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Corey v. Nassan

September 25, 2006

STEPHEN B. COREY, PLAINTIFF,
v.
SAMUEL J. NASSAN, II, INDIVIDUALLY AND IN HIS CAPACITY AS AN OFFICER OF THE PENNSYLVANIA STATE POLICE, AND JEFFERY B. MILLER, IN HIS CAPACITY AS COMMISSIONER OF THE PENNSYLVANIA STATE POLICE. DEFENDANTS,



The opinion of the court was delivered by: Conti, District Judge

MEMORANDUM ORDER

In this memorandum order, the court considers the motion for summary judgment (Doc. No. 25) filed by defendants Samuel J. Nassan, ("defendant Nassan") and Jeffery B. Miller, the Commissioner of the Pennsylvania State Police ("defendant Miller," and together with defendant Nassan, "defendants"), with respect to all claims against them asserted by plaintiff Stephen B. Corey ("plaintiff" or "Corey").

The court previously held a hearing on defendants' motion to dismiss in this matter. See Defendants' Motion for Summary Judgment ("Def. Mot. for S.J."), Appendix ("App.") C (Doc. No. 20) (July 25, 2005 Transcript of Hearing on Motion to Dismiss). At the hearing, the court noted on the record that Count II, alleging that the actions of defendants violated plaintiff's Fourth Amendment rights, was dismissed by consent of plaintiff. Id. at 7. The court ruled that the remaining count, Count I, alleging that the actions of defendants violated plaintiff's First Amendment rights, would be dismissed with respect to the Pennsylvania State Police as to both monetary damages and prospective injunctive relief and dismissed with respect to monetary damages as to defendant Miller. Id. at 7-9. The court, however, determined that plaintiff's claims under Count I could go forward against defendant Nassan for both monetary damages and injunctive relief and against defendant Miller only for injunctive relief. Id. at 8-9. Defendants' motion for summary judgment demonstrates that defendants understood the court's ruling to be dismissing the Pennsylvania State Police only as to monetary damages. The court, however, dismissed all claims against the Pennsylvania State Police and, therefore, will not consider arguments against it at this stage in the proceedings.

After considering the joint statement of material facts and the respective motions and briefs submitted by the parties, the court will grant in part and deny in part defendants' motion for summary judgment for the reasons set forth herein.

Background Facts

At the time of the incident in question, plaintiff worked as a flight attendant for US Airways out of Pittsburgh International Airport. See Def. Mot. for S.J., App. A (November 18, 2005 Deposition of Stephen B. Corey) ("Corey Dep.") at 7. Plaintiff had worked for US Airways for approximately ten years. Id. Defendant Nassan was a trooper with the Pennsylvania State Police stationed in Pittsburgh, Pennsylvania. Def. Mot. for S.J., App. B (October 14, 2005 Deposition of Samuel J. Nassan III) ("Nassan Dep.") at 7. At the time the following events took place, defendant Nassan had been with the Pennsylvania State Police for approximately two and one-half years -- he had spent approximately seven months of that time in training and the remainder of that time working under the rank of "Trooper." See Nassan Dep. at 6.

On June 25, 2004, at approximately 5:00 p.m., plaintiff and defendant Nassan were driving west along State Route 22/30. Nassan Dep. at 10; see Corey Dep. at 10 (referring to the roadway in question as "the Parkway between Interstate 79 and Campbells Run Road going towards the airport"). At some point, defendant Nassan pulled plaintiff over to the side of the road. Nassan Dep. at 15; Corey Dep. at 11. Defendant Nassan testified that he pulled plaintiff over for following too closely and speeding. Nassan Dep. at 16. The incident leading to the stop occurred while plaintiff was driving directly behind defendant in the left-hand lane. Id. at 10; Corey Dep. at 11.

Specifically, defendant Nassan testified that while plaintiff and he were driving in the left-hand lane, plaintiff "traveled behind me closer than one vehicle's distance for several hundred yards." Nassan Dep. at 10. At some point, defendant Nassan switched lanes, moving from the left-hand lane to the right-hand lane, allowing plaintiff to pass him. Nassan Dep. at 10; Corey Dep. at 10-11. After plaintiff passed him, defendant Nassan pulled into the left-hand lane and positioned his patrol vehicle directly behind plaintiff's vehicle. Nassan Dep. at 10, 13. Defendant Nassan testified, at that point, he clocked plaintiff going 70 miles per hour. Id. at 10, 15. Defendant Nassan activated his lights and siren, pulled plaintiff over to the side of the road, and conducted a traffic stop. Nassan Dep. at 15; see Corey Dep. at 11.

