Opinions of the United
1998 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-16-1998

Montgomery v. De Simone
Precedential or Non-Precedential:

Docket 97-5179




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"Montgomery v. De Simone" (1998). 1998 Decisions. Paper 249.
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Filed October 16, 1998

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 97-5179

ROSEMARY MONTGOMERY,

       Appellant

v.

JEFFREY DE SIMONE, PTL. a/k/a Joseph De Simone,
PTL; TOWNSHIP OF BRICK; COUNTY OF OCEAN; BRICK
TOWNSHIP POLICE DEPARTMENT; JOHN DOE,
Individually and as an employee of the Brick Township
Police Department

Appeal from the United States District Court
for the District of New Jersey
(D.C. Civ. No. 95-cv-00528)

Argued
March 24, 1998

Before: MANSMANN, ROTH and McKEE, Circuit Judges.

(Filed October 16, 1998)

       William J. Farley, Jr., Esquire
        (Argued)
       2517 Highway 35 South
       Valley Park Professional Center
       Manasquan, NJ 08736

        Counsel for Appellant
       Michael E. Wilbert, Esquire (Argued)
       Ben A. Montenegro, Esquire
       Wilbert & Montenegro
       531 Burnt Tavern Road
       P.O. Box 1049
       Brick Town, NJ 08724

        Counsel for Appellee
        Joseph De Simone

       Steven N. Cucci, Esquire
       Cucci & McCarthy
       1500 Route 88 West
       P.O. Box 1609
       Brick, NJ 08723

        Counsel for Appellee:
        Township of Brick and
        Brick Township Police Department

OPINION OF THE COURT

MANSMANN, Circuit Judge.

Rosemary Montgomery appeals from the entry of
summary judgment against her in her suit brought
pursuant to 42 U.S.C. S 1983 which arises out of the events
surrounding her arrest on September 30, 1992.
Montgomery alleges that Officer Jeffrey De Simone did not
have probable cause to stop and arrest her for speeding
and drunk driving. She accordingly brought several section
1983 claims against Officer De Simone, including a claim
based on malicious prosecution.

In this appeal, we are asked to determine whether
Montgomery's convictions, which were overturned upon de
novo review, conclusively establish probable cause and
necessarily negate any possibility that Montgomery could
establish her section 1983 malicious prosecution claim. We
hold that they do not. Accordingly, because we find that
Montgomery has raised a genuine issue of material fact as
to probable cause, we will reverse the district court's grant
of summary judgment in favor of Officer De Simone on

                                  2
Montgomery's section 1983 malicious prosection claim and
will remand this case for further proceedings.

In addition, we find that, as a matter of law, the two year
limitations period for Montgomery's section 1983 false
arrest and false imprisonment claims began to run on the
night of Montgomery's arrest and that her claims against
the municipal defendants fail because Montgomery's
allegations are insufficient to establish municipal liability.
Accordingly, we will affirm the district court's order
dismissing those claims.

I.

On September 30, 1992, Officer Jeffrey De Simone
stopped Rosemary Montgomery, arrested her and charged
her with speeding, driving while intoxicated, and refusing to
take a breathalyzer test. At Montgomery's municipal
hearing, Officer De Simone testified that he stopped
Montgomery because she was traveling at approximately 55
m.p.h. in a 40 m.p.h. zone. De Simone testified that he
estimated Montgomery's speed prior to the stop based on
his own observation and a radar reading. According to De
Simone, when he stopped Montgomery he detected a strong
odor of alcohol on her breath. De Simone testified that
Montgomery had difficulty locating her license in her wallet,
could not open the glove box and became frustrated when
De Simone opened the glove box with ease. According to De
Simone, Montgomery could not recite the alphabet when
asked to do so and failed two field sobriety tests. De
Simone stated that Montgomery's eyes were "watery," her
speech was "slightly slurred," and that "she was swaying
and staggering" when standing and walking.

