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Kelly v. Borough of Carlisle

October 4, 2010


On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 07-cv-01573) District Judge: Honorable Yvette Kane.

The opinion of the court was delivered by: Hardiman, Circuit Judge


Argued February 1, 2010

Before: Chief Judge McKEE, HARDIMAN, Circuit Judges and POLLAK*fn1 , District Judge.


Brian Kelly appeals the District Court's summary judgment in favor of police officer David Rogers and the Borough of Carlisle. Kelly filed a civil rights action, claiming that his First and Fourth Amendment rights were violated when he was arrested for filming Officer Rogers during a traffic stop. The gravamen of Kelly's appeal-that the District Court erred when it held that Officer Rogers's reliance upon legal advice before he arrested Kelly shielded him from liability-raises a question of first impression in the Third Circuit.



On May 24, 2007, Kelly was riding around Carlisle, Pennsylvania in a truck driven by his friend, Tyler Shopp. As was his habit, Kelly brought along a small, hand-held video camera, which he used to record people for no particular reason. In the course of their meanderings, Shopp was pulled over by Officer Rogers for speeding and for violating a bumper height restriction. During the traffic stop, Kelly placed the video camera in his lap and started recording Officer Rogers, allegedly without Rogers's knowledge or consent. Kelly testified that he began recording Rogers "after I saw how he was acting," which conduct allegedly included Rogers yelling at Shopp. Shopp and Rogers stated otherwise, testifying that Rogers acted professionally at all times. There is no dispute that Kelly was holding the camera in his lap during the encounter, although the parties disagree as to whether the camera was hidden. Rogers contends the camera was hidden by Kelly's hands, while Kelly claims it was in plain sight the entire time he was recording.

Toward the end of the traffic stop, Officer Rogers informed Shopp and Kelly that he was recording the encounter.*fn2 Rogers claims he then noticed Kelly was recording him, which Rogers believed was a violation of the Pennsylvania Wiretapping and Electronic Surveillance Control Act (Wiretap Act), 18 PA. CONS. STAT. §§ 5701-82. Rogers ordered Kelly to turn over the camera and Kelly complied. Rogers then returned to his police car and called Assistant District Attorney John Birbeck to confirm that Kelly had violated the Wiretap Act.*fn3 At his deposition, Rogers explained that he thought Kelly was violating the Wiretap Act because police must inform people when they record traffic stops. In Rogers's words: "as a police officer, when we conduct traffic stops and we're audio and video recording, we know -- I know it's the law that I must at some point during the stop inform the occupants that they're being audio and video recorded in accordance with the [A]ct." Because Kelly had not informed Rogers that he was recording, Rogers believed Kelly violated the Wiretap Act.

ADA Birbeck also concluded that Kelly violated the Wiretap Act based on the facts as described by Rogers. Rogers stated that he had stopped a car for speeding and bumper height violations. When he realized the passenger was videotaping him, he had seized the camera. Rogers did not tell Birbeck that he himself was also videotaping the stop.*fn4 Rogers then asked Birbeck whether Kelly's actions constituted a violation of the Wiretap Act. After reviewing the statute, Birbeck told Rogers that it was appropriate to make an arrest, although he advised Rogers not to seek bail at Kelly's arraignment.

After hearing Birbeck's opinion, Rogers called for a back-up unit and at least three additional officers arrived to assist with Kelly's arrest. Kelly testified that while he was being transported from the scene an officer admonished him: "when are you guys going to learn you can't record us." Kelly was arraigned before a local magistrate, who ordered bail despite Rogers's recommendation that Kelly be released on his own recognizance. Kelly could not make bail, however, so he was held in the Cumberland County Prison for 27 hours. Several weeks later, the Cumberland County District Attorney dropped the charges against Kelly, but issued a memorandum opining that Rogers had probable cause to arrest Kelly.


After the charges against him were dropped, Kelly sued Officer Rogers and the Borough of Carlisle under 42 U.S.C. § 1983, alleging violations of the First and Fourth Amendments to the United States Constitution as well as various state law claims. Following discovery, Defendants filed a motion for summary judgment, and Kelly sought partial summary judgment. The District Court granted summary judgment to Officer Rogers based on qualified immunity, and granted the Borough summary judgment because Kelly failed to present facts sufficient to establish municipal liability.

