LOCKHOFF v. COMMONWEALTH OF PENNSYLVANIA et al
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE WENDY BEETLESTONE ON 6/5/2017. 6/5/2017 ENTERED AND COPIES E-MAILED.(kp, )
---NOT FOR PUBLICATION--IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
MICHAEL E. LOCKHOFF,
ISAIAH SLONAKER, IV and STEPHEN
On July 29, 2015, Pennsylvania State Police Troopers Stephen M. Kamnik and Isaiah
Slonaker, IV (“Defendants”) conducted a traffic stop and arrested the Plaintiff, Michael E.
Lockhoff, who brought this suit challenging the manner in which he was arrested and his
subsequent prosecution. Remaining in this case are Lockhoff’s federal claims against
Defendants in their individual capacities for excessive force, false arrest, and malicious
prosecution. He principally asserts, pursuant to 42 U.S.C. § 1983, that Defendants violated his
rights under the Fourth Amendment to the United States Constitution to be free from
unreasonable search1 or seizure. His remaining state law claims are for civil conspiracy,
intentional infliction of emotional distress, assault and battery, and malicious prosecution.
Before the Court is Defendants’ motion for summary judgment, which shall be granted in part
and denied in part.
The Section 1983 claims assert “unreasonable and excessive force” (Count I), “false arrest and false
imprisonment” (Count II), and “malicious prosecution” (Count VII). No count specifically alleges an unreasonable
search, although the Complaint asserts elsewhere that an unreasonable search took place. Nonetheless, the parties
have proceeded as though a Section 1983 claim for unreasonable search was properly alleged here, and have fully
briefed the legality of the frisk of Lockhoff’s person and the car search. Accordingly, the Court will address the
merits of the arguments on the unreasonable search claims, in addition to the excessive force, false arrest and
malicious prosecution claims.
A. Traffic Stop and Arrest
The events in this case unfolded as Lockhoff – then seventeen years old – was driving
home from his summer job with a landscaping company. At approximately 12:30 p.m., the
Defendants observed Lockhoff’s car make a left turn on a steady red light. They also believed
that the dark tint on the car windows exceeded the legal limit. Accordingly, they initiated a
traffic stop, and Lockhoff pulled over to the side of the road. Defendants’ dashboard mounted
Mobile Video Recorder (“MVR”) was activated once they began following Lockhoff, and it
recorded much of the subsequent interaction. At one point, out of range of the MVR viewfinder,
one can hear but not see what is happenening. At the beginning of the encounter, Kamnick
informed Lockhoff that he was being “audibly and visually recorded.”
Kamnick got out of the patrol car first and went to the front passenger window. Slonaker
also got out, and stood several feet from the rear driver side corner of Lockhoff’s car. Kamnick
told Lockhoff that he had pulled him over because he turned left on red, and because of the
window tint. Kamnick can be heard on the MVR recording telling Lockhoff that he smelled the
odor of marijuana coming from the car. Lockhoff testified that his car did not smell like
marijuana but also testified that he did not know at the time of the incident what marijuana
smelled like. Kamnick also saw open packages of cigar wrappers in the car. Lockhoff does not
deny that the wrappers were in the car but says, that if they were, they were there because he is a
cigar smoker. The parties agree that after requesting Lockhoff’s license, registration, and proof
of insurance, this exchange took place:
Kamnick: “How much weed do you have in the car?”
Kamnick: “Ok. Why don’t you just hand it over?”
Lockhoff: “Because I don’t have any so I can’t hand over what I don’t have.”
Lockhoff: “Yes sir.”
Kamnick: “So you’re going to give me a hard time?”
Lockhoff: “Yes I am, actually, because I don’t have any pot in the car at all. I don’t have
any pot in the car so I can’t help you . . . .” [ . . . ]
Kamnick: “[I]t smells like weed, ok, so when was the last time you smoked in the car?”
Lockhoff: “Uh not often at all, because I don’t smoke.”
Kamnick then instructed Lockhoff to shut off the engine and to remain in the car while he went
back to the patrol car to check Lockhoff’s information.
After several minutes, Kamnick returned to the driver’s side of Lockhoff’s car and told
him to step out. Lockhoff did not comply, but instead repeatedly asked Kamnick to explain why
he was being told to exit. Kamnick responded that he was going to issue a traffic citation, and
that he preferred not to do so while standing in the road. Kamnick then said “you’re going to get
out of the car, either on your own free will, or I’m going to pull you through this window.”
Lockhoff continued to request an explanation, and after Kamnick repeated his instructions to step
out of the car several more times, Lockhoff complied.
After getting out, Lockhoff manually locked the car door, put the key into his left pocket,
and inserted both hands into his pockets as he walked to the grass shoulder behind his car,
followed by the Defendants. Initially, Kamnick instructed him to “take your hands out of your
pockets,” and Lockhoff did so. Kamnick and Lockhoff began to discuss the red light violation,
and when questioned, Lockhoff agreed that the light was “clearly red” when he made the turn.
Lockhoff then put his hands back in his pockets, prompting Kamnick to say “keep your
hands out of your pockets, this is the last time I’m going to tell you, ok?” In response, Lockhoff
removed his hands from his pockets, took a step backwards, reached his hands back into his
pockets and turned them inside out – showing that they contained nothing but his keys and phone
– while saying with visible agitation, “dude, chill, I don’t got anything in my pockets.” Kamnick
then repeated, “I told you to keep your hands out of your pockets.” Despite these warnings,
Lockhoff put his hands back in his pockets and said, “I’m not going to do anything dude, why
are you freaking . . . you’re just like trying to go after me because I’m [inaudible].” At this
point, Kamnick announced that Lockhoff was making him nervous because he refused to keep
his hands out of his pockets, and so he directed Lockhoff to stand against the car and frisked him.
Apart from the keys and phone, Kamnick did not find anything. After the frisk, Lockhoff turned
around, leaned back against the car, and put his hands back into his pockets.
Next, there was a brief discussion of the window tint violation – which Lockhoff disputed
– before Kamnick again brought up the smell of marijuana. Lockhoff categorically denied ever
having smoked marijuana, or ever having had marijuana in his car. Kamnick then asked whether
Lockhoff had any guns, knives, cocaine or heroin in the car, which Lockhoff also denied.
Finally, Kamnick asked for permission to search the vehicle, which Lockhoff flatly refused.
Believing that he had a sufficient basis to search Lockhoff’s vehicle without a warrant
because of the smell of marijuana, Kamnick asked Lockhoff to go with Slonaker to stand by the
patrol car for safety reasons. Lockhoff inquired at least four times why he was being asked to do
so, and each time Kamnick repeated the instruction without explaining that he intended to search
the car. As this exchange took place, Kamnick moved behind Lockhoff, and then, lightly pushed
Lockhoff towards Slonaker. Lockhoff took a step away from the car, at which point Kamnick
grabbed ahold of Lockhoff’s right arm. Abruptly, Kamnick placed his free hand on the back of
Lockhoff’s neck and forcefully pushed him forward onto the side of the trunk. While holding
Lockhoff in place, Kamnick bent Lockhoff’s arms at the elbows, brought them up behind his
back, and placed handcuffs on his wrists. Slonaker provided assistance by putting his hand on
Lockhoff’s left arm.
As he was being restrained, Lockhoff repeatedly expressed disbelief at the Defendants’
actions, yelling out “what the fuck are you guys doing” and “you guys are fucking crazy.” In
response, Kamnick stated “you’re just being detained, alright, you’re not under arrest.” As
Lockhoff continued to protest, the Defendants walked him towards the passenger side of their
patrol car – out of view of the MVR, but still within its audio range.
