BELLA MCQUEEN, et al. v. WILLIAM E. LOUGHNER, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2385-05T32385-05T3

BELLA MCQUEEN,

Individually and as Guardian Ad Litem on

behalf of J.M.C. and A.M.C., infants,

Plaintiff-Appellant,

v.

WILLIAM E. LOUGHNER, TOWN OF WEST

NEW YORK, WEST NEW YORK POLICE

DEPARTMENT, POLICE OFFICER HEROSKA

and POLICE OFFICER MUNOZ,

Defendants-Respondents.

 
________________________________________________

Submitted September 12, 2006 - Decided

Before Judges Weissbard and Payne.

On appeal from Superior Court of New

Jersey, Law Division, Hudson County,

L-3650-04.

Thomas J. Wall, attorney for appellant.

Mariniello & Mariniello, attorneys for respondents

Town of West New York and West New York Police

Department (Joseph R. Mariniello, on the brief).

Farmer and Campen, attorneys for respondents

Officer Munoz and Officer Heroska (George B.

Campen, on the brief).

PER CURIAM

Plaintiff Bella McQueen, individually and as guardian ad litem of her children, J.M.C. and A.M.C., appeals the dismissal, on summary judgment, of her complaint against defendants Town of West New York, West New York Police Department and Officers Heroska and Munoz. We affirm.

After separating from her husband, plaintiff began living with William Loughner in an apartment in West New York, along with J.M.C. and A.M.C. On July 4, 2002, plaintiff called the police and reported that Loughner had hit her and was holding her children "hostage" in their apartment. Officers Heroska and Munoz responded to the call, spoke with plaintiff, and entered the apartment with her. Following policy, the officers separated plaintiff and Loughner for the purpose of questioning.

Plaintiff told Heroska that Loughner had hit her in the eye, but the officer saw no physical evidence of such an attack, such as swelling or puffiness. Plaintiff claims her eye was red and swollen. The apartment itself did not reveal any evidence of an altercation. The children were sleeping. Since Heroska did not believe that plaintiff had been struck, he did not believe there was probable cause to arrest Loughner. However, Heroska did advise plaintiff that if she filed a complaint, he would arrest Loughner. At the time of the incident, there were no outstanding warrants or domestic violence restraining orders against Loughner.

Munoz talked to Loughner, who told the officer that he and plaintiff had argued and she wanted him out of the apartment. Loughner agreed to leave and surrendered his keys to the officer. Munoz smelled alcohol on Loughner's breath but did not ask if he had been drinking.

Plaintiff did not wish to file a complaint and was satisfied with Loughner leaving. She signed a Notification Form acknowledging that she did not wish to seek a restraining order. In a deposition, plaintiff testified that she thought the police had "take[n] [Loughner] to the jail." She further testified that she signed the Notification Form without reading it, claiming she was "nervous and confused."

According to plaintiff, Loughner subsequently called her at work and threatened to kill her and her children. However, she did not call the police, claiming she was afraid to do so. Still later, plaintiff testified that Loughner forcibly entered her apartment, although it is not entirely clear if she was inside when he entered. Plaintiff called the police, who came and searched for Loughner, but Loughner was no longer present.

On July 7, Loughner returned to the apartment, stating he wanted to remove his belongings. An argument ensued and, according to plaintiff, Loughner struck her. When her son attempted to intervene, Loughner burned him on the arm with a cigarette. Plaintiff's daughter went outside and called the police. Officers arrived and found Loughner in an empty apartment. He was arrested.

Plaintiff's complaint charged Loughner with assault (count one) and charged Heroska and Munoz, and, vicariously, their employer, the Town of West New York, with acting "negligently and palpably unreasonably" in failing to protect plaintiff and her children in regard to their actions on July 4, 2002. Specifically, the complaint alleged that: (1) the officers pressured plaintiff to "let Loughner go and failed to offer plaintiff the protection due to her and her children as victims of domestic violence"; (2) the officers "ignored evidence and complaints of a crime"; and (3) the officers "failed to take plaintiff for a restraining order although it was clearly warranted under the circumstances." Plaintiff's complaint also charged the Town and the Police Department with "a custom and policy and practice of refusing to arrest or otherwise to substantially intervene to protect domestic violence

victims. . . ." It was alleged that "[h]igh ranking policy-making officials" of the Town and Department "promulgated, knew of and acquiesced in this policy and custom," and that the conduct of the Town and Department was negligent and otherwise "wrongful given the special duty to plaintiff created by" the officers' failure to arrest Loughner and charge him with domestic violence.

