(CN) - A police officer who broke down a New Jersey man's bedroom door and shot him in the head for refusing to drop a hammer must face civil claims, a federal judge ruled.
Saulo Del Rosario had been treated and prescribed medication for seizures at St. Joseph's Hospital in Paterson, N.J., on July 6, 2012, according to the complaint.
His family says after Saulo locked himself in his bedroom with an eye-hook latch on the night of Aug. 31, he refused to come out the next morning.
Concerned about his medical status, Saulo's son, Honey Del Rosario, had a friend who spoke English call 911, as Saulo's hospital discharge papers instructed to do in case his symptoms returned or worsened, according to the complaint.
The 911 operator allegedly designated the call as an "EDP," or emotionally disturbed person. When Paterson police arrived, they spoke briefly to Saulo's sister, Marta Del Rosario, the complaint states.
Marta allegedly told the officers she was worried that Saulo would have a convulsion, as he had not taken his medication that morning, so they tried to speak with him through the door.
When Saulo did not respond, some of the officers removed his immediate and extended family from the home and positioned themselves outside Saulo's window, according to the complaint.
Meanwhile, other officers allegedly kicked Saulo's bedroom door open and found him holding a hammer. Saulo's family says these officers were holding a soft, bendable Baker Shield designed to protect up to three officers from gunshots.
The shielded Officer Marj Kush ordered Saulo to drop it, but he refused, the family says.
Kush then fired two shots, one of which hit Saulo in the mouth, the complaint states.
The family says Saulo was pronounced dead from a "gunshot wound of head" at St. Joseph's Hospital.
Their complaint includes claims from 14 of Saulo's family members against Paterson and its police department, Kush and five other named officers, as well as 30 anonymous supervisory officials, officers, and entities.
Paterson, the police department and Kush moved to dismiss for failure to state a claim, but U.S. District Judge William Martini preserved the claims against Kush last week
"Plaintiffs plausibly allege that firing a gun into Saulo's head was a breach of Marj Kush's duty of care, resulting in Saulo's death," the unpublished April 16 ruling states.
Martini later added: "The complaint plausibly alleges each element of an [intentional infliction of emotional distress] IIED claim against Marj Kush."
As for the municipal defendants, the ruling dismisses the Section 1983 and the intentional infliction of emotional distress claim.
"The complaint adequately puts defendants on notice that they are being accused of negligent or intentional acts that resulted in Saulo's death," Martini wrote.
The judge later added: "The complaint does plausibly allege all the elements for a [negligent infliction of emotional distress] NIED claim. All the plaintiffs allege that they were in or around the home when the police killed Saulo, allegedly causing emotional distress to all plaintiffs."
The plaintiffs must file an amended complaint within 30 days, the ruling states.
An attorney for Kush has not yet returned a request for comment.
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