What happened next is the subject of some dispute. The parties agree that as they moved
off-camera, Kamnick first pushed the now-handcuffed Lockhoff against the passenger side of the
patrol car. They also agree that Kamnick then reached into Lockhoff’s pocket in order to
retrieve the car keys. However, the parties diverge with respect to what Lockhoff did in
response. According to Kamnick, Lockhoff “made a jerky motion away from [him],” and struck
him in the belt with his right elbow, leading him to believe that Lockhoff was attempting to fight
or flee. Slonaker says he saw Lockhoff attempting to turn away from Kamnick’s grip. Lockhoff
agreed that he only “moved [his] leg a little bit,” but denied “twisting [his] body away from
[Kamnick’s] grip,” or doing anything else. All agree as to what happened next: Kamnick
forcefully took Lockhoff to the ground, and held him there, face down. With respect to what
transpired while Lockhoff was on the ground, the parties’ accounts diverge once more.
According to Lockhoff, he complied with Kamnick’s commands. But Defendants assert that
Lockhoff continued to resist once he was on the ground, trying to push himself up, which
required the continued application of physical force to restrain him. According to the
Defendants, Kamnick placed his knee on Lockhoff’s arm, and continued to apply force to
prevent Lockhoff from getting up.
There is no dispute that most of the force was exerted by Kamnick, and that Slonaker did
little more than hold Lockhoff’s legs once Kamnick had already brought him to the ground. It is
also undisputed that the take-down and restraint resulted in superficial injuries to the area of
Lockhoff’s right eye socket, forehead, wrists, and lower back. The audio captured by the MVR
can be clearly heard. Lockhoff can be heard yelling “[inaudible] . . . no, what are you doing,”
followed by sounds of a scuffle and heavy breathing. Kamnick then says “stop resisting, will
you”; Lockhoff responds in a strained voice “dude, you’re taking my fucking keys out of my
pocket,” to which Kamnick replies “no shit.” Lockhoff is next heard repeatedly yelling
variations of “what the fuck,” “what are you doing,” and “get the fuck off me,” followed by
Kamnick saying “now you’re under arrest.” Kamnick tells Lockhoff to “relax,” and to “sit up,”
while Lockhoff continues to verbally protest. Kamnick next tells Lockhoff to get up off his
chest, and Lockhoff responds that he cannot. Kamnick then tells Lockhoff to “sit down” and
says “don’t move, don’t fucking move” as Lockhoff continues to shout obscenities. However,
given that the Defendants had removed Lockhoff out of view of the MVR, the video does not
shed light on the parties’ differences with respect to what took place in the moments before
Kamnick took Lockhoff down and while Lockhoff remained on the ground. However, it does
clearly reflect that during the scuffle, Kamnick informed Lockhoff that he was under arrest.
After securing Lockhoff beside the patrol car, the Defendants radioed in the arrest and
called for a tow truck. Lockhoff contends that while he was handcuffed and seated on the
ground by the patrol car, he asked Defendants to pick up his sunglasses, at which point Kamnick
intentionally stepped on them. Kamnick says he did not mean to step on them but may have
done so accidentally during the scuffle. The audio captured by the MVR makes clear that
Kamnick saw Lockhoff’s sunglasses before he stepped on them, well after the scuffle had
B. Car Search
Subsequently, Slonaker moved Lockhoff into the back seat of the patrol car and Kamnick
searched Lockhoff’s car. He found a closed container holding a substance that he believed to be
hash oil, which, according to him, smelled of marijuana. The video captures Kamnick showing
the container to Slonaker, and explaining that the contents of the container are commonly
referred to as “dabs,” and that they “smell exactly like marijuana.” Kamnick also recovered
open packages of cigar wrappers, and a partially burnt cigar in the center console or ashtray that
contained a “green leafy substance,” that based on the smell and appearance, he believed to be
marijuana. He also found what he believed to be marijuana seeds in the seat pocket behind the
passenger’s seat, in the glove compartment, and in a cardboard box on the trunk.
For his part, Lockhoff testified that earlier in the day, someone showed him a small
multicolored container – which he admitted to be the same one that Kamnick subsequently
discovered – and told him that it contained “dabs,” which he understood to be a kind of
marijuana extract. Lockhoff further testified that he gave this person – whose name and gender
pronouns he denied knowing – a ride to work earlier in the day. He denied that the cigar papers
were for marijuana, and said the partially burnt cigar was tobacco, not marijuana. He denied that
the seeds were marijuana seeds, and said they were from his landscaping work.
Before the car was towed, the Defendants conducted a light transmission test to
determine the legality of the tint on Lockhoff’s windows.
C. Release and Juvenile Court Proceedings
After Lockhoff’s car was towed, the Defendants drove him to the Pennsylvania State
Police barracks, and notified his mother, who came and picked him up. About one month later,
on September 1, 2015, Kamnick filled out an Incident Report which indicates that on the same
day “a Written Allegation was filed against LOCKHOFF.” The summary judgment record does
not include an affidavit of probable cause, or any other evidence pertaining to communications
between the Defendants and the local prosecuting authority.
The acts of delinquency alleged in a petition subsequently filed in the Juvenile Court of
Montgomery County included two marijuana possession charges, thirteen drug paraphernalia
charges, a single charge for resisting arrest, two disorderly conduct charges, and five motor
vehicle violations. Of the disorderly conduct charges, one was for fighting and the other was for
obscene language. Of the motor vehicle violations, three appear to relate to the excessive
window tint, one relates to the failure to operate with the required proof of insurance, and one
relates to the red light violation. On December 14, 2015, Lockhoff admitted that he committed
the summary offense of operating a vehicle with unsafe equipment, and all of the remaining
charges were dismissed.
“[S]ummary judgment is appropriate where there ‘is no genuine issue as to any material
fact’ and the moving party is ‘entitled to a judgment as a matter of law.’” Alabama v. North
Carolina, 560 U.S. 330, 344 (2010) (quoting Fed. R. Civ. P. 56(c)). “By its very terms, this
standard provides that the mere existence of some alleged factual dispute between the parties will
not defeat an otherwise properly supported motion for summary judgment; the requirement is
that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
“A genuine issue is present when a reasonable trier of fact, viewing all of the record
evidence, could rationally find in favor of the non-moving party in light of his burden of proof.”
Doe v. Abington Friends Sch., 480 F.3d 252, 256 (3d Cir. 2007) (first citing Celotex Corp. v.
Catrett, 477 U.S. 317, 322-26 (1986); then citing Anderson, 477 U.S. at 248-52). Material facts
are those which “might affect the outcome of the suit under the governing substantive law.”
Scheidemantle v. Slippery Rock Univ. State Sys. of Higher Educ., 470 F.3d 535, 538 (3d Cir.
2006). On a motion for summary judgment, “[t]he reviewing court should view the facts in the
light most favorable to the non-moving party and draw all reasonable inferences in that party’s
favor.” Burton v. Teleflex Inc., 707 F.3d 417, 425 (3d Cir. 2013). On Defendants’ motion for
summary judgment, all facts are viewed in the light most favorable to Lockhoff, and all
inferences are drawn in his favor. However, where, as here, the incident that is the subject of the
lawsuit is recorded, to the extent that any witness’s account is clearly contradicted by the
recording, the facts are taken as they are depicted in the recording. Scott v. Harris, 550 U.S. 372,
To prevail on a motion for summary judgment, “the non-moving party must present more
than a mere scintilla of evidence; ‘there must be evidence on which the jury could reasonably
find for the [non-movant].’” Jakimas v. Hoffmann-La Roche, Inc., 485 F.3d 770, 777 (3d Cir.
