See Plaintiff's Exh. 22. Commissioner Walp also apparently held a press conference on December 15, 1994, to discuss a number of gun-related arrests that had occurred on December 14 and 15; Cyprus's arrest occurred on December 14. Walp states, in an affidavit, that he has never met Cyprus, that he had not directed any Pennsylvania police officer to take any actions against him, and that he had little awareness of the details of Diskin's investigation. See Defendant's Exh. X at 2-3.
Cyprus theorizes that Walp, frustrated by the defeat in the Pennsylvania legislature of gun-control legislation he supported, undertook a wave of gun-related arrests as a form of "revenge." Cyprus advances no proof for this proposition, however, and also provides no evidence that Walp had any personal knowledge of, or acquiesced in, the alleged infirmities in either Cyprus's arrest or the arrests of gun dealers generally. Cyprus cannot therefore maintain a section 1983 claim against Walp. Thus, this element of the defendants' summary judgment motion will be granted.
III. The Legal Basis of Cyprus's Claims
Cyprus's complaint makes claims based upon (1) the Fourth Amendment's prohibition on unreasonable searches and seizures, (2) the Sixth Amendment, and (3) the due process and equal protection clauses of the Fourteenth Amendment.
The defendants argue that, of these various legal theories, only the Fourth Amendment claim is viable.
A. Sixth Amendment
Cyprus has never identified which provision of the Sixth Amendment was violated as a result of the events recounted in his complaint, and there is no clear relationship between the facts alleged in that complaint and the Sixth Amendment, which relates to rights at criminal trials. Accordingly, I will grant the defendants' motion as to Cyprus's Sixth Amendment claims.
B. Due Process
Cyprus provides somewhat more detail about the basis of his due process claims. His complaint cites generally to the Fourteenth Amendment's due process clause; in his response to the defendants' summary judgment motion, he appears to indicate that this reference is intended to refer to both the substantive and the procedural components of that clause. Response at 11.
1. Substantive Due Process
Cyprus's substantive due process claim is squarely foreclosed by a recent Supreme Court case, Albright v. Oliver, 510 U.S. 266, 127 L. Ed. 2d 114, 114 S. Ct. 807, 812-13 (1994). In that case, the Court rejected the claim that an arrest performed without probable cause could be actionable as a violation of substantive due process. The Court observed that "the Court has always been reluctant to expand the concept of substantive due process because . . . guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended." Albright, 114 S. Ct. at 812 (quoting Collins v. City of Harker Heights, 503 U.S. 115, 112 S. Ct. 1061, 1068, 117 L. Ed. 2d 261 (1992)). Thus, "where a particular amendment 'provides an explicit textual source of constitutional protection' against a particular sort of government behavior, 'that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing these claims.'" Albright, 114 S. Ct. at 813 (quoting Graham v. Connor, 490 U.S. 386, 395, 104 L. Ed. 2d 443, 109 S. Ct. 1865 (1989)) (internal quotation omitted). The Court therefore found that a claim for arrest without probable cause was governed, not by substantive due process, but by the Fourth Amendment's provisions as to pretrial deprivations of liberty, which had been specifically intended to address the problems associated with pretrial deprivations of liberty. See Albright, 114 S. Ct. at 813. Justice Ginsburg, writing in concurrence, explained that an arrest without probable cause would be governed by the Fourth Amendment's prohibition on "unreasonable . . . seizures." Albright, 114 S. Ct. at 815 (Ginsburg, J., concurring).
2. Procedural Due Process
The Albright plurality specifically noted that the petitioner in that case had not asserted a procedural due process claim. See Albright, 114 S. Ct. at 812 (noting that the petitioner had not made a procedural due process claim). Thus, Albright does not affect the availability of those claims. See, e.g., Whiting v. Traylor, 85 F.3d 581, 1996 U.S. App. LEXIS 14743, 1996 WL 293783 at *4 n.3 (11th Cir., 1996); Perez-Ruiz v. Crespo-Guillen, 25 F.3d 40, 42-43 (1st Cir. 1994). As the Perez-Ruiz court observed, however, "the availability of an adequate remedy for malicious prosecution under [state] law" can bar a procedural due process claim. Id. at 43. The defendants have not raised this argument, which flows from the holding of Parratt v. Taylor, 451 U.S. 527, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981), that a state actor's random and unauthorized deprivation of a liberty or property interest cannot be challenged under section 1983 so long as the state provides an adequate post-deprivation remedy. Because Cyprus has not had an opportunity to address Parratt, and because its rule is not without exceptions, I will, for the present, allow his procedural due process claim to stand.
