# Christopher J. Gramiccioni v. Department of Law and Public Safety (083198)(Statewide)

> Supreme Court of New Jersey · July 28, 2020

URL: https://www.frixlaw.com/law-library/cases/4551471

## Case

- **Court:** Supreme Court of New Jersey
- **Decided:** July 28, 2020
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

SYLLABUS

This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the
Clerk for the convenience of the reader. It has been neither reviewed nor approved by the
Court. In the interest of brevity, portions of an opinion may not have been summarized.

Christopher J. Gramiccioni v. Department of Law and Public Safety
(A-21-19) (083198)

Argued March 31, 2020 -- Decided July 28, 2020

LaVECCHIA, J., writing for the Court.

In these consolidated appeals, the Court examines whether the Department of
Law and Public Safety’s (Department) four final agency determinations regarding
defense and indemnification for federal civil rights claims filed against the
Monmouth County Prosecutor’s Office and its employees were in keeping with
Wright v. State, 169 N.J. 422 (2001).

This case stems from the 2015 murder of Tamara Wilson-Seidle by her ex-
husband, Philip Seidle, an off-duty sergeant with the Neptune Township Police
Department, using his service weapon. Wilson-Seidle’s estate and survivors filed a
complaint under 42 U.S.C. § 1983 in federal court, naming several defendants,
including the Monmouth County Prosecutor’s Office (MCPO) and Monmouth
County Prosecutor Christopher Gramiccioni, and an amended pleading that added as
defendants three former MCPO assistant prosecutors. The Complaint alleged that
defendants were aware of Seidle’s history of domestic violence and brought claims
for damages based on assertions that defendants knew Seidle was unfit for duty,
failed to properly investigate Wilson-Seidle’s domestic abuse complaints,
improperly returned Seidle’s weapon to him, and failed to seize it when it should
have been taken from him. Because the domestic violence that gave rise to this
matter involved a law enforcement officer, the MCPO defendants were subject to
certain duties pursuant to Attorney General Law Enforcement Directive No. 2000-3
(the Directive).

After the Complaint and the First Amended Complaint were filed, the MCPO
defendants sent written requests to the Office of the Attorney General requesting
representation and indemnification for any and all allegations against them pursuant
to Wright. In the first letter-decision, the Attorney General agreed to defend and
indemnify the MCPO defendants for allegations perceived to concern the MCPO’s
law enforcement functions, but declined to defend them for allegations that were
determined not to relate to the detection, investigation, arrest, or prosecution of
criminal defendants and, thus, to constitute merely administrative functions. In the
1
second letter, which addressed the Amended Complaint, the Attorney General
declined entirely to represent and indemnify the MCPO defendants, despite the
inclusion of several claims that the Attorney General’s first letter-determination had
already agreed to defend and indemnify. The Attorney General also declined to
defend and indemnify the MCPO defendants with respect to the Second Amended
Complaint and the Third Amended Complaint because the claims asserted therein
pertained to administrative functions.

The MCPO defendants appealed and the Appellate Division concluded that
the Attorney General properly differentiated between law enforcement and
administrative functions with respect to the original complaint but erred when not
consistently applying that approach to the subsequent complaints. The appellate
court found that compliance with the Directive was an administrative function not
subject to defense and indemnification. The Appellate Division remanded the matter
to the Law Division to determine the reimbursement due for the portion of costs
associated with defense of claims for which the Attorney General inconsistently
denied coverage.

The Court granted certification. 240 N.J. 65 (2019).

HELD: All claims related to the MCPO defendants’ acts or alleged omissions
associated with duties imposed by the Directive constitute state prosecutorial
functions. The Department’s parsing of the pleadings in this matter led to crabbed
determinations about the scope of law enforcement activity that are inconsistent with
the letter and purpose of Wright. The Court finds the Department’s four
determinations -- which reflect shifting and conflicting positions -- to be arbitrary
and unreasonable.

1. In Wright, the Court determined that county prosecutors occupy a “hybrid” role,
serving both the county and the State, and undertook the task of clarifying when the
State must defend and indemnify county prosecutors and their employees. 169 N.J.
455-56. The Wright Court held that the State could be held vicariously liable for the
tortious conduct of county prosecutors and their subordinates during their
investigation and enforcement of the State’s criminal laws, and further that the State
should be obligated to pay their defense costs and to indemnify them if their alleged
misconduct involved a State law enforcement function. Id. at 430. The Court
articulated two purposes advanced by its holding: it eliminated uncertainty for
county prosecutors as to whether defense and indemnification would be provided,
and it avoided the anomalous results that could occur based on the State’s potential
for vicarious liability for the same actions. Id. at 455-56. Importantly, that
reasoning supported the Court’s decision to put the State in control of the defense in
such settings. Id. at 456. Attempts to implement that holding -- and in particular its
exclusion of administrative functions from indemnification -- have given rise to a
2
number of disputes over the years. Cases in which courts correctly have found that
the State did not need to indemnify and defend county prosecutors have involved
internal operations of a prosecutor’s office. (pp. 23-30)

2. Applying those principles here, it appears that two categories of error plagued the
Attorney General’s approach to the requests for defense and indemnification. First,
the Attorney General, and the Appellate Division, did not give proper regard to the
nature of the Directive, which imposes on the county prosecutor numerous,
important discretionary decisions related to the removal and return of service
weapons by law enforcement officers within their jurisdiction. The prosecutor’s
office must offer training and supervision with respect to enforcement of the
Directive. The Court views that training and supervision, as well as the many
discretionary determinations the Directive assigns to the prosecutor, as part of the
State-delegated responsibility to enforce the law that the Attorney General has
entrusted to prosecutors, rather than as administrative duties that have been
exempted from State defense and indemnification in the past. The decisions of the
MCPO defendants who considered whether Seidle could be re-armed and then
remain armed were prosecutorial functions exercised on behalf of the State. As
such, those determinations, as well as the claims of improper training and
supervision of Neptune law enforcement with respect to implementation of the
Directive, were entitled to defense and indemnification by the State. (pp. 30-35)

