Reed Dempsey v. Bucknell University , 834 F.3d 457 ( 2016 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 15-1328
_____________
REED C. DEMPSEY;
SHELLEY DEMPSEY
v.
BUCKNELL UNIVERSITY; JOHN C. BRAVMAN;
LEWIS A. MARARRA; DANIEL C. REMLEY;
AMY A. BADAL; LINDA LOCHER; KARI M. CONRAD;
MICHAEL SMYER; CHIEF JASON FRIEDBURG;
OFFICER JULIE HOLTZAPPLE;
OFFICER DARRELL FISHER;
OFFICER ROBERT ULMER;
OFFICER JAMES MIDDLETON; OFFICER JED RISHEL;
DETECTIVE JEFFREY ETTINGER;
CAPTAIN DOUGLAS LAUVER; ANTHONY J. VOCI, JR.
Reed C. Dempsey,
Appellant
_______________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(District Court No. 4-11-cv-01679)
District Judge: Honorable Matthew W. Brann
_______________
Argued: January 26, 2016
Before: VANASKIE, SHWARTZ, and KRAUSE, Circuit
Judges
(Opinion Filed: August 22, 2016)
_______________
Dennis E. Boyle, Esq. [ARGUED]
Kenneth E. Raleigh, Esq.
Fox Rothschild
1030 15th Street, N.W.
Suite 360 East
Washington, DC 20005
Counsel for Appellants
Amy C. Foerster, Esq.
Bucknell University
217A Marts Hall
Lewisburg, PA 17837
James A. Keller, Esq. [ARGUED]
Saul Ewing
1500 Market Street
Centre Square West, 38th Floor
Philadelphia, PA 19102
2
Cory S. Winter, Esq.
Saul Ewing
Two North Second Street
Penn National Insurance Tower, 7th Floor
Harrisburg, PA 17101
Counsel for Appellees
_______________
OPINION OF THE COURT
______________
KRAUSE, Circuit Judge.
Reed Dempsey brought a civil rights action under 42
U.S.C. § 1983 against Bucknell University, Bucknell
University Public Safety (“BUPS”)1 officers, and Bucknell
University officials (collectively, the “Bucknell Defendants”)
claiming violations of his Fourth Amendment right to be free
from unlawful search and seizure. Because we agree with the
District Court that, even taking into account certain facts
recklessly omitted from the affidavit of probable cause, a
reasonable jury could not find a lack of probable cause, we
will affirm the District Court’s grant of summary judgment in
favor of the Bucknell Defendants.
I. Background
1
Although Bucknell University is a private institution,
BUPS officers are sworn police officers pursuant to 22 Pa.
Cons. Stat. § 501. For this reason, their official actions are
taken “under color of state authority” for purposes of § 1983.
Henderson v. Fisher, 631 F.2d 1115, 1118-19 (3d Cir. 1980).
3
A. Factual History
On Sunday, September 5, 2010, BUPS officer Julie
Holtzapple received a phone call from the father of a
nineteen-year-old Bucknell undergraduate, Kelly
Stefanowicz, reporting that she had been assaulted by a
fellow student, Reed Dempsey, on campus in the early hours
of that day. Officer Holtzapple requested that Stefanowicz
come to the BUPS office to speak with her and other officers
about the incident, which Stefanowicz did. In that interview,
Stefanowicz gave a detailed account of the incident. She
explained that, after a night out during which both she and
Dempsey had consumed alcohol, the two began playfully
“wrestling,” first in Kelly’s room, then in the hallway of their
shared residence hall, and finally in Dempsey’s room, where
other students were gathered. J.A. 322. When the other
students left the two alone, Dempsey “picked [Stefanowicz]
up and . . . put [her] on the futon” in his room, got on top of
her, and put her hands over her head. J.A. 322. Stefanowicz
told the officers that Dempsey “was . . . getting off to it” and
that “he was . . . hard to it.” J.A. 327. She stated that they
then struggled on the futon, and she “br[oke] free from him”
and ran into the hall where other students were gathered. J.A.
322. Stefanowicz explained that when she entered the hall,
she was laughing because she was out of breath and “in
shock,” but that when Dempsey caught up to her in the hall
she “five-starred [i.e., slapped,] him right across the face” and
told him to “leave [her] alone” in front of the other students.
J.A.322, 324. She reported that as she was walking away
from him, he grabbed both of her arms, causing her to fall,
and “tackled” her to the ground, where she struggled,
sustaining large scrapes and bruises to her face and shoulder,
which were visible to the officers who interviewed her. J.A.
4
324. She told the officers that she also had marks and bruises
in several other places, including her “inner thigh,” “butt,”
and “boobs,” as a result of the incident. J.A. 324-25.
Stefanowicz also recounted in this interview that after
she had returned to her room, her resident advisor (“R.A.”), a
fellow Bucknell undergraduate, came by her room, asked her
if she was going to file a report, and “kind of just . . .
laughed.” J.A. 325. She then showed the interviewing
officers three text messages that she had received from
Dempsey after the incident: one at 2:43 AM that read,
“Sorry…I’m bleeding in several places and bruises all
over…but that was unnecessary on my part”; one at 3:35 AM
that read, “I honestly feel horrible…I’m so sorry”; and one at
5:11 PM that read, “Are you alright?” J.A. 335. Following
the interview, Stefanowicz went to a nearby hospital for a
medical examination in which staff noted injuries to her
“head,” “chest,” and “right lower extremity” and took
photographs documenting these injuries. J.A. 851.
That same day, another BUPS officer contacted
Dempsey, who agreed to meet for an interview regarding the
incident. Dempsey gave the interviewing officers a written
statement he had prepared, as well as an oral interview.2 As
reflected in the incident report, Dempsey told the officers that
after a night out with friends, he returned to his residence hall,
that he and Stefanowicz “started wrestling around in
[Dempsey’s] room,” as they had done in the past, and that “it
started to get more intense and Stefanowicz punched him in
2
The record on appeal contains neither a copy of this
written statement nor a transcript of the interview. The only
documentation of these statements appears in a summary
entered into the BUPS incident report.
5
the groin.” J.A. 268. According to Dempsey, although his
roommate, Wade Payson-Denney, and his roommate’s friend,
Gabriela Ors, were in the room with them “pretty much the
whole time,” there was a period of “about a minute” during
which he and Stefanowicz were alone in the room, and “that
is when he got punched in the groin.” J.A. 268. Dempsey
stated that Stefanowicz then got up and went into the hallway,
and he followed her and “asked her to come back and she
wouldn’t so he caught up to her and . . . placed his arms
around her and gave her a bear hug,” causing the two of them
to fall forward. J.A. 268. Dempsey explained that at that
time he expressed concern “that he hurt her and that he would
be in trouble,” and Stefanowicz told him “she was not going
to press charges or get him in trouble.” J.A. 268. Dempsey
reported, however, that “[a]fter everything started to die
down . . . Stefanowicz would walk by him and either slap or
punch him in the back to try and get him going again.” J.A.
268-69. Dempsey stated that at that point, he “went back to
his room and stayed there the rest of the night.” J.A. 269.
Following the leads from Stefanowicz’s and
Dempsey’s interviews, BUPS obtained written statements
from a number of people who had witnessed parts of what
occurred first-hand or had spoken to Stefanowicz or Dempsey
soon after the incident. These included, among others, fellow
Bucknell undergraduates Morgan Slade, Demitri Carahalios,
Wade Payson-Denney, Gabriela Ors, Kristen Brundage,
Gregory Fast, Raina Masand, Andrew Watts, Rebecca
Neubauer, and Stefanowicz’s R.A., Michael Sena. BUPS
also obtained a written statement from Stefanowicz
recounting the incident.
