GALLUZE v. MILLER
Filing
52
MEMORANDUM OPINION granting in part and denying in part 30 Defendant's Motion for Summary Judgment; and denying 35 Plaintiff's Motion for Summary Judgment as set forth more fully within. Signed by Judge Joy Flowers Conti on 3/22/2012. (cal )
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JENNIFER GALLUZE.
Plaintiff,
v.
CIVIL ACTION NO. 10-836
WILLIAM R. MILLER individually and as
an Official Constable of the Commonwealth
of Pennsylvania.,
Defendant.
MEMORANDUM OPINION
CONTI, District Judge.
Introduction
Pending before the court is a motion for summary judgment filed by defendant William
R. Miller (“Miller” or “defendant”) (ECF No. 30) with respect to all claims asserted by plaintiff
Jennifer Galluze (“Galluze” or “plaintiff”). Plaintiff filed a cross-motion for partial summary
judgment with respect to her Fourth Amendment claims. ECF No. 35. Plaintiff asserts claims
for violations of her rights under the First, Fourth and Fourteenth Amendments to the United
States Constitution and a host of state law claims. ECF No. 1.1 After considering the statements
of facts and the other submissions of the parties and the applicable standards, defendant’s motion
for summary judgment will be granted with respect to the intentional and negligent infliction of
emotional distress claims and denied in all other respects and plaintiff’s motion for partial
summary judgment will be denied.
1
The complaint refers to two actions: “Federal Civil Rights Violations” and “Violations of State Law.” ECF No. 1.
Each action” includes several claims. In the first “action,” plaintiff asserted that defendant violated her federal
rights: a) to be free from unreasonable seizures, b) to be free from use of excessive force, and c) to freedom of
speech. The second “action” includes state law claims for assault, battery, false imprisonment, and intentional and
negligent infliction of emotional distress. The complaint also referred to a state law claim for defamation. Plaintiff,
however, never made factual allegations with respect to that claim, whether in the complaint or elsewhere. The
court must conclude, therefore, that plaintiff abandoned the defamation claim.
1
Background
This case stems from an incident that occurred on June 21, 2009, at the Brownsville
Drive-In Theater, which is located in Fayette County, Pennsylvania. ECF No. 32 at 1; ECF No.
41 at 1. Plaintiff was at the drive-in to pick up some kittens. Id. Tom Clark, Jr. (“Mr. Clark”),
one of the owners of the drive-in asked plaintiff to leave the property. Id.
There was some
“screaming” and “yelling” between plaintiff and Mr. Clark. Id. Defendant, who was at the
drive-in watching a movie with his family, approached the scene. ECF No. 32 at 2; ECF No. 41
at 2. Plaintiff testified that defendant approached her and stated he was a constable. Id. During
this interaction, defendant showed her his badge. Id. The evidence is conflicting about what
happened next.
Defendant asked plaintiff to leave the premises. ECF No. 33-3 at 38, 45. Plaintiff
indicated that she intended to report the incident to the Humane Society. Id. at 38. Plaintiff
testified that, while she was attempting to leave the property, defendant, for no reason, hit her
hand with his closed fist and proceeded to handcuff her. Id. After being handcuffed, plaintiff
complained that the cuffs were too tight she could not breathe and called him a “wannabe.” Id. at
46. “[W]hen [she] called him that he lifted up and pushed down on the handcuffs.” Id. Plaintiff
testified she never attempted to strike defendant. Id.
Defendant testified that he saw plaintiff coming toward him with her hand in the air. He
thought she was about to strike him. ECF No. 33-1 at 21-22. Defendant felt threatened. Id. at
23. As her hand came forward, defendant side stepped and handcuffed her. Defendant testified
that he did so for his own safety and for the safety of plaintiff. Id. at 22. Defendant stated she
was resisting the application of the handcuffs and he could not double lock the handcuffs. Id.
While defendant acknowledged that plaintiff was complaining about the handcuffs being too
2
tight, he explained that it was only because she was struggling. Id. at 24, 40. Defendant did not
take the handcuffs off “due to the safety of the situation.” Id. at 41.
Mr. Charlie Perkins (“Mr. Perkins”), an eyewitness, testified that plaintiff was screaming
during the interaction with both Mr. Clark and defendant. EFC No. 33-2 at 39. He also testified
that plaintiff looked “outraged” and that “she was going to hit him, him being [defendant].” Id.
at 41. Next, defendant handcuffed her. Id. at 42.
As a result of this incident, plaintiff “was charged and convicted of one summary offense
of disorderly conduct and to pay a $25.00 dollar fine.” ECF No. 49 at 4.
Standard of Review
A motion for summary judgment is governed by Federal Rule of Civil Procedure 56,
which provides in relevant part:
(a) Motion for Summary Judgment or Partial Summary
Judgment. A party may move for summary judgment, identifying
each claim or defense – or the part of each claim or defense – on
which summary judgment is sought. The court shall grant
summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law. The court should state on the record
the reasons for granting or denying the motion.
...
(c) Procedures.
(1) Supporting Factual Positions. A party asserting that a fact
cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including
depositions, documents, electronically stored information,
affidavits or declarations, stipulations (including those made for
purposes of the motion only), admissions, interrogatory answers,
or other materials; or
3
(B) showing that the materials cited do not establish the absence or
presence of a genuine dispute, or that an adverse party cannot
produce admissible evidence to support the fact.
FED. R. CIV. P. 56(a), (c)(1).
The Court of Appeals for the Third Circuit instructed in Marten v. Godwin, 499 F.3d 290
(3d Cir. 2007), that Rule 56 of the Federal Rules of Civil Procedure:
“[M]andates the entry of summary judgment, after adequate time
for discovery and upon motion, against a party who fails to make a
showing sufficient to establish the existence of an element
essential to that party's case, and on which that party will bear the
burden of proof at trial.”
Marten, 499 F.3d at 295 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)).
