FELLOW JUSTICES. YOUR HONOR, THE APPELLATE DIVISION's DECISION IS CONSISTENT
WITH EVERY STATUTE THAT YOU MENTIONED HERE TODAY AS WELL AS THE RULE IN MOREY. WHAT
THE APPELLATE DIVISION DID IS CORRECT. THE TRIAL COURT'S FINDING OF FACT ON A SUMMARY JUDGMENT
MOTION WHICH IS DISALLOWED. THERE IS NO DATE THAT A POLICE OFFICER HAS A MINISTERIAL
DUTY TO ACT. A MINISTERIAL DUTY TO RENDER AID TO INDIVIDUALS INVOLVED IN A MOTOR VEHICLE
ACCIDENT. THAT HAS BEEN CHANGED. THE DUTY TO RENDER AID TO INDIVIDUALS IN A MOTOR VEHICLE
ACCIDENT INCLUDE NOT LEAVING THEM ABANDONED ON A HIGHWAY, AS WAS DONE HERE. AND NOT ONLY
INCLUDES THAT BUT ALSO INCLUDES A DUTY TO ADMIT MEDICAL ASSISTANCE. IT REQUIRED A DUTY
TO INVESTIGATE A MOTOR VEHICLE ACCIDENT AND RENDER ASSISTANCE AS SEEN IN OJINNAKA. DID
HE TELL IF YOU HAVE. THESE WERE ALL FOUND TO BE MINISTERIAL ACTS. THIS IS NOT ONLY CITED
IN SUAREZ BUT IN MOREY. IN MOREY, THE COURT STATES THAT THE NEGLIGENCE OF A POLICE
OFFICER IN THE PERFORMANCE OF A MINISTERIAL DUTY AND IS EVALUATED IN THE STANDARDS OF N.J.S.A.
(CASE CITED). THEY ARE NEVER INSULATE ND THE ADMINISTRATION OF THE
MINISTERIAL ACTS. IN MOREY, THE COURT RECOGNIZED THIS. IT DID NOT CHANGE
THE DECISION IN SUAREZ. IT INDICATED THE DIFFERENCE IN THOSE CASES IS THESE OFFICERS
HAD A DUTY TO RESPOND TO AN INDIVIDUAL INVOLVED IN A MOTOR VEHICLE ACCIDENT. THE COURT
HELD THAT IN MOREY THE OFFICERS WERE ASKED TO ADDRESS A TRAFFIC INCIDENT. A DISTURBANCE
WHERE SOMEONE WAS IN TRAFFIC. THE COURT HELD IN THAT CASE THE MINISTERIAL DUTY OF THE
OFFICER WAS TO REMOVE THE INDIVIDUAL FROM THE ROADWAY TO THE CURB. ONCE THEY DID THAT,
THEY COMPLETED THEIR MINISTERIAL DUTY. THERE WAS NO NEED TO RENDER AID. THIS IS NOT
AN INDIVIDUAL STRANDED '0 N A HIGHWAY. TRUE HE WAS INTOXICATED. SO WHEN THEY -- AFTER
THE OFFICER -- AFTER THE COURT FOUND THAT THIS IS DIFFERENT FROM A DUTY TO ADMINISTER
AID TO AN INDIVIDUAL INVOLVED IN A MOTOR VEHICLE ACCIDENT, THEY THEY WERE ASKED IS THERE
ANY OTHER AND THEY WERE ASKED TO LOOK AT 26:B-216. NOW, THAT STATUTE WAS ACTED IN
1975. IT WAS EN ABLTH ND A BODY OF STATUTES. IT ACTED A DEPARTMENT OF ALCOHOLIC TREATMENT
OR ALCOHOLIC THAT WAS PART OF THE DIVISION OF DEPARTMENT OF HEALTH. THE COURT -- WHAT
THAT STATUTE DOES IS IT GIVES OFFICERS POWERS, NOT RESTRICTIONS, BUT POWERS TO DEAL WITH
INTOXICATED PERSONS. IT INDICATES THAT IF AN OFFICER FINDS AN INDIVIDUAL INTOXICATE ND
A PUBLIC PLACE, THEY MAY TAKE HIM TO HIS RESIDENCE OR TO AN INTOXICATED TREATMENT
CENTER. IF HE'S INCAPACITATED, THEY SHALL. THE ARGUMENT RAISED BY DEFENDANTS THAT FORCING
AN OFFICER TO ACT UNDER THE STATUTE -- WHICH IS NOT WHAT WE ALLEGE -- WHICH SOMEHOW RAISES
AND SUBJECTS CIVIL RIGHTS VIOLATIONS, THAT WASN'T ADDRESSED BY THE LEGISLATURE. THE IMMUNITY
IN THAT STATUTE IMMUNIZES POLICE OFFICERS WHO TAKE ACTION UNDER THAT STATUTE. SO IF THEY
TAKE AN INDIVIDUAL AWAY FROM A PUBLIC PLACE AGAINST HIS WILL, THEY'RE IMMUNIZED, THROUGH
WHATEVER HAPPENS. THEY'RE ONLY REQUIRED TO REMOVE AN INDIVIDUAL IF HE'S INCAPACITATED.
BUT THEY HAVE THE RIGHT TO DO SO IF THEY'RE INTOXICATED. BUT IN THIS CASE, YOUR HONORS,
WE'RE NOT ALLEGING THAT THEY WERE FORCED TO DO THAT. WHAT WE ARE ALLEGING IS THEY WERE
FORCED TO COMPLETE THEIR MINISTERIAL DUTY TO RENDER AID TO AN INDIVIDUAL INVOLVED IN A
MOTOR VEHICLE ACCIDENT STRANDED ON A ROAD. THE FACT THAT MY CLIENT'S INTOXICATED DOES NOT
REQUIRE THEM TO REMOVE THIS INDIVIDUAL. AND THE IMMUNITY SET FORTH IN THE STATUTE IN
NO WAY AFFECTS THEIR MINISTERIAL DUTY. AGAIN, IT INSULATES THEIR ACTIONS, NOT THEIR
OMISSIONS. NOW, IN MOREY, THE COURT -- CHIEF JUSTICE RABNER:
MR. MINASIAN, CAN I ASK YOU A QUESTION? FOCUSING FIRST ON THE TORT CLAIMS ACT. UNDER
THE CIRCUMSTANCES WE HAVE IN THIS CASE, WHAT COULD AN OFFICER DO AND STILL BE ENTITLED
TO IMMUNITY? LAWRENCE D. MINASIAN: MAKE SURE THAT HE'S SAFE. THEY WOULD
BE ENTITLED TO IMMUNITY IF THEY WAITED FOR HIM UNTIL THEY REALIZED HE WAS SAFE AND THEN
SOMETHING OCCURRED. CHIEF JUSTICE RABNER: WHAT DOES THAT MEAN ON A PRACTICAL
LEVEL. WHAT WOULD THEY HAVE TO DO HERE? THEY WAITED 15 TO 20 MINASIAN. HE REFUSED TO GO
WITH THEM. WHAT WOULD THE OFFICERS HAVE HAD TO HAVE DONE AT THAT POINT IN ORDER TO RETAIN
THE ABILITY TO BE ELIGIBLE FOR IMMUNITY? LAWRENCE D. MINASIAN: YOUR HONOR,
THERE IS SOME DISPUTE AS TO THE AMOUNT OF TIME. BUT WHAT THEY WOULD HAVE TO DO IS THEY WOULD
-- I DON'T BELIEVE THERE'S ANY SITUATION, QUITE FRANKLY, THAT WOULD -- IT WOULD -- THAT
THERE IS NOT A QUESTION OF FACT THAT BY LEAVING HIM ON THIS PARTICULAR BRIDGE UN-ATTEND
ED WOULD IMMUNIZE. CHIEF JUSTICE RABNER: HELP US UNDERSTAND WHAT YOUR
POSITION IS ON THE SCOPE OF THE IMMUNITY. IS IT YOUR BELIEVE THEY WOULD HAVE TO WAIT FOR
TWO, THREE HOURS UNTIL SOMEONE SHOWED UP? LAWRENCE D. MINASIAN: NO, YOUR HONOR.
