United States District Court, E.D. Pennsylvania
July 17, 2015
KIA GAYMON et al., Plaintiffs,
BOROUGH OF COLLINGDALE et al., Defendants
KIA GAYMON, MICHAEL GAYMON, SANSHURAY PURNELL, Plaintiffs:
JONATHAN H. FEINBERG, LEAD ATTORNEY, KAIRYS RUDOVSKY MESSING
& FEINBERG LLP, PHILADELPHIA, PA.
BOROUGH OF COLLINGDALE, CARL WHITE, POLICE OFFICER, WILLIAM
ECKERT, POLICE OFFICER, Defendant: MARK ALAN RAITH, ROBERT P.
DIDOMENICIS, HOLSTEN & ASSOCIATES, MEDIA, PA.
Austin McHugh, United States District Court Judge.
a case where, if the allegations are true, a petty complaint
from a neighbor led to a grossly disproportionate response by
police, culminating in officers entering a family's home
and arresting its owner for doing nothing more than
attempting to videotape the officers' over-reaction on
her own property. It is a claim which can only be described
as having particular resonance when viewed against the
backdrop of recent events nationally, where videotapes by
citizens have proven to be indispensable in bringing to light
instances where police unfortunately misused their power. The
facts remain unproven, but Defendants here seek to prevent
Plaintiffs from even making their case by claiming that they
are entitled to qualified immunity. When viewed against the
allegations of this Complaint, the assertion of that defense,
which would terminate this case at its outset, brings into
sharp focus the question of whether the doctrine of qualified
immunity is being invoked more than is warranted. Suffice it
to say that dismissing this Complaint at the pleading stage
given the record before me would risk rendering the Bill of
Rights meaningless, at least as it applies to the sanctity of
a citizen's home. Accordingly, the Motion to Dismiss has
Facts Alleged in Plaintiffs' Complaint
Kia Gaymon is a 38-year-old social work supervisor for a
nonprofit agency. She has a Masters of Social Work from
Temple University. Her husband, Plaintiff Michael Gaymon, is
a 35-year-old technician with a telecommunications utility
company, in addition to currently completing his college
education. They have a 21-year-old daughter, Plaintiff
Sanshuray Purnell, and a 10-year-old son. They own a home in
Collingdale, Pennsylvania, where they have lived with their
children since March 2007.
February 22, 2014, Defendant Officers Carl White and William
Eckert went to Plaintiffs' home in response to a call
made by their next-door neighbor, who allegedly complained
that Mr. Gaymon's mother (a guest in their home at the
time) had parked her car so that the front tire was on the
curb in front of the neighbor's house. Upon arriving, the
Defendant officers confronted Plaintiffs as they were leaving
for a family outing. According to the Complaint, Defendant
White began yelling at them in an aggressive manner, asking
who spit at their neighbor.
Mrs. and Mr. Gaymon explained that they had done nothing
wrong, and that their neighbor falsely accused them of
spitting at her. Defendant White then allegedly approached
Mr. Gaymon in an antagonistic way, placing his face within
inches of Mr. Gaymon's face while yelling at him. Mrs.
Gaymon, concerned about the officer's aggressive conduct,
took out her cell phone and began making a video recording.
Officer White approached Mrs. Gaymon, at which point she
moved inside her home, continuing to video White by either
leaning around the storm door or through the window in the
to the Complaint, White ordered Mrs. Gaymon to stop
videotaping him, and declared that her doing so violated
Pennsylvania's wiretap statute. Her husband and daughter,
who were standing in front of their home, told White he was
incorrect, and Mrs. Gaymon had a right to record. White told
Mrs. Gaymon that if she did not stop taping him, he would
enter her house, seize her phone, and arrest her. Mrs. Gaymon
told White he was not permitted to enter her home. He walked
up the stairs to the front entrance, but before entering, he
grabbed her daughter Sanshuray, handcuffed her, placed her
under arrest, and threatened to deploy his Taser against her.
Officer Eckert then removed Sanshuray from the scene.
White is next alleged to have entered Plaintiffs' home
and ordered Mrs. Gaymon again to stop videotaping him. Mrs.
and Mr. Gaymon reiterated that they did not consent to his
entry, and he was not permitted to be in their home. Ignoring
them, Defendant White allegedly grabbed Mrs. Gaymon, pushed
her up against the wall, and held his Taser to her chest. At
this time, Defendant Officers Eckert and others identified as
" John Does" joined Officer White and placed Mrs.
