SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4560-19

JOHN TIMMINS, individually

and in the name of the Passaic

County SPCA,

Plaintiff-Appellant,

v.

ROBERT B. BOYLE, BRIAN 

GUNDERSON, O. RIVIERO, 

C. AGUIRRE-CRUZ, SAMUEL 

RIVERA, M. FIGUEROA, 

ISABELINO PELLOT, JR.,

CITY OF PASSAIC, and 

CITY OF CLIFTON,

Defendants-Respondents.

___________________________

Submitted April 28, 2021 – Decided June 3, 2021

Before Judges Geiger and Mitterhoff.

On appeal from the Superior Court of New Jersey, Law 

Division, Passaic County, Docket No. L-1092-18.

Isabelle Strauss, attorney for appellant.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
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A-4560-19

Vaughan Baio & Partners, attorneys for respondents

City of Passaic, Brian Gunderson, O. Riviero, C. 

Aguirre-Cruz, Samuel Rivera, M. Figueroa, and 

Isabelino Pellot, Jr. (Peter P. Perla, Jr., of counsel and 

on the brief; Joseph P. Horan, II, on the brief).

PER CURIAM

Plaintiff John Timmins, individually and in the name of the Passaic 

County SPCA,

1 brought this action seeking relief under the New Jersey Civil 

Rights Act (NJCRA), N.J.S.A. 10:6-1 to -2, and N.J.S.A. 4:22-26(a)(1), for the 

fatal police shooting of his American bulldog. He appeals from June 19, 2020 

Law Division orders that: (1) granted summary judgment to defendants City of 

Passaic, Brian Gunderson, O. Riviero, C. Aguirre-Cruz, Samuel Rivera, Jr., M. 

Figueroa, and Isabelino Pellot, Jr. (collectively, the Passaic defendants); and (2) 

denied summary judgment to plaintiff. We affirm in part, reverse in part, and 

remand for trial. 

The motion record, viewed in the light most favorable to plaintiff as the 

non-moving party, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523, 

540 (1995), reveals the following facts. On September 23, 2017, plaintiff's 

medium-sized, four-year-old female American Bulldog, Wildfire, escaped from 

plaintiff's yard and roamed the City of Passaic. Wildfire did not have a collar 

1

 The Passaic County SPCA did not participate at the trial level or in this appeal. 
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or any other identification. Plaintiff went outside to look for Wildfire when he 

realized Wildfire left and was worried because she had slight vision and hearing 

problems. 

At approximately 8:50 a.m., City of Passaic police were dispatched 

following 911 reports of a dog chasing other animals and people in Passaic. 

Transmissions from multiple 911 callers and dispatchers described a Pitbull

attacking another dog and looking "vicious" and "very aggressive." 

Upon arrival at the scene, Officer Samuel Rivera of the Passaic Police 

Department asked the woman who made the 911 call if Wildfire was aggressive. 

The woman answered, "No[,] not to people. She seemed fine." The woman 

advised Rivera, however, that Wildfire attacked several small dogs. She

indicated Wildfire stopped attacking other dogs when a bystander clapped and 

yelled at Wildfire. She also indicated that Wildfire may have killed or seriously 

injured one of the dogs. 

While speaking to the woman, Rivera observed Wildfire chase and attack 

a cat. When Rivera activated his siren, Wildfire released the cat, which was able 

to run away. At this point, Rivera contacted Passaic Sergeant Figueroa for 

permission to shoot Wildfire. Figueroa denied permission. 
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Rivera subsequently requested that animal control respond. While waiting 

and with Wildfire in his view, Rivera opened the driver's side rear door of his 

patrol vehicle to lure Wildfire inside. After a few unsuccessful attempts, 

Wildfire walked away, leaving Rivera's view. 