THE REASON WHY THEY WAITED MORE THAN TEN MINASIAN IS BECAUSE WHEN THEY CALLED OFFICER
MARTINEZ, THEY GAVE THE PHONE TO THE INTOXICATED HIRAM GONZALEZ WHO TOLD THEM HE WAS
ON THE PULASKI SKYWAY. AFTER TEN MINASIAN, THEY COULD HAVE GRABBED HIRAM's PHONE AND CALLED
THE OFFICER AND SAID WHERE ARE YOU. YOU'RE IN THE WRONG PLACE. YOU'RE SUPPOSED TO BE
HERE. CHIEF JUSTICE RABNER: IS THERE ANY LIMIT ON HOW LONG THEY WOULD HAVE
HAD TO WAIT THERE AS YOU UNDERSTAND THE STATUTORY SCHEME? LAWRENCE D. MINASIAN:
YOUR HONOR, I DON'T KNOW IF THERE IS A LIMIT. I THINK THAT WOULD BE A FACT QUESTION.
I THINK THE JURY WOULD THEN BE ABLE TO DETERMINE, HEY, THEY DID ALL THEY COULD. BUT
FOR THIS COURT TO TAKE THAT INTO -- TO DECIDE THAT QUESTION, I BELIEVE THE FACTS ARE SUCH
THAT DON'T SUPPORT A SUMMARY JUDGMENT DETERMINATION. COULD A JURY FIND THAT WHEN
THEY WEIGHED MY CLIENT'S ASHGZS, THEY SOMEHOW FIND THAT HE'S NEGLIGENT OR MORE NEGLIGENT?
SURE. COULD THEY FIND THAT THE OFFICERS DID WHAT -- THAT AN OFFER OF A RIDE IS GOOD ENOUGH?
THEY COULD. BUT DOES THE LAW INDICATE THAT THAT'S ENOUGH? ABSOLUTELY NOT. WHEN WE
LOOK AT THE FACTS OF THIS CASE, WHAT ARE THE FACTS OF THIS CASE? 2:30 IN THE MORNING THEY
RECEIVE A CALL. IT'S A MOTOR VEHICLE ACCIDENT. PHOTOGRAPHS, POLICE PHOTOGRAPHS OF DAMAGE
TO A VEHICLE, DAMAGE TO A GUARDRAIL. THEY GET INTO THE CAR. IT'S IN-OPERABLE. NEXT
TO THEM IS AN EMPTY BOTTLE OF HENNESSY. MY CLIENT IS DRUNK, HE'S BELLIGERENT. A TOW
TRUCK DRIVER REFUSES TO GIVE HIM A RIDE. WHICH IS SOMETHING THE OFFICERS SAID THEY NEVER
EXPERIENCED. THEY DON'T OFFER TO DRIVE HIM ANYWHERE. THEY OFFER HIM TO DRIVE HIM HALF
A MILE DOWN THE ROAD TO A GAS STATION. WHEN HE REFUSES OO TO, THEY COULD HAVE ARRESTED
HIM. THEY COULD HAVE TAKEN HIM ELSEWHERE BUT THEY HAVE TO -- JUSTICE
PATTERSON: I'M SORRY. THEY COULD HAVE ARRESTED HIM FOR WHAT? LAWRENCE D.
MINASIAN: THEY COULD HAVE ARRESTED HIM FOR DRIVING WHILE INTOXICATED.
JUSTICE PATTERSON: YOU CAN'T ARREST SOMEBODY JUST BECAUSE YOU'RE TRYING TO GET OUT OF
A DIFFICULT SITUATION. YOU HAVE TO HAVE PROBABLE CAUSE FOR AN ARREST. SO IF THEY CONCLUDED
-- AND, YOU KNOW, I WASN'T THERE, YOU WEREN'T THERE. AS TO WHAT THEIR OBSERVATIONS WERE
AT THAT MOMENT, THAT HE WAS -- THERE WAS NO PROBABLE CAUSE TO ARREST HIM FOR DWI, HOW
COULD THEY ARREST HIM? LAWRENCE D. MINASIAN: WELL, YOUR HONOR, I BELIEVE
THE FACTS OF THIS CASE SHOW THERE WAS PROBABLE CAUSE. WE HAVE AN EXPERT OPINION SHOWING
THE TIME THE OFFICERS MET WITH HIM -- JUSTICE PATTERSON: RESPECTFULLY, COUNSEL,
THE OFFICERS DID NOT HAVE HIS BLOOD ALCOHOL CONTENT? LAWRENCE D. MINASIAN:
NO. BUT THE OFFICERS DID INDICATE TO OFFICER MARTINEZ, YOU SHOULD PICK HIM UP, HE'S BEEN
DRINKING, HE CAN'T DRIVE. JUSTICE PATTERSON: DRINKING AND CAN'T DRIVE
IS NOT THE SAME AS A DWI. AND WHAT YOU'RE SAYING IS THAT THE OFFICER SHOULD HAVE USED
A DWI ARREST THAT THEY WERE -- NOT OTHERWISE INCLINED TO MAKE FOR WHATEVER REASON, PERHAPS
BECAUSE THERE WAS NO PROBABLE CAUSE TO ARREST HIM, AS A WAY OF GETTING OUT OF THE DIFFICULT
SITUATION WHERE YOU HAVE SOMEBODY WHO IS IN POTENTIAL DANGER BUT REFUSES TO ACCEPT HELP.
YOU ALREADY TOLD US THERE'S NOTHING THEY COULD HAVE DONE TO GET THEMSELVES INTO AN IMMUNIZED
POSITION. YOUR SOLUTION IS ARREST HIM. LAWRENCE D. MINASIAN: YOUR HONOR,
THAT'S NOT MY SOLUTION. IF I MAY. TWO POINTS. I AM NOT ALLEGING SHOULD THEY HAVE TO
ARREST. BECAUSE I BELIEVE UNDER THREE-FIVE, THEY'RE IMMUNIZED FOR FAILURE TO MAKE AN
ARREST AS WELL AS UNDER 54 -- OR 55. EXCUSE ME. JUSTICE PATTERSON: BUT
YOU WERE ASKED BY THE CHIEF, HOW LONG DO THEY HAVE TO WAIT? DO THEY HAVE TO WAIT FOUR
HOURS, FIVE HOURS? AND YOUR ANSWER ULTIMATELY IS IF HE WON'T GO WITH THEM, THEY CAN ARREST
HIM. LAWRENCE D. MINASIAN: I APOLOGIZE IF THAT'S HOW IT CAME ACROSS. MY
ANSWER TO THAT IS, THAT'S FOR A JURY TO DETERMINE. A JURY CAN'T DETERMINE IF THEY
DID ENOUGH. BUT BUT I DON'T BELIEVE THIS IS SOMETHING IS DISPOSED OF IN SUMMARY JUDGMENT.