Defendant Nassan testified that plaintiff became agitated by the stop and asked why he was being pulled over. Nassan Dep. at 15. Plaintiff testified that defendant Nassan asked him "Do you know why I'm stopping you?" and when plaintiff said "No, I don't," defendant Nassan informed him that he was following defendant Nassan very closely and was going 70 miles per hour when he passed defendant Nassan. Corey Dep. at 11. Plaintiff testified that he found it hard to believe that he was going 70 miles per hour. Id. At this traffic stop, defendant Nassan issued plaintiff two citations, one for following too closely and the other for speeding.*fn1 See Nassan Dep. at 16-17; see Corey Dep. at 12.

While they were stopped, after the citations had been issued, defendant Nassan and plaintiff engaged in a brief conversation. See Nassan Dep. at 15-17; see Corey Dep. at 11-13. Defendant Nassan testified that he informed plaintiff that they were headed in the same direction, plaintiff on his way to the airport and defendant Nassan on his way to barracks, and said: "I'm going to be behind you. If you speed again, I'm going to stop you again." Nassan Dep. at 17. The plaintiff testified that Defendant Nassan stated: "By the way, I'm going to follow you all the way to the airport." Corey Dep. at 12, 13. The two returned to their vehicles and continued traveling in the same direction. Id.

To the west of the location where defendant stopped plaintiff, State Route 22/30 becomes State Route 60. See Nassan Dep. at 18. State Route 60 forks and the left-hand lanes remain State Route 60 while the right-hand lanes become the left lane for State Route 60 Business. Nassan Dep. at 18; see Corey Dep. at 13. Near this fork in the road, plaintiff and defendant Nassan had another interaction while still in their vehicles. It is unclear from the record exactly where each driver was located in relation to the other when they approached the State Route 60 and State Route 60 Business split. Apparently, however, after the split, plaintiff took the left fork and continued traveling on State Route 60 while defendant Nassan took the right fork and continued traveling on State Route 60 Business towards his barracks. Nassan Dep. at 22; Nassan Dep., Exhibit ("Ex.") B (hand-drawn picture).

Plaintiff testified that defendant Nassan and he were in different lanes when they reached the fork. Corey Dep. at 13. Plaintiff claims that he did not change lanes immediately preceding or during the split in the road. J.S.¶4 (Respondent); Pl.'s Statement of Necessary Facts (Doc. No. 31) ¶ 10. On the contrary, defendant Nassan testified that he observed plaintiff making an improper right-hand lane change signal while "making his left lane change." Nassan Dep. at 22. Specifically, defendant Nassan testified that plaintiff "rais[ed] his hand vertically from the left driver's side window at the same time he's making the lane change to the left." Nassan Dep. at 23. Defendant Nassan testified that at this moment his vehicle was to the right and just behind plaintiff's vehicle, about "mid car." Id. at 23, 25. After observing plaintiff's hand gesture, which defendant described as a "right-hand lane change when he's actually making a left-hand lane change," defendant Nassan returned to the police barracks where he wrote a citation for plaintiff. Nassan Dep. at 30-31. Defendant Nassan testified at his deposition that he did not stop plaintiff for a second time at that moment due to plaintiff's "confrontational attitude that he had from the first stop" and because "I felt for my safety and his safety it wasn't best for me to stop him again, it would just escalate the incident even further." Id. at 23-24.

Four days later, plaintiff received a citation relating to his hand gesture in the mail. Compl., Ex. A (citation); Nassan Dep., Ex. A (same); see Corey Dep. at 13. The citation indicated that plaintiff had violated a particular provision of the Pennsylvania Vehicle Code, namely, 75 PA. CONS. STAT. § 3336(1) (2005), which describes the proper hand signal for making a left turn (hereinafter the "proper hand signal provision"). See Compl., Ex. A (citation); Nassan Dep., Ex. A (same); J.S. § 8; Def.'s Mot. for Summary Judgment Statement of Undisputed Mat. Facts (hereinafter "Def.'s S.F.") ¶ 1. The citation was signed by defendant Nassan, dated June 25, 2005, and filed by defendant Nassan's supervisor on June 27, 2005. Id.; see Nassan Dep. at 29. The citation is numbered MO215855-3 and references citation numbers which appear to be from the handwritten notations MO215853-1 and MO215854-2. Id.