3. The second error permeating the decisions under review is the manner in which
the Attorney General parsed each iteration of the complaint, scouring them
paragraph by paragraph, at times within a paragraph, to eliminate bases for defense
and indemnification. That crabbed approach toward the provision of defense and
indemnification is not in keeping with the thrust of Wright. The prosecutorial
function should be covered, and the State is given control over the whole defense to
ensure that it is not compromised by lack of coordination, or worse, inconsistency in
position. The Attorney General’s inconsistency in its review of these sequentially
filed complaints renders the decisions arbitrary and unreasonable. (pp. 35-36)

4. The Court agrees with the Appellate Division that on remand a trial court should
assess the reimbursement due to petitioners. (p. 36)

The judgment of the Appellate Division is REVERSED and this matter is
REMANDED to the Law Division for proceedings consistent with this opinion.

CHIEF JUSTICE RABNER and JUSTICES ALBIN, PATTERSON,
FERNANDEZ-VINA, SOLOMON, and TIMPONE join in JUSTICE
LaVECCHIA’s opinion.

3
SUPREME COURT OF NEW JERSEY
A-21 September Term 2019
083198

Christopher J. Gramiccioni,

Petitioner-Appellant,

v.

Department of Law and Public Safety,

Respondent-Respondent.
_______________________________________________________________

Gregory J. Schweers,
Jacquelynn F. Seely and
Richard E. Incremona,

Petitioners-Appellants,

v.

Department of Law and Public Safety,

Respondent-Respondent.
_____________________________________________________________

Monmouth County Prosecutor’s Office,
Christopher J. Gramiccioni,
Gregory J. Schweers,
Jacquelynn F. Seely, and
Richard E. Incremona,

Petitioners-Appellants,

v.

1
Department of Law and Public Safety,

Respondent-Respondent.

On certification to the Superior Court,
Appellate Division.

Argued Decided
March 31, 2020 July 28, 2020

Robyn B. Gigl argued the cause for appellants
(GluckWalrath, attorneys; Michael D. Fitzgerald, of
counsel, and Robyn B. Gigl and Victoria A. Flynn, of
counsel and on the briefs).

Daniel M. Vannella, Assistant Attorney General, argued
the cause for the respondent (Gurbir S. Grewal, Attorney
General, attorney; Melissa H. Raksa, Assistant Attorney
General, of counsel, and Daniel M. Vannella, on the
brief.)

Stephen C. Sayer, Cumberland County Assistant
Prosecutor, submitted a brief on behalf of amicus curiae
County Prosecutors Association of New Jersey (Francis
A. Koch, Sussex County Prosecutor, President, attorney;
Stephen C. Sayer, of counsel and on the brief).

JUSTICE LaVECCHIA delivered the opinion of the Court.

When federal civil rights claims were filed against the Monmouth

County Prosecutor’s Office and its employees, they sought defense and

indemnification by the State. The Department of Law and Public Safety (the

Department) conducted a per-paragraph and per-claim analysis of the

2
plaintiffs’ pleadings to determine which claims implicated law enforcement

activity -- and were accordingly entitled to State defense and

indemnification -- and which did not. In these consolidated appeals, we

examine whether the Department’s four final agency determinations regarding

indemnification in this matter -- one determination for the original complaint

and one for each of the three amended versions of the complaint -- were in

keeping with Wright v. State, 169 N.J. 422 (2001).

In Wright, this Court held that when county prosecutors and their

employees are involved in law enforcement functions under general State

supervisory authority, the State should bear the responsibility for defense and

indemnification for litigation generated by such activities. Id. at 456. The

Wright Court saw a two-fold purpose to its holding: ensuring defense and

indemnification coverage for law enforcement activities conducted by county

prosecutors; and avoiding anomalous results due to the State’s potential for

vicarious liability. Id. at 455-56. Accordingly, Wright put the State in full and

complete control of the defense in such settings. Id. at 456.

The Department’s parsing of the pleadings in this matter led to crabbed

determinations about the scope of law enforcement activity that are

inconsistent with the letter and purpose of Wright. And we find the

Department’s four determinations -- which reflect shifting and conflicting

3
positions -- to be arbitrary and unreasonable. Because the alleged acts and

omissions that gave rise to the suit against the members of the Prosecutor’s

Office were tied to their law enforcement responsibilities, as explained below,

we reverse and remand for the assessment of defense costs.

I.

A.

This case stems from a terrible tragedy: the July 16, 2015 murder of

Tamara Wilson-Seidle by her ex-husband, Philip Seidle, using his service

weapon. The following facts about that event are drawn from the pleadings

and related motion filings from the civil litigation that followed after Wilson-

Seidle’s death.

At the time of the murder, Philip Seidle was an off-duty sergeant with

the Neptune Township Police Department. The couple had married in 1990

and had nine children together, but their marriage was marred by domestic

violence. Wilson-Seidle reported several incidents of domestic abuse by

Seidle to the Neptune Township Police Department for two reasons: Neptune

Township is the town in which she lived, and Seidle was employed by the

Neptune Township Police Department. In 2012, Wilson-Seidle filed for

divorce, and Seidle moved out of the family home. However, after the couple

separated, Wilson-Seidle continued to make documented domestic violence or

4
other incident calls to Neptune Township law enforcement about harassment

and threats by Seidle.

As would later be alleged in the resulting federal civil action, Seidle had

a history of mental instability and anger management issues, and was unfit for

duty -- all of which defendants allegedly knew. There were at least six

domestic violence calls placed to the Neptune Township Police Department

either by Wilson-Seidle or Seidle himself, involving a slew of issues resulting

from the divorce, including Seidle’s attempts to violate a separation/custody

order, fights over visitation, and Seidle’s threatening, harassing, and

intimidating actions toward Wilson-Seidle.