2007) (quoting Anderson, 477 U.S. at 252) (alteration in Jakimas). As the Third Circuit has
observed, “[t]he non-moving party may not merely deny the allegations in the moving party’s
pleadings; instead he must show where in the record there exists a genuine dispute over a
material fact.” Abington Friends Sch., 480 F.3d at 256 (citing Celotex, 477 U.S. at 322-26). To
make a showing of a genuine dispute, “the non-movant may not rest on speculation and
conjecture in opposing a motion for summary judgment.” Ramara, Inc. v. Westfield Ins. Co.,
814 F. 3d 660, 666 (3d Cir. 2016).
A. 42 U.S.C. § 1983 Claims
Defendants argue that the record does not support Lockhoff’s Section 1983 claims and
that they must be dismissed pursuant to the doctrine of qualified immunity. “The doctrine of
qualified immunity protects government officials ‘from 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.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009)
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). The Supreme Court has observed that
“[q]ualified immunity gives government officials breathing room to make reasonable but
mistaken judgments about open legal questions . . . protect[ing] ‘all but the plainly incompetent
or those who knowingly violate the law.’” Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011)
(quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). To determine whether an officer is
entitled to qualified immunity on summary judgment requires a two-step inquiry: (1) whether the
facts, taken in the light most favorable to the plaintiff, would establish the violation of a
constitutional right; and (2) whether the right at issue was clearly established. Saucier v. Katz,
533 U.S. 194, 201 (2001). After Pearson, a district court may, in its discretion, address either
question first. 555 U.S. at 242.
“[T]he objective reasonableness analysis must be conducted separately for each search or
seizure that is alleged to be unconstitutional.” County of Los Angeles v. Mendez, No. 16-369,
2017 WL 2322832, at *7, --- S. Ct. --- (U.S. May 30, 2017). Where qualified immunity is
asserted, a genuine dispute of fact material to the reasonability of the officer’s actions will
preclude summary judgment, provided that under the plaintiff’s version of facts, the violation
would have been “clearly established at the time of the alleged wrongdoing.” Spady v.
Bethlehem Area Sch. Dist., 800 F.3d 633, 637 n.4 (3d Cir. 2015) (citation and quotation marks
omitted); see also Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014) (“[W]hen . . . a court decides
only the clearly-established prong . . . [i]n cases alleging unreasonable searches or seizures . . .
[it] must take care not to define a case’s context in a manner that imports genuinely disputed
factual propositions.” (quotation marks omitted)); Scott v. Harris, 550 U.S. 372, 381 n.8 (2007).
Because the constitutionality of Defendants’ actions depends on “the facts and circumstances
within the officer’s knowledge at the time of the investigative stop or arrest,” United States v.
Laville, 480 F.3d 187, 194 (3d Cir. 2007) (citations omitted), each challenged action is discussed
in turn, and the issue of qualified immunity is addressed where required.
i. Traffic Stop and Frisk
First, as to whether the Defendants acted lawfully when they stopped Lockhoff’s car,
ordered him out of the vehicle, and conducted a frisk, the parties agree as to the basic facts. It is
undisputed that the Defendants observed Lockhoff turn left on a red traffic, and that the tint on
his windows appeared to exceed the legal limit. It is perplexing, given the facts of record and the
legal prism through which they must be viewed, that Lockhoff contends that Defendants lacked a
sufficient basis to pull him over from the outset. The argument is without merit.
There is no question that a traffic stop is a “seizure” within the meaning of the Fourth
Amendment. United States v. Delfin-Colina, 464 F.3d 392, 396 (3d Cir. 2006) (citing Delaware
v. Prouse, 440 U.S. 648, 653 (1979)). However, so long as a police officer has reasonable
suspicion pursuant to Terry v. Ohio, 392 U.S. 1 (1968), i.e., “‘specific, articulable facts’ . . . to
believe that an individual has violated the traffic laws,” a routine traffic stop passes
constitutional muster Id. at 397 (quoting U.S. v. Cortez, 449 U.S. 411, 416 (1981)); see also
United States v. Mosley, 454 F.3d 249, 252 (3d Cir. 2006) (“[T]he Supreme Court established a
bright-line rule that any technical violation of a traffic code legitimizes a stop, even if the stop is
merely pretext for an investigation of some other crime.” (citing Whren v. United States, 517
U.S. 806 (1996)). Here, the Defendants had reasonable suspicion to make a traffic stop based on
their observation of Lockhoff’s left turn on a steady red light (which he admitted in both the
MVR recording and in his deposition) and the window tint violation (which he admitted in the
underlying juvenile court proceeding) before making the stop. Cf. United States v. Lewis, 672
F.3d 232, 237-38 (3d Cir. 2012) (finding no reasonable suspicion to support traffic stop based on
excessive window tint where there was no evidence put forth in suppression hearing that officer
who effectuated traffic stop actually observed the tint prior to making the stop).
Nor does the manner in which Defendants conducted the traffic stop offend the Fourth
Amendment. It is “well settled that a police officer executing such a stop may exercise
reasonable superintendence over the car and its passengers . . . [and] may order the driver out of
the vehicle without any particularized suspicion.” United States v. Bonner, 363 F.3d 213, 216
(3d Cir. 2004) (citing Pennsylvania v. Mimms, 434 U.S. 106, 110-11 (1977)). As such, Kamnick
was within his rights to order Lockhoff to exit the vehicle to discuss the traffic citation.
Similarly, during a lawful traffic stop, a police officer may frisk the driver if the officer
also has a reasonable suspicion that the driver might be presently armed and dangerous. Bonner,
363 F.3d at 216 (citing Mimms, 434 U.S. at 111-12 (extending Terry to traffic stops)). This
requires that the officer be “‘able to point to specific and articulable facts which, taken together
with rational inferences from those facts, reasonably warrant that intrusion.’” United States v.
Moorefield, 111 F.3d 10, 13 (3d Cir. 1997) (citing Terry, 392 U.S. at 21). Where such a basis
exists, the officer may conduct the limited search for weapons provided for by Terry.
Defendants contend that Lockhoff’s refusal to remove his hands from his pockets,
coupled with his visible agitation, furnished circumstances from which Kamnick might have
reasonably inferred that Lockhoff was armed and dangerous, thus supporting a Terry frisk.
Nervous behavior alone, although certainly a relevant consideration, is generally not a sufficient
basis for a frisk. United States v. I.E.V., 705 F.3d 430, 438 (9th Cir. 2012); United States v.
Wilson, 506 F.3d 488, 495 (6th Cir. 2007); United States v. McKoy, 428 F.3d 38, 40 (1st Cir.
2005); United States v. Ford, 333 F.3d 839, 844-45 (7th Cir. 2003); United States v. Mesa, 62
F.3d 159, 162 (6th Cir. 1995). Similarly, there is no question that a detainee’s refusal to remove
his hands from his pockets when ordered to do so is a relevant consideration that may, in light of
the totality of the circumstances, give rise to reasonable suspicion that would support a frisk.
United States v. Mouscardy, 722 F.3d 68, 76 (1st Cir. 2013); see also United States v. Cornelius,
391 F.3d 965, 968 (8th Cir. 2004) (finding support for Terry frisk where detainee placed hand in
pocket and refused to remove it); United States v. Harris, 313 F.3d 1228, 1236 (10th Cir. 2002)
(citing detainee’s nervous behavior and refusal to remove hands from pockets as reasonable basis
to conduct frisk). The question in this case is whether, in light of the totality of the
circumstances, these two factors gave rise to the requisite level of suspicion that Lockhoff may
have been armed.
