Corvet Curley; Elaine Curley v. Ronald Klem, a Police Officer sued in his individual capacity

PRECEDENTIAL
Filed August 2, 2002
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 01-1093
CORVET CURLEY; ELAINE CURLEY,
Appellants
v.
RONALD KLEM, a Police Officer sued in his individual
capacity; JOHN DOE; BILL DOE, two currently unknown
Police Officers also sued in their individual capacities
On Appeal From the United States District Court
For The District of New Jersey
(D.C. Civ. No.: 98-cv-05256)
District Court Judge: The Honorable Katharine S. Hayden
Argued on September 28, 2001
Before: ROTH, AMBRO and FUENTES, Circuit Judge s
(Filed August 2, 2002)
David S. Gould (argued)
Steven L. Salzman
61 Broadway, Suite 2820
New York, NY 10006
Attorneys for Appellants
Leonard C. Leicht (argued)
Morgan, Melhuish, Monaghan,
Arvidson, Arbutyn & Lisowski
651 West Mount Pleasant Avenue,
Suite 200
Livingston, NJ 07039-1673
Attorney for Appellee
OPINION OF THE COURT
FUENTES, Circuit Judge:
This is an appeal from a grant of summary judgment
dismissing plaintiff ’s complaint on the ground that the
defendant was shielded from liability by the doctrine of
qualified immunity. The defendant, Ronald Klem, a New
Jersey State Trooper, shot and seriously injured Corvet
Curley, a Port Authority Police Officer, when he mistook
Curley for an armed criminal suspect. Klem had been

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chasing a "tall black male" who had fled in a car after
murdering a police officer. The chase ended on the George
Washington Bridge where, after colliding with another
vehicle, the suspect shot himself to death. Moments later,
Klem arrived at the toll plaza still in pursuit of the suspect.
In response to a radio transmission about the chase,
Curley, dressed in a standard Port Authority police
uniform, also arrived at the plaza. Two witnesses at the
scene recognized Curley to be a police officer. Klem,
claiming to see a "tall thin black male" with a gun aimed at
him, fired his shotgun at Curley.
Alleging violations of his constitutional rights and New
Jersey law, Curley brought this 42 U.S.C. S 1983 action
against Klem, who invoked the protection of qualified
immunity. On cross motions for summary judgment, the
District Court dismissed all of Curley’s claims, concluding
that Klem’s conduct was objectively reasonable and, thus,
Klem was shielded by the qualified immunity doctrine.
In light of the disputed historical facts pertinent to
determining the objective reasonableness of Klem’s
2
conduct, we will reverse the grant of summary judgment in
favor of Klem and remand for further proceedings.
I.
At approximately 8:30 p.m., on November 20, 1997, Klem
received a radio transmission while on duty advising that a
police officer had been shot and killed in Long Branch, New
Jersey and that the suspect had fled the scene in the
murdered officer’s patrol car. The transmission further
reported that the suspect had subsequently fired shots at a
state trooper on the Garden State Parkway.
Shortly thereafter, Klem received another radio message,
this time from State Trooper Michael Michie. According to
Curley, Michie stated that the suspect was a "tall, black
male" and that he had now carjacked a green Toyota
Camry. Klem claims that Michie described the suspect as a
"thin, black male."
The suspect, Deon Bailey, had stolen the green Camry at
the Interchange 10 rest area of the New Jersey Turnpike.
He then continued north on the Turnpike toward the
George Washington Bridge. Klem was positioned near the
Turnpike’s Interchange 14 when he first saw Bailey, who by
this point was being pursued by Troopers Robert Mosher
and Ronald Drayton. At his deposition, Klem testified that
he was aware that they were pursuing a single perpetrator
who had shot a police officer in Long Branch and was
fleeing north in a series of stolen cars. Mosher was in the
lead car closest to Bailey, Drayton was in the second car,
and Klem followed close behind them. Mosher advised the
other Troopers by radio that Bailey was shooting at him. As
the chase continued, one of Bailey’s bullets struck Klem’s

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front windshield. Eventually, Mosher dropped out of the
chase, fearing that he had been injured by one of Bailey’s
shots, and Klem became the lead Trooper. Klem and
Drayton followed Bailey to the upper level toll plaza of the
George Washington Bridge, where Bailey then swerved
toward the toll lane farthest to the left. Klem saw Bailey’s
vehicle stop just beyond the tollbooths but did not know
why it had stopped. Later, it became clear that the Camry
had stopped because it had collided with a Nissan
Pathfinder.