In the District Court's view:

Defendant [Rogers] 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. . . . [T]he ADA's advice was reasonable, so Defendant proceeded with the arrest. The Court agrees that any reasonable officer in Defendant's situation would have likewise relied on the advice given by the ADA.

Kelly v. Borough of Carlisle, 2009 WL 1230309, at *4 (M.D. Pa. May 4, 2009). In its analysis of the Fourth Amendment issue, the District Court stated that because Rogers did not have a reasonable expectation of privacy in his speech, ADA Birbeck may have incorrectly concluded there was probable cause to arrest Kelly. Id. Nonetheless, the Court held Rogers was entitled to qualified immunity on Kelly's Fourth Amendment claim because of Rogers's "good-faith reliance on this outside legal assessment of the situation." Id.

As for Kelly's First Amendment claim, the District Court held that it would not have been clear to a reasonable officer that arresting Kelly for violating the Wiretap Act would infringe upon his free speech rights. The Court reasoned that (1) it was unclear whether Kelly had a right to videotape the police stop because this Court had stated only that there "may" be a right to videotape police performing their duties on public property, and (2) even if the right to videotape had been clearly established, a reasonable officer would have thought his actions were constitutional since Rogers reasonably believed there was probable cause to arrest. Id. at *8. Kelly timely appealed the District Court's judgment.*fn5


Our review of the District Court's summary judgment is plenary, and we apply the same standards that the District Court applied in determining whether summary judgment was appropriate. Giles v. Kearney, 571 F.3d 318, 322 (3d Cir. 2009). Viewing the evidence in the light most favorable to the nonmovant, summary judgment is appropriate only if there is "no genuine issue as to any material fact [such] that the moving party is entitled to judgment as a matter of law." Id. (citing Fed. R. Civ. P. 56(c)). "The mere existence of some evidence in support of the nonmovant is insufficient to deny a motion for summary judgment; enough evidence must exist to enable a jury to reasonably find for the nonmovant on the issue." Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)).

The doctrine of qualified immunity protects government officials "from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Thus, we ask: (1) whether the facts alleged by the plaintiff show the violation of a constitutional right, and (2) whether the law was clearly established at the time of the violation. Saucier v. Katz, 533 U.S. 194, 201 (2001).

"The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Id. at 202. This inquiry "must be undertaken in light of the specific context of the case." Id. at 201. Therefore, to decide whether a right was clearly established, a court must consider the state of the existing law at the time of the alleged violation and the circumstances confronting the officer to determine whether a reasonable state actor could have believed his conduct was lawful. See Anderson v. Creighton, 483 U.S. 635, 641 (1987); Berg v. County of Allegheny, 219 F.3d 261, 272 (3d Cir. 2000); Paff v. Kaltenbach, 204 F.3d 425, 431 (3d Cir. 2000).

In Saucier, the Supreme Court required lower courts to determine whether a constitutional right was violated before deciding whether the law was clearly established. 533 U.S. at 201. This "rigid 'order of battle,'" Brosseau v. Haugen, 543 U.S. 194, 201-02 (2004) (Breyer, J., concurring), was short-lived, however, as the Supreme Court overruled Saucier's order of operations in Pearson v. Callahan, 129 S.Ct. 808, 817 (2009), holding that trial judges "should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand," id. at 818.

Recognizing its discretion to do so under Pearson, the District Court bypassed the question of whether Kelly's constitutional rights were violated and first considered whether the law was clearly established. Although the District Court explicitly held that the First Amendment law was not clearly established, its analysis of the Fourth Amendment did not engage the relevant state court precedents interpreting the Wiretap Act. Instead, the District Court simply concluded that Officer Rogers acted reasonably under the circumstances.



Kelly claims Officer Rogers violated his clearly established Fourth Amendment rights by arresting him without probable cause. In challenging the District Court's conclusion that Officer Rogers acted reasonably, Kelly contends the District Court failed to analyze the Wiretap Act and inappropriately relied on the presence of legal advice. Conversely, Officer Rogers argues that reliance on a prosecutor's advice is a permissible consideration in ...

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