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Kelly v. Borough of Carlisle

May 4, 2009


The opinion of the court was delivered by: Chief Judge Kane


Before the Court are Plaintiff's and Defendants' cross motions for summary judgment. (Doc. Nos. 23, 26/37.*fn1 ) The motions have been briefed by both parties and are ripe for disposition.


On May 24, 2007, in Carlisle, Pennsylvania, Plaintiff Brian Kelly was riding as a passenger in his friend, Tyler Shopp's, truck. (Doc. No. 24 ¶ 1.) Defendant David Rogers, a police officer for the Carlisle Police Department, observed Shopp speeding, and operating a vehicle that appeared to be in violation of an ordinance regulating vehicle bumper height. (Doc. No. 27 ¶ 2.) Rogers initiated a traffic stop. (Doc. No. 27 ¶ 2.) Kelly, who was carrying a hand-held video camera, turned on the camera and began to record Defendant Rogers. (Doc. No. 27 ¶¶ 3-4.) It is disputed whether the camera was in plain view or was covered by Plaintiff's hands. (Doc. No. 24 ¶ 3; Doc. No. 27 ¶ 5.) Rogers asked Shopp for his licence, registration, and insurance card, and before returning to his vehicle to process the information and write out a speeding citation, Rogers informed Shopp and Kelly that he was routinely recording the traffic stop. (Doc. No. 27 ¶ 6.) Upon returning to Shopp's vehicle with the citation, Officer Rogers noticed for the first time that Kelly was also recording the incident by video tape. (Doc. No. 24 ¶ 11.) Officer Rogers demanded that Kelly relinquish the video camera, and Kelly complied. (Doc. No. 27 ¶¶ 7-8.)

Officer Rogers returned to his patrol car with the camera and spent several minutes there while he called the District Attorney's office to determine whether Kelly had violated the Wiretapping and Electronic Surveillance Control Act ("Wiretap Act"). (Doc. No. 24 ¶ 13.) Officer Rogers told Assistant District Attorney ("ADA") John Birbeck that "he had pulled over a truck for a traffic violation and that the passenger in the truck had been secretly and nonconsensually recording [him]." (Doc. No. 24 ¶ 15.) It is disputed whether Officer Rogers informed Birbeck that he, too, had been recording the traffic stop. (Doc. No. 27 ¶ 13; Doc. No. 33, at 3.) Birbeck gave Officer Rogers his approval to charge Kelly with violation of the Wiretap Act, prompting Officer Rogers, with the assistance of back-up officers, to order Kelly out of the car and to arrest him. (Doc. No. 24 ¶ 23; Doc. No. 27 ¶ 19.) In the process of handcuffing and transporting Kelly to a patrol car, Officer Rogers "bumped" Kelly, causing staples from a previous rugby injury to tear open. (Doc. No. 24 ¶ 19; Doc. No. 27 ¶¶ 20-21.) Kelly's shin bled. (Doc. No. 24 ¶ 19.) Kelly had told Rogers that he could not get into the car on his own because of the knee injury but did not make any other complaints of pain. (Doc. No. 24, Ex. A, at 8-10.)

At Kelly's booking and arraignment, Rogers recommended that Kelly be released on his own recognizance, but the Judge required bail. (Doc. No. 24 ¶ 20.) Kelly, unable to make bail, spent the night in prison, where he received medical treatment for his shin before being released the next day. (Doc. No. 27 ¶¶ 27, 28.) A Magisterial District Judge approved Officer Rogers' Criminal Complaint and Affidavit of Probable Cause, however, Cumberland County District Attorney David Freed dropped the charges against Kelly before any further proceedings occurred. (Doc. No. 24 ¶ 21.)

Kelly now brings this action based upon 42 U.S.C. § 1983 and state law claims of assault, battery, false arrest, false imprisonment, malicious prosecution, and intentional infliction of emotional distress ("IIED"). He seeks an injunction from further such arrests and damages. Plaintiff Kelly seeks summary judgment on the grounds that probable cause did not exist to make the arrest, whereas Defendants Rogers and the Borough of Carlisle (collectively "Defendants") seek dismissal of nearly all claims on the basis that probable cause existed to make the arrest and, in the alternative, qualified immunity.


Federal Rule of Civil Procedure 56(c) provides, in relevant part, that summary judgment is appropriate "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). A factual dispute is material if it might affect the outcome of the suit under the applicable law, and it is genuine only if there is a sufficient evidentiary basis that would allow a reasonable fact finder to return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). At summary judgment, the inquiry is whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law. Id. at 251-52. In making this determination, the Court must "consider all evidence in the light most favorable to the party opposing the motion." A.W. v. Jersey City Pub. Schs., 486 F.3d 791, 794 (3d Cir. 2007).

The moving party has the initial burden of identifying evidence that it believes shows an absence of a genuine issue of material fact. Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 145-46 (3d Cir. 2004). Once the moving party has shown that there is an absence of evidence to support the nonmoving party's claims, "the non-moving party must rebut the motion with facts in the record and cannot rest solely on assertions made in the pleadings, legal memoranda, or oral argument." Berckeley Inv. Group. Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006); accord Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). If the nonmoving party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden at trial," summary judgment is appropriate. Celotex, 477 U.S. at 322.