An issue of material fact is in genuine dispute if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986); see also Doe v. Abington Friends Sch., 480 F.3d 252, 256 (3d Cir. 2007)
(“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.”) (citing
Anderson, 477 U.S. at 248; Celotex Corp., 477 U.S. at 322-23)).
“[W]hen the moving party has carried its burden under Rule 56(c),
its opponent must do more than simply show that there is some
metaphysical doubt as to the material facts . . . . Where the record
taken as a whole could not lead a rational trier of fact to find for
the nonmoving party, there is no ‘genuine issue for trial.’”
Scott v. Harris, 550 U.S. 372, 380 (2007) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586-87 (1986)).
In deciding a summary judgment motion, a court must view the facts in the light most
favorable to the nonmoving party and must draw all reasonable inferences, and resolve all doubts
in favor of the nonmoving party. See Woodside v. Sch. Dist. of Phila. Bd. of Educ., 248 F.3d
4
129, 130 (3d Cir. 2001); Doe v. Cnty. of Centre, Pa., 242 F.3d 437, 446 (3d Cir. 2001); Heller v.
Shaw Indus., Inc., 167 F.3d 146, 151 (3d Cir. 1999). A court must not engage in credibility
determinations at the summary judgment stage. See Simpson v. Kay Jewelers, Div. of Sterling,
Inc., 142 F.3d 639, 643 n.3 (3d Cir. 1998).
Discussion
I.
A.
Defendant’s motion for summary judgment
Plaintiff brought three claims against defendant pursuant to 42 U.S.C. § 1983:2 (i) illegal
arrest, (ii) excessive force, and (iii) First Amendment retaliation.
To successfully establish a claim under § 1983, a plaintiff must demonstrate that a
person or entity intentionally deprived her of a federally protected right. See Bd.
of the Cnty. Comm’rs of Bryant Cnty. v. Brown, 520 U.S. 397, 404 (1997). A
plaintiff is required to establish two prongs to prevail on a claim under § 1983: (1)
deprivation of a federal right and (2) “that the person who has deprived [her] of
that right acted under color of state or territorial law.” See Gomez v. Toledo, 446
U.S. 635, 640 (1980).
Whiting v. Bonazza, No. 09-cv-1113, 2011 WL 500797, at *4 (W.D. Pa. Feb. 10, 2011).
Each of the asserted federal claims will be addressed.
(i)
Illegal arrest claim
Plaintiff argued that she was unlawfully arrested by defendant in violation of the Fourth
Amendment because he, as a constable, did not have the authority to do so and, in any event, did
not have probable cause to arrest her.
2
Section 1983, in relevant part, provides as follows:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State
or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured
in an action at law, suit in equity, or other proper proceeding for redress . . . .
42 U.S.C. § 1983.
5
Defendant argued that he, as a constable, had the authority to arrest her because she was
in the process of committing an aggravated assault against him, a felony offense under
Pennsylvania law. In support, defendant relied on Commonwealth v. Taylor, 677 A.2d 846 (Pa.
Super. Ct. 1996), for the proposition that “constables possess the common law powers to conduct
warrantless arrests for felonies and breaches of the peace. Since those powers have not been
abrogated by our statutory law, they are retained by the constables of this Commonwealth.” Id. at
852. He also cited 44 PA. CONS. STAT. § 7158 (relating to the power of arrest of a constable of a
borough).3 Defendant, in the alternative, argued that even in the absence of his authority as a
constable, he, as a private citizen, had the power to arrest plaintiff because she was about to
commit a felony in his presence. ECF No. 33 at 4-5. Defendant asserted that plaintiff’s conduct
gave defendant probable cause to arrest her and that no excessive force was used to arrest her.
Id. at 5-13.
In response, plaintiff argued that defendant’s motion for summary judgment should be
denied because she satisfied both elements of a § 1983 claim. Specifically, plaintiff argued that
defendant was acting under color of state law and that, “[b]ased upon the undisputed material
facts,” defendant’s conduct deprived her of rights protected under the Constitution. ECF No. 40
at 3.
3
Section 7158 provides as follows:
§ 7158. Arrest in boroughs
In addition to any other powers granted under law, a constable of a borough shall, without warrant
and upon view, arrest and commit for hearing any person who:
(1) Is guilty of a breach of the peace, vagrancy, riotous or disorderly conduct or drunkenness.
(2) May be engaged in the commission of any unlawful act tending to imperil the personal security
or endanger the property of the citizens.
(3) Violates any ordinance of the borough for which a fine or penalty is imposed.
44 PA. CONS. STAT. § 7158.
6
According to plaintiff, defendant’s conduct was unlawful because defendant did not have
the authority to arrest plaintiff. While plaintiff did not dispute the validity of Taylor, she argued
that Taylor is not applicable here because she was charged and convicted of a summary offense
(disorderly conduct), not a felony.
Regarding section 7158, plaintiff argued that it is not
applicable here because defendant was not a constable of any borough, but only a constable for
the South Strabane Township, Washington County, and the offense occurred in Redstone
Township, Fayette County.4
In his reply defendant argued that “Plaintiff assumes without offering analysis that
Defendant was acting under color of state law.” (ECF No. 44 at 1.) Defendant noted:
There was no attempt by Constable Miller to do anything other than to assist the
property owner in having her leave the premises. There was no threat of citation
or arrest, no brandishing of a weapon or even his handcuffs, nor any other actions
on his part that could qualify as acting under color of state. . . . As the victim of
an aggravated assault, based on his common law rights as a citizen and in selfdefense, [defendant] placed [plaintiff] into handcuffs for that violation and for his
own protection.
(ECF No. 44 at 1-2.)5
Defendant’s argument that he was not acting under color of state law is
untenable and no reasonable jury could reach that conclusion. The court of appeals in Barna v.
