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Wildoner v. Borough of Ramsey

January 31, 2000

ARTHUR WILDONER, PLAINTIFF-RESPONDENT,
v.
THE BOROUGH OF RAMSEY, RAMSEY POLICE DEPARTMENT, OFFICER KANE ZUHONE AND OFFICER BRIAN O'DONAHUE, DEFENDANTS-APPELLANTS, AND HELEN GANNON AND MARGARET DIEFERT, DEFENDANTS.



The opinion of the court was delivered by: Garibaldi, J.

Argued October 13, 1999

On certification to the Superior Court, Appellate Division, whose opinion is reported at 316 N.J. Super. 487 (1998).

Plaintiff, Arthur Wildoner, was arrested for domestic violence against his wife, Cecilia Wildoner, by Borough of Ramsey Police Officers Kane Zuhone and Brian O'Donahue. This appeal arises out of plaintiff's action against the Borough of Ramsey (the "Borough"), the Ramsey Police Department (the "Department") and Officers O'Donahue and Zuhone, under state common law and 42 U.S.C.A. Section 1983 ("Section 1983"), for false arrest, false imprisonment, mistreatment, and malicious prosecution.

The central issue in this appeal is what circumstances constitute probable cause, or would justify a reasonably objective police officer in believing in the existence of probable cause, to effectuate an arrest under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -33 (the "Act" or "Domestic Violence Act"). Specifically, did police officers acting on a concerned citizen's report, supported by the officers' analysis of the totality of the circumstances, act reasonably when they arrested an alleged perpetrator even though the victim and the alleged perpetrator deny that an act of domestic violence occurred.

I.

Plaintiff, seventy years old at the time of his arrest, resided with his wife in the Woodlands Senior Home, a senior citizens' complex in Ramsey. On September 15, 1993, plaintiff's neighbor, Helen Gannon, reported to the apartment complex's manager, Margaret Diefert, that she had heard plaintiff using loud and abusive language and that he was threatening to throw knives at his wife. Diefert called the police.

A short while later, Officers Zuhone and O'Donahue arrived at the complex in response to Diefert's complaint. The officers first spoke with Gannon and Diefert. At that time Gannon confirmed her initial report. The officers then proceeded to plaintiff's apartment, which Mrs. Wildoner allowed them to enter. The officers observed a knife on the kitchen floor and a red mark on Mrs. Wildoner's arm. The officers arrested plaintiff and wheeled him out of the apartment in a wheelchair, covered by a blanket. He was transported to the police station in an ambulance.

A criminal complaint charging simple assault pursuant to N.J.S.A. 2C:12-1(a) was signed by Officer Zuhone against plaintiff. Because Cecilia Wildoner refused to sign a domestic violence complaint against her husband, Officers O'Donahue and Zuhone applied to the Ramsey Municipal Court for a temporary restraining order ("TRO") pursuant to N.J.S.A. 2C:25-21 of the Domestic Violence Act. By order dated September 15, 1993, the Municipal Court granted a TRO restraining plaintiff from going back to his home, and ordered the Wildoners to appear for a formal hearing in the Superior Court. Plaintiff was released that same day to his son, Arthur Wildoner, Jr., a Garfield police officer, who was allowed to take his father home without having to post bail.

The next day, after hearing testimony from Mrs. Wildoner only, the Law Division vacated the TRO. On the order vacating the TRO, the court made a hand-written notation: "Testimony in Court. No Complaint filed by Plaintiff. Police improperly obtained TRO." The assault complaint filed in the municipal court was dismissed at the end of the State's case.

On December 8, 1993, plaintiff filed a timely Notice of Claim pursuant to N.J.S.A. 59:8-4. On September 14, 1995, plaintiff filed this action against the Borough, the Department, and Officers O'Donahue and Zuhone, alleging false arrest and imprisonment, mistreatment, and malicious prosecution, in violation of his federal constitutional and state common-law rights. He also sought compensatory and punitive damages. Both Gannon and Diefert initially were also named as defendants, but plaintiff executed stipulations dismissing them both.

Depositions were taken of the officers, the Wildoners and their son. The accounts of the parties differ on what occurred when the officers arrived at the Wildoners' apartment.

A. The Officers' Account

According to the officers, Mrs. Wildoner informed the police that plaintiff had been drinking and that an argument had ensued between them because Mrs. Wildoner did not want her husband to drive. Consistent with Gannon's report, the officers observed a knife in plain view on the kitchen floor. They also saw a red mark on Mrs. Wildoner's arm that she stated her husband had caused. Mrs. Wildoner also informed the officers that there had been a pattern of abuse throughout the forty-eight years of the couple's marriage.

Plaintiff was then arrested for a domestic violence assault. The officers assisted plaintiff into a wheelchair and covered him with a blanket. Because plaintiff complained of dizziness, he was taken to the Ramsey Police Station in an ambulance. Plaintiff declined an offer from paramedics to examine him, however, indicating that he did not need medical attention. Plaintiff was charged with simple assault and released that same day to his son, Arthur Wildoner, Jr.