Soon thereafter, Passaic Police Officers Riviero and Aguirre-Cruz arrived 

on the scene to assist Rivera find Wildfire. Clifton Animal Control Officer 

(ACO) Robert Boyle also arrived. While looking for Wildfire, Rivera and Boyle 

passed two men who pointed in the direction of Wildfire. The officers asked the 

men whether Wildfire had tried to bite them; they responded in the negative 

while laughing. Rivera and Boyle subsequently found Wildfire and attempted 

to capture her with the use of Boyle's snare pole. With the snare pole pointed 

towards her, Wildfire allegedly assumed "an aggressive stance, then walked 

away slowly into the field area next to the parking lot." 

At this time, Boyle stated he "believe[d] the best option would be to 

neutralize the animal before it attack[ed] again." Boyle, however, did not have 

a tranquilizer gun available. At approximately 9:30 a.m., Passaic ACO Brian 

Gunderson, who was also at the scene, agreed with Boyle. Aguirre-Cruz 

contacted Figueroa, who gave clearance to neutralize Wildfire when there was 

an opportunity to take a safe shot. 
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At approximately 9:46 a.m., Rivera found Wildfire in a wooded area, 

laying down in front of a small earthen berm. Once the area was clear, Rivera 

shot Wildfire behind the right shoulder, killing her instantly. Rivera and Boyle 

then canvassed the area to locate any victims or wounded animals. The canvas 

was conducted with negative results. 

The Passaic County Prosecutor's Office investigated the incident, 

including reviewing Rivera's body camera video. It closed the investigation 

without filing any charges. 

On April 3, 2018, plaintiff filed a five-count complaint alleging that: (1) 

the Passaic defendants: unconstitutionally "seized" his property, Wildfire, by 

shooting her in violation of the New Jersey Civil Right Act (NJCRA), N.J.S.A. 

10:6-1 to -2 (count one); (2) the City of Clifton violated NJCRA by engaging in 

a practice, custom and policy of inadequate training, supervising, and retaining

defendant ACO Robert Boyle; (3) "defendant City of Passaic engaged in a 

practice, custom and policy of inadequately training, supervising, and retaining 

its employees," "evinc[ing] a deliberate indifference to the rights of [p]laintiff"

(count three); (4) "defendants individually and in concert destroyed evidence 

and engaged in a series of fabrications . . . to dissuade [plaintiff] from exercising 

his rights to pursue legal redress" (count four); and (5) defendants "caused and 
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procured the needless killing of a canine . . . thereby committing an act of cruelty 

in violation of N.J.S.A. 4:22-26(a)(1)" (count five). Plaintiff did not plead a 

cause of action under the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 12-3. 

In lieu of filing an answer, the Passaic defendants moved under Rule 4:6-

2(e) to dismiss the complaint for failure to state a claim upon which relief may 

be granted. Defendant City of Clifton and Robert B. Boyle (the Clifton 

defendants) joined in the motion. On January 9, 2019, the trial court denied the 

motion as to counts one through four but dismissed count five. The judge 

concluded that shooting a dog that posed no imminent threat to Rivera or others 

present was unreasonable under Article 1, paragraph 7 of the New Jersey 

Constitution. 

The Passaic defendants moved for reconsideration, arguing they were 

protected from liability by the doctrine of qualified immunity. The court denied 

the motion because the parties had not yet engaged in discovery, which it 

deemed necessary to determine whether plaintiff's claims were viable. 

On December 13, 2019, the Passaic defendants filed an answer and 

counterclaim. The parties then engaged in discovery. 

During his deposition, plaintiff testified that he was employed as an ACO 

in Fair Lawn before a reorganization terminated his employment. He described 
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the following "common sense" protocol for capturing an aggressive dog. First, 

you try to leash the dog. If that does not work, you try a snare pole. If still 

unsuccessful, you can summon a veterinarian to give you a sedative to put in 

food. You could also set a dog trap if the dog was running in the woods. You 

could also summon additional ACOs to the scene. 

Plaintiff reviewed the video of Rivera shooting Wildfire and stated he 

"would never be a part of that, and [he did not] know any ACO in [his]

department that would do that." When asked whether Wildfire's attack on the 

cat should have prompted concerns about Wildfire's aggressive behavior, 

plaintiff responded that Wildlife's conduct did not "reach a bar that the dog 

should have been shot while [it was] laying down, absolutely not." 