Gaymon under arrest. They removed Mrs. Gaymon from her home,
placed her in a separate police vehicle from her daughter,
and drove both women to the Collingdale Police Station.
officers released Mrs. Gaymon and Sanshuray from police
custody later that day, stating they would receive citations
in the mail for " disorderly conduct" under 18 Pa.
Cons. Stat. § 5503, which they did. As a result, they
retained counsel to represent them during their court
proceeding. On May 22, 2014, Mrs. Gaymon and Sanshuray
appeared before a Magisterial District Justice. After hearing
testimony from Defendant White, the Magisterial District
Justice dismissed all charges.
Plaintiffs contend that they never engaged in wrongdoing of
any kind, and Defendants never had probable cause to believe
they engaged in disorderly conduct or committed any other
criminal violation. They further plead that the criminal
proceedings were maliciously initiated. In addition,
Plaintiffs claim that Defendants did not have legal cause to
enter their home, and the Defendant officers' acted in
retaliation for Plaintiffs' engaging in First Amendment
activity, including disagreeing with Defendant White and
protesting the officers' entry into their home.
Complaint consists of four civil rights claims brought under
42 U.S.C. § 1983 against the Borough of Collingdale and
the individual Defendants: Officers White, Eckert, and Does.
Mrs. Gaymon and Sanshuray Purnell assert a Fourth Amendment
wrongful arrest claim (Count I); a Fourth Amendment malicious
prosecution claim (Count II); and a First Amendment
retaliatory arrest claim (Count III). Joined by Mr. Gaymon,
they further assert a Fourth Amendment unlawful search
violation (Count IV).
moved to dismiss Plaintiffs' Complaint, arguing that the
Defendant officers are entitled to qualified immunity. In
their written motion, Defendants argued that whether Mrs.
Gaymon's conduct in recording Officer White violated the
Pennsylvania Wiretap Act was not clearly established as of
February 22, 2014, which would have resulted in dismissal of
only Mrs. Gaymon's unlawful arrest and malicious
argument, defense counsel took the bold position that
qualified immunity should be extended to shield the Defendant
officers from all liability, including the constitutional
claims alleged by Ms. Purnell and Mr. Gaymon. Defendants
sought to redefine the focus of the qualified immunity
analysis to whether there was a clearly established "
First Amendment right to record" police officers
performing their official duties at the time of the alleged
incident in 2014. I will analyze these distinct arguments
separately, but the result remains the same regardless of how
one frames the issue. Under these circumstances, qualified
immunity provides no defense.
determining whether the Defendant officers are shielded from
liability based on qualified immunity, I must accept
Plaintiffs' factual allegations as true and draw all
reasonable inferences in their favor. Ashcroft v.
Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d
868 (2009); George v. Rehiel, 738 F.3d 562, 571 (3d
Cir. 2013). " Qualified immunity shields government
officials from personal 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.'" George, 738 F.3d at 571-72 (citing
Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct.
2727, 73 L.Ed.2d 396 (1982)). The doctrine is intended to
give officers " breathing room to make reasonable but
mistaken judgments about open legal questions."
Id. Consequently, " [a]ny claim of qualified
immunity must be resolved at the earliest possible stage of
the litigation." Miller v. Clinton County, 544
F.3d 542, 547 (3d Cir. 2008). Defendants emphasize that under
a proper qualified immunity analysis, the doctrine protects
" all but the plainly incompetent or those who knowingly
violate the law." Id. at 572 (citing
Ashcroft v. al-Kidd, 563 U.S. 731, 131 S.Ct. 2074,
2085, 179 L.Ed.2d 1149 (2011)).
overcome the defense of qualified immunity, Plaintiffs must
allege facts showing that the Defendant officers' conduct
(1) " violated a statutory or constitutional right, and
(2) that the right was 'clearly established' at the
time of the challenged conduct." George, 738
F.3d at 572 (quoting al-Kidd, 131 S.Ct. at 2080).
Following Pearson v. Callahan, 555 U.S. 223, 236,
129 S.Ct. 808, 172 L.Ed.2d 565 (2009), I do not need to
undertake the two-part inquiry in sequential order. Here,
given the conduct of the police--following Mrs. Gaymon into
her home over her protest and charging her for videotaping on
her own property--I will focus on the second part of the test
concerning whether the law was clearly established.
bear the burden of establishing their entitlement to the
affirmative defense of qualified immunity. See Halsey v.
