TERRENCE F. McVERRY, District Judge.
Trial in this contentious civil rights case is scheduled to commence on October 28, 2013. The Court believes that it is important to provide clear ground rules for the presentation of evidence to facilitate the efficient presentation of the case and to avoid disputes between counsel in the presence of the jury. In preparation of the Final Jury Instructions and consideration of the proposals and issues raised by the parties, the Court has determined certain legal conclusions which may streamline the presentation of evidence at trial.
To succeed on her First Amendment Retaliation claim, Slusar must prove: (1) that she engaged in constitutionally-protected activity; (2) that Officer Sestili responded with a retaliatory adverse action; and (3) that the protected activity caused the retaliation. Eichenlaub v. Twp. of Indiana, 385 F.3d 274, 282 (3d Cir. 2004). Plaintiff has articulated two distinct theories of liability. First, Slusar argues that Sestili left a phone message to retaliate for Slusar's assertion of her Fourth Amendment rights and her earlier call to 911 on May 18th. Second, Slusar contends that Sestili filed criminal charges against her a month later, on June 15, in retaliation for Slusar having triggered an investigation of the matter by the Allegheny County District Attorney.
Because this second theory of alleged retaliation is based on the filing of a criminal complaint by Officer Sestili, Slusar must also prove the absence of probable cause for said criminal charges. Hartman v. Moore, 547 U.S. 250, 265-66 (2006). Officer Sestili filed three criminal charges against Slusar for: (1) Obstructing the Administration of Law, 18 P.S. § 5101; (2) Hindering Apprehension or Prosecution, 18 P.S. § 5105; and (3) Disorderly Conduct, 18 P.S. § 5503, all based on her actions during the May 18, 2011 incident. Slusar may satisfy the "lack of probable cause" element of her retaliation claim by establishing that Officer Sestili lacked probable cause for any one of these charges. Johnson v. Knorr, 477 F.3d 75, 85 (3d Cir. 2007) ("a defendant initiating criminal proceedings on multiple charges is not necessarily insulated in a malicious prosecution case merely because the prosecution of one of the charges was justified.")
Officer Sestili was not required to have proof beyond a reasonable doubt that Slusar had committed the crimes charged, nor is the existence of probable cause negated by the fact that the charges were dismissed by Magisterial District Judge Hromyak at the preliminary hearing stage. The test is whether the facts and circumstances within Officer Sestili's knowledge were sufficient to warrant a reasonable belief that each of the offenses had been committed. Merkle v. Upper Dublin Sch. Dist., 211 F.3d 782, 788, 789 (3d Cir. 2000). The existence of probable cause is usually a jury question, although it may be resolved by the district court as a matter of law. Id. at 788-89.
In this case, it is clear that Officer Sestili did not have probable cause to charge Slusar with Hindering Apprehension or Prosecution, which is defined as follows (emphasis added):
(a) Offense defined.-A person commits an offense if, with intent to hinder the apprehension, prosecution, conviction or punishment of another for crime or violation of the terms of probation, parole, intermediate punishment or Accelerated Rehabilitative Disposition, he:
(1) harbors or conceals the other;
(2) provides or aids in providing a weapon, transportation, disguise or other means of avoiding apprehension or effecting escape;
(3) conceals or destroys evidence of the crime, or tampers with a witness, informant, document or other source of information, regardless of its admissibility in evidence;
(4) warns the other of impending discovery or apprehension, except that this paragraph does not apply to a warning given in connection with an effort to bring another into compliance with law; or
(5) provides false information to a law enforcement officer.
18 P.S. § 5105. It is undisputed that Constable Harff was attempting to serve arrest warrants on Darrick Pryor for vehicle-related summary offenses. The arrest warrants, to the extent legible, reflect that Pryor committed alleged violations of 75 P.S. § 1543(a) (driving with a suspended license). The maximum penalty for a violation of 75 P.S. § 1543(a) is payment of a fine of $200. During the incident of May 18th, Sestili reviewed the arrest warrants and stated out loud that they were for "traffic ...