Plaintiff testified that when he went to the police station after the incident, 

officers lied to him about Wildfire attacking and almost killing a dog, which he 

found out was not true. The officers, including Rivera, requested a lawyer to be 

present during any conversations with plaintiff. 

Plaintiff acknowledged it was his fault that Wildlife got out but stated that 

shooting Wildlife should have been the "last option." He noted that three people 

said they were not afraid of Wildlife. Plaintiff thought the officers probably 
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mistook Wildfire for a Pitbull and believed Wildlife would not have been shot 

if she were a different breed. 

Plaintiff stated Wildfire was "very friendly" and that "[s]he never bit a 

person, she never came close." He acknowledged that Wildfire had two prior 

incidents with cats. Plaintiff asserted it was unclear whether Wildfire instigated 

the fights with either cat. 

After discovery had ended, the Passaic defendants moved for summary 

judgment, arguing that when evaluating a claim of qualified immunity, it was 

plaintiff's burden to show that the law establishing plaintiff's rights was clearly 

established. They argued there is no New Jersey or United States Supreme Court 

case law setting the parameters for when a police officer can use force to subdue 

an unleashed dog that is running wild. The Passaic defendants contended that

Brown v. Muhlenberg Twp., 269 F.3d 205 (3d Cir. 2001), was factually 

distinguishable and not binding precedent. 

Plaintiff cross-moved for summary judgment. He argued that shooting a 

a dog constitutes an unreasonable seizure under the Fourth Amendment of the 

United States Constitution and Article 1, paragraph 7 of the New Jersey 

Constitution. Plaintiff contended that, "to be reasonable, the shooting of a dog 

must be predicated upon the dog . . . being an imminent threat to the officer" or 
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another person. He asserted that Wildlife did not pose an imminent threat to 

anyone during the incident and was not an imminent threat at the time of the 

killing because she was laying down. 

On June 19, 2020, the trial court issued two orders and an oral decision 

granting summary judgment to the Passaic defendants, dismissing counts one, 

three and four of the complaint and denying summary judgment to plaintiff. The 

judge found no basis for either individual or municipal liability. 

As to the individual defendants, the court found "the challenged conduct 

may arguably have violated a constitutional right, i.e., an unreasonable taking 

of [plaintiff's] property, but fails under the second prong" because, at the time 

of the killing, that right was not "clearly established." 

The judge explained the facts were not similar to Muhlenberg, which 

involved the repeated shooting of a dog with a collar that had not been violent 

towards anybody or anything while the owner yelled from a close distance not 

to shoot the dog. In contrast, Wildfire did not have a collar or identification, it 

was unknown whether Wildfire was a stray or pet, and defendants made attempts 

at capturing Wildfire without lethal force. Further, defendants witnessed 

Wildfire's aggressive behavior towards other animals. 
10 A-4560-19

The judge found "a reasonable officer would not have clearly understood 

his or her actions to be unlawful in such circumstances[,]" and that plaintiff had 

not cited any statute or case law that "made clear [d]efendants' conduct was 

unlawful." "This is not to say that [d]efendants definitively did the right thing 

in handling this situation or that they exhausted every feasible option before 

using lethal force, but only that a reasonable officer in such circumstances would 

have understood such actions to be lawful." The judge concluded that 

defendants' "actions do not rise to the level of 'plain incompetence' or 'knowingly

violating the law as described in [Morillo v. Torres, 222 N.J. 104, 118 (2015)]. 

Their actions were not explicitly contrary to any statute or case law at the time 

of the occurrence." 

The judge explained that a municipality is liable only "when 'the alleged 

constitutional transgression implements or executes a policy[,] regulation or 

decision officially adopted by the governing body or informally adopted by 

custom.'" (quoting Beck v. City of Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996)). 