C. Equal Protection
Cyprus's equal protection claim is also not foreclosed by Albright. The Court has long acknowledged that the equal protection clause is available to redress such evils as selective enforcement. See Oyler v. Boles, 368 U.S. 448, 456, 7 L. Ed. 2d 446, 82 S. Ct. 501 (1962). Oyler stated that, to prevail on such a claim, a plaintiff must establish that the selection of persons as targets for enforcement "was deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification." Id.4 The Court has recently reaffirmed this element of Oyler. See U.S. v. Armstrong, 134 L. Ed. 2d 687, 116 S. Ct. 1480, 1486 (1996).
Equal protection claims of this type are most often raised as defenses to a criminal prosecution, see, e.g., Government of Virgin Islands v. Harrigan, 791 F.2d 34, 35 (3rd Cir. 1986), or, as on Oyler, in the context of a habeas corpus proceeding. It would also seem possible to raise such claims in a civil suit against an arresting or prosecuting officer. See, e.g., Blount v. Smith, 440 F. Supp. 528, 531 (M.D. Pa. 1977) (considering, and rejecting, such a claim).
Cyprus avers that he was arrested solely because he was a dealer in antique firearms. This status is not (at least thus far) a member of the small group of classifications which are, from an equal protection perspective, "suspect." However, Cyprus may nevertheless be able to frame his claim as one under the equal protection clause. Oyler suggested that the equal protection clause barred selecting persons for prosecution on the basis of "other arbitrary classification[s]." If Cyprus can establish that the defendants had no rational basis whatsoever for selecting dealers in antique guns as a target of their law enforcement efforts -- and especially if he can establish that the selection was motivated by animus, rather than by a colorably rational weighing of the public's law-enforcement interests -- it is possible that his claim may succeed. Cf. Romer v. Evans, 134 L. Ed. 2d 855, 116 S. Ct. 1620, 1627-29 (1996) (finding that a law that does not burden a fundamental right and does not target a suspect class may nevertheless violate the equal protection clause if that law does not "bear a rational relation to a legitimate end," and treating evidence of animus as suggesting the lack of a legitimate governmental interest). Cyprus's equal protection claim may or may not be able to meet this standard; that question is, however, not now before this court.
D. Fourth Amendment
Finally, the defendants concede that the Fourth Amendment is available as a basis for Cyprus's claims. In discussing a claim based on an allegedly groundless arrest, the Third Circuit has said that "recovery under [a] Fourth Amendment seizure claim always requires proof that the defendant did not believe in the plaintiff's guilt or recklessly disregarded the truth." Lippay v. Christos, 996 F.2d 1490, 1502 (3rd Cir. 1993).
In conclusion, then, I will grant the defendants' summary judgment motion as to Cyprus's Sixth Amendment claim and his Fourteenth Amendment substantive due process claim, and deny their motion as to his Fourth Amendment claim and his Fourteenth Amendment equal protection and procedural due process claims.
IV. Qualified Immunity
The defendants assert that they have qualified immunity for their acts in arresting Cyprus. A state official is immune to damage claims brought under 42 U.S.C. § 1983 if a reasonable official in his position could have believed that his action or decision was lawful, in light of clearly established law and the information he possessed at the time he acted. See Hunter v. Bryant, 502 U.S. 224, 227, 116 L. Ed. 2d 589, 112 S. Ct. 534 (1991). Defendants Diskin and Furlong assert that, at the time of Cyprus's arrest, they read the Pennsylvania statute defining "antique firearms" in such a way that even a pre-1899 firearm was not an "antique" if it used ammunition that was readily available in the United States. Because this appears to have been true of the firearms sold by Cyprus (one of which, indeed, was sold with ammunition), their reading of the statute, if reasonable, would render Cyprus's arrest appropriate.
The relevant statute, 18 Pa.C.S.A. § 6118, provides:
(a) General rule. This subchapter shall not apply to antique firearms.