As a result of one incident involving Wilson-Seidle, Seidle had his

firearm taken away from him in 2012 by the Neptune Township Police

Department and the Monmouth County Prosecutor because he was deemed

unfit for duty. Seidle’s weapon was returned to him about eleven months later,

despite questions about his continued instability. Seidle was disciplined again

in 2013, and was then again disciplined, reprimanded, and suspended for a

short period in 2014 because of a domestic violence incident involving

Wilson-Seidle.

As a result of Seidle’s various actions towards her, Wilson-Seidle

informed the Neptune Township Police Department in late 2014 of the abuse

5
and harassment she was experiencing. Instead of acting to remove Seidle’s

service and personal weapons due to Wilson-Seidle’s continued complaints,

the Neptune Township Police Department kept Seidle in its employ and

permitted him to have access to his service weapon. After Wilson-Seidle’s

2014 complaint, there was at least one more documented incident of alleged

domestic violence, approximately forty-five days before the fatal shooting.

Despite that incident report, Seidle remained employed and armed by the

Neptune Township Police Department.

While driving on the night of July 16, 2015, Wilson-Seidle received a

threatening telephone call from Seidle. Based on Seidle’s incredibly angry

demeanor during the call, Wilson-Seidle was frightened that he would kill her.

Wilson-Seidle notified a daughter of her fear and that Seidle was following her

car; her daughter immediately placed a call to 9-1-1. In the meantime, Seidle

began ramming his car into his ex-wife’s vehicle, ultimately forcing her to pull

her car to the side of the road. He exited his vehicle, pulled out his service

weapon, and began firing into the car at Wilson-Seidle.

Shortly after the first shots were fired, a younger daughter ran from

Seidle’s car to a nearby local law enforcement officer, who transmitted a

“shots fired” report. Several officers responded to the scene and, for a period

of about thirteen minutes, there was a standoff between Seidle and law

6
enforcement, during which Seidle reportedly placed a gun to his head and

threatened to kill himself. Wilson-Seidle died of the wounds inflicted by her

former husband that day. Seidle was taken into custody.

B.

After Wilson-Seidle’s death, her estate and survivors filed a complaint

under 42 U.S.C. § 1983 in federal court, which named as defendants Neptune

Township, the Neptune Township Police Department, the Monmouth County

Prosecutor’s Office (MCPO), and Monmouth County Prosecutor Christopher

Gramiccioni. Shortly thereafter, plaintiffs filed an amended pleading that

added as defendants three former MCPO assistant prosecutors: Gregory J.

Schweers, Jacqueline F. Seely, and Richard E. Incremon.

The Complaint alleged that defendants were aware of Seidle’s long and

well-documented history of domestic violence. Based on the assertions that

defendants knew Seidle was unfit for duty, failed to properly investigate

Wilson-Seidle’s domestic abuse complaints, improperly returned Seidle’s

weapon to him, and failed to seize it when it should have been taken from him,

plaintiffs brought claims for damages.

Our focus in this matter is on the request for defense and indemnification

of the damages claims against the prosecutor’s office defendants, who are

petitioners here. Those defendants were subject to certain duties pursuant to

7
an Attorney General Directive because the domestic violence that gave rise to

this matter involved a law enforcement officer.

Plaintiffs allege that the MCPO, County Prosecutor Gramiccioni, and the

individual prosecutor’s office defendants (collectively, the MCPO defendants)

were responsible for the

operation, management, supervision and control over
the investigation, and presentation of criminal matters
brought by the State against persons charged with
crimes, but who also ha[d] responsibility over
investigative and non-judicial or advocacy functions
including but not limited to the review of weapons
seizures and issues involving domestic violence
involving or relating to law enforcement officers and
the handling of domestic violence incidents as well as
determining the conditions under which weapons may
be seized or returned and oversight over the
reinstatement of weapons to an officer and/or
termination of officers and/or conditions of
employment with respect to the use of service and
personal weapons . . . .

Further, plaintiffs allege that those defendants were persons “who had

authority, control and supervision over Philip Seidle while he was employed

by Neptune and/or decisions and control over the seizure and return of

weapons and reinstatement of Seidle as well as determinations over conditions

involving Seidle’s use and control over weapons, including service weapons.”

8
Plaintiffs specifically assert that the MCPO defendants “failed to

properly supervise, monitor, train, retain and discipline . . . officers” in

connection with their handling of domestic violence and use of force, and that

they permitted Seidle to remain a law enforcement officer despite a well-

documented history of “mental instability, fitness for duty problems,

temperament, emotional and psychological problems requiring anger

management,” and a long and consistent history of domestic violence against

Wilson-Seidle and her children.

The Complaint and First Amended Complaint allege that Seidle was

disciplined and suspended in 2012 for cancelling a dispatch call from Wilson-

Seidle related to domestic violence and that Seidle was permitted to return to

work although defendants had full “knowledge of his anger problems and

psychological instability, along with known and continuing threats to [Wilson-

Seidle].” Seidle was again disciplined for performance-related problems in

2013, but was permitted to keep his weapons. Yet again in March 2014, Seidle

was disciplined, reprimanded, and suspended for harassing and threatening

Wilson-Seidle, and the MCPO defendants are alleged to have been put “on

notice of still more threats of physical harm, emotional outbursts, [and]

menacing and harassing behavior by Seidle” toward his ex-wife.

9
After the original Complaint was filed, and then again when the First

Amended Complaint was filed, written requests were sent to the Office of the

Attorney General, Department of Law and Public Safety, requesting

representation and indemnification of the MCPO defendants for any and all

allegations against them pursuant to Wright.

The Attorney General, on behalf of the Department, submitted a written

decision in response to each of the two requests. In his responses, the

Attorney General agreed to defend and indemnify the MCPO defendants for

allegations that the Attorney General perceived to concern the MCPO’s law

enforcement functions. However, the Attorney General declined to defend

defendants for allegations that were determined not to relate to the detection,

investigation, arrest, or prosecution of the criminal defendants and, thus, to

constitute merely administrative functions. The Attorney General’s written

responses did not provide further reasoning or explanation why the specific

actions were designated as they were.