De Simone further testified that during the stop, a
second car pulled up to ask directions. De Simone then
instructed Montgomery to drive her car across the road to
a vacant parking lot so that he might attend to the second
car. He subsequently drove to where she was parked and
took her to the police station. At the police station De
Simone advised Montgomery for the first time that she was
under arrest, read her her Miranda rights, and asked her to
take a breathalyzer test. Montgomery refused the test.

                               3
Montgomery's testimony at her municipal trial painted a
dramatically different picture of the events surrounding her
arrest. According to Montgomery, she had just returned
from a transcontinental flight and had met a friend for
dinner. She testified, and her friend corroborated, that she
did not have any alcoholic beverages with dinner. She
further testified, and her friend corroborated, that she
ordered one Irish coffee after dinner and that the bartender
had refilled her same cup with regular coffee after she
finished most of the Irish coffee. Montgomery's friend
further testified that Montgomery did not appear to be
intoxicated and that they parted company at approximately
11:20 p.m.

Montgomery testified that after leaving her friend's house,
she had been stopped at a red light which was located less
than one tenth of a mile from the intersection where
De Simone testified she was traveling at 55 m.p.h. In her
deposition in this case, Montgomery further testified that
she could not have been exceeding the speed limit in that
short distance in her Hyundai and that she knows she was
not speeding. She also testified that De Simone lied at her
municipal trial.

At her municipal trial, Montgomery testified that she did
have trouble finding her license for De Simone because it
was mixed in with receipts from her overseas trip. She also
testified that she had trouble opening the glove
compartment because it always sticks but that she
eventually opened it herself without the help of De Simone.
According to Montgomery, she recited the alphabet correctly
when asked but De Simone never asked her to leave her
vehicle for sobriety tests.

Montgomery testified that at one point during the stop De
Simone stated "I shouldn't be doing this but would you pull
across to behind Wall Street and wait for me?" Montgomery
testified that she was unaware of anyone stopping and
asking for directions. After she waited in the parking lot for
about five to ten minutes, De Simone pulled up behind her
with no overhead lights on. De Simone got out of the car
and his demeanor changed. De Simone asked Montgomery
if she liked policemen and if she dated them. Montgomery
testified that she was very uncomfortable and tried to

                               4
change the subject and that De Simone then offered her a
ride home. She told De Simone that he would have to leave
his jurisdiction to give her a ride and he then offered to
take her to the station to make a phone call. Montgomery
testified that De Simone's demeanor again changed and he
became sullen. When they arrived at the station, De Simone
advised Montgomery for the first time that she was under
arrest and read her her rights. Another of Montgomery's
friends picked her up at the police station around 2:00 a.m.
and testified that Montgomery did not appear drunk and
that Montgomery told her that she had only had two Irish
coffees that night.

The municipal court judge found that there was probable
cause for the stop and the arrest for drunk driving based
entirely upon De Simone's testimony. In addition, after
hearing all the testimony offered, the municipal judge found
Montgomery guilty of speeding, drunk driving, and refusing
to take a breathalyzer test. Montgomery appealed her
convictions.

On February 4, 1994, a trial de novo was held in the
Superior Court of New Jersey. The court reversed
Montgomery's convictions entering not guilty verdicts on all
charges. The Superior Court judge expressed doubt as to
whether Montgomery was speeding, given her testimony
that she had been stopped at a light just a short distance
from where De Simone claimed she was exceeding the
speed limit. In addition, the judge expressed doubt as to
whether De Simone actually thought Montgomery was
drunk given that De Simone ordered her to drive her car
across four lanes of traffic to a vacant parking lot after she
allegedly failed several sobriety tests.

