Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-1-2007

Blaylock v. Philadelphia
Precedential or Non-Precedential: Precedential

Docket No. 06-2785




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                                     PRECEDENTIAL


        IN THE UNITED STATES COURT
                 OF APPEALS
            FOR THE THIRD CIRCUIT


                   NO. 06-2785


               ANDRE BLAYLOCK

                        v.

   THE CITY OF PHILADELPHIA; REYNOLDS,
       PHILADELPHIA POLICE OFFICER,
    BADGE # 4268; WALKER, PHILADELPHIA
    POLICE OFFICER, BADGE # 3730; CUJDIK,
       PHILADELPHIA POLICE OFFICER,
  BADGE # 1574; LICIARDELLO, PHILADELPHIA
        POLICE OFFICER, BADGE # 4383;
MALKOWSKI, PHILADELPHIA POLICE SERGEANT,
 BADGE # 8832; PHILADELPHIA POLICE OFFICER
    DOES 1-5; BADGE NUMBERS UNKNOWN,
  INDIVIDUALLY AND IN THEIR CAPACITY AS
               POLICE OFFICERS

    Brian Reynolds, Thomas Liciardello, Jeffrey
    Walker, Louis Cujdik and Chester Malkowski,
                    Appellants
            On Appeal From the United States
                       District Court
          For the Eastern District of Pennsylvania
           (D.C. Civil Action No. 05-cv-01649)
          District Judge: Hon. Norma L. Shapiro


                   Argued June 14, 2007

           BEFORE: McKEE, STAPLETON and
               NYGAARD, Circuit Judges

              (Opinion Filed: October 1, 2007)




Richard G. Tuttle (Argued)
Archer & Greiner
One South Broad Street, Suite 1620
Philadelphia, PA 19107
 Attorney for Appellants

Michael Pileggi (Argued)
437 Chestnut Street, Suite 905
The Lafayette Building
Philadelphia, PA 19106
 and
Jane L. Istvan

                                 2
City of Philadelphia Law Department
1515 Arch Street
One Parkway
Philadelphia, PA 19102
 Attorneys for Appellees



                  OPINION OF THE COURT




STAPLETON, Circuit Judge

       This interlocutory appeal arises out of a case in which
Andre Blaylock sued five officers of the Philadelphia Police
Department under 42 U.S.C. § 1983, alleging false arrest,
excessive force, and malicious prosecution. At the close of
discovery, the officers moved for summary judgment, arguing,
inter alia, that they were entitled to qualified immunity. The
District Court denied that motion, and the officers now appeal.

        We lack the benefit of the District Court’s views as to
what facts are subject to genuine dispute with respect to the
claims of excessive force and malicious prosecution, and we
will therefore vacate the District Court’s order denying
summary judgment on those claims and remand pursuant to the
supervisory rule we announced in Forbes v. Lower Merion
Twp., 

(3d Cir. 2002). We will dismiss the portion
of the officers’ appeal relating to the false arrest claim for want

                                3
of jurisdiction under Johnson v. Jones, 

(1995).

                                I

        The parties to this case agree that on October 22, 2003,
defendant police officers Brian Reynolds, Jeffrey Walker, and
Thomas Liciardello arrested Andre Blaylock while he was
sitting on the steps of 522 North 38th Street in Philadelphia. He
was held on various drug charges until he was released on
February 2, 2005, and the charges against him were dropped.
The parties dispute how his arrest and incarceration came about.

                               A

       According to Andre Blaylock, on October 7, 2003,
Reynolds received a tip from an informant to the effect that
Dana and Omar Blaylock (relatives of Andre) were selling drugs
near the 500 block of North 38th Street in Philadelphia, and
were storing drugs at 522 North 38th Street and at two other
addresses in the same area.1 After receiving the informant’s tip,
Reynolds performed a “record check” on Omar and Dana, which
connected them to the latter two addresses and revealed that
both had several prior arrests. Reynolds shared that information
with Walker. The parties agree that Omar was incarcerated
during all times relevant to this case. Walker and Officer Louis
Cudjik set up surveillance that afternoon and observed Dana and
another black male participate in drug transactions at 522 North
38th Street. That same day, Cudjik met with a confidential
informant and arranged a controlled narcotics purchase, in

   1
    All three addresses are within a one-block area.
                               4
which the informant gave prerecorded buy money to Dana in
exchange for two plastic bags of crack cocaine provided by
Dana’s accomplice.

