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Orlowski v. Borough of Sayreville

July 11, 2007

ZYGMUNT ORLOWSKI, JUDITH ORLOWSKI, LEONARD ORLOWSKI AND MEGHAN ORLOWSKI, PLAINTIFFS-APPELLANTS,
v.
BOROUGH OF SAYREVILLE (IMPROPERLY PLEADED AS "TOWNSHIP OF SAYREVILLE"), SAYREVILLE POLICE DEPARTMENT, SERGEANT JOHN ZEBROWSKI, DETECTIVE JACK FITZSIMMONS, AND SAYREVILLE POLICE CHIEF JOHN B. GARBOWSKI, DEFENDANTS-RESPONDENTS, AND ASSISTANT SUPERINTENDENT DENNIS FYFFE, DEAN OF STUDENTS LEE SCHNEIDER AND SAYREVILLE BOARD OF EDUCATION, DEFENDANTS.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-1851-03.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 2, 2007

Before Judges Sabatino and Lyons.

This civil action arises out of the warrant-based search of a residence, and the ensuing arrest of a young man who resided there, plaintiff Zygmunt Orlowski, by members of the Sayreville Police Department. As the result of those police actions, plaintiff was prosecuted for certain weapons offenses and eventually admitted into the Pretrial Intervention Program (PTI). Subsequently, plaintiff, his mother Judith Orlowski, and two other members of the Orlowski family*fn1 filed a complaint in the Law Division against the Township of Sayreville and various members of the Sayreville police force. The lawsuit alleged violations of their federal and state constitutional rights, as well as other common-law claims, arising out of the search of their premises and plaintiff's arrest. After certain claims were voluntarily dismissed, the Law Division judge granted defendants summary judgment on the remaining claims in an order dated December 16, 2005.

Plaintiff appeals the December 16, 2005 order, contending that the motion judge prematurely and improperly dismissed his claims. We affirm.

I.

On March 10, 2001, Robert Mickiewicz, at the time a twenty-year-old college student, contacted the Sayreville Police Department and informed Patrolman Matthew O'Such that he was concerned about the behavior of his friend, plaintiff Zygmunt Orlowski. Specifically, Mr. Mickiewicz*fn2 informed Officer O'Such that he believed plaintiff was going to carry out specific threats that he had made to use his personal firearms and military equipment. The following day, March 11, Mr. Mickiewicz reported his concerns about plaintiff to the Newark office of the Federal Bureau of Investigation (FBI). Concurrently, Mr. Mickiewicz also contacted the United States Army in Fort Monmouth, and advised the Army of his belief that plaintiff had improperly obtained gas masks, camouflage clothing, grenade detonators, and other military equipment from James Gilligan, an active member of the United States Marine Corps.

Continuing with his efforts to address the potential danger posed by plaintiff, Mr. Mickiewicz went to the Sayreville War Memorial High School on March 12. There he informed Principal James Brown and Vice Principal Mike Leonardo that plaintiff had made threats to him about going to the school with firearms to shoot people. In response, the high school authorities contacted the Sayreville Police Department, which immediately dispatched officers, including defendant Detective Jack Fitzsimmons, to the high school. Upon arrival, Detective Fitzsimmons interviewed Mr. Mickiewicz, who informed him that plaintiff, who is nicknamed "Ziggy," had been "acting very strange lately." At the time, plaintiff was eighteen years of age.

Specifically, Mr. Mickiewicz advised Detective Fitzsimmons that on March 5 and 6, 2001, plaintiff had made comments about planning to go into the high school with an AR15 weapon loaded with thirty-round capacity magazines. Mr. Mickiewicz stated that prior to those recent dates plaintiff had made such comments often. Additionally, Mr. Mickiewicz advised the detective that plaintiff often had stated that the school board, certain students, and the high school's former principal had "ruined his life."

In the course of the interview, Detective Fitzsimmons discovered that earlier that day, March 12, Mr. Mickiewicz himself had weapons removed from his possession by Detective Bill Cheeseman of the South Amboy Police Department. That confiscation had occurred in response to a report from plaintiff that Mr. Mickiewicz had been "acting strange." Accordingly, Detective Fitzsimmons specifically asked if Mr. Mickiewicz was making the current report against plaintiff in retribution for those actions. Mr. Mickiewicz denied such a motivation, explaining that he had reported plaintiff's suspicious behavior to the Sayreville Police Department, the FBI, and the military on March 10, 2001, two days prior to his weapons being removed. Mr. Mickiewicz further told Detective Fitzsimmons that he believed plaintiff had made a report against him in order to ensure that Mr. Mickiewicz would be unarmed. Mr. Mickiewicz feared that plaintiff would now "come after him."

Based on this information, Detective Fitzsimmons requested that Mr. Mickiewicz come to the Sayreville police headquarters to make a formal statement. Mr. Mickiewicz complied. Detective Fitzsimmons then requested a Sayreville police sergeant to have police units patrol the parking lot and areas surrounding the high school, in an effort to stop plaintiff in any attempt to carry out his threats that day.

