RAHMAN LOVE v. ESSEX COUNTY PROSECUTOR'S OFFICE et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4743-03T34743-03T3

RAHMAN LOVE,

Plaintiff-Appellant,

v.

ESSEX COUNTY PROSECUTOR'S

OFFICE and TOWNSHIP OF IRVINGTON,

Defendants-Respondents.

_________________________________________

 

Argued February 8, 2006 - Decided February 24, 2006

Before Judges Conley and Winkelstein.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, L-10088-03.

Michael J. Mitzner argued the cause for appellant (Mitzner & Mitzner, attorneys; Mr. Mitzner, on the brief).

Larry R. Etzweiler, Senior Deputy Attorney General, argued the cause for respondent Essex County Prosecutor's Office (Zulima V. Farber, Attorney General, attorney; Patrick DeAlmeida, Assistant Attorney General, of counsel; Mr. Etzweiler, on the brief).

Marvin T. Braker, attorney for respondent Township of Irvington, has not filed a brief.

PER CURIAM

Plaintiff, formerly an Irvington Township police officer, appeals a determination by a Superior Court judge that the Essex County Prosecutor's Office did not abuse its discretion when it refused to rearm plaintiff following the removal of his weapon in the context of a domestic violence matter. The judge so concluded after a four-day hearing during which the Assistant Prosecutor, who reviewed the matter, testified, explaining what she had considered and why she had recommended that plaintiff not be rearmed. Based upon the record before him, the trial judge found and concluded:

[W]ith respect to a police officer, return of department issued weapons is I think governed by the Attorney General regulation and directive which is, I think it's last, it's directive 2000-3 first promulgated August 14th, 1995 and then it was modified September 1st, 2000.

And I think that the basic provision in that as appropriate to this case would be Roman Number IV, return of seized weapons, sub part (d). I'm not going to quote it but referring to it, it does use the word that a county Prosecutor may authorize return of seized weapons. Use of the word may is permissive which means that the Prosecutor has the power to return them but doesn't mandate that the Prosecutor return them.

I do think in a situation like this where basically the health, safety, welfare of the public are involved, it is appropriate for the Prosecutor making a rearming decision to look at the entire record of the officer in question, not simply the incident which triggers the Prosecutor's involvement.

In this case, the Prosecutor's involvement was essentially triggered by the incident of June 25th, 2000 involving [F.E.] which resulted in a domestic T.R.O. on that date which, granted, was dismissed June 29th, 2000.

But I think with that, [the Assistant Prosecutor] did have a right to look at [plaintiff's] overall record. And just looking at that, there was a first domestic violence incident was one back in May of 1988, Middlesex County. It involved a [D.] and it did result in a final order which the final order itself indicates was a consent order. So there can't be any question that the plaintiff knew about it.

Leaving aside anything about the December 10th, 1990 alleged terroristic threat incident, and I'll assume that that incident did not occur or did not occur as indicated in the police report, there was another incident which occurred September '91 in Irvington involving [J.W.] involving a boxing glove.

And then was that series of incidents involving [J.W.] between the 29th of March and the 3rd of April in 1993. And the incidents started in Irvington and ended up in Parsippany I believe. But there was an incident of slapping [J.W.], stuffing a tube sock in her mouth and duct taping her mouth shut. I believe that was on March 29th, and eventually the police reports indicate that the tube sock and duct tape were recovered.

There was an alleged punching and kicking incident on March 30th and then the incident where two bystanders in Parsippany saw [plaintiff] hitting [J.W.], separated them and tried to - were finally able to hold them until the police arrived but as the report indicates, [plaintiff] tried to hit one of the bystanders with an anti-theft club. [J.W.] herself reported that plaintiff tried to cut her ear off with a knife, hurt her left eye and the police report indicates and it also indicates that the police themselves checked with the hospital to which [J.W.] was taken, and she exhibited bruises, cuts on an arm and wrist, a cut on her right ear and that there were broken blood vessels in the right eye and a doctor at the hospital indicated a small rupture of the eardrum, ruptured blood vessel in the right eye, bite marks to the left shoulder, bruises to the hip and buttocks, bumps on the head and neck, bruises and cuts on the back.

