David Azotea wins summary judgement for client defendant in Civil Rights Case


Maslow v. City of Atlantic City

CIVIL RIGHTS — Police — § 1983

Maslow v. City of Atlantic City, Civ. No. 08-3618; U.S. District Court (DNJ); opinion by Irenas, S.U.S.D.J.; filed September 28, 2011. DDS No. 46-7-xxxx [21 pp.]

Plaintiff Paul Maslow, a longtime Atlantic City police officer, was advised that the police department needed to take back his city-issued firearm while he was on extended sick leave due to stress. He cooperated with this request. However, he refused to voluntarily relinquish his personally owned firearms pursuant to the police department’s unwritten policy regarding officers on sick leave.

Defendant John Mooney is chief of police and Maslow’s supervisor and is the statutory firearms licensing authority for the municipality. Acting as plaintiff’s supervisor, he ordered plaintiff to surrender his personal firearms. Plaintiff did so. He did not fight the order or demand a hearing. Nor did he file a grievance or pursue any remedies before bringing this lawsuit in which he asserts 42 U.S.C. § 1983 violations based on alleged infringements of the Second Amendment and due process clause of the Fourteenth Amendment and violation of the New Jersey Law Against Discrimination. Mooney moves for summary judgment and attorneys’ fees.

Held: Where a superior officer orders an inferior officer to temporarily relinquish his personal firearms during the pendency of a mental disability, and the inferior officer does not challenge that order, there is no Second Amendment violation. Even assuming plaintiff’s constitutionally protected due process rights were violated by his temporary loss of the weapons without a hearing, by obeying the order to surrender them, plaintiff waived his right to a hearing. Moreover, the Second Amendment and due process claims also fail on qualified immunity grounds. The LAD claim fails because plaintiff cannot establish individual aiding and abetting liability under the act.

As to plaintiff’s claim of a § 1983 violation based on a deprivation of his Second Amendment rights, the court says it is novel insofar as Second Amendment rights, as defined by District of Columbia v. Heller , 554 U.S. 570 (2008), were not conclusively incorporated by the Fourteenth Amendment, and thus applicable to the states, until McDonald v. City of Chicago , 13 S.Ct. 3020 (2010).

Moreover, the Second Amendment has generally been used to challenge statutes criminalizing the possession of firearms by a class of people. No case has permitted a § 1983 claim based on an alleged violation of the Second Amendment against an individual. Here, no statute barred plaintiff from owning or possessing a handgun.

The court says if plaintiff had refused to comply with Mooney’s order, Mooney could have imposed a sanction based on the refusal and plaintiff would have been entitled to a hearing to challenge the discipline. However, plaintiff acquiesced in the order. In doing so, he waived any challenge to which he otherwise would have been entitled. Mooney’s motion for summary judgment on this claim is granted.

As to plaintiff’s § 1983 claim of an alleged deprivation of his due process rights for forcing him to surrender his personal firearm without a hearing, the court says personal firearms fit within the meaning of property. However, plaintiff was not being asked to permanently surrender his personal handguns, but only to cede temporary possession while still a police officer and while he was on leave for a mental disability. When his disability ceased and he was restored to duty, his weapons were returned to him. Whether his constitutionally protected rights were violated by this temporary loss of possession is at least debatable.

Even if such a limited interest is constitutionally protected, the court says plaintiff would have had the right to demand a pre-deprivation hearing if Mooney had tried to discipline him for disobeying the order, but plaintiff obeyed the order, which effectively waived his right to a hearing. Therefore, Mooney’s motion for summary judgment on this claim is granted.

Further, the court says that the Second Amendment and due process claims fail on qualified immunity grounds as there was no clearly established Second Amendment right until Heller and McDonald and no established law suggested a Second Amendment violation when a superior officer acted to disarm a subordinate officer he perceived to have a psychological issue.

As to plaintiff’s claim of discrimination based on a perceived and actual disability, the court says that for purposes of the LAD, supervisors are treated differently than employers. Individual liability of a supervisor can only arise through aiding and abetting. Paramount to this analysis is the existence of both a principal violator and the alleged aider and abetter.

Here, plaintiff alleges no facts that support an aiding and abetting theory of liability. At best, Mooney issued an order to disarm plaintiff during his mental disability. This action was not discriminatory and it did not aid and abet anything and, thus, cannot establish individual aiding and abetting liability under the LAD.

The court denies Mooney’s motion for attorneys’ fees pursuant to 42 U.S.C. § 1988 since, although Mooney is the prevailing party, plaintiff’s claims are not frivolous. The court also dismisses with prejudice plaintiff’s remaining LAD claim against the city.

For plaintiff — Mark E. Belland and Jeffrey Robert Caccese (O’Brien, Bellan & Bushinsky). For defendants: Atlantic City — Steven C. Mannion (DeCotiis, FitzPatrick & Cole); Mooney — David John Azotea (Levine, Staller, Sklar, Chan, Brown & Donnelly).

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