Pfeiffer, 750 F.3d 273, 288 (3d Cir. 2014). Thus, in
light of Defendants' arguments, to succeed under either
theory, they must prove that the statutory or constitutional
right in question was not clearly established at the time of
the incident. For purposes of this inquiry, the "
contours of the right must be sufficiently clear that a
reasonable official would understand that what he is doing
violates that right." Schneyder v. Smith, 653
F.3d 313, 329 (3d Cir. 2011) (citing Anderson v.
Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d
523 (1987)). In evaluating the state of the law in 2014, the
" salient question" is whether the officers had
" fair warning" that their conduct was
unconstitutional. See Hope v. Pelzer, 536 U.S. 730,
741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002).
particular significance here:
[t]o be established clearly, however, there is no need that
" the very action in question [have] previously been
held unlawful." Wilson v. Layne, 526 U.S. 603,
615, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999). The
unconstitutionality of outrageous conduct obviously will be
unconstitutional, this being the reason, as Judge Posner has
said, that " [t]he easiest cases don't even
arise." K.H. v. Morgan, 914 F.2d 846, 851 (7th
Cir. 1990). But even as to action less than an outrage,
" officials can still be on notice that their conduct
violates established law . . . in novel factual
circumstances." Hope v. Pelzer, [536 U.S. at
Safford Unified Sch. Dist. No. 1 v. Redding, 557
U.S. 364, 377-78, 129 S.Ct. 2633, 174 L.Ed.2d 354 (2009)
(emphasis added). When no case law addresses the specific
facts at issue, " a general constitutional rule already
identified in the decisional law may apply with obvious
clarity to the specific conduct in question."
Hope, 536 U.S. at 741.
See also Schneyder, 653 F.3d at 330 (" There
has never been a section 1983 case accusing welfare officials
of selling foster children into slavery; it does not follow
that if such a case arose, the officials would be immune from
damages liability because no previous case had found
liability in those circumstances." ) (internal citation
omitted); Sterling v. Borough of Minersville, 232
F.3d 190, 198 (3d Cir. 2000) (" Because the confidential
and private nature of the information was obvious, and
because the right to privacy is well-settled, the concomitant
constitutional violation was apparent notwithstanding the
fact that the very action in question had not previously been
held to be unlawful." ).
The Charge of Disorderly Conduct
review of the record here, I find it appropriate to echo the
Third Circuit in Schneyder, because this case strikes me as
" a member of that class of 'easiest cases'
that, according to Judge Posner, 'don't even
arise.'" 653 F.3d at 330. Perhaps the self-evident
wrongfulness of the officers' conduct here is best
illustrated by the clear terms of the disorderly conduct
statute under which Mrs. Gaymon and her daughter were
A person is guilty of disorderly conduct if, with intent to
cause public inconvenience, annoyance or alarm, or recklessly
creating a risk thereof, he:
(1) engages in fighting or threatening, or in violent or
(2) makes unreasonable noise;
(3) uses obscene language, or makes an obscene gesture; or
(4) creates a hazardous or physically offensive condition
by any act which serves no legitimate purpose of the actor.
18 Pa. Cons. Stat. § 5503(a).
(c) of the statute specifically defines " public"
as " affecting or likely to affect persons in a place to
which the public or a substantial group has access; among the
places included are highways, transport facilities, schools,
prisons, apartment houses, places of business or amusement,
any neighborhood, or any premises which are open to the
public." Plaintiffs plead that they were on their own
property, preparing to leave their home on a family outing
when the Defendant officers approached them in an
accusatory and aggressive manner, and that the officers
followed Mrs. Gaymon inside.
threshold question for each of Plaintiffs' Fourth
Amendment claims is whether the Defendant officers had
probable cause to believe Mrs. Gaymon and Ms. Purnell
violated the disorderly conduct statute. Henry v. United
States, 361 U.S. 98, 102, 80 S.Ct. 168, 4 L.Ed.2d 134
(1959) (" while a search without a warrant is, without
limits, permissible if incident to a lawful arrest, if an
arrest without a warrant is to support an incidental search,
it must be made with probable cause." ); Johnson v.