Based on this evidence, on September 7, 2010, BUPS
filed a criminal complaint, accompanied by an affidavit of
6
probable cause signed by Officer Holtzapple, charging
Dempsey with simple assault, harassment, and disorderly
conduct in violation of Pennsylvania law. On the basis of that
complaint and affidavit, the magistrate issued a warrant, and
Dempsey was arraigned that same day. The affidavit
provided the following distillation of the results of the BUPS
officers’ investigation into the incident3:
On Sunday, September 5, 2010 at
approximately 1957 hours, Officer Darrel
Fisher, Officer Robert Ulmer and Officer Jule
Holtzapple, all are officer’s currently with the
Bucknell University Department of Public
Safety/ Police Department, spoke with Kelly
Stefanowicz.
Kelly Stefanowicz interview is as follows:
On Sunday, September 5, 2010, at
approximately 0200 hours, Kelly walked home
with two of her friends, Morgan Slade and
Demitri Carahalios, to her room, 166 Smith
Hall, Bucknell University, Lewisburg Pa.
17837.
Before entering her room, Kelly had pointed at
Reed Dempsey. Reed then proceeded into
Kelly’s room and hung out with Kelly, Morgan,
and Dimitri. Kelly stated that Reed and she
began to wrestle playfully in her room. Kelly
3
The affidavit is reprinted without typographical
corrections.
7
stated she was not intimidated by Reed at this
time and believed wrestling to be playful.
Kelly stated that after a short time Reed had
picked her up and carried her over his shoulder.
Reed Dempsey carried Kelly Stefanowicz into
his room, which is Smith 138, Bucknell
University, Lewisburg Pa. 17837.
Two people were in Reed’s room at this time,
roommate Wade Payson-Denny and Gregory
Fast. Kelly stated that Reed put her down from
carrying her and sat her on his lap. Reed would
not release Kelly from his lap and held her
down, making her sit on his lap.
Kelly stated shortly after this happened, both
Wade Payson-Denny and Gregory Fast left
Reed Dempsey room. Reed’s room door shut
automatically, after both men left the room.
Kelly stated that at this time she no longer felt
safe around Reed. Kelly stated that Reed’s
behavior had turned instantly. It was at this
time that Reed picked Kelly up from sitting on
his lap and threw her onto a futon in the room.
Reed laid on top of Kelly keeping her from
sitting up. Kelly stated she attempted to push
Reed off of her. He grabbed both of Kelly’s
hands and held them forcefully above her head.
Kelly stated that Reed’s penis was now erect
under his clothes. He was on top of her and
pinning her to the futon. Kelly believes that
Reed was excited and that he was in total
8
control of her. Kelly began to yell at Reed “to
get off of me” and “just stop it.” She was in
fear of getting raped by Reed. Kelly was able
to release one of her hands and slapped Reed
across the face. Kelly and Reed then rolled off
of the futon, falling to the floor.
It was at this time that Kelly fell to the ground
and landed on top of Reed. Kelly was able to
get off of the ground, open the closed door, and
run out into the hallway.
As she was walking away from Reed, and
ignoring him, as he was calling for her to come
back into his room. Kelly stated that people in
the hallway were laughing at Reed and making
fun of him because Kelly had turned him down
in his room.
Reed next grabbed Kelly’s arm and began to
pull on it. Kelly attempted to get away from
Reed by pulling away from him. Reed then
grabbed both of Kelly’s arms and held them
behind him. Reed then fell onto Kelly, causing
her to fall to the floor, landing on the left side of
her face and also her right shoulder. Reed then
stood up. Kelly then proceeded to her room,
166 Smith Hall, Bucknell University, to end this
encounter.
Kelly displayed text messages from Reed
following this incident. Text messages were
sent at 0243 hours, 0335 hours, and 0511 hours.
Photographs were taken of messages on phone
9
from Reed. These messages related to remorse
for this incident and he was checking on her
welfare.
Kelly Stefanowicz wants to proceed with
criminal charges in this case. Medical treatment
was obtained at Evangelical Community
Hospital, 1 Hospital Drive, Lewisburg Pa.
17837. Photographs and medical report will be
obtained on Wednesday, September 8, 2010.
J.A. 452-53.
After Dempsey’s initial arraignment, BUPS officers
continued to investigate the case. In her September 5
interview, Stefanowicz had told the officers that she was
aware of an earlier incident between Rebecca Neubauer,
another Bucknell undergraduate, and Dempsey, where
Neubauer was “extremely intoxicated” and Dempsey “t[ook]
advantage of her.” J.A. 324. Following up on this
information, Officer Holtzapple interviewed Neubauer on
September 8. In that interview and a written statement,
Neubauer indicated that Stefanowicz’s version of events was
not the “full story” and that she had “nothing to speak about
that would be relevant to Kelly’s incident.” J.A. 275.
On September 9, BUPS officers conducted a second
interview with Stefanowicz in which she discussed in greater
detail the sexual component of the alleged assault against her.
The following day, BUPS officers filed a second criminal
complaint adding indecent assault and false imprisonment
charges against Dempsey. The affidavit of probable cause
was substantially the same.
10
After Dempsey’s arraignment on the additional
charges, BUPS officers continued to gather information
related to the allegations, including a second statement by
Gregory Fast. Specifically, the BUPS incident report reflects
that following his written statement on September 5, Fast
gave an interview on September 12 in which he stated that he
saw Dempsey and Stefanowicz “on a futon wrestling” and
that Stefanowicz “appeared as if she was trying to pin
Dempsey.” J.A. 284. The incident report also suggests,
based on this statement, that Fast may have entered the room
while Dempsey and Stefanowicz were alone.
On October 29, 2010, the District Attorney of Union
County, Pennsylvania, Peter Johnson, withdrew all the
charges against Dempsey. In a statement reported by a local
news outlet, Johnson explained that “[t]he nature of the
alleged crime and the surrounding circumstances make it
difficult to prove what happened beyond a reasonable doubt.”
J.A. 535.4
B. Procedural History
On September 6, 2011, nearly a year after the incident,
Dempsey and his mother, Shelley Dempsey, brought suit
against the Bucknell Defendants in the United States District
Court for the Middle District of Pennsylvania under 42
U.S.C. § 1983. In their 18-count complaint, the Dempseys
4
Prior to the withdrawal of the criminal charges,
Stefanowicz and Dempsey initiated student conduct
proceedings against each other pursuant to Bucknell
University’s internal procedures. As a result of those
proceedings, both were found guilty of disorderly conduct.
11
asserted claims of false arrest, malicious prosecution, false
imprisonment, supervisory liability, and violations of Title
IX, as well as accompanying civil conspiracy and state law
tort and breach of contract claims against the Bucknell
Defendants. The District Court dismissed nine of these
claims and then, after discovery, granted summary judgment
to the Bucknell Defendants on the remaining claims.5
Dempsey v. Bucknell Univ., 76 F. Supp. 3d 565, 570 (M.D.
Pa. 2015), amended in part, No. 4:11-CV-1679, 2015 WL
999101 (M.D. Pa. Mar. 6, 2015).
On appeal, Dempsey contends that the District Court
erred in granting summary judgment on his false arrest,
malicious prosecution, false imprisonment, and supervisory
liability claims. Specifically, he argues that although the
District Court properly determined that Officer Holtzapple
recklessly omitted information from the affidavit of probable
cause supporting the criminal complaint against Dempsey, the
District Court incorrectly concluded that the omitted
5
In the same complaint, the Dempseys also brought a
claim of defamation against Anthony Voci, an attorney acting
on behalf of the Stefanowiczs, based on statements he made
to the media and to Bucknell University officials. The
District Court denied summary judgment on that claim, but
determined that “[t]he claims against the Bucknell Defendants
and Defendant Voci do not raise the same legal questions, nor
do they depend upon proof of the same facts.” Dempsey v.
Bucknell Univ., No. 4:11-CV-1679, 2015 WL 999101, at *2
(M.D. Pa. Mar. 6, 2015). Accordingly, the District Court
entered a final judgment pursuant to Fed. R. Civ. P. 54(d) as
to the claims against the Bucknell Defendants only, and thus
those are the only claims we may consider in this appeal.
