(CN) - A mother whose abusive ex-boyfriend threw their infant daughter over a bridge into the icy Raritan River can sue police officers who refused to intercede because of the President's Day holiday, a federal judge ruled.
Venetta Benjamin says she had been dating Shamsiddin Abdur-Raheem for about six months in 2008 when their relationship became physically and verbally abusive.
She later became pregnant and gave birth Zara Malani-Lin Abdur-Raheem on Nov. 19, 2009.
When Benjamin told Abdur-Raheem that she was ending their relationship in January 2010 because of his abusive behavior, he assaulted her and threatened to kill her if she ever left him.
Benjamin says she fled to her mother and then to New Jersey's East Orange Police Department when the threats became more frequent and started to involve her daughter.
Although Benjamin tried to get a domestic violence temporary restraining order against Abdur-Raheem on Feb. 15, police personnel allegedly "turned her away."
Because it was President's Day, they claimed they could not help her and told her to report to the Superior Court of New Jersey Family Division-Essex County the next day. They never contacted the on-duty judge.
When Benjamin went to the courthouse the next day, leaving her mother to look after Zara, Abdur-Raheem "forcefully kidnapped" the nearly 3-month-old baby, according to the ruling.
Shamsiddin then stopped his car on the Driscoll Bridge and tossed Zara into the frigid water of the Raritan River below, killing her.
Benjamin served a notice of claim on the city of East Orange and its police department on April 30.
A state grand jury returned a six-count criminal indictment against Abdur-Raheem in August, charging him with kidnapping and murder, among other things. In late 2012, he was convicted of murder and multiple other counts and sentenced to life in prison.
Benjamin sued the police department, Abdur-Raheem, the city of East Orange, and unknown police officers and employees in February 2012, alleging constitutional violations, negligence and wrongful death on behalf of herself and Zara.
U.S. District Judge William Martini refused to dismiss Benjamin's negligence, New Jersey Survival Act, and wrongful death claims on March 28.
"Referring domestic violence complaints to an on-duty judge is a ministerial task that does not require the exercise of judgment," Martini wrote. "It is not a high level policy decision comparable to police staffing. Thus, the East Orange Defendants are not entitled to immunity under the NJTCA [New Jersey Tort Claims Act]."
The court rejected Benjamin's claims under Section 1983, but gave her leave to amend.
"In this case, causation is evident. The EOPD improperly required Venetta to go out a second time to obtain a domestic violence TRO," Martini wrote, abbreviating the East Orange Police Department and temporary restraining order.
"Abdur-Raheem attacked in the precise minutes that Venetta was in court following the EOPD's improper instructions," Martini added. "Based on the allegations in the complaint, it is extremely plausible that a different outcome would have resulted if Venetta had been granted a TRO hearing on the night of Feb. 15, 2010, or if Zara and Leno had not been home alone on Feb. 16, 2010. However, the complaint insufficiently pleads that there was an affirmative act taken by state actors. In fact, in the complaint, plaintiff frames Venetta's interaction with the EOPD as a failure to act. Absent a showing that 'state authority was affirmatively exercised in some fashion,' plaintiff cannot state a claim for a due process clause violation."
The court also dismissed Benjamin's emotional distress and claims under Section 1988.