City of Perth Amboy, 42 F.3d 809 (3d Cir. 1994), stated:
4
The court agrees with plaintiff that section 7158 is not applicable to the instant matter as defendant is not a
constable of a borough. See Commonwealth v. Roose, 690 A.2d 268, 271 (Pa. Super. Ct. 1997) (relying on 13 PA.
CONS. STAT. § 45, now 44 PA. CONS. STAT. § 7158). It should be noted, however, that section 7158 became effective
on December 8, 2009. At the time of the relevant facts (June 2009), 13 PA. CONS. STAT. § 45 controlled the matter,
not section 7158. For purposes of the issue raised here, however, 13 PA. CONS. STAT. § 45 and 44 PA. CONS. STAT.
§ 7158 are essentially identical. Section 45 provides as follows:
The policeman and constables of the several boroughs of this commonwealth, in addition to the powers
already conferred upon them, shall and may, without warrant and upon view, arrest and commit for hearing
any and all persons guilty of a breach of the peace, vagrancy, riotous or disorderly conduct or drunkenness,
or may be engaged in the commission of any unlawful act tending to imperil the personal security or
endanger the property of the citizens, or violating any ordinances of said borough, for the violation of
which a fine or penalty is imposed.
13 PA. CONS. STAT. § 45.
See also ECF No. 39 at 1-2 (same).
5
7
It is [also] clear that under ‘color’ of law means under ‘pretense’ of law.” [Screws
v. United States, 325 U.S. 91, 111 (1945)]. Thus, one who is without actual
authority, but who purports to act according to official power, may also act under
color of state law. In Griffin v. Maryland, the Supreme Court held that a deputy
sheriff employed by a private park operator acted under color of state law when
he ordered the plaintiff to leave the park, escorted him off the premises, and
arrested him for criminal trespass. Griffin v. Maryland, 378 U.S. 130, 135, 84
S.Ct. 1770, 1772–73, 12 L.Ed. 2d 754 (1964) (analyzing state action necessary for
a claim under the Equal Protection Clause of the Fourteenth Amendment). While
the deputy sheriff was in actuality acting as a private security guard and as agent
of the park operator rather than as agent of the state, he “wore a sheriff's badge
and consistently identified himself as a deputy sheriff rather than as an employee
of the park,” and consequently “purported to exercise the authority of a deputy
sheriff.” Id. at 135, 84 S.Ct. at 1772. The Court concluded that the privately
employed deputy sheriff had been acting as a state actor, stating:
If an individual is possessed of state authority and purports to act
under that authority, his action is state action. It is irrelevant that he
might have taken the same action had he acted in a purely private
capacity.
Id. In this same vein, off-duty police officers who purport to exercise official
authority will generally be found to have acted under color of state law.
Manifestations of such pretended authority may include flashing a badge,
identifying oneself as a police officer, placing an individual under arrest, or
intervening in a dispute involving others pursuant to a duty imposed by police
department regulations. See, e.g., Rivera v. La Porte, 896 F.2d 691, 696 (2d
Cir.1990) (identification as a peace officer, arrest of plaintiff, and use of police
car); Lusby v. T.G. & Y. Stores, Inc., 749 F.2d 1423 (10th Cir.1984) (flashing of
police badge and identification as police officer working as security guard),
vacated on other grounds, 474 U.S. 805, 106 S.Ct. 40, 88 L.Ed.2d 33 (1985),
adhered to on remand, 796 F.2d 1307 (10th Cir.), cert. denied, 479 U.S. 884, 107
S.Ct. 275, 93 L.Ed.2d 251 (1986); Stengel v. Belcher, 522 F.2d 438, 441 (6th
Cir.1975), cert. dismissed, 429 U.S. 118, 97 S.Ct. 514, 50 L.Ed.2d 269 (1976)
(intervening in barroom brawl).
On the other hand, a police officer's purely private acts which are not
furthered by any actual or purported state authority are not acts under color of
state law. See Delcambre v. Delcambre, 635 F.2d 407, 408 (5th Cir.1981)
(holding that alleged assault by on-duty police chief at police station did not occur
under color of state law because altercation with the plaintiff, defendant's sisterin-law, arose out of a personal dispute and defendant neither arrested nor
threatened to arrest the plaintiff); see also D.T. v. Independent School Dist. No.
16, 894 F.2d 1176 (10th Cir.) (finding sexual molestation of students by public
school teacher/coach that occurred on an excursion unconnected to school
activities during school vacation period when teacher was not employed by the
8
school district did not occur under color of state law), cert. denied, 498 U.S. 879,
111 S.Ct. 213, 112 L.Ed.2d 172 (1990). While a police-officer's use of a stateissue weapon in the pursuit of private activities will have “furthered” the § 1983
violation in a literal sense, courts generally require additional indicia of state
authority to conclude that the officer acted under color of state law. Compare
Bonsignore v. City of New York, 683 F.2d 635 (2d Cir.1982) (holding that officer
who used police handgun to shoot his wife and then commit suicide did not act
under color of state law even though he was required to carry the police gun at all
times) with Stengel v. Belcher, 522 F.2d at 441 (finding evidence supported
determination of “under color” where off-duty officer intervened in barroom
brawl as required by relevant police department regulations); United States v.
Tarpley, 945 F.2d 806, 809 (5th Cir.1991) (finding requirement under color of
state law met where off-duty deputy sheriff assaulted wife's alleged ex-lover in a
private vendetta but identified self as police officer, used service revolver, and
intimated that he could use police authority to get away with the paramour's
murder), cert. denied, 504 U.S. 917, 112 S.Ct. 1960, 118 L.Ed.2d 562 (1992).
Id. at 816-17 (footnote omitted).
Under the circumstances of the case, it is undisputed that defendant intervened in the
dispute between the owner of the drive-in and plaintiff, flashed his badge, identified himself as
constable, and placed the plaintiff under arrest. As such, a reasonable jury could find defendant
acted under color of state law.6
Regarding the authority of a constable to make a warrantless arrest, the only issues raised
by plaintiff are: 1) defendant lacked authority because she was not charged with or convicted of
a felony offense; and 2) defendant did not have probable cause to believe she was about to
commit a felony.
