Domestic Violence - Gun Permits Colonna v Pennsville

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Domestic Violence - Gun Permits Colonna v Pennsville

KENNETH VERCAMMEN & ASSOCIATES, PC

ATTORNEY AT LAW

2053 Woodbridge Ave.

Edison, NJ 08817

(Phone) 732-572-0500

(Fax) 732-572-0030 website:www.njlaws.com

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3742-08T1

STEVEN COLONNA,

Plaintiff-Appellant,

v.

TOWNSHIP OF PENNSVILLE,

PENNSVILLE TOWNSHIP POLICE

DEPARTMENT,

Defendants-Respondents.

Submitted April 28, 2010 - Decided

Before Judges Graves and J. N. Harris.

On appeal from the Superior Court of New

Jersey, Law Division, Salem County, Docket

No. L-23-07.

Glen L. Schemanski, attorney for appellant.

Powell, Birchmeier & Powell, attorneys for

respondents (James R. Birchmeier, on the

brief).

PER CURIAM

Plaintiff appeals from the dismissal of his complaint

against defendants that alleged the negligent deprivation of his

liberty, property, and firearms purchaser identification card by

May 19, 2010

A-3742-08T1

2

local government.1 We find no basis to disturb the grant of

summary judgment in favor of defendants and therefore we affirm.

I.

We recite the facts most indulgently in favor of plaintiff

because summary judgment was granted against him in the Law

Division. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520,

523 (1995); Pote v. City of Atlantic City, 411 N.J. Super. 354,

356 (App. Div. 2010).

On January 3, 2005, a representative of defendant

Pennsville Township Police Department (Department) received

information from plaintiffs girlfriend, Tracy Neciles,2 that

plaintiff had told her that he was going to kill himself and

that he also had waved a wooden-handled handgun in the air in

her presence. At least six police officers were dispatched to

plaintiffs residence in response to this information. At the

scene, plaintiff calmly exited his dwelling——empty-handed——at

1

Although the complaint is couched in constitutional terms of

alleged deprivations of a liberty interest, property rights, and

civil rights, plaintiff seeks no redress pursuant to federal or

state civil rights acts. See 42 U.S.C.A. § 1983; N.J.S.A. 10:6-1

to -2. Instead, plaintiff firmly plants his common law tort

cause of action within the embrace of the New Jersey Tort Claims

Act (TCA), N.J.S.A. 59:1-1 to 12-3.

2

The record contains differing references to the surname of

plaintiffs girlfriend. In plaintiffs deposition, he spelled

her name for the court reporter as "Tracy Neciles, N-E-C-I-L-E-

S." In the spirit of giving plaintiff the benefit of all

reasonable inferences, we adopt plaintiffs spelling.

A-3742-08T1

3

the request of a police officer, and thereafter fully cooperated

with law enforcement officials.

In his deposition, plaintiff denied waving a firearm, but

conceded that he and Neciles had argued, and that he uttered

words indicating that he was going to kill himself,3 or at least

gave that impression to Neciles:

Q. Do you ever recall threatening that you

were going to kill yourself during the

course of that argument?

A. Yeah. I think my words were to the effect

that she was so vehement. I said Ive had

it, Im getting out of here, words to that

effect, Ive had it Im getting out and I

meant it. I was tired of fighting with her

all the time over everything and I was the

only guy there trying to help her out. I was

at my saturation point with her at that

moment and I said Im out of here, leave me

alone, Im leaving, which never

materialized.

Q. And in addition to what youve told me

about what you said, do you recall saying

anything about harming Tracy, harming

yourself, or harming anyone else?

A. I probably——Im sure——I probably did use

my poor grammatical example of, you know,

Im going to jump out the window, so to

speak, leave me alone. Words to that effect.

I think thats why she went to the police.

She actually thought I was going to do

something stupid.

3

The police report indicated that plaintiff told an officer that

"he did tell Ms. [Neciles] that he was going to die in her bed,

but did not really mean it."

A-3742-08T1

4

After plaintiff surrendered to police officers at his home,

he was not arrested, handcuffed, or charged with an offense.

Instead, plaintiff was transported by police officers directly

to Memorial Hospital of Salem County for what plaintiff

described as "some kind of a psychological evaluation." Several

hours later, after a mental health screening assessment had been

administered to plaintiff, he was released. Although ultimately

diagnosed with a major depressive disorder and referred for

counseling, plaintiff was not found to be a danger to himself or

to others. He called his girlfriend, who obligingly picked him

up from the facility to drive him home. During this time, the

police seized plaintiffs three firearms and firearms purchaser

identification card that had remained in his dwelling.4

This incident was not plaintiffs first enco

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