Knorr, 477 F.3d 75, 81-82 (3d Cir. 2007) (" To
prove malicious prosecution under section 1983 when the claim
is under the Fourth Amendment, a plaintiff must show that . .
. the defendant initiated the proceeding without probable
cause." ); James v. City of Wilkes-Barre, 700
F.3d 675, 680 (3d Cir. 2012) (" To state a claim for
false arrest under the Fourth Amendment, a plaintiff must
establish: (1) that there was an arrest; and (2) that the
arrest was made without probable cause." ). Probable
cause to arrest is established when the
facts and circumstances within the arresting officer's
knowledge are sufficient in themselves to warrant a
reasonable person to believe that an offense has been or is
being committed by the person to be arrested. Orsatti v.
N.J. State Police, 71 F.3d 480, 483 (3d Cir. 1995).
evaluating the basis for the charge in this case, it is hard
to fathom how individuals could intend to cause public
inconvenience or alarm based on actions that occurred
exclusively on their own property and from within their home.
I find it equally hard to understand how merely videotaping
an officer's conduct, and thereafter retreating away from
an officer to the confines of one's own home, could be in
any way causing public inconvenience, annoyance, or
alarm. Even harder to comprehend is how Ms. Purnell's
conduct in informing Officer White about her belief that Mrs.
Gaymon had a right to record could amount to disorderly
conduct. The Supreme Court has directly considered factual
circumstances where a petitioner was arrested for disorderly
conduct after " verbally and negatively" protesting
a police officer's treatment of him, and concluded that
" [s]urely, one is not to be punished for
nonprovocatively voicing his objection to what he obviously
felt was a highly questionable detention by a police
officer." Norwell v. City of Cincinnati, 414
U.S. 14, 16, 94 S.Ct. 187, 38 L.Ed.2d 170 (1973); Colten
v. Kentucky, 407 U.S. 104, 111, 92 S.Ct. 1953, 32
L.Ed.2d 584 (1972) (" Individuals may not be convicted
under the [disorderly conduct] statute merely for expressing
unpopular or annoying ideas." ).
viewing all facts in the light most favorable to Plaintiffs,
as I must, the only aspect of the facts alleged in the
Complaint that could alarm the public would be the actions of
the police officers in question. Officer White allegedly
threatened to deploy a Taser against two unarmed women, and
ultimately forced his way into the Gaymon's home and
pinned Mrs. Gaymon against a wall with a Taser to her
chest--all in the course of responding to a nuisance
complaint during daylight hours. Even defense counsel could
barely muster an argument as to Mrs. Gaymon's disorderly
The Court: The arrest took place inside Ms. Gaymon's
[Counsel]: According to the complaint, that's the way we
understand it, yes. . . .
The Court: And at that point when Ms. Gaymon would be inside,
would you agree with me there was no threat to the officer
[Counsel]: I would agree with that circumstance.
The Court: And you would agree with me that standing inside
on one's porch simply videotaping, that could not be
considered disorderly conduct by any reasonable definition,
could it, sir?
[Counsel]: If you're standing inside your home and
videotaping outside, no, I don't think so.
of Oral Argument, April 10, 2015, at 9.
on the foregoing, any reasonable officer should have known
that pursuing disorderly conduct charges against Mrs. Gaymon
and Ms. Purnell constituted a blatant violation of their
rights. There are simply no facts before the Court at this
early stage that would sustain a reasonable belief that the
disorderly conduct statute was violated by either woman.
Perhaps even more apparent, no reasonable officer could claim
that arresting Mrs. Gaymon and Ms. Purnell because they
voiced disagreement with the officers' conduct
constituted lawful police action. The law within the Third
Circuit was clear dating back to 1984 that " institution
of criminal action to penalize the exercise of one's
First Amendment rights is a deprivation cognizable under
§ 1983." Losch v. Borough of Parkesburg,
Pennsylvania, 736 F.2d 903, 907-08 (3d Cir. 1984).
Therefore, viewing the facts alleged from a broad
constitutional perspective, there is no question that the
Defendant officers had notice when this incident occurred
that the conduct alleged would violate Plaintiffs' First
and Fourth Amendment rights.
turn to the specific grounds on which Defendants seek to
cloak their actions with qualified immunity.
