YVETTE KANE, Chief Judge.
On May 4, 2009, this Court granted Defendants' motion for summary judgment and denied Plaintiff's motion for summary judgment. (Doc. No. 40, 2009 WL 1230309.) Plaintiff appealed to the United States Court of Appeals for the Third Circuit. (Doc. No. 42.) On October 4, 2010, the Third Circuit affirmed this Court's order in part and vacated the order in part. Kelly v. Borough of Carlisle, 622 F.3d 248, 256-58 (3d Cir.2010). The Third Circuit remanded the matter to this Court to make additional factual findings and to reconsider its order granting Defendant David Rogers's motion for summary judgment on Plaintiff's Fourth Amendment claims. Id. For the reasons stated more fully herein, the Court will deny Defendant's motion for summary judgment.
On May 24, 2007, in Carlisle, Pennsylvania, Plaintiff Brian Kelly was riding as a passenger in a truck driven by his friend Tyler Shopp. (Doc. No. 24 ¶ 1.) Defendant David Rogers, a police officer for the Carlisle Police Department, initiated a traffic stop after he observed Shopp speeding and operating a vehicle that appeared to be in violation of an ordinance regulating vehicle bumper height. (Doc. No. 27 ¶ 2.) Plaintiff, who was carrying a hand-held video camera, turned on the camera and began to record Defendant. (Id. ¶¶ 3-4.) Plaintiff kept the camera in his lap at all times when Defendant was at the truck.
Near the end of the traffic stop Defendant told Plaintiff and Shopp that the stop was being recorded by a dashboard camera on the police car and a microphone in Defendant's shirt pocket. (Doc. No. 27 ¶ 6.) As shown in the videotape, after Defendant returned to Shopp's truck with a citation, Shopp began to question Defendant regarding how many "points" he would receive for the cited violations. (Doc. No. 29.) As Defendant began to answer Shopp's question, he stopped and demanded that Plaintiff cease recording and surrender the videotape. (Doc. No. 29.) Plaintiff complied. (Doc. No. 27 ¶ 8.) Defendant returned to his police vehicle and called Assistant District Attorney John Birbeck to determine whether Plaintiff's actions violated the Pennsylvania Wiretapping and Electronic Surveillance Control Act, 18 Pa. Cons.Stat. § 5701 et seq., and if so, to receive permission to file appropriate charges. (Doc. No. 27 ¶¶ 9-12.)
As ADA Birbeck explained in his uncontested testimony, it is the policy of the Cumberland County District Attorney's Office to require police officers to receive approval prior to making certain types of arrests. (Hearing Transcript.) ADA Birbeck explained that during the call Defendant relayed the facts to him and asked him whether those facts gave rise to probable cause to arrest Plaintiff for a Wiretap Act violation. (Hearing Transcript.) ADA Birbeck believed the facts did give rise to probable cause and as a result gave Defendant an approval number to charge Plaintiff with a violation of the Wiretap Act. (Hearing Transcript.) In his deposition ADA Birbeck indicated that Defendant did not affirmatively state that he was videotaping the stop in accordance with standard Carlisle Police Department procedure. (Doc. No. 33-4, Ex. G at 7:16-21.)
Rule 56(a) of the Federal Rules of Civil Procedure provides that summary judgment is warranted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(a).
The moving party has the initial burden of identifying evidence that it believes
In its opinion remanding this matter, the Court of Appeals outlined three questions for this Court's consideration. The first two questions are questions of fact, namely: (1) whether Plaintiff hid the camera and was in fact "secretly" recording Defendant during the stop; and (2) whether Defendant called ADA Birbeck to seek legal advice. Kelly, 622 F.3d at 256. The third question is a question of law. The Court of Appeals held that it was clearly established that probable cause did not exist to arrest Plaintiff for a violation of the Pennsylvania Wiretap Act. In light of this holding, the court of appeals asked this Court to determine "how the Pennsylvania Wiretap Act fits into the landscape painted" by cases holding that police officers generally have a duty to know the basic elements of the laws they enforce. Id. at 258. The Court interprets this directive as requiring it to determine whether Defendant's erroneous probable cause determination was unreasonable as a matter of law and therefore not entitled to qualified immunity. Because an affirmative response to the legal inquiry would obviate the need for any further findings of fact, the Court will consider this issue first. Then, if necessary, the Court will make the findings of fact ordered by the court of appeals.
