Court Reverses Trooper’s Suspension For Failing To Take Action

Michele Garitta is a State Trooper for the New Jersey State Police. On August 17, 2012, Garitta and her husband attended a country music concert at the PNC Arts Center. The Center is located across the road from the Patrol’s road station in Holmdel. As the couple parked their car, Garitta saw a number of troopers patrolling the area. Garitta secured her service weapon in her car because firearms are not permitted inside the Center. Garitta had her badge in her purse, along with her cell phone.

After the concert ended around 11:00 p.m., Garitta and her husband began walking back to their car along a roadway leading from the Center to the parking lots. As they walked, the couple encountered five men who were wearing “motorcycle wear, biker wear.” Garitta was five feet, four inches tall and her husband was six foot, one inch. Each of the five men was at least as tall as, or taller than, Garitta’s husband, and at least two were stockier.

The men began taunting Garitta and her husband, remarking that Garitta’s husband did not have a job, and that the couple “bought their cowboy hats at a convenience store.” The couple continued to walk away in an attempt to distance themselves from the group and diffuse the situation. However, one of the men directed Garitta’s husband to “tell your bitch wife to take the cut-off shorts home. At that point, Garitta’s husband replied, “You were joking around but now what you’re doing is not right.”

One of the five men then punched Garitta’s husband in the head and he fell to the ground. The other men moved in and began to kick and punch him. Knowing that there were numerous troopers in the area, Garitta immediately took her cell phone from her purse and called 911 to report the assault and its location. At the same time, Garitta was shouting commands at the assailants. Garitta yelled, “Get off him, the troopers are on their way.” While she was on the phone and telling the men to stop, a woman in the crowd grabbed Garitta’s arm. Garitta told the woman, “Get off,” and “swung her arm” to get free.

The men stopped attacking Garitta’s husband and began walking away. At that point, two uniformed troopers arrived in a patrol car. The duration of the entire incident between the first punch and the arrival of the troopers was between one and two minutes. Garitta identified herself to the troopers and pointed out three of the five men who attacked her husband. Eight other troopers soon reported to the scene. The troopers were able to arrest the three men and they were charged with aggravated assault.

The Patrol suspended Garitta for ten days, citing its rule that troopers were required “whether in uniform or not, to promptly report and take proper police action in any situation reasonably requiring such action.” The Patrol faulted Garitta for failing to intervene in the incident, and for failing to identify herself as a trooper to the assailants. The Superintendent of the Patrol reasoned that “Garitta had a duty to order the assailants to cease the assault under color of law rather than merely yelling at them and calling 911. To find otherwise would permit State troopers to avoid taking police action whenever they perceive the possibility of personal harm – the public respect for the Patrol would be devastated should such non-action be permitted.”

A New Jersey appellate court reversed the suspension. The Court found that the suspension was “clearly mistaken or erroneous.” In part, the Court faulted what it saw as the vagueness of the Patrol’s regulation: “The Patrol has not promulgated any other rule or regulation defining what is meant by ‘proper police action in any situation reasonably requiring such action.’ The Superintendent has never issued any standard operating procedures, directives, or instructions further explaining this standard. In addition, the Patrol has never trained its troopers that, when confronted by superior forces in an arena where numerous armed troopers are in close proximity, the off-duty, unarmed trooper must immediately announce his or her status as a trooper and then single-handedly attempt to physically subdue the possibly armed assailants, rather than call for back-up.

“Given the penal consequences of their violation, we construe disciplinary rules strictly. Where, as here, the rule is ambiguous, we construe it in favor of the affected employee. The Patrol may have been able to address and possibly cure the lack of clarity in its rule had it presented a witness at the hearing to explain the standard it sought to impose upon Garitta. After all, the burden of proving the violation was clearly on the Superintendent’s shoulders. However, the Patrol did not even attempt to meet that burden here.

“The Patrol’s only witness admitted that it was possible that, during the no more than two-minute duration of the incident, Garitta had done all she could under the circumstances. In that extremely brief period of time, Garitta called for backup, fended off an assault by a woman in the crowd, and shouted commands at the five assailants to stop, which they did just before the first troopers arrived. No Patrol witness explained how or why, under those emergent circumstances, ‘proper police action’ required Garitta to also identify herself as a trooper, show her badge, and then begin attempting to overpower the five men, without a weapon, backup, or any means to restrain any of the assailants she might have been able to subdue during the two minutes that elapsed before the troopers arrived. Garitta’s strategy was successful in that the men stopped the assault and began to walk away just before the other troopers got to the scene. Thus, the record simply does not support the Superintendent’s conclusion that Garitta neglected her duty under the totality of the circumstances presented in this case.”

New Jersey State Police, 2016 WL 674191 (N.J. App. 2016).