        On October 21, 2003, Walker and Cudjik arranged for
another controlled purchase at the same location, and observed
Dana and his accomplice performing additional drug
transactions. Walker and Cudjik set up another controlled buy
that afternoon. After obtaining police photographs of Dana and
Omar Blaylock to confirm their identities as the men he
observed selling drugs, Walker filled out an affidavit of
probable cause, identifying Dana and Omar as the people he had
observed, and obtained a search warrant for 522 North 38th
Street and for the other two addresses the informant identified
in the initial tip.

        On October 22, 2003, Andre Blaylock was sitting on the
steps of 522 North 38th Street, and Officers Reynolds, Walker,
and Liciardello arrested him. According to Andre, the officers
handcuffed him, threw him on the ground, and beat him, despite
the fact that he did not resist, possessed no contraband, and was
not the person the police had observed selling drugs with Dana.
After complaining repeatedly of his injuries, Andre was taken to
the hospital. After the arrest, the officers filled out an
Investigation Report, which is nearly identical to the affidavit of
probable cause, but substitutes Andre’s name for Omar’s
throughout the description of what the officers observed prior to
arresting Andre.

                               B
       The officers largely agree with Andre’s allegations, but

                                5
with a few important exceptions. First, according to them,
Andre was the person they observed selling drugs with Dana.
The officers believed that that person was Omar because of the
informant’s tip and because Andre resembled the police
photograph of Omar. Although Officer Reynolds’s “record
check” showed that Omar was incarcerated at the time, he insists
that he believed that the record check had given him erroneous
information.

       Second, the officers dispute Andre’s allegation that they
used excessive force in arresting him. According to them, they
ordered Andre to lie on the ground while they applied handcuffs,
Andre complied, and no significant force was used.

       Finally, although Andre denies that he possessed any
contraband or that the officers confiscated any contraband from
him, the officers assert that when Andre was in detention, they
searched him and seized crack cocaine from his waistband, and
that the charges against him were dismissed only because the
crack was suppressed.

                               C

       At the close of discovery, the officers moved for
summary judgment on all of Andre’s claims on the basis of
qualified immunity. The District Court heard argument on the
motion and denied it on May 18, 2006. The officers filed a
notice of appeal the following day and, on June 6, the District
Court filed a memorandum in support of its order, explaining its
denial of qualified immunity on the false arrest claim. Blaylock
v. Reynolds, No. 05-1649, 

(E.D. Pa. June 6,

                               6
2006).

                                  II

        Our jurisdiction to hear this appeal depends on whether
we may treat the District Court’s order as a “final decision of the
district court[]” within the meaning of 28 U.S.C. § 1291. Under
the collateral order doctrine, an interlocutory order of a district
court may be treated as a “final decision” if it: “(1) conclusively
determine[s] the disputed question, (2) resolve[s] an important
issue completely separate from the merits of the action, and (3)
[is] effectively unreviewable on appeal from a final judgment.”
Johnson v. Jones, 

, 310 (1995) (quoting Puerto
Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 

, 144 (1993) (quoting Coopers & Lybrand v. Livesay, 

, 468 (1978))); see also Mitchell v. Forsyth, 

, 526-28 (1985) (same).2

        A district court’s order denying a motion for summary
judgment on qualified immunity grounds generally meets the
first and third criteria, because qualified immunity “is an
immunity from suit rather than a mere defense to liability,” and
is therefore “effectively lost if a case is permitted to go to trial.”
Saucier v. Katz, 

, 200-01 (2001); 

(same). The more difficult question is whether

      2
       For certain classes of cases, Congress has authorized
interlocutory or “immediate” appeals through other statutory
provisions. See 

(citing 28 U.S.C.
§§ 1292, 1651, 2072; Fed. R. Civ. P. 54(b)). None of those
provisions are applicable here, however.
                                  7
and to what extent the appealed order resolves an important
issue “completely separate from the merits of the action.”

        In an interlocutory appeal of this type, we lack
jurisdiction to review questions of “evidence sufficiency.”

