The opinion of the court was delivered by: Joel A. Pisano, District Judge: Introduction
On March 5, 1996, Lawrence James D'Alessandro, Sr. ("Mr.
officer for the Atlantic City Police Department
("ACPD"), while on vacation, discharged his ACPD-issued revolver at his
ex-wife's residence to gain entrance and thereafter held hostage, at
gun-point, plaintiffs Christopher Hansell ("Christopher"), Shannon
D'Alessandro ("Shannon") and Carl Christopher Hansell ("Mr. Hansell")
(the "1996 Shooting Incident"). Plaintiffs Donna M. Hansell ("Ms.
Hansell"), Lawrence James D'Alessandro ("Larry"), Vincent D'Alessandro
("Vincent"), Shannon, Christopher and Mr. Hansell seek to hold certain
police officers of the ACPD and the City of Atlantic City (the "City")*fn1
liable under a federal civil rights statute, 42 U.S.C. § 1983, and
state tort law for the injuries resulting from the 1996 Shooting
Incident. Although plaintiffs sustained no physical injuries as a result
of Mr. D'Alessandro's private acts of violence, they claim to have
suffered permanent, substantial emotional injuries.
Plaintiffs' action, initially commenced in the Superior Court of New
Jersey, was removed to this Court on December 18, 1996. On May 2, 1999,
plaintiffs filed an amended complaint ("First Amended Complaint")*fn2
against the City, Chief Nicholas V. Rifice ("Chief Rifice"), Captain John
J. Mooney ("Captain Mooney"), Robert Schwartz ("Captain Schwartz") and
Kirk Sutton ("Sergeant Sutton") of the ACPD. At this time, previously
named defendants, Sergeant Michele A. Polk ("Sergeant Polk"), Inspector
James DiNoto ("Inspector DiNoto") and Detective Robert Reilly ("Detective
Reilly") were voluntarily dismissed from the suit. Subsequently,
plaintiffs also voluntarily dismissed Captain Schwartz and Captain
Mooney*fn3 from the suit.
Counts one, five and six of the First Amended Complaint assert claims
under 42 U.S.C. § 1983. Plaintiffs seek to hold:
(i) the individual defendants and the City liable under the
state-created danger theory for failing to protect plaintiffs from
Mr. D'Alessandro's acts of violence; (ii) the City liable for an
alleged unconstitutional custom or practice of ignoring complaints of
domestic violence made against its officers; and (iii) the City
and Chief Rifice liable for their alleged failure to train and
supervise the ACPD officers. Plaintiffs also assert state law
causes of action against defendants for general negligence, negligent
infliction of emotional distress, intentional infliction of emotional
distress, and negligent training and/or failure to supervise. (See
First Amended Complaint, counts two, three, four and seven). The
remaining defendants, Sergeant Sutton, Captain Rifice and the City,
have each filed a motion for summary judgment pursuant to Federal
Rule of Civil Procedure ("Fed.R.Civ.P.") 56. Plaintiffs filed
II. FACTUAL BACKGROUND*fn4
On November 17, 1973, Ms. Hansell married Mr. D'Alessandro. In 1978,
Mr. D'Alessandro became employed by the City as a police officer. The
couple had four children: Larry, John D'Alessandro ("John"), Vincent and
Shannon. During their marriage, Mr. D'Alessandro was both physically and
mentally abusive toward his wife and children. Over the years, Mr.
D'Alessandro's alcohol consumption increased as did his violent
propensities. (Plaintiffs' Supplemental Statement of Undisputed Facts
("Pls.' Stat."), ¶¶ 1, 2).
In October 1990, following an argument with John, Mr. D'Alessandro
threatened to kill his family. When Ms. Hansell tried to intervene and
hide his gun, Mr. D'Alessandro shot at her through a patio door ("1990
Shooting Incident"). Following this incident, the couple separated.
(Pls.' Stat., ¶¶ 6, 7).
In January 1991, after an argument with Ms. Hansell, Mr. D'Alessandro
took Larry to his apartment despite Ms. Hansell's protest. On the
following day, Ms. Hansell sought custody of the couple's children and a
restraining order against Mr. D'Alessandro based upon the 1990 Shooting
Incident in the Superior Court of New Jersey. As a result, a temporary
restraining order was issued against Mr. D'Alessandro prohibiting any
contact with Ms. Hansell, and Ms. Hansell was awarded legal and primary
physical custody of their children. The ACPD, however, was not informed
about the issuance of the restraining order at this time. (Pls.' Stat.,
¶ 7; Defs.' Stat., ¶¶ 8, 9).
During their marriage, Ms. Hansell never filed a report against Mr.