12
information was not material to the probable cause
determination. Because none of Dempsey’s four claims
survives if there was probable cause for the charges against
him, our conclusion on that question is dispositive of this
appeal.
II. Jurisdiction & Standard of Review
The District Court had jurisdiction over Dempsey’s
§ 1983 claims pursuant to 28 U.S.C. § 1331, and we have
jurisdiction under 28 U.S.C. § 1291. Our review of the
District Court’s grant of summary judgment is plenary.
Reedy v. Evanson, 615 F.3d 197, 210 (3d Cir. 2010). We will
affirm the District Court only if we conclude “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). We must view the facts in the light most favorable to
Dempsey, and he “is entitled to every reasonable inference
that can be drawn from the record.” Merkle v. Upper Dublin
Sch. Dist., 211 F.3d 782, 788 (3d Cir. 2000). We do not
weigh the evidence; rather, we determine “whether the
evidence of record is such that a reasonable jury could return
a verdict for the nonmoving party.” Reedy, 615 F.3d at 210.
Thus, in this case, summary judgment is only appropriate if
“a reasonable jury could not find a lack of probable cause.”
See Montgomery v. De Simone, 159 F.3d 120, 124 (3d Cir.
1998) (citing Deary v. Three Un-Named Police Officers, 746
F.2d 185, 191 (3d Cir. 1984)).
13
III. Discussion
A. Legal Standards
Before turning to the facts of the case at hand, we
address the legal standards governing our inquiry: probable
cause and the procedure district courts are expected to use
when reviewing a probable cause determination underlying a
warrant.
1. Probable Cause
The Fourth Amendment prohibits police from making
an arrest except “upon probable cause, supported by Oath or
affirmation.” U.S. Const. amend. IV. Far from demanding
proof of guilt beyond a reasonable doubt, “[p]robable cause
exists if there is a ‘fair probability’ that the person committed
the crime at issue.” Wilson v. Russo, 212 F.3d 781, 789 (3d
Cir. 2000) (quoting Sherwood v. Mulvihill, 113 F.3d 396, 401
(3d Cir. 1997)). Put another way, “probable cause to arrest
exists when the facts and circumstances within the arresting
officer’s knowledge are sufficient in themselves to warrant a
reasonable person to believe that an offense has been or is
being committed by the person to be arrested.” Orsatti v. N.J.
State Police, 71 F.3d 480, 483 (3d Cir. 1995). The probable
cause standard thus provides individuals protection “against
unreasonable searches and seizures,” U.S. Const. amend. IV,
while simultaneously enabling investigating officers to act
quickly—before necessarily obtaining evidence sufficient to
prove guilt beyond a reasonable doubt—to effect an arrest.
“[T]he standard does not require that officers correctly
resolve conflicting evidence or that their determinations of
credibility, were, in retrospect, accurate.” Wright v. City of
Phila., 409 F.3d 595, 603 (3d Cir. 2005).
14
As the Supreme Court has observed, “[i]n dealing with
probable cause, . . . as the very name implies, we deal with
probabilities. These are not technical; they are the factual and
practical considerations of everyday life on which reasonable
and prudent men, not legal technicians, act.” Illinois v. Gates,
462 U.S. 213, 231 (1983) (quoting Brinegar v. United States,
338 U.S. 160, 175 (1949) (alteration in original)). For this
reason, the Court has eschewed “any rigid demand that
specific ‘tests’ be satisfied” and has instead prescribed a
“totality-of-the-circumstances approach” to the probable
cause determination. Id. at 230-31. That determination is
necessarily fact-intensive, and it will usually be appropriate
for a jury to determine whether probable cause existed. See
Sherwood, 113 F.3d at 401 (“Typically, the existence of
probable cause in a section 1983 action is a question of fact.”
(citing Groman v. Twp. of Manalapan, 47 F.3d 628, 635 (3d
Cir. 1995))). Nevertheless, summary judgment may be
granted on the question of probable cause if a court concludes
that “the evidence, viewed most favorably to [the nonmoving
party], reasonably would not support a contrary factual
finding.” Id.6
6
We are satisfied that the District Court correctly
identified and applied this high standard in reaching its
decision, but we note that its citation of the standard for
qualified immunity in the same discussion gives us pause.
The qualified immunity standard inverts the standard
applicable here, providing instead that “there can be no
liability on the part of the arresting officer unless ‘no
reasonably competent officer’ would conclude that probable
cause existed.” Dempsey, 76 F. Supp. 3d at 577 (quoting
Malley v. Briggs, 475 U.S. 335, 341 (1986)). Where, as in
15
There is a tension inherent in evaluating probable
cause at the summary judgment stage. On the one hand, the
summary judgment standard asks whether there is a “genuine
dispute as to any material fact,” Fed. R. Civ. P. 56(a), viewing
the evidence “in the light most favorable to the non-moving
party,” Reedy, 615 F.3d at 210. On the other hand, the
probable cause standard by definition allows for the existence
of conflicting, even irreconcilable, evidence. See, e.g.,
Wright, 409 F.3d at 603. In his brief on appeal, Dempsey
urges us to resolve this tension by omitting from our
consideration of probable cause any facts unfavorable to him
that conflict with favorable facts. For example, as will be
discussed further below, witness statements indicated that the
time Dempsey and Stefanowicz were alone together was
anywhere between one minute and ten minutes, but Dempsey
argues that “in the light most favorable to Mr. Dempsey, the
pair were alone for only one minute.” Appellant’s Br. 36-37.
We reject Dempsey’s proposed approach. While it is
axiomatic that at the summary judgment stage, we view the
facts in the light most favorable to the nonmoving party, it
does not follow that we exclude from the probable cause
analysis unfavorable facts an officer otherwise would have
been able to consider. Instead, we view all such facts and
assess whether any reasonable jury could conclude that those
facts, considered in their totality in the light most favorable to
the nonmoving party, did not demonstrate a “fair probability”
this case, the defendants have not pressed qualified immunity,
that standard should play no role in a district court’s
determination of whether no reasonable jury could find a lack
of probable cause such that summary judgment in favor of the
defendant officers is appropriate.
16
that a crime occurred. Only then would the existence of
conflicting evidence rise to the level of a “genuine dispute as
to any material fact” such that summary judgment would be
inappropriate. Thus, where the question is one of probable
cause, the summary judgment standard must tolerate
conflicting evidence to the extent it is permitted by the
probable cause standard.
2. Reviewing a Probable Cause
Determination
Dempsey contends that the affidavit sworn by Officer
Holtzapple reflected a false version of events and that an
accurate affidavit would not establish probable cause. To
prevail on this claim, Dempsey must make two showings:
first, that the officer, with at least a reckless disregard for the
truth, “made false statements or omissions that create[d] a
falsehood in applying for a warrant,” and second, that those
assertions or omissions were “material, or necessary, to the
finding of probable cause.” Wilson, 212 F.3d at 786-87
(quoting Sherwood, 113 F.3d at 399).
An officer seeking a warrant on the basis of probable
cause must follow a two-step process. First, the officer
swears to an affidavit containing a summary of the events that
she believes give rise to probable cause. In doing so, the
officer “is not free to disregard plainly exculpatory evidence,
even if substantial inculpatory evidence (standing by itself)
suggests that probable cause exists.” Id. at 790 (quoting
Kuehl v. Burtis, 173 F.3d 646, 650 (8th Cir. 1999)). Second,
the officer presents the affidavit to a neutral magistrate, who
conducts his own independent review of the evidence to
determine whether it does, in fact, establish probable cause,
and, if so, issues a warrant.