"Further, there must be causation between the municipality's actions and the 

constitutional injury." The judge found plaintiff did not show there was any 

such policy or custom or that any of the police officers or ACOs "qualified as 

sufficient policy decision makers to attach liability." 
11 A-4560-19

The Clifton defendants also moved for summary judgment. The trial court 

granted the motion. Plaintiff does not appeal from the dismissal of count two of 

the complaint. 

This appeal followed. Plaintiff limits his appeal to the dismissal of counts 

one, three and four of the complaint. He does not appeal from the earlier 

dismissal of count five. 

Plaintiff raises the following points for our consideration:

POINT I

[THE] PASSAIC DEFENDANTS ARE NOT 

ENTITLED TO SUMMARY JUDGMENT ON THE 

ISSUE OF QUALIFIED IMMUNITY: SHOOTING 

OF WILDFIRE WHILE SHE WAS LYING DOWN 

AND POSING NO IMMINENT DANGER 

CONSTITUTED AN UNREASONABLE SEIZURE 

UNDER THE ESTABLISHED LAW.

POINT II

SHOOTING OF A DOG CONSTITUTES AN 

ACTIONABLE SEIZURE UNDER THE UNITED 

STATES CONSTITUTION AND THE NEW JERSEY 

CONSTITUTION.

POINT III

[THE] LAW OF THE CASE DOCTRINE SHOULD 

APPLY.
12 A-4560-19

POINT IV

OFFICER'S USE OF DEADLY FORCE AGAINST A 

DOG IS AN UNREASONABLE SEIZURE UNLESS 

THE DOG POSES AN IMMEDIATE THREAT TO 

THE OFFICER'S SAFETY.

POINT V

THE FACTS PERTINENT TO THE ESTABLISHED 

STANDARD OF REASONABLENESS ARE NOT IN 

DISPUTE: THE UNCONTESTED FACTS 

ESTABLISH THAT AT THE TIME OFFICER 

RIVERA SHOT WILDFIRE SHE DID NOT PRESENT 

AN IMMEDIATE DANGER TO DEFENDANT 

RIVERA OR TO ANYONE PRESENT AT THE 

SCENE.

We review the ruling on a summary judgment motion de novo, applying 

the same standard governing the trial court. Conley v. Guerrero, 228 N.J. 339, 

346 (2017) (citing Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of 

Pittsburgh, 224 N.J. 189, 199 (2016)). Under that standard, summary judgment 

will be granted when "the competent evidential materials submitted by the 

parties," viewed in the light most favorable to the non-moving party, show that 

there are no "genuine issues of material fact" and that "the moving party is 

entitled to summary judgment as a matter of law." Grande v. Saint Clare's 

Health Sys., 230 N.J. 1, 23-24 (2017) (quoting Bhagat v. Bhagat, 217 N.J. 22, 

38 (2014)); accord R. 4:46-2(c). "An issue of material fact is 'genuine only if,
13 A-4560-19

considering the burden of persuasion at trial, the evidence submitted by the

parties on the motion, together with all legitimate inferences therefrom favoring

the non-moving party, would require submission of the issue to the trier of fact.'" 

Id at 24 (quoting Bhagat, 217 N.J. at 38). We review issues of law de novo and 

accord no deference to the trial court's legal analysis and conclusions. RSI Bank 

v. Providence Mut. Fire Ins. Co., 234 N.J. 459, 472 (2018) (quoting Templo 

Fuente, 224 N.J. at 199). 

NJCRA was adopted "for the broad purpose of assuring a state law cause 

of action for violations of state and federal constitutional rights and to fill any 

gaps in state statutory anti-discrimination protection." Owens v. Feigin, 194 

N.J. 607, 611 (2008). It affords a private right of action to 

[a]ny person who has been deprived of any substantive due process 

or equal protection rights, privileges or immunities secured by the 

Constitution or laws of the United States, or any substantive rights, 

privileges or immunities secured by the Constitution or laws of this 

State, or whose exercise or enjoyment of those substantive rights, 

privileges or immunities has been interfered with or attempted to be 

interfered with, by threats, intimidation or coercion by a person 

acting under color of law . . . . 

[N.J.S.A. 10:6-2(c).]

