Monday, November 6, 2017

Domestic Violence - Gun Permits Colonna V Pennsville


       DOCKET NO.  A-3742-08T1






Submitted April 28, 2010 - Decided

Before Judges Graves and J. N. Harris.

On appeal from the Superior Court of New
Jersey, Law Division, Salem County, Docket
No. L-23-07.

Glen L. Schemanski, attorney for appellant.

Powell, Birchmeier & Powell, attorneys for
respondents (James R. Birchmeier, on the

 Plaintiff appeals from the dismissal of his complaint
against defendants that alleged the negligent deprivation of his
liberty, property, and firearms purchaser identification card by
May 19, 2010
local government.1 We find no basis to disturb the grant of
summary judgment in favor of defendants and therefore we affirm.
 We recite the facts most indulgently in favor of plaintiff
because summary judgment was granted against him in the Law
Division. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520,
523 (1995); Pote v. City of Atlantic City, 411 N.J. Super. 354,
356 (App. Div. 2010).
On January 3, 2005, a representative of defendant
Pennsville Township Police Department (Department) received
information from plaintiffs girlfriend, Tracy Neciles,2 that
plaintiff had told her that he was going to kill himself and
that he also had waved a wooden-handled handgun in the air in
her presence. At least six police officers were dispatched to
plaintiffs residence in response to this information. At the
scene, plaintiff calmly exited his dwelling——empty-handed——at

 Although the complaint is couched in constitutional terms of
alleged deprivations of a liberty interest, property rights, and
civil rights, plaintiff seeks no redress pursuant to federal or
state civil rights acts. See 42 U.S.C.A. § 1983; N.J.S.A. 10:6-1
to -2. Instead, plaintiff firmly plants his common law tort
cause of action within the embrace of the New Jersey Tort Claims
Act (TCA), N.J.S.A. 59:1-1 to 12-3.

 The record contains differing references to the surname of
plaintiffs girlfriend. In plaintiffs deposition, he spelled
her name for the court reporter as "Tracy Neciles, N-E-C-I-L-E-
S." In the spirit of giving plaintiff the benefit of all
reasonable inferences, we adopt plaintiffs spelling.
the request of a police officer, and thereafter fully cooperated
with law enforcement officials.
 In his deposition, plaintiff denied waving a firearm, but
conceded that he and Neciles had argued, and that he uttered
words indicating that he was going to kill himself,3 or at least
gave that impression to Neciles:
Q. Do you ever recall threatening that you
were going to kill yourself during the
course of that argument?

A. Yeah. I think my words were to the effect
that she was so vehement. I said Ive had
it, Im getting out of here, words to that
effect, Ive had it Im getting out and I
meant it. I was tired of fighting with her
all the time over everything and I was the
only guy there trying to help her out. I was
at my saturation point with her at that
moment and I said Im out of here, leave me
alone, Im leaving, which never

Q. And in addition to what youve told me
about what you said, do you recall saying
anything about harming Tracy, harming
yourself, or harming anyone else?

A. I probably——Im sure——I probably did use
my poor grammatical example of, you know,
Im going to jump out the window, so to
speak, leave me alone. Words to that effect.
I think thats why she went to the police.
She actually thought I was going to do
something stupid.

 The police report indicated that plaintiff told an officer that
"he did tell Ms. [Neciles] that he was going to die in her bed,
but did not really mean it."
 After plaintiff surrendered to police officers at his home,
he was not arrested, handcuffed, or charged with an offense.
Instead,  plaintiff was transported by police officers directly
to Memorial Hospital of Salem County for what plaintiff
described as "some kind of a psychological evaluation." Several
hours later, after a mental health screening assessment had been
administered to plaintiff, he was released. Although ultimately
diagnosed with a major depressive disorder and referred for
counseling, plaintiff was not found to be a danger to himself or
to others. He called his girlfriend, who obligingly picked him
up from the facility to drive him home. During this time, the
police seized plaintiffs three firearms and firearms purchaser
identification card that had remained in his dwelling.4
 This incident was not plaintiffs first encounter with the
Pennsville police. In April 2004, plaintiff uttered "derogatory
comments without intent" that brought two police officers to his
Yeah. It was along the lines of Ive had it,
Im ready to jump off a building or jump off
a cliff. Words to that effect. It was mostly
in anger.

