Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-15-2004

Tarus v. Pine Hill
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-3100




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Recommended Citation
"Tarus v. Pine Hill" (2004). 2004 Decisions. Paper 499.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/499


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                                                NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT




                         No. 03-3100




                 ROBERT WAYNE TARUS,
                                 Appellant

                              v.

                BOROUGH OF PINE HILL;
              LESLIE GALLAGHER, MAYOR;
              JOHN WELKER, POLICE CHIEF




        On Appeal from the United States District Court
                 for the District of New Jersey
                 (D.C. Civil No. 01-cv-04468)
          District Judge: Hon. Joseph H. Rodriguez


          Submitted Under Third Circuit LAR 34.1(a)
                        July 15, 2004

     Before: SLOVITER, BARRY and WEIS, Circuit Judges

                     (Filed July 15, 2004)




                 OPINION OF THE COURT
SLOVITER, Circuit Judge.

       This is not the first case before us in which a resident of a local community seeks

to elevate his or her quarrel with local officials into a federal constitutional issue, and this

will probably not be the last of its genre. Each party to this appeal makes broad

unsupported legal propositions. What was needed here was civility, accommodation and

common sense, rather than an arrest, a local trial, and a federal lawsuit. We decline to

expand this matter to yet another level.

                                               I.

       Appellant Robert Tarus, a resident of Pine Hill Borough who regularly attends

Borough Council meetings, began videotaping a meeting on September 18, 2000, without

permission. Mayor Leslie Gallagher of the Borough of Pine Hill polled several audience

and council members and found that several did not wish to be videotaped. Tarus refused

the request of Mayor Gallagher to turn off the camera, stating that he had the right to

videotape the proceedings under Maurice River Township Board of Education v. Maurice

River Township Teachers Association, 187 N.J. Super 566 (Ch. Div. 1982). Mayor

Gallagher asked Police Chief John Welker to remove Tarus and Chief Welker asked

Tarus to stop recording. Tarus responded that the only way that the camera would be

turned off would be if Chief Welker arrested him. Chief Welker turned off the video

camera and escorted Tarus out of the meeting room, where he offered to permit Tarus

back into the meeting room if he agreed to keep the camera off. Tarus again refused and



                                               2
Chief Welker then formally charged Tarus with disorderly conduct.

       The same sequence occurred again on October 23, 2000. The Borough Solicitor

attempted to explain the Maurice River Township decision to Tarus, but Tarus stated that

he disagreed with the Solicitor’s interpretation. At the Mayor’s instruction, Chief Welker

then escorted Tarus from the meeting room and again requested that Tarus keep the video

equipment off. In the course of a twenty-minute conversation outside of the meeting

room, Tarus told Chief Welker he would have to arrest him in order to keep his camera

off. Chief W elker then arrested him for disorderly conduct.

       The following week, a municipal judge entered a finding of not guilty as to the two

disorderly conduct charges pending against Tarus based on his right to videotape the

Council meeting. Since then, Tarus has been permitted to videotape Council meetings.

       Tarus filed this 42 U.S.C. § 1983 action for damages against the Borough of Pine

Hill (the Borough), Mayor Gallagher, and Police Chief Welker, claiming that he had been

arrested without probable cause and maliciously prosecuted in violation of his civil rights.

Tarus also alleges that Mayor Gallagher violated his First and Fourteenth Amendment

rights by applying the Borough Council’s five-minute rule, under which an audience

member receives up to five minutes to speak, in a discriminatory fashion based on alleged

political and personal animosity between himself and the Mayor, who are members of

different political parties.

       The District Court granted the defendants’ motions for summary judgment in full



                                             3
and declined to exercise supplemental jurisdiction over Tarus’ state law claims. The

court dismissed Tarus’ false arrest and malicious prosecution claims based on the ground

that Tarus’ refusal to obey Chief Welker’s order to stop video recording established

probable cause to arrest him. The court held that qualified immunity shielded Chief

Welker from liability because, in arresting Tarus, he had reasonably relied on the

Borough Solicitor’s opinion that Tarus had no legal basis for videotaping the proceedings.

The court also held that M ayor Gallagher was not responsible for Tarus’ arrest. Lastly,

the court rejected Tarus’ claim that the five-minute speaking rule had been applied to him

in a discriminatory fashion because he had submitted inadmissible, unsworn affidavits in

support of this allegation. Tarus filed a timely notice of appeal.

                                             II.

A. Probable Cause

       We have jurisdiction to review this case pursuant to 28 U.S.C. § 1291. We review

the District Court’s grant of summary judgment de novo. Huang v. BP Amoco Corp., 

, 564 (3d Cir. 2001).