Purported Violation of the Pennsylvania Wiretap Act
their brief, Defendants argued that Pennsylvania law was not
clearly established in 2014 regarding whether the Wiretap
Act, 18 Pa. Cons. Stat. § § 5701-82, gave them
authority to act as they did. This argument is patently
lacking in merit. Defendants' initial argument relied
almost exclusively on the Third Circuit's unpublished
decision in Kelly v. Borough of Carlisle, 544
Fed.Appx. 129 (3d Cir. 2013) (" Kelly II" ),
without any discussion of the Third Circuit's earlier
precedential and controlling opinion in Kelly v.
Borough of Carlisle, 622 F.3d 248 (3d Cir. 2010) ("
Kelly I" ). There, the Circuit held that absent a "
reasonable expectation of privacy," an officer cannot
claim a violation of the Wiretap Act. The Court of Appeals
noted that even secret recordings would not be a 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." Kelly I, 622 F.3d
immunity was found in Kelly II because the officer sought out
and in good faith relied upon advice received from a
prosecuting attorney during a traffic stop--an entirely
distinct set of circumstances. 544 Fed.Appx. at 137. In fact,
in Kelly II, the Court specifically rejected the position
Defendants advance here: " We have already determined
that, 'at the time of Kelly's arrest, it was clearly
established that a reasonable expectation of privacy was a
prerequisite for a Wiretap Act violation.'" 544
Fed.Appx. at 134 (citing Kelly I, 622 F.3d at 258).
the clear state of controlling federal and state law in 2014,
Defendants are left to argue that officers should be entitled
to deference for the split-second decisions they must make in
the field under a variety of uncertain and rapidly evolving
circumstances, and that no officer can be a "
constitutional scholar." Defendants' Brief at 10.
respect does the controlling law in this case impose a burden
on an officer to be a legal expert. By its very nature, the
term " wiretapping" connotes covert
action. The following exchange at argument
drives home the point:
THE COURT: Isn't the Pennsylvania Wiretap Act clearly
aimed at covert or surreptitious interception of
rather than open and obvious recording communication?
COUNSEL: I think that's true.
of Oral Argument, April 10, 2015, at 7. Indeed, based upon
the Court's review, there is no reported case of a
conviction under the Act for open reporting.
Mrs. Gaymon openly videotaped the officers, and the recording
took place within the curtilage of her property and inside
her home. No officer could credibly claim any expectation of
privacy on Plaintiffs' property or inside their house. If
anyone had an expectation of privacy under these
circumstances, it was clearly the Gaymons. Unlike Kelly II,
there are no allegations that Defendant White stopped and in
good faith sought advice provided from a prosecuting
authority. Moreover, in Kelly there was at least some basis
on which a uniformed officer might be confused, because the
recording there was " surreptitious," as opposed to
Mrs. Gaymon's open and obvious recording. Without a
doubt, Mrs. Gaymon wanted the officer to know he was being
recorded. This was not an " inherently dangerous
situation," such as a traffic stop. Kelly I,
622 F.3d at 262 (citing Arizona v. Johnson, 555 U.S.
323, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009)). Rather, the
officers responded during daylight to a non-violent complaint
about a vehicle's tire touching the curb in a residential
neighborhood. See Crawford v. Geiger, 996
F.Supp.2d 603, 615-16 (N.D. Ohio 2014) (distinguishing Kelly
based on similar factual allegations and concluding that a
rational juror could find that the videotaping of police
officers occurred only after the officers " were acting
without lawful authority." ).
it is telling that Mrs. Gaymon was never charged with a
violation of the Wiretap Act. If the Defendant officers
mistakenly believed that Mrs. Gaymon's conduct violated
the Wiretap Act, it is reasonable to infer that they would
have charged Mrs. Gaymon with that offense, and of course
they did not.
The Relevance of a " Right to Videotape"
recognizing the lack of legal support for their Wiretap Act
stance, Defendants' position shifted at oral argument,
attempting to redefine the issue as whether Mrs. Gaymon had a
First Amendment right to video her family's interaction
with the officers in question.
[Counsel]: I think the basic issue that we're going to be
coming back to again in this case is whether there is a
clearly established constitutional right to videotape law
enforcement officers as they are performing their duties.
