” Id. at 183. The Supreme Court approved the trial court’s instructions and held that “willful misconduct requires ‘much more’ than mere negligence” and falls “somewhere on the continuum between simple negligence and the intentional infliction of harm.” Id. at 185. It is evident that an order substantially similar to GO 99-1 was in effect in December 1996. Officer Connors testified that the same basic factors included in GO 99-1 were also contained in the order effective at the time of the incident. Additionally, the police officers received in-service training within the police department regarding how to deal with barricaded subjects and snipers approximately three to four times a year. Although Officer Connors did not recall that portion of GO 99-1 that required the police at the scene to contain the situation until the arrival of trained tactical and/or critical incident negotiation personnel, he acknowledged that he received training prior to 1996 in accordance with the Code of Criminal Justice, which requires that officers confronted by hostage or barricaded subject incidents shall not initiate tactical actions other than those necessary to protect the lives and safety of themselves or others. Furthermore, Officer Connors was aware that police officers were trained to avoid confrontation from the academy-level education, and he was aware of the procedures that required officers to avoid confrontation until the arrival of trained tactical and/or critical incident negotiation personnel. Thus, there was evidence that a standing order existed to establish a perimeter, to contain the situation and to avoid confrontation. Here, Officer Connors was aware that the tactical team had been called and was on the way to the scene. Despite this knowledge, Officer Connors elected to establish a perimeter inside the house, with the likelihood of confrontation, rather than avoid it by establishing the perimeter outside the house. It was disputed whether the perimeter in the standing order should be established within or outside of the house, thus presenting a genuine issue of material fact challenged by plaintiffs. Held: It is a jury question whether Officer Connors willfully violated a known standing order and then engaged in conduct he knew was not appropriate. Consequently, it was error to grant summary judgment in favor of defendants. Reversed and remanded. — Digested by Steven P. Bann [The slip opinion is 13 pages long.] For appellants — Gary D. Ginsberg (Adam M. Raditz on the brief). For respondents — Frank N. Yurasko.

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