New Jersey Supreme Court Justice Barry Albin/photo by Carmen Natale/ALM

The New Jersey Supreme Court, in a 4-3 decision, ruled that a Camden police officer who shot a man who claimed he was surrendering is not entitled to qualified immunity from an excessive-force lawsuit.

The court said that the officer is not entitled to qualified immunity on summary judgment because the suspect and an independent witness each gave sworn testimony that his hands were empty and raised over his head when the officer shot him. The dissenting justices said that, under the totality of the circumstances, the officer's belief that deadly force was warranted was a reasonable one. Although the suspect discarded the handgun he was carrying while being chased by police, the officer did not see him drop the gun and had no reason to know that the suspect was no longer carrying a weapon.

The case that divided both the Supreme Court and an Appellate Division panel comes as the Black Lives Matter movement has focused attention on the impact of qualified immunity in police excessive-force cases. U.S. Supreme Court Justice Clarence Thomas has suggested that the high court revisit the doctrine of sovereign immunity, and states have been reexamining their laws on the subject.

In the Camden case, a trial judge afforded qualified immunity to the officer, Rafael Martinez, and granted summary judgment in his favor. The Appellate Division reversed, in a split ruling.

At the Supreme Court, Justice Barry Albin's majority opinion was joined by Chief Justice Stuart Rabner and Justices Jaynee LaVecchia and Walter Timpone.

Justice Lee Solomon issued a dissent, joined by Justices Anne Patterson and Faustino Fernandez-Vina.

Bryheim Baskin was shot after he crashed his car into an unmarked police vehicle and fled the scene on foot, armed with a handgun. Martinez gave chase and eventually cornered Baskin in a walled-in backyard, shooting him in the abdomen.

Martinez asserted that when he caught up with Baskin, he turned toward the officer and pointed an object that looked like a gun. Fearing for his life, Martinez said he fired his weapon. Although no gun was found where Baskin fell, two cellphones were located nearby.

Albin said at the summary judgment stage, when deciding whether qualified immunity applies, the evidence must be viewed in the light most favorable to Baskin. Therefore, the court must accept as true the testimony of Baskin and the independent witness.

"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," Albin wrote.

Albin said the conflicting accounts of what occurred at the time of the shooting 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," Albin wrote.

But Solomon said that, 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. Before he was apprehended, Baskin threatened the lives of police officers and the general public by speeding away from a police vehicle and crashing in to another, then, armed with a gun, leading police on a foot chase though 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," Solomon wrote. "Additionally, Baskin posed an immediate threat because he was in possession of a handgun while actively resisting arrest. 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."

The city attorney's office declined to comment on the ruling. Paul Melletz, who represented Baskin, could not be reached.