On February 1, 1995, Montgomery filed a complaint in
the District Court of New Jersey alleging a section 1983
claim for malicious prosecution, section 1983 false arrest
and false imprisonment claims arising out of her arrest and
temporary detention on September 30, 1992, section 1983
claims against the township and police department
(collectively the "municipal defendants") based on De
Simone's actions, and several state law claims relating to
her arrest. On March 11, 1997, the district courtfiled an
order holding that (1) Montgomery's section 1983 claim for

                               5
malicious prosecution failed as a matter of law because the
municipal judge had reasonably determined that probable
cause existed for the arrest; (2) the two year statute of
limitations for Montgomery's section 1983 false arrest and
false imprisonment claims began to run on the date of her
arrest and those claims were therefore time barred; and (3)
Montgomery's section 1983 claims against the municipal
defendants should be dismissed because Montgomery failed
to produce evidence that would raise a genuine issue of
material fact on those claims.1 Montgomery timely filed this
appeal.2

II.

In order to prevail on her section 1983 malicious
prosecution claim, Montgomery must establish, among
other things, an absence of probable cause for the initiation
of the proceedings against her. See Rose v. Bartle, 

, 349 (3d Cir. 1989)(citing Lee v. Mihalich, 

,
69-70 (3d Cir. 1988)). The district court granted summary
judgment on Montgomery's section 1983 malicious
prosecution claim based upon the premise that the
municipal judge's finding of probable cause for her arrest
negated any possibility that Montgomery could establish an
absence of probable cause for purposes of her section 1983
malicious prosecution claim.

We have held that the question of probable cause in a
section 1983 damage suit is one for the jury. Patzig v.
O'Neil, 

, 848 (3d Cir. 1978). Summary
judgment on Montgomery's malicious prosecution claim
_________________________________________________________________

1. The district court also held that Montgomery's state law claims against
De Simone were time barred and that her state law claims against the
municipal defendants were barred by governmental immunity.
Montgomery has not appealed these rulings.

2. The district court properly exercised jurisdiction over Montgomery's
section 1983 action and supplemental claims pursuant to 28 U.S.C.
SS 1331, 1343(a)(3), 1367(a)(1994). We have appellate jurisdiction over
the district court's order granting summary judgment in favor of the
defendants pursuant to 28 U.S.C. S 1291(1994). We exercise de novo
review over the district court's order granting summary judgment.
Boneberger v. Plymouth Township, 

, 23 (3d Cir. 1997).

                               6
therefore is only appropriate if taking all of Montgomery's
allegations as true and resolving all inferences in her favor,
a reasonable jury could not find a lack of probable cause
for Montgomery's stop and arrest. Deary v. Three Un-named
Police Officers, 

, 191 (3d Cir. 1984).
Accordingly, we must examine the evidence presented by
Montgomery on probable cause and, applying any
appropriate presumptions, determine whether Montgomery
has raised a genuine issue of material fact as to whether
Officer De Simone had probable cause for her stop and
arrest.

A.

At common law, a conviction presumptively establishes
the existence of probable cause absent a showing that the
conviction was achieved through perjury, fraud or
corruption. See generally Lind v. Schmid, 

,
370 (N.J. 1975)(stating that a conviction by a magistrate,
even if subsequently overturned, may raise a rebuttable
presumption of probable cause for purposes of a malicious
prosection claim). Derived from the Restatement of Torts,3
the rule is based on the reasoning that if a factfinder
determined that the accused was guilty beyond a
reasonable doubt, the person who initiated the proceedings
must have had reasonable grounds for so doing. See
Restatement (Second) of Torts S 667(1) cmt. b. (1977). The
rule was developed to establish probable cause in a
malicious prosecution action against a private citizen,
however, not probable cause for arrest by a police officer.
Bergstralh v. Lowe, 

, 1278 (9th Cir. 1974).
Moreover, not all state courts adhere to this rule. See
generally C.C. Marvel, Annotation, Conclusiveness, as
evidence of probable cause in malicious prosecution action,
_________________________________________________________________

3. The Restatement of Torts provides, in relevant part, that:

       The conviction of the accused by a magistrate or trial court,
       although reversed by an appellate tribunal, conclusively
establishes
       the existence of probable cause, unless the conviction was obtained
       by fraud, perjury or other corrupt means.

Restatement (Second) of Torts S 667(1)(1977).

                               7
of conviction as affected by the fact that it was reversed or
set aside, 

(1962) (discussing position
taken by various state courts).