THE COURT: But, isn't that a separate question from
whether the officer here had any good faith basis to take
people into custody under the wiretap law? Isn't the
First Amendment issue separate from the actions of the
[Counsel]: I think they are really bound together, Your
Honor. I don't see how you can get to one without getting
to the other. I think this officer, rightly or
wrongly, believed that the law did say, or at least the law
was not established enough, that they did not have -- anybody
did not have a clearly established constitutional right to
videotape it, and I think that's where we start with in
this case, so I think everything at this stage is going to
flow back to that.
of Oral Argument, April 10, 2015, at 5-7.
practical purposes, the defense seeks to find refuge in
Montgomery v. Killingsworth, No. 13-256, 2015 WL 289934
(E.D. Pa. Jan. 22, 2015), a recent decision by my colleague
Judge Yohn. That case arose in a far different context,
because it involved recordings made by citizens who were not
themselves the focus of police activity, and who inserted
themselves into ongoing police action while officers were
discharging their duties in public.
to Killingsworth itself, it involved plaintiffs who were
arrested in 2011 for three unrelated interactions with
Philadelphia police officers. Id. at *1. Two
plaintiffs pleaded First Amendment retaliation claims,
arguing that the act of recording police activity was
protected conduct. Id. The third plaintiff claimed
retaliation for peacefully objecting to a police
officer's treatment of an intoxicated man on her street.
Id. Judge Yohn held that a right to record officers
in public was not clearly established as of 2011.
Id. at *15. Accordingly, for those plaintiffs
alleging retaliation based solely on the purported First
Amendment right to record, the defendant officers were
entitled to qualified immunity. Id.
contrast, qualified immunity was rejected for the remaining
First Amendment claim because " peaceful criticism of a
police officer that neither obstructs an investigation nor
jeopardizes a police officer's safety has strong social
value, serving as a valuable check on state power, and is
therefore protected under the First Amendment."
Killingsworth, 2015 WL 289934, at *8 (citing Gentile v.
State Bar of Nev., 501 U.S. 1030, 1034, 111 S.Ct. 2720,
115 L.Ed.2d 888 (1991) (" There is no question that
speech critical of the exercise of the State's power lies
at the very center of the First Amendment."
Defendants' attempt to redefine all of Plaintiffs'
claims as subsumed within an ambiguous question of law is a
misuse of the doctrine of qualified immunity.
Plaintiffs together bring three claims under the Fourth
Amendment and one claim under the First Amendment. The First
Amendment claim asserts retaliation for the protected
activity of voicing dissent in the face of questionable
police action. Plaintiffs' Complaint alleges three
specific instances of protective speech, only one of which is
videotaping. See ¶ 52. Having failed to establish a
basis for charging disorderly conduct, and having badly
misconstrued Pennsylvania's Wiretap Law, Defendants
cannot globally excuse their conduct by professing confusion
about a legal principle that at most would impact one of
three allegations forming the basis for Plaintiffs' sole
First Amendment claim.
involved events in 2011. Even if I assume that there was
still no clearly established First Amendment right to record
officers by 2014, the lack of such a right would not
transform a citizen's act of recording on her own
property to something criminal in nature justifying arrest.
It is certainly clear that the absence of a First Amendment
right to record from the confines of one's own home would
not amount to exigent or other circumstances that would
justify entering the Plaintiffs' home without a valid
warrant or consent. See, e.g., Steagald, 451 U.S. at 211. The
Killingsworth plaintiffs were all citizens who came upon
police activity on public streets and undertook the role of
observers and recorders of events. The issues presented by
cases of that nature, where the person inserts himself into a
situation as the police are discharging their duties, bear
little relevance to this case, where Mrs. Gaymon was either
on or inside her private property at all times, the police
had entered onto that property without permission, and in
addition to herself, both her daughter and husband were
directly affected by the actions of the police.
Plaintiffs' retaliatory arrest claim focuses on the
Plaintiffs' First Amendment right to " verbally
express their disagreement with and challenge the
authority" of the Defendant officers. Complaint at Count
III. " The Supreme Court has explicitly held that an
individual has a viable claim against the government when he
is able to prove that the government took action against him
in retaliation for his exercise of First Amendment
rights." Anderson v. Davila, 125 F.3d 148, 160,
37 V.I. 496 (3d Cir. 1997). It is indisputable that "
the First Amendment protects a significant amount of verbal
criticism and challenge directed at police officers."