D'Alessandro with the ACPD or informed his supervisors about Mr.
D'Alessandro's acts of domestic violence and alcoholism. In the spring of
1991, Ms. Hansell informed her brother, Detective Reilly, about the 1990
Shooting Incident. (Defs.' Stat., ¶ 10). Ms. Hansell testified that
Detective Reilly immediately called his superior, then-Captain of
Intelligence, Inspector DiNoto, and informed him about the 1990 Shooting
Incident. (Id.). Inspector DiNoto, however, denies having
been informed about the 1990 Shooting Incident from Detective Reilly
at this time. (DiNoto Dep. at 25:4-11). Instead, Inspector DiNoto
recalls only that Detective Reilly mentioned having "some information"
about Mr. D'Alessandro but, upon questioning, he told Inspector
DiNoto "it was nothing" and did not provide him with any details.
(DiNoto Dep. at 25:12-26:9). Although Detective Reilly instructed
Ms. Hansell to go see Inspector DiNoto the following morning to report
the 1990 Shooting Incident, Ms. Hansell never went to the ACPD.
(Defs.' Stat., ¶ 11).
Ms. Hansell testified that she informed Sergeant Polk about Mr.
D'Alessandro's alcoholism and about the 1990 shooting incident while
Sergeant Polk was off-duty and buying groceries. Ms. Hansell, however,
specifically told Sergeant Polk that she did not want her to report the
incident. Ms. Hansell testified that she did not have any expectation
that Sergeant Polk would repeat their conversation and opined that she
had merely confided in Sergeant Polk "as a friend." (Defs.' Stat.,
Ms. Hansell also testified that she occasionally discussed Mr.
D'Alessandro's excessive drinking with her brother. Other than the 1990
Shooting Incident, Ms. Hansell testified that she confided in Detective
Reilly in "brother/sister conversation[s]" and did not expect him to
share their discussions with anyone. (Defs.' Stat., ¶ 15). Ms.
Hansell also confided in close friends, ACPD officers Andrea Minor and
Vince Schuman, about Mr. D'Alessandro's alcoholism and abusive behavior.
(Defs.' Stat., ¶ 14; Plaintiffs' Response to Defendants' Joint
Statement of Material Facts ("Pls.' Response"), ¶ 23).
After nearly twenty years of marriage, Mr. D'Alessandro and Ms. Hansell
divorced on February 7, 1992. At the time of their divorce, their four
children were minors. Although Ms. Hansell retained custody of the
children, the final divorce degree permitted "reasonable and liberal
visitation rights" for Mr. D'Alessandro. (Defs.' Stat., ¶ 17). By
1993, Larry was emancipated and Ms. Hansell released legal custody of
John to Mr. D'Alessandro's mother. (Affrunti Certif., Ex. 16).
In October 1993, Ms. Hansell wed Mr. Hansell and the couple
subsequently had a child, Christopher, in 1994. (Defs.' Stat., ¶
18). Mr. D'Alessandro also remarried but the relationship between Ms.
Hansell and Mr. D'Alessandro remained tense. Mr. D'Alessandro testified
that his drinking increased in 1995 and 1996 due to the strained
relationship between himself and Ms. Hansell. (D'Alessandro Dep. at
52:3-24). Mr. D'Alessandro testified that Ms. Hansell "would call up and
scream about the kids and threaten [not to allow him] to see his kids."
(D'Alessandro Dep. at 41:2-14).
On February 9, 1995, Mr. D'Alessandro called out "sick" from work
because he was angry that his shift had not been changed from the 4 p.m.
to 12 a.m. shift as requested. Specifically, Mr. D'Alessandro stated that
the 4 p.m. to 12 a.m. shift assignment caused him "stress" insofar as
working that shift placed him in violation of the New Jersey Superior
Court's visitation order and prevented him from working his second job.
(Defs.' Stat., ¶ 20). Ultimately, Mr. D'Alessandro's request to
transfer back to the 8 a.m. to 4 p.m. shift was granted. (Defs.' Stat.,
Mr. D'Alessandro does not recall experiencing "any stresses from the
job place" in 1995 or 1996, other than his temporary reassignment to the
4 p.m. to 12 a.m. shift. (D'Alessandro Dep. at 53:16-17; 154:13-16).
Although Mr. D'Alessandro testified that he was not "as enthused" about
his work, he does not recall anyone ever commenting that he seemed
"stressed" or needed counseling. (D'Alessandro Dep. at 67:24-69:13).
Although his co-workers were aware generally of the problems he was
experiencing with Ms. Hansell, he never discussed his excessive alcohol
consumption or acts of domestic violence. (Defs.' Stat., ¶ 27).