3
According to Klem, he did not see any other law
enforcement officers in the area at the time the Bailey
vehicle had stopped. He then took his shotgun, exited the
vehicle, and approached the Camry with his shotgun at hip
height. The lights and siren from his car remained active.
Klem contends that, while moving toward the Camry, he
saw a toll collector signal him with rapid arm motions
toward the center of the toll plaza, where Curley happened
to be. Curley argues that the toll collector, Tyrone Jenkins,
was simply directing him toward the Camry.
Klem testified that when he reached the passenger side
window of the Camry, at about 9:25 p.m., he looked in but
could see no one. In contrast, Curley contends that Klem
could not have looked through the window because,
otherwise, he would have seen that Bailey’s dead body was
sprawled across the front seat. Bailey had committed
suicide inside the Camry by firing a bullet into his mouth.
Chris Freader, a toll collector who had previously stepped
out of his tollbooth after the Camry had crashed into the
Pathfinder, testified that he had no difficulty seeing Bailey’s
body inside the Camry. Trooper Drayton, who arrived on
the scene soon after Klem, reported that he did not see
Klem look into the Camry from the passenger side.
Klem states that, as he turned toward the center of the
plaza, he saw a tall, thin, black male in a three point stance
with a gun pointed directly at him, and that he believed
that man to have been the fleeing suspect.1 The man with
the gun, however, was actually Curley, a Port Authority
police officer who had come to the scene in response to a
radio transmission he had received about the Bailey chase.
Curley is 6 feet 4 inches tall, weighs 174 pounds, and is
black. Curley contends that his gun was only pointed in the
direction of the Camry, and that he was not aiming it at
anybody or anything. Freader said that he did not see
Curley aim his gun at Klem or position himself in the three
point stance described by Klem. Thomas Mulligan, a
motorist who was present at the scene, also testified that
_________________________________________________________________
1. We understand the term "three point stance" to describe a shooting
stance where an individual has both feet planted on the ground and
holds a firearm with both hands in front of the body.
4

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he never saw Curley take a three-point stance or aim his
gun at anyone.
Curley was wearing his Port Authority police uniform,
which includes a police belt, a large, yellow-rimmed police
patch on the shoulder, a silver chest badge, a navy blue
shirt, a black tie, and a standard navy blue police jacket.
Like Klem, he was not wearing his police hat. Klem
maintains that Curley’s clothing was dark and that he
could not tell that Curley was wearing a uniform of any
kind. Klem admitted, however, that there was sufficient
light for him to see that Curley was a light-skinned black
male. Freader, who was standing farther away from Curley
than was Klem, claims that he had no difficulty identifying
Curley’s uniform as that of a police officer. Mulligan also
testified that he recognized Curley as a police officer upon
seeing him in his uniform.
Immediately after seeing Curley, Klem did not shoot his
weapon at him. Asked later why he failed to shoot when
Curley’s gun was allegedly pointed directly at him, he
explained that he "had froze in fear." From this point on,
Klem and Curley offer dramatically different accounts of
what transpired. Klem claims that, after a few seconds
passed, he screamed for Curley to drop his gun, that Curley
responded by bringing his hands down and peddling back
towards the Pathfinder for cover, and that he finally shot
Curley after Curley had raised his arms up and down three
or four times. Klem contends that Curley had partial cover
behind the Pathfinder when he shot him, and that he had
shouted for Curley to drop his gun several times before
shooting. Klem insists that "both arms were up
outstretched in front of him." Immediately after Klem shot
Curley, he heard someone yell that he had just shot a cop.
In contrast, Curley claims that he did not hear or even
see Klem at any time prior to getting shot by him. He
explains that he had run about halfway to the Camry,
which was about 25 to 30 feet away, realized he had no
cover from a potential attack by the suspect, and then
began to peddle back so that he could find cover behind his
open car door. According to Curley, just as he began
moving towards his car, standing out in the open about
midway between the Pathfinder and the Camry, he was
5
struck down by Klem’s shotgun. He claims that he never
got in a three point stance, never pointed his gun at
anyone, and never raised his arms up and down as Klem
describes. Curley does admit, however, that he approached
the Camry with his gun extended in front of him and held
with both hands.