After being interviewed over the telephone——presumably by a
mental health screening service——plaintiff was advised that the

 Presumably, this seizure was pursuant to the Prevention of
Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35; N.J.S.A.
police would call him back after a few hours and "if everything
is okay . . . that was pretty much the end of it." Indeed,
plaintiff was not arrested, not charged with an offense, and not
transported to a psychiatric facility for a mental health
examination. On this prior occasion, plaintiffs weapons and
firearms purchaser identification card were not seized.
 Neciles ultimately declined to file a complaint against
plaintiff pursuant to the PDVA for the more recent 2005
incident. Nevertheless, the police treated the matter as falling
within the PDVAs framework and transferred plaintiffs firearms
to the Salem County Prosecutors Office (the Prosecutors
Office) in February 2005 pursuant to N.J.S.A. 2C:25-21(d)(2).
After several unsuccessful informal efforts to retrieve his
weapons and firearms identification card from the Department and
the Prosecutors Office directly, plaintiff turned to the
 On May 27, 2005, notwithstanding the absence of any actions
then pending in either the Family or Criminal Parts, plaintiff
filed a motion——without a docket number——in the Criminal Part
for "the return of weapons and firearms [purchaser]
identification card seized on Jan[uary] 3, 2005."5 On July 25,
2005, an order was entered requiring that plaintiffs firearms
and firearms purchaser identification card be returned to him.
 On December 29, 2006, just five days shy of the second
anniversary of the police encounter at the root of this appeal,
plaintiff filed a three-count civil action that outlined his
grievances with defendants Department and Township of
Pennsville. The complaint did not seek remedies against any
individual police officers, the Prosecutors Office, or the
County of Salem. After extensive discovery, defendants moved for
summary judgment, claiming good faith immunity in the handling
of plaintiff individually, as well as the seizure of plaintiffs
firearms and firearms purchaser identification card.
 The Law Division granted defendants motion, concluding
that "no reasonable juror could find in favor of the plaintiff"
on plaintiffs claim of the violation of his personal liberty by
the police on January 3, 2005. The court noted that the TCA,
N.J.S.A. 59:3-3, grants good faith immunity to public employees

 We believe that in the absence of an action under the PDVA
(which would have required a motion in the Family Part) or the
pendency of a revocation proceeding under N.J.S.A. 2C:58-3(f)
(which would have required the stewardship of the Superior Court
in the county where the firearms purchaser identification card
was issued) there was no clear basis for the Criminal Part to
consider plaintiffs motion. Rather, a civil replevin action,
pursuant to N.J.S.A. 2B:50-1 to -5 and Rule 4:61-1, was the more
appropriate procedural vehicle in this case.

and additionally that "there are no facts to support a finding
of bad faith on the part of the officers in investigating
[plaintiff]——the allegations that [plaintiff] was going to
commit suicide and having him scree[ned] to determine whether he
was——he posed a danger to himself or others." We agree.
 The Law Division disposed of the property rights claim in
the same manner. That is, the court concluded that the seizure
and temporary retention of the weapons and firearms purchaser
identification card were nothing more than good faith mistakes
by the police who believed that the matter fell within the
purview of the PDVA, and that they were therefore entitled to
TCA immunity. Relying upon what it referred to as the community
caretaking function of police officers, the Law Division held
that because the responding police officers were acting "under
the need to protect [plaintiffs] and others safety," the
defendants were not liable to plaintiff. Again, we agree.
 On appeal, plaintiff raises one point for our
JANUARY 2, 2005.