During Mr. D'Alessandro's employment with the City, Chief Rifice had
limited interaction with him and never received any negative reports
concerning his work performance. Mr. D'Alessandro never spoke with Chief
Rifice about his consumption of alcohol or his relationship with Mr.
Hansell. (Defs.' Stat., ¶ 30).
Ms. Hansell testified that she tried to reach Chief Rifice by telephone
between February 1992 and October 1996 to speak to him about Mr.
D'Alessandro's abusive behavior. Ms. Hansell, however, never spoke to
Chief Rifice directly. Instead, she left messages with Chief Rifice's
secretary for a return call. According to Ms. Hansell, her messages
stated that Mr. D'Alessandro was her ex-husband, that she had a
restraining order against him, and that she felt he was "giving her a
hard time." (Defs.' Stat., ¶ 31). Ms. Hansell does not know whether
Chief Rifice ever received any of her telephone messages. Chief Rifice
testified that he never received any message left by Ms. Hansell
regarding Mr. D'Alessandro's abusive behavior. (Defs.' Stat., ¶
During Sergeant Sutton's tenure at the ACPD, he never worked with Mr.
D'Alessandro nor heard complaints about Mr. D'Alessandro's work
performance. Sergeant Sutton also did not socialize with Mr.
D'Alessandro. Sergeant Sutton testified that he was not aware of Mr.
D'Alessandro's alcohol problems or history of domestic violence prior to
1995. (Sutton's Supplemental Statement of Uncontroverted Facts, ¶¶
Inspector DiNoto also testified that he was not aware of Mr.
D'Alessandro having any problems with alcohol prior to the occurrence of
the 1996 Shooting Incident. (Defs.' Stat., ¶ 33).
On October 25, 1995, Larry and Mr. D'Alessandro were involved in an
altercation in which Mr. D'Alessandro threatened to get his gun and blow
Larry's head off outside Six Shooter's, a bar frequented by the ACPD
officers. (Pls.' Response, ¶ 36). During their argument, an ACPD
police officer on-duty, Louis A. DePaul, approached them to investigate
the situation. Mr. D'Alessandro, however, instructed Officer DePaul that
everything was fine and Officer DePaul proceeded on without further
investigation. (Pls.' Stat., ¶ 37).
Following the argument, Larry visited the Hansell residence, which was
located in Galloway Township, New Jersey, to inform Ms. Hansell about his
father's threat. At the time, Larry did not reside with Ms. Hansell.
Ms. Hansell immediately telephoned the ACPD and reported the incident to
Captain Mooney. Ms. Hansell testified that she also informed Captain
Mooney about Mr. D'Alessandro's history of violent behavior towards his
family, including the 1990 Shooting Incident and the existence of a
restraining order, and Mr. D'Alessandro's alcoholism. She also testified
that she informed Captain Mooney that Mr. D'Alessandro was capable of
carrying out his threat because Mr. D'Alessandro had a "loose trigger
finger." (Defs.' Stat., ¶ 39). Ms. Hansell advised that Mr.
D'Alessandro's gun should be seized. (Id.).
Following his conversation with Ms. Hansell, Captain Mooney spoke with
Larry, as well as Larry's friend, Bobby Mooney, who was also present at
the Hansell residence. In accordance with ACPD policy and procedure,
Captain Mooney performed some preliminary fact-finding concerning Ms.
Hansell's complaint. In doing so, Captain Mooney obtained a statement
from Officer DePaul. (Defs.' Stat., ¶ 41).
Captain Mooney prepared a report of the complaint and immediately faxed
a copy of the report to IA for investigation, attaching Officer DePaul's
statement. That same night, Captain Mooney sent a copy of his report to
Captain Schwartz, then Captain of ACPD IA. Captain Mooney's report
contained information concerning Mr. D'Alessandro's threat and stated
that Ms. Hansell had a permanent restraining order against Mr.
D'Alessandro. Captain Mooney's report, however, did not contain any
information about Mr. D'Alessandro's history of domestic violence and
alcoholism or that Ms. Hansell believed that Mr. D'Alessandro had a
"loose trigger finger." Captain Mooney testified that he had no
recollection of Ms. Hansell reporting such statements. (Defs.' Stat.,
On October 26, 1995, Captain Schwartz received Captain Mooney's report
and directed Detective David Snyder to prepare a complaint brief. In
relevant part, the complaint brief stated the following:
Mrs. D'Allessandro [sic] reported, she is divorced and
has a permanent restraining order against her
ex-husband [Larry]. She went on to say that on 25
Oct. 95 between 0115-0130 hrs her son Larry Jr. (22
y.o.a.) and his father were drinking and became
involved in an argument. Det. L. D'Allessandro [sic]
is reported to have made a threat to his son,
allegedly stating, "I can get my gun and blow your
fucking head off."
