Cop Still on the Hook for Park Sting Turned Fatal

(CN) - A widow may amend claims that a New Jersey sheriff in plain clothes cornered her unarmed husband in a park and then shot him to death in broad daylight, a federal judge ruled.

Essex County Sheriff's Officers Edward Esposito and David Cohen went patrolling undercover on July 16, 2010, at Branch Brook Park in Newark. In the aftermath of the sting, The New York Times described the park's history as a spot for men seeking anonymous sex as well as many a police investigation.

Defarra Gaymon, 48, the CEO of a credit union in Atlanta, Ga., had reportedly been in the state at the time for an alumni reunion at Montclair High School.

At about 6:15 p.m., as Esposito went to retrieve handcuffs he had dropped in the woods when Gaymon approached, "engaged in a sexual act," according to reports citing the Essex County Prosecutor's Office.

When the 30-year-old officer tried to make an arrest, "Mr. Gaymon appeared to panic, assaulted the police officer and fled," the prosecutor's office said.

Though the banker was allegedly unarmed, his family claims that Esposito chased him to a pond in the park, giving him no avenue of escape.

The prosecutor's office said Gaymon then threatened to kill, "lunged at, and attempted to disarm the officer while reaching into his own pocket," but the banker's family denies this.

They claim that, after Gaymon got down on his knees, Esposito approached him from behind, kicked him several times, and shot him in the stomach, killing him.

Gaymon's widow, Mellanie, sued Esposito and the sheriff's office in 2011, around the time that a grand jury refused to bring criminal charges against Esposito.

U.S. District Judge Jose Linares granted the defendants judgment on the pleadings last year but allowed the plaintiffs to amend their claims.

"It is not better that all felony suspects die than that they escape," the unpublished opinion states. "Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of force to do so. It is no doubt unfortunate when a suspect who is in sight escapes, but the fact that the police arrive a little late or are a little slower afoot does not always justify killing the suspect. A police officer may not seize an unarmed, nondangerous suspect by shooting him dead."

Linares also took issue last week, however, with the second amended complaint because it fails to "explain why defendant Officer Esposito chased Mr. Gaymon to the pond.

"As a practical matter, however, the Court notes that Plaintiffs have indicated their intent to include the following sentence in a proposed third amended complaint: 'During the encounter, Officer Esposito believed that decedent Gaymon engaged in a lewd, non-violent disorderly persons offense.' ... The court hereby finds that, with the addition of said statement, plaintiffs' third amended complaint would state a plausible § 1983 excessive force claim for the reasons already provided in the Court's prior opinion in this matter."

"When the factual allegations in this case are viewed in plaintiffs' favor, one can reasonably infer that Mr. Gaymon did not present a danger immediately prior to the fatal shot," the unpublished ruling states. "As a general matter, it is-and was on the night in question-clearly established that if an individual does not present a danger to the officers present or others, law enforcement officials violate that individual's Fourth Amendment rights by shooting him or her with a firearm."

But Linares also found that the section 1983 claims against Sheriff Armando Fontoura, Undersheriff Kevin Ryan, Lt. Peter Corbo and Capt. Kevin Pascoal cannot be salvaged. That count had alleged supervisory liability for failure to train or supervise.

Likewise, Essex County and its sheriff's office has ducked a claim for failure to train and follow standard operating procedures.

The plaintiffs must amend their claims a third time by Sept. 30, according to the ruling.

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