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Paul Maslow v. City of Atlantic City and John Mooney

June 30, 2011

PAUL MASLOW,
PLAINTIFF,
v.
CITY OF ATLANTIC CITY AND JOHN MOONEY, DEFENDANTS.



The opinion of the court was delivered by: Honorable Joseph E. Irenas

OPINION

IRENAS, Senior District Judge:

This matter comes before the Court on the First Motion for Judgment as a Matter of Law of the Defendant City of Atlantic City ("Atlantic City"). For the reasons set forth below, the Motion will be granted in part and denied in part.*fn1

I.

Plaintiff Paul Maslow has been a police officer with Atlantic City since 1988. (City of Atlantic City's Statement of Undisputed Material Facts ¶ 2) Plaintiff was injured while on duty in 2006. (Id. at 3) Plaintiff was put on sick leave, and remained out of work until May 2007. (Id. at 4) Upon returning to work, Plaintiff was assigned to the Charlie Platoon, which works from midnight until eight a.m. (Id. at 8)

Plaintiff had trouble adjusting to the new schedule. (Id. at 12) He began with the Charlie Platoon on May 10, 2007, and called in sick on May 13, 2007 because he was tired. (Id. at 11) Plaintiff met with a private psychiatrist. (Id. at 13) The psychiatrist provided Plaintiff a note that said Plaintiff was "not able to work." (Id.)

Despite his psychiatric problems, Plaintiff attended a Police Benevolent Association meeting on May 30, 2007. (Id. at 15) There, he ran into Lt. James Pasquale and told him that he was missing work because of stress. (Id.) Upon hearing this news, Lt. Pasquale advised Plaintiff that the police department would be revoking his duty weapon. (Id. at 16)

Defendant Mooney, the chief of the Atlantic City Police Department, was also at that meeting. (Id. at 17) Lt. Pasquale and Defendant Mooney spoke about the Plaintiff's issues. (Id.) Defendant Mooney advised Pasquale that he should ask Plaintiff for his personal fire arm and his firearms purchaser identification card. (Id.) Defendant Mooney further advised Pasquale that if Plaintiff did not voluntarily relinquish his firearm and identification card, then appropriate legal actions would be taken. (Id. at 18)

After the meeting, a sergeant with the police department approached Plaintiff and requested his duty weapon. (Id. at 23) The sergeant also requested Plaintiff's personal weapon, but Plaintiff would not relinquish that weapon. (Id. at 24) On June 1, 2007, Defendant Mooney spoke with an attorney in the office of the City Solicitor of Atlantic City about the situation. (Id. at 28) The attorney advised Defendant Mooney that the police department could not force Plaintiff to relinquish his weapon. (Id. at 30). The attorney further advised Defendant that the county prosecutor was empowered to file an action in superior court to seize Plaintiff's weapon. (Id.)

Defendant Mooney arranged for the city solicitor's office to call Plaintiff's attorney and discuss the possibility of Plaintiff relinquishing his weapon in order to avoid a legal action against Plaintiff. (Id. at 35) Plaintiff's attorney asked for a copy of the policy pursuant to which the police department was requesting his weapon, and the city solicitor's office advised the attorney that there was no such written policy. (Id. at 36) Plaintiff's attorney finally agreed that Plaintiff would surrender his weapon if he received "something in writing." (Id. at 38)

Defendant Mooney then issued a written order compelling Plaintiff to surrender his weapon. (Id. at 41) Following receipt of this order, Plaintiff surrendered his personal weapons. (Id. at 46) Plaintiff made no effort to have his personal firearms returned until the commencement of the present action. (Id. at 55)

Plaintiff filed his Complaint in this Court on July 18, 2008. Count I of the Complaint, brought against both Defendants, alleges discrimination and harassment based on a perceived disability in violation of the New Jersey Law Against Discrimination. Count II of the Complaint, brought under 42 U.S.C. § 1983, alleges violations of the Second Amendment and Fourteenth Amendment of the United States Constitution by both Defendants. Counts III and IV of the Complaint also allege violations of the Fourteenth Amendment and Second Amendment.*fn2

Presently before the Court is Atlantic City's First Motion for Judgment as a Matter of Law, ...


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