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Illustrating the potential dangers New Jersey Public Safety Officers encounter on a daily basis, gunfire erupted as a police tactical squad executed a no-knock search warrant in Lakewood on September 23, 2009, leaving four officers and a suspect shot. The incident was reported by the Associated Press in an article on September 24, 2009.  

One Lakewood police officer who was shot in the face and another who was shot in the foot were taken to the hospital, Deputy Chief Michael Mohel of the Ocean County Prosecutor’s Office said. Two others sustained minor injuries when they were struck in their bulletproof vests. The suspect, Jamie Gonzalez, 39, was taken to this hospital with multiple gunshot wounds. There was no word on their conditions and the names of the officers have not been released.  

Police had planned to search the home for narcotics and weapons. The shooting comes more than two months after Jersey City Police Detective Marc DiNardo was shot in the face storming an apartment where two armed robbery suspects were holed up. Four other officers were wounded in the gun battle and the suspects were killed. DiNardo was taken off life support and pronounced dead one day before his 38^th birthday.   

To view the article in its entirety, please click on the following link.

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On July 31, 2009, the Appellate Division decided In the Matter of Eddie Gonzalez, Docket No.: A-0644-07T2. In the case, Eddie Gonzalez, a Newark Police Officer, appealed from a final decision of the Merit System Board (“Board”) adopting the findings of fact and conclusions of an Administrative Law Judge (“ALJ”), concluding that Gonzalez engaged in conduct unbecoming a public employee and violating certain Newark Police Department (“Department”) rules and regulations. The Board adopted the ALJ’s recommendation and imposed a six-month suspension.

In June 2003, Richard Diaz lived in Newark, and Gonzalez was his next-door neighbor. Diaz and Gonzalez were involved in a dispute, which resulted in Diaz filing a harassment claim against Gonzalez alleging that Gonzalez kissed Diaz’s minor daughter. On June 9, 2003, Newark Police Officer Philip Turzani was assigned as a dispatcher for the Department. Near the end of his 6:00 a.m. to 2:00 p.m. shift, he received a call from Gonzalez asking Turzani if he would like Gonzalez to bring him coffee. 

Gonzalez then arrived at the Newark Police and Fire Public Safety Communications Center (“Center”) at approximately 1:30 p.m., in plainclothes, and requested that Turzani run a license plate number through the Department’s computer system. Turzani asked Gonzalez if his purposes for running the plate were “legal,” and Gonzalez responded that his neighbor was trying to obtain a job and wanted to check his driving history. Turzani admitted to running the license plate, but could not recall the name of the individual connected with the search. Turzani stated that Gonzalez viewed the screen with the results on it.

Upon returning home from vacation on June 19, 2003, Diaz received twelve motor vehicle summonses in the mail. The summonses were allegedly issued by Officer Edward Sculthorpe of the Department on June 9, 2003 at approximately 2:00 p.m. Diaz challenged the summonses, claiming that he had not been stopped by a Newark police officer on that date. At the court hearing regarding the summonses, Officer Sculthorpe denied writing them and they were dismissed.

The summonses prompted a further investigation as on June 25, 2003, Diaz filed an Internal Affairs complaint with the Department against Gonzalez. In response to the complaint, Captain Robert Sbaraglio of the Department spoke with Sculthorpe, who confirmed that he had not written the summonses. Following the dismissal of the summonses, Sbaraglio conducted a preliminary investigation and identified the summons book that had been issued to Sculthorpe as the source of the summonses. Sbaraglio then had both Gonzalez and Sculthorpe submit administrative reports regarding the summonses. Both denied issuing the summonses.

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U.S District Court Judge Frieda L. Wolfson dismissed a lawsuit by a group of New Jersey State Troopers seeking to overturn the ban on allowing them to practice law while being employed by the State Police. The decision was filed on July 9, 2009.

“If the troopers were to prevail on this argument, state agencies would be precluded from holding their public employees, specifically attorneys, to a higher ethical standard than those imposed on private attorneys,” Judge Wolfson wrote in her decision. 

Two trooper unions, and twenty one (21) troopers working as lawyers, had argued the State was preventing troopers from pursuing another profession. The State said representing clients and enforcing the law presents an inherent conflict of interest, prohibited under a 2007 revision of the State’s ethics code.

Frederick J. Gordon, president of the Non-Commissioned Officers Association, said they hoped troopers already practicing law could be exempted. “We’re disappointed in the outcome,” he said. “I don’t know what our next step is.”

The unions argued that troopers’ legal work, such as drafting wills or helping with real estate closings, does not conflict with their criminal justice work. However, the State argued that even basic legal tasks could cause problems.”

“By way of example, if a trooper is retained to draft a will for a client, and happens to come across nefarious, possibly illegal, activity during his review of his client’s confidential personal records, the trooper would find himself in an unenviable position, obligated by his duties as an officer of the law to report the crime while simultaneously constrained by his oath as an attorney to protect his client’s confidences,” Judge Wolfson’s decision explained.

The debate centered on a 2007 change to the State’s ethics code. The previous version prohibited almost all attorneys in the department from practicing law outside their job. The revision extended that prohibition to state troopers.

David Wald, spokesman for Attorney General Anne Milgram, praised Judge Wolfson’s decision. “In rejecting the state troopers’ challenge to that rule, Judge Wolfson recognized the potential for conflicts between a private attorneys’ responsibilities to their clients and the department’s law enforcement responsibilities,” he said. “She concluded that the prohibition on the private practice of law by state troopers was an appropriate means to preserve the public trust.”