While the NJCRA does not explicitly contain or refer to any immunities, 

"it has long been interpreted as allowing the affirmative defense of qualified 

immunity." Ramos v. Flowers, 429 N.J. Super. 13, 21 (App. Div. 2012). 
14 A-4560-19

Qualified immunity "acknowledges an officer may make 'reasonable mistakes 

. . . as to the legal constraints on particular police conduct.'" Id. at 27 (quoting 

Saucier v. Katz, 533 U.S. 194, 205 (2001), overruled on other grounds by

Pearson v. Callahan, 555 U.S. 223 (2009)). "Thus, '[i]f the law did not put the 

officer on notice that his conduct would be clearly unlawful, summary judgment 

based on qualified immunity is appropriate.'" Ibid. (alteration in original) 

(quoting Saucier, 533 U.S. at 202). 

To determine whether a police officer or ACO is shielded by qualified 

immunity, we apply a two-pronged analysis: (1) whether "the facts, '[t]aken in 

the light most favorable to the party asserting the injury[ ] . . . show the officer's 

conduct violated a constitutional right'; and (2) that constitutional 'right was 

clearly established' at the time" of the officer's conduct. Brown v. State, 230 

N.J. 84, 98 (2017) (alterations in original) (quoting Saucier, 533 U.S. at 201). 

"For a right to be clearly established, '[t]he contours of the right must be 

sufficiently clear that a reasonable official would understand that what he is 

doing violates that right.'" Lapolla v. Cnty. of Union, 449 N.J. Super. 288, 304 

(App. Div. 2017) (alteration in original) (quoting Gormley v. Wood-El, 218 N.J. 

72, 133 (2014)). The officer's understanding that he is violating a clearly 

established right must be specific to the "context of the case, not as a broad 
15 A-4560-19

general proposition." Id. at 304-05 (quoting Brosseau v. Haugen, 543 U.S. 194, 

198 (2004)). Thus, we "are required to review the 'case law existing at the time 

of the defendant's alleged improper conduct' and determine whether there was 

'sufficient precedent at the time of action, factually similar to the plaintiff's 

allegations, to put defendant on notice that his or her conduct is constitutionally 

prohibited.'" Id. at 305 (quoting McLaughlin v. Watson, 271 F.3d 566, 572 (3rd 

Cir. 2001)). 

Importantly, "a robust 'consensus of cases of persuasive authority'" is 

sufficient to clearly establish a constitutional right in lieu of controlling 

authority. Ashcroft v. al-Kidd, 563 U.S. 731, 741-42 (2011) (quoting Wilson v. 

Layne, 526 U.S. 603, 617 (1999)). See Maldonado, 568 F.3d at 271 (finding 

"[t]he killing of a person's dog . . . without the person's consent is also a seizure 

within the meaning of the Fourth Amendment" was clearly established despite 

never previously addressing the issue because of "widespread acceptance" 

among circuit courts). 

Defendants argue there was no clearly established law in New Jersey that 

shooting Wildfire under the circumstances would violate plaintiff's rights. 

However, an action under the NJCRA is not limited to the rights guaranteed 

under the New Jersey Constitution. Owens, 194 N.J. at 611. 
16 A-4560-19

The Fourth Amendment of the United State Constitution and Article I, 

Paragraph 7 of the New Jersey Constitution each provide that "[t]he right of the 

people to be secure in their persons, houses, papers, and effects, against 

unreasonable searches and seizures, shall not be violated . . . ." U.S. Const.

amend. IV; N.J. Const. art. I, ¶ 7. "Animals have traditionally been treated by 

the law as property." McDougall v. Lamm, 211 N.J. 203, 223 (2012). Pets are 

now recognized as "a special variety of personal property." Ibid. (citing Hyland 

v. Borras, 316 N.J. Super. 22, 25 (App. Div. 1998)). In addition to the animal's 

value, pet owners may recover the cost of medical treatment and damages based 

on the pet's intrinsic value. McDougall, 211 N.J. at 225. 