17
In this way, our system protects the public from the
harm caused by criminals as well as the harm that would
result if no process were required to obtain a warrant; it
allows officers to pursue leads zealously while also ensuring
that an arrest warrant will issue only if “a neutral and
detached magistrate” agrees with the officer that probable
cause exists. Id. at 787 (“[A]n uninterested party is
presumably better suited to review and evaluate the facts than
an officer pursuing a lead.”); see United States v. Leon, 468
U.S. 897, 913-14 (1984) (“[T]he detached scrutiny of a
neutral magistrate . . . is a more reliable safeguard [against
Fourth Amendment violations] than the hurried judgment of a
law enforcement officer . . . .”) (quoting United States v.
Chadwick, 433 U.S. 1, 9 (1977)). If, however, the officer
does not provide the neutral magistrate with an accurate
affidavit of probable cause, the protection afforded by the
magistrate’s review is lost; the magistrate will be unable to
assess the circumstances for probable cause because he will
not know what those circumstances actually are.
In light of the far-reaching and lasting consequences
associated with merely being arrested,7 there is a critical need
for faithful adherence to the process for establishing the
existence of probable cause. Many settings in which
allegations of criminal conduct arise will involve
circumstances that make credibility determinations delicate
7
For a recent scholarly work discussing the wide-
ranging effects of an arrest, arising both inside and outside the
criminal justice system, see Eisha Jain, Arrests As Regulation,
67 Stan. L. Rev. 809, 844 (2015) (noting as one example that
“[a]rrested students whose identities are disclosed may be
subject to lasting stigma”).
18
and difficult. Those circumstances may include the
involvement of alcohol, activities at unusual hours, and pre-
existing relationships between alleged victims and alleged
perpetrators residing in the same community—or even under
the same roof. These considerations underscore how
important it is, where exigencies do not require an immediate
arrest, that officers undertake a careful investigation before
making the serious decision to file a criminal complaint and
that they include in the affidavit all information “‘any
reasonable person would know that a judge would want to
know’ in making a probable cause determination.” Reedy,
615 F.3d at 213 (quoting Wilson, 212 F.3d at 783).
Nevertheless, in reviewing probable cause
determinations made by law enforcement, the role of the
courts is not that of the much-maligned “Monday morning
quarterback” whose critiques are made possible only by the
benefits of hindsight. Rather, federal courts review the record
to ensure that the proper procedure for determining probable
cause was followed. If it was not, the court itself must
engage that procedure and determine whether probable cause
existed in spite of that failure. As we have described in prior
cases, in conducting this analysis, the district court must
identify any improperly asserted or omitted facts and, if it
determines there were reckless misrepresentations or
omissions, “excise the offending inaccuracies and insert the
facts recklessly omitted” from the affidavit and assess
whether the reconstructed affidavit would establish probable
cause. Wilson, 212 F.3d at 789. If it would, the plaintiff’s
claim fails because “even if there had not been omissions and
misrepresentations” in the affidavit presented to the
magistrate judge, there would have been probable cause for
the charges against the plaintiff. Id.
19
Where there are improperly omitted or included facts,
we have previously instructed district courts to perform
literal, word-by-word reconstructions of challenged affidavits.
See id. (discussing “reconstructive surgery required by our
jurisprudence”); Reedy, 615 F.3d at 215 (noting “[t]he
District Court’s approach was correct” where it
“reconstructed the Affidavit” being challenged). This
reconstruction requirement facilitates review of the district
court’s determination as to the existence of probable cause.
Recognizing, however, that our instruction has not been
interpreted consistently as an explicit requirement, we now
clarify that when a court determines that information was
asserted or omitted in an affidavit of probable cause with at
least reckless disregard for the truth, it must perform a word-
by-word reconstruction of the affidavit. 8
In this case, although the District Court conducted the
required two-step analysis for reviewing the probable cause
determination, it did not perform a word-by-word
reconstruction of the affidavit, or at least did not include any
8
We recognize an exception to this requirement: There
may be instances in which reconstruction of the entirety of an
affidavit may be impracticable, e.g., as a result of the
affidavit’s extraordinary length. See, e.g., Lavin v. N.Y.
News, Inc., 757 F.2d 1416, 1417 (3d Cir. 1985) (discussing
165-page affidavit detailing results of an investigation of an
organized crime operation). Where an affidavit is so long that
a word-by-word reconstruction would do more to distract
from than to clarify the court’s holding, the court should
instead identify with particularity the evidence that should be
deleted or inserted and specify where precisely in the affidavit
any alterations should appear.
20
such reconstruction in its decision. For efficiency’s sake and
illustrative purposes, we will conduct this reconstruction
ourselves in this case rather than remand for the District
Court to perform it in the first instance.
B. Analysis
We turn now to the merits of Dempsey’s argument that
the District Court erred in determining that although the
officer recklessly omitted information from the affidavit of
probable cause, there was nevertheless probable cause for the
charges against Dempsey. We follow the three-step
procedure we described in Wilson and Reedy. First, we assess
the evidence the plaintiff asserts was recklessly omitted from
the affidavit. Next, we reconstruct an affidavit that includes
any recklessly omitted information. And finally, we assess
the materiality of the omitted information to the probable
cause determination.
21
1. Reckless Omissions
To determine whether information was recklessly
omitted, we ask whether the officer withheld “a fact in his
ken that ‘[a]ny reasonable person would have known that this
was the kind of thing the judge would wish to know.’”
Wilson, 212 F.3d at 788 (quoting United States v. Jacobs, 986
F.2d 1231, 1235 (8th Cir. 1993)). In doing so, we exercise
“scrupulous neutrality”; we do not engage the “deliberately
slanted perspective” we must use to make the ultimate
determination as to whether summary judgment is
appropriate. Reedy, 615 F.3d at 214 n.24.
Inherent in this inquiry are two requirements. First,
the officer must have knowledge of the information alleged to
have been recklessly omitted. For this reason, we look only
to the information available to the officer at the time of the
swearing of the affidavit of probable cause. Second, the
information must be relevant9 to the existence of probable
9
Although we use the term “relevant,” the
recklessness inquiry could be understood to assess whether
omitted information is “material,” as District Judge Louis H.
Pollak astutely observed in dissent in Wilson. 212 F.3d at 797
(Pollak, J., dissenting) (“It is . . . puzzling that the court
appears to conclude both (1) that it would be unreasonable to
keep the information from the judge, which would seem to
suggest that it could make a difference to a probable cause
inquiry, and (2) that it would be unreasonable to conclude that
the information would have made a difference to probable
cause.”). The Wilson majority, however, concluded the
recklessness inquiry asks only whether the omitted fact bears
on probable cause such that it should be presented to the
magistrate and does not answer the next question as to
22
cause. The relevance requirement “ensures that a police
officer does not ‘make unilateral decisions about the
materiality of information’” by enabling a magistrate to
decide independently, on the basis of an affidavit containing
all relevant information, whether the circumstances give rise
to probable cause. Id. at 213 (quoting Wilson, 212 F.3d at
787). At the same time, however, it recognizes that for
practical reasons courts simply “cannot demand that police
whether it is material to, i.e., whether it would alter, the
magistrate’s ultimate determination as to the existence of
probable cause. The Wilson approach is consistent with the
requirement that a neutral magistrate, not an officer, make the
ultimate probable cause determination: Even though the
magistrate may agree with an officer that certain evidence is
not material to probable cause, the officer must include that
evidence if a reasonable person would know that it could
affect the probable cause determination—a lower threshold of
materiality. While the concept of materiality is applicable in
both inquiries, the benchmark for materiality is different; at
the first step, the recklessness inquiry, we consider whether
the officer withheld “a fact in his ken that ‘[a]ny reasonable
person would have known that this was the kind of thing the
judge would wish to know,’” Wilson, 212 F.3d at 788
(quoting Jacobs, 986 F.2d at 1235), while at the second step,
the probable cause inquiry, we consider whether any such
omissions were “necessary[] to the finding of probable
cause,” id. (quoting Sherwood, 113 F.3d at 399). Thus, for
ease of reference we describe the recklessness inquiry as one
that examines the relevance of the omitted information.