. That is, if a district court determines
“that there is sufficient record evidence to support a set of facts
under which there would be no immunity,” we must accept that
set of facts on interlocutory review. Schieber v. City of Phila.,

, 415 (3d Cir. 2003) (citing Johnson); see also
Forbes v. Twp. of Lower Merion, 

, 147-48 (3d Cir.
2002) (“When a defendant argues that a trial judge erred in
denying a qualified-immunity summary-judgment motion
because the judge was mistaken as to the facts that are subject
to genuine dispute, the defendant's argument cannot be
entertained under the collateral-order doctrine but must instead
await an appeal at the conclusion of the case.”). Once we accept
the set of facts that the District Court found to be sufficiently
supported, however, we may review the District Court’s
conclusion that the defendants would not be immune from
liability if those facts were proved at trial. See Behrens v.
Pelletier, 

, 313 (1996) (“Johnson permits petitioner
to claim on appeal that all of the conduct which the District
Court deemed sufficiently supported for purposes of summary
judgment met the [qualified immunity] standard of ‘objective
reasonableness.’”); Rivas v. City of Passaic, 

, 192
(3d Cir. 2004) (“[I]f a defendant in a constitutional tort case
moves for summary judgment based on qualified immunity and
the district court denies the motion, we lack jurisdiction to
consider whether the district court correctly identified the set of
facts that the summary judgment record is sufficient to prove;

                                8
but we possess jurisdiction to review whether the set of facts
identified by the district court is sufficient to establish a
violation of a clearly established constitutional right.”) (quoting
Ziccardi v. City of Philadelphia, 

, 61 (3d Cir.
2002)).

        Thus, for each of Andre Blaylock’s claims,3 our
jurisdiction to review the District Court’s order denying
summary judgment depends on whether the defendants’ appeal
raises pure questions of law or whether it challenges the District
Court’s determination of which facts were sufficiently supported
by evidence.

                                III

        In Johnson, the Supreme Court recognized that it is often
a difficult endeavor for a court of appeals to “try to separate an
appealed order’s reviewable determination (that a given set of
facts violates clearly established law) from its unreviewable
determination (that an issue of fact is 

. The Court suggested that district courts should assist the
courts of appeals by stating the facts that they assume when they

    3
      In Behrens, the Supreme Court explained that qualified
immunity “is a right to immunity from certain claims, not from
litigation in general,” and that “when immunity with respect to
those claims has been finally denied, appeal must be available
and cannot be foreclosed by the mere addition of other claims to
the 

(original emphasis). We therefore
assess our jurisdiction to hear this appeal on a claim-by-claim
basis.
                                9
deny summary judgment, and noted that when the district courts
do not do so, “a court of appeals may have to undertake a
cumbersome review of the record to determine what facts the
district court, in the light most favorable to the nonmoving
party, likely assumed.” 

we made a supervisory
rule to enlist the assistance of the district courts:

       We . . . announce a supervisory rule to be
       followed in all subsequent cases in which a
       summary judgment motion based on qualified
       immunity is denied on the ground that material
       facts are in dispute. So that we can carry out our
       review without exceeding the limits of our
       jurisdiction under Johnson v. Jones . . . we will
       henceforth require the District Courts to specify
       those material facts that are and are not subject to
       genuine dispute and explain their 

. When presented with an interlocutory appeal
in which the district court has not followed that directive, we
have remanded for it to do so. See, e.g., Hamilton v. Leavy, 

, 785-86 (3d Cir. 2003) (applying the Forbes rule in the
context of absolute immunity and remanding); Estate of Smith
v. Marasco, 

, 511 (3d Cir. 2003) (remanding for
additional findings on the qualified immunity issue and for more
specific findings on the actions of the individual defendants).

       In this case, the District Court did not discuss the
excessive force or malicious prosecution claims in its
memorandum opinion because it apparently did not understand
the defendants to have asserted a qualified immunity defense

                               10
with respect to those claims. Blaylock, 

at *1
(“At the close of discovery, defendants moved for summary
judgment, claiming failure of proof on all claims and qualified
immunity on the false arrest claim.”). On appeal, the officers
insist that they did assert such a defense, and our review of their
motion and memorandum of law filed with the District Court
persuades us that they are correct. Although the officers focused
most of their briefing on the false arrest claim, they also argued
that they were entitled to qualified immunity on the excessive
force and malicious prosecution claims. The transcript of the
motion hearing reflects some discussion of those claims, but we
are unable to discern from the transcript with any certainty what
the District Court’s reasons were for denying the officers’
motion for summary judgment on them. We will therefore
apply the supervisory rule of Forbes, and remand so that the
District Court can address the defendants’ qualified immunity
arguments on Andre’s claims of excessive force and malicious
prosecution and, if it rules against the defendants, “specify those
material facts that are and are not subject to genuine dispute and
explain their materiality.” 

