WILSON v. CITY OF PHILADELPHIA et al
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE MARK A. KEARNEY ON 10/30/2015. 10/30/2015 ENTERED AND COPIES E-MAILED.(kp, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
NUMAH BARKUE WILSON
OFFICER JOEL JEAN, et al.
October 30, 2015
The First Amendment guarantees a citizen's right to peacefully protest when he perceives
his local fire department unnecessarily delayed in responding to a fire which claimed the lives of
four Philadelphia children, including two of his nieces, and destroyed ten homes. The Fourth
Amendment guarantees a citizen's right to be free of arrest without probable cause. Peaceful
protest does not involve bottle-throwing, threatening police and blocking the fire department's
egress to attend to another emergency fire call. 1 Police officers asked to maintain crowd control
and then facing threats and the crowd's blocking of the fire department may reasonably conclude
active participants in the now-urrruly protest are violating Pennsylvania criminal law on
disorderly conduct regardless of whether charges are later dropped. The police officers making
this determination on the street, based on the facts immediately before them, can adduce
sufficient facts warranting summary judgment dismissing civil rights claims for false arrest based
on qualified immunity. But qualified immunity does not automatically mean the officers also
had probable cause under Pennsylvania law to arrest one of the protestors when we find several
issues of material fact regarding his arrest now requiring a jury's evaluation. In the
accompanying Order, we grant the officers' partial summary judgment on the civil rights claim
of false arrest based on qualified immunity but deny as to a Pennsylvania false arrest/false
Undisputed Material Facts 2
A fire killed four Philadelphia children on July 6, 2014. 3 Adding to this tragic loss, the
fire destroyed ten homes and displaced more than thirty residents. 4 On July 7, 2014,
approximately 500 community members staged a protest believing firefighters contributed to the
loss of life and property by not responding more quickly. 5
Plaintiff Numah Barkue Wilson ("Wilson") lost two nieces in the fire. 6 He participated
m the protest as captured by print and broadcast media. 7 Wilson arrived at the protest at
approximately 6:00 pm, and Defendant police officers arrested him for disorderly conduct
approximately one hour later. 8 Wilson described the crowd mood as "angry," "upset," "sad,"
"disappointed by the whole incident," "yelling" and "dramatic."9 News footage shows Wilson
yelling, gesturing, and waving his arms at police officers shortly before his arrest. 10 News
footage also shows Wilson shouting "murderers" during his arrest.
Defendant Officer William
Fitzgerald observed Wilson engaging in this behavior. 12 After arresting Wilson, Defendants
released him from custody without charges.
Wilson then sued Defendant Police Officers Joel Jean, Kyle Smith and William
Fitzgerald ("Officers") for false arrest and excessive force under 42 U.S.C. § 1983 and
supplemental Pennsylvania law claims of assault, battery, false arrest and false imprisonment. 13
Defendant Officers seek summary judgment on Wilson's civil rights action pursuant to
42 U.S.C. § 1983 for false arrest, as well as related state law claims. 14 Defendants do not seek
summary judgment on Wilson's §1983 excessive force and state law assault and battery claims,
and concede these claims will be resolved by the jury. 15 Defendant Officers argue they are
entitled to summary judgment because they had probable cause to arrest Wilson for disorderly
conduct while participating in a protest and qualified immunity shields the Defendants. In the
accompanying Order, we grant summary judgment in favor of Defendant Officers on Wilson's
federal false arrest claim based on qualified immunity but not on the state law claims of false
arrest and false imprisonment.
Standards for qualified immunity and probable cause under state law claims can differ, as
shown by the disputed material facts. The Supreme Court teaches qualified immunity protects
Defendant Officers from liability "when their conduct 'does not violate clearly established ...
constitutional rights' a reasonable official, similarly situated, would have comprehended." 16
Our Court of Appeals further teaches us in determining whether Defendant Officers are entitled
to qualified immunity, we make a two-prong inquiry: whether the facts alleged, viewed in the
light most favorable to Wilson, show Defendant Officers violated a constitutional right and
whether that right was clearly established at the time of the Defendant Officers' actions. 17 We
have discretion to decide the order in which we address the two prongs of the qualified immunity
analysis. 18 "[Q]ualified immunity will protect an official either when the official did not violate
a constitutional right or when the right in question was not 'clearly established. '" 19
We find qualified immunity protects the Defendant Officers from civil rights liability
because Wilson's right to participate in a chaotic protest where there is evidence of his
participation captured on video and admitted by him is not clearly established. Separately
examining probable cause for the disorderly conduct arrest under Pennsylvania law, we find
genuine issues of material fact requiring a jury's credibility evaluation.