That did result in a final domestic violence order in Morris County which was signed April 8th of 1993 by Judge Collester. And the return of service on the final order indicates that it was served on [plaintiff] by the Morris County Jail where he was obviously held for the incident. And while the return may not indicate exactly who may have served or given the order to him, I think there's no place where restraining orders are more guaranteed to be served upon a defendant in a domestic violence case than in the jail where a person is being held for such an incident.

[Plaintiff] ultimately was indicted for the incident and the records I think show that he was placed in P.T.I. They also show that [J.W.] did not want to pursue the case and press the charges.

Ultimately the final order was dismissed October 23rd of 2003, more than a decade after it was actually entered.

And although Mr. Love in his certification indicates that he was never aware of the Morris County final order, it's mind-boggling to me that somebody would be unaware of a domestic violence final order which is in existence when the placement to a pretrial intervention program for the very incident which gives rise to that order.

It should also be noted that on January 2000 there was an incident reported although not involving a domestic violence complaint involving both [plaintiff] and [F.E.] . . . and [F.E.'s] sister, [T.B.]. Apparently when the plaintiff was at their house to retrieve certain good[s] when he was moving out and got involved in some type of shouting match. Of interest with the June 25th triggering incident involving [F.E.] is that when his superior officer, Sergeant Tavaris, attempted to or went to serve the Temporary Restraining Order on [plaintiff], in Sergeant Tavaris' words, [plaintiff] was out of control.

This Court does not think that - and I have expressed it in the course of this case, that the mere fact that a domestic violence complaint may be dismissed, no longer in effect or that a, there's no criminal conviction pending against a police officer, [does not] require[] that he be rearmed. I think the Attorney General directive is something obviously geared for the overall protection of public given the Attorney General's function in supervising and regulating law enforcement state-wide. And that basically as it would be in the case of issuing a firearm permit to a private citizen, what must be taken into account is one of the criteria is the interest of the public health, safety and welfare.

This Court is mindful that in domestic violence situations because domestic violence is . . . cyclical . . . indeed incidents often start with a threat, they escalate to physical confrontation, and then you have a making up period afterwards. But because domestic violence victims tend to be very dependent on people who commit acts of domestic violence, which need not always be purely physical, that they very often do drop charges and fail to follow through and obtain Final Restraining Orders or at some point in time are willing to drop any form of restraints. Often there is dependency which comes in.

I also am going to leave aside any of the psychological reports even though [the Assistant Prosecutor] did consider them. I will say though that Dr. Silkowitz report, and it's not a reflection on Dr. Silkowitz, he was furnished with very minimal information to review, very minimal material so that I think his report itself is . . . scarcely more than a, virtually a net opinion.

But I think it's an inescapable conclusion based on the overall background and indeed based even simply on the 1993 incident with [J.W.] alone, that no matter how [plaintiff] may have behaved in the interim while he was armed, it certainly would be a high risk to . . . allow him to be armed as a police officer. I think that it would be a very high risk of endangering the public.

While he may not have ever had an incident where he utilized a firearm, certainly the record indicates that he used weapons during the 1993 incident involving [J.W.]. Particularly using a knife, using a club anti-theft device. Indeed with that alone in the background, if I were in a situation where I were in a judicial capacity authorizing issuance of a private firearm permit, had I known about it for just a general member of the public, let alone somebody who would be using a firearm in the highly charged situation of being a police officer, I wouldn't authorize such a person to carry a firearm.

I do not find in this case that there was any abuse of discretion at all by the Essex County Prosecutor in deciding not to rearm [plaintiff]. . . .

On appeal, plaintiff raises a number of issues. We have carefully considered them and are convinced they require only a few brief comments. R. 2:11-3(e)(1)(A),(E).

