May 18, 2023

By John Paff, Transparency NJ

TRENTON, NJ (MERCER)–

A March 29, 2023 signed release indicates that the City of Trenton (Mercer County, NJ) has tentatively agreed to pay $575,000 to settle a lawsuit filed by the estate of a man who died after having allegedly been pepper-sprayed repeatedly and beaten by police and improperly placed in a four-point, hard restraint by hospital staff. According to a stipulation in the release, as well as the City Clerk’s May 2, 2023 Open Public Records Act (OPRA) response, the payment “is subject to council approval and is thus not finalized until such action is taken by that body.”

The following account is taken from both the estate’s lawsuit and a 38-page opinion issued on February 11, 2021 by U.S. Chief District Judge Freda L. Wolfson. Judge Wolfson’s opinion contains a great deal more context than the lawsuit given that it was authored after a significant amount of pretrial discovery had been conducted.

On the morning of June 15, 2015, Kevin Higgenbotham called 9-1-1 and reported that a trespasser was at his Bellevue Avenue home. First to arrive on the scene was Officer Carlo Cavalli who learned that the trespasser was actually Higgenbotham’s brother, Dwayne Jackson, who resided in the home along with their mother and other family members. Jackson told Cavalli that Higgenbotham had recently moved into the house after having an argument with his girlfriend. Jackson also told Cavalli that Higgenbotham, who was bipolar and had not been taking his medication, physically prevented him from entering the home but later allowed him to enter shortly before calling 9-1-1.

While the various accounts diverge a bit at this point, it appears from the opinion that Higgenbotham, who was getting agitated, demanded that Cavalli arrest Jackson for trespassing. Cavalli sent Jackson into the home in order to separate him from Higgenbotham shortly before Officer Samuel Gonzalez and Jackson’s and Higgenbotham’s mother, Adrienne, arrived. Adrienne explained to Cavalli that Higgenbotham was “acting crazy” and that she wanted him removed from the house. Jackson, however, reported to Cavalli that Higgenbotham had assaulted him (Higgenbotham said that was just a “play fight”) which Cavalli said established probable cause for Higgenbotham’s arrest for simple assault.

Cavalli’s and Higgenbotham’s statements conflicted as to whether Higgenbotham resisted arrest. Cavalli admitted, however, that he pepper-sprayed Higgenbotham and struck him with his baton when the pepper spray had no effect. After being sprayed, Higgenbotham fled inside the house, rinsed his face at the kitchen sink and then ran into the bathroom where he tried to close the door. When Cavalli and Gonzalez chased Higgenbotham into the house and prevented him from closing the bathroom door, Cavalli struck Higgenbotham three to five additional times with his baton. Despite the officers’ efforts, Higgenbotham fled away from the house. By this time several other officers arrived, including defendants Sergeant Jason Kmiec and Officer E. Ramos (see the note at the bottom of this article), and Higgenbotham was shortly thereafter handcuffed and taken into custody.

After Cavalli placed the handcuffed Higgenbotham into a police vehicle, Higgenbotham began to kick the door which caused damage. Cavalli and Gonzalez testified that they tried to secure Higgenbotham with a seatbelt in order to prevent him from kicking but that Higgenbotham pushed his head into Gonzalez to push him away from the vehicle. Gonzalez then pepper-sprayed Higgenbotham while he was restrained in the police vehicle. A neighbor, who witnessed the encounter, testified that she heard Higgenbotham say “I can’t breathe in here” three or four times and that she heard Gonzalez say “I’m tired of this s**t,” before opening the door to the police vehicle and pepper spraying Higginbotham. She also testified that after Higginbotham’s kicking increased after having been pepper-sprayed by Gonzalez, Gonzalez sprayed him again, an assertion that Gonzalez disputes.

Higgenbotham was taken to the Emergency Department of the Capital Health Regional Medical Center in Trenton. The estate’s lawsuit alleges that ER nurse Michelle Micalizzi, who is named as a defendant, reported that Higgenbotham “became combative, causing her and the security officers to initiate four-points, hard restraints on [him].” Shortly thereafter, “Higgenbotham became unresponsive and suffered cardiac arrest and respiratory failure,” according to the lawsuit. The lawsuit alleged that Micalizzi and the security officers were not authorized to put Higgenbotham in a four-point restraint because the Medical Center’s policy requires that the use of such restraints can be ordered only by a physician.