Wildfire was fatally shot on September 23, 2017. Prior to that date, 

numerous federal circuits had "already concluded that, 'the use of deadly force 

against a household pet is reasonable only if the pet poses an [imminent] danger 

and the use of force is unavoidable.'" Brown v. Battle Creek Police Dep't, 844 

F.3d 556, 566 (7th Cir. 2016) (alteration in original) (quoting Robinson v. 

Pezzat, 818 F.3d 1, 7 (D.C. Cir. 2016)). In turn, "[e]very circuit that has 

considered this issue has concluded that the unreasonable killing of a dog 

constitutes an unconstitutional 'seizure' of personal property under the Fourth 
17 A-4560-19

Amendment." Id. at 567. By 2016, seven federal circuits had recognized this 

Fourth Amendment right. See id. at 566 (collecting cases). 

We conclude that at the time of the 2017 incident, dog owners had a 

clearly established right not to have their pet killed by police without sufficient 

cause under the Fourth Amendment. See id. at 567 (holding this Fourth 

Amendment right was clearly established in 2013). As an issue of first 

impression, we further hold that dog owners are afforded an identical right under 

Article 1, paragraph 7 of the New Jersey Constitution. 

We next consider whether the killing of Wildfire was unreasonable and 

thereby violated plaintiff's constitutional rights. Plaintiff argues that upon 

arrival on the scene, Rivera was informed that the initial calls to dispatch were 

erroneous to the extent they indicated that people were being chased by a dog. 

Rivera himself witnessed that Wildfire was not aggressive towards people. In 

response, defendants argue Wildfire exhibited aggression towards a cat in 

Rivera's presence and ACO Boyle told Rivera that Wildfire was exhibiting 

aggressive behavior towards him during the use of his snare pole. (Db48). 

Defendants contend that N.J.S.A. 4:19-9, titled "Right to destroy offending 

dogs," allows a person to kill a dog "which is found chasing, worrying, 

wounding or destroying any . . . domestic animal." 
18 A-4560-19

"Ordinarily, application of the defense of qualified immunity is a legal 

question for the court rather than the jury . . . ." Brown, 230 N.J. at 98-99 (citing 

Schneider v. Simonini, 163 N.J. 336, 356 (2000)). However, "[a]n exception to 

that rule arises when the case involves disputed issues of fact." Id. at 99 (citing 

Schneider, 163 N.J. at 359). In such instances, "the case may be submitted to 

the jury to determine 'the who-what-when-where-why type of historical fact 

issues,' after which the trial judge may incorporate those findings in determining 

whether qualified immunity applies." Ibid. (quoting Schneider, 163 N.J. at 359). 

See also Baskin v. Martinez, 243 N.J. 112, 129, 134 (2020) (affirming remand 

to trial court in Fourth Amendment reasonable force case because "[b]ased on 

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

qualified immunity on the summary judgment record, . . . the ultimate truth . . . 

is a matter for a jury to determine."). 

Whether a dog is perceived as a threat under the statute is an issue of fact. 

State v. Spano, 328 N.J. Super. 287, 291 (App. Div. 2000). It requires assessing 

whether the "threat" posed by the dog and "defendant's reaction thereto were 

reasonable under the described circumstances." Ibid. If the officer's conduct is 

"excessive," liability may attach. Ibid. Whether Rivera acted reasonably by 

killing Wildfire requires a fact-sensitive analysis. The determination of those 
19 A-4560-19

disputed material facts, which hinges upon the credibility of the witnesses and 

defendants, is for the jury to decide. Indeed, the judge recognized that Rivera 

"may arguably have violated a constitutional right, i.e., an unreasonable taking 

of [plaintiff's] property . . . ." 

Viewing the facts in the light most favorable to plaintiff, Ramos, 429 N.J. 

Super. at 27-28 (quoting Saucier, 533 U.S. at 201), the record contains 

considerable evidence that suggests Wildfire was not acting aggressively, much 

less posing an imminent threat, towards neighborhood residents, police officers, 

or ACOs on the scene. While looking for Wildfire, Rivera and Boyle asked two 

men who saw Wildfire if she tried to bite them, to which the men responded in 

the negative while laughing. Likewise, when Rivera asked the woman who 

made the 911 call if Wildfire was "aggressive," she replied: "No[,] not to people. 

