Filed: Apr. 12, 2005
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2005 Decisions States Court of Appeals for the Third Circuit 4-12-2005 Schlaflin v. Borowsky Precedential or Non-Precedential: Non-Precedential Docket No. 04-3019 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005 Recommended Citation "Schlaflin v. Borowsky" (2005). 2005 Decisions. Paper 1374. http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1374 This decision is brought to you for free and open access by the Opinions of
Summary: Opinions of the United 2005 Decisions States Court of Appeals for the Third Circuit 4-12-2005 Schlaflin v. Borowsky Precedential or Non-Precedential: Non-Precedential Docket No. 04-3019 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005 Recommended Citation "Schlaflin v. Borowsky" (2005). 2005 Decisions. Paper 1374. http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1374 This decision is brought to you for free and open access by the Opinions of ..
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Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
4-12-2005
Schlaflin v. Borowsky
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-3019
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005
Recommended Citation
"Schlaflin v. Borowsky" (2005). 2005 Decisions. Paper 1374.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1374
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2005 Decisions by an authorized administrator of Villanova
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-3019
PAUL J. SCHLAFLIN,
Appellant
v.
RICHARD BOROWSKY; JAY F. FOX;
PHILLIP CAMPO; STEVE MENNONA;
GEORGE TRAMPLER; ROBERT C. HOLMES;
TOWNSHIP OF MARLBORO
Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 03-cv-04184)
District Judge: Honorable Anne E. Thompson
Argued March 9, 2005
Before: NYGAARD, McKEE and RENDELL, Circuit Judges.
(Filed : April 12, 2005)
Allan Marain [ARGUED]
100 Bayard Street
P.O. Box 1030
New Brunswick, NJ 08903
Counsel for Appellant
Martin J. McGreevy [ARGUED]
P.O. Box 820
Oakhurst, NJ 07755
Counsel for Appellees
Richard Borowsky and Phillip Campo
John T. Bazzurro
Chamlin, Rosen, Uliano & Witherington
268 Norwood Avenue
West Long Branch, NJ 07764
Counsel for Appellee Jay F. Fox
William J. Gearty [ARGUED]
1222 Third Avenue
Spring Lake, NJ 07762
Counsel for Appellees
Steven Mennona, George Trampler
and Robert C. Holmes
OPINION OF THE COURT
RENDELL, Circuit Judge.
I. Factual and Procedural Background
Paul Schlaflin appeals the order of the District Court granting summary judgment
for Appellee Officers based upon qualified immunity. As we write only for the parties,
we include only such factual and procedural events as are necessary to our decision. On
September 11, 2001, Appellant, Schlaflin, painted the words “Death to the Sand Niggers”
on his truck. He then drove his truck from his home in Morganville, New Jersey, into
Marlboro, New Jersey, where he left the truck in the parking lot of a bar. Police received
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a call from Ms. Rabig, who had seen the truck in the parking lot, reporting that the truck
had the words on it. (App. 65a) The officers then went to the scene. Officer Borowsky
arrived first, followed by Officers Campo, Mennona, Trampler and Chief Holmes. At
some point, Detective Fox was called in because he specialized in investigating bias
crimes. When Fox saw the truck, he ordered that Schlaflin be arrested. He also ordered
that the words on the truck be covered and the truck towed to the police station.
Schlaflin was arrested and transported to police headquarters, where he was placed
in a cell. He was charged with bias harassment under N.J.S. 2C:33-4d (since repealed).
Police towed and impounded the truck, which they kept for approximately two and one-
half months. As a condition of his release, Fox required Schlaflin to remove the lettering
from the truck.
Charges were brought against Schlaflin, but he was subsequently found not guilty,
based on the conclusion that the words on his truck constituted protected speech under the
First Amendment. Schlaflin then brought suit against the officers, alleging violation of
his freedom of speech, arrest without probable cause, false imprisonment, the seizure and
impoundment of his truck, and civil conspiracy. The officers moved for summary
judgment on the basis of qualified immunity, and this motion was granted. Schlaflin now
appeals.1
1
As the analysis of whether the officers were entitled to qualified immunity flows
primarily from evaluation of his First Amendment claims and because Schlaflin does not
thoroughly raise or discuss any other constitutional violations in his brief, we focus our
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II. Jurisdiction and Standard of Review
The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343(a)(3).
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.
We have plenary review of the District Court's decision to grant summary
judgment. See Blair v. Scott Specialty Gases,
283 F.3d 595, 602-03 (3d Cir. 2002). We
apply the same standard as used by the District Court.