The MVR recording shows that after being told twice to take his hands out of his pockets,
Lockhoff turned his pockets inside out, clearly revealing that they contained nothing but his
phone and keys. However, immediately afterwards, Kamnick told him a third time to keep his
hands out of his pockets. Lockhoff ignored this instruction, and put his hands back in his
pockets. In light of this undisputed fact, when considered in conjunction with Lockhoff’s
agitated manner, Kamnick could reasonably have inferred that Lockhoff was keeping his hands
in his pockets in order to secure a weapon concealed elsewhere underneath his shorts, and
therefore, had a sufficient basis to support a Terry frisk.
ii. Investigative Detention and Car Search
Lockhoff next claims that Defendants violated his Fourth Amendment rights by detaining
him longer than necessary to issue the traffic citation. He is correct that for a routine traffic stop,
“[a]uthority for the seizure . . . ends when tasks tied to the traffic infraction are—or reasonably
should have been—completed.” Rodriguez v. United States, 135 S. Ct. 1609, 1614 (2015)
(prolonging traffic stop to conduct dog sniff rendered seizure unreasonable, absent independent
reasonable suspicion to support the dog sniff). But a police officer may legitimately continue to
detain the occupants of a vehicle when, in the course of a lawful traffic stop, the officer develops
a reasonable, articulable suspicion that criminal activity beyond a mere traffic violation may be
afoot. Id. at 1616-17 (remanding for the Court of Appeals to determine in the first instance
whether reasonable suspicion existed to detain driver beyond initial traffic stop for dog sniff);
accord United States v. Givan, 320 F.3d 452, 458 (3d Cir. 2003) (“After a traffic stop that was
justified at its inception, an officer who develops a reasonable, articulable suspicion of criminal
activity may expand the scope of an inquiry beyond the reason for the stop and detain the vehicle
and its occupants for further investigation.” (citation omitted)). Consequently, the legality of
Defendants’ continued detention of Lockhoff in order to question him about matters unrelated to
the traffic violation turns on whether they had reasonable suspicion of other criminal activity.
For this reason, it is necessary to address the parties’ disagreement as to the factual
question of whether Lockhoff’s car smelled of marijuana. In the MVR recording, Kamnick can
be seen approaching the front passenger side of the car alone and knocking on the window.
After Lockhoff lowers the window, Kamnick asks for his license, registration and insurance
information. In his deposition, Kamnick testified that at this point, he “could smell the odor of
marijuana emanating from the vehicle.” This account is confirmed by the recording, which
clearly shows that within the first two minutes of the interaction, Kamnick questioned Lockhoff
about the presence of marijuana, and specifically noted that he smelled marijuana. Kamnick also
remarks on the smell of the marijuana to himself, and later, to the tow truck driver, as he
conducts a search of the car following Lockhoff’s arrest.
Slonaker testified that he did not smell marijuana initially because he was not in close
proximity to an open window or door. However, he also testified that he did smell marijuana
later, when Kamnick recovered what he believed to be dabs from the car. The recording
confirms that at all times during the interaction, Slonaker was several feet away from an open
window or door – he stood to the rear left of the car for the duration of the time that Lockhoff
was in the car, and after Lockhoff got out, Slonaker went to the rear right side of the car.
Accordingly, Slonaker’s testimony is not inconsistent with Kamnick’s because the video
demonstrates that Slonaker did not have the same opportunity to observe whether the car smelled
of marijuana until later in the interaction.
For his part, Lockhoff testified that his car did not smell of marijuana. However, he also
testified that he did not, in fact, know what marijuana smells like. Accordingly, crediting
Lockhoff’s assertion, as the Court is required to, inextricably leads to the conclusion that his
testimony as to the smell of marijuana has no basis, and so cannot serve to create a genuine issue
of material fact on summary judgment.
Nor do the other two arguments that Lockhoff advances in his brief suffice to create a
genuine issue. As the party opposing a properly supported summary judgment motion, Lockhoff
is required to point to “affirmative evidence” in the record in order to establish a genuine issue of
material fact. Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989) (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-57 (1986)). The first argument – that
Defendants do not have sufficient training or experience in identifying marijuana – is flatly
contradicted by the record, which indicates they received training in the police academy with
respect to the smell of raw and burning marijuana, as well as its visual identification, and also the
testimony that they had encountered marijuana in their experience with the Pennsylvania State
The second – that Defendants never performed any testing to determine whether the
materials seized from Lockhoff’s car actually contained marijuana – is a spoliation argument.
Specifically, Lockhoff contends that the failure to test the seized items deprived him of the
ability to establish a genuine issue as to whether the items seized from the car were, in fact,
marijuana, and by implication, whether the car actually smelled of marijuana. However, apart
from the bare fact that the Defendants never submitted the seized items for testing, the summary
judgment record does not contain evidence that would be necessary to establish whether
spoliation has occurred, much less what an appropriate sanction would be.2 Accordingly,
Lockhoff has failed to point to affirmative evidence that would establish a genuine issue as to
“Spoliation occurs where: the evidence was in the party’s control; the evidence is relevant to the claims or defenses
in the case; there has been actual suppression or withholding of evidence; and, the duty to preserve the evidence was
reasonably foreseeable to the party.” Bull v. United Parcel Serv., Inc., 665 F.3d 68, 73 (3d Cir. 2012). As to the
appropriate sanction, “key considerations . . . should be: (1) the degree of fault of the party who altered or destroyed
the evidence; (2) the degree of prejudice suffered by the opposing party; and (3) whether there is a lesser sanction
that will avoid substantial unfairness to the opposing party and, where the offending party is seriously at fault, will
serve to deter such conduct by others in the future.” Schmid v. Milwaukee Elec. Tool Corp., 13 F.3d 76, 79 (3d Cir.
whether his car smelled of marijuana, or whether the items seized actually contained marijuana.
Therefore, Kamnick’s detection of the marijuana odor, and his observation of multiple packages
of cigar papers, gave him reasonable suspicion of criminal activity, making it permissible to
prolong Lockhoff’s detention beyond the initial traffic stop.
These same facts are also sufficient to establish that Kamnick had probable cause to
believe that Lockhoff’s car contained contraband. United States v. Ramos, 443 F.3d 304, 308
(3d Cir. 2006) (“It is well settled that the smell of marijuana alone, if articulable and
particularized, may establish not merely reasonable suspicion, but probable cause.”). Kamnick
detected the smell of marijuana as he spoke with Lockhoff through the lowered front passenger
window. As the MVR recording demonstrates, there were no other vehicles in the vicinity,
thereby rendering the smell sufficiently particularized to support the existence of probable cause
to search the car. As such, the Defendants had grounds to conduct a warrantless search of
Lockhoff’s vehicle under the well-established automobile exception to the Fourth Amendment’s
warrant requirement, which allows for the warrantless search and seizure of an automobile where
“‘probable cause exists to believe it contains contraband.’” United States v. Burton, 288 F.3d 91,
100 (3d Cir. 2002) (quoting Pennsylvania v. Labron, 518 U.S. 938, 940 (1996)).