She seemed fine." 

Further, Rivera and Boyle chased Wildfire around for close to an hour 

while clapping and using snare poles and police sirens in an attempt to capture 

her. During this extended period, Wildfire did not lunge at, growl at, attempt to 

bite, or otherwise exhibit overly aggressive behavior at anybody, including the 

police officers and ACOs. When Boyle attempted to capture Wildfire using a 

snare pole, Wildfire briefly exhibited an aggressive stance, "then walked away 
20 A-4560-19

slowly . . . ." Undoubtedly, a vicious or dangerous dog would visibly react to 

the measures used by Rivera and Boyle—under the circumstances, Wildfire may 

even have reacted well. Finally, at the time of the killing, Wildfire posed no 

threat of imminent danger, as she was laying down in a secluded wooded area, 

distant from any other people or pets. 

Whether the individual Passaic defendants were justified in 

recommending, approving, or carrying out the fatal shooting of Wildfire is a 

fact-sensitive issue. We are satisfied that genuine issues of material fact remain 

in dispute as to whether Wildfire posed an imminent threat of danger and, in 

turn, whether Rivera violated plaintiff's constitutional right against the 

unreasonable seizure of Wildfire. Consequently, the individual Passaic 

defendants have not demonstrated that they are entitled to judgment as a matter 

of law. We reverse the grant of summary judgment entered in favor of the 

individual Passaic defendants. 

We next address the dismissal of the plaintiff's claims against the City of 

Passaic. "[NJCRA] was modeled after 42 U.S.C. § 1983," and federal courts 

"interpret NJCRA analogously to [Section] 1983." Trafton v. City of Woodbury, 

799 F.Supp. 2d 417, 443 (D.N.J. 2011). "When a suit against a municipality is 

based on [Section] 1983, the municipality can only be liable when the alleged 
21 A-4560-19

constitutional transgression implements or executes a policy, regulation or 

decision officially adopted by the governing body or informally adopted by 

custom." Beck, 89 F.3d at 971 (citing Monell v. Dep't of Soc. Servs., 436 U.S. 

658 (1978)). "Municipal liability attaches only where the decisionmaker 

possesses final authority to establish municipal policy with respect to the action 

ordered." Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (1986). "Although 

not authorized by written law," the practices of state officials are considered a 

"custom" when such practices are "so permanent and well-settled as to constitute 

a 'custom or usage' with the force of law." Monell, 436 U.S. at 690. "Custom 

requires proof of knowledge and acquiescence by the decisionmaker." 

McTernan v. City of York, Pa., 564 F.3d 636, 658 (3d Cir. 2009) (citing Watson 

v. Abington Twp., 478 F.3d 144, 154 (3d Cir.2007); Beck, 89 F.3d at 971).

With regard to Section 1983, a municipality "is not liable under the 

doctrine of respondeat superior for the misconduct of its police." Beck, 89 F.3d 

at 971 (citing Andrews, 895 F.2d at 1480). Plaintiff must demonstrate causation 

between the municipal policy or custom and the constitutional injury. City of 

Canton v. Harris, 489 U.S. 378, 391 (1989). These principles apply with equal 

force to claims under NJCRA. 
22 A-4560-19

The record fully supports the judge's findings that plaintiff did not show 

that any of the individual defendants were policymakers or that any municipal 

policy or custom caused his constitutional injury. On the contrary, the

unsubstantiated claims against the City of Passaic were not supported by any 

proffered evidence and were properly dismissed. 

Lastly, we address the denial of plaintiff's cross-motion for summary 

judgment. The material facts in dispute that precluded summary judgment in 

favor of the individual Passaic defendants likewise precluded summary 

judgment in favor of plaintiff. Plaintiff's cross-motion was properly denied. 

Affirmed in part, reversed in part, and remanded for trial. We do not retain 

jurisdiction.