Both Trooper Drayton and Mulligan testified that they did
not see Curley raise his arms up in the manner described
by Klem. Mulligan and Freader claimed that, at the moment

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of the shooting, Curley’s gun was down at his side and not
pointed at anyone. Drayton, Mulligan, and Freader all
testified that they did not see Curley in a three point stance
aiming his weapon at Klem. Freader claimed that after
being told that he had just shot a police officer, Klem
responded, "They told us black male." Curley suffered
permanent injuries from the shooting, including the loss of
use of his right leg.
On November 19, 1998, Curley filed a 42 U.S.C. S 1983
claim against Klem in the District Court for the District of
New Jersey based on a violation of his Fourth Amendment
right to be free from unreasonable seizures.2 Curley’s wife
joined the action as a co-plaintiff, alleging loss of
consortium claims. Klem moved for summary judgment,
arguing that he was shielded by the qualified immunity
doctrine. The plaintiff cross-moved for summary judgment
as to liability. Finding that, in light of the circumstances
confronting him, Klem’s conduct was objectively reasonable
and, thus, protected by qualified immunity, the District
Court granted Klem’s motion for summary judgment and
denied Curley’s cross-motion. With regard to Curley’s
pendent state law claims, the court further concluded that
Klem was shielded from liability under the New Jersey Tort
Claims Act. This appeal followed.
_________________________________________________________________
2. In his federal complaint, plaintiff also presented several claims under
state law. Additionally, plaintiff filed a separate lawsuit in the state
Superior Court raising virtually identical claims against the State of New
Jersey and the state police. Following the District Court’s decision in this
case, the Superior Court dismissed Curley’s state court claims.
6
II.
The District Court had jurisdiction over this case under
28 U.S.C. SS 1331 and 1343. We have appellate jurisdiction
pursuant to 28 U.S.C. S 1291. The standard of review
applicable to an order granting summary judgment is
plenary. See Witkowski v. Welch, 173 F.3d 192, 198 (3d
Cir. 1999). We apply the same test employed by a district
court under Federal Rule of Civil Procedure 56(c). See
Kelley v. TYK Refractories Co., 860 F.2d 1188, 1192 (3d Cir.
1988). Accordingly, the District Court’s grant of summary
judgment in favor of Klem was proper only if it appears
"that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter
of law." Fed. R. Civ. P. 56(c). In evaluating the evidence, we
are required "to view the inferences to be drawn from the
underlying facts in the light most favorable to the party
opposing the motion." Bartnicki v. Vopper, 200 F.3d 109,
114 (3d Cir. 1999).
III.
Plaintiff ’s claim arises under 42 U.S.C. S 1983.
Essentially, S 1983 provides a cause of action for any

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person who has been deprived of rights secured by the
Constitution or laws of the United States by a person acting
under color of law. See Gruenke v. Seip, 225 F.3d 290, 298
(3d Cir. 2000) (citing Baker v. McCollan, 443 U.S. 137, 144
n.3 (1979)). Thus, police officers who, acting under color of
state law, violate an individual’s federal constitutional or
statutory rights are subject to liability underS 1983. In this
case, plaintiff alleges that the shooting by Trooper Klem
constituted a violation of Curley’s Fourth Amendment right
to be secure against unreasonable seizures.
Section 1983 claims against police officers often raise
issues pertaining to the defense of qualified immunity.
Under that defense, officers performing discretionary
functions are "shielded from liability for civil damages
insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable
person would have known." Harlow v. Fitzgerald, 457 U.S.
800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982).