In its order remanding this matter, the court of appeals found that:
Id. at 258. The court of appeals further observed that "police officers generally have a duty to know the basic elements of the laws they enforce." Id. (citing Lawrence v. Reed, 406 F.3d 1224, 1234 (10th Cir.2005); Peterson v. City of Plymouth, 945 F.2d 1416, 1420-21 (8th Cir.1991); Hall v. Ochs, 817 F.2d 920, 924 (1st Cir. 1987)). Against this background, this Court must determine whether these findings must necessarily lead to the conclusion that qualified immunity is unavailable to Defendant Rogers. The Court concludes that they do not.
Applying the Third Circuit's observation that police officers generally have a duty to know the elements of the laws they enforce as a starting point, the Court acknowledges that there exist exceptions to this general rule. Indeed, in establishing the general rule that police officers are required to know clearly established law the United States Supreme Court noted that the rule is not absolute. Harlow v. Fitzgerald, 457 U.S. 800, 818-19, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) (holding that in extraordinary circumstances where a police officer "neither knew nor should have known of the relevant legal standard" qualified immunity may still be available). In Amore v. Novarro, 624 F.3d 522 (2d Cir.2010), the United States Court of Appeals for the Second Circuit considered when a police officer could still be entitled to qualified immunity when making a probable cause determination that was contrary to clearly established law. The Second Circuit concluded that:
Id. at 535-36 (internal citations omitted); see also Lawrence v. Reed, 406 F.3d 1224, 1237 (10th Cir.2005) (Hartz, J., dissenting).
In Amore v. Novarro, a police officer arrested an individual for a crime that had been ruled unconstitutional nearly twenty years prior to the arrest. 624 F.3d at 522. In that case, Amore offered to perform a sexual act on Novarro, a police officer, in a public park on October 19, 2001. Id. at 526. Novarro consulted another police officer's copy of the New York Penal Law, and charged Amore with loitering in violation of New York Penal Law § 240.35(3). Id. at 527. Although the loitering statute was still contained in the copy of the New York Penal Law that Novarro consulted, the New York Court of Appeals ruled the statute unconstitutional in 1983, People v. Uplinger, 58 N.Y.2d 936, 460 N.Y.S.2d 514, 447 N.E.2d 62 (1983). Amore, 624 F.3d at 527. Amore sued Novarro under 42 U.S.C. § 1983 alleging false arrest, and Novarro invoked the defense of qualified immunity. Id. The district court denied summary judgment,
Looking to Judge Learned Hand, the Court of Appeals reversed. In Gregoire v. Biddle, the Judge Hand explained that:
177 F.2d 579, 581 (2d Cir.1949). Relying on this reasoning, the court in Amore held that because Novarro "acted deliberately and rationally in seeking to determine the then-valid, applicable and enforceable law before taking the actions for which the plaintiff now seeks to hold him accountable, we cannot say that Novarro's arrest of Amore was objectively unreasonable." Amore, 624 F.3d at 535. Accordingly, the Second Circuit held that even where a defendant violates a clearly established right, he may still be entitled to qualified immunity in limited circumstances. Id.; see also Friedman v. Boucher, 580 F.3d 847, 859 (9th Cir.2009) (holding that a police officer is not entitled to qualified immunity based on his reliance on a prosecutor's advice when the law is "clearly established and would be known to a reasonable officer in the circumstances" (quoting Stevens v. Rose, 298 F.3d 880, 884 (9th Cir.2002)) (emphasis added)).
In the present case, a finding that the Defendant is not, as a matter of law, entitled to qualified immunity solely because he made an erroneous probable cause determination regarding a statute that was clearly established would unfairly burden police officers and "dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties." See Gregoire, 177 F.2d at 581. Although the law in this matter was clearly established and showed that Defendant did not have probable cause to make an arrest, the Court cannot conclude that Defendant must be denied qualified immunity on this basis. As the court of appeals noted in this matter:
Kelly, 622 F.3d at 255. This is especially true in the context of statutes, such as the Wiretap Act, that the average "cop on the beat" would not confront on a regular basis.