A. Qualified Immunity protects the officers from federal false arrest liability.
Even if Wilson could maintain a claim for false arrest, Defendant Officers are entitled to
qualified immunity because reasonable officers in their position would not have understood the
arrest was unlawful. The " 'dispositive inquiry' ... 'is whether it would [have been] clear to a
reasonable officer' in the [Defendant Officers'] position 'that [their] conduct was unlawful in the
situation [they] confronted."20 "[T]he qualified immunity standard 'gives ample room for
mistaken judgments' by protecting 'all but the plainly incompetent or those who knowingly
violate the law. "' 21
Wilson argues Defendant Officers are not entitled to qualified immunity because, under
the facts available to the Defendant Officers and viewed in the light most favorable to him, "no
objectively reasonable officer would have believed there was probable cause to arrest and detain
[him]." 22 As shown below, Wilson adduced facts creating a genuine issue of material fact
concerning probable cause and the jury will determine credibility issues.
Questions as to probable cause do not end our qualified immunity inquiry. There is no
dispute Defendant Officers considered Wilson's conduct at the time of his arrest to constitute
disorderly conduct. Even if, based on facts unknown to the officers at the time, a fact-finder may
later determine Wilson's conduct did not constitute disorderly conduct under the Pennsylvania
statute, "qualified immunity encompasses judgments that are not plainly incompetent." 23 Under
Pennsylvania's disorderly conduct statute, whether "words or acts rise to the level of disorderly
conduct hinges upon whether they cause or unjustifiably risk a public disturbance. 'The cardinal
feature of the crime of disorderly conduct is public unruliness which can or does lead to tumult
and disorder. "' 24
We cannot characterize the Defendant Officers' actions in arresting Wilson for disorderly
conduct as "plainly incompetent" or a "knowin[g] violat[ion] the law." Wilson does not dispute
his appearance on the news video which he admits "speaks for itself' and in which he is shown
"gesturing toward the police" and "clear[ly] . . . not talking in a quiet, conversational tone or
volume." 25 In the video, Wilson appears to be screaming in the face of police officers who are
attempting to keep protesters back. Defendant Officers based their arrest on their eyewitness
view of the chaos before them. While there are questions whether Wilson's individual conduct
reaches the level of "disorderly conduct," those questions do not equal plain incompetence or
Wilson further argues qualified immunity does not apply here because "fabrication" or
"falsification" of evidence negates probable cause, asserting the Defendant Officers fabricated
and falsified evidence to "cover-up their misconduct" by "falsely claiming [Wilson's] behavior
justified his arrest and the use of force." 26 There is no evidence in the record to support Wilson's
bald assertion Defendant Officers fabricated or falsified evidence.
The Defendant Officers met their burden of persuasion in establishing qualified immunity
at summary judgment. 27 Accordingly, we grant summary judgment in favor of Defendant
Officers on the basis of qualified immunity.
B. State law claims of false arrest/false imprisonment are jury issues.
Defendants argue they are entitled to summary judgment on Wilson's false arrest and
false imprisonment claims because they had probable cause to arrest him for disorderly
conduct. 28 Under Pennsylvania law on false arrest and false imprisonment, Wilson must show
(1) detention of another person, and (2) unlawfulness of such detention. 29 "An arrest based on
probable cause cannot support a claim for false arrest or false imprisonment under Pennsylvania
law." 30 "Probable cause exists when the facts and circumstances which are within the knowledge
of the police officer at the time of the arrest, and of which he has reasonably trustworthy
information, are sufficient to warrant a man of reasonable caution in the belief that the suspect
has committed or is committing a crime."31 While the existence of probable cause is generally a
question of fact for the jury, a "district court may conclude that probable cause exists as a matter
of law if the evidence, viewed most favorably to [the] Plaintiff, reasonably would not support a
contrary factual finding, and may enter summary judgment accordingly." 32
Defendant Officers argue probable cause existed to arrest Wilson for disorderly conduct
under the Pennsylvania criminal code because " ... 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 tumultuous behavior; (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. " 33
Defendant Officers Smith and Jean described the chaotic scene upon arriving at the
protest, including "belligerent" people shouting and gesturing obscenities to police. 34 Defendant
Officers Smith and Jean testified people in the crowd began throwing water bottles. 35
Defendant Officer Smith testified protestors spat in the direction of police. 36