7
While this appeal was pending, the Supreme Court
decided the case of Saucier v. Katz, 121 S.Ct. 2151 (2001),
in which the Court clarified the analytical framework that
courts should employ in determining the doctrine’s
applicability. The Court explained that a qualified immunity
analysis must begin with this threshold question: do the
facts alleged, viewed in the light most favorable to the party
asserting the injury, show that the officer’s conduct violated
a constitutional right? Saucier, 121 S.Ct. at 2156. If the
plaintiff fails to allege the violation of a constitutional right,
no further inquiry is necessary. If, however, the alleged
facts show that there was a constitutional violation, then
the next step is to ask whether the right was clearly
established. See id. In other words, a court must consider
"whether it would be clear to a reasonable officer that his
conduct was unlawful in the situation he confronted." Id.
(citing Wilson v. Layne, 526 U.S. 603, 615 (1999)). This
inquiry, the Court noted, "must be undertaken in light of
the specific context of the case, not as a broad general
proposition." Id. If a court concludes that an officer’s
conduct did violate a clearly established constitutional
right, then it must deny him the protection afforded by
qualified immunity. See id. at 2156-57.
It is important to emphasize that qualified immunity is
not a mere defense from liability; it is "an entitlement not
to stand trial or face the other burdens of litigation."
Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). If a case is
erroneously permitted to go to trial, then qualified
immunity is effectively lost. See id. Accordingly, the
Supreme Court has repeatedly stressed the importance of
resolving immunity questions at the earliest possible stages
of litigation. See, e.g., Saucier, 121 S.Ct. at 2156; Hunter v.
Bryant, 502 U.S. 224, 227 (1991) (per curiam); Anderson v.
Creighton, 483 U.S. 635, 646, n.6 (1987); Harlow, 457 U.S.
at 818. In Hunter, the Court observed that the issue of
immunity should not be routinely submitted to the jury.

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502 U.S. at 228.
As this Court has noted previously, however, the
imperative to decide qualified immunity issues early in the
litigation is in tension with the reality that factual disputes
often need to be resolved before determining whether the
8
defendant’s conduct violated a clearly established
constitutional right. See, e.g., Grant v. City of Pittsburgh, 98
F.3d 116, 122 (3d Cir. 1996). Just as the granting of
summary judgment is inappropriate when a genuine issue
exists as to any material fact, a decision on qualified
immunity will be premature when there are unresolved
disputes of historical fact relevant to the immunity
analysis. Thus, while we have recognized that it is for the
court to decide whether an officer’s conduct violated a
clearly established constitutional right, we have also
acknowledged that the existence of disputed, historical
facts material to the objective reasonableness of an officer’s
conduct will give rise to a jury issue. See Sharrar v. Felsing,
128 F.3d 810, 828 (3d Cir. 1997); see also Karnes v.
Skrutski, 62 F.3d 485, 499 (3d Cir. 1995).
Our sister circuits agree upon this general prohibition
against deciding qualified immunity questions in the face of
disputed historical facts. See, e.g., Wilson v. City of Des
Moines, Iowa, 293, F.3d 447, 454 (8th Cir. 2002); Santos v.
Gates, 287 F.3d 846, 855 n.12 (9th Cir. 2002); Keenan v.
Tejeda, 290 F.3d 252, 262 (5th Cir. 2002); Knussman v.
Maryland, 272 F.3d 625, 634 (4th Cir. 2001); Kimberlin v.
Quinlan, 199 F.3d 496, 502 (D.C. Cir. 1999); Tierney v.
Davidson, 133 F.3d 189, 194 (2d Cir. 1998); Swain v.
Spinney, 117 F.3d 1, 10 (1st Cir. 1997); Cottrell v. Caldwell,
85 F.3d 1480, 1487-1488 (11th. Cir. 1996); Williams v.
Pollard, 44 F.3d 433, 435 (6th Cir. 1995); Apostol v.
Landau, 957 F.2d 339, 342 (7th Cir. 1992); Salmon v.
Schwarz, 948 F.2d 1131, 1139 (10th Cir. 1991). Further,
the prohibition does not appear at all inconsistent with the
analytical framework recently detailed by the Supreme
Court in Saucier.