Finally, as to the manner in which the car search was conducted, Lockhoff’s contention
that the use of handcuffs automatically transformed the encounter into a seizure requiring
probable cause is incorrect. United States v. Johnson, 592 F.3d 442, 448 (3d Cir. 2010)
(“[P]lacing a suspect in handcuffs while . . . conducting an investigation [does not] automatically
transform an otherwise-valid Terry stop into a full-blown arrest.”). Here, Lockhoff repeatedly
failed to step away from the car when instructed to do so. In light of this behavior, it was
reasonable for the Defendants to use handcuffs in order to conduct the car search without risk of
interference from Lockhoff. United States v. Edwards, 53 F.3d 616, 619 (3d Cir. 1995)
(“[During] . . . an investigative stop . . . [officers] may take such steps as are ‘reasonably
necessary to protect their personal safety and to maintain the status quo during the course of the
stop.’” (quoting United States v. Hensley, 469 U.S. 221, 235 (1985))).
iii. Use of Force
Having concluded that the traffic stop, investigative detention, frisk and car search did
not violate Lockhoff’s Fourth Amendment rights, the Court can now address whether
Defendants’ use of force during the encounter was unconstitutionally excessive. The Fourth
Amendment guarantees “[t]he right of the people to be secure in their persons . . . against
unreasonable . . . seizures.” U.S. Const. amend. IV. From this language derives the right to be
free from the use of excessive force during an arrest or investigative detention. Graham v.
Connor, 490 U.S. 386, 394 (U.S. 1989). The excessive force inquiry “requires a careful
balancing of the nature and quality of the intrusion on the individual’s Fourth Amendment
interests against the countervailing governmental interests at stake.” Id. at 396 (internal
quotation marks and citations omitted).
Whether an officer’s use of force is excessive depends on whether it is “objectively
reasonable.” Id. at 397 (citations and quotation marks omitted). This fact-bound determination
“must be judged from the perspective of a reasonable officer on the scene, rather than with the
20/20 vision of hindsight.” Id. at 396 (citing Terry, 392 U.S. at 20-22). Relevant factors under
the objective reasonableness test set forth in Graham include “(1) the severity of the crime at
issue, (2) whether the suspect poses an imminent threat to the safety of the police or others in the
vicinity, and (3) whether the suspect attempts to resist arrest or flee the scene.” Santini v.
Fuentes, 795 F.3d 410, 417 (3d Cir. 2015) (citing Graham, 490 U.S. at 396). The Court may
also consider “the possibility that the persons subject to the police action are themselves violent
or dangerous, the duration of the action, whether the action takes place in the context of effecting
an arrest, the possibility that the suspect may be armed, and the number of persons with whom
the police officers must contend at one time.” Id. (quoting Sharrar v. Felsing, 128 F.3d 810, 822
(3d Cir. 1997) (abrogated on other grounds by Curley v. Klem, 499 F.3d 199 (3d Cir. 2007)). As
such, the requisite analysis accounts for the totality of the circumstances. Curley, 499 F.3d at
During the encounter, there were two instances in which the Defendants used force
against Lockhoff: the first was on-camera, when they placed him in handcuffs behind his car,
and the second was off-camera, when Kamnick took Lockhoff to the ground at the side of the
patrol vehicle and held him there with Slonaker’s assistance.
With respect to the first use of force, the undisputed facts in the record make it clear that
there was no Fourth Amendment violation. It is well-settled that “the right to make an arrest or
investigatory stop necessarily carries with it the right to use some degree of physical coercion or
threat thereof to effect it.” Graham, 490 U.S. at 396. Where, as here, the use of handcuffs is
allowed during an investigative detention, the officers may use so much force as reasonably
necessary to apply them, but not more. See Kopec v. Tate, 361 F.3d 772, 777 (3d Cir. 2004).
Lockhoff is unable to identify facts from which it could be concluded that Defendants’ use of
force to place him in handcuffs was objectively unreasonable. Although Kamnick did forcefully
push Lockhoff by the neck forward onto the trunk, he did so only after Lockhoff had repeatedly
declined to comply with his instruction to go with Slonaker to stand by the patrol vehicle, and
then took a step away from the car. The injuries to Lockhoff’s face did not happen them – the
MVR recording clearly shows his sunglasses still intact and securely on his face as he is walked
off-camera. Accordingly, there is no genuine issue that precludes summary judgment in
Defendants’ favor on the excessive force claim with respect to the on-camera use of force.
With respect to the off-camera use of force, the record requires a different conclusion.
Without the benefit of a visual recording of what took place at the side of the patrol car, the
Court must rely on the audio recording and the parties’ accounts. As has been seen, these
diverge with respect to the following factual issues: in the moments before the take-down,
whether Lockhoff was turning his body away from Kamnick, and whether Lockhoff struck
Kamnick in the belt with his elbow; and once Lockhoff was on the ground, whether he was
physically compliant. In Defendants’ version of events, Kamnick’s use of force was a measured
response to a physically noncompliant detainee. But according to Lockhoff, he was physically –
if not verbally – compliant, and Kamnick’s post-handcuffing use of force against a subdued
detainee was essentially gratuitous.
Crediting Lockhoff’s version of events, a jury could find that Kamnick’s use of force was
unreasonable under the Graham factors. Taking them in turn, the seriousness of the suspected
offense – here, simple traffic violations and possible marijuana offenses – weighs mostly in
Lockhoff’s favor. Although Defendants contend that they did not know whether they were
dealing with a potential simple possession or a drug trafficking offense, beyond the smell of
marijuana and the cigar papers there were no facts to suggest that they were dealing with a drug
trafficker or potentially violent individual. Nor was Kamnick confronted with facts from which
it could be inferred that Lockhoff was armed or otherwise posed an imminent safety threat to
himself or others. Kamnick had already frisked him and found that he did not have any
concealed weapons. Perhaps most critically, Lockhoff had already been placed in handcuffs, and
was being detained against the patrol vehicle by two state troopers. And as to the third Graham
factor, under Lockhoff’s version of events, he was not attempting to resist or to flee. In light of
the foregoing, a reasonable jury could conclude that the governmental interest did not warrant
the nature and quality of the intrusion effected by Kamnick, namely, the take-down and forcible
restraint of a detainee after he had already been subdued, with sufficient force to cause the
visible injuries demonstrated by the record. Therefore, Lockhoff has established a genuine issue
with respect to whether Kamnick’s off-camera actions violated the Fourth Amendment.
With respect to Slonaker’s off-camera actions, Defendants argue that even if Kamnick’s
take-down and restraint of Lockhoff was unreasonable, Lockhoff has failed to establish a
genuine issue as to Slonaker’s conduct. In describing what Slonaker did, Lockhoff does not
argue that Slonaker’s actions resulted in his injuries. Indeed, he testified that Slonaker did not do
anything until Lockhoff was on the ground, and that “[h]e kind of just stood by and put a hand on
me. He really didn’t do much.” This level of force, exercised against a lawfully detained
individual, obviously cannot establish a Fourth Amendment excessive force claim. However,
Slonaker may not escape liability if he had the “opportunity and means” to intervene in
Kamnick’s unconstitutional use of force. Burgess v. Fischer, 735 F.3d 462, 475 (6th Cir. 2013)
(citation and quotation marks omitted); accord Smith v. Mensinger, 293 F.3d 641, 651 (3d Cir.
2002) (holding that correctional officer in Section 1983 Eighth Amendment suit may be liable
for another officer’s use of excessive force whether there was a reasonable opportunity to
intervene). Because Lockhoff testified that he was injured in part due to the force that Kamnick
applied while he was on the ground, Lockhoff has established a genuine issue with respect to
whether Slonaker had the opportunity to perceive what was going on and to intervene to stop it.
Burgess, 735 F.3d at 475; Abdullahi v. City of Madison, 423 F.3d 763, 775 (7th Cir. 2005).