We are satisfied that plaintiffs argument lacks sufficient
merit to warrant discussion in a written opinion. R. 2:11-
3(e)(1)(E). Nevertheless, we add the following brief comments.
 We use the same standard as the Law Division to conduct our
de novo review of the motion for summary judgment.  Chance v.
McCann, 405 N.J. Super. 547, 563 (App. Div. 2009).  Thus, we
must consider, as the trial court did, "whether the evidence
presents a sufficient disagreement to require submission to a
jury or whether it is so one-sided that one party must prevail
as a matter of law."  Liberty Surplus Ins. Corp. v. Nowell
Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (quoting Brill,
supra, 142 N.J. at 536).
Police officers will not be held liable for their actions
if they act "in good faith in the execution or enforcement of
any law."  N.J.S.A. 59:3-3.  This immunity also applies to the
Department and to the Township. N.J.S.A. 59:2-2(b)("A public
entity is not liable for an injury from an act or omission of a
public employee where the public employee is not liable.");
Fielder v. Stonack, 141 N.J. 101, 118 (1995).
To pierce the shield of good faith immunity, "a plaintiff
must prove more than ordinary negligence." Dunlea v. Twp. of
Belleville, 349 N.J. Super. 506, 511 (App. Div.), certif.
denied, 174 N.J. 189 (2002). Rather, a plaintiff must prove
recklessness. Id. at 512. "Recklessness, unlike negligence,
requires a conscious choice of a course of action with knowledge
or a reason to know that it will create a serious danger to
others."  Id. at 513-14 (quoting Schick v. Ferolito, 167 N.J.
7, 19-20 (2001)). Recklessness is characterized as "an extreme
departure from ordinary care, in a situation in which a high
degree of danger is apparent."  Id. at 513. In distinguishing
between the elements of recklessness and negligence, the latter
"may consist of an intentional act done with knowledge that it
creates a risk of danger to others, but recklessness requires a
substantially higher risk. The quantum of the risk is the
important factor."  Schick, supra, 167 N.J. at 19-20.
The evidence in this case does not establish that
defendants or their police officer employees acted recklessly at
any time.  Rather, the evidence clearly shows that on January 3,
2005, police officers were performing a police activity under
emergent circumstances requiring quick action to protect the
public safety, and pursuant to a reasonable and good faith
belief that plaintiff might harm or kill himself. Moreover, the

immunity provisions of N.J.S.A. 30:4-27.76 provide further
justification for the transportation of plaintiff to the
hospitals screening service to ensure that he received an
adequate mental health assessment. Accordingly, defendants are
entitled to good faith immunity for any alleged liberty
In like vein, we find immunity for the initial seizure of
plaintiffs weapons together with his firearms purchaser
identification card, as well as the subsequent transfer of those
same firearms to the Prosecutors Office and later refusal
(without a court order) to return the property. The community
caretaking function of the police justified the initial police
intrusion into plaintiffs home.  See Cady v. Dombrowski, 413
U.S. 433, 439-48, 93 S. Ct. 2523, 2527-31, 37 L. Ed. 2d 706,
713-18 (1973); State v. Bogan, 200 N.J. 61, 73-75 (2009); State
v. Diloreto, 180 N.J. 264, 276 (2004); State v. Garbin, 325 N.J.
Super. 521, 526-27 (App. Div. 1999), certif. denied, 164 N.J.
560 (2000). These attributes of good faith are fortified by the
police officers perception that they were acting——albeit
erroneously——under the auspices of the PDVA. We are unpersuaded

 "A law enforcement officer, screening service or short-term
care facility designated staff person or their respective
employers, acting in good faith pursuant to this act who takes
reasonable steps to assess, take custody of, detain or transport
an individual for the purposes of mental health assessment or
treatment is immune from civil and criminal liability." Id.
by plaintiffs argument that defendants mere imperfect fidelity
to the PDVAs procedures regarding handling of seized firearms
somehow excludes them from statutory immunity pursuant to the

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