WE DO HAVE FAX IN THIS CASE THAT THE OFFICERS REALIZED HE WAS INTOXICATED. WE HAVE FACTS
IN THIS CASE THAT THE -- RODRIGUEZ SAW HIM JUST 18 MINASIAN AFTER THE OFFICERS HAD LEFT.
THAT HE SHOWED VISIBLE SIGNS OF INTOXICATION. WE HAVE EVIDENCE IN THIS CASE THAT MAR
TINEZ WAS ON THE PHONE WITH HIM. WAS ON THE PHONE WITH TUCKER. TUCKER THEN GAVE THE
PHONE TO HIRAM. HIRAM SPOKE TO MARTINEZ, AND MARTINEZ WAS ABLE TO DETERMINE HE WAS
INTOXICATED. HEARD HIM CURSE AT THE POLICE AND BELIEVED THESE OFFICERS WOULD REALIZE HE WAS
INTOXICATED. JUSTICE PATTERSON: YOU SAID THEY SHOULD HAVE PICKED UP HIS
PHONE SOME PERIOD OF TIME LATER AND SOMEHOW USED HIS PHONE. HOW CAN YOU PICK UP SOMEBODY
ELSE'S PHONE, PRESUMABLY THERE'S A PASS CODE. LAWRENCE D. MINASIAN: WELL,
THEY DID HAVE HIS COOPERATION TO DO THAT. THEY ASKED HIM, COULD YOU CALL SOMEONE FOR
A RIDE. HE CALLED SOMEONE FOR A RIDE AND THEN THEY ASKED TO SPEAK TO THE INDIVIDUAL HE WAS
SPEAKING TO AND HE WOULDN'T ALLOW IT. AND THE OFFICER GAVE HIRAM BACK THE PHONE. WE
DON'T HAVE THE FACTUAL SCENARIO. WE DON'T HAVE A SITUATION, JUSTICE, WHERE THEY SAID
THEY WAITED FOR HOURS. YET NO ONE CAME AND THEY DIDN'T KNOW WHAT TO DO. JUSTICE
PATTERSON: LET ME ASK YOU THE QUESTION I ASKED COUNSEL ON THE OTHER SIDE. AND THAT IS,
DOES NARC 262B 16 GIVE OFFICERS THE RIGHT TO FORCIBLY TRANSPORT PEOPLE WHO ARE INTOXICATED
BUT NOT INCAPACITATED? LAWRENCE D. MINASIAN: THAT'S EXACTLY WHAT IT DOES.
IT IMMUNIZES THEM BEFORE ANY ACTIONS THAT WOULD COME FROM THAT ACT. IT DEFINITELY GIVES
THEM THAT AUTHORITY. NOW -- JUSTICE ALBIN: THAT STATUTE IS BASICALLY CONSISTENT
WITH THE COMMUNITY CARE TAKING FUNCTION OF POLICE OFFICERS. YOU SEE SOMEONE DRUNK WALKING
IN THE MIDDLE OF A HIGHWAY, YOU DON'T HAVE TO SAY THAT HE WON'T COOPERATE WITH ME, LET
ME WAIT UNTIL HE GETS HIT BY A CAR. THEY CAN ACTUALLY PUT HIM IN THE CAR, FORCIBLY,
AND TAKE HIM TO HIS RESIDENCE OR SOME ALCOHOL CLINIC. LAWRENCE D. MINASIAN:
EXACTLY, YOUR HONOR. JUSTICE ALBIN: AND THEY'RE IMMUNIZED IF THEY DO THAT
UNDER THE STATUTE. LAWRENCE D. MINASIAN: EXACTLY, YOUR HONOR. AND IT IN
NO WAY AB GATES THEIR DUTY TO RENDER AID OR ASSISTANCE. JUSTICE LA VECCHIA:
COUNSEL, I WANT TO ASK YOU A QUESTION THAT I CAN'T DISCERN FROM THE RECORD. DID THE
OFFICERS LEAVE HIM IN A SAFE PLACE IF THEIR CAR WAS NOT THERE? AND I ASK THAT QUESTION
BECAUSE I UNDERSTAND THIS IS A BRIDGE WITH A GUARDRAIL FOR A PEDESTRIAN WALKWAY, BUT WAS
THERE ANY AREA OR WAS IT PERMITTED FOR ANY OTHER CAR TO STOP OR PARK ON THAT ROADWAY TO
PICK SOMEONE UP? LAWRENCE D. MINASIAN: NO. NO, JUSTICE. ABSOLUTELY NOT.
THERE WAS NO CLEAR PATH. THAT'S A FACTUAL DISPUTE. THERE'S AN ALLEGATION THERE WAS A
BUS STOP THERE. JUSTICE LA VECCHIA: ON THE BRIDGE? LAWRENCE D.
MINASIAN: ON THE BRIDGE. AND THERE WAS NOT. WE HAVE PHOTOGRAPHIC EVIDENCE THAT SUPPORTS
THAT. THE PATH ENDS. IT ENDS AT A FENCE. ANYONE WOULD HAVE TO THEN PULL BACK SIGNS
AS WELL AS BEND OVER THE FENCE AND ENTER THE ROADWAY. THERE IS NO SAFE PATH FOR SOMEONE
PICKING HIM UP TO STOP. THERE WAS AN ARGUMENT MADE THIS IS A POLICE OFFICER. IT WAS
AN OFF DUTY POLICE OFFICER. HE WASN'T DRIVING IN HIS VEHICLE WITH SIRENS. THESE OFFICERS
KNEW THAT -- OR LED YOU TO BELIEVE THAT AN OFF DUTY POLICE OFFICER WAS GOING TO COME UPON
THE BRIDGE -- JUSTICE LA VECCHIA: SO IT COULD HAVE BEEN A SAFE PLACE TO
PICK HIM UP WHILE THE OFFICERS WERE THERE WITH THEIR PATROL CAR AND THEIR LIGHTS BUT MY
QUESTION TO YOU IS WOULD IT BE A SAFE PLACE TO PICK UP ONCE THEY HAD LEFT?
LAWRENCE D. MINASIAN: NO, IT WOULD NOT. IT WOULD VIOLATE 394-SEVEN. . IF THEY KNEW SOMEONE
WAS COMING THERE, THEY NEEDED TO WAIT TO MAKE SURE THAT THIS INDIVIDUAL COULD STOP A CAR
SAFELY ON A BRIDGE. THEY COULD NOT AVOID THAT ACTION WITHOUT SAFEGUARDING AGAINST IT.
THESE ARE I BELIEVE FACT QUESTIONS THAT MUST BE DETERMINED BY A JURY. FURTHER,
YOUR HONORS, WITH REGARD TO -- AND WITH REGARD TO THAT THE OTHER STATUTES THAT ARE CITED
HERE, THE COURT RECENTLY -- THEY HAVE AN MINISTERIAL DUTY TO ACT TO RENDER -- AND TO
RENDER ASSISTANCE. THAT IS NOT JUST ONE THING THAT -- I'M NOT SAYING THEY HAD TO ARREST
HIM. SIMILAR TO WHAT YOUR HONORS SAID LAST MONTH IN (CASE CITED) VERSUS NEW JERSEY TRANSIT.
YOU HAD A BUS DRIVER WHO HAD A DUTY TO PROTECT ITS PASSENGERS FROM ANOTHER PASSENGER.