23
officers relate the entire history of events leading up to a
warrant application.” Wilson, 212 F.3d at 787.10
In his brief on appeal, Dempsey contends the
following information was recklessly omitted from the
affidavit of probable cause11:
10
Indeed, in many cases it is not only appropriate but
desirable for officers to provide the magistrate with a distilled
version of the circumstances giving rise to probable cause.
Our decision in this case does not call into question the
common practice of relating those circumstances “in
substance and in part,” rather than in their entirety, in an
affidavit of probable cause.
11
Dempsey’s brief on appeal provides his version of a
reconstructed affidavit, as well as supporting discussion, from
which we draw the information he contends was recklessly
omitted. As we will explain, however, we cannot wholly
accept Dempsey’s version of the reconstructed affidavit. One
reason for this is that his affidavit, in some places, does not
accurately represent the witness statements as they appear in
the record. For example, in two places in his brief, Dempsey
indicates that Kristen Brundage stated she heard “laughing
screams” from Dempsey’s room, supporting his argument
that the evidence reflected that the events in the room were
clearly playful, Appellant’s Br. 17, 32; in fact she stated she
heard “laughing, screams, and crashing” from the room, J.A.
824, lending some support for Stefanowicz’s assertion that
the interaction went from “playful” to “scary” while the two
were alone, J.A. 322. In another example, Dempsey’s
reconstructed affidavit states that “he and Kelly moved from
his room to the hallway, when Kelly punched him in the
24
(1) statements from Morgan Slade, Demitri
Carahalios, Wade Payson-Denney, Gabriela
Ors, Kristen Brundage, Gregory Fast, and Raina
Masand indicating Dempsey and Stefanowicz’s
interactions prior to the time they were alone in
the room together were playful and consensual
and that they had engaged in similar activities
before;
(2) Gregory Fast’s statement indicating that he
observed Dempsey and Stefanowicz during the
time Stefanowicz alleged they were alone in the
room and saw Stefanowicz pinning Dempsey to
the futon, not the opposite;
groin,” suggesting Stefanowicz punched him in the groin in
the hallway. Appellant’s Br. 33-34. In his original statement
to officers, however, Dempsey indicated that Stefanowicz
punched him in the groin while the two were alone in the
room and then left the room and entered the hallway. J.A.
268.
We will presume that any misrepresentations of record
evidence (in both of the above-cited instances, as a result of a
misplaced comma) were inadvertent, but we urge counsel to
exercise the same level of care that we have urged upon the
law enforcement officers who investigate allegations of
criminal conduct. Of course, we conduct our analysis based
on the evidence reflected in the record itself.
25
(3) Dempsey’s statement to BUPS officers that
he and Stefanowicz were alone together for
“about a minute,” J.A. 268;
(4) Kristen Brundage’s statement that while she
was in the hallway and Dempsey and
Stefanowicz were alone in Dempsey’s room,
she heard “laughing, screams, and crashing”
coming from the room, J.A. 824; and the fact
that none of the witnesses who were in the hall
heard Stefanowicz yelling at Dempsey in the
room to “get off” her and “stop,” as
Stefanowicz had believed they would have, J.A.
324;
(5) statements from Kristen Brundage and
Gregory Fast indicating Stefanowicz was
laughing after leaving Dempsey’s room and that
the two were still playfully wrestling; Kristen
Brundage’s statement that “the playfighting
went too far” and “[e]verytime Reed would
walk away, Kelly would chase after him,
insulting him and egging him on,” J.A. 825;
Gregory Fast’s statement that the two had
agreed to stop play wrestling when “Kelly
slapped Reed in the face” and that “Reed
contained Kelly and brought her to the ground
even though she struggled and was hitting him,”
J.A. 438; and the R.A.’s statement that
Stefanowicz was being aggressive toward
Dempsey by, e.g., yelling profanities at him,
and that it took physical effort to keep her away
from Dempsey;
26
(6) Dempsey’s statement that he did not intend
to tackle Stefanowicz;
(7) Dempsey’s statement that he was acting in
self-defense when he fell on Stefanowicz;
(8) Stefanowicz’s statements to Andrew Watts,
Raina Masand, and Kristen Brundage
expressing remorse for her role in escalating the
encounter and her request to her R.A. that he
not file a report;
(9) Dempsey’s willingness to meet with officers
regarding the incident;
(10) Stefanowicz’s failure to state to any
witness prior to her first interview with BUPS
officers that Dempsey’s “penis was erect” while
they were on the futon, Appellant’s Br. 32;
(11) Rebecca Neubauer’s statement that
“[a]nything that Kelly brings up” regarding an
alleged sexual encounter between Neubauer and
Dempsey “is not relevant at all to
[Stefanowicz’s] situation and incidence [sic],”
J.A. 857.
The District Court concluded that the witness
statements indicating that Stefanowicz and Dempsey were
light-hearted and playful prior to being alone in the room and
had engaged in similar activities before (Paragraph (1)); that
Stefanowicz was laughing when they came back onto the hall
(Paragraph (5)); and that she, and not Dempsey, was the
aggressor in the hall (Paragraph (6)) were recklessly omitted
27
because they are relevant evidence of how the events reported
in the affidavit unfolded and of Dempsey’s state of mind. In
addition, Dempsey urges that his statement that he and
Stefanowicz were alone together for only “about a minute”
(Paragraph (3)), reports from witnesses in the hall as to what
they did and did not hear from the room when Stefanowicz
and Dempsey were alone together (Paragraph (4)), and
Stefanowicz’s expressions of remorse to her friends and her
action in asking her R.A. not to file a report (Paragraph (8))
are pieces of information a reasonable person would know a
magistrate would want to know given their relevance to
Stefanowicz’s allegations of assault and the circumstances in
which she sustained injuries.12
After careful review, we agree that, in the context of
this case and the allegations that were included in the
affidavit, the information in these paragraphs was relevant to
the probable cause determination and thus should be included
in a reconstructed affidavit for purposes of a materiality
analysis. In so concluding, we emphasize that our
determination as to the relevance of these statements is
necessarily specific to the record before us, informed both by
the facts of the case and the allegations set forth in the
affidavit of probable cause, and does not indicate that there
are categories of statements that as a rule must be included.
Rather, we ask in the context of a given case whether “any
reasonable person would know that a judge would want to
12
The Bucknell Defendants seem to agree that the time
the two were alone is relevant. See Appellee’s Br. 12 n.2
(“[T]he amount of time Reed and Ms. Stefanowicz spent
alone in Reed’s bedroom is of course relevant . . . .”).
28
know” a particular statement in making a probable cause
determination, Wilson, 212 F.3d at 783,13 and in the context
of this case, answer in the affirmative as to Paragraphs (1),
(3), (4), (5), (6), and (8).
We are not so persuaded as to the remaining pieces of
information cited by Dempsey. Some of that information
simply was not known to Officer Holtzapple, or any other
officer, prior to either instance in which she swore the
affidavit of probable cause. For example, Gregory Fast’s
statement indicating that he entered the room during the time
Stefanowicz alleged she and Dempsey were alone together
and saw Stefanowicz pinning Dempsey to the futon
(Paragraph (2)) was received on September 12, after both
affidavits of probable cause had been sworn. J.A. 284. In his
September 5 statement, Fast stated only that he saw them
“playfully wrestling on the futon” but then left the room and
did not see them emerge for “10-minutes give-or-take.” J.A.
438. Likewise, while Dempsey told police on September 5
13
Moreover, and as is clear from our discussion in
footnote 9, supra, at this point in our analysis we do not
assess whether the recklessly omitted information was in fact
material to probable cause when considered in combination
with the other evidence reflected in the affidavit. Nor does a
determination that information was recklessly omitted
necessarily mean that an officer acted in bad faith. To the
contrary, as officers engage “in the often competitive
enterprise of ferreting out crime,” Wilson, 212 F.3d at 787
(quoting Johnson v. United States, 333 U.S. 10, 14 (1948)),
and draw on their own experience and expertise to assess
witnesses and evidence in an investigation, they may at times
omit information recklessly but in good faith.