City of Houston, Texas v. Hill, 482 U.S. 451, 461,
107 S.Ct. 2502, 96 L.Ed.2d 398 (1987). In fact, the Supreme
Court has gone so far as to say that " [t]he freedom of
individuals verbally to oppose or challenge police action
without thereby risking arrest is one of the principal
characteristics by which we distinguish a free nation from a
police state." City of Houston, Tex., 482 U.S. at
462-63. " [At] least where the First Amendment is
concerned, the motives of government officials are indeed
relevant, if not dispositive, when an individual's
exercise of speech precedes government action affecting that
individual." Anderson, 125 F.3d at 161. Here, a
jury could reasonably conclude that the Defendant officers
arrested Mrs. Gaymon and Ms. Purnell for voicing disagreement
about the officers' actions in violation of the First
Amendment. Accordingly, a jury could find liability on every
constitutional claim alleged without ever needing to confront
the issue of whether recording an officer under these
circumstances is protected by the First
the combination of factors that make this case compelling to
the Court on the facts alleged: the frivolous nature of the
neighbor's initial complaint; the absence of lurking
risks inherent in other police activities, such as traffic
stops; the alleged aggressiveness of the responding officers;
the purported threat to deploy Tasers against a family on the
premises of their own home; the overall disproportionate
response of law enforcement; the protective instincts of a
wife and mother seeking only to record what was occurring;
the makeweight nature of the criminal charges brought; and
finally, the contorted nature of the qualified immunity
have the right to contest, and may well disprove, these
allegations at trial. But the contention that no reasonable
officer would have understood that such conduct would
palpably violate our
Constitution is utterly lacking in merit. Therefore,
qualified immunity is not a viable defense at this
preliminary stage. Defendants' Motion has been denied.
That is, even if the law concerning the
Pennsylvania Wiretap Act was not clearly established in 2014,
mistakenly finding probable cause for a violation of the Act
would not have given the Defendant officers a license to
enter the Gaymon's home without legal cause or consent,
or to arrest Ms. Purnell for disagreeing with Defendant
White's actions. See, e.g., Steagald v. United
States, 451 U.S. 204, 211, 101 S.Ct. 1642, 68 L.Ed.2d 38
(1981) (" The search at issue here took place in the
absence of consent or exigent circumstances. Except in such
special situations, we have consistently held that the entry
into a home to conduct a search or make an arrest is
unreasonable under the Fourth Amendment unless done
pursuant to a warrant." ); Losch v. Borough of
Parkesburg, Pa., 736 F.2d 903, 910 (3d Cir. 1984)
(" The Supreme Court has clearly held that prosecution
of a citizen in retaliation 'for nonprovocatively voicing
his objection' to police conduct impermissibly punishes
constitutionally protected speech. Norwell v. City of
Cincinnati, 414 U.S. 14, 16, 94 S.Ct. 187, 188, 38
L.Ed.2d 170 (1973)." ).
" In other words, certain conduct will
be so extreme that one would not expect a prior decision on
the issue: In some cases this absence of precedent may even
evince the impropriety of the practice." Alexander A.
Reinert, " Does Qualified Immunity Matter?" 8 U.
St. Thomas. L. J. 477, 484 (Spring 2011).
breadth of Pennsylvania's disorderly conduct statute
gives police broad latitude, which creates the potential for
improper charges should that power be abused. See
generally Thomas Place, Offensive Speech and the Pennsylvania
Disorderly Conduct Statute, 12 Temple Political and Civil
Rights L.Rev. 47 (2002) (discussing limits constructions that
Pennsylvania courts have imposed on the state's
disorderly conduct statute, and arguing that parts of the
statute are still unconstitutionally overbroad or vague).
note, two leading and commonly used dictionaries,
Merriam-Webster and Oxford, define wiretapping as action
taken " secretly."
Court raised the seemingly benign context of the original
complaint to police during argument, to which defense counsel
clarified, " Yes, I think according to the complaint,
it's not exactly spelled out, but there is a neighborhood
dispute that apparently goes back and the complaint kind of
picks up at the point where the officer is responding to [the
neighbor's report of a tire on the curb]."
Transcript of Oral Argument, April 10, 2015, at 11. I
recognize that there is likely another side to the story, but
at this early juncture, my review is limited. Plaintiffs
allege that the officers responded to a complaint that Mr.
Gaymon's mother " parked her car in such a way that
the front tire was on the curb in front of the neighbor's
house." Complaint at ¶ 18.