Having determined that Defendant may still be entitled to qualified immunity even though he made an error of clearly established law, the Court now turns to the factual issues identified by the Court of Appeals to be addressed on remand. In its initial review of this case, this Court found that "[i]t is disputed whether the camera was in plain view or was covered by Plaintiff's hands." (Doc. No. 40 at 2.) However, the Court further found that, viewing the facts in the light most favorable to Plaintiff, "Defendant knew he was being videotaped the entire time and therefore had no reasonable expectation of privacy in the traffic stop." (Doc. No. 40 at 8.) Nevertheless, the Court of Appeals directed that this Court make findings on the issue of whether Defendant was aware that he was being recorded when he initially approached the car. Accordingly, the Court reaffirms its finding that, for purposes of the motion for summary judgment, Defendant knew he was being recorded and relies on this finding in resolving Defendant's motion for summary judgment.
Upon further review, however, there are issues concerning the content of the phone call that create genuine issues of material fact for a jury to resolve. First, there is a question of fact regarding whether Defendant misled ADA Birbeck by informing Birbeck that Plaintiff was surreptitiously recording Defendant. (Doc. No. 53 at 22.) Defendant contends the recording device was hidden. Further, Shopp, who was sitting next to Plaintiff in the truck, testified that he was unaware that Plaintiff was recording the stop and believed Defendant was unaware that he was being recorded. (Doc. No. 33-3, Ex. B at 11-14.) However, Plaintiff's statements to the contrary create an issue of fact regarding whether Defendant's statement to ADA Birbeck was truthful. A finding that Plaintiff was not surreptitiously recording Defendant may support a finding that Defendant intentionally misled ADA Birbeck, thus calling into question Defendant's good faith reliance on ADA Birbeck's advice in charging Plaintiff. See Cox v. Hainey, 391 F.3d 25, 36 (1st Cir.2004);
In addition, there is a question of material fact regarding whether Defendant told ADA Birbeck that he was also recording the stop. Whether Defendant was recording the stop is material to the question of whether there was probable cause to make an arrest, as it goes directly to the question of whether Defendant had a reasonable
Having made the findings required by the Third Circuit, the Court will now reconsider its order granting Defendant's motion for summary judgment on the Fourth Amendment issue. The Court will first briefly review the qualified immunity standard and then apply this rule to the facts in this case viewed in a light most favorable to Plaintiff.
The Supreme Court has held that "where the defendant seeks qualified immunity, a ruling on that issue should be made early in the proceedings so that the costs and expenses of trial are avoided where the defense is dispositive." Saucier v. Katz, 533 U.S. 194, 200, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). Preferably, qualified immunity determinations are made at the summary judgment stage to ensure that qualified officers receive the benefit of immunity from suit as well as immunity from liability. Carswell v. Borough of Homestead, 381 F.3d 235, 241 (3d Cir. 2004); see also Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 815, 172 L.Ed.2d 565 (2009) (noting that "[b]ecause qualified immunity is an immunity from suit rather than a mere defense to liability . . . it is effectively lost if a case is erroneously permitted to go to trial" (internal citations omitted)). Qualified immunity is a question of law for the Court and requires the Court to ask two questions: (1) whether, when considering the facts in the light most favorable to the plaintiff, the officer's conduct violated a constitutional right; and (2) whether the constitutional right at issue was clearly established at the time of the arrest. Pearson, 129 S.Ct. at 815-16; Saucier, 533 U.S. at 200-02, 121 S.Ct. 2151; Gilles v. Davis, 427 F.3d 197, 205 (3d Cir.2005).