THE ARGUMENT WAS MADE THEY'RE INTERFERING WITH THE FORCE OF LAW. THERE'S IMMUNITY FOR
FAILURE TO PROVIDE CITIZENS ARREST HERE. THERE WAS NO ARREST HERE. THAT'S NOT WHAT'S
BEING -- THE FACT THAT THERE'S NO ARREST MEANS IT'S NOT ANALYZED UNDER THAT STATUTE AND
IT DOESN'T CHANGE THE FACT THAT HE STILL HAS THIS MINISTERIAL DUTY TO RENDER CARE.
PENNSYLVANIA R PENNSYLVANIA R THE GOOD FAITH ARGUMENT THAT'S MADE IS MADE UNDER 593-THREE,
WHICH ONLY INVOLVES WHAT IS INVOLVED -- IT'S A QUALIFIED IMMUNITY WHEN AN OFFICER EXECUTES
THE LAW. IF THEY EXECUTE A LAW IN GOOD FAITH, THERE'S IMMUNITY. IF THEY FAIL TO EXECUTE
THE LAW, IT'S ABSOLUTE IMMUNITY. IT'S NOT QUALIFIED. THESE STATUTES DON'T APPLY. I
KNOW THERE WAS AN ARGUMENT THAT WAS MENTIONED IN AMICUS BRIEF, THE APPLICATION OF THE GOOD
SAMARITAN ACT. AGAIN, THAT ONLY IMMUNIZES ACTIONS AND OMISSIONS IN PROVIDING MEDICAL
ASSISTANCE. NO MEDICAL ASSISTANCE WAS PROVIDED HERE AND QUITE FRANKLY --
JUSTICE ALBIN: THE GOOD SAMARITAN ACT DOESN'T USE THE TERM MEDICAL ASSISTANCE OR MEDICAL
CARE. IT TALKS ABOUT CARE. AM I CORRECT? I MEAN -- LISTEN, IF POLICE OFFICERS SAW
SOMEONE LYING ON A ROADWAY AND PULLED THEM OUT OF THE WAY, NOT RENDERING MEDICAL ASSISTANCE
AND HURT THE PERSON, THEY'D BE COVERED UNDER THE GOOD SAMARITAN ACT EVEN THOUGH THEY WEREN'T
RENDERING MEDICAL ASSISTANCE, CORRECT? LAWRENCE D. MINASIAN: YES, YOUR HONOR.
UNLESS UNDER THAT SECTION THEY FOUND THEIR ACTIONS WERE GROSSLY NEGLIGENT. YES, YOUR
HONOR. AND, REMEMBER, IN -- WHEN THAT GOOD SAMARITAN ACT WAS AMENDED IN '96 TO INCLUDE
POLICE OFFICERS, IT WASN'T QUITE AS BROAD AS THE ORIGINAL ACT. IT INDICATES THAT AS LONG
AS THEY'RE NOT GROSSLY NEGLIGENT IN ADMINISTERING THESE ACTIONS, OKAY, IN PROVIDING THIS
CARE. BUT IT DOESN'T -- IT ONLY IMMUNIZES THOSE ACTIONS, NOT A FAILURE TO ACT. IT DOESN'T
SOMEHOW USURP A PRE-EXISTING MINISTERIAL DUTY TO RENDER AID. SO -- AND SINCE
THE ENACTMENT OF THAT AMENDMENT, WHAT HAVE WE HAD? WE HAD THE CASE OF (CASE CITED) WHERE
AN OFFICER WAS ASKED TO -- THERE WAS AN ISSUE AS TO WHETHER OR NOT THE OFFICERS INITIATE
D RESCUE MISSIONS EARLY ENOUGH. THEY HAD A DUTY TO ACT. THEY HAD A MINISTERIAL DUTY TO
ACT. THE GOOD SAMARITAN ACT DIDN'T CHANGE THAT. NOR IN OJINNAKA WHERE WE HAD AN ACCIDENT,
THERE WAS A DUTY TO INVESTIGATE THE ACCIDENT. THE INDIVIDUAL HAD BEEN PROPELLED OUT OF THE
VEHICLE AND WAS ONLY 20 FEET AWAY. THE OFFICERS HAD AN OBLIGATION TO INVESTIGATE THE
AREA AND SEE IF -- JUSTICE ALBIN: UNDER THE GOOD SAMARITAN ACT, I TAKE IT
YOUR ARGUMENT IS THEY STARTED RENDERING CARE. THEY WERE ACTING AS GOOD SAM MAR TANS.
THEY SURELY W WERE THEY PUT HIM IN A SAFE PLACE. BUT THEY STOPPED RENDERING CARE AND
WHEN THEY STOPPED RENDERING CARE, THAT'S WHEN THEY LOST THE IMMUNITY OF THE STATUTE.
IS THAT YOUR ARGUMENT? LAWRENCE D. MINASIAN: ABSOLUTELY NOT, YOUR HONOR.
I THINK YOU HAVE TO READ THE STATUTES IN PER PETTIER YA. THE GOOD SAMARITAN ACT DOES NOT
AFFECT ALL. IT'S VERY CLEAR. IT'S REALLY ADDRESSING CARE, MEDICAL ASSISTANCE. I
BELIEVE THAT THAT'S CLEAR. I BELIEVE WE HAVE TO READ THESE STATUTES TOGETHER. THAT'S
THE ORIGINAL ACT -- JUSTICE ALBIN: THIS TREATMENT OR CARE -- THAT'S WHY
I GAVE YOU THE EXAMPLE EARLIER OF A POLICE OFFICER OR IT COULD BE ANYONE PULLING SOMEONE
OFF OF A ROADWAY SO THAT THEY'RE NOT HIT BY A CAR AND INJURING THE PERSON AS THEY'RE DOINGING
THAT, SAVING THEIR LIFE. THEY'RE ACTING AS GOOD SAMARITANS. THEY'RE RENDERING CARE THERE.
NOT MEDICAL ASSISTANCE. YOU'RE TELLING ME THAT DOESN'T HIT WITHIN THE GOOD SAMARITAN
STATUTE? LAWRENCE D. MINASIAN: I DON'T BELIEVE IT DOES, YOUR HONOR. I BELIEVE
THAT THE GOOD SAMARITAN ACT, WE HAVE TO LOOK AT WHAT IT WAS REALLY MEANT TO ADDRESS.
AND IT WAS REALLY MEANT TO ADDRESS PROVIDING MEDICAL ASSISTANCE. AND THEY DID NOT LEAVE
HIM IN A SAFE PLACE. THEY WERE OFF THE ROAD WITH HIM IN THAT LOCATION. AND THEN THEY
LEFT. THEY DIDN'T PUT HIM THERE. THEY WERE THERE. THEN THEY LEFT. YOU
KNOW, JUDGE, THE FACT THAT HE'S INTOXICATED DOESN'T CHANGE THEIR DUTY TO RENDER AID.
FOR INSTANCE, UNDER 59:FIVE-FOUR, OFFICERS ARE IMMUNIZED FOR FAILURE TO ARREST SOMEONE
OR KEEP SOMEONE IN CUSTODY. THAT'S FIVE-FIVE. BUT WHAT DO WE SEE IN FIVE-SIX? WHEN
SOMEONE IS ARRESTED FOR DRIVING WHILE INTOXICATED, AN OFFICER HAS TO's -- CAN'T
RELEASE HIM FROM CUSTODY ONCE REASONABLE CAUTIONS HAVE BEEN MADE TO THAT THE DRIVER IS
SAVE AND REFUGE FOILG THE ARREST. NOW, HE WASN'T ARRESTED HERE. BUT WHAT ARE WE SAYING?
