                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-2-2005

Miller v. State of NJ
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3502




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                                               NOT PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT


                    No. 04-3502




                STEPHEN MILLER,

                                  Appellant

                          v.

           STATE OF NEW JERSEY;
 OFFICE OF THE PROSECUTOR-UNION COUNTY;
      DEBRA CANNELLA; LAURA HOOK;
 OFFICE OF THE PROSECUTOR-ESSEX COUNTY


     Appeal from the United States District Court
            for the District of New Jersey
            (D.C. Civil No. 02-cv-06150)
         District Judge: Faith S. Hochberg


     Submitted Under Third Circuit LAR 34.1(a)
                  June 29, 2005

Before: ROTH, RENDELL and BARRY, Circuit Judges.

               (Filed: August 2, 2005)




            OPINION OF THE COURT
RENDELL, Circuit Judge.

                         I. Factual and Procedural Background

       Stephen R. Miller appeals the District Court’s grant of summary judgment against

him on his complaints against two Assistant Prosecutors, the Essex County and Union

County Prosecutor’s Offices, and the State of New Jersey (collectively “Defendants”).

We will affirm.

       Miller was an Essex County Sheriff’s Detective from 1982 until his resignation in

2002. In March 1999, Miller’s then girlfriend, Pamela Feiler, filed a domestic violence

complaint against him with the Clark Police Department in Union County, New Jersey.

Two Clark Police Detectives conducted an investigation into the incident, which resulted

in Miller being charged with harassment, criminal mischief, and domestic violence.

Pursuant to the New Jersey Attorney General’s Guidelines governing the conduct of law

enforcement officers involved in domestic violence incidents, Assistant Union County

Prosecutor Laura Hook prohibited Miller from carrying a firearm while off-duty until

Hook completed an investigation into his fitness for duty. In April 1999, Feiler informed

Hook that she no longer wished to pursue the domestic violence matter; accordingly, the

complaint against Miller was dismissed and all restrictions related to his ability to carry

firearms were removed. As a result of what Miller claims were “aggressive and unlawful

police tactics by the Clark Police,” he brought a civil claim against the detectives who

conducted the domestic violence investigation.



                                              2
       Six months later, Debra Stubaus, Miller’s other girlfriend, lodged her own

domestic violence complaint against him with the Essex County Prosecutor’s Office.

This complaint was dismissed when Stubaus refused to appear in court due to her fear of

“Det[ective] Miller and his attorney.” Again, the Attorney General’s Guidelines required

Miller to turn in his service weapon and prohibited him from carrying any weapon while

off-duty. As a result of the domestic violence complaint, Essex County Assistant

Prosecutor Debra Cannella initiated an investigation into Miller’s fitness for duty and

whether it would be appropriate to permit him to carry a firearm while off-duty. While

Cannella conducted her investigation, she reinstated Miller’s firearm privileges in part by

allowing him to carry his service weapon while on-duty, but required that he turn it in to

his supervisor upon completing each patrol shift. Cannella sought Hook’s view about this

and any files. Cannella consequently recommended that Miller continue to be permitted

to carry his service weapon only while on-duty and that his off-duty privileges be

reinstated conditioned upon his successful completion of domestic violence counseling.

Miller refused to participate in the counseling program and voluntarily resigned from the

Sheriff’s Office in 2002.

       On November 12, 2002, Miller filed a complaint with the New Jersey Superior

Court alleging that the restrictions imposed on his possession of his service weapon

violated 42 U.S.C. § 1983, his substantive and procedural due process rights under the

Fourteenth Amendment, the New Jersey Law Against Discrimination, and the common



                                             3
law right to fundamental fairness. The Defendants removed the case to the United States

District Court for the District of New Jersey and all Defendants moved for summary

judgment. The District Court granted the motions for summary judgment. Miller moved

for reconsideration on July 23, 2004; the District Court denied this motion. Miller now

appeals.

                         II. Jurisdiction and Standard of Review

       The District Court had jurisdiction over Miller’s federal claims pursuant to 42

U.S.C. § 1983 and supplemental jurisdiction over Miller’s state law claims pursuant to

28 U.S.C. § 1367. We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. We

exercise de novo review over a District Court’s grant of summary judgment.

                                       III. Discussion

       Miller’s cause of action is premised on his belief that Prosecutors and Sheriff’s

Deputies from Union and Essex Counties conspired to restrict and, in doing so, to violate,

what Appellant believes is his absolute right “under the Second Amendment to possess a

firearm [while] off-duty since it is reasonably related to his service in the state-sanctioned

militia,” i.e., the Essex County Sheriff’s Office. (Appellant Br. at 22.) In response to

Miller’s complaint, the Defendants raised the affirmative defense of qualified immunity.

The District Court described the relevant factors a court must evaluate when presented

with a defense of qualified immunity:




                                              4
              a government official sued for damages in an individual
              capacity pursuant to 42 U.S.C. § 1983 is entitled to qualified
              immunity unless the plaintiff shows that the official violated
              “clearly established federal statutory or Constitutional rights
              of which a reasonable person would have known.” As a
              threshold inquiry in a qualified immunity analysis, the court
              must consider whether the plaintiff’s allegations, if assumed
              to be true, establish a [C]onstitutional violation.

(Dist. Ct. Op. at 4 (citations omitted).) In attempting to prove that Defendants violated a

clearly established Constitutional right, Miller analogizes the role a Sheriff’s Deputy

plays as a law enforcement officer to that of a member of a state militia in times of crisis.

