Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-27-2004

Bowser v. Freehold
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-3386




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Recommended Citation
"Bowser v. Freehold" (2004). 2004 Decisions. Paper 679.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/679


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                                             NOT PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT


                   No. 03-3386


               HAROLD BOWSER,
                      Appellant

                         v.

           BOROUGH OF FREEHOLD,
 a municipal corporation of the State of New Jersey;
        WILLIAM BISMARK, individually
            and in his capacity as a police
       officer with the Borough of Freehold;
    DARNELL EASDAILE, individually and in
           his official capacity as a police
       officer with the Borough of Freehold;
     MITCHELL ROTH, individually and in his
         official capacity as a police officer
             of the Borough of Freehold;
     CHARLES WARD, individually and in his
         official capacity as a police officer
             of the Borough of Freehold;
                OFFICER DOES, 1-25
       a fictitious name for any other officers
             involved within the incident;
MONM OUTH COUNTY PROSECUTORS OFFICE,
    a municipal entity of the State of New Jersey


   Appeal from the United States District Court
            for the District of New Jersey
            (D.C. Civil No. 01-cv-03927)
  District Judge: Honorable Garrett E. Brown, Jr.
                       Submitted Under Third Circuit LAR 34.1(a)
                                    May 26, 2004

      Before: SCIRICA, Chief Judge, RENDELL and ALARCÓN 1 , Circuit Judges.

                                   (Filed May 27, 2004)


                                OPINION OF THE COURT


RENDELL, Circuit Judge.

       Harold Bowser was arrested on May 5, 1998, when police officers responded to a

report of a domestic dispute at his then-wife’s home in Freehold, New Jersey. While

waiting to escort him from the premises, the officers saw Bowser retrieve a gun from an

armoire. After various gun-related charges that had been brought against Bowser were

either dropped or dismissed, Bowser sued the Appellees2 under 42 U.S.C. §1983. The

District Court granted summary judgment in favor of the Appellees, and Bowser filed this

timely appeal. We will affirm.3

       As we write solely for the parties, we will only recite those facts that are relevant

to the issues before us. Bowser is a Pennsylvania resident. He is licensed to carry a


  1
   Honorable Arthur L. Alarcón, Senior Judge, United States Court of Appeals for the
Ninth Circuit, sitting by designation.
  2
   The defendant-appellees include the Borough of Freehold, various individual police
officers, and the Monmouth County Prosecutor’s Office.
  3
   The District Court had jurisdiction over the suit pursuant to 28 U.S.C. §§ 1331 and
1343(a)(3). We have jurisdiction under 28 U.S.C. § 1291 to review the District Court’s
order granting summary judgment.

                                              2
firearm in Pennsylvania, and the gun involved in this dispute was registered in

Pennsylvania. At the time of his arrest, Bowser and his former wife were separated. His

wife lived in New Jersey, where he would occasionally visit her. Bowser was arrested

during a visit after the couple argued, causing his wife to call local police and report a

domestic dispute. Three police officers reported to the home, and two of them

accompanied Bowser as he collected his belongings and prepared to leave. The officers

watched him retrieve a black bag from an armoire, and Bowser admitted that the bag

contained his handgun.

       The officers restrained Bowser and searched the bag. They found the gun and a

Pennsylvania firearms license in Bowser’s name. Bowser identified Pennsylvania as his

state of residence. The officers subsequently arrested Bowser on various charges related

to his possession of a firearm. After the charges were resolved in his favor in the New

Jersey state courts, Bowser filed this § 1983 action alleging malicious prosecution. The

District Court granted summary judgment in favor of the defendant-appellees, concluding

that the officers had probable cause to arrest Bowser, that the Prosecutor’s Office had

probable cause to prosecute him, and that all parties enjoyed immunity from suit.