The Supreme Court has not yet made clear whether
common law rules, such as this Restatement rule, apply to
section 1983 actions. In determining whether a certain
common law concept governs a section 1983 action, the
Court has been guided by the extent to which the common
law rule is rooted in history and reason and whether the
policies it serves are compatible with the purposes of
section 1983. See Owen v. City of Independence, Missouri,

, 638 (1980); City of Newport v. Facts Concerts,
Inc., 

, 259 (1981). As explained by the Court:

       [B]ecause the [Civil Rights Act] was designed to expose
       state and local officials to a new form of liability, it
       would defeat the promise of the statute to recognize
       any preexisting [common law concept] without
       determining both the policies that it serves and its
       compatibility with the purposes of S 1983.

City of 

. Although in City of
Newport the Court expressed its approval of this analysis in
relation to common law immunity, we find this approach
equally appropriate in determining whether a general
common law rule should be applied to section 1983
actions.

In Cameron v. Fogarty, 

(2d Cir. 1986), our
sister court of appeals for the Second Circuit followed City
of Newport and held that a rule similar to the Restatement
rule applied to section 1983 actions. Where the plaintiff
had been convicted and the conviction had not been
overturned, the common law principle that a conviction
gives the police officer a complete defense barred the
plaintiff 's section 1983 false arrest claim. 

The court reasoned that the availability of this defense does
not undermine the goals of section 1983 because the
exclusionary rule is sufficient to deter law enforcement
officers from making an arrest without probable cause. 

The court concluded that application of the
common law rule to section 1983 actions struck "the proper
accommodation between the individual's interest in

                               8
preventing unwarranted intrusions into his liberty and
society's interest in encouraging the apprehension of
criminals . . . ." 

v. Bartle, 

(3d Cir. 1989), we
criticized the policy considerations underlying Cameron. We
expressed doubt as to whether the rule announced in
Cameron "reflect[s] the `proper accommodation between the
individual's interest in preventing unwarranted intrusion
into his liberty and society's interest in encouraging the
apprehension of criminals' " in light of the availability of
qualified immunity as a defense in section 1983 actions.

.

We hold today that the Restatement's rule that an
overturned municipal conviction presumptively establish
probable cause contravenes the policies underlying the Civil
Rights Act and therefore does not apply to a section 1983
malicious prosection action. The central aim of the Civil
Rights Act is to protect citizens from the misuse of power
by individuals cloaked with the authority of state law.

. As noted by the Court, in enacting
the Civil Rights Act:

       Congress clearly conceived that it was altering the
       relationship between the States and the Nation with
       respect to the protection of federally created rights; it
       was concerned that state instrumentalities could not
       protect those rights; it realized that state officers
       might, in fact, be antipathetic to the vindication of
       those rights; and it believed that these failings
       extended to the state courts . . . . The very purpose of
       S 1983 was to interpose the federal courts between the
       States and the people, as the guardians of the people's
       federal rights -- to protect the people from
       unconstitutional action under color of state law . .. ."

Mitchum v. Foster, 

, 242 (1972). Applying a
presumption of probable cause in a section 1983 action on
the sole basis of a municipal conviction that has
subsequently been overturned undermines one of the Civil
Rights Act's raisons d'etre, i.e., to interpose the federal
courts, as guardians of federal rights, between the
authority of the states and the people. Accord Heck, 

(Souter, J., concurring)(discussing generally the
Restatement rule and noting that the Court disclaims the
"untenable" position that a conviction "wipes out a person's
S 1983 claim for damages for unconstitutional conviction or
postconviction confinement.").

B.

In the absence of a presumption of probable cause
arising from the municipal conviction, the issue of whether
De Simone had probable cause to stop and arrest
Montgomery rests entirely upon the credibility of the
witnesses. According to Montgomery, she had only had one
drink on the night in question and could not have been
exceeding the speed limit. In addition, Montgomery alleges
that De Simone lied at her trial and that his motive for
arresting her was unrelated to either her speed or her
alleged intoxication. Taking all of Montgomery's allegations
as true and resolving all inferences in her favor as we must,
we find that a reasonable jury could conclude that
De Simone did not have probable cause to stop or to arrest
Montgomery. Montgomery therefore has raised a genuine
issue of material fact as to probable cause and summary
judgment on her section 1983 malicious prosection claim
was accordingly inappropriate.