Id.
III. Discussion
The inquiry into whether qualified immunity is proper was laid out by the Supreme
Court in Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982), where the Court stated that
“government officials performing discretionary functions, generally are shielded from
liability for civil damages insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have known.” The
Court later expanded the explanation of the inquiry into whether the law was clearly
established in Saucier v. Katz,
533 U.S. 194, 202 (2001):
[T]he right the official is alleged to have violated must have been
‘clearly established’ in a more particularized, and hence more relevant
sense: The contours of the right must be sufficiently clear that a reasonable
official would understand that what he is doing violates that right. The
relevant, dispositive inquiry in determining whether a right is clearly
established is whether it would be clear to a reasonable officer that his
conduct was unlawful in the situation he confronted.” (quotations omitted).
decision primarily on the alleged First Amendment deprivation.
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The first question we must answer, therefore, is whether the officer’s actions
violated a clearly established right belonging to Schlaflin. The District Court found that
Schlaflin’s speech was not protected by the First Amendment under the standard set forth
in Brandenburg v. Ohio,
395 U.S. 444 (1969). The Court in Brandenburg stated that “the
constitutional guarantees of free speech and free press do not permit a State to forbid or
proscribe advocacy of the use of force or of law violation except where such advocacy is
directed to inciting or producing imminent lawless action and is likely to incite or produce
such action.”
Id. at 447. Although we find that this is a close case, we ultimately
conclude that the speech at issue here was protected because there was no threat of
imminent unlawful action. The fact that the sole complaint about the truck came from
Ms. Rabig, who had not witnessed any threat of violence or unruliness caused by the
speech, bolsters this conclusion.
The next inquiry we must undertake is whether, despite the fact that we find that
officers did violate Schlaflin’s First Amendment rights here, they were unreasonable in
doing so. We hold that they were not.
As stated above, the officers arrested Schlaflin for bias harassment pursuant to
N.J.S. 2C:33-4d (subsequently repealed). At the time of this action, that statute stated:
Except as provided in subsection (d), a person commits a petty
disorderly persons offense if, with purpose to harass another, he:
(a) Makes or causes to be made, a communication or communications
anonymously or at extremely inconvenient hours, or in offensively course
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language, or in any other manner likely to cause annoyance or alarm.
(d) A person commits a crime of fourth degree if in committing an
offense under this section, he acted, at least in part, with ill will, hatred or bias
toward, and with a purpose to intimidate, an individual or group of individuals
because of race, color, religion, sexual orientation or ethnicity.
In this case, it was reasonable for the officers, with the language of the statute as a
guide, to believe that their arrest of Schlaflin would not violate any clearly established
right, given the fact that New Jersey had an existing statute which appeared to authorize
such an arrest. The fact that the statute was later found to be unconstitutional does not
change this conclusion. For example, in Blackhawk v. Commonwealth of Pennsylvania,
381 F.3d 202 (3d Cir. 2004), we had to decide whether individual officers of the
Pennsylvania Game Commission were entitled to qualified immunity for their refusal to
grant the plaintiff a waiver of a permit fee for keeping a wild animal when the plaintiff
claimed that his reason for keeping the animal was religious. Subsequent to the
Commission’s refusal to grant the exemption, the statute under which the Commission
justified the refusal was held unconstitutional. Regardless, we held that the defendants
were entitled to qualified immunity because “in this case, the governing precedents were
complex and developing. Although we now hold that the waiver procedure... is
sufficiently open-ended to constitute a system of individual exemptions, a reasonable
officer in the position of defendants could have concluded otherwise.”
Id. at 215.
Under the same logic, we hold that it was reasonable for the officers in the present
case to conclude that the N.J.S. 2C:33-4d provided an adequate basis for believing the
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arrest of Schlaflin was not in violation of his First Amendment rights. Thus, because we
find that it would not have been clear to a reasonable officer in the defendants’ position
that their conduct violated a clearly established right, we hold that the officers were
entitled to qualified immunity in this case. Therefore, we will affirm the order of the
District Court.2
2
Judge McKee agrees that the District Court did not err in granting summary judgment
based upon qualified immunity under Saucier even if defendants violated plaintiff's First
Amendment rights. However, Judge McKee is dubitante on the question of whether any
such First Amendment violation occurred given the totality of circumstances here.
Accordingly, he would not reach that question.
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