Despite the repeated attempts by plaintiff to emphasize that defendant did not have the
authority to arrest her for a summary offense, the inquiry whether the arrest was supported by
6
See Abbott v. Latshaw, 164 F.3d 141 (3d Cir. 1998):
In Pennsylvania, constables are elected public officials with prescribed duties and liabilities, see
13 Pa. Cons. Stat. Ann. §§ 1, 41, 45 (1998) [repealed, see now 44 PA.C.S.A. §§ 7111, 7112, 7153,
and 7158]. . . . Diehl[, a county constable,] admits that he acted as a constable, and identified
himself as such to [plaintiff]. The other [three] officers arrived on the scene in response to Diehl's
call for assistance, and were on duty. All four law enforcement officers were clearly state actors.
Id. at 146.
9
probable cause must be determined on the facts available to the officer at the moment of arrest
and it is irrelevant what offense she was ultimately charged with or convicted of. The court of
appeals in Wright v. City of Philadelphia, 409 F.3d 595 (3d Cir. 2005), stated:
An arrest was made with probable cause if “at the moment the arrest was made ...
the facts and circumstances within [the officers'] knowledge and of which they
had reasonably trustworthy information were sufficient to warrant a prudent man
in believing that [the suspect] had committed or was committing an offense.”
Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964) (citations
omitted). In other words, the constitutional validity of the arrest does not depend
on whether the suspect actually committed any crime. Johnson v. Campbell, 332
F.3d 199, 211 (3d Cir. 2003). Importantly for this case, it is irrelevant to the
probable cause analysis what crime a suspect is eventually charged with, Barna v.
City of Perth Amboy, 42 F.3d 809, 819 (3d Cir.1994) (“Probable cause need only
exist as to any offense that could be charged under the circumstances.”), or
whether a person is later acquitted of the crime for which she or he was arrested,
DeFillippo, 443 U.S. at 36, 99 S.Ct. 2627; see also Devenpeck, 125 S.Ct. at 594
(“The rule that the offense establishing probable cause must be ‘closely related’
to, and based on the same conduct as, the offense identified by the arresting
officer at the time of arrest is inconsistent with [ ] precedent.”).
Id. at 602.
Similarly, in Barna, the court of appeals held:
The test for an arrest without probable cause is an objective one, based on “the
facts available to the officers at the moment of arrest.” Beck v. Ohio, 379 U.S. 89,
96, 85 S.Ct. 223, 228, 13 L.Ed.2d 142 (1964); Edwards v. City of Philadelphia,
860 F.2d 568, 571 n. 2 (3d Cir.1988). Evidence that may prove insufficient to
establish guilt at trial may still be sufficient to find the arrest occurred within the
bounds of the law. Henry v. United States, 361 U.S. 98, 102, 80 S.Ct. 168, 171, 4
L.Ed.2d 134 (1959). As long as the officers had some reasonable basis to believe
Mr. Barna had committed a crime, the arrest is justified as being based on
probable cause. Probable cause need only exist as to any offense that could be
charged under the circumstances. Edwards v. City of Philadelphia, 860 F.2d at
575–76.
Barna, 42 F.3d at 819 (emphasis added).
Thus, the relevant time for purposes of the probable cause analysis is the time of the
arrest. Plaintiff’s argument to the contrary is without merit. Here, defendant testified that he
arrested her because she was about to strike him. Once again, however, the evidence relating to
10
the events leading to the arrest, including the severity of the bodily injury attempted, are in
dispute. As noted, at this stage, the court cannot make credibility determinations and must view
the facts in the most light most favorable to the nonmoving party. Applying this standard, the
motion filed by defendant for summary judgment cannot be granted.
Finally, plaintiff argued that no felony could have been involved because the state statute
relating to an aggravated assault was no applicable. She asserted that 18 PA. CONS. STAT. § 2702
“only protects the law enforcement officer, constable, or other enumerated person who is acting
in the performance of duty. Defendant had no authority or jurisdiction at the time of the accident
and was not acting pursuant to any lawful duty.” (ECF No. 40 at 9.)
Section 2702 of the Pennsylvania Crimes Code, in relevant part, provides as follows:
(a) Offense defined.--A person is guilty of aggravated assault if he:
...
(2) attempts to cause or intentionally, knowingly or recklessly causes serious
bodily injury to any of the officers, agents, employees or other persons
enumerated in subsection (c) or to an employee of an agency, company or
other entity engaged in public transportation, while in the performance of
duty;
(3) attempts to cause or intentionally or knowingly causes bodily injury to any
of the officers, agents, employees or other persons enumerated in subsection
(c), in the performance of duty;
...
(6) attempts by physical menace to put any of the officers, agents, employees
or other persons enumerated in subsection (c), while in the performance of
duty, in fear of imminent serious bodily injury; or
...
(b) Grading.--Aggravated assault under subsection (a)(1) and (2) is a felony of
the first degree. Aggravated assault under subsection (a)(3), (4), (5), (6) and (7) is
a felony of the second degree.
11
(c) Officers, employees, etc., enumerated.--The officers, agents, employees and
other persons referred to in subsection (a) shall be as follows:
...
(24) A constable
....
18 PA. CONS. STAT. § 2702.
As noted above, plaintiff argued that defendant had no authority or jurisdiction at the time of
the accident and was not acting pursuant to any lawful duty.
Whether defendant had the
authority to arrest under the circumstances (i.e., the legality of the arrest) is irrelevant to the issue
whether he was acting in the performance of his duty. See, e.g., Commonwealth v. Schwenk,
777 A.2d 1149 (Pa. Super. Ct. 2001);7 In re Barry W., 621 A.2d 669 (Pa. Super. Ct. 1993);8
Commonwealth v. Novak, 564 A.2d 988 (Pa. Super. Ct. 1989).9 Here, “in the performance of
7
In Schwenk, the superior court held: “The fact that a state police officer is off-duty does not mean that the trooper's
power to conduct official police business automatically ceases” (citing Commonwealth v. Hurzt, 532 A.2d 865 (Pa.