Upon arrival at the police station, Detective Fitzsimmons advised a co-defendant, Detective Sergeant John Zebrowski, of the information that he had received from Mr. Mickiewicz. Both detectives proceeded with Mr. Mickiewicz to a conference room, where he issued a formal statement.

In his police statement, Mr. Mickiewicz advised that he and plaintiff, along with a mutual friend, Brian Bender, had traveled on March 10 in plaintiff's car to a gun store in Long Island, New York. Plaintiff allowed Mr. Mickiewicz to drive his car throughout the journey. At the gun store, plaintiff purchased a "Mauser 8mm" firearm and "1000 rounds of 223, [and] between 50 and 80 rounds of 8mm" ammunition. Bender also purchased a Mauser firearm. Upon leaving the gun store, Mr. Mickiewicz, Bender, and plaintiff attempted to patronize a bar in Long Island as well as a bar in Brooklyn, but discovered that both bars were closed.

According to Mr. Mickiewicz, the threesome traveled through Brooklyn, Queens, and Manhattan, where plaintiff began to complain that he hated "the city and everything else." Mr. Mickiewicz and plaintiff then began to argue over personal matters. In the course of that argument, plaintiff allegedly uttered, "if I put my 8mm [gun] to your head[,] would you still be wise like you're being right now[?]" and "he [plaintiff] can take [Mr. Mickiewicz] down." At the time plaintiff reportedly made those comments, the car was still moving, with Mr. Mickiewicz driving, plaintiff in the front passenger seat, and Bender in a back seat with the ammunition. The guns were in the trunk.

In response to plaintiff's threatening exclamation, Mr. Mickiewicz stated that he would "restrain" plaintiff and call the police if he "ever threatened to put his gun to [Mr. Mickiewicz's] head or beat [him] up." Mr. Mickiewicz contended that plaintiff became quiet and calm, until later in the drive about ten minutes from the New Jersey border when Mr. Mickiewicz turned on the radio. At that point, plaintiff demanded that Mr. Mickiewicz get out of the vehicle.

Mr. Mickiewicz refused, advising plaintiff that "when we get to [New] Jersey I will get out and call my mother and I will go home." Mr. Mickiewicz stated that plaintiff continued screaming, attempted to turn off the ignition while Mr. Mickiewicz was driving, attempted to punch Mr. Mickiewicz, and attempted to strangle Mr. Mickiewicz just north of the Lincoln Tunnel, all as the vehicle was moving.

At that point, Mr. Mickiewicz stated that Bender reached from his seat to try to restrain plaintiff, while Mr. Mickiewicz "pushed [plaintiff] down harder and slammed his head into [Mr. Mickiewicz's] knee." Plaintiff then attempted to pull Mr. Mickiewicz's foot off of the brake. At this point, Mr. Mickiewicz contended that plaintiff got out of the car and fled.

Mr. Mickiewicz parked plaintiff's car in Manhattan across the street from the Jacob Javits Center, and he and Bender got out of the car and went into the building. Mr. Mickiewicz stated that he was initially afraid to leave the building, because plaintiff's gun was still in the car trunk. Once Bender went outside and ensured that plaintiff was not nearby, the two men returned to the vehicle to wait for assistance.

According to Mr. Mickiewicz, he then received a call from his mother, Mary Lou Mickiewicz. Mrs. Mickiewicz had received a call from plaintiff about the events in New York. As a result, Mrs. Mickiewicz advised her son that plaintiff would be taking a cab to the Jacob Javits Center to retrieve his vehicle.

When plaintiff arrived, Mr. Mickiewicz was reluctant to return his keys because he perceived that plaintiff was still "irrational and out of control." Mr. Mickiewicz stated that he felt that if plaintiff were able to get to his weapon at the time, he would have carried out his earlier threats. Eventually, however, Mr. Mickiewicz gave plaintiff the ignition key only, keeping the keys to the car trunk and door locks. Plaintiff drove off, promising that he would drop off the gun and ammunition Bender had purchased earlier that day at Bender's home.

Mr. Mickiewicz further noted in his police statement that plaintiff had made many threats, both that day and in the past, about hurting other people. Specifically, Mr. Mickiewicz stated that:

Ziggy [plaintiff] always makes threats. Ziggy makes so many threats it becomes common to hear them and we really don't pay attention to him any more.

The most recent one that he has mentioned was the threat towards his mother and his sister because it was Lent and he was supposed to give up something for Lent and his mother hid the [T]winkies on him and he threatened to shoot his mother and sister. He's made many threats against Sayreville High School.

Detective Fitzsimmons asked Mr. Mickiewicz to explain this further. He responded:

[W]hat comes to mind is when [plaintiff] said if I take my AR15 with 230 round magazines ammunition, 223, what damage could that do [?]

I said to him is it worth going to jail over it and he said at least I'll have like five minutes of fame. He always refers to, somebody aggravates him. . . . he tried going out with this girl and stalked her, he threatened to shoot her. I don't remember the kid['s] name but somebody with a fund for third world country[,] whatever.