III.

The parties agree that a two-year limitations period
applies to Montgomery's section 1983 claims. 4 The parties
disagree, however, as to when the two-year limitations
period began to run on Montgomery's section 1983 false
arrest and false imprisonment claims. The defendants
contends that the limitations period began to run on these
_________________________________________________________________

4. In Wilson v. Garcia, 

, 276 (1985), the Court held that for
S 1983 actions, courts should apply the state statute of limitations
applicable to personal injury torts. We have since held that New Jersey's
two-year limitations period on personal injury actions, N.J.S.A. 2A: 14-2,
applies to a civil rights claim under S 1983. Cito v. Bridgewater Township
Police Dept., 

, 25 (3d Cir. 1989). The parties are therefore
correct in assuming that a two-year limitations period applies to
Montgomery's S 1983 claims.

                               10
claims on the date of Montgomery's arrest. Montgomery, on
the other hand, contends that the statute of limitations
period did not begin to run on these claims until her
criminal charges were resolved in her favor.

It is axiomatic that under federal law, which governs the
accrual of section 1983 claims, "the limitations period
begins to run from the time when the plaintiff knows or has
reason to know of the injury which is the basis of the
section 1983 action." Genty v. Resolution Trust Corp., 

, 919 (3d Cir. 1991). A claim for false arrest,
unlike a claim for malicious prosecution, covers damages
only for the time of detention until the issuance of process
or arraignment, and not more. Heck v. Humphrey , 

, 484 (1994)(citing W. Page Keeton et al., Prosser and
Keeton on Law of Torts S119, at 888 (5th ed. 1984)). In
addition, Montgomery's section 1983 false imprisonment
claim relates only to her arrest and the few hours she was
detained immediately following her arrest. See App. 74-76
(Complaint). Montgomery therefore reasonably knew of the
injuries that form the basis of these section 1983 claims on
the night of her arrest. Accordingly, under Gentry, the two-
year limitation period for Montgomery's section 1983 false
arrest and false imprisonment claims began to run on
September 30, 1992, the night of Montgomery's arrest and
detention. Because Montgomery filed her action on
February 1, 1995, more than two years after the date of her
arrest, the district court was correct in dismissing
Montgomery's section 1983 false arrest and false
imprisonment claims as time barred.5
_________________________________________________________________

5. Montgomery argues that under Heck v. Humphrey, 

(1994), these claims only accrued after her criminal charges were
resolved in her favor. In Heck, the Court held that a section 1983 claim
for damages attributable to an unconstitutional conviction or sentence
does not accrue until that conviction or sentence has been invalidated.

. The Court also noted, however, that if a
successful claim would not demonstrate the invalidity of any outstanding
criminal judgment, it should be allowed to proceed. 

Because
a conviction and sentence may be upheld even in the absence of
probable cause for the initial stop and arrest, wefind that Montgomery's
claims for false arrest and false imprisonment are not the type of claims
contemplated by the Court in Heck which necessarily implicate the

                               11
IV.

Under 42 U.S.C. S 1983, municipal defendants cannot be
held liable under a theory of respondeat superior; municipal
liability only arises when a constitutional deprivation
results from an official custom or policy. Monell v.
Department of Social Servs. of City of New York, 

, 691-94 (1978). Furthermore, a municipality's failure to
train police officers only gives rise to a constitutional
violation when that failure amounts to deliberate
indifference to the rights of persons with whom the police
come into contact. City of Canton, Ohio v. Harris, 

, 388 (1989). We have held that a failure to train,
discipline or control can only form the basis for section
1983 municipal liability if the plaintiff can show both
contemporaneous knowledge of the offending incident or
knowledge of a prior pattern of similar incidents and
circumstances under which the supervisor's actions or
inaction could be found to have communicated a message
of approval to the offending subordinate. See Boneberger v.
Plymouth Township, 

, 25 (3d Cir. 1997).