Defendant Officer Fitzgerald testified to a crowd of protesters in front of the firehouse
doors chanting anti-police and anti-fire department statements, including the fire department as
"murderers." 37 Defendant Officer Smith identified Wilson as one of the men standing in front of
the firehouse. 38 Around that time, the protestors blocked the firehouse and the fire department
needed to leave to respond to an emergency call to stop a fire. 39 Police began to push protestors
off the street and on to the sidewalks to allow fire trucks to get out of the firehouse. 40 Officer
Fitzgerald testified the crowed began to disperse and the fire trucks exited the firehouse, but
persons, including Wilson, tried to incite the crowd to "continue the demonstration and to yell
things." 41 At this point, Lieutenant Galie from the lzth Police District, determined Wilson "had
to leave" because he was causing the disturbance. 42 Officer Fitzgerald also identified Wilson as
the individual on news video footage yelling at police officers, pointing at police officers and
waving his arms. 43 Wilson admits his behavior approximately twenty minutes prior to his
arrest. 44 Lieutenant Galie testified he would have told officers to remove people from the protest
for trying to incite a riot or "verbally inciting violence against the police."45 Defendant Officer
Jean recalled Wilson shouting obscenities and being disorderly before his arrest. 46
Citing disputed issues of fact, Wilson denied engaging in violent or criminal behavior or
used foul gestures or language or threw objects at police; Lieutenant Galie's testimony "99.9
percent of the [protesters] were not obnoxious, they were not violent, not at all;" and testimony
of Defendant Officers Jean and Smith who could not recall Wilson's conduct at the time of his
arrest. 47 Wilson cites Defendant Officer Fitzgerald testifying he could not recall the "exact
words" Wilson used at the protest. 48 Wilson argues this testimony is inconsistent with Officer
Fitzgerald's affidavit swearing he observed Wilson "engaging in the acts depicted in the
video." 49 Wilson cites Defendants' argument Lieutenant Galie observed Wilson engaging in
disorderly behavior prior to his arrest which he contends is contradicted by Lieutenant Galie's
testimony he could not remember seeing Wilson at the protest or giving an order to the
Defendant Officers to arrest him. 50
Viewing the facts in the light most favorable to Wilson, we find there are several genuine
issues of material fact concerning probable cause to arrest Wilson for disorderly conduct. We
cannot conclude these facts reasonably if proven at trial would not support a jury finding of false
arrest under Pennsylvania law. As detailed in the foregoing analysis, we find questions of fact as
to probable cause at the time of Wilson's arrest. 51
Wilson adduced genuine issues of material fact precluding summary judgment on its
Pennsylvania false arrest/false imprisonment claim. Defendant Officers met their burden of
persuasion for qualified immunity on federal false arrest claim. While these results could
possibly be interpreted as facially incongruous, we are mindful officers are entitled to qualified
immunity in situations where they are not plainly incompetent. We grant Defendant Officers'
motion for summary judgment dismissing the federal civil rights false arrest claim but deny their
motion on the Pennsylvania false arrest/false imprisonment claim.
As the Supreme Court recently held: "It is uncontested and uncontestable that government
officials may not exclude from public places persons engaged in peaceful expressive activity
solely because the government actor fears, dislikes, or disagrees with the views those persons
express. It is equally plain that the fundamental right to speak secured by the First Amendment
does not leave people at liberty to publicize their views whenever and however and wherever
they please." Wood v. Moss, _ U.S. _, 134 S.Ct. 2056, 2066, 188 L.Ed.2d 1039 (2014)
(internal citations omitted) (addressing qualified immunity in the context of protesters' First
Amendment claims alleging Secret Service agents engaged in viewpoint discrimination when
they moved protesters away from the location of the President while allowing supporters to
remain in their original location).
The Court's Policies require a Statement of Undisputed Material Facts ("SUMF") be filed in
support of a Fed.R.Civ.P. 56 motion as well as an appendix of exhibits or affidavits. Defendant
Officers filed their SUMF at ECF Doc. No. 28-1 ("Defendants SUMF"). Defendants filed an
appendix at ECF Doc. No. 28-2 and 28-3. Wilson responded to Defendants' SUMF at ECF Doc.
No. 31-1, referred to as "Wilson's RSUMF." Within his response to Defendants' SUMF, Wilson
included "Additional Facts the Preclude Summary Judgment" referred to here as "Wilson
ASUMF." Id. Wilson added documents to the appendix at ECF Doc. No. 31-1. References to
exhibits in the appendices shall be referred to by Bates number, for example, "Appendix ("A.")
Wilson ASUMF at ~1.
Defendants SUMF at ~1; Wilson ASUMF at~~ 2-3.
Wilson ASUMF at if 4.
Defendants SUMF at ififl, 2, 4-5, 7; Wilson ASUMF at if 4.