29
that he did not intend to injure Stefanowicz, the record on
appeal reflects that he did not claim he was acting in self-
defense (Paragraph (7)) until his deposition in 2013, at which
time he stated that she “hit [him] in the genitals” while the
two were in the hall and “[t]o avoid her doing so again, [he]
reached [his] arms around her as she kind of turned around,”
resulting in both falling to the ground. J.A. 798-99. Thus, we
will not include either of these statements in the reconstructed
affidavit.
Some of this information was not recklessly omitted
because it is not information “‘any reasonable person would
know that a judge would want to know’ in making a probable
cause determination.” Reedy, 615 F.3d at 213 (quoting
Wilson, 212 F.3d at 783). For instance, Dempsey’s
cooperation with law enforcement (Paragraph (9)) is not
relevant because cooperation may merely reflect a person’s
erroneous belief that he has not committed a crime, see Heien
v. North Carolina, 135 S. Ct. 530, 540 (2014) (discussing the
“well-known maxim, ‘[i]gnorance of the law is no
excuse[]’”), or may stem from savvy or hubris rather than a
“clean conscience,” United States v. Fisher, 364 F.3d 970,
973 (8th Cir. 2004) (concluding “cooperation did not negate
the risk,” established by other evidence, that suspect was
armed).
In addition, the fact that Stefanowicz does not appear
to have told anyone prior to her first interview with police
that Dempsey’s “penis was erect,” Appellant’s Br. 32, while
he pinned her to the futon (Paragraph (10)) was not recklessly
omitted because it has limited significance in view of
statements Stefanowicz did make, according to two witnesses.
Although it is true that the record does not reflect that
Stefanowicz used those precise words prior to her interview
30
with police, it does reflect that she told Raina Masand
immediately after the incident that “Reed pushed her onto the
ground and tried to take advantage of her.” J.A. 435. Kristen
Brundage also reported that Stefanowicz told her immediately
after the incident that “Reed had tried to ‘take advantage of
her.’” J.A. 825. These statements are sufficient to
demonstrate that Stefanowicz’s first report of the incident
described the assault as having a sexual dimension. We
therefore will not include this information in the
reconstructed affidavit.
Similarly, Rebecca Neubauer’s statement (Paragraph
(11)) was not recklessly omitted because it has no relevance
to the probable cause determination. Rather than
contradicting Stefanowicz’s statement that something had
occurred between Dempsey and Neubauer, Neubauer’s
statement appears to confirm there had been some interaction
and to add only that, according to Neubauer, Stefanowicz did
not know the whole story and Neubauer considered it “not
relevant at all.” J.A. 857. Because it is not relevant, this
statement also will not be included in the reconstructed
affidavit.
2. Reconstructed Affidavit for
Materiality Analysis
In the normal course, the next step of our analysis
would be to reconstruct the affidavit, including the recklessly
omitted information, so that we may proceed with a
materiality analysis. In some cases, however, there will be
other information in the record that gives context to or affects
the weight to be accorded the recklessly omitted information,
such that it also should be considered by the reviewing court
in determining materiality.
31
We faced such a situation in United States v. Frost,
where we evaluated an affidavit of probable cause underlying
a search warrant for a suitcase. 999 F.2d 737 (3d Cir. 1993).
The criminal defendant there alleged that the affidavit
recklessly omitted the fact that a drug-sniffing dog had not
gone into alert upon sniffing the suitcase. Id. at 743. The
officer who swore the affidavit testified, however, that he
believed the dog’s failure to alert was a “neutral factor” in the
probable cause analysis because drug couriers often use
“scent masking” techniques to avoid detection. Id. Without
deciding whether the omission of that information was
reckless, we concluded that “the relevant issue [was] whether
the . . . affidavit would have provided probable cause if it had
disclosed the information concerning the dog’s sniffing of the
suitcase, including the information about ‘scent masking’ that
[the officer] knew and would have included to enable the
magistrate to evaluate the dog’s failure to alert. Only an
evaluation of the affidavit so supplemented will reveal
whether there is a causal connection between [the officer’s]
failure to disclose and [probable cause].” Id. at 743. Frost
teaches that where additional information in the record bears
on the materiality of the recklessly omitted information to
probable cause, that additional information also should be
included the reconstructed affidavit.
Such is the case here. For example, with regard to the
witness statements indicating that the two were playful before
and after being alone together and that Stefanowicz was the
aggressor in the hall (Paragraphs (5) and (6)), it is also
relevant to the probable cause determination that Stefanowicz
herself told officers she was laughing when she reentered the
hall from Dempsey’s room and that it was because she “was
in shock,” J.A. 322, and that while Gregory Fast reported that
32
Dempsey fell on Stefanowicz while trying to “contain her,”
i.e., to keep her from hitting him again, Dempsey had
reported to officers that “he asked her to come back” when
she left the room and when she wouldn’t, “he caught up to her
and . . . placed his arms around her and gave her a bear hug,”
causing the two to fall forward, J.A. 268. With regard to the
statements pertaining to the time the two were alone
(Paragraphs (3) and (4)), it is also relevant that Gregory Fast
stated that he believed it was about ten minutes between when
he left the room and when the two exited. Because this
information bears on the weight a magistrate would accord
the recklessly omitted statements in making the ultimate
determination as to probable cause, we will also include this
information in the reconstructed affidavit.
An affidavit reconstructed to include both the
recklessly omitted information and the other information that
gives it context would read as follows:
On Sunday, September 5, 2010 at
approximately 1957 hours, Officer Darrel
Fisher, Officer Robert Ulmer and Officer Jule
Holtzapple, all are officer’s currently with the
Bucknell University Department of Public
Safety/ Police Department, spoke with Kelly
Stefanowicz.
[The investigation revealed evidence] as
follows:
On Sunday, September 5, 2010, at
approximately 0200 hours, Kelly walked home
with two of her friends, Morgan Slade and
Demitri Carahalios, to her room, 166 Smith
33
Hall, Bucknell University, Lewisburg Pa.
17837.
Before entering her room, Kelly had pointed at
Reed Dempsey. Reed then proceeded into
Kelly’s room and hung out with Kelly, Morgan,
and Dimitri. Kelly stated that Reed and she
began to wrestle playfully in her room. Kelly
stated she was not intimidated by Reed at this
time and believed wrestling to be playful.
[Witnesses stated that they had play wrestled
before.]
Kelly stated that after a short time Reed had
picked her up and carried her over his shoulder.
Reed Dempsey carried Kelly Stefanowicz into
his room, which is Smith 138, Bucknell
University, Lewisburg Pa. 17837. [Witness
Kristen Brundage stated that she saw Reed
carrying Kelly, who was laughing and hitting
him on the butt with a shoe.]
Two people were in Reed’s room at this time,
roommate Wade Payson-Denny and Gregory
Fast. Kelly stated that Reed put her down from
carrying her and sat her on his lap. Reed would
not release Kelly from his lap and held her
down, making her sit on his lap. [Witness
Gabriela Ors recounted being in Reed’s
room for about ten minutes, and that the
situation never seemed violent. Witness
Wade Payson-Denney said that he saw Kelly
and Reed in the room jokingly wrestling on
the floor.]
34
Kelly stated shortly after this happened, both
Wade Payson-Denny and Gregory Fast left
Reed Dempsey room. Reed’s room door shut
automatically, after both men left the room.
Kelly stated that at this time she no longer felt
safe around Reed. Kelly stated that Reed’s
behavior had turned instantly. It was at this
time that Reed picked Kelly up from sitting on
his lap and threw her onto a futon in the room.
Reed laid on top of Kelly keeping her from
sitting up. Kelly stated she attempted to push
Reed off of her. He grabbed both of Kelly’s
hands and held them forcefully above her head.