Miller points to N.J.S.A. § 38A:1-1(a), (g) & (h) defining militia as “all the military . . .

land, air and sea forces established by State or Federal laws, as applicable.” 1 In relation

to this statutorily constructed authority conferred upon the Governor to call on members

of the state militia, i.e., the National Guard or Army, in times of crisis, Miller urges his

role in the post-9/11 world to be analogous to that of a militiaman.

       Miller’s interpretation of the Second Amendment is unpersuasive. See generally,

United States v. Miller, 307 U.S. 174 (1939) (holding that the defendant could not avail

himself of Second Amendment protection because his weapon possession bore no

reasonable relationship to the preservation of a well regulated militia.) While local law

enforcement officers undoubtedly play a critical role in combating future acts of


  1
   “Militia” means all military forces of this State, whether organized, or active or
inactive. N.J.S.A. 38A:1-1(a). “Military” means any part of or all of the armed forces.
N.J.S.A. 38A:1-1(h). “Armed forces” means any land, air and sea forces established by
State or Federal laws, as applicable. N.J.S.A. 38A:1-1(g).

                                               5
terrorism, the Essex County Sheriff’s Office is clearly not a militia for purposes of

satisfying the first prong of a qualified immunity analysis, i.e., a clearly established

Constitutional right protected by the Second Amendment.

       In relation to Miller’s NJLAD claim, it appears that the District Court incorrectly

granted summary judgment on the basis of qualified immunity. In a footnote, the District

Court stated that “it should be noted that the qualified immunity defense also applies to

the plaintiff’s claim that the defendant’s reliance and application of the non-gender

neutral Assembly Task Force Domestic Violence training materials violated the NJLAD.”

(Dist. Ct. Op. at 8.) However, qualified immunity is inapplicable to a state law cause of

action. See Rodriguez v. Torres, 60 F. Supp. 2d 334, 354 (D.N.J. 1999) (“A qualified

immunity analysis . . . does not apply to [a] pendent state claim.”) Although summary

judgment may have been incorrectly granted based on qualified immunity, under the

appropriate analysis of this issue, Miller has not met his burden of establishing a prima

facie case of employment discrimination under NJLAD.

       Miller’s NJLAD claim alleging reverse gender discrimination is presented under

the theory of disparate impact. In such a case, a plaintiff must demonstrate “background

circumstances that support the suspicion that the defendant is that unusual employer who

discriminates against the majority.” Murphy v. Hous. Auth. and Urban Redev. Agency,

32 F. Supp. 2d 753, 764-65 (D.N.J. 1999), aff’d, 208 F.3d 206 (3d Cir. 2000). In

Murphy, the District Court went on to explain that “the types of ‘background



                                               6
circumstances’ which might support an inference of reverse discrimination fall into two

categories: (1) evidence indicating that the particular employer at issue has some reason

or inclination to invidiously discriminate against the majority; and (2) evidence indicating

that there is something ‘fishy’ about the facts of the case at hand that raises an inference

of discrimination.” Id. at 764 (citations omitted).

       The grounds Miller presents for finding Defendants liable for employment

discrimination under the NJLAD are less than persuasive. In his disparate impact claim,

Miller alleges that Essex County used discriminatory “training material [that]

summarize[d] domestic violence as a wheel with several spokes in it[,] wherein each

spoke represents power and control and consistently characterizes the male exercising

power and control over her, the victim.” (Appellant Br. at 42 (internal quotation marks

omitted).) But even if those materials were deemed discriminatory - which we do not

decide - they, together with Defendants’ actions in restricting Appellant’s off-duty

firearm privileges due to two separate domestic violence complaints, hardly support the

inference that the Defendants were discriminating against Miller based on his gender.

Cannella received a complaint of domestic violence naming Miller and, as instructed by

the New Jersey Attorney General’s Guidelines, restricted Miller’s firearm privileges

pending her investigation as to his fitness to carry a firearm. In light of two domestic

violence incidents, Cannella made the determination that Miller should complete a

domestic violence counseling course prior to his off-duty firearm privileges being fully



                                              7
reinstated; this was a determination well within her discretion as the County official

charged with evaluating firearm seizures from law enforcement officers accused of

domestic violence. No inference of discriminatory animus can be drawn from this

conduct.

         Miller also alleged that the restrictions placed upon him violated the common law

doctrine of fundamental fairness. The New Jersey common law doctrine of fundamental

fairness is, according to the New Jersey Supreme Court, “a doctrine to be sparingly

applied . . . . It is appropriately applied in those rare cases where not to do so will subject

the defendant to oppression, harassment, or egregious deprivation.” Doe v. Poritz, 142

N.J. 1, 108 (1995). Miller clearly is not faced with a consequence of such magnitude.

         Likewise, Miller’s contention that the manner in which Cannella conducted her

investigation into Miller’s fitness for duty violated the Due Process Clause of the

Fourteenth Amendment is unpersuasive. Miller’s argument that his property right to

employment was violated fails; the conditioning of his firearm privileges had no effect on

his employment status and he voluntarily resigned. Also, Miller cites no caselaw that

supports the proposition that there is a right to procedural due process that would be

implicated by the County Prosecutor’s investigation conducted here, and we are unaware

of any support for such a right under these circumstances.

         Therefore, for the reasons stated above, we will affirm the order of the District

Court.



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