With respect to the sufficiency of the evidence that the nonmoving party must provide, a court should grant summary judgment where the non-movant's evidence is merely colorable, conclusory, or speculative. Anderson, 477 U.S. at 249-50. There must be more than a scintilla of evidence supporting the nonmoving party and more than some metaphysical doubt as to the material facts. Id. at 252; see also, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).


Plaintiff brings suit against Officer Rogers in his individual and official capacities. Claims against an officer in his official capacity are equivalent to claims against the over-arching entity itself, and are therefore subject to the same defenses. Kentucky v. Graham, 473 U.S. 159, 166 (1985). Defendant Rogers suggests that claims against him in his individual capacity should be dismissed, even if he did not have probable cause to arrest Plaintiff Kelly, due to qualified immunity. The Borough of Carlisle argues that the claims against it should be dismissed because Plaintiff cannot show a policy or custom of deliberate indifference as required by Monell. The Court begins with these defenses.

A. Qualified Immunity

First, the Court will address the qualified immunity defense, which would release Officer Rogers from liability in his personal capacity. The Supreme Court has held that "where the defendant seeks qualified immunity, a ruling on that issue should be made early in the proceedings so that the costs and expenses of trial are avoided where the defense is dispositive." Saucier v. Katz, 533 U.S. 194, 200 (2001). Preferably, qualified immunity determinations are made at the summary judgment stage to allow entitled officers the benefit of immunity from suit as well as liability. Carswell v. Borough of Homestead, 381 F.3d 235, 241 (3d Cir. 2004). Qualified immunity is a question of law for the Court and requires the Court to ask two questions: whether, when considering the facts in the light most favorable to the plaintiff, the officer's conduct violated a constitutional right, and whether the constitutional right at issue was clearly established at the time of the arrest. Pearson v. Callahan, No. 07-751, 2009 WL 128768, at *6 (U.S. Jan. 21, 2009); Saucier, 533 U.S. at 200-02; Gilles v. Davis, 427 F.3d 197, 205 (3d Cir. 2005).

Nonetheless, a court's decision does not turn exclusively on these two inquiries, "[o]nce these requirements are found to have been satisfied, the inquiry proceeds to another, closely related issue, that is, whether the officer made a reasonable mistake as to what the law requires." Carswell, 381 F.3d 235 (3d Cir. 2004); see also, Egolf v. Witmer, 526 F.3d 104, 110 (3d Cir. 2008) ("The second prong of the qualified immunity analysis is focused upon whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted."). Qualified immunity determinations should take into account the entire episode and allow for cases where officers "reasonably but mistakenly conclude that probable cause to make an arrest is present . . . . [I]n such cases, those officers . . . will not be held personally liable." Orsatti v. New Jersey State Police, 71 F.3d 480, 483 (3d Cir. 1995). Thus, "the qualified immunity doctrine gives ample room for mistaken judgments by protecting all but the plainly incompetent or those who knowingly violate the law." Id. at 483; Carswell, 381 F.3d 235.

1. Qualified Immunity for False Arrest, False Imprisonment, and Malicious Prosecution

The Supreme Court recently determined that the two prongs of the qualified immunity inquiry may be taken up in either order, at the discretion of the trial court judge. Pearson, 129 S.Ct. at 821 (withdrawing from the Saucier mandate that required the constitutional violation to be discussed before the issue of whether the right was clearly established). Because in this case there are serious contentions as to whether probable cause was established at the time of arrest, and therefore whether a constitutional violation occurred, the Court begins with the question of whether, "on the objective legal reasonableness of the action, assessed in light of the legal rules that were clearly established at the time it was taken," Officer Rogers was on notice that his conduct in arresting Plaintiff Kelly was unlawful. Pearson, 129 S.Ct. at 822 (internal citations omitted). In other words, the "contours of the right must be sufficiently clear that a reasonable official would understand what he is doing violates that right." Saucier, 533 U.S. at 201. It is true that "the right to be free from arrest except on probable cause was clearly established at the time of [Plaintiff's] arrest." Orsatti, 71 F.3d at 483. However, as the Third Circuit counseled in Carswell, Orsatti, and Gilles, the inquiry does not end here because the analysis for qualified immunity is distinct from establishment of a constitutional violation. Carswell, 381 F.3d at 242; Saucier, 533 U.S. at 206 ("[E]ven if a court were to hold that the officer violated the Fourth Amendment by conducting an unreasonable, warrantless search, Anderson still operates to grant officers immunity for reasonable mistakes as to the legality of their actions."); Orsatti, 71 F.3d at 483; Gilles, 427 F.3d at 206-07.

In this case, Defendant acted as reasonably as could be expected. He observed Kelly videotaping the police stop without his permission. Then, he followed police policy in calling the ADA to confirm that there was probable cause to make an arrest under the Wiretap Act. Based upon Officer Rogers' experience-that he has a legal obligation to disclose to Shopp and Kelly any recording he makes so as to avoid violating the Wiretap Act-the ADA's advice was reasonable, so Defendant proceeded with the arrest. ...

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