Domestic Violence - Gun Permits Colonna v Pennsville
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Fax) 732-572-0030 website:www.njlaws.com
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-3742-08T1
TOWNSHIP OF PENNSVILLE,
PENNSVILLE TOWNSHIP POLICE
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
Glen L. Schemanski, attorney for appellant.
Powell, Birchmeier & Powell, attorneys for
respondents (James R. Birchmeier, on the
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
local government.1 We find no basis to disturb the grant of
summary judgment in favor of defendants and therefore we affirm.
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
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.
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.
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
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
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."
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