A. at 4; see also Defendants SUMF at if 12; Wilson ASUMF at if7.
Wilson RSUMF at if 3.
Defendants' SUMF at ifif 5-8; Wilson RSUMF at ifif 6, 8; Wilson ASUMF at if 8.
Defendants SUMF at if 11; Wilson RSUMF at if 11.
Id. at if 9.
Wilson does not intend to pursue his First Amendment retaliation claim. Wilson Opposition
at 1, n.2 (ECF Doc. No. 31).
Summary judgment is proper when there is no genuine dispute of material fact and the
movant is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(a). A dispute as to a
material fact is genuine if "the evidence is such that a reasonable jury could return a verdict for
the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). On a motion
for summary judgment, the court must consider the "underlying facts and all reasonable
inferences therefrom in the light most favorable to the party opposing the motion." Slagle v.
Cnty. of Clarion, 435 F.3d 262, 264 (3d Cir. 2006) (citations omitted). If the movant carries its
initial burden of showing the basis of its motion, the burden shifts to the non-moving party to go
beyond the pleadings and point to "specific facts showing that a genuine issue exists for trial."
Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). In other words, the non-moving party
"must present more than just bare assertions, conclusory allegations or suspicions to show the
existence of a genuine issue." Podobnik v. US. Postal Serv., 409 F.3d 584, 594 (3d Cir. 2005)
(citation and internal quotation marks omitted). Summary judgment must be granted against a
non-moving party who fails to sufficiently "establish the existence of an essential element of its
case on which it bears the burden of proof at trial." Blunt v. Lower Merion Sch. Dist., 767 F.3d
247, 265 (3d Cir. 2014).
Defendants' Brief at 4 (ECF Doc. No. 28).
Wood, 134 S.Ct. at 2061(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
Santini v. Fuentes, 795 F.3d 410, 417 (3d Cir. 2015) (citing Saucier v. Katz, 533 U.S. 194,
Pearson v. Callahan, 555 U.S. 223, 236 (2009) (district courts "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.")
Rodriguez v. Panarello, No. 13-7632, 2015 WL 4722613, *6 (E.D. Pa. Aug. 10, 2015) (citing
Pearson, 555 U.S. at 236) (emphasis in original); see also Fleck v. Trustees of Univ. of Pa., 995
F.Supp.2d 390, 405 (E.D. Pa. 2014) (a negative finding on either of the two prongs under
Saucier entitles the official to qualified immunity).
Wood, 134 S.Ct. at 2067 (quoting Saucier, 533 U.S. at 202).
Marcavage v. Nat 'l Park Service, 666 F.3d 856, 860 (3d Cir. 2012) (quoting Hunter v. Bryant,
502 U.S. 224, 229 (1991)).
Wilson Opposition at 12 (ECF Doc. No. 31 ).
Gilles v. Davis, 427 F.3d 197, 207 (citing Hunger v. Bryant, 502 U.S. at 229).
Hock, 728 A.2d at 946 (citing Commw. v. Greene, 189 A.2d 141, 144 (Pa. 1963)).
Wilson RSUMF at ,-r 6.
Wilson Opposition at 12-13 (ECF Doc. No. 31 ).
Halsey v. Pfeiffer, 750 F.3d 273, 288 (3d Cir. 2014).
Defendants' Brief at 4-5 (ECF Doc. No. 28).
Renk v. City of Pittsburgh, 641 A.2d 289, 293 (Pa. 1994); Manley v. Fitzgerald, 997 A.2d
1235, 1241 (Pa. Commw. 2010).
DiStefano v. Macy's Retail Holdings, Inc., No. 14-2078, 2015 WL 5049825, at *2 (3d Cir.
Aug. 27, 2015) (citing Renk, 641 A.2d at 293).
Renk, 641 A.2d at 293 (internal quotation and citation omitted).
DiStefano, 2015 WL 5049825 at *2 (citing Merkel v. Upper Dublin Sch. Dist., 211 F.3d 782,
788-89 (3d Cir. 2000)).
18 Pa.C.S.A. §5503(a).
A. at 49-50, 59.
A. at 50-51.
A. at 30.
A. at 52-54.
A. at 30-31.
A. at 31.
A. at 26.
A. at 12-13.
A. at 39.
A. at 60.
Wilson Opposition at 4-5 (ECF Doc. No. 31).
Id. at 5-6.
We express no opinion on the Political Subdivision Tort Claims Act, 42 Pa.C.S.A. § 8541 et
seq. as Defendants do not make this argument in support of their summary judgment motion.
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