We note that the federal courts of appeals are divided on
the question of whether the judge or jury should decide the
ultimate question of objective reasonableness once all the
relevant factual issues have been resolved. In Hunter, the
Court stated that "immunity ordinarily should be decided
by the court long before trial." 501 U.S. at 228. However,
the Court did not address the procedure for deciding the
9
immunity question when the existence of disputed issues of
fact precludes disposition on summary judgment. 3
We addressed the issue in Sharrar, in which we observed
that the "reasonableness of the officers’ beliefs or actions is

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not a jury question," 128 F.3d at 828, but qualified that
observation by later noting that a jury can evaluate
objective reasonableness when relevant factual issues are
in dispute, id. at 830-31. This is not to say, however, that
it would be inappropriate for a judge to decide the objective
reasonableness issue once all the historical facts are no
longer in dispute. A judge may use special jury
interrogatories, for instance, to permit the jury to resolve
_________________________________________________________________
3. A disparity of opinion exists among our sister circuits as to whether
a judge or jury should make the ultimate immunity determination. Some
appear to have interpreted Hunter as requiring the judge to decide the
ultimate immunity question. See Swain v. Spinney , 117 F.3d 1,10 (1st
Cir. 1997) (noting that "[t]he ultimate question of whether a reasonable
police officer . . . could have believed his actions were in accord with
constitutional rights is a question of law, subject to resolution by the
judge [and] not the jury"); Cottrell v. Caldwell, 85 F.3d 1480, 1488 (11th
Cir. 1996) (noting that "[q]ualified immunity is a legal issue to be decided
by the court" and that "jury interrogatories[for disputed factual issues]
should not even mention the term"); Warlick v. Cross, 969 F.2d 303, 305
(7th Cir. 1992) (stating that the issue of qualified immunity is "a
question of law for the court, not a jury question").
Other circuits have endorsed an approach that permits a jury to
evaluate the objective reasonableness of a defendant’s conduct once the
participation of a jury has already become necessary for the resolution
of disputed factual issues. See Fisher v. City of Memphis, 234 F.3d 312,
317 (6th Cir. 2000) (finding no error in instructions charging the jury to
consider, in a qualified immunity case, whether the defendant’s use of
deadly force had been objectively reasonable); McCoy v. Hernandez, 203
F.3d 371, 376 (5th Cir. 2000) (stating that, if the qualified immunity
issue is not decided until trial, it "goes to the jury which must then
determine the objective reasonabless of the officers’ conduct"); Ortega v.
O’Conner, 146 F.3d 1149, 1156 (9th Cir. 1998) (finding that a district
court’s submission of the objective reasonableness question to the jury
"constituted an appropriate and proper instruction"); Oliveira v. Mayer,
23 F.3d 642, 650 (2d Cir. 1994) (holding that a district court "should
have let the jury . . . decide whether it was objectively reasonable for the
defendants to believe that they were acting within the bounds of the law.
. . .").
10
the disputed facts upon which the court can then
determine, as a matter of law, the ultimate question of
qualified immunity.
IV.
A. Qualified Immunity
To determine whether Klem is protected by qualified
immunity, we begin by considering the threshold question
of whether the alleged facts, viewed in the light most
favorable to Curley, show that Klem’s conduct violated a
constitutional right. Although the District Court did not
expressly address this initial inquiry, we find, through our
independent review of the record viewed in this light, that

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Klem’s conduct did, in fact, result in a violation of the
Fourth Amendment.
Curley claims that Klem used excessive force when Klem
shot him in violation of the Fourth Amendment guarantee
against unreasonable seizures. A claim for excessive force
under the Fourth Amendment requires a plaintiff to show
that a seizure occurred and that it was unreasonable. See
Abraham v. Raso, 183 F.3d 279, 288 (3d Cir. 1999) (citing
Brower v. County of Inyo, 489 U.S. 593, 599 (1989)). A
seizure occurs "[w]henever an officer restrains the freedom
of a person to walk away." Tennessee v. Garner, 471 U.S.
1, 7 (1985). The detention must be willful, but it is of no
import that the detention is of an unintended person. See
Brower, 489 U.S. at 596. Thus, even if Klem thought he
was firing at a dangerous criminal suspect, his shooting of
Curley did constitute a seizure that falls within the purview
of the Fourth Amendment.
In considering whether the seizure was "reasonable," we
must judge "from the perspective of a reasonable officer on
the scene, rather than with the 20/20 vision of hindsight."