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On May 19, 2009, the Appellate Division decided State of New Jersey v. Yusef Gethers, Docket No.: A-5323-06T4. By way of background, on March 24, 2005, a Union County grand jury returned an indictment charging Defendant, Yusef Gethers, with second-degree certain persons not to possess a weapon, N.J.S.A. 2C:39-7(b)(1). On the same date, a Union County grand jury returned an indictment charging Defendant with third-degree unlawful possession of a weapon, a handgun, N.J.S.A. 2C:39-5(b) (count one), and fourth-degree possession of a prohibited device, hollow point bullets, N.J.S.A. 2C:39-3(f). 

Following denial of his motion to suppress evidence, Defendant pled guilty to count one of the indictment, third-degree unlawful possession of a weapon. Pursuant to a plea bargain reached with the State, Defendant was sentence to five (5) years probation, conditioned upon 364 days of house arrest. The trial court dismissed the remaining charges under the indictments as well as an outstanding municipal court warrant. The trial court also imposed the appropriate fees and penalties. Thereafter, this appeal ensued when Defendant appealed the suppression ruling.

In this case, the Appellate Division determined the motion to suppress evidence obtained in a vehicular search, specifically, a gun found in a backpack not in plain view, was improperly denied by the trial judge. The Court found the State did not carry its burden of demonstrating a recognized exception to the warrant requirement where: (1) both occupants were outside the car and did not have access to the backpack; (2) there was no possibility they would leave the area; (3) the officers’ conduct did not indicate a belief the occupants were armed and dangerous; (4) there was no evidence of accomplices who might have come onto the scene or other persons who had access to the car destroying or disposing of the evidence or moving the car; (5) the car was parked in a residential driveway so there was no issue of traffic obstruction; (6) the ratio of officers to suspects was 4-to-2; and (7) the Defendant was in a wheelchair. Consequently, the Court reversed the trial judge’s ruling and remanded the case back to the trial court.

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On March 20, 2009, the United States District Court for the District of New Jersey decided the case of Wade v. Colaner. In the case, plaintiff, a Tinton Falls police officer, was pulled over by New Jersey State Troopers for speeding. Plaintiff was subsequently charged with careless driving, obstruction of administration of law, and resisting arrest. On account of this incident, he was suspended from his position of employment.

Ultimately, plaintiff brought this action alleging excessive force and deliberate indifference. Defendants counterclaimed against Plaintiff for reimbursement of the wages paid to Plaintiff during his suspension and moved for summary judgment as to Plaintiff’s other claims. The Court denied Defendants’ motion to dismiss Plaintiff’s excessive force claim, but dismissed Plaintiff’s deliberate indifference claim. Moreover, the Court granted the Tinton Falls Defendants’ motion for summary judgment finding that Plaintiff was not entitled to a pre-suspension hearing and also granted the motion for summary judgment for reimbursement of the wages paid to Plaintiff during his suspension.

This case shows that a public safety officer who is suspended from his or her employment and is continuing to receive their wages during the period of suspension potentially may have to reimburse their employer for the wages they have received. As a result, public safety officers should be conscious of this possibility in the event they are suspended from employment.

A similar type concept was the subject of previous posts to this blog regarding the 180 day bill recently signed into law. As you will recall, the bill, in essence, allows certain law enforcement officers and firefighters to regain pay status when appeals of termination are not resolved within 180 days. Under this bill, if an officer and/or firefighter has been receiving his/her base salary after expiration of the 180 day period and he/she ultimately loses their appeal, the officer and/or firefighter will be required to reimburse the employing agency of department all of the base salary received during the period of appeal. Certain rules of law such as these make it imperative for public safety officers to be informed regarding all the potential consequences in the event they are targeted for suspension and/or removal.   

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 On March 20, 2009, the Appellate Division decided In the Matter of Larry Martin, Docket No.: A-3271-07T3. In the case, Larry Martin, a police officer with the City of Jersey City, appealed from a disciplinary penalty imposed upon him by the Merit System Board.

Martin, who had been a member of the Jersey City Police Department for 22 years, failed to attend mandatory weapons qualification training for a new service weapon, a Glock .45 caliber handgun, on May 10, 2005. As a result, he was charged with “disobedience to a lawful order” and “absence without leave” in violation of the Police Department’s rules. After holding a hearing, Jersey City sustained the charges and imposed an eight-day loss of vacation days. Martin appealed to the Board.

The matter was referred to an administrative law judge (“ALJ”) who conducted a hearing. The ALJ, in his decision, found that Martin had been given a direct order by his superior officer to attend the training session and failed to do so. The ALJ sustained the charges and the disciplinary penalty. Neither party filed exceptions and the matter went to the Merit System Board for a final decision.

After conducting its independent review of the record, the Merit System Board agreed the charges had been proven. However, the Board increased the penalty to a 120 day suspension based on Martin’s previous major disciplinary history. In reaching this conclusion, the Board considered the seriousness of the underlying incident, the concept of progressive discipline, and Martin’s prior record. This appeal ensued. 

On appeal, Martin contended that the Board’s decision to increase the penalty was arbitrary, capricious, and unreasonable and unsupported by the record. The Appellate Division disagreed and affirmed the Board’s determination. The Court found no basis to overturn the decision and noted that Martin had defied a direct order of his superior officer, on a very important issue, namely firearms training. The Court further noted that Martin had a prior history of four substantial disciplinary sanctions. Based on the nature of the underlying infraction, Martin’s past history of disciplinary sanctions, and the Board’s policy of progressive discipline, the Court did not find the increase in the penalty to be arbitrary, capricious, or unreasonable. 

The case illustrates the principle that an agency can increase the penalty imposed upon a public safety officer in appealing a disciplinary determination. Many times, the increase will be upheld if the agency, such as the Civil Service Commission, adequately considered an officer’s disciplinary history, the nature of the underlying matter, and the policy of progressive discipline.

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