Montgomery's claims against the municipal defendants
rest on allegations that these defendants are directly
responsible for De Simone's action and that they failed to
adequately train, discipline or control De Simone which give
him the opportunity to harass and unlawfully detain
Montgomery. To the extent that these claims are based
upon a respondeat superior theory, they are barred under
Monell. In addition, Montgomery's failure to train, discipline
or control claim seems to be based on the contention that
De Simone was never trained not to sexually harass the
female public and was not disciplined as a result of the
incident involving Montgomery. Montgomery, however,
points to no inadequacy in De Simone's police training
_________________________________________________________________

validity of a conviction or sentence. See Mackey v. Dickson, 

,
746 (5th Cir. 1995)(stating that "[i]t is well established that a claim of
unlawful arrest, standing alone, does not necessarily implicate the
validity of a criminal prosecution following the arrest."). Accordingly,
we
read Heck to be consistent with our determination that Montgomery's
false arrest and false imprisonment claims accrued on the night of her
arrest.

                               12
program. In addition, she has failed to allege any action or
inaction by the municipal defendants that could be
interpreted as encouraging De Simone's offensive actions.
Because Montgomery's allegations do not implicate the type
of deliberate indifference required for section 1983
municipal liability, the district court was correct in granting
summary judgment in favor of the municipal defendants on
Montgomery's section 1983 claims.

V.

For the foregoing reasons, we will affirm the district
court's order dismissing Montgomery's section 1983 false
arrest, false imprisonment, and municipal liability claims.
We will reverse that portion of the district court's order
dismissing Montgomery's section 1983 malicious
prosecution claim against Officer De Simone because
Montgomery has raised a genuine issue of material fact as
to probable cause and remand for further proceedings.

                               13
ROTH, Circuit Judge, Dissenting:

I join in parts I, III, and IV of the majority opinion which
holds that Montgomery's false arrest and false
imprisonment claims are time-barred and which affirms
summary judgment in favor of the municipal defendants on
the S 1983 claims. I do not agree, however, with the
majority's conclusion in Part II that, in an action for
malicious prosecution under S 1983, an overturned
conviction does not presumptively establish probable cause.

The majority holds that such a rule contravenes the
policies underlying the Civil Rights Act. I maintain, to the
contrary, that the Restatement of Torts/Common Law rule
should apply. Under this rule, unless a conviction is
contrary to established law or has been obtained by fraud,
perjury or other corrupt means, such a conviction, even if
it is ultimately overturned, has still presumptively
established probable cause to pursue the original
prosecution. I believe that the majority's exception for
actions under S 1983 should not be extended beyond the
already recognized exceptions. Indeed, with the availability
of these Restatement/Common Law exceptions, the
purpose of S 1983 is not defeated.

As the majority states, in order to prevail on a claim of
malicious prosecution under S 1983, a plaintiff must
establish, among other things, the absence of probable
cause for the original proceeding brought against the
plaintiff. Rose v. Bartle, 

, 349 (3d Cir. 1989)
(citing Lee v. Mihalich, 

, 69-70 (3d Cir. 1988). In
reversing the district court, the majority concludes that the
common law rule, establishing a presumption of probable
cause from a conviction later reversed, should not apply to
S 1983 actions.

The majority acknowledges that the case law reflects
exceptions to the common law rule so that a conviction
subsequently overturned establishes only a rebuttable
presumption of probable cause. See Lind v. Schmid, 

(N.J. 1975). The common law rule is based on the
concept that, if a fact finder determines guilt beyond a
reasonable doubt, there must have been probable cause for
doing so unless it is later determined that the conviction
was fraudulently or corruptly obtained. 

majority does not, however, adopt the
Restatement/Common Law rebuttable presumption.
Instead, they conclude that, when a malicious prosecution
action is brought under S 1983, an overturned municipal
court conviction does not presumptively establish probable
cause. Majority at 8-9. Because I conclude that the
purposes of S 1983 are not offended by application of a
rebuttable presumption and because I find that the district
court committed no legal error in applying the common law
rule in its summary judgment determination, I respectfully
dissent.