See Graham v. Connor, 490 U.S. 386, 396 (1989) (citing
Terry v. Ohio, 392 U.S. 1, 20-22 (1968)). This
reasonableness inquiry is an objective one. See id. at 397.
Accordingly, the question is whether Klem’s "actions [were]
‘objectively reasonable’ in light of the facts and
circumstances" confronting him, regardless of his
underlying intent or motivation. See id. (citing Scott v.
11
United States, 436 U.S. 128, 137-39 (1978)). We make our
determination based on the "totality of the circumstances,"
including whether the suspect posed an immediate threat
to the safety of the officer or others, whether the suspect
was actively resisting arrest, and the severity of the crime
at issue. See Abraham, 183 F.3d at 289. Again, at this
stage of the qualified immunity analysis, where we discern
simply whether Curley alleges conduct in violation of a
constitutional right, we must consider only the facts alleged
by Curley, taken in the light most favorable to him.
Curley alleges that Klem shot him not because the
totality of the circumstances indicated that Curley was the
armed suspect sought and posed a dangerous threat, but
because Klem, ignoring other evidence, acted based on the
single fact that Curley, like the suspect, was a black man
with a gun. In support of his theory, Curley claims that his
gun was never aimed in Klem’s direction, that he had
turned to retreat in a direction away from Klem at the time
he was fired upon, and that there was ample evidence
indicating that he was not the suspect, including the fact
that he was wearing a standard Port Authority police
uniform. Curley further alleges that Klem acted
unreasonably by neglecting to look in the window of the
Camry, by failing to wait for backup, and by not recognizing
that Curley’s behavior and movements were inconsistent
with those that should have reasonably been expected of

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the suspect.
We conclude that these facts, viewed in the light most
favorable to Curley, are sufficient to support the claim that
Klem’s shooting of Curley constituted an unreasonable
seizure, violative of Curley’s rights under the Fourth
Amendment. While we recognize the great pressure and
intensity inherent in a police officer’s hot pursuit of a
suspect known to be armed and highly dangerous, we find
that under Curley’s account of events, it was unreasonable
for Klem to fire at Curley based on his unfounded,
mistaken conclusion that Curley was the suspect in
question.
Having thus found that the facts alleged by Curley
demonstrate the violation of a constitutional right, we next
ask whether the right was clearly established or, more
12
precisely, "whether it would be clear to a reasonable officer
that his conduct was unlawful in the situation he
confronted." Saucier, 121 S.Ct. at 2156 (emphasis added).
In this regard, the District Court viewed the circumstances
as follows:
[Trooper Klem] knew that a suspect, Deon Bailey, shot
and killed a Long Branch police officer. And he knew
the suspect took off and [carjacked] two cars at
gunpoint and shot [at] state troopers, including
himself, who were in pursuit of him.
Over the radio, the description that Klem received
and the only one that he received of the suspect was
that he was, "a tall black man with short black hair."
Driving a green Camry. No other description or build is
given. Moreover, no description [of] what the suspect
was wearing was given. Klem followed the suspect to
the George Washington Bridge and lost sight of him for
a short time and saw that the Camry had collided with
the Pathfinder in lane two of the toll plaza. He turned
and he got his rifle before he got out of his police
vehicle to check out the scene. Klem did not see the
Camry door open and did not know whether the
suspect was still in the car. Klem claims he looked in
the car and he did not see the suspect. Still by the
Camry, Klem sees a toll collector point to what he
thinks is the center of the plaza. What Klem thinks is
the center of the plaza. When Klem does not see the
suspect in the car, and assumes the car did not
contain the suspect, based on the pointing of the toll
collector, he believed that the suspect had vacated the
car and was somewhere in the center of the plaza.
Klem moves near the Camry and he sees a black man
with a gun back pedaling between the Camry and the
Pathfinder and, from his perception, concludes that the
gun is being pointed at him.
Curley for his part is in between the Camry and the

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Pathfinder holding a gun, which at one point he does
admit was pointed toward the Camry. Curley says he
back pedaled and turning around to go back to his
police vehicle because he realizes that he, Curley, is
out in the open. Curley has no perception that Klem is
13
there and that Klem is making noise, that Klem is
pointing again at him. Curley is wearing his uniform,
which is navy pants with a black strip. Navy nylon
jacket with a blue patch with gold trim on the left arm,
stating a Port Authority police officer. Curley states
that he was turning to the left and arguably that might
have some bearing on whether or not Klem saw the
patch. Klem claims that he did not know that this
outfit was that of a police officer. . . .