       In this appeal, Bowser reiterates the arguments that he pressed before the District

Court. Specifically, he makes the following five assertions: (1) that the officers lacked

probable cause to arrest him; (2) that the officers are not entitled to qualified immunity

under the circumstances presented here; (3) that the municipality, through its police



                                              3
department, had an unconstitutional policy or custom that led to the alleged violations of

Bowser’s rights; (4) that the Prosecutor’s Office lacked probable cause to proceed before

a grand jury; and (5) that the Prosecutor’s Office is not entitled to prosecutorial or

qualified immunity. As we will explain briefly below, we reject each of these arguments.4

       In New Jersey, it is illegal to knowingly possess a handgun without a valid New

Jersey carrying permit. N.J. Stat. Ann. § 2C:39-5(b). An exception to this permit

requirement exists for a person who possesses a handgun at his “place of business,

residence, premises or other land owned or possessed by him . . . .” N.J. Stat. Ann. §

2C:39-6(e). Further, a New Jersey police officer responding to a reported domestic

dispute may arrest a person “where there is probable cause to believe that an act of

domestic violence has been committed . . . .” N.J. Stat. Ann. § 2C:25-21(b). 5

       In the instant case, the police officers discovered that Bowser possessed a handgun

in the context of a domestic dispute. Additionally, they were aware that the gun was

licensed in another state, and that its owner was a resident of another state who was only



  4
   We exercise plenary review over a district court’s decision to grant summary
judgment. Marino v. Indus. Crating Co., 

, 247 (3d Cir. 2004). Viewing the
evidence in the light most favorable to the nonmoving party, we will affirm the District
Court’s order granting summary judgment where no genuine issue as to any material fact
exists. See Fed. R. Civ. P. 56(c).
  5
    The New Jersey domestic dispute statute also lists instances in which a police officer
must arrest a person at the scene of a domestic dispute. For example, an arrest is
mandatory where “the victim exhibits signs of injury” or where “there is probable cause
to believe that a weapon . . . has been involved in the commission of an act of domestic
violence.” N.J. Stat. Ann. § 2C:25-21(a).

                                              4
visiting New Jersey.6 Under these circumstances, the officers certainly had probable

cause to arrest Bowser. Not only had they responded to a potential domestic violence

situation, but they found a man who possessed a gun without a New Jersey permit while

visiting a home that belonged to someone else. Because the officers had probable cause

to arrest Bowser, they acted reasonably in bringing charges against him for violating New

Jersey’s firearms laws, and they are entitled to qualified immunity. Thus, Bowser’s first

two arguments fail.

       With his third argument, Bowser urges us to find that he has stated a cause of

action based on a problematic policy or custom whereby New Jersey police officers

improperly arrest people who possess guns in the context of domestic disputes. The New

Jersey domestic violence statute gives officers broad discretion to arrest people where

they suspect that domestic violence has occurred. Further, officers may obviously arrest

people who are violating state firearms laws. As we have explained above, Bowser’s

rights were not violated by the police officers here, so any policy or custom that the

officers followed in the instant case was not constitutionally objectionable.

       Finally, we are likewise unpersuaded by Bowser’s fourth and fifth arguments

regarding the actions of the Monmouth County Prosecutor’s Office. Based on a




  6
   Bowser also possessed hollow-point bullets, which are a type of ammunition that is
capable of penetrating body armor, in violation of N.J. Stat. Ann. § 2C:39-3(f). The ban
on possessing this type of ammunition does not apply to a person who is at his “dwelling,
premises, or other land owned or possessed by him . . . .” 

                                             5
misunderstanding on the part of the prosecutor handling his case, Bowser was only

prosecuted for unlawfully acquiring the firearm, in violation of N.J. Stat. Ann. § 2C:58-3,

and the other unlawful possession charges were dropped.7 Given the facts described

above, we are convinced that, at the very least, there was probable cause to pursue an

unlawful acquisition charge before a grand jury. Moreover, Bowser has offered no

evidence showing that this decision to prosecute was made in bad faith or with an

improper motive. We therefore conclude that the Prosecutor’s Office is entitled to both

prosecutorial and qualified immunity for its decision to present the unlawful acquisition

charge to a grand jury.

       Based on the foregoing discussion, we reject each of Bowser’s arguments, and we

agree with the District Court’s observation that “this case is not even close.”

Accordingly, we will AFFIRM the District Court’s order granting summary judgment in

favor of the Appellees.




  7
   The prosecutor mistakenly believed that Bowser had been arrested in his own home,
and that he therefore fell within an exception to the unlawful possession statutes. Thus,
the Prosecutor’s Office decided to pursue charges of unlawful acquisition in light of the
fact that an ATF trace report revealed that the gun had been purchased in Pennsylvania,
but did not resolve whether that purchase was legal under New Jersey law.

                                              6