Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-12-2005

Menear v. Philadelphia
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-1471




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Recommended Citation
"Menear v. Philadelphia" (2005). 2005 Decisions. Paper 1568.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1568


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                                                               NOT PRECEDENTIAL


                        IN THE UNITED STATES COURT
                                 OF APPEALS
                            FOR THE THIRD CIRCUIT


                                     NO. 04-1471


                 ELWOOD MENEAR; MARJORIE MENEAR, H/W;
                             Appellants

                                           v.

                        CITY OF PHILADELPHIA;
              ALBERT JONES, POLICE OFFICER, BADGE NO. 9641;
                         SHIPPERT, SERGEANT




                   On Appeal From the United States District Court
                      For the Eastern District of Pennsylvania
                       (D.C. Civil Action No. 03-cv-03849)
                    District Judge: Hon. Clarence C. Newcomer


                              Argued December 13, 2004

                    BEFORE: AMBRO, VAN ANTWERPEN and
                          STAPLETON, Circuit Judges

                            (Opinion Filed January 12, 2005)




John J. Branigan (Argued)
1122 Locust Street
Philadelphia, PA 19107
 Attorney for Appellants
Jeffrey S. Batoff
Daniel P. Finegan
Jonathan W. Hugg (Argued)
Obermayer, Rebmann, Maxwell and Hippel
1617 John F. Kennedy Boulevard
One Penn Center - 19th Floor
Philadelphia, PA 19103
 Attorneys for Appellees




                                OPINION OF THE COURT




STAPLETON, Circuit Judge:


       This is an appeal from an order of the District Court in a civil rights action

dismissing the plaintiff’s complaint for failure to state a cause of action. Accordingly, our

review is based solely on the allegations of the complaint. Because we write only for the

parties, we will not summarize those allegations. We will reverse and remand for further

proceedings.

       The complaint alleges that four months after 9/11, Captain Menear, a pilot for U.S.

Airways, passed through a security checkpoint at the Philadelphia airport and set off an

alarm. This led to a body search of Menear. During that search, Menear, admittedly

frustrated, made the statement that he could “take the plane down in his underwear.” This

led to his arrest, allegedly in violation of his right to be free from unreasonable seizure.

       The District Court dismissed this claim because it concluded that the alleged facts

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“support[ed] a finding of probable cause as to the arrest of the Plaintiff for making

terroristic threats[1 ] and for disorderly conduct.[ 2 ]”

       Unlike the District Court, we are unpersuaded that the allegations of the complaint

foreclose Menear from any relief on this claim. On the contrary, we find it impossible to

determine from the complaint whether no relief will be appropriate.

       The complaint alleges that the arresting officers, Shippert and Jones, were not

present when the facts relied upon by the District Court to show probable cause occurred.


   1
    The Court noted that:
               The offense of terroristic threats is defined by the Pennsylvania
       legislature as follows:
               A person commits the crime of terroristic threats if the person
               communicates, either directly or indirectly, a threat to:
               (1) commit any crime of violence with intent to terrorize
               another;
               (2) cause evacuation of a building, place of assembly or
               facility of public transportation; or
               (3) otherwise cause serious public inconvenience, or cause
               terror or serious public inconvenience with reckless disregard
               of the risk of causing such terror or inconvenience.
18 Pa. Cons. Stat. § 2706(a).
   2
    Similarly, the Court noted that:
              The offense of disorderly conduct is defined as follows:
              A person is guilty of disorderly conduct if, with intent to
              cause public inconvenience, annoyance or alarm, or recklessly
              creating a risk thereof, he:
              (1) engages in fighting or threatening, or in violent or
              tumultuous behavior;
              (2) makes unreasonable noise;
              (3) uses obscene language, or makes an obscene gesture; or
              (4) creates a hazardous or physically offensive condition by
              any act which serves no legitimate purpose of the actor.
18 Pa. Cons. Stat. § 5503(a).

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The complaint does not allege what they were told or what they knew at the time of the

arrest. As a result, it is impossible to tell without more information whether or not they

had probable cause when they made the arrest.

       In addition, the fair inference from paragraphs 23-26 and 44 of the complaint

would appear to be that, as appellants put it in their brief, “Officer Jones only arrested

Menear because he was ordered to do so by Sgt. Shippert who was following orders given

to him by Tina Perry.” Their theory seems to be that the arrest occurred as a result of the

municipal policy alleged in ¶ 44:

              It is the policy and custom of the City of Philadelphia and the
       Philadelphia Police Department, by and through its police officers, to place
       under arrest any individual that is requested to be incarcerated by employees
       of U.S. Airways.

We are not prepared to hold that an arrest made for this reason would have been

reasonable.

       Finally, we note that, while the District Court assumed (without basis in the

complaint) that the arresting officers had all of the knowledge possessed by Perry, it did

not explain how that knowledge provided probable cause to believe each of the elements

of the two cited offenses existed. As we have explained, we do not feel free to make the

assumption that the District Court did. As a result, we are not prepared to say on the

existing record whether probable cause could have existed or not. We believe, however,

that the correct resolution of the probable cause issue is not obvious, that it turns on the

full context known to the officer, and that it should be addressed only on a more fully

                                              4
developed record.

       Menear also insists that the arrest violated his First Amendment right to free

speech because it resulted from his having expressed an opinion. The District Court

dismissed this claim because at “a security checkpoint the government is free to regulate

and even punish statements which pose a threat to airport or airplane security.” App. at 8.

While we do not question the legal principle underlying the District Court’s holding, this,

too, is an issue that should be addressed only in the context of a fuller record.

       The District Court resolved the “Municipal Liability” claim on the ground that

Menear’s constitutional rights had not been violated. As we have indicated, we cannot

endorse this finding based solely on the facts alleged in the complaint.

       The judgment of the District Court will be reversed, and this case will be

remanded to it for further proceedings.




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