In the first letter-decision, dated July 6, 2017, which concerned the

initial Complaint, the Attorney General advised the County Prosecutor that the

State would provide defense and indemnification for some, but not all, asserted

claims. Relying on Wright, the Attorney General stated that the State would

“defend and indemnify the [MCPO] Defendants against any claims related to

10
their engagement in classic criminal law enforcement activities: detection,

investigation, arrest, and prosecution of criminal defendants.” Accordingly,

the Attorney General agreed to defend and indemnify defendants concerning

the following allegations:

• failing to conduct a criminal investigation
(including failing to monitor evidence of
stalking, failing to conduct a proper internal
affairs investigation and failing to prohibit
discriminatory or disparate treatment of Tamara
[Wilson-]Seidle) and prosecute Philip Seidle[;]

• failing to provide law enforcement protection to
a victim of domestic violence[;]

• failing to respond properly at the scene[;]

• failing to supervise at the scene[;]

• failing to file (or assist Tamara Wilson-Seidle in
filing) a restraining order against Philip Seidle[;
and]

• failing to follow the New Jersey Attorney
General Guidelines to the extent the claim alleges
a failure to conduct a criminal investigation
and/or prosecute[.]

However, the Attorney General “decline[d] representation and

indemnification related to the allegations in the Complaint that are

administrative in function,” namely:

11
• failing to properly supervise, monitor, train,
retain and discipline officers[;]

• permitting and allowing Philip Seidle to remain
employed[;]

• permitting and allowing Philip Seidle to possess
a service weapon, or any weapon[;]

• failing and refusing to keep Philip Seidle
disarmed[;]

• permitting Philip Seidle to be reinstated[;]

• failing to follow the New Jersey Attorney
General Guidelines for handling domestic
violence complaints and incidents involving law
enforcement (with exception of any claim for
failure to conduct a criminal investigation and/or
prosecute)[;]

• returning Philip Seidle’s service weapon[; and]

• failing to conduct an administrative
investigation[.]

The Attorney General concluded that those “allegations do not arise out of the

[MCPO] Defendants’ ‘classic’ law enforcement duties as defined by the

Supreme Court in Wright -- the detection, investigation, or prosecution of the

State’s criminal laws.” Instead, the Attorney General found that those

“allegations challenge the [MCPO] Defendants[’] administrative

12
responsibilities and actions,” and that the State was therefore not required to

offer representation or indemnification against those allegations under Wright.

In the second letter, dated October 27, 2017, which addressed the

Amended Complaint, the Attorney General declined entirely to represent and

indemnify the MCPO defendants, despite the Amended Complaint’s inclusion

of several claims that the Attorney General’s first letter-determination had

already agreed to defend and indemnify. Despite the similarity in claims, the

Attorney General cryptically stated that “the claims asserted in the Amended

Complaint against the [MCPO] Defendants arise out of the performance of

administrative functions,” and concluded that the State would not provide a

defense because the “allegations do not arise out of the [MCPO] Defendants[’]

‘classic’ law enforcement duties.”

Each of those two final agency decisions were appealed to the Appellate

Division, where they were consolidated for appellate review.

While those appeals were pending, the United States District Court for

the District of New Jersey dismissed the Amended Complaint without

prejudice and granted leave for plaintiffs to re-plead the claims. In doing so,

the court dismissed the State of New Jersey as a named defendant from the

action, with prejudice, because plaintiffs conceded that they could not maintain

13
a § 1983 suit against the State. 1 Further, the court dismissed, with prejudice,

the Monmouth County Prosecutor’s Office and Prosecutor Gramiccioni for

claims brought against them “in their official capacities, and in connection

with their law enforcement and investigatory functions” because, the court said

the claims involved state action and the State is not a “person” amenable to

suit under a § 1983 claim.

In allowing the plaintiffs the opportunity to file a Second Amended

Complaint, the court directed that they provide clearly the “who, what, when,

and wheres” specific to each defendant. The court declined to identify which

actions plaintiffs were seeking to pursue might involve administrative as

opposed to investigative/law enforcement functions. In its decision, the court

stated that “if there is a dispute as to whether a certain decision was an

investigatory or law enforcement decision, and Plaintiffs can plausibly plead

that it was not state action, Plaintiffs may include such a claim in the Amended

Complaint.”

Plaintiffs then filed a Second Amended Complaint, which continued to

include several allegations that appeared to implicate the MCPO defendants’

law enforcement duties, in addition to new claims. Again, the MCPO

1
See Royster v. State Police, 227 N.J. 482, 494 (2017).
14
defendants requested that the Attorney General represent and indemnify in the

action.

On August 2, 2018, the Attorney General declined, in a third letter,

highlighting that the district court “dismissed all claims against the [MCPO]

Defendants in their official capacities and in connection with their law

enforcement and investigatory functions with prejudice.” Specifically, the

Attorney General noted that

the claims asserted in the Second Amended Complaint
pertain to administrative functions for which this Office
denied representation in connection with the initial
Complaint . . . . Accordingly, the Attorney General’s
Office respectfully denies representation and
indemnification to the [MCPO] Defendants with regard
to the Second Amended Complaint.

Defendants appealed that determination and filed a Motion to Consolidate that

appeal with the two pending appeals.

On December 11, 2018, the federal court dismissed the Second Amended

Complaint, largely because the pleadings lacked particularity. In January

2019, plaintiffs filed the Third Amended Complaint, which more precisely

identified which claims were asserted against which defendants and the

conduct on which each claim was based. The Third Amended Complaint also

asserted that “[a]t all relevant times, [the MCPO defendants] were acting in an

administrative capacity as opposed to [a] law enforcement or investigatory

15
function and subject to the supervision and control of the County as opposed to

the State.” The MCPO defendants then submitted a fourth request for

representation to the Attorney General.