The proper hand signal provision describes the proper technique for exercising a hand or arm signal as a turn signal. 75 Pa. PA. CONS. STAT. § 3336 (2005). The statute provides that "[a]ll signals given by hand and arm shall be given from the left side of the vehicle. . . ." Id. (emphasis added). Concerning left turns, the provision of the statute in question provides that "[f]or a left turn, the hand and arm should be extended horizontally." Id. at § 3336(1) (emphasis added). On the citation given to plaintiff, defendant Nassan cited the proper hand signal provision and in the space provided for describing the "Nature of Offense" described plaintiff's hand gesture as "Def did give an improper hand signal while passing my patrol car namely middle finger up." Compl., Ex. A (citation)(emphasis added); Nassan Dep., Ex. A (same); see Nassan Dep. at 26.

In his deposition, plaintiff denied giving defendant Nassan the middle finger. Corey Dep. at 13-14; see also Joint S.F. ¶ 5; Def.'s S.F. ¶ 5. Rather, plaintiff testified that his gesture, made using his right hand was "a nod and a wave," similar to the British royal wave, whereby he extended his arm vertically and turned his palm inward and outward. Id. (emphasis added).

Defendant Nassan testified that while he noticed the "middle finger up" gesture given by the plaintiff, its significance to him was "[n]one at all" and he regarded plaintiff's hand gesture only as an improper traffic signal. Nassan Dep. at 27-28. Def's S.F. ¶ 6. During defendant Nassan's deposition, the following exchange took place between defendant Nassan and plaintiff's counsel:

Q: Now you didn't mention this "middle finger up" when you told me about the signal he gave you.

A: Well, that's what he used. That's what I have written there.

Q: Did that have any significance to you.

A: None at all.

Q: You didn't think he was being rude to you, or he was signaling you by that; is that correct? *** [Objection by defense counsel; ensuing colloquy between counsel; question repeated.]***

A: That is correct. I didn't think that he was being rude to me. That wasn't even on my mind at that time. I was interested in the violation.

Nassan Dep. at 26-28. Plaintiff contends, however, that defendant Nassan issued the citation in question solely because he felt insulted by the hand gesture that he perceived and not due to any driving violation by plaintiff. Pl.'s Resp. to Def.'s Mat. Facts (Doc. No. 30) ¶ 2.

Upon questioning concerning his reasons for issuing the citation, defendant Nassan acknowledged that while he would not call it rare, it was "less likely" that people use hand signals anymore. Id. at 31. He testified that he did not notice an automatic signal from plaintiff's car. Id. When asked whether plaintiff could have been waving at him, he replied: "No. It was a clear violation of the code." Id. When asked whether waving would have been a violation of the code he answered that it would not have been a violation "unless he elevated his arm vertically from the window, which signals, while operating a motor vehicle in the state of Pennsylvania, a right-hand lane change or turn." Id.

Upon questioning about his understanding concerning free speech and use of the middle finger, the following exchange took place between defendant Nassan and plaintiff's counsel:

Q: Now, are you aware of the various court cases that say that showing somebody a middle finger is free speech? *** [Objection by defense counsel; question rephrased.]***

Q: Are you aware of cases concerning showing somebody the middle finger?

A: I'm aware of some.

Q: What are you aware of?

A: I'm aware that it is their freedom of speech to do that. Unless it's done in the public view to where somebody can be offended, that could be considered disorderly conduct.

Q: Are you aware of the cases that say this is not disorderly conduct? *** [Objection by defense counsel.]***

A: I am aware of some of the cases, yes. I did not cite the Defendant [plaintiff] for disorderly conduct. I cited him for a traffic violation.

Q: I understand.

A: Okay. For the record.

Q: So in your view of the law, would it be improper to cite the Defendant [plaintiff] for disorderly conduct in this situation? *** [Objection by ...


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