Super. Ct. 1987). The Schwenk court also considered Commonwealth v. Eshelman, 383 A.2d 838 (Pa. 1978). The
Superior Court summarized the holding in Eshelman as follows:
In Eshelman, a non-uniformed, off-duty police officer discovered several packages containing
marijuana in an old car belonging to the defendant. The officer was outside of his jurisdiction at
the time. The Pennsylvania Supreme Court held that although the officer was without authority to
do so, he was acting as a police officer, based on his training and experience, and on his intent to
turn over the packages to his superior on the police force for investigation, when he removed the
packages. [id. at 842] Thus, under the holding of Eshelman, a police officer may act in the
performance of his duties even if he is not in uniform, and is not officially “on-duty” at the time of
an arrest.
Schwenk, 777 A.2d at 1153.
8
In In re Barry W., the superior court held:
Unlike Section 5104 of the Crimes Code, the offense of aggravated assault, 18 Pa.C.S. §
2702(a)(3), does not require that the assault occur during an attempt to effectuate a lawful arrest.
In 1986, the legislature amended 18 Pa.C.S. § 2702(a)(3) and substituted the words “in the
performance of duty” for the words “making or attempting to make a lawful arrest”. This change
broadened the scope of the statute, evidencing the concern of the legislature with protecting police
officers from bodily injury under any circumstances.
In re Barry W., 621 A.2d at 680 (emphasis in original).
9
In Novak, the superior court held:
12
duty” requires that defendant was acting as a constable at the relevant times. As noted above,
defendant was acting as a constable as he flashed his badge, announced he was a constable and
handcuffed plaintiff. Importantly, the mere fact that defendant might have violated state law
(acting beyond the scope of his jurisdiction or making an otherwise illegal arrest), does not
necessarily establish a Fourth Amendment violation. United States v. Laville, 480 F.3d 187,
191-92 (3d Cir. 2007) (holding, inter alia, that the reasonableness of an arrest under the Fourth
Amendment does not depend on whether it was lawful under state law and that the validity of an
arrest under state law is at most a factor that a court may consider in assessing the broader
question of probable cause).10 In any event, a jury will need to assess the evidence relating to the
events leading to the arrest and the arrest itself.
There are genuine issues of material fact in
Appellant argues that a jury could have found that Officer Brackney had made an unlawful arrest
and that under such circumstances appellant's offense would have been simple assault. We reject
this argument. Under the 1986 amendment, a lawful arrest is not an essential element to a
violation of 18 Pa.C.S. § 2702(a)(3). All that is required is that the officer be “in the performance
of duty.” The police officer in the instant case was in uniform and in the performance of her duties
at the time of appellant's assault. There was no contention otherwise. Under the circumstances of
this case, therefore, the trial court was not required to instruct the jury on simple assault.
Novak, 564 A.2d at 990.
10
See Hopper v. Rinaldi, No. 07-5323, 2008 WL 558049 (D. N.J. Feb. 29, 2008):
The fact that law enforcement officials acted beyond the scope of their geographic authority may
amount to a violation of state law but does not violate the Fourth Amendment. See, e.g., Guest v.
Leis, 255 F.3d 325, 334 (6th Cir.2001) (search and seizure by officers acting outside their
jurisdiction did not violate the Fourth Amendment); United States v. Mikulski, 317 F.3d 1228,
1233 (10th Cir. 2003) (officers' “apparent violation of state law” in making an arrest outside their
jurisdiction did not amount to a federal violation); Pasiewicz v. Lake County Forest Preserve
District, 270 F.3d 520, 526-[27] (7th Cir. 2001) (although a “blatant disregard of state law and the
chain of command could weigh on the scales of reasonableness,” the fact of the officers'
extraterritorial arrest in violation of state law did not violate the Fourth Amendment); Abbott v.
City of Crocker, 30 F.3d 994, 998 (8th Cir. 1994) (same); Voicenet Communs., Inc. v. Corbett,
[No. 04-1318, 2006 WL 2506318 at *10 (E.D. Pa. Aug. 30, 2006)] (same).
Hence, even if there were a hypothetical state-law provision expressly forbidding police officers to
act outside their geographic jurisdiction, the police officers action in violation of such provision
would not violate the Fourth Amendment, since a violation of state law is not a federal
constitutional violation. See, e.g., United States v. Baker, 16 F.3d 854, 856 n. 1 (8th Cir. 1994) (“A
police violation of state law does not establish a Fourth Amendment violation”).
Id. at *2-3.
13
dispute and the court cannot grant summary judgment in defendant’s favor with respect to this
claim.
(ii) Excessive force claim
Plaintiff argued that defendant never loosened the handcuffs and that the handcuffs were
tight and would have been tight for ten or fifteen minutes until the police arrived. ECF No. 40 at
13. In her testimony, Plaintiff stated that the handcuffs were so tight she could not breathe.
Defendant, in turn, argued that there is no evidence of excessive force and the handcuffing was
in self-defense to prevent an assault that was occurring and future assaults. ECF No. 44 at 4.
Excessive force claims (applicable against the States by the Due Process Clause of the
Fourteenth Amendment, and enforced under § 1983) are analyzed under the Fourth Amendment.
Rodriguez v. Passaic, 730 F. Supp. 1314, 1320 (D. N.J. 1990). “[A]ll claims that law
enforcement officers have used excessive force--deadly or not--in the course of an arrest,
investigation stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth
Amendment and its ‘reasonableness’ standard . . . .” In re City of Phila. Litig., 49 F.3d 945, 962
(3d Cir. 1995) (quoting Graham v. Connor, 490 U.S. 386, 395 (1989)).