In response to that fourth request, the Attorney General reiterated that

the Department had specifically declined to defend the MCPO defendants

against allegations deemed to arise out of an administrative function and noted

that, in the Third Amended Complaint, plaintiffs “once again assert[] claims

pertaining to administrative functions for which this office denied

representation in the initial and Second Amended Complaints.” Accordingly,

the Attorney General denied representation and indemnification for the Third

Amended Complaint, and the MCPO defendants appealed.

C.

All four of the appeals from the Department’s determinations were

consolidated and addressed by the Appellate Division in an unpublished

decision.

After noting that the Attorney General’s administrative determination

was subject to a deferential standard of review, citing Lavezzi v. State, 219

N.J. 163, 171 (2014), the Appellate Division then ruled on each determination,

relying on the guidance provided in Wright, Lavezzi, and Attorney General

Law Enforcement Directive No. 2000-3 (the Directive), in which the Attorney

16
General provided guidelines to law enforcement concerning steps to be taken

when a law enforcement officer is involved in a domestic violence incident.

The Appellate Division ultimately concluded that the Attorney General

properly differentiated between law enforcement and administrative functions

with respect to the original complaint but erred when not consistently applying

that approach to the subsequent complaints.

The court explained that

[p]rosecutors have two separate obligations pertaining
to a police officer alleged to have committed domestic
violence. One is classic law enforcement, i.e., the
obligation to investigate and enforce criminal laws,
including instances of domestic violence. N.J.S.A.
2C:25-19. The second is the obligation to maintain
control over the weapons seized from officers and to
determine when and if the officers should be re-armed
and allowed to serve as an officer.

With respect to the latter obligation, notwithstanding the existence of the

Attorney General’s specific guidance set out by the Directive concerning law

enforcement officers, the court found the issue of defense and indemnification

to be controlled by N.J.S.A. 2C:25-21(d)(1), which broadly covers all seized

weapons from any domestic violence perpetrator and their ultimate return to

their owner via a civil proceeding. That, the Appellate Division reasoned, was

an administrative function, and so the court determined that compliance with

the Directive, and re-arming Seidle, was an administrative duty because it
17
related to the same core function required of county prosecutors under

N.J.S.A. 2C:25-21(d)(1). Applying that reasoning, the Appellate Division

reached the following conclusions.

1. First Agency Determination

The Appellate Division stated that the MCPO defendants were required

to oversee the return of Seidle’s service weapons pursuant to the Directive, but

concluded that “compliance with the Directive related to appellants’

administrative duties.” Further, the court concluded that “[t]he allegations

pertaining to the failure to supervise, monitor, train, retrain and discipline and

Seidle’s continued employment also fall into the administrative category.”

Thus, the court affirmed in all respects the Attorney General’s First Agency

Determination.

2. Second Agency Determination

Turning to the second appeal, which relates to the First Amended

Complaint, the Appellate Division essentially directed that the Attorney

General had to act consistently with respect to functions previously determined

to be law enforcement functions. 2

2
The Appellate Division treated this determination as if it applied the same
differentiated approach to administrative versus law enforcement duties
applied in the first determination. However, the Attorney General’s second
determination reads as a complete ban on defense and indemnification for the
Amended Complaint’s claims.
18
3. Third Agency Determination

Addressing the third Attorney General determination, the Appellate

Division noted that the Second Amended Complaint contains at least twenty

claims that the Attorney General agreed to defend and indemnify in its first

decision and then later declined to cover. The Appellate Division cited

specific examples of such inconsistency, including a paragraph present in the

Complaint and the first two amended versions alleging that the MCPO

defendants, acting under the authority of State law, deprived Wilson-Seidle of

a constitutional right to liberty, substantive and procedural due process, and

equal protection by a series of enumerated actions or omissions. 3 The

Attorney General’s first decision agreed to indemnify and defend against those

claims when they were presented in the original Complaint and yet, despite the

claims’ being re-pled, the Attorney General later declined coverage. The same

occurred with respect to an allegation that defendants failed in their duty to

take all reasonable efforts to provide law enforcement protection to victims of

domestic violence.4

3
See Paragraph 27(d) of the Complaint and Paragraph 29(d) of both the First
and the Second Amended Complaints.
4
See Paragraph 85 of the Complaint, Paragraph 87 of the First Amended
Complaint, and Paragraph 100 of the Second Amended Complaint.
19
The Appellate Division determined that the aforementioned

inconsistency could not be sustained and required coverage for the claims the

Department initially agreed to defend and indemnify.

4. Fourth Agency Determination

Finally, the Appellate Division highlighted that the Attorney General’s

blanket denial of defense and indemnification for all claims in plaintiffs’ Third

Amended Complaint was error, again highlighting that the Attorney General

“overlooked portions of the third amended complaint where allegations it

originally agreed to provide defense and indemnification were scattered among

different areas of the complaint.”

For purposes of developing a proper remedy, the Appellate Division

remanded this matter to the Law Division to determine the reimbursement due

for the portion of costs associated with defense of claims for which the

Attorney General inconsistently denied coverage after initially having agreed,

correctly, that they involved law enforcement functions. Before remand

proceedings took place, this appeal ensued.

II.

We granted the petition for certification filed by the MCPO defendants

(hereinafter petitioners), 240 N.J. 65 (2019), and we granted amicus curiae

status to the County Prosecutors Association of New Jersey (CPANJ).

20
A.

According to petitioners, the Appellate Division erred in concluding that

compliance with the Directive did not constitute a law enforcement function.

Petitioners contend that the Appellate Division erred in relying on

N.J.S.A. 2C:25-21(d)(1), which deals with law enforcement’s role in

delivering handguns seized from members of the general public, and ignoring

the clear language of the Directive, which applies specifically when law

enforcement personnel are accused of domestic violence. They maintain that

the supervision of officers in this context is law enforcement, highlighting the

discretion that the county prosecutor has when deciding whether to return

weapons to a law enforcement officer -- discretion that does not apply when it

comes to the return of weapons to a member of the general public.