George, 738 F.3d at 585 ( " In order to establish a
First Amendment retaliation claim, a plaintiff must prove (1)
that he engaged in constitutionally-protected activity; (2)
that the government responded with retaliation; and (3) that
the protected activity caused the retaliation. The threshold
requirement is that the plaintiff identify the protected
activity that allegedly spurred the retaliation." )
(internal citations and quotations omitted).
also note that although plaintiffs' allegations included
Fourth Amendment malicious prosecution, false arrest, false
imprisonment, and illegal search and seizure claims, as well
as a Fourteenth Amendment excessive force claim, the
defendant officers in Killingsworth notably, and in
this Court's view, wisely, limited their summary
judgment motion to the First Amendment retaliation claims.
Critics of the expanding scope of qualified
immunity have cautioned that courts applying the law risk
blurring the line between absolute and qualified immunity.
See, e.g., Susan Bendlin, " Qualified Immunity:
Protecting 'All but the Plainly Incompetent' (And
Maybe Some of them, Too)," 45 J. Marshall L.Rev. 1023,
1046 (Summer 2012). Of course, " it is appropriate
to shield government workers from individual liability if
they perform their jobs reasonably and competently. The risk,
however, is that the test is applied so broadly that it may
also protect those state officials who unreasonably and
incompetently violate the individual rights of a
citizen." Id. at 1049.
Although I do not need to reach the
question of whether Mrs. Gaymon's conduct in recording
Officer White was protected under the First Amendment, I note
that federal case law has overwhelmingly held that citizens
do indeed have a right to record officers in their official
capacity so long as they do not interfere with an
officer's ability to do his or her job. E.g., Elizabeth
J. Frawley, " No Calling Cut: The Political Right to
Record Police," 17 U. Pa. J. Const. L. 287, 288 (October
Over the past decade, four circuits have decided cases in
which a civilian recorded was arrested or forced to cease
recording. The recorders, believing this to be a violation
of their First Amendment rights, filed claims pursuant to
42 U.S.C. § 1983. The decisions collectively indicate
that there is a firmly established First Amendment right to
record police officers, but that courts are only
starting to address the Fourth Amendment concerns. While
the recorder does have a First Amendment right to record,
the right overlaps with Fourth Amendment jurisprudence
dictating the reactions permissible by law enforcement
officers. In addition, the right to record cannot be so
limitless as to allow recorders to directly interfere with
Id. Indeed, within this District, my colleague Judge
Bartle found a First Amendment free speech right to videotape
police officers as they went about their duties on a public
highway in 2002, where the recording was done from
private property and did not interfere with the police
officers' activity. Robinson v. Fetterman, 378
F.Supp.2d 534, 538-42 (E.D. Pa. 2005). " Videotaping is
a legitimate means of gathering information for public
dissemination and can often provide cogent evidence, as it
did in this case. In sum, there can be no doubt that the free
speech clause of the Constitution protected Robinson as he
videotaped the defendants on October 23, 2002."
Id. at 541.
For examples of various policy and legal reasons tat
recording public officials should receive First Amendment
protection, see Seth F. Kreimer, Pervasive Image Capture and
the First Amendment: Memory, Discourse, and the Right to
Record, 159 U. Pa. L.Rev. 335, 350-94 (2011):
[P]olice abuse captured by the cameras of bystanding
videographers, followed by public broadcast of the
footage, has become a regular feature of our public life
and the underpinning of effective demands for redress. . .
. [Police] are accustomed . . . to substantial deference in
the construction of official narratives, and many would
prefer to be in a position to shape perceptions of their
actions without competing digital records. Police officers
often view private digital image capture as a challenge to
their authority. . . . In the last two generations,
emerging technology and social practice have made captured
images part of our cultural and political discourse. . . .
In the current state of the law and culture of discourse,
captured images--like words inscribed on parchment--fall
within the protection of " freedom of speech." .
. . Participants in public dialogue who are barred from
capturing images are at a substantial discursive
disadvantage vis-à-vis those who can record from
life. Officials engage in virtually unchecked surveillance
of public encounters. A rule that bars citizens from
capturing images gives unbalanced authority to official
framing. . . . Allowing statutes that prohibit "
interfering with an officer" or " disobeying an
officer" to punish inconvenient image capture
puts police officers in the constitutionally impermissible
position of censoring critical expression with