A claim for excessive force must involve a “seizure” that was unreasonable. Kopec v.
Tate, 361 F.3d 772, 776 (3d Cir. 2004). “[A] suspect is not seized until he submits to the police's
show of authority or the police subject him to some degree of physical force.” Abraham v. Raso,
183 F.3d 279, 291 (3d Cir. 1999). The reasonableness standard under the Fourth Amendment
“requires careful attention to the facts and circumstances of each particular case, including the
severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the
officers or others, and whether he is actively resisting arrest or attempting to evade arrest by
flight.” Graham, 490 U.S. at 396. “ʻNot every push or shove, even if it may seem unnecessary in
14
the peace of a judge’s chambers,’ violates the Fourth Amendment.” Graham, 490 U.S. at 396
(quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973)). Other factors to consider
“include ‘the duration of the [officer’s] 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.’” Couden v. Duffy, 446 F.3d 483, 497 (3d
Cir. 2006) (quoting Sharrar v. Felsing, 128 F.3d 810, 822 (3d Cir.1997)).
The preliminary issue to be decided here is whether a constable is a police officer for
purposes of this claim. While there is some authority that could be construed as opposed to such
a conclusion (see Roose, 690 A.2d at 242-43, which relied, in part, on the definition of “police
officer” in the Pennsylvania Crimes Code11), the majority of authorities that this court could find
on this matter suggest otherwise.
In Taylor, the Superior Court of Pennsylvania noted:
The Supreme Court's statement that “a constable is a peace officer” was merely
express recognition of a well-settled legal principle. See e.g., Black's Law
Dictionary (5th ed. 1979) (defining “peace officers” to include “sheriffs and their
deputies, constables ... and other officers whose duty it is to enforce the peace.”),
and 6A C.J.S. Arrest, § 17 (“Justices, sheriffs, coroners, constables and watchmen
are recognized peace officers at common law.”). Lastly, 16 P.S. § 1216, Peace
officers; powers and duties, expressly applies to constables. Moreover, following
its statement that “a constable is a peace officer”, the Court inserted a footnote
which provides, “[t]he constable is a police officer.” In Re Act 147 of 1990, 528
Pa. 460, 471, 598 A.2d 985, 990 (1991). Instantly, the Commonwealth asserts that
this statement constitutes Supreme Court recognition that constables possess “the
same authorities and duties” as police officers under all circumstances.
(Appellant's brief at 10.) We flatly reject this claim. Specifically, when read in the
context in which it was uttered, the Court's statement indicates that the powers of
constables and police officers are coextensive in matters relating to “conservation
of the peace.” Id. Further, as the remainder of the Court's Opinion indicates, its
notation that “[t]he constable is a police officer” was intended as further support
11
The Pennsylvania Crimes Code, in relevant part, provides: “‘Police officer.’ The term shall include the sheriff of a
county of the second class and deputy sheriffs of a county of the second class who have successfully completed the
requirements under the act of June 18, 1974 (P.L. 359, No. 120), referred to as the Municipal Police Education and
Training Law.” 18 PA. CONS. STAT. § 103.
15
for the Court's ultimate conclusion that “a constable belongs analytically to the
executive branch of government.” Id. Therefore, since Act 147 did not involve the
relative arrest powers of constables and police officers, the Court's statement
cannot be taken as a blanket endorsement of constable powers coextensive with
those of police officers under all circumstances. Finally, the Court's finding that
constables are independent contractors, as quoted above, clearly indicates that the
Court did not consider constables and police officers analogous for all purposes,
since Pennsylvania law has never characterized police officers as independent
contractors.
Taylor, 677 A.2d at 848.
In Davis v. Borough, 669 F. Supp. 2d 532 (E.D. Pa. 2009), the district court noted:
Constable Connor, in arguing that constables serving warrants are merely “arm [s]
of the judicial power,” (Def.'s Mot. to Dismiss 5), appears to imply that
Pennsylvania State constables are not the equivalent of police officers. However,
state law grants constables, as well as police officers, the power to arrest “all
persons guilty of a breach of the peace ... without warrant and upon view.” 13 Pa.
Con. Stat. § 45. The fact that constables are authorized “to initiate discretionary
acts depriving others of their rights,” Waits [v. McGowan, 516 F.2d 203, 207 (3d.
1975)], argues in favor of considering constables as equivalent to police officers
in the context of civil liability immunity.
Id. at 535.
Similarly, the court of appeals in County of Allegheny v. Berg, 219 F.3d 261 (3d Cir.
2000), and Abbott v. Latshaw, 164 F.3d 141 (3d Cir. 1998), and the district court in Maloney v.
City of Reading, 04-cv-5318, 2006 WL 305440 (E.D. Pa. Feb. 8, 2006), treated constables as
police officers for purpose of § 1983 claims. Finally, Pennsylvania Rule of Criminal Procedure
103 defines a police officer as “any person who is by law given the power to arrest when acting
within the scope of the person's employment.” Pa. R. Crim. P. 103.
The court concludes that in the context of those cases a constable is a police officer. The
court next must determine whether the evidence adduced is sufficient to withstand a motion for
summary judgment. In making this determination, a court must view the facts in the light most
favorable to the nonmoving party, must draw all reasonable inferences, and resolve all doubts in
16
favor of the nonmoving party, and must not engage in credibility determinations. In light of this
standard and the contradictory evidence present in the record (as noted, plaintiff adduced
evidence that the handcuffs were tight and that she could not breathe; defendant, on the other
hand, adduced evidence that plaintiff experienced pain only because she was struggling and he
could not take the handcuffs off because of safety issues) the court must deny defendant’s
motion for summary judgment with respect to this claim.
(iii) First Amendment retaliation claim
The Court of Appeals for the Third Circuit in Eichenlaub v. Township of Indiana, 385
F.3d 274 (3d. Cir. 2004), held: “In general, constitutional retaliation claims are analyzed under a
three-part test. 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.” Id. at 282.