Further, petitioners assert that the Appellate Division erred in finding

that supervision and training constitutes an administrative function, citing as

persuasive authority Van de Kemp v. Golstein, 555 U.S. 335 (2009).

Finally, petitioners assert that the Attorney General’s coverage

determinations were arbitrary and capricious in execution, as illustrated by the

different treatment given to identical paragraphs from one iteration of the

complaint to another. Petitioners also argue that, through its parsing of not

only the Complaint, but also individual paragraphs within the Complaint, the

21
Attorney General created distinctions between related conduct that impeded

the MCPO defendants’ ability to mount a consistent defense and properly

frame an argument.

Amicus curiae CPANJ agrees that the Appellate Division erred when it

found that actions governed by the Directive did not constitute a law

enforcement function. CPANJ maintains that under Wright “an administrative

act by a county prosecutor that will not be entitled to indemnification from the

State must be an act that is unrelated to its prosecutorial functions.” CPANJ

asserts that the State must provide defense and indemnification for county

prosecutors and their employees when actions are clearly taken on “behalf of

and with accountability to the State.” It argues that the Directive acts with the

force of law in guiding law enforcement in how to handle the return of service

weapons to law enforcement personnel after such weapons are seized as a

result of domestic violence and that compliance with the Directive is thus a

law enforcement function. Here, Seidle’s service weapon was removed

pursuant to the Directive and returned to him pursuant to the same. As a

result, the CPANJ argues, the State should provide defense and

indemnification.

22
B.

In urging affirmance of the Department’s determinations sustained by

the Appellate Division, the Attorney General does not challenge Wright and

relies on its differentiation between administrative and law enforcement

functions. The Attorney General expresses concern that under petitioners’

assertions, any actions taken by a county prosecutor’s office could be said to

be a law enforcement function, expanding the State’s obligation to defend and

indemnify county prosecutors for matters the Attorney General asserts are

properly categorized as administrative.

III.

A.

The State’s obligation to defend and indemnify county prosecutors and

their employees for actions arising out of their employment stems from the

Tort Claims Act (the TCA), N.J.S.A. 59:1-1 to 12-3. The TCA governs tort

suits filed against the State and public entities, and it sets forth defense and

indemnification provisions that distinguish between State employees and other

public employees. Our jurisprudence documents that well-known statutory

structure. See Kaminskas v. Office of the Attorney Gen., 236 N.J. 415, 423

(2019). The instant appeal zeroes in on the interpretation of that scheme by

this Court’s seminal decision in Wright.

23
Pertinently, the TCA provides, subject to exceptions inapplicable here, 5

that the Attorney General shall provide for the defense and indemnification of

all State employees, upon a request, for “act[s] or omission[s] in the scope of

[their] employment.” N.J.S.A. 59:10-1; :10A-1. The “State,” as defined, does

not include other “sue and be sued” public entities. N.J.S.A. 59:1-3. Public

entities may indemnify their employees. N.J.S.A. 59:10-4 (empowering public

entities to indemnify their employees for “damages resulting from the

employee’s civil violation of State or federal law if, in the opinion of the

governing body of the local public entity, the acts committed by the employee

upon which the damages are based did not constitute actual fraud, actual

malice, willful misconduct or an intentional wrong”). Although not

mandatory, see, e.g., Marion v. Borough of Manasquan, 231 N.J. Super. 320,

335 (App. Div. 1989), the Comment to N.J.S.A. 59:10-4 indicates that such

optional indemnification is encouraged. Accord Wright, 169 N.J. at 455. That

lack of definiteness affected the decision reached in Wright.

B.

1.

In Wright, this Court determined that county prosecutors occupy a

“hybrid” role, serving both the county and the State, and undertook the task of

5
See N.J.S.A. 59:10-2.
24
clarifying when the State must defend and indemnify county prosecutors and

their employees. Id. at 455-56.

Wright involved a claim by members of the Somerset County

Prosecutor’s Office (SCPO) for defense and indemnification in a lawsuit based

in tort filed by Isaac Wright, who had been prosecuted by employees of the

SCPO and was found, in a post-conviction relief proceeding, to have been the

subject of improper actions by various members of that office, including

“high-ranking Somerset County law-enforcement officials” and the former

Somerset County Prosecutor. Id. at 430-31. The Attorney General refused

Somerset County’s request to provide representation and indemnification. Id.

at 432. That refusal was ultimately reviewed by this Court, as well as whether

the State could be held vicariously liable for the actions of the SCPO. Id. at

432, 434.

The Wright Court held that the State could be held vicariously liable for

the tortious conduct of county prosecutors and their subordinates during their

investigation and enforcement of the State’s criminal laws, and further that the

State should be obligated to pay their defense costs and to indemnify them if

their alleged misconduct involved a State law enforcement function. Id. at

430; see also id. at 455.

Specifically, the Wright Court stated:

25
We acknowledge that the Legislature intended a sharp
distinction between State employees and employees of
other public entities that may be indemnified by such
entities, but that distinction did not contemplate public
employees, such as county prosecutors, who have a
hybrid status. We are persuaded that the statutory
language used in N.J.S.A. 59:1-3 did not take into
account the unique role of county prosecutorial
employees, paid by the county, but performing a State
law enforcement function under State supervisory
authority. To vindicate the legislative purpose of
providing defense and indemnification to public
employees performing an essential State function, we
interpret the defense and indemnification provisions of
the TCA to apply to county prosecutorial employees
sued on the basis of actions taken in the discharge of
their law enforcement duties.

[169 N.J. at 455-56.]

As noted, the Wright Court articulated two purposes advanced by its

holding: it eliminated uncertainty for county prosecutors as to whether

defense and indemnification would be provided, and it avoided the anomalous

results that could occur based on the State’s potential for vicarious liability for

the same actions. Ibid. Importantly, that reasoning supported the Court’s

decision to put the State in control of the defense in such settings. Id. at 456.

