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Brian D. Kelly v. the Borough of Carlisle and

September 6, 2011


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


On May 4, 2009, this Court granted Defendants' motion for summary judgment and denied Plaintiff's motion for summary judgment. (Doc. No. 40.) Plaintiff appealed to the United States Court of Appeals for the Third Circuit. (Doc. No. 42.) On October 4, 2010, the Third Circuit affirmed this Court's order in part and vacated the order in part. Kelly v. Borough of Carlisle, 622 F.3d 248, 256-58 (3d Cir. 2010). The Third Circuit remanded the matter to this Court to make additional factual findings and to reconsider its order granting Defendant David Rogers's motion for summary judgment on Plaintiff's Fourth Amendment claims. Id. For the reasons stated more fully herein, the Court will deny Defendant's motion for summary judgment.


On May 24, 2007, in Carlisle, Pennsylvania, Plaintiff Brian Kelly was riding as a passenger in a truck driven by his friend Tyler Shopp. (Doc. No. 24 ¶ 1.) Defendant David Rogers, a police officer for the Carlisle Police Department, initiated a traffic stop after he observed Shopp speeding and operating a vehicle that appeared to be in violation of an ordinance regulating vehicle bumper height. (Doc. No. 27 ¶ 2.) Plaintiff, who was carrying a hand-held video camera, turned on the camera and began to record Defendant. (Id. ¶¶ 3-4.) Plaintiff kept the camera in his lap at all times when Defendant was at the truck.*fn1 (Id. ¶ 5; Doc. No. 27-6, Ex. C at 30:22.) 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.) For purposes of Defendant's motion for summary judgment, the Court will credit Plaintiff's assertion that the camera sat uncovered on his lap in the palm of his hand. (Doc. No. 27-6, Ex. C at 39:8-10.) However, there does not appear to be any dispute that Plaintiff's hands were also in his lap during the stop. (Doc. No. 33-3, Ex. B at 13:14-22.) Nor is there any dispute that Plaintiff never told Defendant that he was recording the stop. (Doc. No. 27-6, Ex. C at 37:24.) Further, it is undisputed that the dimensions of the camera in question were approximately two inches wide by four inches long by two inches tall. (Doc. No. 27-6, Ex. C at 39:9-12.)

Near the end of the traffic stop Defendant told Plaintiff and Shopp that the stop was being recorded by a dashboard camera on the police car and a microphone in Defendant's shirt pocket. (Doc. No. 27 ¶ 6.) As shown in the videotape, after Defendant returned to Shopp's truck with a citation, Shopp began to question Defendant regarding how many "points" he would receive for the cited violations. (Doc. No. 29.) As Defendant began to answer Shopp's question, he stopped and demanded that Plaintiff cease recording and surrender the videotape. (Doc. No. 29.) Plaintiff complied. (Doc. No. 27 ¶ 8.) Defendant returned to his police vehicle and called Assistant District Attorney John Birbeck to determine whether Plaintiff's actions violated the Pennsylvania Wiretapping and Electronic Surveillance Control Act, 18 Pa. Cons. Stat. § 5701 et seq., and if so, to receive permission to file appropriate charges. (Doc. No. 27 ¶¶ 9-12.)

As ADA Birbeck explained in his uncontested testimony, it is the policy of the Cumberland County District Attorney's Office to require police officers to receive approval prior to making certain types of arrests. (Hearing Transcript.) ADA Birbeck explained that during the call Defendant relayed the facts to him and asked him whether those facts gave rise to probable cause to arrest Plaintiff for a Wiretap Act violation. (Hearing Transcript.) ADA Birbeck believed the facts did give rise to probable cause and as a result gave Defendant an approval number to charge Plaintiff with a violation of the Wiretap Act. (Hearing Transcript.) In his deposition ADA Birbeck indicated that Defendant did not affirmatively state that he was videotaping the stop in accordance with standard Carlisle Police Department procedure. (Doc. No. 33-4, Ex. G at 7:16-21.)


Rule 56(a) of the Federal Rules of Civil Procedure provides that summary judgment is warranted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a).*fn2 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 non-moving 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. Grp.. Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006); accord Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). If the non-moving 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 warranted. Celotex, 477 U.S. at 322. With respect to the sufficiency of the evidence that the non-moving 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 non-moving 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). Further, a party may not defeat a motion for summary judgment with evidence that would not be admissible at trial. Pamintuan v. Nanticoke Mem'l Hosp., 192 F.3d 378, 387 (3d Cir. 1999).


In its opinion remanding this matter, the Court of Appeals outlined three questions for this Court's consideration. The first two questions are questions of fact, namely: (1) whether Plaintiff hid the camera and was in fact "secretly" recording Defendant during the stop; and (2) whether Defendant called ADA Birbeck to seek legal advice. Kelly, 622 F.3d at 256. The third question is a question of law. The Court of Appeals held that it was clearly established that probable cause did not exist to arrest Plaintiff for a violation of the Pennsylvania Wiretap Act. In light of this holding, the court of appeals asked this Court to determine "how the Pennsylvania Wiretap Act fits into the landscape painted" by cases holding that police officers generally have a duty to know the basic elements of the laws they enforce. Id. at 258. The Court interprets this directive as requiring it to determine whether Defendant's erroneous probable cause determination was unreasonable as a matter of law and therefore not entitled to qualified immunity. Because an affirmative response to the legal inquiry would obviate the need for any further findings of fact, the Court will consider this issue first. Then, if necessary, the Court will make the findings of fact ordered by the court of appeals.

A. Whether a Police Officer Can Ever Be Entitled to Qualified Immunity for an Erroneous Probable Cause Determination Where the Law is Clearly Established In its order remanding this matter, the court of appeals found that:

[A]t the time of Kelly's arrest, it was clearly established that a reasonable expectation of privacy was a prerequisite for a Wiretap Act violation. Even more to the point, two Pennsylvania Supreme Court cases -- one almost 20 years old at the time of Kelly's arrest -- had held that covertly recording police officers was not a violation of the Act. Finally, it was also clearly established that police officers do not have a reasonable expectation of privacy when recording conversations with suspects.

Id. at 258. The court of appeals further observed that "police officers generally have a duty to know the basic elements of the laws they enforce." Id. (citing Lawrence v. Reed, 406 F.3d 1224, 1234 (10th Cir. 2005); Peterson v. City of Plymouth, 945 F.2d 1416, 1420-21 (8th Cir. 1991); Hall v. Ochs, 817 F.2d 920, 924 (1st Cir. 1987)). Against this background, this Court must determine whether these findings must necessarily lead to the conclusion that qualified immunity is unavailable to Defendant Rogers. The Court concludes that they do not.*fn3

Applying the Third Circuit's observation that police officers generally have a duty to know the elements of the laws they enforce as a starting point, the Court acknowledges that there exist exceptions to this general rule. Indeed, in establishing the general rule that police officers are required to know clearly established law the United States Supreme Court noted that the rule is not absolute. Harlow v. Fitzgerald, 457 U.S. 800, 818-19 (1982) (holding that in extraordinary circumstances where a police officer "neither knew nor should have known of the relevant legal standard" qualified immunity may still be available). In Amore v. Novarro, 624 F.3d 522 (2d Cir. 2010), the United States Court of Appeals for the Second Circuit considered ...

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