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Paul Maslow, Honorable Joseph E. Irenas v. City of Atlantic City and John Mooney

September 28, 2011

PAUL MASLOW, HONORABLE JOSEPH E. IRENAS PLAINTIFF,
v.
CITY OF ATLANTIC CITY AND JOHN MOONEY, DEFENDANTS.



The opinion of the court was delivered by: Irenas , Senior District Judge:

OPINION

This matter comes before the Court on Defendant Mooney's Motion for Summary Judgment. *fn1 For the reasons set forth below, the Motion will be granted. *fn2

I.

Plaintiff Paul Maslow has been a police officer with Atlantic City since 1988. (Mooney's L.Civ.R. 56.1(a) Statement at ¶ 1) *fn3 Due to an injury, Plaintiff took sick leave for five and half months, and remained out of work until May 2007. ( Id. at ¶ 9) Upon returning to work, Plaintiff was assigned to the midnight to eight a.m. shift. ( Id. at ¶ 11) Prior to taking sick leave, Plaintiff worked the four p.m. to midnight shift. ( Id. at ¶ 10)

Plaintiff had trouble adjusting to the new schedule. ( Id. at ¶ 12) After four days of work, Plaintiff used two weeks of sick time, and subsequently applied for extended sick leave based on a sleep disorder, anxiety and stress. ( Id. ) In May 2007, Plaintiff met with a psychiatrist at the recommendation of Dave Davidson, Police Benevolent Association Union ("PBA") President. ( Id. at ¶¶ 20-21) The psychiatrist issued Plaintiff a sick certificate due to stress. ( Id. at ¶ 21)

Despite his psychiatric problems, Plaintiff attended a PBA meeting on May 30, 2007. ( Id. at ¶ 22) There, he encountered 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 need to take back his city issued firearm. ( Id. at ¶ 23) Plaintiff cooperated with this request. ( Id. ) Lt. Pasquale further inquired whether Plaintiff wished to voluntarily relinquish his personally owned firearms pursuant to the police department's unwritten policy regarding officers on sick leave. ( Id. at ¶ 24) To this request, however, Plaintiff refused. ( Id. After learning of this situation, Defendant Chief of Police Mooney became involved in two distinct professional capacities. First, Defendant Mooney was the chief of police and Plaintiff's supervisor. ( Id. at ¶ 2) In this role, Defendant Mooney had a duty to ensure that his employees did not pose a threat to the public or themselves. See N.J.S.A. 40A:14-118. Plaintiff's sick leave did not strip Plaintiff of his status as a police officer or Defendant Mooney's status as Plaintiff's superior officer.

Indeed, police officers have significant responsibilities both on and off duty. While off duty, police officers are expected to respond to law violations and are at a greater risk of personal attack due to the nature of their employment. In recognition of these risks, the police department encourages off duty officers to carry personal firearms. ( See Tr. of Oral Arg., Sept. 22, 2011) *fn4 These risks and responsibilities create accompanying supervisory responsibilities for superior officers.

Defendant Mooney's second role was through his statutory firearms licensing authority for the municipality of Atlantic City. See N.J.S.A. 2C:58-3 to 4. Defendant Mooney was in charge of approving applications for firearms and handgun purchaser identification cards, handgun carry permits and instituting permit revocation proceedings in New Jersey Superior Court. Id. Although Plaintiff was exempt from obtaining a handgun carry permit due to his position as a police officer, Plaintiff still possessed a firearms purchaser identification card. *fn5 See N.J.S.A. 2C:39-6a(7)(a); N.J.A.C. 13:54-2.2.

In connection with these two distinct responsibilities, Defendant Mooney contacted Deputy City Solicitor Anthony Swan to discuss requiring Plaintiff to relinquish his personal firearms. (Mooney's L.Civ.R. 56.1(a) Statement at ¶¶ 26-28) Swan informed Defendant Mooney that they could institute revocation proceedings in Superior Court pursuant to Defendant Mooney's statutory firearms licensing authority. ( Id. at ¶ 28) However, Defendant Mooney wished to avoid this administrative burden and decided to act in his supervisory capacity. ( Id. at ¶¶ 29-30) Defendant Mooney directed Swan to contact Plaintiff's attorney, Tom Reynolds, to request that Plaintiff voluntarily relinquish his personal firearms. ( Id. ) Swan further advised Reynolds that should Plaintiff refuse this request, Swan would file an action in New Jersey State Superior Court to revoke Defendant Mooney's "ability to carry." *fn6 (Swan Dep., Br. in Opp., Ex. E, 22)

At this point, the parties' accounts diverge. Defendant Mooney asserts that Plaintiff, through Reynolds, offered to relinquish his personal firearms upon a formal written request. (Mooney's L.Civ.R. 56.1(a) Statement at ¶ 34) Defendant Mooney issued the requested order, and on June 1, 2007, Plaintiff relinquished his personal firearms voluntarily. ( Id. at ¶ 35)

However, Plaintiff maintains that he steadfastly refused to relinquish his personal firearms unless Defendant Mooney issued an explicit written order. (Br. in Opp. at 10) Upon receiving the written order, Plaintiff complied only to avoid punishment for disobeying a direct order. ( Id. at 9-10) In either account, Defendant Mooney was exercising his supervisory authority, as opposed to his firearms licensing authority.

In accordance with the written order, two sergeants from the Atlantic City Police Department drove to Plaintiff's home to take possession of Plaintiff's personal firearms and his firearms purchaser identification card. (Mooney's L.Civ.R. 56.1(a) Statement at ¶ 42) Plaintiff did not fight this order or otherwise demand a hearing. ( Id. at ¶¶ 43-44) Nor did Plaintiff file a grievance or otherwise pursue any remedies before bringing this lawsuit. ( Id. ) After this conflict regarding Plaintiff's personal firearms, Plaintiff and Defendant Mooney's relationship was strained. As a result, Plaintiff alleges that Defendant Mooney twice refused him the prestigious post of motorcycle training officer. ( Id. at ¶ 48)

As of oral argument held on September 22, 2011, Defendant Mooney had reinstated Plaintiff as an active police officer and had returned Plaintiff's firearms and firearms purchaser identification card.

II.

"[S]ummary judgment is proper 'if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986) (quoting Fed. R. Civ. P. 56(c)). In deciding a motion for summary judgment, the Court must construe the facts and inferences in a light most favorable to the non-moving party. Pollock v. Am. Tel. & Tel. Long Lines , 794 F.2d 860, 864 (3d Cir. 1986). "'With respect to an issue on which the non-moving party bears the burden of proof, the burden on the moving party may be discharged by 'showing'-- that is, pointing out to the district court -- that there is an absence of evidence to support the nonmoving party's case.'" Conoshenti v. Public Serv. Elec. & Gas , 364 F.3d 135, 145-46 (3d Cir. 2004) (quoting Celotex , 477 U.S. at 323). The role of the Court is not "to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 249 (1986).

III.

Plaintiff filed the Complaint in this Court on July 18, 2008. On March 11, 2011, Defendant Mooney filed the present Motion for Summary Judgment. Plaintiff alleges three distinct claims in the Complaint. In his two federal claims, Plaintiff asserts a § 1983 violation based on alleged infringements of the Second Amendment and Due Process Clause of the Fourteenth Amendment. *fn7 Plaintiff's third claim alleges a violation of the New Jersey Law Against Discrimination ("LAD") for discrimination and harassment based on a ...


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