THERE IS A HEIGHTENED DUTY TO ADDRESS MOTOR VEHICLE ACCIDENTS AND IT'S TO KEEP THE ROAD
SAFE NOT JUST FOR MY CLIENT BUT FOR EVERYONE ELSE ON THE ROAD. IT COULD HAVE BEEN THE
RODRIGUEZ's WHO I REPRESENT HERE. THEY COULD HAVE STRUCK HIM AND BEEN DECEASED. THROUGH
NO WRONGDOING OF THEIR OWN. OR MR. (INAUDIBLE) WHO ACTUALLY STRUCK THIS VEHICLE. WE
ALSO LOOK AT THE ACTIONS OF THE OFFICERS. DID THEY HAVE A DUTY TO RENDER CARE? YES,
THEY DID. IS IT MINISTERIAL AND NEVER DISCRETIONARY? UNDER THE PLAIN LANGUAGE OF
32593-TWO, YES. DID THEY PROPERLY DO IT? THAT'S FOR A JURY TO DECIDE. IF A JURY FINDS
THAT THEY DID ALL THEY COULD OR THEY DIDN'T NEED TO DO ANY MORE, THEN THERE'S BE NO CAUSE OF
ACTION. BUT THIS IS NOT SOMETHING THAT CAN BE ADDRESSED SUMMARILY. TO DO SO WILL CARVE
OUT A PARTICULAR HEARING GONZALEZ SECTION. AND I DON'T BELIEVE THAT THERE'S ANY SUPPORT
IN THE CASE LAW OF THE STATUTES TO DO SO. I'M MERELY ASKING THIS COURT DO WHAT THE
APPELLATE DIVISION DID; MAINTAIN THE STATUS QUO. CHIEF JUSTICE RABNER: HOW
FAR DOES THEIR MINISTERIAL RESPONSIBILITY EXTEND? LAWRENCE D. MINASIAN:
THEIR MINISTERIAL RESPONSIBILITY EXTENDS UNTIL THIS INDIVIDUAL IS SAFE. UNTIL THEY'VE
DONE ALL THEY COULD TO MAKE SURE THAT HE WAS SAFE. ALL RIGHT. DID THEY DO ALL THEY
COULD? THEY JUST HAD TO WAIT A LITTLE LONGER. THEY JUST HAD TO WAIT A LITTLE LONGER.
IF A RIDE DIDN'T COME, THEY COULD HAVE MADE AN INQUIRY. THEY DIDN'T DO THAT THEY LEFT.
AND THEY LIED ABOUT IT. THEY LIED ABOUT IT IN THEIR DEPOSITION. THEY SAID THEY CALLED
DISPATCH. THEY TOLD THEM WHAT WAS GOING ON AND THEY WERE INSTRUCTED TO LEAVE. THEY DID NOT
DO THAT. THEY DID NOT EVEN TELL DISPATCH HE WAS INTOXICATED. JUSTICE PATTERSON:
YOU SAID THEY HAD TO WAIT A LITTLE LONGER. BUT THE RIDE WASN'T COMING, RIGHT?
LAWRENCE D. MINASIAN: YOUR HONOR, APPARENTLY IT WASN'T, BUT THEY DIDN'T KNOW THAT AND
THEY DIDN'T MAKE ANY INQUIRY. THIS IS FOR A JURY TO DETERMINE. JUSTICE
PATTERSON: THEY HAVE SOMEBODY TELLING HIM -- HE SAID HIS BROTHER OR HIS FRIEND TO COME
PICK HIM UP. THEY DON'T KNOW THAT THE WRONG LOCATION HAS BEEN GIVEN. BUT IT HAS BEEN
GIVEN. AND YOU'RE SAYING THEY SHOULD HAVE WAITED A LITTLE LONGER, BUT WE KNOW -- I THINK
THE FACTS SUGGEST THEY COULD HAVE WAITED FOR 24 HOURS AND THAT RIDE WASN'T COMING.
LAWRENCE D. MINASIAN: THEY WOULD HAVE HAD TO SAY WHERE'S YOUR RIDE AND THEY COULD HAVE
CALLED THEM AGAIN. THAT'S ALL THEY NEEDED TO DO. THEY COULD HAVE TAKEN OTHER PRE-CAUTIONS.
THIS IS -- JUSTICE PATTERSON: THEY COULD HAVE CALLED WHO AGAIN? THEY DON'T
EVEN KNOW WHO THEY TALKED TO? LAWRENCE D. MINASIAN: THEY KNOW. THE PERSON
THEY SPOKE TO INTRO DWUFD THEMSELF. HIRAM KNEW WHO IT WAS. THEY COULD HAVE ASKED HIRAM,
WHERE IS YOUR RIDE. AND HAVE HIRAM CALL THIS INDIVIDUAL AGAIN. THEY DON'T KNOW THAT
HE WAITED FOR 15 MINUTES. THAT'S NOT FLESHED OUT. THESE ARE FACT QUESTIONS. AND THESE
ARE QUESTIONS, JUSTICE, THAT A JURY MAY FIND WERE ENOUGH. BUT NOT FOR A COURT TO DETERMINE.
AND THERE'S A DISTRESS SEE AS TO WHAT THEY SAID. WHEN -- THEY DID NOT TELL THE TRUTH
AT THEIR DEPOSITION. THEY ALSO SAID, TOLD WHOEVER -- MARTINEZ THAT IT'S NOT SAFE FOR
HIM TO BE HERE. BUT THEN THEY ARGUE IN SUMMARY JUDGMENT THAT IT IS. AND THEIR DEPOSITION
THEY SAY IT'S NOT SAFE. QUITE FRANKLY I DO NOT SEE HOW WE DISPOSE OF THIS
IN SUMMARY JUDGMENT. WAS A MINISTERIAL DUTY PROPERLY EXECUTED? A JURY WILL HAVE TO
DETERMINE THAT. IS THERE A QUESTION OF FACT AS TO LEAVING SOMEONE WHO IN THE LIGHT MOST
FAVORABLE TO THE PLAINTIFF IS VISIBLY INTOXICATED, BELLIGERENT, NOT LISTENING TO
INSTRUCTIONS? BY A STRANDED, DARK, RAINY BRIDGE IN THE MIDDLE OF THE NIGHT? IS THAT
FULFILLING THE MINISTERIAL DUTY OR IS IT ABANDONING SOMEONE ON A HIGHWAY AS IN SUAREZ?
THEY DID NOT HAVE TO ARREST HIM. BUT THEY COULD NOT LEAVE HIM THERE UN-ATTENDED. THAT IS
OUR ARGUMENT, YOUR HONOR. JUSTICE PATTERSON: JUST TO BE CLEAR, YOU SAY
THEY COULD HAVE ARRESTED HIM. LAWRENCE D. MINASIAN: THEY COULD HAVE.
JUSTICE PATTERSON: AND THEY COULD HAVE FORCED HIM INTO THE CAR WITHOUT AN ARREST.
LAWRENCE D. MINASIAN: THEY COULD HAVE. JUSTICE PATTERSON:
BUT THAT WOULD NOT VIOLATE HIS CIVIL RIGHTS? LAWRENCE D. MINASIAN: PUTTING
HIM IN A VEHICLE AND TRANSPORTING HIM WOULD NOT VIOLATE HIS CIVIL RIGHTS.
