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Brian D. Kelly v. David J. Rogers

June 13, 2012

BRIAN D. KELLY, PLAINTIFF
v.
DAVID J. ROGERS, DEFENDANT



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

MEMORANDUM

Because of its unusual procedural history, this matter was presented to a jury for trial of discrete factual questions relevant to the issue of whether Defendant David Rogers is entitled to qualified immunity on Plaintiff Brian Kelly's Fourth Amendment claims. On February 21, 2012, the jury returned a verdict on those questions. For the reasons stated more fully herein, based on the facts as determined at trial, the Court finds that Defendant is entitled to qualified immunity on Plaintiff's claims based on the arrest of Plaintiff but is not entitled to qualified immunity as to the seizure of Plaintiff's camera. Accordingly, the Court will enter judgment in favor of Defendant in part and in favor of Plaintiff in part.

I. PROCEDURAL BACKGROUND

Plaintiff Brian Kelly commenced this action by filing a complaint against the Borough of Carlisle and David Rogers on August 27, 2007. (Doc. No. 1.) Plaintiff alleged violations of his First Amendment and Fourth Amendment rights and also raised various state law claims arising from Defendant's arrest of Plaintiff Kelly on May 24, 2007. (Id.) On May 4, 2009, this Court granted Defendants' motion for summary judgment and denied Plaintiff's motion for partial summary judgment. Kelly v. Borough of Carlisle (Kelly I), No. 1:07-cv-1573, 2009 U.S. Dist. LEXIS 37618 (M.D. Pa. May 4, 2009). In that order, the Court found that Defendant Borough of Carlisle was not a proper defendant and granted summary judgment in its favor on all federal claims. Id. The Court further held that Defendant was entitled to qualified immunity on the First and Fourth Amendment claims. Id. All federal claims having been disposed of, the Court declined to exercise supplemental jurisdiction on all remaining state law claims. Id. The Court then entered judgment in favor of Defendants. (Doc. No. 41.)

Plaintiff filed a notice of appeal on June 2, 2009. (Doc. No. 42.) On November 8, 2010, the United States Court of Appeals for the Third Circuit affirmed this Court's judgment in part and vacated the judgment in part. Kelly v. Borough of Carlisle (Kelly II), 622 F.3d 248 (3d Cir. 2010). Specifically, the Court of Appeals vacated those portions of this Court's order addressing Defendant's motion for summary judgment on Plaintiff's Fourth Amendment claims and affirmed on all remaining issues. Id. at 256-58. In its order remanding the case, the Court of Appeals directed this Court to make additional findings of fact regarding the qualified immunity question. Id. at 256. On remand, this Court concluded that outstanding factual disputes remained that prevented the Court from entering summary judgment. Kelly v. Borough of Carlisle (Kelly III), 815 F. Supp. 2d 810, 821 (M.D. Pa. 2011). Following the Court's order denying summary judgment, Plaintiff entered a stipulation of voluntary dismissal of all claims with the exception of Plaintiff's Fourth Amendment claims. (Doc. No. 71.) Prior to trial, the parties stipulated that, in light of the Third Circuit's order, it was clear that a constitutional violation had taken place.*fn1 Accordingly, the parties agreed that trial would focus solely on the factual questions underlying the question of whether Defendant David Rogers is entitled to qualified immunity.*fn2 At trial, both parties moved for judgment as a matter of law pursuant to Rule 50(a) of the Federal Rules of Civil Procedure, which the Court denied. The parties have each filed renewed motions for judgment as a matter of law pursuant to Rule 50(b) of the Federal Rules of Civil Procedure.

II. FINDINGS OF FACT

At the close of trial, the Court put the following questions to the jury:

1. Did Defendant David Rogers reasonably believe that Plaintiff Brian Kelly attempted to videotape Defendant Rogers without his knowledge?

2. Did Defendant David Rogers call Assistant District Attorney Birbeck, at least in part, for the purpose of seeking legal advice regarding whether probable cause existed to arrest Plaintiff Brian Kelly?

3. Did Assistant District Attorney Birbeck tell Defendant Rogers that probable cause existed to arrest Plaintiff Brian Kelly?

4. Did Defendant David Rogers tell Assistant District Attorney Birbeck that the police vehicle was recording the stop?

4A. If Defendant David Rogers did not tell Assistant District Attorney

Birbeck that the police vehicle was recording the stop, did Defendant Rogers omit this fact deliberately or recklessly? (Doc. No. 87.) In response, the jury found that: (1) Defendant did reasonably believe that Plaintiff was attempting to videotape him without his knowledge; (2) Defendant did call Assistant Attorney Birbeck, at least in part, for the purpose of seeking legal advice regarding whether probable cause existed to arrest Plaintiff; (3) Assistant District Attorney Birbeck did tell Defendant that probable cause existed to arrest Plaintiff; (4) Defendant did not tell Assistant District Attorney Birbeck that the police vehicle was recording the stop; but (5) Defendant did not omit the fact that the police vehicle was recording the stop deliberately or recklessly. (Id.)

These factual disputes having been resolved, the Court will briefly review both the facts as found by the jury and the undisputed facts relevant to the qualified immunity determination. On May 24, 2007, in Carlisle, Pennsylvania, Plaintiff Brian Kelly was riding as a passenger in a truck driven by Tyler Shopp. (Doc. No. 27 ¶ 1.) Defendant David Rogers, a police officer for the Carlisle Police Department, initiated a traffic stop of the vehicle. (Id. ¶ 2.) Plaintiff, who was carrying a hand-held video camera, turned on the camera and began to record Defendant. (Id. ¶¶ 3-4.) 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. (Id. ¶ 6.) As shown in the videotape of the incident, which was introduced at trial, after Defendant returned to Shopp's truck with a citation, Shopp began to question Defendant regarding how many ...


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