Having concluded that Lockhoff has made out a constitutional violation, it is necessary to
proceed to the question of qualified immunity, namely, whether it was clearly established on July
29, 2015, that the Defendants’ actions under Lockhoff’s version of events would have amounted
to a Fourth Amendment violation. It has been repeatedly emphasized that what constitutes
“‘clearly established law’ should not be defined ‘at a high level of generality.’” White v. Pauly,
137 S. Ct. 548, 552 (2017) (per curiam) (quoting Ashcroft v. al–Kidd, 563 U.S. 731, 742 (2011)).
Instead, “the clearly established law must be ‘particularized’ to the facts of the case. Id. (quoting
Anderson v. Creighton, 483 U.S. 635, 640 (1987)). Because the objective reasonableness test set
out in Graham is “cast at a high level of generality,” it alone will not suffice to clearly establish
that an officer’s use of force was constitutionally excessive, except “in an obvious case.”
Brosseau v. Haugen, 543 U.S. 194, 199 (2004) (citation omitted). There need not be “‘a case
directly on point’ for a right to be clearly established, ‘[but] existing precedent must have placed
the statutory or constitutional question beyond debate.’” White, 137 S. Ct. at 551 (quoting
Mullenix v. Luna, 136 S. Ct. 305, 308 (2015)); see also Hope v. Pelzer, 536 U.S. 730, 738 (2002)
(holding that a “materially similar” case is not required where prior cases render unlawfulness
Defendants argue that it is not clearly established that police officers violate a detainee’s
Fourth Amendment rights simply by tackling him. In this case, however, the relevant question is
not whether it is clearly established that tackling a lawfully detained individual violates the
Fourth Amendment. Rather, the Court must inquire whether it is clearly established that tackling
and restraining on the ground an unarmed, handcuffed, physically compliant individual who has
effectively been subdued, with sufficient force to cause the injuries suffered here, is
unreasonable under the Fourth Amendment. Assuming the veracity of Lockhoff’s version of
events, this case falls into the category of obvious cases under Graham. Where an individual
suspected of a nonviolent offense, who has been frisked for weapons and placed in handcuffs, is
in the custody of two officers and is physically compliant, there is simply no governmental
interest that would justify the continued post-restraint use of force at issue here. Under the
balancing test set forth in Graham, the continued use of force once a detainee has been subdued
violates the Fourth Amendment.
But even if the general test in Graham did not clearly establish the violative nature of the
alleged conduct, the Courts of Appeal that have directly addressed the issue have had little
trouble concluding that the continued use of force by a police officer after a detainee has been
subdued is a clearly established Fourth Amendment violation. See, e.g., Perea v. Baca, 817 F.3d
1198, 1204 (10th Cir. 2016) (holding that it was clearly established in 2011 that “officers may
not continue to use force against a suspect who is effectively subdued”); Montoya v. City of
Flandreau, 669 F.3d 867, 872 (8th Cir. 2012) (“[T]he contours of the right at issue were
sufficiently clear to inform a reasonable officer in Officer Hooper’s position it was unlawful for
him to perform a ‘leg sweep’ and throw to the ground a nonviolent, suspected misdemeanant
who was not threatening anyone, was not actively resisting arrest, and was not attempting to
flee.”); Krout v. Goemmer, 583 F.3d 557, 566 (8th Cir. 2009) (“It was clearly established that the
use of this type of gratuitous force against a suspect who is handcuffed, not resisting, and fully
subdued is objectively unreasonable under the Fourth Amendment.” (citations omitted)); Hadley
v. Gutierrez, 526 F.3d 1324, 1333-34 (11th Cir. 2008) (“We hold that a handcuffed, non-resisting
defendant’s right to be free from excessive force was clearly established in February 2002.”);
Holmes v. Village of Hoffman Estate, 511 F.3d 673, 687 (7th Cir. 2007) (“No reasonable officer
could have thought that it was . . . proper to continually grind his knee into the face of an
unresisting arrestee.”); Couden v. Duffy, 446 F.3d 483, 497 (3d Cir. 2006) (holding that posthandcuffing application of mace and kneeling on the back of fourteen year old was clearly
unconstitutional under Graham factors); Jones v. Buchanan, 325 F.3d 520, 532 (4th Cir. 2003)
(“[C]ourts have . . . consistently held that officers using unnecessary, gratuitous, and
disproportionate force to seize a secured, unarmed citizen, do not act in an objectively reasonable
manner, and thus, are not entitled to qualified immunity.”); Phelps v. Coy, 286 F.3d 295, 301
(6th Cir. 2002) (“[T]there was simply no governmental interest in continuing to beat Phelps after
he had been neutralized, nor could a reasonable officer have thought there was.”); see also Giles
v. Kearney, 571 F.3d 318, 326 (3d Cir. 2009) (holding that it was clearly established by 2001 that
the Eighth Amendment prohibits an officer’s gratuitous use of force against a subdued inmate);
Green v. New Jersey State Police, 246 F. App’x 158, 167 (3d Cir. 2007) (Garth, J., dissenting)
(dissenting from denial of qualified immunity and noting that the case did not involve “gratuitous
violence on a handcuffed and compliant arrestee”).
Moreover, the three cases Defendants rely on to argue that the governing law is not
clearly established are factually distinguishable because the use of force at issue in each took
place before the detainee was handcuffed or otherwise subdued.3 As such, these cases are
insufficiently particularized to the facts at issue, and so cannot satisfy the Defendants’ ultimate
burden of persuasion as to qualified immunity. Halsey v. Pfeiffer, 750 F.3d 273, 288 (3d Cir.
2014). Therefore, a genuine issue exists as to whether the Defendants’ use of force was
Ankele v. Hambrick, 136 F. App’x 551, 554 (3d Cir. 2005) (“[W]e agree with the District Court that the force
Hambrick applied in arresting Ankele-specifically, grabbing Ankele, throwing him onto the police car, and
handcuffing him-was not excessive.”); Boroff v. Lynn, 643 F. App’x 130, 133 (3d Cir. 2016) (holding that New
Jersey State Police Trooper’s tackling of “inebriated, disorderly, uncooperative, and combative” individual who had
repeatedly tried to escape the Trooper’s grasp was not unreasonable); Thomas v. City of Erie, 236 F. App’x 772, 776
(3d Cir. 2007) (finding no Fourth Amendment violation where police forced force was used to handcuff arrestee
who went limp and put his hands beneath his body to resist handcuffs).
excessive under clearly established law, and the Defendants’ motion for summary judgment will
be denied insofar as the excessive force claim is based on the off-camera use of force.
iv. False Arrest
Next is Lockhoff’s claim that his arrest violated the Fourth Amendment because the
Defendants lacked probable cause to arrest him. Based on the undisputed facts in the record,
Defendants are entitled to summary judgment on this claim.
“Probable cause exists whenever reasonably trustworthy information or circumstances
within a police officer’s knowledge are sufficient to warrant a person of reasonable caution to
conclude that an offense has been committed by the person being arrested.” United States v.
Myers, 308 F.3d 251, 255 (3d Cir. 2002) (citing Beck v. Ohio, 379 U.S. 89, 91 (1964)). “[A]n
arresting officer’s state of mind (except for the facts that he knows) is irrelevant to the existence
of probable cause.” Devenpeck v. Alford, 543 U.S. 146, 153 (2004) (citing Whren v. United
States, 517 U.S. 806, 812-13 (1996)). Thus, the existence of probable cause as to any offense
will defeat a Section 1983 plaintiff’s false arrest claim. Id. at 155 (“Those are lawfully arrested
whom the facts known to the arresting officers give probable cause to arrest.”); Wright v. City of
Philadelphia, 409 F.3d 595, 603-04 (3d Cir. 2005).
Here, probable cause to arrest Lockhoff existed by virtue of the undisputed fact that
Defendants observed him violate several motor vehicle laws. “If an officer has probable cause to
believe that an individual has committed even a very minor criminal offense in his presence, he
may, without violating the Fourth Amendment, arrest the offender.” Atwater v. City of Lago
Vista, 532 U.S. 318, 354 (2001); see also Virginia v. Moore, 553 U.S. 164, 176 (2008). Because
Lockhoff has admitted to running a red light, which is a violation of 75 Pa. Cons. Stat. §
3112(a)(3), and also to operating a vehicle with unsafe equipment in violation of 75 Pa. Cons.
