Law & Justice

Judge Tosses Lawsuit That Blamed Roxbury Cop in Bong Theft Arrest

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Bongs on display at Serenity Smoke Shop right after 2015 robbery
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ROXBURY, NJ – Although they later dropped the charges they'd filed against a local youth in 2015 - accusing him of stealing an expensive bong and a lighter from a Ledgewood smoke shop - Roxbury police did not violate the young man’s rights when they made the arrest, a judge recently ruled.

The case spawned a federal court lawsuit against Roxbury, Roxbury Police Detective Jack Niemynski, the state and others. A 15-count amended complaint, filed by the youth and his parents, accused Roxbury and Niemynski of significant due process, procedural and Constitutional rights violations including conspiracy, malicious prosecution and discrimination.

U.S. District Court Judge William Martini’s order, signed Oct. 3, granted a motion for dismissal filed by Roxbury and Roxbury Police Detective Jack Niemynski. In January, granted a similar motion on behalf of the Morris County Prosecutor's Office and the county.

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The incident that led to the litigation took place Nov. 14, 2015 at the Serenity Smoke shop on Route 10. A person brandishing a gun entered the shop and stole a bong valued at $1,200 and a $60 lighter.

Store video showed the robber wearing a dark grey, hooded sweatshirt, a black bandana, gloves, black jeans and black shoes with white trim and off-white soles, according to the lawsuit.

The home of the youth who was later arrested was the subject of a search warrant - executed five days after the robbery – based largely on the statement of the owner of a store adjacent to the smoke shop who said he saw the culprit as he left. The lawsuit alleged the witness “was known to dislike” the youth he accused.

A Serenity Smoke Shop employee, who was working during the incident, told TAPinto Roxbury he told police the robber was white. The lawsuit pointed out that the accused youth is Hispanic.

The Wrong Guy

According to the complaint, the youth was charged Nov. 20, 2015 with robbery and three related crimes despite relatives providing police with alibis relating to the youth’s whereabouts during the robbery and with other proof he couldn't have been the thief. Additionally, the lawsuit said, police were told another person had admitted to others, that he – not the accused – stole the bong.

The youth, who had been held in juvenile detention, was placed on house arrest on Dec. 14 but “was never to be left alone and always had to be in the presence of one of his parents,” said the lawsuit. It contended that this forced his mother to quit her job, causing extreme financial hardship. The lawsuit said the house arrest required the family “to spend family holidays such as Christmas and New Year’s Day as prisoners in their own home.”

The suspected robber was allowed to return to school in March, said the complaint. It said he underwent a polygraph test on April 26.

On May 12, police dropped the charges “ending a nightmare for plaintiffs that should never have occurred in a country and state of laws and due process,” said the lawsuit.

The lawyers for the youth and his parents hired a former New Jersey State Police captain to help them convince Roxbury Police and the Morris County Prosecutor’s Office that they arrested the wrong person. They said they provided many pieces of exculpatory evidence to both the prosecutor’s office, information that was met with indifference.

Shielded from Litigation

The judge granted Niemynski’s dismissal request on the grounds that police are protected by “qualified immunity,” which shields government officials from civil liability “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”

Martini also addressed the lawsuit’s assertions that the youth was arrested and detained without probable cause, a violation of his federal and state Constitutional rights.

“The facts set out in the amended complaint do not permit a reasonable jury to find that Niemynski detained (the youth) without probable cause,” wrote the judge. “A witness who knew personally (the youth) told police that he saw (the youth) exit the smoke shop with a large yellow bong at the time of the burglary.”

Martini also noted that items recovered from the defendant’s home “air pistols, a grey hooded sweatshirt and latex gloves in an off-white/yellow color - matched the appearance of the perpetrator on store surveillance video.”

He added that, “while not every article of clothing or item was located in the plaintiffs’ home, the evidence recovered there was nonetheless probative of (the youth’s) guilt,” and pointed out that, “later that day, Niemynski observed plaintiff at school wearing black jeans and white sneakers with off-white soles and white trim, similar to those worn by the perpetrator. At that point, a prosecutor advised Niemynski that he had probable cause to make an arrest, and plaintiff was charged.”

Martini said the fact that police subsequently dropped the charges could not be taken into account when deciding whether to grant the lawsuit dismissal motions.

He granted the township’s dismissal request on the grounds that the lawsuit failed to prove that any specific “policy or custom” within the police department caused the youth’s predicament and he also disagreed with the lawsuit’s assertion that the youth’s race played a part in the arrest.

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