Klem repeatedly yells a warning to Curley to drop his
weapon. Curley does not hear the warnings. Curley
does not drop his weapon. Klem thinks that Curley is
going to shoot him because he perceived the weapon
was raised and pointed at him and Klem shoots Curley.
Ap. at A14-A16. Based on this assessment of the
circumstances confronting Klem, the District Court
concluded that his decision to shoot was not objectively
unreasonable. The problem with the District Court’s
analysis, however, is that it did not recognize the existence
of disputed historical facts that are clearly material to the
question of objective reasonableness. There are disputed
issues of material fact with regard to at least two key events
--the inspection of the suspect’s vehicle and the actual
confrontation between Klem and Curley.
1. The Body in the Camry
When Klem arrived at the toll plaza, he was unaware that
his suspect had just shot and killed himself while sitting
inside the stolen Camry. But it is uncontroverted that Klem
knew there was only one perpetrator. Thus, had Klem
known of Bailey’s suicide, it would have been clearly
unreasonable for him later to confuse Curley with the
suspect. Assuming that a reasonable officer in Klem’s
position would have looked inside the Camry upon arriving
at the scene, a key issue becomes whether Klem did, in
fact, look inside the Camry’s window.
Klem asserts that, upon arriving at the toll plaza, he
approached the Camry, looked in its back window first, and
then walked up toward the passenger side window and
looked through it. In his deposition, he said that he took a
14
"quick view," one that lasted "[j]ust a second, a split
second," and that he did not see anyone inside the vehicle.
At deposition, both Klem and Drayton, who both claimed to

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have looked into the Camry after the shooting, testified that
the perpetrator’s body was wedged in the floorboards of the
car. Curley, however, alleges that Drayton had previously
told investigators that the body was lying across the seat.
Curley denies that Klem could have looked inside the
passenger side window of the Camry without seeing Bailey’s
body slumped in plain view across the front seat. Thus, he
contends that Klem never actually looked inside the vehicle.
Curley notes that Freader, the toll collector who had walked
up to the Camry before Klem’s arrival, testified that he had
no trouble seeing Bailey’s body and that it was sprawled on
the passenger seat. According to Curley, the first two state
troopers to reach the Camry found the body sprawled in
plain view across the front seat, where the toll collector had
seen it. Curley further notes that Trooper Drayton, who had
Klem in his line of vision, admitted in his deposition that he
never saw Klem look into the passenger side of the Camry.
The record reflects that the District Court, in conducting
its qualified immunity analysis, accepted Klem’s claim that
"he looked in the car and he did not see the suspect." Ap.
at A15. Because the question of whether Klem actually
looked in the passenger side window of the Camry is an
issue of disputed historical fact relevant to the qualified
immunity doctrine’s reasonableness inquiry, we conclude
that the District Court erred by deciding the issue on its
own and not submitting it for resolution by a jury.
2. The Confrontation
In deciding whether it would be clear to a reasonable
officer that Klem’s shooting of Curley was unlawful, we
must consider the facts and information available to Klem
at the time he discharged his weapon. Klem argues that his
decision to shoot Curley was justified largely by Curley’s
behavior during a period of confrontation between Klem
and Curley that lasted about thirty seconds.
Klem states that when he first saw Curley, Curley held
his gun pointed directly at him in a three point stance.
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Klem yelled for Curley to put his gun down, and, according
to Klem, Curley lowered his arms but did not drop his gun.
Klem alleges that Curley then began to peddle back towards
another vehicle, the Pathfinder, which Klem assumed
Curley was going to use for cover. According to Klem,
Curley gained partial cover behind the Pathfinder and,
while still holding his gun, raised his arms at least three
times in a threatening manner. Klem claims that he
repeatedly shouted to Curley to put the gun down, but,
after Curley raised his gun again, Klem finally shot at him,
bringing Curley to the ground.