Stat. § 4107(b)(2), there is no dispute that Defendants had probable cause to arrest him when
they observed these offenses. Accordingly, his Section 1983 false arrest claim cannot withstand
Defendants’ motion for summary judgment.
v. Malicious Prosecution
Lockhoff’s last Section 1983 claim is for malicious prosecution in violation of the Fourth
Amendment.4 This requires showing that:
(1) the defendant initiated a criminal proceeding; (2) the criminal proceeding ended in his
favor; (3) the defendant initiated the proceeding without probable cause; (4) the
defendant acted maliciously or for a purpose other than bringing the plaintiff to justice;
and (5) the plaintiff suffered deprivation of liberty consistent with the concept of seizure
as a consequence of a legal proceeding.
Black v. Montgomery Cty., 835 F.3d 358, 364 (3d Cir. 2016) (emphasis removed) (quoting
Johnson v. Knorr, 477 F.3d 75, 82 (3d Cir. 2007)), as amended (Sept. 16, 2016). Defendants
move for summary judgment on the grounds that Lockhoff cannot establish the first, third, and
As to the first element, there is no evidence to show that Slonaker “initiated a criminal
proceeding,” and so summary judgment will be entered in his favor as to the Section 1983
malicious prosecution claim. However, there is record evidence of communication between
Kamnick and the prosecuting authority, found in the Incident Report that he completed, which
refers to a “Written Allegation” having been “filed.” From this, a jury could reasonably infer
Count Seven of the Complaint invokes the Fourteenth Amendment, in addition to the Fourth Amendment, as a
basis for the Section 1983 malicious prosecution claim. Defendants’ motion does not distinguish between the
possible constitutional bases for the claim. In response, Lockhoff does not argue that the Fourteenth Amendment
provides a basis for the Section 1983 malicious prosecution claim, and instead relies solely on the Fourth
Amendment. Accordingly, he has waived any Section 1983 malicious prosecution claim rooted in the Fourteenth
Amendment. Jackson v. Fed. Exp., 766 F.3d 189, 198 (2d Cir. 2014) (“In the case of a counseled party, a court
may, when appropriate, infer from a party’s partial opposition [to summary judgment] that relevant claims or
defenses that are not defended have been abandoned.”).
that Kamnick initiated a prosecution against Lockhoff. See Gallo v. City of Philadelphia, 161
F.3d 217, 220 n.2 (3d Cir. 1998).
As to the third element, the Court must consider whether probable cause existed for each
of the offenses charged. Dempsey v. Bucknell Univ., 834 F.3d 457, 477 (3d Cir. 2016). For the
reasons previously discussed, probable cause existed as to the traffic violations, as well as for the
marijuana and paraphernalia offenses, notwithstanding Lockhoff’s protestations about the
absence of any testing on the seized items.5 However, there is a genuine issue as to whether
probable cause existed to charge Lockhoff with resisting arrest in violation of 18 Pa. Cons. Stat §
5104, and disorderly conduct by fighting in violation of 18 Pa. Cons. Stat. § 5503(a)(1). Without
the benefit of an affidavit of probable cause, or deposition testimony as to the contents of
Kamnick’s communications with prosecutors, it cannot be known precisely what information
Kamnick conveyed. If it was consistent with the narrative section of Kamnick’s Incident Report,
which states that, while at the side of the patrol vehicle, “LOCKHOFF pulled away from my
grasp in a violent manner with his right elbow striking my belt,” as has previously been
established, there is a genuine dispute as to whether this actually occurred. If, as Lockhoff
testified, it did not, then filing a written allegation to the contrary could amount to initiating a
criminal proceeding without probable cause. Accordingly, the Court may not at this juncture
conclude, as a matter of law, that Kamnick had probable cause to initiate criminal proceedings as
to these two charges.
As the recording demonstrates, probable cause also existed for the disorderly conduct by obscene language charge
by virtue of Lockhoff’s language and the location on a highway. 18 Pa. Cons. Stat. §5503(a)(3), (c). Additionally,
to the extent that Lockhoff suggests that the Defendants lacked probable cause to file a written allegation on the
motor vehicle summary offenses, knowing that the 30 days limitation imposed by 42 Pa. Cons. Stat. 5553(a) since
the date of the incident had elapsed, the statute of limitations is an affirmative defense that does not affect the
existence of probable cause. Sands v. McCormick, 502 F.3d 263, 269 (3d Cir. 2007).
With respect to the fifth element, insofar as Defendants contend that Lockhoff effectively
conceded this claim by acknowledging that his liberty was not deprived beyond the 2-3 hours he
spent in police custody and the time spent at a juvenile court hearing, Defendants ignore the
Third Circuit’s recent holding in Black. There, the Third Circuit adopted the test for the
sufficiency of a deprivation set out in Justice Ginsburg’s concurrence in Albright v. Oliver, 510
U.S. 266 (1994), which held that a criminal defendant who is released before trial, but is
nonetheless obligated to attend pretrial court appearances remains “effectively seized” so long as
the prosecution is pending. Black, 835 F.3d at 367-68 (quoting Albright, 510 U.S. at 278-79
(Ginsburg, J., concurring)). Under this test, Lockhoff suffered a deprivation of liberty sufficient
to support a Fourth Amendment malicious prosecution claim.
Finally, although Defendants generally assert qualified immunity to all the Section 1983
claims, they do not advance any legal argument specifically addressing their entitlement to
qualified immunity on the malicious prosecution claims. In any event, it is clearly established
that a police officer’s falsification of evidence violates the constitution. Halsey v. Pfeiffer, 750
F.3d 273, 293-96 (3d Cir. 2014). Therefore, the motion for summary judgment on the Section
1983 malicious prosecution claim against Kamnick will be denied with respect to the charges for
resisting arrest in violation of 18 Pa. Cons. Stat § 5104, and disorderly conduct by fighting in
violation of 18 Pa. Cons. Stat. § 5503(a)(1), and granted with respect to all remaining charges.
B. State Law Claims
Defendants argue that they are entitled to sovereign immunity on Lockhoff’s remaining
state law claims. “The Eleventh Amendment to the United States Constitution protects an
unconsenting state or state agency from a suit brought in federal court, regardless of the relief
sought.” Capogrosso v. The Supreme Court of New Jersey, 588 F.3d 180, 185 (3d Cir. 2009).
“[U]nless Congress has ‘specifically abrogated’ [a] state[’s] sovereign immunity or a state has
unequivocally consented to suit in federal court,” the federal courts lack jurisdiction over suits
against a state by a citizen of that state. Christ the King Manor, Inc. v. Sec’y United States Dep’t
of Health & Human Servs., 730 F.3d 291, 318 (3d Cir. 2013) (citation omitted). Under
Pennsylvania law, except insofar as they do not act within the scope of their employment, state
employees, including Defendants, are entitled to sovereign immunity. Holt v. Nw. Pa. Training
P’ship Consortium, 694 A.2d 1134, 1139 (Pa. Commw. Ct. 1997) (“[A]n employee of the
Commonwealth . . . acting within the scope of his or her employment or duties, is protected by
sovereign immunity from the imposition of liability for intentional tort claims.”); see 1 Pa. Cons.
Stat. § 2310 (“[T]he Commonwealth, and its officials and employees acting within the scope of
their duties, shall continue to enjoy sovereign immunity and official immunity and remain
immune from suit except as the General Assembly shall specifically waive the immunity.”).