Plaintiff does not dispute that his duty weapon was removed because of his involvement in the June 25, 2000, domestic violence incident. Indeed, in his verified complaint, he asserted: "On or about June 25, 2000, a domestic violence Civil Complaint and Temporary Restraining Order were issued against plaintiff. As a result of that, [p]laintiff . . . surrendered his duty weapon."

In that respect, pursuant to the Attorney General's overarching authority over all law enforcement business of the State under the Criminal Justice Act of 1970, N.J.S.A. 52:17B-97 to -117, Attorney General Law Enforcement Directive No. 2000-3 was promulgated to provide uniform statewide guidelines governing the seizure, retention and return of weapons issued to law enforcement personnel but removed for involvement in incidents of domestic violence. The Directive provides in relevant part that:

When a weapon has been seized from a law enforcement officer involved in a domestic violence offense but no criminal charges, court order or warrant has been issued or is pending regarding possession of weapons, a County Prosecutor may authorize the return of the seized weapons subject to conditions, if any, the Prosecutor determines necessary.

[Emphasis added.]

As explained by the trial judge, "the mere fact that a domestic violence complaint may be dismissed . . . [does not] require[]" rearming. "[T]he Attorney General directive is . . . obviously geared for the overall protection of [the] public given the Attorney General's function in supervising and regulating law enforcement state-wide. . . . [A]s it would be in the case of issuing a firearm permit to private citizen[s], what must be taken into account . . . is the interest of the public health, safety and welfare."

The decision, then, to rearm was a discretionary one for the prosecutor. Some prosecutorial discretionary determinations are reviewable under a "patent and gross" abuse of discretion standard. State v. Leonardis, 73 N.J. 360, 381-82 (1977) (P.T.I.). In other context, said determinations are reviewable under an "arbitrary and capricious" standard. State v. Kirk, 145 N.J. 159, 169-70 (1995) (extended sentence); State v. Lagares, 127 N.J. 20, 33 (1992) (extended sentence). In still other context, the standard is a less heightened "abuse of discretion." Flagg v. Essex County Prosecutor, 171 N.J. 561, 570-71 (2002) (forfeiture of public employment). It is the less strict "abuse of discretion" standard that we think applies here as the determination to rearm is more akin to forfeiture determinations than sentencing determinations. As explained in Flagg:

Although the ordinary "abuse of discretion" standard defies precise definition, it arises when a decision is "made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis." Achacoso-Sanchez v. Immigration and Naturalization Service, 779 F.2d 1260, 1265 (7th Cir. 1985). In other words, a functional approach to abuse of discretion examines whether there are good reasons for an appellate court to defer to the particular decision at issue. . . . "Ordinarily, an abuse of discretion will be manifest if defendant can show that a prosecutorial veto (a) was not premised upon a consideration of all relevant factors, (b) was based upon a consideration of irrelevant or inappropriate factors, or (c) amounted toa clear error in judgment." State v. Baynes, 148 N.J. 434, 444 (1997) (quoting State v. Bender, 80 N.J. 84, 93 (1979)).

[171 N.J. at 571.]

Here, there are "good reasons" for us to defer to the prosecutor's determination. It was premised upon a review of all of the relevant material, was geared toward a concern for the public safety, and did not amount to clear error of judgment. As the trial judge observed, "it's an inescapable conclusion based on the overall background and indeed based even simply on the 1993 incident with [J.W.] alone, that no matter how [plaintiff] may have behaved in the interim while he was armed, it certainly would be a high risk to . . . allow him to be armed as a police officer."

But, plaintiff argues that if the standard by which the prosecutor's decision is judged is abuse of discretion and if it is his burden to overcome that standard, that "violates plaintiff's rights to due process of law, confrontation of witnesses, equal protection of the law and other constitutional rights as well." Specifically: "The upshot of the interpretation of that Directive by the Court is to allow one single Assistant Prosecutor to make a determination regarding rearming, based solely upon a review of papers and documents, with no hearing, no witnesses, no cross-examination, no confrontation of witnesses, and no direct input from the Police Officer, and to then have that decision challengeable only if the Officer can prove an abuse of discretion."