In this case, Montgomery's municipal court conviction
was overturned upon a trial de novo by the state superior
court. After deeming radar gun evidence inadmissible, the
superior court judge concluded that Montgomery could not
be found guilty beyond a reasonable doubt. If, however, a
failure to find guilt beyond a reasonable doubt could negate
a finding of probable cause to initiate the proceeding, every
successful appeal would prompt a claim of malicious
prosecution.

In its analysis, the district court examined the effect of
the overturned municipal conviction on the malicious
prosecution claim. The court relied on the common law rule
to conclude that if a magistrate's determination of guilt was
reasonably reached (even if later overturned), the
presumption of probable cause should not be disturbed
unless rebutted with evidence that the conviction was
obtained fraudulently. See, e.g., Lind at 370. The district
court then found that the New Jersey magistrate had relied
both on radar evidence and on Officer De Simone's
testimony of a visual estimate of a speeding violation and
had reasonably concluded that there was probable cause to
stop Montgomery and to find her guilty of speeding.
Although the superior court ultimately deemed the radar
evidence to be inadmissible because a proper foundation
had not been laid, the district court reasoned, correctly I
believe, that the inadmissibility of the radar evidence
should have no effect on whether it was reasonable to
prosecute Montgomery in the first place.

The District Court's dismissal of the malicious
prosecution claim hinged on Montgomery's failure to

                               15
establish such an absence of probable cause. I believe that
the reversal of the municipal court conviction, based on
insufficient evidence to prove guilt beyond a reasonable
doubt, should not be sufficient to dislodge afinding of
probable cause to initiate the proceeding. A reversal for
insufficient evidence is not a finding that the conviction was
brought about fraudulently or corruptly.

The majority concludes to the contrary that the
rebuttable presumption should not apply here because we
are dealing with a claim of malicious prosecution under
S 1983. The majority reasons that, since the Civil Rights Act
was created to interpose the federal courts between the
misuse of state authority and individuals, we would violate
the goals of the Civil Rights Act if we were to allow a
reversed conviction to create a presumption of probable
cause in a S 1983 malicious prosecution claim.

The Second Circuit has also adopted the common law
exceptions in a S 1983 action for false arrest. In Cameron v.
Fogarty, 

, 388 (2d Cir. 1988), that court held
that the common law rule provides a sufficient balance
between individual liberty interests and societal interest in
law enforcement because the exclusionary rule sufficiently
deters police from arresting without probable cause. The
majority points out that this Court has questioned whether
the rule in Cameron reflects the "proper accommodation"
between individual and societal interests. Rose v. Bartle,

(3d Cir. 1989). Cameron and Rose, however,
both involved claims for false arrest. I conclude that the
difference between a false arrest claim, in which a person
may have been illegally arrested even though guilty of the
prosecuted offense, is very different from a malicious
prosecution claim where the propriety of the prosecution
itself depends on it being initiated with probable cause. For
this reason, I do not find that our concern in Rose carries
over to the present situation.

The majority also quotes with approval from Justice
Souter's concurrence in Heck v. Murphy where he called
"untenable" the notion that a municipal conviction could
"wipe out" a S 1983 claim. Heck v. Humphrey, 

, 496 (1994). But, the common law rule does not wipe
out a person's S 1983 claim. To the contrary, it raises a

                               16
rebuttable presumption of probable cause. This
presumption may be rebutted with a showing that the
conviction was brought about through fraud or coercion,
precisely the type of conduct which S 1983 was created to
guard against. Applying the common law rule of a
rebuttable presumption of probable cause in the case before
us does not interfere with the goals of the Civil Rights Act.

For the foregoing reasons, I respectfully dissent.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               17