With respect to the First Amendment retaliation claim, plaintiff argued that she was
engaged in protected speech when defendant retaliated against her by “handcuffing and further
assaulting” plaintiff. (ECF No. 40 at 14.) Plaintiff asserted her stating an intention to report the
incident to the Humane Society and complaining about the handcuffs being too tight are
instances of protected speech.
In response, defendant argued that plaintiff failed to adduce sufficient evidence to
establish a violation of her First Amendment rights because her comments related to private
issues ‒ not public ones ‒ and as such are not protected under the First Amendment. In support,
defendant cited Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985), for the
proposition that “speech on matters of public concern . . . is at the heart of First Amendment
protection.” ECF No. 44 at 6.
17
This court disagrees. Plaintiff does not need to show that the speech in issue must be of
matters of public concern to be protected under the First Amendment. In Eichenlaub, the court
of appeals held:
The District Court relied in part on our opinion in Anderson [v. Davilla, 125 F.3d
148 (3d Cir. 1997] to hold that “plaintiff must show that speech is a matter of
public concern in order to receive First Amendment protection.” App. A17
(quoting Anderson, 125 F.3d at 162). This reading of our case law, however, is
overbroad. Our decision in Anderson -and all the other decisions relied upon in
the District Court or by the parties-provide only that a “public concern”
requirement applies when a claim of First Amendment retaliation is brought by a
public employee against his or her government employer. Anderson, 125 F.3d at
162. The speech on public concerns requirement embodied in these decisions has
not been applied, however, when non-employees complain that government has
retaliated against them as citizens for their speech. To expand this public concern
limitation into the broader context of all citizen speech would wrench it from its
original rationale and curtail a significant body of free expression that has
traditionally been fully protected under the First Amendment.
Id. at 282 (emphasis in original).
Thus, the speech in this case, even if it was about matters of private concern, could be
entitled to First Amendment protection. The evidence of record is in conflict with respect to
whether the alleged “protected activity” caused the retaliation. Accordingly, defendant’s motion
for summary judgment must be denied with respect to this claim.
(B)
State law claims
(i)
Assault and battery claims
Defendant argued that he did not commit assault and battery against plaintiff and that any
force he used against her was justified under 18 PA. CONS. STAT. § 508(1).12 Plaintiff asserted
that section 508 is not applicable here because the arrest was unlawful.
12
Section 508, in relevant part, provides as follows:
A peace officer, or any person whom he has summoned or directed to assist him, need not retreat
or desist from efforts to make a lawful arrest because of resistance or threatened resistance to the
arrest. He is justified in the use of any force which he believes to be necessary to effect the arrest
18
The Pennsylvania Supreme Court in Renk v. City of Pittsburgh, 641 A.2d 289 (Pa. 1994),
stated:
“Assault is an intentional attempt by force to do an injury to the person of another,
and a battery is committed whenever the violence menaced in an assault is
actually done, though in ever so small a degree, upon the person.” Cohen v. Lit
Brothers, 70 A.2d 419, 421 (1950). (Citation omitted.) A police officer may use
reasonable force to prevent interference with the exercise of his authority or the
performance of his duty. In making a lawful arrest, a police officer may use such
force as is necessary under the circumstances to effectuate the arrest. The
reasonableness of the force used in making the arrest determines whether the
police officer's conduct constitutes an assault and battery.
Id. at 293.
Here, as discussed above, there are genuine issues of material fact concerning what
occurred prior to the arrest and the arrest itself. Accordingly, defendant’s motion for summary
judgment must be denied with respect to this claim.
(ii)
False imprisonment claim
Plaintiff argued that she adduced sufficient evidence to withstand a motion for summary
judgment with respect to the claim of false imprisonment. Specifically, plaintiff argued that she
was unlawfully handcuffed and prevented from leaving.
A claim for false imprisonment requires a plaintiff to provide that (1) defendant intended
to confine the plaintiff, (2) defendant performed an action that directly or indirectly
produced such confinement, and (3) plaintiff was either conscious of or harmed by the
conduct. Gagliardi v. Lynn, 446 Pa. 144, 148 n. 2, 285 A.2d 109 (1971) (quoting
Restatement (Second) of Torts § 35 (1965)); Pennoyer v. Marriott Hotel Servs., Inc., 324
F.Supp.2d 614, 619–20 (E.D. Pa. 2004). In the context of an arrest, the plaintiff may
establish liability for false imprisonment by proving either that the arrest occurred
without probable cause or that the person effecting the arrest lacked a privilege to do so.
Gagliardi, 285 A.2d at 111 n. 3; Cerami v. Blake, No. Civ.A. 92–4358, 1993 WL 21011,
at *6 (E.D. Pa. 1993). Hence, a “false arrest” is an alternative means of establishing
liability for false imprisonment but “is not itself a tort in the sense of being an
and of any force which he believes to be necessary to defend himself or another from bodily harm
while making the arrest. . . .
18 PA. CONS. STAT. § 508(a)(1).
19
independent source of liability.” Cerami, 1993 WL 21011, at *6 (quoting Gagliardi, 285
A.2d at 111).
Police officers are privileged to commit the tort of false imprisonment during an arrest if
the officer reasonably believes that the suspect placed under arrest has committed a
crime. Restatement 2D Torts § 121; see also Cambist Films, Inc. v. Duggan, 475 F.2d
887, 889 (3d Cir. 1973) (applying § 121 of the Restatement under Pennsylvania common
law); Belcher v. United States, 511 F. Supp. 476, 483–84 (E.D. Pa. 1981). Later
exculpation of the suspect does not vitiate the privilege provided that the officer
reasonably believed that the individual had committed a crime at the time the arrest
occurred. Restatement 2D Torts § 121. The officer is protected “in every case where he
acts under a reasonable mistake as to the existence of facts which ... justify an arrest.” Id.
§ 121 cmt. i; Cambist Films, 475 F.2d at 889.