"The second prong of the qualified immunity analysis is focused upon whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Egolf v. Witmer, 526 F.3d 104, 110 (3d Cir.2008). Qualified immunity determinations should take into account the entire episode and allow for cases where officers "reasonably but mistakenly conclude that probable cause to make an arrest is present . . . . [I]n such cases, those officers . . . will not be held personally liable." Orsatti v. N.J. State Police, 71 F.3d 480, 483 (3d Cir.1995). Thus, "the qualified immunity doctrine gives ample room for mistaken judgments by protecting all but the plainly incompetent or those who knowingly violate the law." Id. at 483; Carswell, 381 F.3d 235. The Supreme Court recently determined that the two prongs of the qualified immunity inquiry may be taken up in either
On appeal in this matter the Third Circuit held that "a police officer who relies in good faith on a prosecutor's legal opinion that the arrest is warranted under the law is presumptively entitled to qualified immunity from Fourth Amendment claims premised on a lack of probable cause." Kelly, 622 F.3d at 255-56. Of course, that reliance must be "objectively reasonable." Id. Plaintiff may rebut the presumption by showing that a reasonable officer would not have relied on the prosecutor's advice. Id. at 256. Moreover, the Second Circuit has held that where an officer acts "deliberately and rationally in seeking to determine the then-valid, applicable and enforceable law before taking the actions for which the plaintiff [] seeks to hold him accountable," qualified immunity may still be available. Amore, 624 F.3d at 535.
In the case at bar, the Court is bound to assume certain facts. First, it must assume that during the stop Plaintiff made an audio and visual recording of Defendant. Plaintiff did not request Defendant's permission to make the recording, nor did Plaintiff tell Defendant he was making the recording. Plaintiff, sitting in the passenger seat as Defendant was standing on the driver's side of the car, kept the camera in his lap the entire time Defendant was at the car. The Court must further assume, however, that although Plaintiff's hands were in his lap, his hands were not covering the camera. In addition, Defendant saw Plaintiff holding the camera measuring approximately two inches wide by four inches long by two inches tall at the outset of the stop and did not object to the recording until after issuing Shopp a traffic citation. Before arresting Plaintiff, Defendant confiscated the camera and called ADA Birbeck. Defendant informed ADA Birbeck that he had pulled over a truck for a traffic violation and that the passenger in the truck had been secretly recording him without his permission. Defendant did not inform ADA Birbeck that pursuant to standard Carlisle Police Department procedure he was also recording the stop. After relaying these facts, Defendant asked if the conduct gave rise to a Wiretap Act violation. After reviewing the statute, ADA Birbeck informed Defendant that there was probable cause for an arrest and gave Defendant an approval number to charge Plaintiff.
As the Court previously explained, when viewed in a light most favorable to Plaintiff, these facts could give rise to the conclusion that Defendant deliberately misled ADA Birbeck when he called for permission to charge Plaintiff. If a jury concluded that Defendant misled ADA Birbeck to secure an approval to arrest, then the Court could not conclude that Defendant relied in good faith on ADA Birbeck's advice. See Kelly, 622 F.3d at 255-56. Accordingly, although qualified immunity should be decided at the earliest possible stage in the litigation, Anderson v. Creighton, 483 U.S. 635, 646 n. 6, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987), the outstanding dispute of material fact prevents the Court from making the qualified immunity determination at summary judgment. See, e.g., Curley v. Klem, 298 F.3d 271, 278-79 (3d Cir.2002). This is not to say that Defendant is not entitled to qualified immunity. Rather, the Court concludes that it requires a jury to resolve the outstanding questions of fact identified in this memorandum prior to making the qualified immunity determination.
In this Court's prior order, after granting summary judgment on all federal
Applying the newly adopted standard for evaluating police officer reliance on legal advice, this Court must conclude that Defendant is not entitled to qualified immunity at this stage of the proceedings. Factual disputes bearing on Defendant's good faith and reasonableness in relying on ADA Birbeck's legal advice remain outstanding in this matter. The Court requires a jury to resolve these disputes. Accordingly, although qualified immunity may ultimately shield Defendant from liability, the Court cannot grant his motion for summary judgment.
The Court further notes that ADA Birbeck and a magistrate judge, both of whom are learned in the law, found that the facts confronted by Defendant gave rise to probable cause. The Court would also be remiss if it did not note that as recently as last year, a federal district court in the Western District of Pennsylvania held that "Pennsylvania law is not so clear so as to proclaim that citizens are permitted to record police officers carrying out their official duties." Matheny v. Cnty. of Allegheny, No. 09-1070, 2010 WL 1007859, at *9 (W.D.Pa. Mar. 16, 2010); see also Commonwealth v. McIvor, 448 Pa.Super. 98, 670 A.2d 697, 704 n. 5 (1996) (noting that it would violate the Wiretap Act for a motorist to record a police officer during a traffic stop).