Although Wright’s holding strove, in part, to eliminate uncertainty,

attempts to implement that holding -- and in particular its exclusion of

administrative functions from indemnification -- have given rise to a number

26
of disputes over the years. We therefore consider what Wright and later cases

illuminate about that exclusion.

2.

The Wright Court provided an example to illustrate the distinction it

established between law enforcement activities and administrative activities.

It quoted a recent holding by the Third Circuit to show how to distinguish the

excluded “administrative functions” from prosecutorial functions deserving of

State defense and indemnification:

[W]hen county prosecutors execute their sworn duties
to enforce the law by making use of all the tools
lawfully available to them to combat crime, they act as
agents of the State. On the other hand, when county
prosecutors are called upon to perform administrative
tasks unrelated to their strictly prosecutorial functions,
such as a decision whether to promote an investigator,
the county prosecutor in effect acts on behalf of the
county that is the situs of his or her office.

[Id. at 454 (quoting Coleman v. Kaye, 87 F.3d 1491,
1499 (3d Cir. 1996)).]

To further assist in distinguishing the two settings, the Court said that the test

for determining in which capacity a county prosecutor acts should “focus on

whether the function that the county prosecutors and their subordinates were

performing during the alleged wrongdoing is a function that traditionally has

27
been understood to be a State function and subject to State supervision in its

execution.” Ibid.

Thus, cases in which courts correctly have found that the State did not

need to indemnify and defend county prosecutors have involved, as petitioners

argue, internal operations of a prosecutor’s office. Coleman, 87 F.3d at 1499

(dispute involving the denial of a promotion), and DeLisa v. County of Bergen,

326 N.J. Super. 32 (App. Div. 1999) (involving a retaliatory discharge claim),

rev’d on other grounds, 165 N.J. 140 (2000), were employment actions.

Similarly, Courier News v. Hunterdon County Prosecutor’s Office, 378 N.J.

Super 539 (App. Div. 2005), concerned a prosecutor’s office’s alleged failure

to comply with the Open Public Records Act, an administrative obligation of

all public entities subject to that law. Not all circumstances are as clear cut,

however.

In Lavezzi, this Court was called on to assess an unusual circumstance

bearing some indicia of both a state law enforcement function and the

administrative function of housing, securely and safely, seized evidence. 219

N.J. at 166. The appeal involved an underlying civil lawsuit over the loss of

and damage to non-contraband items seized from the plaintiffs’ home after a

prosecutor’s office executed a search warrant in connection with an

investigation that was subsequently abandoned. Ibid. We held that the articles

28
“were seized in the course of a criminal investigation, part of the State’s

‘criminal business’ for which the State and county prosecutors are responsible

pursuant to N.J.S.A. 2A:158-4,” and thus the Attorney General was required to

defend and indemnify the prosecutor’s office’s employees under the TCA. Id.

at 166-67. However, we qualified that conclusion by stating that

[t]he State’s defense and indemnification of the
Prosecutor’s Office employees shall be subject to a
reservation: if it is revealed at a later stage of this case
that plaintiffs’ property was stored in a facility
controlled by the County and that the loss or damage to
plaintiffs’ property resulted from that facility’s
condition or maintenance, the State may seek
reimbursement of all or part of the costs incurred in its
defense and indemnification of the Prosecutor’s Office
employees.

[Id. at 167.]

Lavezzi is remarkable for its recognition that some factual settings call

for more nuance than others. That reservation allowed for the development of

more facts that might push the act or omission more clearly into the realm of

administrative responsibility -- facility maintenance -- for which the county

should bear responsibility. The act or omission then would not be a part or an

aspect of prosecutorial performance over which the State would exercise

supervision, even though evidence retention relates to the prosecution of the

criminal laws.

29
Yet, the decision in Lavezzi hews to the obligation of the State,

consistent with Wright, to provide defense and indemnification to county

prosecutors’ offices and their personnel for acts and omissions in connection

with their law enforcement duties, reiterating that the test should be

understood as “whether the act or omission of the county prosecutor’s office

and its employees that gave rise to the potential liability derived from the

prosecutor’s power to enforce the criminal law, and constituted an exercise of

that power.” Id. at 178.

IV.

Applying those principles here, it appears that two categories of error

plagued the Attorney General’s approach to the requests for defense and

indemnification submitted in connection with the underlying federal action.

First, the Attorney General, and the Appellate Division, did not give

proper regard to the nature of the Directive that was to guide petitioners in this

matter. Because this was a law enforcement officer accused of domestic

violence on multiple occasions, the normal rules governing the return of seized

weapons to an alleged perpetrator were superseded by specialized guidelines

vesting prosecutors with crucial discretionary decisions. Although one could

say that all Attorney General directives involve guidance on law enforcement

30
to some degree, this Directive stands apart in its charge of responsibility to

prosecutors.

Briefly, by way of background, as the State’s chief law enforcement

officer, the Attorney General has been given statutory authority to guide law

enforcement entities, N.J.S.A. 52:17B-98; that authority has been used “to

adopt guidelines, directives, and policies” for law enforcement in this State.

See N. Jersey Media Grp., Inc. v. Township of Lyndhurst, 229 N.J. 541, 565

(2017).

The Attorney General issued Attorney General Law Enforcement

Directive No. 2000-3 to promote the uniform and expeditious handling of

domestic violence issues involving a special subset of individuals: law

enforcement officers -- individuals who are authorized to carry state-issued

weapons in the cause of law enforcement.