JUSTICE PATTERSON: AGAINST HIS WILL. HE'S SAYING I DON'T WANT TO WAIT FOR MY RIDE. I DON'T
TRUST POLICE OFFICERS. I DON'T WANT TO GO WITH YOU. AND THEY SAY, TOUGH, YOU'RE IN.
AND FORCE HIM IN. THAT'S OKAY? LAWRENCE D. MINASIAN: THAT'S -- THERE'S
BLANKET IMMUNITY FOR THE OFFICERS TAKING THAT ACTION. UNDER 26:2B-16. CHIEF
JUSTICE RABNER: ANYTHING YOU'D LIKE TO ADD TO YOUR ARGUMENT? LAWRENCE D.
MINASIAN: YOUR HONOR, THE ARGUMENT RAISED IS THAT THIS OVERTURNS MOREY. BUT MOREY SAYS
THIS IS NOT RENDERING ASSISTANCE TO INDIVIDUALS. IT DISTINGUISHES IT. THEY ARGUE THAT
262B-16 IMMUNIZES THEM FOR NOT TAKING -- PUTTING HIM IN THE CAR. IT DOES THE OPPOSITE.
THAT STILL DOES NOT CHANGE THE FACT THEY HAVE A MINISTERIAL DUTY, A MINISTERIAL DUTY
WHICH DISCRETIONARY ACTIVITY IS NEVER ALLOWED. UNDER THE CLEAR LANGUAGE, THE LAST SENTENCE
OF 59:THREE-TWO AND ALL OF THE CASES. FOR THAT REASON, THIS IS A CASE THAT RESPECTFUL
LY MUST GO TO A JURY. CHIEF JUSTICE RABNER: THANK YOU VERY MUCH.
MR. ANDERSON? EMILY R. ANDERSON: THANK YOU CHIEF JUSTICE AND ASSOCIATE
JUSTICES. IN ITS SIMPLEST TERMS, I THINK THIS CASE SHOULD BE DECIDED ON THE
FACT THAT IT IS IN-APPROPRIATE FOR SUMMARY JUDGMENT AS THERE ARE MATERIAL ISSUES OF FACT
WHICH ARE IN DISPUTE. ADDITIONALLY, AS I INTERPRET THE DEFENSE ARGUMENTS,
THEY TOTALLY IGNORE THE LEGISLATIVE INTENT AND THE STATUTORY SCHEME OF THE TORT CLAIMS
ACT THAT WAS PROMULGATED BY THE LEGISLATURE. THE TORT CLAIMS ACT SETS FORTH TWO DIFFERENT
STANDARDS FOR PUBLIC ENTITY CONDUCT. ONE, PLANNING LEVEL OR DISCRETIONARY DECISIONS
WHICH ARE GENERALLY IMMUNE. AND OUR CASE LAW, INCLUDING THIS COURT IN COIN, IN JUSTICE
RIVER SOTO's DECISION, VERY CLEARLY STATES WHAT CONSTITUTES PLANNING LEVEL OR DISCRETIONARY
DECISIONS. I BELIEVE THE DEFENSE IS MISINTERPRETING WHAT A DISCRETIONARY DECISION
MEANS. AN ARE DISCRETIONARY DECISION HAS A VERY CLEAR. IT DOESN'T MEAN THAT WHEN A POLICE
OFFICER REACHES A FORK IN THE ROAD, HE OR SHE EXERCISES DISCRETION BY TAKING THE LEFT
FORK OR THE RIGHT FORK. THAT'S A MINISTERIAL ACT JUST LIKE WE HAVE HERE. AND
THE FACT THAT THEY HAVE TO MAKE A DECISION DOESN'T MAKE IT A DISCRETIONARY DECISION,
WHICH IS A VERY, VERY SIGNIFICANT DIFFERENCE HERE. THE CASES ARE LEGION THAT THE MINISTERIAL
ARE OPERATIONAL DECISIONS WHICH IS WHAT POLICE OFFICERS DO ON A DAILY BASIS. THEY MAKE
MULTIPLE OPERATIONAL DECISIONS BUT THEY ARE NOT ENTITLED TO IMMUNITY. BECAUSE THEY ARE
NOT PLANNING LEVEL OR DISCRETIONARY DECISIONS. THE STATUTE IS CLEAR. OUR CASE LAW IS
CLEAR. AND COIN GIVES US A ROAD MAP AS TO HOW THEY FOLLOW IT. POLICE OFFICERS
ON PATROL WERE ENGAGED IN MINISTERIAL DUTIES. THE CASES ARE LEGION. OJINNAKA VERSUS
THE CITY OF NEWARK AND SUAREZ, WHICH WE HAVE BEEN DISCUSSING. SUAREZ, RESPECTFULLY, IS
DIRECTLY ON POINT WITH GONZALEZ. AND THE APPELLATE DIVISION IN THIS CASE, IN A PROCURE
REAM OPINION FOLLOWED SUAREZ AND DISTINGUISHED MOREY. MOREY DOES NOT APPLY, IT IS
DISTINGUISHABLE VENLT IN FACT, WHEN JUSTICE BRULTHS WROTE THE MOREY DECISION WHICH WAS
TEN YEARS AFTER SUAREZ, HE SAID IN SECTION FOUR OF THAT DECISION, THE DIFFERENCE BETWEEN
-- REFERRING TO MOREY, THE DIFFERENCE BETWEEN THE PRESENT FACTUAL SCENARIO AND THAT FOUND
IN SUAREZ IS THAT THE OFFICERS IN SUAREZ WERE DUTY-BOUND TO RENDER AID. JUST LIKE IN
THIS CASE. THE OFFICERS IN GONZALEZ WERE DUTY-BOUND TO RENDER AID. THAT IS WHY MOREY
DOES NOT APPLY AND JUSTICE -- EXCUSE ME. JUDGE GAR I THINK WAS PRESENT IN MAKING THAT
SDINGDZ RIGHT THERE AND -- JUSTICE ALBIN: COUNSEL, THERE IS 593-TWO THAT
DEALS WITH ALLOCATION OF RESOURCES. AND EVEN INDIVIDUAL OFFICERS MAY HAVE TO MAKE THOSE
DECISIONS. SO AGAIN, HYPOTHETICAL, THEY'RE THERE FOR 20 MINASIAN. NO ONE'S SHOWING UP.