.

                                IV

       The substance of Andre Blaylock’s false arrest claim is
that the defendants arrested him without probable cause.4 On

    4
     As the District Court understood Blaylock’s false arrest
claim, it was based on two separate but overlapping theories: (1)
that Officer Walker knowingly made false statements in the
affidavit of probable cause, and (2) that Blaylock was simply
arrested without probable cause. Blaylock, 

                               11
that claim, we do have the benefit of the District Court’s
analysis in support of its decision to deny the officers’ motion
for summary judgment and we will therefore address it.

                                A

        The qualified immunity standard is one of “objective
legal reasonableness.” Harlow v. Fitzgerald, 

, 816-
17, 819 (1982). Although the question of what facts the
arresting officer knows is relevant to the inquiry, his subjective
motivation for making the arrest is not. Devenpeck v. Alford,

, 153 (2004); Anderson v. Creighton, 

,
641 (1987); 

. Accordingly, the
defendants are entitled to qualified immunity here “if a
reasonable officer could have believed that probable cause
existed” to arrest Andre Blaylock “in light of clearly established
law and the information the [arresting] officers possessed.”
Hunter v. Bryant, 

, 228-29 (1991); 

.

       As noted above, we lack jurisdiction to review the
District Court’s determination of which facts are subject to
genuine dispute. The ultimate conclusion of “objective legal


at *5. The District Court rejected the first theory because it
found that any misstatements in the affidavit of probable cause
were not material. As the Court stated, “Plaintiff was not
arrested because his name was improperly included in the
affidavit of probable cause; rather, plaintiff was arrested because
Walker allegedly recognized him as the man he had previously
observed selling drugs with Dana Blaylock.” 

                                12
reasonableness”—i.e. whether, accepting the District Court’s
determination of which facts are subject to genuine dispute, a
reasonable officer could have believed that probable cause
existed to arrest Andre Blaylock—however, is a question of law
that we may properly resolve. See Wright v. City of Phila., 

, 599 (3d Cir. 2005); Weaver v. Shadoan, 

,
405-06 (6th Cir. 2003).

                               B

        The officers’ precise position with respect to the false
arrest claim is not completely clear, but a fair reading of their
brief suggests two possibilities—the officers had probable cause
to arrest Andre because, even if he had not been involved in
selling drugs, they: (1) could reasonably have mistaken Andre
for Omar Blaylock at the time of the arrest, or (2) could
reasonably have mistaken Andre for the person they observed
selling drugs with Dana. To accept either of those propositions
would require us to review the District Court’s determination of
which facts are subject to genuine dispute which, as we have
already emphasized, Johnson v. Jones precludes us from doing
in an interlocutory appeal.

       The defendants’ first theory presupposes that defendants
had knowledge of facts providing a reasonable basis for
concluding: (1) that Omar was Dana’s accomplice, and (2) that
the person they arrested was Omar. The District Court appears
to have found that a reasonable trier of fact could conclude that
officers in defendants’ position had reason to believe that Omar
was in prison and, accordingly, could have no reasonable basis



                               13
for concluding at the time of the arrest that Andre was Omar.5
Blaylock, 

at *6-7. If we accept, as we must,
that the officers knew that Omar was in prison, then it was
plainly unreasonable for them to have mistaken Andre for Omar.
To entertain the officers’ arguments to the contrary would
require us to review the District Court’s determination that their
knowledge was subject to genuine dispute, which we lack
jurisdiction to do under Johnson v. Jones.

        In support of their second theory—that the officers could
reasonably have mistaken Andre for the person they observed
selling drugs with Dana—the officers assert that they observed
a person who looked like Omar selling drugs with Dana. Even
if they knew that Omar was in prison, they had the informant’s
tip that Omar was selling drugs with Dana. Thus, the officers
argue, they could reasonably have surmised that the informant
mistook Dana’s accomplice for Omar. Further, even accepting
that Andre was not the accomplice, they could have mistaken
him for the accomplice because he resembles Omar’s
photograph. In other words, because the evidence suggests that
both Dana’s accomplice and Andre resemble Omar, Dana’s

  5
   There is some language in the District Court’s memorandum
opinion which suggests that the District Court viewed the
officers’ subjective motive for arresting Andre as a material fact
subject to dispute. If that was the District Court’s view, it is
incorrect because, as we have already stated, in a qualified
immunity case, the question of probable cause to arrest is an
objective inquiry that does not depend on the officers’ subjective
motivations. See 

; 

; 

.
                               14
accomplice and Andre could reasonably have been mistaken for
each other. That logic is dubious, but even if we accept it, that
would not help the defendants, because the District Court
determined that the degree of resemblance between Andre and
Omar and between Dana’s accomplice and Omar are both facts
subject to genuine dispute. See Blaylock, 

at
*6-7.

