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HANSELL v. THE CITY OF ATLANTIC CITY

June 14, 2001

DONNA M. HANSELL, CHRISTOPHER HANSELL, A MINOR BY AND THROUGH HIS GUARDIAN AD LITEM THEODORE F.L. HOUSEL, ESQUIRE, SHANNON D'ALESSANDRO, A MINOR BY AND THROUGH HER GUARDIAN AD LITEM THEODORE F.L. HOUSEL, ESQUIRE, VINCENT D'ALESSANDRO, A MINOR BY AND THROUGH HIS GUARDIAN AD LITEM THEODORE F.L. HOUSEL, LAWRENCE JAMES D'ALESSANDRO, JR. AND CARL CHRISTOPHER HANSELL, PLAINTIFFS,
v.
THE CITY OF ATLANTIC CITY, ATLANTIC CITY POLICE DEPARTMENT, A SUBDIVISION OF THE CITY OF ATLANTIC CITY, NICHOLAS V. RIFICE, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY, JOHN J. MOONEY, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY, KIRK SUTTON, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY, KIRK SUTTON, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY, JOHN DOE(S) A-Z FICTITIOUS NAME(S) I/J/S/A, DEFENDANTS.



The opinion of the court was delivered by: Joel A. Pisano, District Judge: Introduction
  OPINION

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 opposition.

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., ¶ 13).

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., ¶ 21).

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).

Mr. D'Alessandro was aware that the City offered an Employee Assistance Program ("EAP") in 1995 and 1996 for alcohol abuse and other problems, but he never sought assistance from the that program. Although in retrospect he believes that he had a problem with anger management and alcoholism, he did not admit to those problems at the time. (Defs.' Stat., ¶ 29).

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., ¶ 32).

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, ¶¶ 2-6).

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).

October 1995 Complaint

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.).

In response to her complaint, Captain Mooney advised Ms. Hansell that she should call the Galloway Township Police Department ("GTPD") in the event Mr. D'Alessandro attempted to contact her. Ms. Hansell told Captain Mooney that she expected an officer from ACPD Internal Affairs ("IA") to contact her in the morning, and declined to report the incident to the GTPD. Ms. Hansell testified that she was not concerned with Mr. D'Alessandro contacting her that night because she mistakenly believed that there was a permanent restraining order against him at that time. (Defs.' Stat., ¶ 42).

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., ¶ 42).

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 ...


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