NOW THEY HAVE A REPORT OF A BURGLARY IN PROGRESS. IF THEY GO TO THE BURGLARY IN PROGRESS,
ARE THEY IMMUNIZED OR NOT? EMILY R. ANDERSON: NO. I DON'T BELIEVE THAT
THEY MAKE DISCRETIONARY DECISIONS WITHIN THE MEANING OF THE LAW AND THE STATUTE. THOSE
ARE HIGH LEVEL POLICY DECISIONS WHERE INDIVIDUALS IN CHARGE AND HAVE RESPONSIBILITY FOR
MAKING THOSE DISCRETIONARY DECISIONS DO SO. I DON'T BELIEVE THAT A PATROL OFFICER WHO
HAS AN OBLIGATION TO RESPOND -- BECAUSE IN THIS CASE WE ALREADY KNOW -- JUSTICE
ALBIN: NO, HE GETS A REPORT. THE OFFICER -- LOOK, I'M LOOKING AT 5932. PUBLIC EMPLOYEE
IS NOT LIABLE TO EXERCISE DISCRETION IN THE FACE OF COMPETING DEMANDS HE DETERMINES WHETHER OR
NOT TO UTILIZE DOT DOT DOT RESOURCES. SO HE GETS A DISPATCH. BURGLARY IN PROGRESS. BURGLAR
REPORTED TO BE ARMED. YOU'RE SAYING THAT THEY HAVE A MINISTERIAL DUTY TO STICK WHERE
THEY ARE AND THEY'RE BASICALLY HANDCUFFED FROM REPORTING TO THE BURGLARY EVEN IF THEY'RE
THE ONLY PATROL OFFICERS WITHIN THE AREA? KENNETH G. ANDRES, JR.: IF SOMEONE
ORDERS THEM TO DO SO THAT HAS THE CAPACITY TO MAKE THOSE HIGH LEVEL DECISIONS, I THINK
THAT WOULD BE AN ARGUMENT THAT THE COURT COULD ACKNOWLEDGE. BUT UNDER THESE CIRCUMSTANCES,
I DON'T BELIEVE SO. A PATROL OFFICER WITH ALL DUE RESPECT DOESN'T MAKE THOSE KINDS OF
DECISIONS WITHIN THE MEANING OF THE TORT CLAIMS ACT. I UNDERSTAND THEY'RE MAKING A DECISION
THAT YOU WOULD SAY INVOLVES DISCRETION BECAUSE THEY'RE GIVEN OPTIONS. BUT THAT WOULD
INVOLVE ANY DECISION THAT A POLICE OFFICER MAKES WHEN HE OR SHE -- JUSTICE ALBIN:
WELL, WE KNOW THAT PATROL OFFICERS ARE ON THE ROAD AND THEY'RE RECEIVING ALL SORTS OF
REPORTS. AND THEY MAY HAVE TWO REPORTS, ONE GO HERE -- THERE'S A ROBBERY HERE AND THERE'S
A ROBBERY THERE. YOU DON'T THINK THOSE ARE DISCRETIONARY -- AT THAT MOMENT, YOU DON'T
THINK THAT'S AGGRESSION ANYMORE DECISION CONCERNING ALLOCATION OF RESOURCES?
KENNETH G. ANDRES, JR.: NOT WITHIN THE MEANING OF THE TORT CLAIMS ACT AND THE CASE
LAW WE HAVE DISCUSSED INCLUDING THINGS LIKE COIN. THAT MIGHT BE A HIGH LEVEL DECISION
THAT HAS TO BE MADE BY ANOTHER INDIVIDUAL. PLANNING LEVEL OR DISCRETIONARY DECISION
THAT AGAIN DO NOT FILTER DOWN TO THE MINISTERIAL ACTS WHEN THESE INDIVIDUALS WERE REQUIRED
TO RESPOND. THEY WERE THERE. THEY WERE DEALING WITH A SITUATION THAT WAS VERY CLEARLY
A DANGEROUS SITUATION. WE LOOK AT THE SCENARIO OF WHAT HAPPENED HERE AND
ACCORDING TO THE RECORD AT 3:24 A.M., THE PATROL OFFICERS CALLED DISPATCH TO ADVISE OF THE
SITUATION. WE'RE LEFT ON A BUSY HIGHWAY. THIS IS A MAJOR ARTERY. AND AT 3:44 A.M., MR.
GONZALEZ IS WALKING IN THE ROADWAY AND DEAD. WITHIN 20 MINUTES. AND I HEARD MY ADVERSARY
INDICATE ON SEVERAL OCCASIONS THAT THE POLICE OFFICERS PLACED HIM IN A POSITION OF SAFETY.
WELL, RESPECTFULLY, NO, THEY DIDN'T. THEY PLACED HIM IN A POSITION WHERE HE WAS DEAD
WITHIN 20 MINUTES. THAT'S NOT IN A POSITION OF SAFETY. YOU DON'T HAVE TO PREDICT EXACTLY
WHAT IS FORESEEABLE, BUT IT IS CERTAINLY FORESEEABLE THAT AN INDIVIDUAL WHO IS
ARGUABLY INTOXICATED WOULD DO SOMETHING LIKE WALK THE ROAD. THAT IS ABSOLUTELY SOMETHING
WHICH IS FORESEEABLE AND WOULD FALL WITHIN THE DECISION MAKING PROCESS OF THE.
WE ALSO -- AND WE'VE HEARD SOME CONVERSATION ABOUT THE APPLICABILITY OF 26:2B-16. THAT
STATUTE ABSOLUTELY GIVES THE POLICE OFFICER THE RIGHT TO PLACE THAT INDIVIDUAL IN A CAR
AND TAKE HIM TO A PLACE OF SAFETY. AND WHAT IT DOES IS IT DECIDES THAT IF YOU AS A PATROL
OFFICER DO THIS, YOU WILL BE IMMUNIZED FOR DOING IT. IF SOMETHING HAPPENS ON THE WAY
OR IF I GET MAD AT THE POLICE OFFICER FOR PUTTING ME IN THE CAR AND TAKING ME TO A PLACE
OF SAFETY, THAT'S IMMUNIZED. BUT THE DECISION NOT TO ACT IS NOT IMMUNIZED.
THESE OFFICERS HAD A DUTY TO TAKE REASONABLE PRE-CAUTIONS, AND THAT'S A JURY CALL, TO MAKE
SURE THAT THIS INDIVIDUAL WAS PROTECTED. IT IS ENTIRELY FORESEEABLE THAT THIS TYPE OF
TRAGEDY WOULD IN FACT OCCUR. THAT'S THE BASIS OF MY PRESENTATION, CHIEF
JUSTICE. IF ANYONE HAS ANY QUESTIONS, I'D BE MORE THAN HAPPY TO RESPOND.
CHIEF JUSTICE RABNER: THANK YOU, COUNSEL. MR. ADELMAN, BRIEF REBUTTAL?
PHILIP S. ADELMAN: THANK YOU, CHIEF JUSTICE. I WILL TRY AND BE AND BRIEF
AS COULDN'T SIZE AS I CAN AS THERE'S BEEN A LOT SAID. BACK TO JUSTICE ALBIN's
POINT THAT HE JUST MADE, THE DISCRETION IS AFFORDED TO LOW LEVEL PATROL OFFICERS.
THAT'S THEIR JOB. WITHOUT THAT DISCRETION, THEY CAN'T DO THEIR JOB. TO SAY THAT ONLY
HIGH LEVEL DECISION MAKERS THAT ARE -- THE DISCRETION ONLY APPLIES TO THEM WOULD NOT
ALLOW PATROL OFFICERS TO DO THEIR JOB. LIKE JUSTICE ALBIN SAID, YOU CAN'T BE HANDCUFFED
TO ONE PERSON ALL NIGHT AND POSSIBLY NOT GO TO THE ROBBERY. AS FAR AS LYING
TO THE POLICE OR LYING UNDER OATH, OFFICER TUCKER DIDN'T LIE. HE SAID HE DIDN'T REMEMBER
TALKING TO MARTINEZ. YOU KNOW, AS FAR AS TALKING TO DISPATCH, THEY DIDN'T LIE ABOUT WHAT
THEY WERE INSTRUCTED TO DO. OFFICER TUCKER SAID A FEW TIMES HE DIDN'T ACTUALLY RECALL
WHAT WAS SAID. HE BELIEVED THAT HE WAS TOLD TO RESUME PATROL, BUT HE DIDN'T LIE. I
MEAN, HE TESTIFIED YEARS AFFIDAVIT THE INCIDENT. I JUST WANT THAT TO BE CLEAR. THAT THERE WAS
NO PERJURY HERE. BUT THERE'S BEEN A LOT OF TALK BY THE PLAINTIFFS AND AMICUS
FOR THE PLAINTIFFS ABOUT THE DUTY TO RENDER AID AND REASONABLE PRE-CAUTIONS. BUT THERE'S
BEEN NO SUBSTANCE TO THAT. WE HAVEN'T BEEN TOLD WHAT THE OFFICERS COULD HAVE DONE OR
WHAT THEY WERE SUPPOSED TO DO BEYOND WHAT THEY ALREADY DID. I MEAN, AT WHAT POINT DO
THE OFFICERS HAVE THE RIGHT TO GO AND CONTINUE DOING THEIR JOB? CHIEF JUSTICE
RABNER: MR. ADELMAN, WHAT'S YOUR UNDERSTANDING OF THE SCOPE OF THE TITLE 26 SECTION WE'VE
BEEN TALKING ABOUT? HOW FAR CAN THE POLICE GO WITH AN INTOXICATED INDIVIDUAL?
