Tuesday, March 02, 2010

Lawyer Arrested in His Home Claims Civil Rights Breach

On a wintry evening two years ago, Petit-Clair was about to take a shower in his home in an over-55 community in Brick Township, N.J., when officers with drawn guns barged in. They had seen suspicious signs that suggested a burglar who had been plundering homes in the neighborhood was inside the house. Half-naked, but armed with a pistol, the 68-year-old Petit-Clair engaged in a tense standoff in the darkened house until he could see that one of the intruders was a K-9 officer. Later he was led away in handcuffs and charged with making a terroristic threat and possessing an illegal rifle accessory.

A judge dismissed the charges two months later. It was all a mistake.

Then it was the police officers' turn to squirm. Petit-Clair sued eight of them in federal court, alleging that his civil rights were violated, that police damaged parts of an expensive gun collection and that his thumb was injured by too-tight handcuffs. Now it's up to U.S. District Judge Joel Pisano in Trenton, N.J., to decide summary judgment motions by the defense that say the police acted reasonably in what turned out to be an action against an innocent man.

Petit-Clair was well-known in government circles in Essex County during his years in the Newark Corporation Counsel's Office, as an attorney for the Johnson-Nixon-era Model Cities Program and as counsel to the Essex County Educational Services Commission until the mid-1990s. He also is an avid gunsmith and collector of weaponry, and the client list of his solo practice in Brick includes the Shore Shot Pistol Range in Lakewood, N.J.

At the time of the incident at Petit-Claire's house, Brick was in the throes of a burglary scare that had residents on edge. Break-ins at a number of homes, particularly in adult communities, had prompted robo-calls from the police department warning people to lock their doors lest the thief, dubbed the "senior burglar," claim another victim.

Petit Claire's lawyer, Louis Barbone of Jacobs & Barbone in Atlantic City, N.J., did not return a call on Wednesday, but here's what happened according to the complaint he filed in November 2008 in Petit-Clair v. Brick Township, 08-5450.

Around 6 p.m. on Jan. 11, 2008, Petit-Clair was getting ready for sport shooting the next day by packing up some guns for transport, and he was about to take a shower when he heard a commotion. An intruder had entered through a rear door and was swinging a flashlight at Petit-Clair's snarling German shepherd. Could it be the burglar that homeowners were being warned about? "Get out," Petit-Clair shouted. The response was, "Call off your dog or I'll shoot." Petit-Clair ran into his bedroom, picked up a pistol and yelled, "I'm armed, get out or I'll shoot."

Finally, Petit-Clair peered around a corner into his living room and noticed another man and saw that he was a K-9 officer with a dog of his own. Petit-Clair put down his handgun and was arrested.

He spent two hours in his driveway, covered only by a t-shirt and bathrobe, while officers began a search of his house. He was taken to Kimball Hospital's psychiatric ward for evaluation. He was found to be mentally fit but was charged with the indictable offenses of possession of a large capacity magazine and making terroristic threats -- both of which were administratively dismissed two months later.

The federal-court suit says the officers violated his constitutional rights, falsely arrested him and caused him emotional distress, financial losses and violation of his privacy.

In motions for summary judgment on behalf of the town and the officers filed this year, the defense argues the events of that night gave the officers probable cause to enter the house and to arrest Petit-Clair. They also argue that the officers are protected by qualified immunity from suits arising from the acts of public officials.

According to a defense brief, Patrolman Ronald Braem was patrolling the wood line behind Petit-Clair's house in a community hit several times by the "senior burglar." Braem noticed suspicious tire tracks and observed the glass insert from a storm door on the rear porch of Petit-Claire's house was on the ground, there was broken glass nearby and the door was partially opened. Breaking in through rear glass doors was the senior burglar's modus operandi, and Braem concluded he might have caught the criminal in the act, the brief says.

Officer Jeffery Lempicki thought so, too. Peering in through the window, it looked to him like the house had been ransacked and a cache of weapons was visible. "As soon as Officer Lempicki entered the plaintiff's residence, he was approached by a subject screaming, 'get out, I have a gun.' The plaintiff was holding a silver handgun and officer Lempicki kept screaming at him to 'drop the gun. Brick Police, drop the gun.' However the plaintiff was yelling 'get out of my house, I don't care who you are, get out I am going to shoot you,'" the brief says.

After Petit-Clair came out with his hands up, the officers looked around the house. The brief says, "It appeared to have been ransacked -- guns, weapon parts, bullets, and gunpowder were strewn around the residence within plain view. Also in plain view were rifles and high capacity magazines."

The defense says the signs clearly pointed to a burglary in progress and gave the officers reason to enter the premises. And they acted reasonably in subduing a half-naked man with a handgun in a house in great disarray with guns strewn around, the briefs say. As it turned out, Petit-Clair had the correct papers that allowed him to possess the guns and the disputed magazine under New Jersey law.

While Petit-Clair has not filed replies to the summary judgment motions and is not commenting, pleadings suggest he is prepared to cite evidence that reasonable police professionals wouldn't have acted as the Brick police did.

A police expert for the plaintiff gave evidence that officers who believe a burglary is in progress don't barge into a house until making sure there are no potential hostages inside, particularly if there are two cars in the driveway, as there were at Petit-Claire's that night. And by Petit-Claire's reckoning, once the police officers realized he was the homeowner, they should have backed off, not arrested him.

Original report here

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