As the Appellate Division noted, N.J.S.A 2C:25-21(d)(1) broadly covers

seized weapons taken from any domestic violence perpetrator and addresses

the means for the weapons’ ultimate return to their owner via a civil

proceeding. In contrast, the Directive specifically details a unique series of

procedures to be followed when an act of domestic violence is committed by a

law enforcement officer and mandates that all law enforcement agencies and

law enforcement officers authorized to carry firearms comply with the

31
Directive.

The Directive is particularly geared to a specialized enforcement of the

domestic violence laws as they intersect with officers of the law. The

Directive’s instructions are vitally important because the Attorney General is

rightfully concerned about the care and circumspection necessary for a fair and

correct decision about whether to re-arm a law enforcement officer accused of

domestic violence. Accordingly, the Attorney General devised uniform

procedures that require the county prosecutor’s personnel to act in the r ole of a

neutral assessor of the propriety of re-arming an officer in those circumstances

and not leave such decisions entirely to colleagues with whom the officer

serves. It is, in essence, a form of specialized enforcement of the domestic

violence law as it relates to a subset of individuals.

In relevant part, the Directive clearly establishes the protocols a local

prosecutor should follow when a law enforcement officer is alleged to have

committed an act of domestic violence. In carrying out the Directive’s

mandate to remove weapons from an officer accused of domestic violence,

investigate that officer, and make a determination as to the return of those

weapons, the prosecutor is empowered with the ability to use discretion.

After an incident of alleged domestic violence, the officer’s weapons are

to be seized by the responding officer if there is a reasonable belief that the

32
presence of weapons puts the victim at risk of serious bodily injury, or

surrendered by the officer when and if they are served with a domestic

violence restraining order. The Directive details the procedure for informing

the accused officer’s supervisor, as well as the county prosecutor.

Once informed of the removal of the weapon, the prosecutor is required

to be involved in the investigatory process of determining if and when return

of those weapons is appropriate. If an accused officer possesses a department-

issued service weapon, it is to be returned to the issuing department. All other

weapons personally owned are to be forwarded to the prosecutor’s office in the

county in which they were seized, pursuant to guidance issued in the Attorney

General’s Guidelines on Police Response Procedures in Domestic Violence

Cases and the provisions of N.J.S.A. 2C:25-21(d).

Once the weapons have been removed, prosecutors are required to

investigate the incident and determine whether the officer should be permitted

to carry a weapon, and if so, whether any restrictions should be imposed.

Notably, the Directive also requires the chief of the agency employing the

officer to conduct a separate investigation into the officer’s background and to

make a recommendation to the appropriate county prosecutor whether the

officer should be allowed to carry weapons, but it places the ultimate

determination of the return of weapons in the hands of the prosecutor. Even

33
when domestic violence charges are dismissed or withdrawn, or no charges are

filed at all, a prosecutor has the discretion to authorize or deny return of the

seized weapons and may subject that return to any conditions the prosecutor

deems necessary. Only an existing court order to the contrary would limit the

prosecutor’s discretion in that regard.

The Directive thus imposes on the county prosecutor numerous,

important discretionary decisions related to the removal and return of service

weapons by law enforcement officers within their jurisdiction. The

prosecutor’s involvement, however, is dependent in part upon the actions of

responding officers when first informed of claims of domestic violence against

members of the police force. Because the prosecutor’s mandate to carry out

the Directive can be thwarted by improper police action at that early stage, the

prosecutor’s office must offer training and supervision with respect to

enforcement of this particular Directive.

We view that training and supervision, as well as the many discretionary

determinations the Directive assigns to the prosecutor, as part of the State-

delegated responsibility to enforce the law that the Attorney General has

entrusted to prosecutors. It is not akin to the administrative duties that have

been exempted from State defense and indemnification in the past, such as

employment actions, which related to the internal operations of the

34
prosecutor’s office. Nor is it a county responsibility such as facility provision

and maintenance for evidence storage, which Lavezzi left open as a possible

exclusion.

The Attorney General took too narrow an approach to the prosecutorial

law enforcement function here. The administrative determinations did not

credit the nuanced, discretionary decisions that prosecutors are called on t o

make in the re-arming of police officers such as Seidle. The decisions of the

MCPO defendants who considered whether Seidle could be re-armed and then

remain armed were prosecutorial functions exercised on behalf of the State.

As such, those determinations, as well as the claims of improper training and

supervision of Neptune law enforcement with respect to implementation of the

Directive, were entitled to defense and indemnification by the State.

The second error permeating the decisions under review is the manner in

which the Attorney General parsed each iteration of the complaint here,

scouring them paragraph by paragraph, at times within a paragraph, to

eliminate bases for defense and indemnification. That crabbed approach

toward the provision of defense and indemnification is not in keeping with the

thrust of Wright. The prosecutorial function should be covered, and the State

is given control over the whole defense to ensure that the defense in such

settings is not compromised by lack of coordination, or worse, inconsistency in

35
position. Petitioners rightly contend that the Attorney General’s review made

it difficult to defend the complaint.

Moreover, the Attorney General’s inconsistency in its review of these

sequentially filed complaints renders the decisions arbitrary and unreasonable.

The Attorney General’s third and fourth decisions about defense and

indemnification seem to have been influenced by the federal court’s actions

dismissing a claim based on state action that was entitled to sovereign

immunity and the pleading gymnastics that plaintiffs were attempting in their

effort to avoid the Eleventh Amendment consequences of matters being

deemed law enforcement. The pleading dilemma plaintiffs face is separate and

apart from whether petitioners are entitled to have a defense provided for them

either by the State or at State expense as the federal litigation unfolds.

In sum, in this case, all claims related to petitioners’ acts or alleged

omissions associated with duties imposed by the Directive constitute state

prosecutorial functions. We agree with the Appellate Division that on remand

a trial court should assess the reimbursement due to petitioners based on our

reversal in this respect.

V.

The judgment of the Appellate Division is reversed, and this matter is

remanded to the Law Division for proceedings consistent with this opinion.

36
CHIEF JUSTICE RABNER and JUSTICES ALBIN, PATTERSON,
FERNANDEZ-VINA, SOLOMON, and TIMPONE join in JUSTICE
LaVECCHIA’s opinion.

37

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4551471. Public record. Not legal advice.