[Plaintiff] was on the Green Print Paper in Rutgers University. That's Rutger[s'] newspaper. He was the photographer. One day he went over to the editor's house for like a little discussion like what they were going to do for the year and the editor asked him to bring over his rifle. That's what Ziggy told me . . . . Ziggy brought it over and after that night the editor from the newspaper said Ziggy threatened to use the rifle against him and people on the Green Print because they were doing things he didn't want them to do and he left the Green Print and then either two days or a week following that he was like why don't we take my bow and arrow, there's woods fifty yards away from the Green Print window and shoot an arrow through and see how they react when I do that.

Mr. Mickiewicz stated that plaintiff made those prior threats to the student newspaper in approximately October or November 2000.

Mr. Mickiewicz acknowledged that he had never actually seen the bow and arrow, but indicated that plaintiff had claimed receiving it as a gift from his father. Mr. Mickiewicz stated that he had seen other weapons owned by plaintiff, including an "AR15, SKS, 303 and the Mauser 8mm and a .38 Special," but that plaintiff had told him none of those weapons were fully automatic. Mr. Mickiewicz explained that "all [of plaintiff's] rifles, the SKS, the Mauser and the 303," were military weapons. The "surplus rifles" had been previously used "in the war," while the AR15 was a target rifle that plaintiff had purchased new. The .38 caliber special handgun had previously belonged to plaintiff's father. Mr. Mickiewicz further stated that plaintiff typically stored those weapons in his bedroom in a gun cabinet. However, at times when plaintiff was concerned that someone might "come and take them away from him," he would store the weapons at his grandmother's home or sister's home. Mr. Mickiewicz stated that he had observed plaintiff's guns at all three locations on various occasions.

Mr. Mickiewicz reported that plaintiff had substantial ammunition for those weapons, including "a case of 223, 1000 rounds," "a case of 76239 for the SKS," between 100 and 500 rounds for the 303, between 50 and 80 rounds for the Mauser 8mm, and "over 1000" rounds for the ".38 Special." Mr. Mickiewicz opined that plaintiff was very proficient with the weapons and was "a very good shot."

In addition to the weaponry, Mr. Mickiewicz reported that plaintiff possessed various types of military equipment, which he had received from Gilligan. Mr. Mickiewicz stated that he had seen thirty-round magazines for an M16 and an AR15, gas masks, camouflage clothing, jackets, duffle bags, approximately fifty grenade detonators, and 50-caliber machine gun ammunition.

Mr. Mickiewicz also related an incident in which plaintiff attended a friend's graduation party, where he had brought a 30-caliber machine gun, as well as two boxes of belt ammunition. While Mr. Mickiewicz conjectured that the ammunition might have been of "DeMils" type, which would have indicated that the firing plate had been removed and replaced with a blank plate, he was unsure what caliber the ammunition was.

Mr. Mickiewicz stated that he first heard plaintiff make threats regarding Sayreville high school during November or December 2000, though most of them had not been as detailed as the recent threat regarding the AR15. Mr. Mickiewicz explained that plaintiff had an animosity or hatred towards the school that was apparent every time he spoke about it, approximately once or more a week. Mr. Mickiewicz stated that plaintiff believed that "Sayreville High School was always against him" and "always wanted to get rid of him," that the Board of Education was "always against him" and that the students at the school "always picked on him . . . [and] always were cruel to him[.]" Mr. Mickiewicz noted that he had not attended that high school but his conception of plaintiff's relationship with the school came from plaintiff's own statements, as well as statements by other students that went to high school with him. Mr. Mickiewicz also recalled that plaintiff had made negative comments about the school's former principal, certain teachers, certain members of the Board of Education, a female student, and another student who "was on the fund raiser with [plaintiff]."

As to plaintiff's irrational behavior, Mr. Mickiewicz stated that in the course of their relationship, it was common for the plaintiff to "talk" in a threatening manner but that there had been "nothing to reinforce" the chance that plaintiff would carry out his threats. Mr. Mickiewicz stated that plaintiff's behavior in the vehicle on March 10 replicated plaintiff's attitude when he would discuss "people [who] had hurt him in the past," by breaking his heart or morale, or by doing something that offended the plaintiff's morals.

Mr. Mickiewicz told the police that he became frightened on March 10 because plaintiff had never acted this way towards him before and that it was triggered simply by his driving plaintiff's vehicle through New York City, a place which plaintiff did not like. Mr. Mickiewicz was concerned because plaintiff's "flipping out" showed "what kind of person [plaintiff] is and what he's capable of doing." Mr. Mickiewicz stated that plaintiff would "rather be feared than loved" and acted the way he did because he wanted to scare and impress people. Mr. Mickiewicz also stated that plaintiff did not like to be around large groups of people, thought everyone is "against him," feared nuclear attacks, and expressed this fear by vividly detailing possible attacks on cities and "where he has to be to get away from it in time."

Mr. Mickiewicz stated that plaintiff's only hobby and interest was the military, and that plaintiff collected various military memorabilia including military jeeps, a Hummer, a Vietnamese jeep from the Vietnam War, and approximately four World War II "Willys." Despite this interest, Mr. Mickiewicz stated that plaintiff has stated that he would not enlist in the military "because they won't let him play with the toys ...


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