       The District Court held that Chief Welker had probable cause to arrest Tarus based

on Tarus’ refusal to cease videotaping and consequent disruption of the Council’s

meetings. The Borough’s disorderly conduct ordinance prohibits persons from behaving

in a disorderly manner in public places. Pine Hill Borough Ordinance 3-11.1b. Although

this ordinance does not define disorderliness, Tarus relies upon New Jersey’s definition of



                                              4
disorderly conduct, which involves fighting, threatening, violent or tumultuous behavior

or behavior tending to create hazardous conditions. See N.J. Stat. Ann. § 2C:33-2.1

Tarus thus argues that Chief Welker acted improperly because his conduct did not meet

the description of disorderly conduct as invoking violence or threats.

       Significantly, under New Jersey law, disorderly conduct is not limited to behavior

that rises to the level of violence. In particular, it provides that:

       A person commits a disorderly persons offense if, with purpose to prevent
       or disrupt a lawful meeting, procession or gathering, he does an act tending
       to obstruct or interfere with it physically.

N.J. Stat. Ann. § 2C:33-8. Moreover, the New Jersey Appellate Division has stated as

follows:

       Reasonableness is the key. Hence, where an officer’s instructions are
       obviously reasonable, in furtherance of his duties, an individual toward
       whom such instructions are directed has a correlative duty to obey them. If
       his refusal to respond results in an obstruction of the performance of the
       officer’s proper tasks, this will constitute a violation of the disorderly
       persons statute.

State v. Brennan, 

, 144 (App. Div. 2001) (citations omitted), certif.

denied, 

(2002).

       Here, Chief Welker personally witnessed Tarus undertake conduct to disrupt two

   1
       N.J. Stat. Ann. § 2C:33-2a provides:

       A person is guilty of a petty disorderly persons offense, if with purpose 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; or (2) Creates a hazardous or physically dangerous
       condition by any act which serves no legitimate purpose of the actor.

                                                5
Council meetings: Tarus halted the September meeting as he argued with the Council

about whether he would be permitted to videotape the proceedings and he delayed the

start of the October meeting when he refused to turn off his video camera or change its

location. In both cases, the meeting could not proceed until Chief Welker turned off

Tarus’ video equipment and removed him from the meeting room. Chief Welker thus

acted reasonably in believing that Tarus’ refusal to stop videotaping or move his video

equipment constituted disorderly conduct as tending to obstruct or interfere with the

Council’s meetings.

       Because we agree with the District Court that Chief W elker had probable cause to

arrest Tarus, Tarus’ claims for false arrest and malicious prosecution fail. Moreover,

because Chief Welker did not engage in any wrongdoing in arresting Tarus, we need not

reach the related issues of whether Chief W elker and M ayor Gallagher are entitled to

qualified immunity as to Tarus’ constitutional claims or whether M ayor Gallagher should

be held jointly liable for Chief Welker’s actions. We will affirm the District Court’s grant

of summary judgment as to Tarus’ claims for false arrest and malicious prosecution.

B. Admissibility of Tarus’ Affidavit Evidence

       Tarus contends that Mayor Gallagher discriminatorily applied the Council’s five-

minute rule to limit his speaking time at Council meetings. He attempted to submit to the

District Court his own signed statement and a signed writing by Laura Ann Adriano




                                             6
stating that the five-minute rule was singularly enforced against Tarus.2 Although both

were notarized, neither statement was sworn under penalty of perjury. The District Court

reasoned that in light of Federal Rule of Civil Procedure 56(e)’s requirement of sworn or

certified papers, the two statements, which were “not made specifically under penalty of

perjury,” did “not contain the requisite assurance of reliability and veracity to allow its

consideration in lieu of an affidavit.” App. at 27. The court thus declined to admit these

statements into evidence.

       Tarus argues that because both of the statements in questions were properly

notarized, the District Court erred in refusing to consider the evidence contained therein.

Critically, Tarus does not allege that he suffered any harm or prejudice as a result of the

District Court’s alleged error. Assuming arguendo that the District Court should have

admitted these statements, it does not appear that Tarus has suffered any harm as a result.

Adriano, an ex-Borough resident who stated that she attended Borough meetings from

1995 to 1999, offered no testimony as to the 2001 dates which Tarus had pinpointed as

the dates on which he suffered the Council’s discrimination. Adriano’s statements are

thus irrelevant to Tarus’ claim. Tarus’ statement, though topically relevant, largely

mirrors the factual allegations in his complaint and thus offered little new information.

We therefore conclude that, even if the District Court had admitted the statements, the

admission would not have affected the outcome of the case, making any purported error

   2
      Tarus also cites another unsworn statement by Godert Van Diermen, but that
statement makes no reference to the five-minute rule. App. at 147.

                                              7
harmless.

                                          III.

      For the foregoing reasons, we will affirm the District Court’s decision granting

summary judgment to the Appellees against Tarus, without prejudice to Tarus’

proceeding with his state law claims.