Defendants' motion for summary judgment was granted by Judge Antonin on November 28, 2005. In a memorandum of decision, she explained:

N.J.S.A. 2C:25-21 mandates arrest where probable cause is found when domestic violence is alleged. That is a judgment call by the police officer.

There is no evidence of any palpably unreasonable actions/omissions. Muhammad v. NJT, 176 N.J. 185; Coyne v. DOT, 366 N.J. Super. 578.

Even assuming arguendo that there was a visible injury, N.J.S.A. 59:5-4 grants immunity from liability to West New York police officers, as public employees for failure to provide police protection services or sufficient police protection services.

Further, movant properly relied on Macaluso v. Knowles, 341 N.J. Super. 112 (App. Div. 2001). There is no special relationship exception.

Pursuant to Macaluso, police officers are immune from liability for failure to prevent injury to the public.

Allegations of negligence are insufficient to rise to the level of a constitutional violation. Berg v. County of Allegheny, 219 F.3d 261 (3d Cir. 2000). No evidence exists that municipal action, if taken, was not just negligent, but with deliberate indifference as to its known or obvious consequences.

According to DeShaney v. Winnebago County Dep't of Social Services, 489 U.S. 189 (1989), "Nothing in the US Constitution requires the state to protect the life and property of its citizens versus invasion by private actors . . . failure to protect an individual versus private violence simply does not constitute a violation of the Due Process Clause."

Plaintiff advances no evidence that a custom or policy of West New York caused any alleged violation. Marran v. Marran, 376 F.3d 143 (3d Cir. 2004).

Plaintiff herein does not advance any evidence that West New York or police officers had a custom, policy, or practice of refusing to arrest alleged perpetrators or to intervene to protect domestic violence victims, as she alleged in her complaint.

Plaintiff and her former husband were arrested previously during a domestic violence incident.

There is no evidence of any violation of the 14th Amendment. Domestic violence victims are not a protected class even though some policies are designed to give greater protection to domestic violence victims.

Plaintiff's arguments in opposition to the present motion before the Court are unpersuasive and are not supported by evidence. No genuine issues of material fact are raised to defeat defendant's summary judgment motion.

On appeal, plaintiff argues that there were factual issues warranting denial of summary judgment. We disagree and affirm substantially for the reasons set forth in Judge Antonin's memorandum, adding only the following brief comments.

We are satisfied that even if the officers' actions might be open to some criticism, both the individuals and their public entity employer are immune pursuant to N.J.S.A. 59:5-4 (failure to provide police protection) and, more pointedly, N.J.S.A. 59:5-5 (failure to make arrest or retain person arrested in custody). To the extent that plaintiff's claim was based on an asserted "special relationship" exception to these Tort Claims Act immunities, we have held that no such exception exists. Macaluso v. Knowles, 341 N.J. Super. 112, 116-17 (App. Div. 2001). The circumstances presented did not, as plaintiff suggests, involve the failure to perform a ministerial act. See Suarez v. Doskey, 171 N.J. Super. 1, 9-10 (App. Div. 1979), certif. denied, 82 N.J. 300 (1980). Rather, it involved a discretionary exercise of judgment on the part of the police officers. See Del Tufo v. Twp. of Old Bridge, 278 N.J. Super. 312, 325 (App. Div. 1995), aff'd, 147 N.J. 90, 101 (1996); Morey v. Palmer, 232 N.J. Super. 144, 150 (App. Div. 1989); Wuethrich v. Delia, 155 N.J. Super. 324, 326 (App. Div.), certif. denied, 77 N.J. 486 (1978).

Finally, we note that, in her appellate brief, plaintiff advances no arguments in support of her contention that the public entities had a custom or policy not to enforce the domestic violence laws, suggesting that she has abandoned that claim. In any event, the claim was properly dismissed. See Town of Castle Rock v. Gonzalez, 545 U.S. 748, 125 S. Ct. 2796, 162 L. Ed. 2d 658 (2005); DeShaney v. Winnebago County Dep't of Social Servs., 489 U.S. 189, 109 S. Ct. 998, 103 L. Ed. 2d 249 (1989).

Summary judgment was entirely appropriate in this case, even granting plaintiff the benefit of all favorable inferences flowing from her allegations. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

Affirmed.

 

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A-2385-05T3

October 17, 2006

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