Brett T. Duffy v. the Absecon Police Department

CourtNew Jersey Superior Court Appellate Division
DecidedJuly 30, 2025
DocketA-1453-23
StatusUnpublished

This text of Brett T. Duffy v. the Absecon Police Department (Brett T. Duffy v. the Absecon Police Department) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brett T. Duffy v. the Absecon Police Department, (N.J. Ct. App. 2025).

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1453-23

BRETT T. DUFFY,

Plaintiff-Appellant,

v.

THE ABSECON POLICE DEPARTMENT, THE CITY OF ABSECON, former ABSECON CHIEF OF POLICE DAVID RISLEY, ABSECON MAYOR JOHN ARMSTRONG, ABSECON OFFICER CHRISTOPHER CALVILEER, THE OFFICE OF THE PROSECUTOR OF ATLANTIC COUNTY, OFFICE OF THE ATTORNEY GENERAL OF NEW JERSEY, COUNTY OF ATLANTIC, THE ATLANTIC COUNTY SHERIFF'S OFFICE, VICINAGE I OF SUPERIOR COURT, THE NEW JERSEY ADMINISTRATIVE OFFICE OF THE COURTS, JUDGES JULIO MENDEZ, A.J.S.C., MICHAEL J. BLEE, J.A.D., ACTING AOC ADMINISTRATIVE DIRECTOR, and THE STATE OF NEW JERSEY,

Defendants-Respondents. _______________________________

Argued June 3, 2025 – Decided July 30, 2025

Before Judges Gummer, Berdote Byrne, and Jablonski.

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Docket No. L-0480-16.

Thomas B. Duffy argued the cause for appellant (Duffy Law Group, attorneys; Thomas B. Duffy, on the briefs).

Vanessa E. James argued the cause for respondents Absecon Police Department, City of Absecon, former Absecon Chief of Police David Risley, Absecon Mayor John Armstrong, and Absecon Police Officer Christopher Cavileer (Barker, Gelfand, James & Sarvas, PC, attorneys; Vanessa E. James, on the brief).

Elizabeth Merrill, Deputy Attorney General, argued the cause for respondents Hon. Michael J. Blee, J.A.D., Hon. Julio L. Mendez, A.J.S.C, Superior Court of New Jersey, Vicinage I, Administrative Office of the Courts, Atlantic County Prosecutor's Office, Office of the Attorney General, and State of New Jersey (Matthew J. Platkin, Attorney General, attorney; Sookie Bae-Park, Assistant Attorney General, of counsel; Elizabeth Merrill, Deputy Attorney General, on the brief).

PER CURIAM

Plaintiff appeals orders dated April 1, 2021, and May 25, 2023 denying

his motions for leave to file an amended complaint and orders dated May 26,

2023, and July 10, 2023, granting defendants' motions to dismiss the complaint

A-1453-23 2 with prejudice.1 This is the second time we address this matter on appeal, as we

previously remanded plaintiff's case to the trial court because plaintiff had

improvidently appealed the April 1, 2021 order, which was interlocutory. Duffy

v. Absecon Police Dep't, No. A-2611-20 (App. Div. Feb. 28, 2023) (slip op. at

6-7). On our remand, the trial court dismissed plaintiff's complaint with

prejudice and denied his cross-motion to further amend his complaint. We

affirm the denial of plaintiff's motion for leave to amend due to the futility of

plaintiff's legal claims, despite his numerous opportunities and attempts to

amend his complaint, and affirm, in part, the trial court's dismissal of plaintiff's

complaint, but conclude the trial court should have dismissed the complaint

without prejudice as plaintiff has pled facts that may suggest the fundament of

a cause for a civil rights claim involving a warrantless search of his vehicle.

I.

Because these claims have not advanced beyond the pleading stage, we

consider all alleged facts from plaintiff's complaint as true, as we must when

determining whether a motion to dismiss has been correctly granted.

1 Plaintiff identified several other orders in his second amended notice of appeal. However, the focus of plaintiff's merits brief is on these orders dismissing the complaint and denying the motions for leave to amend. "An issue that is not briefed is deemed waived upon appeal." N.J. Dep't of Env't Prot. v. Alloway Twp., 438 N.J. Super. 501, 505 n.2 (App. Div. 2015). A-1453-23 3 Sparroween, LLC v. Township of West Caldwell, 452 N.J. Super. 329, 339

(App. Div. 2017).

Plaintiff, who had been previously diagnosed with Asperger's syndrome, 2

maintains that on April 8, 2014, when he was twenty-one-year-old, he completed

and attempted to file a firearm purchaser identification card ("FPIC")

application form but was advised he did not need an FPIC nor a hunting license

for a pellet gun. On April 17, 2014, plaintiff fired his pellet gun into a marsh

area next to Absecon Creek. Plaintiff and an unnamed, unknown third person

who is not party to this litigation engaged in a verbal altercation about plaintiff

firing his pellet gun into the marsh. Plaintiff then unloaded the pellet gun and

stowed it in a case in the trunk of his car with the trigger in a locked position.

Plaintiff then drove to a shooting range but was pulled over by Absecon

police. Plaintiff immediately asked the police to call his father, who is a lawyer

2 In 2013, Asperger's syndrome was removed from its own distinct classification and replaced with a general diagnosis of scalable severity of Autism Spectrum Disorder, which can manifest with a diverse array of symptoms and behaviors. See Nat'l Inst. of Child Health and Human Dev., About Autism, Nat'l Inst. of Mental Health, https://www.nichd.nih.gov/health/topics/autism/conditioninfo (last visited July 8, 2025); Autism Spectrum Disorder, Health, and Education, https://www.nimh.nih.gov/health/topics/autism-spectrum-disorders- asd/index.shtml (last visited July 8, 2025). There is no evidence in the record that plaintiff has been deemed incompetent, and no guardianship order was provided as part of the record on appeal.

A-1453-23 4 licensed to practice law in New Jersey and is representing him in this matter.

Police arrested plaintiff without calling his father. Plaintiff alleges many aspects

of his arrest were improper, including the police unsheathing a machete in his

vehicle, searching his vehicle without his consent, failing to issue Miranda3

warnings, and denying him his right to counsel.

Plaintiff alleges that while he was at the Absecon police station, he was

denied his anxiety medication and again denied contact with his father, with

officers allegedly telling him, "your father says 'you're on your own.'" After

this, plaintiff attempted to commit suicide in his holding cell by hanging himself

with a hooded sweatshirt. Absecon police discovered him in the process,

prevented him from carrying out the act, and transported him to the hospital.

The crisis officer told plaintiff he had to go to the psychiatric intervention

program unit in Atlantic City.

Plaintiff alleges he was treated at the hospital with various psychiatric

medications and improperly questioned by police while under the influence of

medication. He also alleges Absecon police refused to allow hospital personnel

to contact his father. Plaintiff alleges at some point the officers unlawfully

brought him back to the police station before he was medically discharged.

3 Miranda v. Arizona, 384 U.S. 436 (1966). A-1453-23 5 Although he alleges police refused to contact his father, his father had learned

of his arrest and was waiting at the police station when the police returned and,

according to plaintiff, he was kept from his father for another forty minutes.

Plaintiff also claims while the arresting officer was gathering paperwork to

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