A lawsuit filed by an Atlantic County man who was shot by police and left paralyzed in 2013 can go forward only against two of the three officers who fired on him, a U.S. District Court judge ruled Monday.
The ruling in Camden by Judge Robert B. Kugler dismissed all remaining counts against a former Atlantic City officer who fired and four New Jersey State Police troopers who had tried to stop the plaintiff’s car before the shooting.
But Kugler declined to dismiss counts against two former Egg Harbor Township cops, saying a jury should decide whether they used excessive force and violated the civil rights of David Gardner, 45.
“These disputes about what the officers could see and how Gardner was moving in the key moments before the shooting prevent summary judgment,” Kugler wrote. “And if Gardner’s version is believed, a reasonable jury could find that it was not objectively reasonable for the officers to use deadly force because, as Gardner tells it, he ‘just turned’ his back to the officers with his hands in view — though not up — to head in the opposite direction when the EHT Defendants fired.”
Kugler said the complaints should remain against the retired Egg Harbor Township officers because there are factual disputes between Gardner’s and the officers’ version of events, and a jury should decide who to believe.
The now-retired Egg Harbor Township cops testified that they thought Gardner had a gun. Michael Bordonaro was a lieutenant and Steven Swankowski was a patrol sergeant at the time of the shooting.
Gardner, who also goes by Donald Capriotti, was hiding in a swamp Nov. 7, 2013 when police shot him five times, including twice in the back. He is now paralyzed from the chest down, according to Kugler’s written opinion.
He is serving an 18-year prison sentence in connection with a January 2013 raid on his home where police found a drug distribution operation and two firearms. He was sentenced May 2, 2014, six months after he was shot in the swamp, Department of Corrections records show.
Kugler wrote in his decision that law enforcement in Atlantic County had been warned that Gardner had made statements that he planned to shoot people, including cops, before he’d ever go back to jail. Police also knew he had been found with guns and had served 19 years for shooting his friend to death in 1993 in Egg Harbor Township, Kugler said.
After hearing the police warnings about Gardner, four state troopers saw his Jaguar and started to tail him, Kugler wrote. They said they tried to stop Gardner’s car — something he denies — but he drove at them and fled, prompting them to report the incident.
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Gardner then ran into a swamp, Kugler wrote, prompting a manhunt. Among them were Bordonaro, who was in charge, Swankowski, and Jeremy Nirenberg, an Atlantic City officer who is now retired.
The officers said in depositions that they saw Gardner lying in shallow water and ordered him to show his hands, which were under the murky water.
He did not comply and Bondonaro released his K9, at which point the officers said they saw Gardner pull “what looked like a black barrel out of the water pointing directly at Swankoski,” Kugler wrote.
The three officers opened fire, shooting at least 16 times and hitting the K9 as well as Gardner, Kugler noted. The Press of Atlantic City reported the dog survived.
No gun was recovered but investigators found a 30-inch metal pipe in the area, Kugler noted.
However, Gardner maintains that his hands were visible, he wasn’t holding anything and that he was shot as he fled from police. He claims he was getting out of the marsh when he saw police coming towards him, and decided to turn back into the water, the judge wrote.
Two witnesses nearby said they never saw the man hold a weapon, Kugler said, and one reported seeing the man jump back into the water before the shooting started.
The judge in 2016 and 2017 tossed numerous counts of the lawsuit against Egg Harbor Township, Atlantic City and some of the law enforcement defendants. His decision Monday dismissed all remaining charges against retired Atlantic City detective Nirenberg, New Jersey State Police and the four troopers who followed Gardner’s vehicle: Edwin Huber, Andrew Koch, Paul Horsey, and Jack Donegan.
In his written opinion, Kugler said he dismissed the excessive force and civil rights complaints against Nirenberg because the officer believed, based on what he saw and heard, that he had to fire. Nirenberg testified that he fired after he saw Gardner turn toward Swankoski and heard a gunshot, which led him to believe Gardner had shot at Swankoski.
Nirenberg’s attorney, John C. Hegarty, said his client is “grateful” the court made the right decision to dismiss the counts against him.
“Although we also believed that law supported dismissing all claims against all Defendants, we are confident that a jury will find for the police officers remaining in the case,” Hegarty said in a statement.
The judge also dismissed counts for intentional infliction of emotional distress and rejected Gardner’s argument that the state troopers violated his rights by trying to stop his vehicle.