        The defendants resist that conclusion by arguing that the
degree of resemblance between Andre and Dana’s accomplice
is not a historical fact, but is more in the nature of the ultimate
conclusion of arguable probable cause, and that we may
therefore make an independent determination of whether the
officers acted reasonably in arresting Andre. The defendants
note that the record contains police photographs of both Andre
and Omar and argue that the photographs are undisputed
evidence of the similarity in appearance between Andre and
Dana’s accomplice, and that this court can examine the
photographs for itself and hold that the officers had at least
arguable probable cause to arrest Andre. In support of their
argument, they rely principally on Gilles v. Davis, 

(3d Cir. 2005), in which we made an independent
determination—based in part on a videotape that was in the
record—that the defendant police officer had at least arguable
probable cause to arrest the plaintiff for disorderly conduct and
was therefore entitled to qualified immunity. 

      In Gilles, however, we reviewed a District Court’s grant
of summary judgment, and we therefore had no reason to
consider the limits that 28 U.S.C. § 1291 and Johnson v. Jones
place on our jurisdiction to hear interlocutory appeals in

                               15
qualified immunity cases. More directly on point, however, is
the Supreme Court’s recent decision in Scott v. Harris, 127 S.
Ct. 1769 (2007).6 In Scott, a police officer (Scott) pursued a
fleeing motorist (Harris) and, after approximately six minutes
and ten miles of pursuit, rammed Harris’s car in an effort to end
the pursuit. 

The collision caused Harris to lose
control of his car, which left the roadway, ran down an
embankment, overturned, and crashed. 

Harris
suffered injuries that rendered him quadriplegic, and he sued
Scott under 42 U.S.C. § 1983, alleging use of excessive force
resulting in an unreasonable seizure under the Fourth
Amendment. 

complaint, Harris alleged that he was driving
carefully and presented no danger to other motorists or
bystanders. The District Court denied the officers’ motion for
summary judgment of qualified immunity, finding, inter alia,
that there was a genuine dispute of fact regarding Harris’s
conduct during the chase, and that, viewing the disputed facts in
the light most favorable to Harris, Harris was doing nothing
dangerous other than driving 73 miles per hour in a 55-miles-
per-hour zone. Harris v. Coweta County, No. 01-CV-148, 

, at *5 (N.D. Ga. Sept. 25, 2003) (“Under this
version of the facts, a fact finder could conclude that when Scott
rammed Harris's vehicle, he faced a fleeing suspect who, but for
the chase, did not present an immediate threat to the safety of
others since the underlying crime was driving 73 miles per hour
in a 55 miles-per-hour zone. A jury could also find that Scott's

   6
    Scott was decided after the briefing in this case concluded,
so we do not fault the parties for failing to discuss it.
                               16
use of force—ramming the car while traveling at high
speeds—was not in proportion to the risk that Harris posed, and
therefore was objectively unreasonable.”). On interlocutory
appeal, the Court of Appeals affirmed, citing the District Court’s
discussion of the facts, taken in the light most favorable to
Harris. Harris v. Coweta County, 

, 815-16 (11th
Cir. 2005) (“As noted by the district court judge, taking the facts
from the non-movant’s viewpoint, Harris remained in control of
his vehicle, slowed for turns and intersections, and typically
used his indicators for turns. He did not run any motorists off
the road.”).