B. The Wildoners' Account

Plaintiff concedes that Gannon made a report to police claiming that she had heard plaintiff being loud and abusive and threatening to throw a knife at his wife. According to Mrs. Wildoner's deposition (which was taken in her husband's presence), however, the couple had not been arguing that day. Instead, plaintiff was, at times, "talking loud" about their grandchildren and, later, he was angry and shouting because Gannon had telephoned three times that day out of concern for Mrs. Wildoner's safety. Gannon's third call was to let Mrs. Wildoner know that she had called the police.

When the police arrived, one officer told Mrs. Wildoner to wait in the bedroom; when the officer returned he indicated that they were going to arrest plaintiff. According to Mrs. Wildoner, the police had her husband's hands behind his back and he was saying, "You're hurting me, you're hurting me."

Mrs. Wildoner attempted to help her husband put on his pants. In attempting to do so, she bruised her arm on the edge of a table. At some point, Mrs. Wildoner gave up trying to get her husband's pants on and the police took her husband away in a wheelchair, clad only in a t-shirt and his underwear. Mrs. Wildoner denied having told police that her husband had been drinking, slapped her with a cane, verbally abused her, or thrown a knife at her. She admitted having told police that her husband was angry. She also conceded that a knife was in plain view, but said that it was on the table, not the floor. Finally, Mrs. Wildoner testified that her husband could not possibly have beaten her "because I'd run like hell."

Plaintiff, in his deposition, stated that when the police arrived, he was seated at the kitchen table tapping a knife on the table. He agreed that at one point it may have flown out of his hands and landed on the kitchen floor, but he stated that his wife was in the bedroom at that time. According to plaintiff, one of the officers said "we don't have nothing here," and was going to leave, but one officer then abruptly returned, said "I'm going to try something," read plaintiff his rights, and twisted his hands behind his back to handcuff him. Aside from trying to get his arms behind his back to handcuff him, plaintiff concedes that the police did nothing else to him physically. Moreover, although plaintiff claims the police told him that he was "bluffing" about being unable to walk, he also concedes that the police did get him a wheelchair and did not try to force him to walk. An ambulance transported him to the police station.

Plaintiff, who was seventy years old, testified that he had been wounded in the knee in World War II and had never recovered the full use of his legs. For the last eight to nine years he had had trouble bending the knee and had developed arthritis in the other leg, making it difficult for him to walk. He testified that he needed a cane and it took him a long time to get out of a chair. According to plaintiff, he could not possibly have attacked his wife because "[s]he could give me a shove and that would be the end of it."

In March, 1997, Arthur Wildoner, Jr. was deposed by defendants' attorneys concerning his knowledge of the incident. Wildoner, Jr., a Garfield police officer for twenty-one years, testified that at the time of the September 1993 incident, his parents had resided at the Ramsey apartment for approximately one to two years. Prior to that time, they had resided in a private residence in Garfield for approximately twenty-one years. Wildoner, Jr. worked as a Garfield police officer for about the last nineteen of his parents' twenty-one years' residence in Garfield. During that time, Wildoner, Jr. testified, the Garfield police had been called to his parents' home in connection with domestic disturbances on approximately five occasions. Wildoner, Jr. believed that the altercations were verbal and that, to his knowledge, no physical assaults had been alleged, nor any domestic violence complaints filed, in connection with any of those incidents. According to Wildoner, Jr., the verbal altercations between his parents continued after they moved to Ramsey. The Wildoners' loud arguments had given rise to complaints by other tenants and the couple had been threatened with eviction.

Wildoner, Jr. also stated that, when asked what happened, plaintiff told him that "he had a fight with mommy and a couple of other choice words out of his mouth and he said they arrested me." That same evening Wildoner, Jr. asked his mother what happened. She told him that "they were fighting, he is drinking, she took his keys away and . . . he threw a knife at her."

Wildoner, Jr. testified that his mother had reported that plaintiff had "hit her a few times" over the years, but Wildoner, Jr. stated that he was not concerned about the altercations because his mother was in better physical condition and his father could not throw a knife "with any velocity or substance behind it." Asked whether he, in his experience responding to domestic violence complaints, would have arrested a "frail" elderly man such as his father who had reportedly assaulted a "woman that's basically strong and healthy," Wildoner, Jr. replied, "Yes. If the law states that there is a victim who claims she was assaulted with a knife that was thrown at her, whether the guy is frail or not, he was arrested for domestic violence."

II.

Upon the completion of discovery, defendants filed a motion for summary judgment seeking dismissal of the Complaint. In support of that motion, as required by Rule 4:46-2, defendants provided a list of material undisputed facts, and plaintiff, in opposing the motion, indicated the facts he disputed:

1. On September 15, 1993, the Ramsey Police Department received a telephone call from Margaret Diefert, Manager of Woodlands Senior Homes.

2. On September 15, 1993, Plaintiff, Arthur Wildoner, Sr. and his wife, Cecilia Wildoner, resided at the Woodlands Senior Homes Complex in Apartment 300.

3. Helen Gannon, the Wildoner's neighbor in the complex, called Mrs. Diefert to report "that Plaintiff was threatening to throw knives at his wife and was loud and abusive."

4. Officers Kane Zuhone and Ryan [sic] O'Donahue of the Ramsey Police Department were dispatched to the Woodlands Senior Homes after receiving a call from Ms. Diefert regarding the ...


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