The opinion of the court was delivered by: Menza
The issue in this case is whether police offices are immune under the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 59:10A-6, for failure to make an arrest under a domestic violence order.
On June 3, 1990, the defendant-police officers responded to a complaint of an unwanted guest at the home of plaintiff, Joanne Campbell, in Plainfield, New Jersey. Upon arriving at the premises the police officers discovered that the unwanted guest was defendant Michael Campbell, the estranged husband of the plaintiff, who they instructed to leave. The police remained on the premises until Campbell left, after which they also left. A short time later Michael Campbell returned to the residence and shot plaintiff. A final restraining order against Michael Campbell, dated April 19, 1990, was in effect at the time. The order, which had been personally served upon Campbell, specifically prohibited him from "having contact with the victim [Joanne Campbell] or harassing (her) or [her] relatives." Plainfield Police reports establish that the police department had notice of previous incidents of domestic violence at the subject residence involving plaintiff and Campbell.
Plaintiff brings this action against the Plainfield Police Department and the individual officers who responded to the call on the night of the shooting, alleging that the police officers were negligent in failing to arrest Michael Campbell, and that this negligence was the proximate cause of the plaintiff's being shot. Plaintiff argues that defendant-police officers had actual knowledge of the existence of the restraining order because she had informed them of the order when they responded to the complaint, and that therefore they had a duty, under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -33, to arrest Campbell for violating that restraining order. The defendants now move for summary judgment, contending that they were not negligent in the performance of their duties, because they were not told of the order and had no knowledge of same, and therefore had no basis for arresting Campbell. They also contend that even if they had notice they are immune under the Tort Claims Act.
The Prevention of Domestic Violence Act, N.J.S.A. 2C: 25-29c provides that the court must send a notice of the issuance of a domestic violence restraining order to the police.
Notice of orders issued pursuant to this section shall be sent by the clerk [of the court] or other person designated by the court to the appropriate chiefs of police, members of the State Police and any other appropriate law enforcement agency.
There is no dispute that the Plainfield Police Department did receive a copy of the domestic violence order prior to the incident.
Whether or not the police officers had actual knowledge of the restraining order is irrelevant. Inherent in the mandate of the statute that a restraining order must be sent to the police department is the proposition that the police are charged with knowledge of that order. To argue that there is no responsibility because there was no actual knowledge of the restraining order would vitiate the notice section of the statute, the purpose of which is to give notice to the police of domestic violence orders.
The defendants also argue however, that even if they are charged with having knowledge of the restraining order, they are nevertheless immune from liability under four separate provisions of the New Jersey Tort Claims Act.
Specifically, the defendants contend that:
(1) they are immune from suit from injuries arising out of the failure to provide police protection (N.J.S.A. 59:5-4);
(2) that they are immune from suit from injuries arising out of the failure to make an arrest (N.J.S.A. 59:5-5);
(3) that they are immune from suit because they acted in good faith in the execution or enforcement of the law (N.J.S.A. 59:3-3);
(4) that they are immune from suit because their response to the call was a discretionary rather than a ministerial act (N.J.S.A. 59:3-2).
I. Failure to Provide Police Service
The defendants first assert that N.J.S.A. 59:5-4, failure to provide police protection, provides them with absolute immunity. It provides:
Neither a public entity nor a public employee is liable for failure to provide police protection service or, if police protection service is provided, for failure to provide sufficient police protection service.
The Appellate Division interpreted the meaning of this provision in Suarez v. Dosky, 171 N.J. Super. 1, 407 A.2d 1237 (App. Div. 1979), a case involving a claim of negligence against two state troopers in connection with an automobile accident. In response to the troopers assertion of immunity under N.J.S.A. 59:5-4, the court held that the state troopers were not entitled to immunity because the statute was intended to insulate state and local governments from liability for their policy decisions regarding ...