PHILIP S. ADELMAN: MY UNDERSTANDING IS THAT THEY HAVE AN INTOXICATED INDIVIDUAL. THEY
ASSESS WHETHER THEY'RE INTOXICATED OR INCAPACITATED. THEY -- IF INCAPACITATED,
THEY HAVE TO BRING THEM TO SOME SORT OF CENTER FOR TREATMENT. IF JUST INTOXICATED, THERE'S
NO REQUIREMENT TO TAKE THEM ANYWHERE. HOWEVER, THEY HAVE THE OPTION. IF SOMEBODY RESISTS
AND DOES NOT WANT HELP BUT YET IS STILL PUT IN THE CAR, THAT CAN BE CONSIDERED A VIOLATION
OF CIVIL RIGHTS, SUCH AS UN-LAWFUL DETENTION, UN-LAWFUL IMPRISONMENT. SO, I MEAN, THOSE
ARE 1983 VIOLATIONS. IN OTHER WORDS, THE OFFICERS IN THIS CASE WERE DAMNED IF THEY DO
AND DAMNED IF THEY DON'T. SO EITHER THEY -- IF THEY SHOVE THEM INTO THE CAR OR STAYED
WITH HIM, YOU KNOW, THEY LOSE EITHER WAY. AND THE IMMUNITIES WERE CODIFIED SO OFFICERS
CAN HAVE DISCRETION TO MAKE THESE DECISIONS. AND, FRANKLY, TO SAY THAT WE NEED TO GO
BACK TO THE TRIAL COURT SIMPLY BECAUSE A JURY NEEDS TO MAKE A DECISION IS NOT CORRECT.
JUSTICE ALBIN: EVEN 1983 HAS IMMUNITIES. WE KNOW THAT. THAT'S BEEN
DEBATE WD. SO AN OBJECT TABLLY REASONABLE POLICE OFFICER IS PROTECTED UNDER SECTION 1983.
THEN WE HAVE THE STATUTORY IMMUNITY. WOULD YOU AGREE THERE ARE IMMUNITIES UNDER THE
STATUTE AND THERE'S IMMUNITY UNDER SECTION 1983? PHILIP S. ADELMAN: I AGREE,
YOUR HONOR. I ABSOLUTELY AGREE. I'M SORRY. I LOST MY TRAIN OF THOUGHT
FOR A MINUTE. BUT I THINK WHAT I WAS SAYING IS THAT THERE HAS TO BE A POINT IN TIME WHERE
THE OFFICERS HAVE THE ABILITY TO USE THEIR DISCRETION. OTHERWISE --
JUSTICE LA VECCHIA: ARE YOU ASKING US, MR. ADELMAN, TO AMEND OR ADJUST COIN? WHAT WAS
SAID IN COIN? COIN, AS MR. ANDRES JUST RED IS VERY CLEAR THAT IT ONLY APPLIES TO HIGH
LEVEL PLANNING DECISIONS, NOT TO EVERY CHOICE DECISION THAT THE PUBLIC EMPLOYEE IS CALLED
UPON TO MAKE IN THE COURTHOUSE OF EXERCISING AND PERFORMING A MINISTERIAL DUTY. IT'S
VERY LIMITED. AND ONE MAY NOT LIKE IT, BUT THAT HAS BEEN THE STATEMENT OF OUR LAW.
PHILIP S. ADELMAN: UNDERSTOOD. I'M JUST ASKING THE COURT TO CONSIDER WHAT
MOREY SAID AND WHAT BROWN V BROWN SAID IN TERMS OF OFFICERS HAVING THE ABLE TO ESSENTIALLY
KNOWING THAT THEIR RESOURCES AS MAN POWER ARE LIMITED AND HAVE TO BE ABLE TO MAKE
DECISIONS. WITH THE USE OF DISCRETION. I'M NOT ASKING FOR COIN TO BE OVERTURNED OR
NECESSARILY AMENDED. AND I ALSO WANT TO POINT OUT THAT THE CASES REFERRED
TO BY MY ADVERSARY, WHICH WERE PRAET, OJINNAKA, DELTUFO, THOSE WERE ALL CAR ACCIDENT CASES
BUT THEY INVOLVED SITUATIONS WHERE THE DRIVER OR PASSENGER OR SOMEBODY WAS INJURED AND
REQUIRED MEDICAL ATTENTION WHICH WAS NOT IN THIS CASE. THIS CASE, THE OFFICERS RENDERED
AID. ONCE THEY RENDERED AID, THAT'S WHAT THEY'RE SUPPOSED TO DO AND THAT'S WHAT THEY
DID. AND TO GO TO A -- THE -- A DETERMINATION AS TO WHETHER THE IMMUNITIES APPLY IS A
LEGAL DECISION. IT'S A LEGAL DECISION TO BE MADE BY THE COURT. NOT FOR THE JURY.
SO FOR THE REASONS I'VE ALREADY STATED, IT'S OUR POSITION THAT THE
PETITIONERS ARE IMMUNE UNDER THE TORT CLAIMS ACT BECAUSE OF THE DISCRETIONARY GOOD FAITH
ACTS THEY UNDERTOOK, AS WELL AS UNDER 26:16-2B -- OR 2B-16. FOR ALL OF THOSE REASONS.
SO I DON'T WANT TO GET TO -- I DON'T WANT TO START REPEATING MYSELF, BUT
IF THERE'S ANY OTHER QUESTIONS, I'M HAPPY TO ADDRESS THEM. CHIEF JUSTICE
RABNER: THANK YOU, MR. ADELMAN. JUSTICE ALBIN: I JUST HAVE ONE QUESTION.
CHIEF JUSTICE RABNER: SURE. JUSTICE ALBIN: ARE YOU SAYING
THAT THESE IMMUNITIES ARE NOT IMMUNITIES THAT ARE A DEFENSE AGAINST AN ACTION? AND THAT
THEY DON'T -- IF WE WERE TO DECIDE ON THE BASIS OF SUMMARY JUDGMENT THAT THERE ARE FACTUAL
DISPUTES THAT YOU WOULDN'T HAVE THE BENEFIT OF HAVING THESE IMMUNITIES GO BEFORE THE JURY?
IS THAT WHAT YOU'RE SAYING? PHILIP S. ADELMAN: NO, I'M NOT SAYING THAT
WE'RE BARRED FROM PRESENTING THESE IMMUNITIES TO A JURY. NO. I'M NOT SAYING THAT.
JUSTICE ALBIN: OKAY. FINE. THANK YOU.