Dull v. West Manchester Twp. Police Dep’t, 604 F. Supp.2d 739, 754-55 (M.D.Pa. 2009).
Because there are genuine issues of material fact in dispute concerning whether plaintiff’s
arrest was based upon probable cause, this court cannot grant summary judgment in favor of
defendant with respect to plaintiff’s false imprisonment claim.
(iii)
Intentional infliction of emotional distress claim
Plaintiff argued defendant’s motion for summary judgment with respect to her intentional
infliction of emotional distress claim should be denied because she sustained emotional injuries
from the incident. (ECF No. 40 (citing ECF No. 41 at 7, 9).) Defendant rebutted saying there
was no evidence presented to show that the distress was “severe.”
(ECF No. 33 at 15.) The
court agrees.
In order to sustain a claim for intentional infliction of emotional distress (“IIED”), the
plaintiff must establish that: (1) the defendant's conduct was intentional or reckless, (2)
the defendant's conduct was extreme and outrageous, (3) the defendant's conduct caused
emotional distress, and (4) the resultant emotional distress was severe. Bruffett v. Warner
Commc'ns, Inc., 692 F.2d 910, 914 (3d Cir. 1982). For an IIED claim to survive, the court
must be satisfied that the defendant's alleged misconduct is so extreme and outrageous
that it “go[es] beyond all possible bounds of decency, and ... [is] regarded as atrocious,
and utterly intolerable in a civilized society.” Wilkes v. State Farm Ins. Cos., No. 1:05–
CV–586, 2005 WL 1667396, at *4 (M.D. Pa. July 15, 2005). . . . In the instant matter,
the allegedly improper arrests performed by Conway, Figge, Bixler, and Haines are not
sufficiently extreme and outrageous to support a claim for IIED. At most, defendants
miscalculated the propriety of their law enforcement activities.
20
Dull, 604 F. Supp.2d at 756-57.
Here, even if the court were to find that defendant’s conduct met the first and third
elements of the claim, no reasonable jury could render a verdict in favor of plaintiff on this
claim. There is no evidence of record regarding the second and fourth elements. Defendant’s
motion for summary judgment concerning the intentional infliction of emotional distress claim
must be is granted.
(ii)
Negligent infliction of emotion distress claim
With respect to the negligent infliction of emotional distress claim, plaintiff argued that
the motion for summary judgment should be denied because she suffered “emotional injuries.”
(ECF No. 40 at 15.) Emotional injuries, however, are not enough.
The Superior Court of Pennsylvania in Doe v. Philadelphia Community Health
Alternatives AIDS Task Force, 745 A.2d 25 (Pa. Super. Ct. 2000), noted:
In Pennsylvania, the cause of action for negligent infliction of emotional distress
has been limited by court decisions. In order to recover, the Plaintiff must prove
one of four elements: (1) that the Defendant had a contractual or fiduciary duty
toward him; (2) that Plaintiff suffered a physical impact; (3) that Plaintiff was in a
“zone of danger” and at risk of an immediate physical injury; or (4) that Plaintiff
had a contemporaneous perception of tortious injury to a close relative. In all
cases, a Plaintiff who alleges negligent infliction of emotional distress must suffer
immediate and substantial physical harm.
Id. at 27-8 (emphasis in original).
Here, plaintiff relies on the second theory, i.e., plaintiff suffered a physical impact.
Plaintiff, however, failed to demonstrate the requisite physical harm from the emotional
suffering.
In her testimony, plaintiff reported only being “emotionally scarred” and “violated”
(ECF No. 41 at 7, 9), but did not adduce evidence of the requisite physical manifestation of the
alleged emotional suffering. Thus, the claim fails. The superior court as a matter of law in
21
Toney v. Chester County Hospital, 961 A.2d 192 (Pa. Super. Ct. 2008), held: “If the actor's
conduct is negligent as creating an unreasonable risk of causing either bodily harm or emotional
disturbance to another, and it results in such emotional disturbance alone, without bodily harm or
other compensable damage, the actor is not liable for such emotional disturbance.” Id. at 199
(quoting RESTATEMENT (SECOND)
OF
TORTS § 436A).
Plaintiff's negligent infliction of
emotional distress claim fails not because she failed to prove a physical impact; rather, she failed
to adduce evidence of an immediate and substantial physical injury. See Cimildoro v. Metro.
Prop. and Cas. Ins. Co., No. 09-cv-1907, 2010 WL 891838, at *5 (E.D. Pa. Mar. 8, 2010). No
reasonable jury could render a verdict in plaintiff’s favor on this claim and defendant’s motion
for summary judgment with respect to the negligent infliction of emotional distress claim must
be granted.
II.
Plaintiff’s motion for summary judgment
Plaintiff argued that “[e]xcepting a warrantless arrest for a felony, Constables do not have
the power to arrest without a warrant in Pennsylvania unless specifically given that power of the
statute.” (ECF No. 35 at 2.) Plaintiff added: “There is no statute which granted the Defendant . .
. the authority to arrest the Plaintiff for summary offense as he did on June 22, 2009,” and
concluded “based on the undisputed material facts, Plaintiff is entitled to summary judgment on
the specific issue of the violation of her fourth amendment rights.” Id.
The court disagrees. As discussed above, the underlying facts are far from being
“undisputed” and the caselaw does not support her position. A jury will need to determine
whether defendant had probable cause to believe plaintiff engaged in aggravated assault against
him and whether defendant used excessive force against plaintiff.
22
Conclusion
For the reasons set forth above, defendant’s motion for summary judgment (ECF N. 30)
will be granted with respect to the intentional and negligent infliction of emotional distress
claims and will be denied in all other respects and plaintiff’s motion for partial summary
judgment (ECF No. 35) will be denied.
An appropriate order will follow.
Dated: March 22, 2012
By the court:
/s/ Joy Flowers Conti
Joy Flowers Conti
United States District Judge
23
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?