Kelly stated that Reed’s penis was now erect
under his clothes. He was on top of her and
pinning her to the futon. Kelly believes that
Reed was excited and that he was in total
control of her. Kelly began to yell at Reed “to
get off of me” and “just stop it.” She was in
fear of getting raped by Reed. Kelly was able
to release one of her hands and slapped Reed
across the face. Kelly and Reed then rolled off
of the futon, falling to the floor. [Although
Kelly stated she believed people must have
heard her, no witnesses reported hearing
these exact words. Witness Kristin
Brundage stated, however, that when Kelly
and Reed were alone in the room she heard
“laughing, screams, and crashing.” Reed
stated he believed they were alone in the
room for about a minute, while Gregory
35
Fast’s statement indicates they were alone
for about ten minutes.]
It was at this time that Kelly fell to the ground
and landed on top of Reed. Kelly was able to
get off of the ground, open the closed door, and
run out into the hallway. [Although Reed’s
story corroborated Kelly’s that she left the
room before him, other witnesses in the hall
indicated that the two “came out wrestling.
It seemed like play wrestling, with laughing
and goofy insults.” Kelly stated that she was
laughing when she came onto the hall
because she “was in shock.”]
As she was walking away from Reed, and
ignoring him, as he was calling for her to come
back into his room. Kelly stated that people in
the hallway were laughing at Reed and making
fun of him because Kelly had turned him down
in his room.
Reed next grabbed Kelly’s arm and began to
pull on it. Kelly attempted to get away from
Reed by pulling away from him. Reed then
grabbed both of Kelly’s arms and held them
behind him. Reed then fell onto Kelly, causing
her to fall to the floor, landing on the left side of
her face and also her right shoulder. Reed then
stood up. [Witness Gregory Fast reported
that after a mutual agreement to stop play
wrestling Kelly slapped Reed in the face, and
only then did Reed fall on Kelly in an
attempt to contain her. Reed, however, did
36
not report that she slapped him and he was
trying to contain her when he fell on her,
stating instead that he asked her to come
back after she left his room and placed his
arms around her and gave her a bear hug,
accidentally falling on her.] Kelly then
proceeded to her room, 166 Smith Hall,
Bucknell University, to end this encounter.
[Witness Kristen Brundage stated, however,
that “every time Reed would walk away,
Kelly would chase after him, insulting him
and egging him on.” R.A. Michael Sena
reported that when he came onto the hall,
after the fall, Kelly was yelling profanities at
Reed and it took some effort on the R.A.’s
part to contain her. He also reported that
Kelly told him that she and Reed were just
playing around and asked him not to file a
report that night.]
Kelly displayed text messages from Reed
following this incident. Text messages were
sent at 0243 hours, 0335 hours, and 0511 hours.
Photographs were taken of messages on phone
from Reed. These messages related to remorse
for this incident and he was checking on her
welfare. [Kelly also expressed remorse for
her role in escalating the encounter to
Witnesses Andrew Watts, Raina Masand,
and Kristen Brundage.]
Kelly Stefanowicz wants to proceed with
criminal charges in this case. Medical treatment
was obtained at Evangelical Community
37
Hospital, 1 Hospital Drive, Lewisburg Pa.
17837. Photographs and medical report will be
obtained on Wednesday, September 8, 2010.
3. Materiality
We turn now to the question whether the recklessly
omitted statements, considered in the context of the affidavit
as a whole, were omissions “material, or necessary, to the
finding of probable cause.” Wilson, 212 F.3d at 787 (quoting
Sherwood, 113 F.3d at 399). To affirm the District Court’s
grant of summary judgment, we must conclude that “no
reasonable jury could find facts that would lead to the
conclusion” that the reconstructed affidavit “lacked probable
cause.” Id. at 792.
Dempsey was charged with simple assault,
harassment, disorderly conduct, indecent assault, and false
imprisonment. Because probable cause exists where there is
merely a “fair probability” that the arrestee committed a
crime, we need not identify “the same type of specific
evidence of each element of [an] offense as would be needed
to support a conviction.” Adams v. Williams, 407 U.S. 143,
149 (1972). In light of the fact that Dempsey has pressed his
malicious prosecution claim on appeal, however, we will
assess whether any reasonable jury could find a lack of
probable cause as to any of the five crimes charged against
him, bearing in mind that although false arrest or
imprisonment claims will necessarily fail if probable cause
existed for any one of the crimes charged against the arrestee,
“probable cause on one charge does not foreclose a malicious
prosecution cause of action” based on additional charges for
which there was no probable cause. Johnson v. Knorr, 477
F.3d 75, 83 (3d Cir. 2007) (emphasis added). In the case of
38
prosecution, unlike arrest, unfounded charges “almost surely
will place an additional burden on the defendant,” and thus
we must consider probable cause as to each of the charges.
Id. at 84.
In assessing whether the reconstructed affidavit
establishes probable cause, we also must bear in mind our
Circuit’s rule that statements of a victim witness are typically
sufficient to establish probable cause in the absence of
“[i]ndependent exculpatory evidence or substantial evidence
of [a] witness’s own unreliability” that “outweigh[s]” the
probable cause that otherwise exists. Wilson, 212 F.3d at
790; Sharrar v. Felsing, 128 F.3d 810, 818 (3d Cir. 1997)
(“When a police officer has received a reliable identification
by a victim of his or her attacker, the police have probable
cause to arrest.”). Applying this principle, we have held that
no reasonable jury could find a lack of probable cause where
a victim identified the arrestee in a photo array, but other
evidence suggested the perpetrator was significantly taller
than the arrestee, a different victim did not identify the
arrestee, and another witness claimed to have seen the
arrestee at the time of the crime, Wilson, 212 F.3d at 791-92,
and where a victim first identified a different person as her
assailant before changing her story to identify the arrestee,
Sharrar, 128 F.3d at 818-19. Thus, some “unreliability or
exculpatory evidence” will not “fatally undermine[]”
probable cause otherwise established. Wilson, 212 F.3d at
790.14
14
Dempsey cites a Sixth Circuit case, Wesley v.
Campbell, which declared that “[i]t is well-settled that
evidence contradicting even part of a witness’s allegations
seriously undermines their reliability and can defeat probable
39
With these principles in mind, we turn to the
reconstructed affidavit.
a. Evidence Supporting Probable
Cause
We first address Dempsey’s threshold argument that
the evidence cited by the District Court—Stefanowicz’s
multiple statements and Raina Masand’s statement
corroborating in large part her version of events; the
photographs of Stefanowicz’s injuries, taken immediately
following the incident and the next day during the medical
examination; and the text messages sent by Dempsey to
Stefanowicz in the hours following the incident—does not
give rise to probable cause that he committed the crimes of
simple assault, harassment, disorderly conduct, indecent
assault, and false imprisonment.
First, Dempsey argues that Stefanowicz’s multiple
statements, as well as Raina Masand’s corroborating
statement, are “prior inconsistent statements” and that a jury
should have been allowed to decide whether Stefanowicz
“merely added detail or, in fact, changed her story.”
cause.” 779 F.3d 421, 435 (6th Cir. 2015). As should be
clear from our discussion of Sharrar v. Felsing and Wilson v.
Russo, this statement from the Sixth Circuit does not reflect
the law of our Circuit. Furthermore, Wesley involved a set of
facts in which there was no physical evidence of alleged
repeated abuse and there were myriad reasons to believe that
the victim witness was thoroughly unreliable; it is far from
clear that Wesley would dictate the result Dempsey advocates
on the facts presented in this case.
40
Appellant’s Br. 40. We disagree. The fact that Stefanowicz
gave multiple accounts of the incident is, without more, not
exculpatory; she did so at the request of law enforcement
officers, suggesting that Stefanowicz was simply acting as a
cooperative witness, not that she was seeking opportunities to
change her story to implicate Dempsey in more serious
offenses. Furthermore, Dempsey has pointed us to no
specific inconsistencies in Stefanowicz’s statements to law
enforcement and her friends, other than those we have already
addressed and concluded were not inconsistencies at all. See
supra Part III.B.1 (addressing Dempsey’s argument that
Stefanowicz did not describe the incident as having a sexual
dimension until she related her version of events to BUPS
officers).