Curley offers a markedly different account of what
happened during those pivotal thirty seconds. Most
notably, Curley claims that he did not even see or hear

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Klem until after he was shot. According to Curley, he was
never situated in a three point stance, never pointed his
gun at Klem or anyone else, and did not raise his arms up
and down in the manner described by Klem. Curley claims
that he had run out towards the Camry, suddenly realized
he had no cover, and decided to turn back for cover behind
the open car door of his police vehicle. However, contrary to
Klem’s testimony, Curley claims that he had hardly begun
moving back for cover before he was shot down by Klem.
Curley contends that he was shot while standing halfway
between the Pathfinder and the Camry, not while partially
behind the Pathfinder as alleged by Klem.
Curley also refers to the testimony of Freader and
Mulligan, who both stated that, at the moment of the
shooting, they observed Curley’s gun to be down by his
side, not pointing up toward Klem. Both Drayton and
Mulligan testified that they did not see Curley raise his
arms up and down as Klem described. None of the
witnesses testified that they ever saw Curley positioned in
a three point stance.
All of these disputed factual issues bear directly upon the
question of what information was available to Klem at the
time he decided to shoot Curley. We note that "[t]he
standard for granting or denying a motion for summary
judgment does not change in the qualified immunity
context." See Karnes, 62 F.3d at 494. Viewing the facts in
the light most favorable to the plaintiff, a court must
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determine whether the defendant should prevail as a matter
of law. See id.; see also Gruenke, 225 F.3d at 299-300
(observing that "this admittedly fact-intensive analysis must
be conducted by viewing the facts alleged in the light most
favorable to the plaintiff ").
In this case, the District Court failed to view the facts in
the light most favorable to Curley and appears to have
overly credited Klem’s account of what occurred at the toll
plaza. For example, the court noted that, immediately prior
to the shooting, Klem perceived that Curley’s weapon was
raised and pointed at him. Ap. at A15. Curley claims,
however, that the gun was down by his side at the moment
of the shooting. We find that this and the other disputed
facts discussed above should have prevented Klem from
prevailing as a matter of law at this stage of the case. A
jury must resolve these issues before a court can determine
whether it would have been clear to a reasonable officer
that Klem’s conduct was unlawful.
Thus, we conclude that the District Court could not have
properly viewed these unresolved factual issues in the light
most favorable to Curley and still find that Klem’s conduct
was protected under the qualified immunity doctrine.
B. State Law Claims

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Finding that Klem was shielded from liability under the
New Jersey Tort Claims Act, the district court also
dismissed Curley’s state law claims. N.J. Stat. Ann.S 59:5-
2 provides, in pertinent part, that a public employee is not
liable for any injury caused by "a person resisting arrest or
evading arrest" or for any injury "resulting from or caused
by a law enforcement officer’s pursuit of a person." The
district court concluded that this immunity provision was
directly on point. On appeal, Curley contends that Klem is
not entitled to immunity from liability for the state law
claims because actions involving the discharge of police
firearms fall outside the ambit of the immunity provisions
of the New Jersey Tort Claims Act.
Curley’s argument relies upon Alston v. City of Camden,
753 A.2d 171 (N.J. Super. Ct. App. Div. 2000), cert.
granted, 762 A.2d 221 (N.J. 2000), a case decided by the
Appellate Division of the Superior Court of New Jersey.
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After the briefs for this appeal had already been filed,
however, the New Jersey Supreme Court reversed the
Appellate Division, holding that the putative exception
created by the Appellate Division for injuries resulting from
the use and handling of police firearms was inconsistent
with the Tort Claims Act, its legislative history, case law,
and subsequent amendments to the Act. Alston v. City of
Camden, 773 A.2d 693, 699 (N.J. 2001).
In light of the New Jersey Supreme Court’s recent
decision in Alston, we find that the District Court correctly
concluded that Klem was entitled to immunity from liability
for Curley’s state tort claims against Klem pursuant to N.J.
Stat. Ann. S 59:5-2, and we therefore affirm the dismissal of
those claims.
V.
In conclusion, we will reverse the District Court’s grant of
defendant’s motion for summary judgment and will remand
the case for further proceedings consistent with this
opinion. We will affirm the court’s dismissal of the
plaintiff ’s state law claims against the defendant.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
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