       The Supreme Court reversed, relying primarily on the
existence and contents of a videotape that, in its view, “quite
clearly contradict[ed] the version of the story told by [Harris]
and adopted by the Court of Appeals.” Despite the District
Court’s determination that Harris’s conduct was subject to
reasonable dispute, as the Supreme Court majority assessed the
contents of the videotape (the authenticity of which was
undisputed):

       The videotape tells quite a different story. There
       we see respondent's vehicle racing down narrow,
       two-lane roads in the dead of night at speeds that
       are shockingly fast. We see it swerve around
       more than a dozen other cars, cross the
       double-yellow line, and force cars traveling in
       both directions to their respective shoulders to
       avoid being hit. We see it run multiple red lights
       and travel for considerable periods of time in the
       occasional center left-turn-only lane, chased by

                                17
       numerous police cars forced to engage in the same
       hazardous maneuvers just to keep up. Far from
       being the cautious and controlled driver the lower
       court depicts, what we see on the video more
       closely resembles a Hollywood-style car chase of
       the most frightening sort, placing police officers
       and innocent bystanders alike at great risk of
       serious injury.

(footnotes omitted). On that basis,
the Court concluded Scott was entitled to qualified immunity
because his actions were objectively reasonable. The Court
acknowledged that district courts must give the nonmoving
party the benefit of all reasonable inferences at the summary
judgment stage, and that under the District Court’s
determination of which facts were subject to genuine dispute, if
one resolved the disputes in Harris’s favor, “one gets the
impression that [Harris], rather than fleeing from police, was
attempting to pass his driving test.” 

However, the
Court noted its admonition in Anderson v. Liberty Lobby, Inc.,

, 247-48 (1986) that only a genuine dispute of
material fact will preclude summary judgment, and stated that
“[w]hen opposing parties tell two different stories, one of which
is blatantly contradicted by the record, so that no reasonable jury
could believe it, a court should not adopt that version of the facts
for purposes of ruling on a motion for summary judgment.” 

Neither the majority nor the dissent in Scott cited
Johnson or Behrens or discussed the limits of the collateral




                                18
order doctrine in qualified immunity cases.7

        In Scott, although the District Court held that Harris’s
conduct during the chase (other than his speeding) was a fact
subject to reasonable dispute, the Supreme Court disagreed.
Scott would thus appear to support the proposition that, in this
interlocutory appeal, we may exercise some degree of review
over the District Court’s determination that the degree of
resemblance between Andre and Dana’s accomplice is subject
to reasonable dispute. In Scott, however, the District Court was
charged with determining whether the defendants’ conduct was
reasonable under the circumstances, and the Court had before it
a videotape of undisputed authenticity depicting all of the
defendant’s conduct and all of the necessary context that would
allow the Court to assess the reasonableness of that conduct.
Moreover, as the Supreme Court held, the videotape clearly
supported Scott’s version of events, and “blatantly contradicted”
Harris’s. Such a scenario may represent the outer limit of the
principle of Johnson v. Jones—where the trial court’s
determination that a fact is subject to reasonable dispute is
blatantly and demonstrably false, a court of appeals may say so,
even on interlocutory review. Here, by contrast, we have only
two police photographs, and an argument by the defendants not
that the two men depicted are similar in appearance, but that one
of the men depicted in the photographs must be similar in

  7
   It should be noted that the Supreme Court disagreed with the
lower court as to what Harris’s actions actually were, and not
merely with whether his actions could be described as
“dangerous to others.”


                               19
appearance to a third person whose picture we do not have. As
the District Court noted, the photographs show little more than
that “both Omar and Andre Blaylock are young black men who
had short hair at the time their police photographs were taken,”
Blaylock, 

at *7, and, other than the officers’
affidavits stating that they thought they were observing Omar
selling drugs with Dana, there is “no evidence relating to the
physical characteristics of [Dana’s accomplice].” Moreover, as
Andre’s counsel noted at argument, the photographs do not
depict Andre’s or Omar’s height, weight, or build. Thus, unlike
Scott v. Harris, we do not have a situation in which “opposing
parties tell two different stories, one of which is blatantly
contradicted by the record, so that no reasonable jury could
believe it.” Even if we assume that the photographs are so
similar to each other that a police officer could reasonably
mistake one photograph for the other, that does not establish that
no reasonable jury could find that Andre did not resemble
Dana’s accomplice (who is undisputedly not Omar).

       Because the officers make no arguments regarding the
false arrest claim that do not ask us to contradict the District
Court’s determination of which facts are subject to genuine
dispute, we will dismiss that portion of their appeal for lack of
jurisdiction under Johnson v. Jones.

