The opinion of the court was delivered by: William W. Caldwell United States District Judge
Plaintiffs, Kenneth Doll, Sr. and Kenneth Doll, Jr., filed this action under 42 U.S.C. § 1983 against Carroll Township and two of its police officers, Terry D. Williams and Michael Bailey. The plaintiffs allege federal civil-rights claims against each of the defendants for unlawful arrest, malicious prosecution, and excessive force.
They aver the Township is liable because of policies or customs that permit its police officers to engage in unreasonable force, false arrest and malicious prosecution. The plaintiffs also allege that the Township failed to train its officers in the legal use of force and failed to investigate and take corrective action when its officers did use illegal force.
We are considering the defendants' motion for partial summary judgment. We will evaluate the motion under the well established standard. See Lawrence v. City of Philadelphia, 527 F.3d 299, 310 (3d Cir. 2008).
This case arises from a fire that destroyed Kenneth Doll, Jr.'s auto-repair business. He and his father got into a physical confrontation with the defendant police officers when the latter tried to move them back from the fire scene, eventually leading to charges of aggravated assault, resisting arrest and disorderly conduct. The defendant police officers say Plaintiffs refused an order to leave the fire scene for their own safety and that they had to be physically subdued to arrest them. For their part, Plaintiffs assert the officers attacked them without warning.
Aside from whether the defendants used reasonable force, it is undisputed that in the course of arresting Kenneth Doll, Jr., defendant Bailey struck him at least two times on the head with a flashlight, defendant Williams tasered him twice, and Bailey pepper-sprayed him once. In arresting Kenneth Doll, Sr., Williams tasered him once.
Both an unlawful-arrest claim and a malicious-prosecution claim have as an element a lack of probable cause. See Pittman v. McDuffy, 240 Fed. Appx. 524, 526 (3d Cir. 2007) (per curiam) (nonprecedential) (citing Dowling v. City of Philadelphia, 855 F.2d 136, 141 (3d Cir. 1988)(false-arrest claim), and Johnson v. Knorr, 477 F.3d 75, 81-82 (3d Cir. 2007)(malicious-prosecution claim)). The defendants move to dismiss these claims by arguing that the record shows that the defendant police officers had probable cause to arrest the plaintiffs on the three charges. They have two supports for this argument.
First, a Pennsylvania magisterial district judge determined at a preliminary hearing that Pennsylvania had established a prima facie case for all three charges, and such a determination is "weighty evidence" of probable cause, citing Brandt v. Borough of Palmyra, No. 08-677, 2009 U.S. Dist. Lexis 27160, at *10-11 (M.D. Pa. Mar. 30, 2009). We reject this argument. That a magisterial district judge determined that Pennsylvania had established a prima facie case may indeed be "weighty evidence," but it is not determinative, and we must consider Plaintiffs' testimony in the instant case that the two police officers attacked them without warning. If the fact finder believes the plaintiffs, there would be no probable cause.
Second, the defendants rely on the fact that Plaintiffs' counsel, who represented them in the criminal proceedings as well, conceded at the preliminary hearing that there was probable cause for the charges. We reject this argument as well because the statement must be read in context. It was made at a preliminary hearing, where the judicial officer only has to determine if the prosecutor has presented sufficient evidence for a trial to be held, not make credibility determinations. See Commonwealth v. Wojdak, 502 Pa. 359, 369-70, 466 A.2d 991, 996-97 (1983). Hence counsel's statement was not an admission of the truth of the evidence admitted to establish probable cause.
The defendants next argue that the malicious-prosecution claim fails as against the police officers because they did not initiate the prosecutions; the district attorney did. They cite in support Zeglen v. Miller, No. 04-1940, 2008 U.S. Dist. Lexis 20344, at *30-33 (M.D. Pa. Mar. 12, 2008), aff'd, Zeglen v. Pappert, 317 Fed. Appx. 233 (3d Cir. 2009)(nonprecedential). Zeglen does say that, generally, a malicious-prosecution claim is a claim against a prosecutor, not a police officer, on the reasoning that the prosecutor initiates the prosecution. However, it also says that such a claim can proceed against a police officer if the officer knowingly provided false information to the prosecutor. Id. at 31-32. In the instant case, the plaintiffs state that the defendant police officers provided false testimony as to the physical altercation that occurred on the night of the fire. Hence this claim can proceed.
The defendants have also moved for summary judgment on the claim against the Township, arguing that there is no evidence to establish liability on its part. A civil-rights claim against a municipality cannot proceed on the basis of respondeat superior. Monell v. Dep't of Soc. Services, 436 U.S. 658, 690, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978); Watson v. Abington Twp., 478 F.3d 144, 155 (3d Cir. 2007)(citing Monell). Instead, the plaintiff must establish that a policy or custom of the municipality caused the constitutional violation. Watson, 478 F.3d at 155. A policy is established when it is shown that "a decisionmaker possessing final authority to establish municipal policy with respect to the action" has "issue[d] an official proclamation, policy, or edict." Id. (quoted case, internal quotation marks, and internal brackets omitted). A custom is established when, in the absence of a formal statement of policy, it can be shown "that a given course of conduct . . . is so well settled and permanent as virtually to constitute law." Id. at 156 (quoting Monell)(internal quotation marks omitted). Custom is usually established by knowledge and acquiescence, id., that is, knowledge by the policymaker of an unconstitutional practice by lower level employees and acquiescence in that practice. See Beck v. City of Pittsburgh, 89 F.3d 966, 972 (3d Cir. 1996)(custom is established by policymakers being "aware of similar unlawful conduct in the past, but fail[ing] to take precautions against future violations")(quoted case omitted).
In the instant case, Plaintiffs contend that the Township has an unconstitutional policy of allowing its police officers to use a taser or pepper spray "any time a person under arrest does not comply with a verbal command." (Doc. 33, Opp'n Br. at p. 19). In support of this contention, they rely on the ...