Higgenbotham stayed at Capital Health on a ventilator until late June when he was admitted to Kindred Hospital in Philadelphia “for the purpose of being weaned off of the ventilator,” according to the lawsuit. From there, he went back and forth between hospitals and nursing facilities until he passed away on March 12, 2016. According to the court opinion, Higgenbotham died from sepsis.

According to the lawsuit, the Mercer County Medical Examiner determined that Higgenbotham suffered from cocaine related excited delirium during his June 15, 2015 encounter with police. This assertion was disputed by a forensic pathologist that the estate retained as an expert witness. The pathologist reportedly believed that “Higgenbotham was improperly restrained while he was a patient at [Capital Health], resulting in the deprivation of oxygen to his brain,” according to the lawsuit.

Judge Wolfson found that the officers were generally justified for their conduct prior to the point where Higgenbotham was handcuffed and placed into the police vehicle. However, “[w]ith respect to Officer Gonzalez’s use of force — the use of pepper spray in the rear compartment of the police car — after Higgenbotham was handcuffed, [Judge Wolfson found] that a genuine dispute of material fact exist[ed] as to whether Officer Gonzalez’s conduct was objectively reasonable.” The court also declined to dismiss the estate’s claims that that Cavalli, Ramos and Kmiec were liable for failing to intervene and stop Gonzalez from pepper-spraying Higgenbotham while he was handcuffed in the back of the police vehicle.

The $575,000 tentative settlement releases only Trenton and its employees from the estate’s lawsuit. The estate also named Micalizzi and Capital Health as defendants but dismissed its claims against them on September 11, 2017, approximately three months after the lawsuit was filed. Since Capital Health is not a public agency subject to OPRA, the existence or amount any settlement between the estate and these defendants will likely never be disclosed.

The events leading up to the estate’s lawsuit received substantial media coverage at the time. See, e.g., Trentonian, March 18, 2016, “Trenton man allegedly beaten into coma by cops dies,” by David Foster; Trentonian, September 5, 2017, “Improper restraints at Capital Health led to Trenton man’s death after ‘excessive force’ arrest, lawsuit says,” by David Foster and Trentonian, October 8, 2015, “9-1-1 recording: Trenton man allegedly clubbed into coma by cops called police for help,” by David Foster.

Of the four officers named as defendants in the lawsuit, two have retired, and the other two are still employed by Trenton.

According to city records and DataUniverse, Kmiec, who was born in 1970, had been employed by Trenton since 1994 and was promoted to lieutenant before his special retirement on April 1, 2021. As of December 2021, the last month for which DataUniverse makes this information available, Kmiec received a monthly pension allowance of $9,305.90. Cavalli, also born in 1970, qualified for special retirement in December 2018 after serving Trenton since 1992. As of December 2021, his monthly pension allowance was $6,005.31.

Ramos, hired on September 24, 2003, currently holds the position of sergeant with a salary of $130,206.13. Gonzalez, who was hired on April 11, 2005, serves as a detective and earns a current salary of $93,144.67.

The case is captioned Higgenbotham v. The City Of Trenton, Case No. 3:17-cv-04344 and the estate’s attorneys were Sharon A. King, now a Federal Magistrate Judge, and Stanley O. King of Voorhees.

Apart from the uncontested facts noted in the court’s opinion, none of the lawsuit’s allegations have been proven or disproven in court. The $575,000 payment does not constitute an admission of wrongdoing by any of the Trenton officers. Similarly, none of the allegations against Capital Health and Nurse Micalizzi have been proven. All that is known for sure is that Trenton or its insurer, for whatever reason, decided that it would rather pay the estate $575,000 than take the matter to trial. Perhaps the defendants’ decision to settle was done to save further legal expense and the costs of trying what were in fact exaggerated or meritless claims. Or, perhaps the claims were true and the defendants wanted to avoid being embarrassed at trial. This is the problem when cases settle before trial–it is impossible to know the truth of what really happened.

Note: The lawsuit does not provide Ramos’ first name. In response to my OPRA request, the City of Trenton also did not provide Ramos’ first name. According to DataUniverse, however, the only officer presently employed by Trenton with the last name of “Ramos” and a first initial of “E” is Eliezer Ramos. DataUniverse shows Eliezer Ramos enrolled in the Police And Firemen’s Retirement System on October 1, 2023 which is consistent with the City’s response to my OPRA request that E. Ramos was hired on September 24, 2003.

Author John Paff is Chairman of the New Jersey Libertarian Party’s Open Government Advocacy Project.