                                V

       For the reasons set forth above, we will vacate the
District Court’s denial of summary judgment on the excessive
force and malicious prosecution claims and remand for further
proceedings in accordance with the supervisory rule we

                               20
established in Forbes v. Lower Merion Twp., 

(3d
Cir. 2002). We will dismiss the remainder of the defendants’
appeal for lack of jurisdiction.




                            21
Nygaard, J., Concurring.

       I fully agree with the majority that we lack jurisdiction to

review the District Court’s denial of qualified immunity on the

false arrest claim. Further, I take no issue with the majority’s

decision to remand this matter to the District Court for further

clarification pursuant the supervisory rule we announced in

Forbes v. Twp. of Lower Merion, 

(3d Cir. 2002).

I write separately, however, out of concern that the majority’s

opinion does not appear to give the District Judge the full

benefit of her analysis. The majority believes that the District

Judge failed to understand that the defendants asserted a

qualified immunity defense with respect to all claims. Indeed,

Judge Shapiro specifically held that the police officer defendants

“have asserted qualified immunity on the false arrest claim

only.” If indeed the District Judge did not understand upon

which claims the police officers sought qualified immunity, I

                               22
empathize. In their memorandum in support of their motion for

qualified immunity, the police officers acknowledge that

Blaylock’s claims rest “on his contention that he was arrested

without probable cause for someone else’s misdeeds.” Further,

they characterize Blaylock’s claims this way: “what plaintiff

does claim is that the defendants arrested the wrong person.”

Nowhere in their principal discussion of the case do the police

officers mention or characterize Blaylock’s excessive force or

malicious prosecution claims.

       In reviewing what I believe to be inartfully drafted

motions and memoranda filed in the case, I am left with some

question as to precisely what the officers are arguing. For

example, as to Officer Walker, they argue that “in simple terms,

plaintiff was arrested upon probable cause and his claims under

Section 1983 and under state law for false arrest fail for that

reason.” Clearly, the police officers argue for the imposition of

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qualified immunity on the false arrest claim. Just as clearly,

they make no mention of the malicious prosecution claim. With

respect to the excessive force claim against Officer Walker, the

officers do not seem to assert qualified immunity at all, stating

“plaintiff has no claim against Officer Walker for use of

excessive force because no such claim . . . was asserted in the

second amended complaint.” This could be understood as

asking for judgment in his favor based on a perceived waiver.

       Next, the defendants discuss Officer Brian Reynolds.

Here again, they maintain that “[p]laintiff alleges excessive

force in connection with his arrest, but can offer no evidence to

support that claim.” They make only a passing reference to the

excessive force claim, without identifying that claim or

mentioning qualified immunity: “insofar as he was required to

lie down and was handcuffed during the search, that level of

force is lawful as a matter of law.”

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       Things are argued a bit differently with Officer

Liciardello. Here, the defendants submit that “Plaintiff alleges

excessive force by Officer Liciardello in connection with this

arrest, but can offer no evidence to support that claim.” No

mention is made of the false arrest claim or the malicious

prosecution claim.

       Two defendants remain: Officers Cujdik and Malkowski.

As to Cujdik, the defendants make arguments that do not appear

to touch on any of Blaylock’s claims. First, the officers argue

that “none of Cujdik’s actions [in observing various drug

transactions], implicate any rights of the plaintiff.” I view this

as an attempt to argue that Cujdik has qualified immunity on the

false arrest claim because the officer’s argument continues,

“Plaintiff claims not to have been present for those transactions,

and he certainly cannot claim that officer Cujdik harmed him in

any way in reporting what he saw.” The remaining defendant is

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Officer Malkowski. Here, the officers argue that the absence of

any allegations in the second amended complaint against

Malkowski entitle him to summary judgment. It is unclear to

me, however, whether they argue this entitlement is based on

qualified immunity, or simply the absence of any allegations

against Malkowski.

       The majority’s opinion indicates that “although the

officers focused most of their briefing on the false arrest claim,

they also argued that they were entitled to qualified immunity on

the excessive force claim and malicious prosecution claims.”

After reviewing their motion for qualified immunity, I am not

certain that the District Court erred by concluding that

“defendants have asserted qualified immunity on the false arrest

claim only.” However, because the motion and memoranda are

far from clear, I do not object to remanding the cause to the

District Court for it to clarify its reasons for denying qualified

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immunity as to claims for excessive force and malicious

prosecution, if indeed it finds such claims to have been properly

raised in the first place.




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