Second, Dempsey asserts that the photographs “proved
only that Ms. Stefanowicz was injured in some way” and, in
any event, “do not depict injuries consistent with the vicious
attack Kelly alleged.” Appellant’s Br. 41. We again
disagree. Stefanowicz described an assault in which
Dempsey aggressively touched her, including pinching and
punching, first during play wrestling and then against her
wishes while the two were alone and, in the hallway,
“tackled” her, leading to injuries to her face and shoulder.
J.A. 324. The photographs taken during the medical
examination revealed injuries to Stefanowicz’s “chest” and
“right lower extremity.” J.A. 851; S.A. 42-47. Furthermore,
the record clearly reflects that the injuries to her face and
shoulder were sustained as a result of her falling in the
hallway: Pictures documenting those injuries were taken
immediately after the incident, S.A. 1-6, and Raina Masand,
Kristen Brundage, and R.A. Michael Sena all reported
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observing injuries to Stefanowicz’s face at that time. This
evidence is consistent with Stefanowicz’s allegations.
Finally, Dempsey contends that while his text
messages to Stefanowicz “could demonstrate remorse, they
just as logically show an attempt to diffuse a heated situation
between friends.” Appellant’s Br. 42. Even assuming we
agree with Dempsey that his text messages could be
understood that way, they nevertheless demonstrate that at the
very least, he was a party to what he viewed as a “heated
situation.”
Mindful that the question we must ask at this stage is
whether “a reasonable jury could not find a lack of probable
cause,” Montgomery, 159 F.3d at 124, i.e., that the evidence
gives rise to a “fair probability” that Dempsey committed the
crimes alleged, Wilson, 212 F.3d at 789 (quoting Sherwood,
113 F.3d at 401), we conclude that Stefanowicz’s and
Masand’s statements, the documented injuries, and the text
messages establish probable cause, and that no reasonable
jury could come to a contrary conclusion.
b. Evidence Undermining
Probable Cause
Having determined that inculpatory evidence, reflected
in the reconstructed affidavit, gives rise to probable cause for
each of the five crimes charged against Dempsey, the
question remaining is whether there is “[i]ndependent
exculpatory evidence or substantial evidence of
[Stefanowicz’s] own unreliability” that “outweigh[s]” the
probable cause otherwise established by the affidavit of
probable cause. Id. at 790. The reconstructed affidavit
reflects two categories of recklessly omitted information that,
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Dempsey submits undermines probable cause: witness
statements contradicting Stefanowicz’s version of events and
evidence of the amount of time the two were alone together.
In light of the evidence corroborating in substantial part
Stefanowicz’s story and the existence of a period of time in
which no one disputes the two were alone together in
Dempsey’s room, we conclude that even considering the
recklessly omitted information, no reasonable jury could
determine that the affidavit lacked probable cause.
i. Witness Statements
Dempsey contends that omitted witness statements
indicating that the interaction between Stefanowicz and
Dempsey was playful and, when it was not playful,
Stefanowicz was the aggressor, are material to the probable
cause determination because they “contradicted Ms.
Stefanowicz’s story in striking ways.” Appellant’s Br. 38.
First, he argues that while Stefanowicz says she yelled
at Dempsey while they were alone in his room, “not one of
the witnesses in the hall heard Ms. Stefanowicz yell stop, but
instead reported hearing playful noises.” Id. But this
contention is not supported by the record evidence. In fact,
Kristen Brundage stated that she heard “laughing, screams,
and crashing” coming from the room. J.A. 824 (emphasis
added). Far from contradicting Stefanowicz’s story, it is
largely consistent, not inconsistent, with her assertion that she
struggled against Dempsey, as well as with her statements
indicating that her interaction with Dempsey “immediately
transitioned from ‘funny’ and ‘joking’ to ‘scary’ and ‘dark’”
when the two were left alone in Dempsey’s room. J.A. 445.
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Second, Dempsey avers that “the eye witnesses almost
unanimously agreed that Ms. Stefanowicz and not Mr.
Dempsey was the aggressor.” Appellant’s Br. 39. This
statement is true as to what witnesses observed in the hallway
after the two had emerged from the room, but it does not
explain what happened while the two were in the room.
Furthermore, Stefanowicz herself told officers that she
slapped Dempsey “right across the face” while the two were
in the hallway; in that sense, her story—that when they left
the room, she was aggressive toward Dempsey—is consistent
with that of the witnesses in the hall. J.A. 324. Bearing in
mind that probable cause “does not require that officers
correctly resolve conflicting evidence or that their
determinations of credibility, were, in retrospect, accurate,”
Wright, 409 F.3d at 603, we conclude that the existence of
some conflict between Stefanowicz’s story and that of the
eyewitnesses in the hallway does not undermine the existence
of probable cause.
Our conclusion is necessarily specific to the
circumstances presented in this case. Were the events in the
hallway the only basis for the assault charges against
Dempsey, the evidence reflecting that Stefanowicz was the
aggressor during that portion of the incident might have been
material to a probable cause determination. But in light of the
undisputed fact that the two were alone in Dempsey’s room
for some period of time; the lack of any evidence
contradicting Stefanowicz’s explanation of the events that
occurred in the room, aside from Dempsey’s explanation, i.e.,
that their playful wrestling “started to get more intense and
Stefanowicz punched him in the groin,” J.A. 268; and the
existence of evidence corroborating her version of events in
substantial part, no reasonable jury could conclude there was
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not a “fair probability” that a crime occurred, notwithstanding
the conflicting evidence as to Dempsey’s intent and actions in
the hallway.
ii. Time Alone
Dempsey also challenges the significance of the time
he and Stefanowicz were alone together, asserting that the
fact that he told BUPS that they were only alone in the room
together for one minute materially undermines Stefanowicz’s
story about what happened during that time. In addition, he
asks us to consider as part of our analysis Gregory Fast’s
September 12 statement, in which Fast indicated that he
observed Stefanowicz and Dempsey during the time she said
Dempsey was on top of her on the futon, while the two were
alone, as part of our materiality analysis. As we explained in
Part III.B.1, supra, however, that statement was received after
both instances in which the affidavit of probable cause was
sworn, and therefore we cannot consider it. We emphasize
that in making the determination about the existence of
probable cause, we examine only the information available to
the officer at the time of the swearing of the affidavit of
probable cause. After-acquired evidence, however significant
for trial, does not inform an officer’s knowledge or good faith
as is relevant for our inquiry today.
As we have explained, we will consider not only
Dempsey’s statement, but, as the District Court did, all of the
information on that topic received by the officers. As the
reconstructed affidavit reflects, the officers had information
indicating that the two were alone in the room together for
somewhere between one minute and ten minutes. In addition,
the officers knew that while the accused person had stated the
two were only alone together for about one minute, a third-
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party witness, Gregory Fast, had indicated in his September 5
statement that the time was around ten minutes. Furthermore,
estimates of time may not always be particularly reliable.
See, e.g., Martin v. Ill. Cent. R.R. Co., 23 F.2d 324, 325 (5th
Cir. 1928) (“Estimates of time and distance of bystanders
witnessing an accident are notoriously inaccurate, and entitled
to little weight at best.”). In any event, it is not implausible
that the events in the room that Stefanowicz described took
place in the course of “about a minute.” Viewing this
evidence, along with all the other evidence of record, in the
light most favorable to Dempsey, it is not material to the
determination that there was a “fair probability” that a crime
occurred.
IV. Conclusion
Because we conclude that no reasonable jury could
find that the reconstructed affidavit lacked probable cause, we
will affirm the order of the District Court.
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