We disagree. To begin with, viewing the exercise of the prosecutor's right to determine whether a police officer should be rearmed as a discretionary matter reviewable under an abuse of discretion standard does not ipso facto raise constitutional deficiencies. It simply establishes the parameters under which the determination should be judged. Moreover, plaintiff's primary concern is one of procedural due process. That, of course, requires an analysis of whether a liberty or property interest has been interfered with and whether the procedures offered were constitutionally sufficient. Doe v. Poritz, 142 N.J. 1, 99 (1995). We know of no authority establishing a liberty or property interest in possessing a weapon for employment and plaintiff cites none.

Even if plaintiff does have a constitutionally protected interest in rearming, he was afforded sufficient protection to survive challenge. Procedural due process requires, at a minimum, notice and an opportunity to be heard. Id. at 106. Here, the record shows that plaintiff's counsel had access to and communicated with the Assistant Prosecutor to persuade her to exercise her discretion favorably toward rearming. He discussed the matter with her, mailed her materials, responded to "a question that was raised after" receipt of some of these materials and, when the Prosecutor rejected rearming, requested reconsideration and mailed supplemental materials favoring reconsideration, which she considered. She did not directly speak with plaintiff because he was represented by counsel, but she did speak with counsel. Plaintiff never sought any other form of input, either by way of a trial-type hearing or something more informal. Cf. Weston v. State, 60 N.J. 36, 43-44 (1972). Moreover, he had a hearing before the trial judge in the context of his order to show cause application.

And too, we reject plaintiff's contention that the return of his duty weapon is governed by N.J.S.A. 2C:25-21. That statute provides for the return of personally owned weapons seized by the police as a result of a domestic violence allegation to the owner. N.J.S.A. 2C:25-21(d)(3). Pursuant thereto, the prosecutor, within forty-five days of seizure, may petition the court to obtain title to the weapon or to revoke permits or licenses of the weapon on the grounds that the owner is unfit or poses a threat. Ibid. Under this statute, the prosecutor must establish why the weapon should not be returned. Here, plaintiff did not have ownership of the weapon he carried. There is no dispute that the weapon was issued by the police department to him for his employment. It belonged to the law enforcement entity, not plaintiff personally.

 
Finally, we comment upon plaintiff's hearsay contentions. To be sure, much of the evidence considered by the prosecutor, and presented to the judge during the hearing on plaintiff's order to show cause application, constituted hearsay. Some of this hearsay would not be competent evidence. Some of it, however, would fall within various hearsay exceptions. In the end, though, there was a residuum, cf. Weston v. State, supra, 60 N.J. at 50-51, of legal and competent evidence in the record to support the prosecutor's decision not to rearm plaintiff. Plaintiff's history includes final restraining orders entered in 1988 and 1993, the 1993 domestic violence offense involving J.W. pursuant to which plaintiff was admitted to PTI, an admitted departmental offense of conduct unbecoming a public employee in early 2000, a conviction in 1980 of disorderly conduct, and a 1994 arrest on a bench warrant for contempt for failure to appear in court and pay child support. This provides ample evidential basis for the prosecutor's discretionary determination. At the very least, it shows there was no abuse of discretion.

Affirmed.

The Township terminated plaintiff from his position as a police officer on the grounds that he cannot perform his job because he cannot carry a weapon. Irvington is a civil service jurisdiction. The propriety of his removal is presently pending before the Merit System Board. Without a doubt, the trial judge correctly determined that he had no jurisdiction over the removal. He, therefore, only considered the Prosecutor's determination not to rearm plaintiff, as do we.

(continued)

(continued)

13

A-4743-03T3

February 24, 2006