(Affrunti Certif., Ex. 30). Captain Schwartz then assigned the matter to
Sergeant Sutton for investigation. (Defs.' Stat., ¶ 44). Under IA
protocol, Captain Schwartz was required to prepare a notification form
advising Inspector DiNoto of Ms. Hansell's complaint at this time.
Inspector DiNoto, however, never received the notification form. (DiNoto
Dep. at 19:3-22).
When Sergeant Sutton received the complaint brief on October 25, 1995,
he skimmed it and determined it was not an emergency matter. Sergeant
Sutton testified that, based upon experiences related to his own
divorce, he did not believe it was an emergency because it involved an
ex-wife complaining about her ex-husband making a parental correction "of
his son." (Pls.' Stat., ¶¶ 49, 50).
On October 27, 1995, in accordance with ACPD policy, the complaint
brief was faxed to the Atlantic County Prosecutor's Office, along with a
copy of Captain Mooney's report and Officer DePaul's statement. The
Prosecutor's Office did not take any action in response to the receipt of
the complaint brief, nor did it request that the ACPD undertake any
action. (Defs.' Stat., ¶ 46). Sergeant Sutton testified that he did
not investigate the complaint during the months of October and November
1995 and does not recollect Captain Schwartz ever discussing the
complaint with him. (Defs.' Stat., ¶ 47).
B. 1996 Shooting Incident
Despite his right to reasonable and liberal visitation, Mr.
D'Alessandro believed that Ms. Hansell was preventing him from seeing
Shannon and Vincent in February 1996.*fn5 (Defs.' Stat., ¶¶ 17,
19). Frustrated by his inability to see his children, Mr. D'Alessandro
went on vacation and began to drink heavily. On March 5, 1996, Mr.
D'Alessandro, while on vacation and in a highly intoxicated state, went
to the Hansell residence to scare Ms. Hansell. (Defs.' Stat., ¶
49). While wearing his ACPD-issued bullet proof vest, Mr. D'Alessandro
discharged his ACPD-issued revolver at the front door to gain entry. He
shot at and narrowly missed Mr. Hansell. Eventually, he successfully
entered the house and held hostage Mr. Hansell, Shannon and Christopher,
which prompted Shannon to plead for their lives. (Pls.' Response, ¶
15). Larry did not reside at the Hansell residence, and Ms. Hansell and
Vincent were not at home at the time. The GTPD police officers were
dispatched to the house and eventually convinced D'Alessandro to
voluntarily surrender. (Id.). At the time of the 1996 Shooting
Incident, Larry, Vincent, Shannon and Christopher were approximately
twenty-two, fourteen, eight, and two years of age, respectively. None of
the hostages were physically injured.
Following Mr. D'Alessandro's arrest, Captain Schwartz paged Sergeant
Sutton and thereafter directed Sergeant Sutton to meet him at the GTPD.
Once Sergeant Sutton arrived at the GTPD, he recalled the earlier
investigation that he had not completed. Sergeant Sutton immediately
advised Captain Schwartz that the pending complaint was sitting on his
desk and had not been investigated. (Defs.' Stat., ¶ 51). Sergeant
Sutton apologized to Ms. Hansell stating that "I dropped the ball, I am
really sorry." (Pls.' Response, ¶ 15). Sergeant Sutton acknowledged
that he failed to fully investigate her complaint. (Id.).
Subsequent to Mr. D'Alessandro's arrest, police officers secured five
other non-ACPD issued weapons from Mr. D'Alessandro's home. (Defs.'
Stat., ¶ 52). Mr. D'Alessandro did not inform anyone at the ACPD of
his intention to carry out his acts of violence. (D'Alessandro Dep., at
150:17-20). Mr. D'Alessandro's employment was terminated effective March
6, 1996. (Defs.' Stat., ¶ 58). On March 14, 1996, New Jersey
Superior Court Judge entered a Final Restraining Order against Mr.
D'Alessandro, prohibiting his contact with Mr. Hansell, Ms. Hansell,
Vincent, Shannon and Christopher. (Defs.' Stat., ¶ 54). On June
10, 1996, Mr. D'Alessandro pled guilty to aggravated assault. (Defs.'
Stat., ¶ 56).
The Relevant Policies and Procedures of the ACPD
ACPD General Order No. 9 sets forth the City's policy regarding the
seizure of weapons from officers involved in domestic violence
incidents. Section II of ACPD General Order No. 9, entitled "Guidelines
for the Seizure of Weapons from a Law Enforcement Officer involved in a
Domestic Violence Incident," provides that all ...