The Third Circuit has predicted that Pennsylvania would apply Section 228 of the
Restatement (Second) of Agency to determine whether actions are within the scope of an
official’s employment. Brumfield v. Sanders, 232 F.3d 376, 380 (3d Cir. 2000). Under the
Restatement, “‘conduct is within the scope of employment if, but only if: (a) it is the kind [the
employee] is employed to perform; (b) it occurs substantially within the authorized time and
space limits [and] (c) it is actuated, at least in part, by a purpose to serve the master.’” Id.
(quoting Restatement (Second) of Agency § 228) (modifications in Brumfield). Activity may be
within the scope of employment even if the acts are “intentional or criminal,” and “even
unauthorized acts may be within the scope of employment if they are clearly incidental to the
master’s business.” Id. at 381 (internal quotation marks omitted). However, in the context of
law enforcement-related claims, “[w]here the alleged intentional tort was unprovoked,
unnecessary or unjustified by security concerns or penological goals, courts have ruled that such
conduct does not, as a matter of law, fall within the scope of employment.” Wesley v. Hollis, No.
03-cv-3130, 2007 WL 1655483, at *15 (E.D. Pa. June 6, 2007) (collecting cases in which courts
denied sovereign immunity-based motions to dismiss filed by corrections officers). Here, it is
undisputed that the Defendants’ conduct was of a kind they were employed to perform, within
the authorized time and space limits, and so the availability of sovereign immunity turns on
whether the challenged conduct is within the scope of the employment.
With these principles in mind, Lockhoff’s state law claims are addressed in turn.
i. Civil Conspiracy
To prove a civil conspiracy under Pennsylvania law, “it must be shown that two or more
persons combined or agreed with intent to do an unlawful act or to do an otherwise lawful act by
unlawful means. Proof of malice, i.e., an intent to injure, is essential in proof of a conspiracy.
This unlawful intent must be absent justification.” Thompson Coal Co. v. Pike Coal Co., 412
A.2d 466, 472 (Pa. 1979) (citations omitted). With respect to the requisite agreement, concert of
action alone is insufficient. Fife v. Great Atl. & Pac. Tea Co., 52 A.2d 24, 39 (Pa. 1947) (“The
mere fact that two or more persons, each with the right to do a thing, happen to do that thing at
the same time is not by itself an actionable conspiracy.”).
Here, Defendants assert that there is no record evidence of an agreement to act
unlawfully apart from the apparent concert of action between Kamnick and Slonaker. Lockhoff
does not point to any additional facts in the summary judgment record from which a jury could
infer the existence of a conspiratorial agreement, nor has the Court identified any facts that
would “raise more than a mere suspicion of concerted action.” Fife, 52 A.2d at 27. Thus,
summary judgment will be granted in Defendants’ favor on the conspiracy claim.
ii. Intentional Infliction of Emotional Distress
Turning next to Lockhoff’s claim for intentional infliction of emotional distress (“IIED”),
the Pennsylvania Supreme Court has not formally recognized a standalone tort for IIED, but has
implied that if it were to, the “minimum elements necessary to sustain such a cause of action”
would be those set forth at the Restatement (Second) of Torts § 46. Taylor v. Albert Einstein
Med. Ctr., 754 A.2d 650, 652 (Pa. 2000) (citations omitted). Nonetheless, the Pennsylvania
Superior Court has recognized a standalone IIED claim, and has cited Section 46 as having
provided “guidance” to its elements. Swisher v. Pitz, 868 A.2d 1228, 1231 n.2 (Pa. Super. Ct.
2005). The Third Circuit has also predicted that the Pennsylvania Supreme Court would follow
Section 46. Reedy v. Evanson, 615 F.3d 197, 231 (3d Cir. 2010); Pavlik v. Lane Ltd./Tobacco
Exporters Int’l, 135 F.3d 876, 890 (3d Cir. 1998). In pertinent part, that section imposes liability
against “[o]ne who by extreme and outrageous conduct intentionally or recklessly causes severe
emotional distress to another is subject to liability for such emotional distress, and if bodily harm
to the other results from it, for such bodily harm.” Restatement (Second) § 46(1).
In addition, however, the Pennsylvania Supreme Court has indicated that the tort would
require “objective proof of severe emotional distress . . . supported by competent medical
evidence.” Kazatsky v. King David Mem’l Park, Inc., 527 A.2d 988, 995 (1987); accord Gray v.
Huntzinger, 147 A.3d 924, 929 (Pa. Super. Ct. 2016). Here, there is no objective proof – much
less, competent medical evidence – in the record to suggest that Lockhoff has suffered severe
emotional distress. Therefore, summary judgment will be granted in Defendants’ favor on the
claim for intentional infliction of emotional distress.
iii. Assault and Battery
Defendants contend that their use of force was within the scope of their employment with
the Pennsylvania State Police. However, as with their argument on the issue of qualified
immunity, Defendants conflate the use force to effect a lawful arrest or detention – which would
clearly be within the scope of their employment – with the use force after an individual has
already been subdued. In the latter case, it can hardly be said that state troopers are engaged in
the kind of work they are hired to perform when they gratuitously use force after any reason to
do so has passed. For this reason, a state law claim for assault and battery against police officers
alleged to have used excessive force that is “unprovoked, unnecessary or unjustified by security
concerns or penological goals,” is not foreclosed by sovereign immunity. See, e.g., Minyard v.
City of Philadelphia, No. CIV.A. 11-246, 2012 WL 3090973, at *6 (E.D. Pa. July 31, 2012)
(quoting Wesley v. Hollis, No. CIV.A. 03-3130, 2007 WL 1655483, at *15 (E.D. Pa. June 6,
Here, Lockhoff has established a genuine issue of material fact with respect to whether
Defendants’ use of force after he was handcuffed was excessive, which precludes Defendants
from invoking sovereign immunity. Accordingly, the summary judgment will be granted in part
and denied in part to the same extent as the Section 1983 excessive force claim.
iv. Malicious Prosecution
The elements of state law malicious prosecution in Pennsylvania are the same as those
required for a Fourth Amendment malicious prosecution claim, with the exception of the fifth
element requiring a showing of a deprivation of liberty consistent with the concept of a seizure.
See Merkle v. Upper Dublin Sch. Dist., 211 F.3d 782, 791-92 (3d Cir. 2000). Having already
concluded that the Section 1983 malicious prosecution claim against Slonaker may not proceed
because Lockhoff cannot establish that Slonaker initiated a criminal proceeding, summary
judgment will be granted as to Slonaker on the state law malicious prosecution claim as well.
Similarly, having concluded that there is no genuine issue as to whether Kamnick had
probable cause to support initiating all the charges against Lockhoff except for resisting arrest in
violation of 18 Pa. Cons. Stat § 5104, and disorderly conduct by fighting in violation of 18 Pa.
Cons. Stat. § 5503(a)(1), summary judgment on the state law malicious prosecution claim will be
granted in Kamnick’s favor on all but these two charges. However, Lockhoff’s state law
malicious prosecution claim against Kamnick on the resisting arrest and disorderly conduct by
fighting charges is not barred by sovereign immunity because if a credits Lockhoff’s version of
events, Kamnick necessarily submitted a written allegation with false information. Because
knowingly submitting false allegations to a prosecutor would not serve the interests of the
Pennsylvania State Police or be otherwise justified by a legitimate penological purpose, such
activity falls outside a Trooper’s scope of employment, and so sovereign immunity is
An appropriate order follows.
DATED: June 5, 2017
BY THE COURT:
/s/ Wendy Beetlestone, J.
WENDY BEETLESTONE, J.
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