DiBella v. Borough of Beachwood ( 2005 )

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
5-12-2005
Dibella v. Beachwood
Precedential or Non-Precedential: Precedential
Docket No. 03-4892
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005
Recommended Citation
"Dibella v. Beachwood" (2005). 2005 Decisions. Paper 1098.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1098
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2005 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No: 03-4892/04-1257
ROBERT DIBELLA; JOHN MCLAUGHLIN,
Appellants - (Case No.03-4892)
v.
BOROUGH OF BEACHWOOD, a municipality
organized under the laws of the State
of New Jersey; BEACHWOOD POLICE DEPARTMENT;
JOHN WAGNER, CHIEF, in his official capacity
and personally; JOHN ZUPA, POLICE OFFICER,
personally and in his official capacity
ROBERT DIBELLA; JOHN MCLAUGHLIN
v.
BOROUGH OF BEACHWOOD, a municipality organized
under the laws of the State of New Jersey;
BEACHWOOD POLICE DEPARTMENT; JOHN WAGNER,
Chief, in his official capacity and personally;
JOHN ZUPA, Police Officer, personally and in
his official capacity
Appellants - (Case No. 04-1257)
___________
On Appeal from the United States District Court
for the District of New Jersey
District Court No. 02-CV-3883
District Judge: The Honorable Garrett E. Brown, Jr.
_________________
Argued on January 11, 2005
Before: ROTH and CHERTOFF * , Circuit Judges, and SHAPIRO,** District Judge.
Filed: May 12, 2005
Harry J. Levin, Esquire (Argued)
Colleen F. Cyphers
Levin & Cyphers
1410 Hooper Avenue
Toms River, NJ 08753
Counsel for Appellants/Cross Appellees
David R. Leahy, Esquire (Argued)
Gilmore & Monahan
10 Allen Street
P.O. Box 1540
Toms River, NJ 08754
Counsel for Appellees/Cross Appellants
OPINION
SHAPIRO, District Judge.
Plaintiffs, Robert DiBella and John McLauglin, appeal a post-trial district court
order vacating a jury award of $78,237 in compensatory damages, and $95,000 in
punitive damages to each plaintiff. The judge held there had been no Fourth Amendment
*
Judge Chertoff heard oral argument in this case but resigned prior to the time the
opinion was filed. The opinion is filed by a quorum of the panel. 28 U.S.C. § 46(d).
**
Honorable Norma L. Shapiro, Senior District Judge for the United States District
Court for the Eastern District of Pennsylvania, sitting by designation.
2
seizure as required in a malicious prosecution action under 42 U.S.C. § 1983. The
District Court decision is affirmed.
I. FACTS AND PROCEDURAL HISTORY
On October 30, 1999, DiBella and McLaughlin were campaigning for positions on
the governing body of the Borough of Beachwood, Ocean County, New Jersey. They
were on public property handing out literature to pedestrians, bicyclists, and drivers
stopped at a traffic light. They had also posted signs at the intersection. DiBella testified
their political opponent drove by and they had a verbal confrontation. DiBella suspected
his opponent then called Chief of Police, John Wagner (“Chief Wagner”), and pressured
Chief Wagner to have them stop their campaigning.
Shortly after the verbal confrontation, Police Officer John Zupa (“Officer Zupa”)
approached DiBella and McLaughlin and told them to move their illegally parked van;
they complied. When Officer Zupa later returned and told them to leave the area, they
refused. DiBella and McLaughlin disputed Officer Zupa’s contention he explained that to
approach automobiles stopped at the intersection was dangerous and the signs were
blocking motorists’ views. Officer Zupa issued a summons for defiant trespass under
N.J.S.A. 2C:18-3B, a petty disorderly offense when a person remains in a place, knowing
he is not licensed or privileged to do so, after he receives notice of trespass by actual
communication.
DiBella and McLaughlin were convicted of defiant trespass in the Borough of
3
Beachwood Municipal Court. The Superior Court of New Jersey, Law Division, Criminal
Part, holding their conduct did not constitute defiant trespass as a matter of law, reversed
the conviction. The trial court then amended the charge to violation of N.J.S.A. 2C:33-
2a(2) (creating a hazardous condition by an act which serves no legitimate purpose of the
actor). After a second conviction, the Superior Court, Appellate Division, reversed again
and all charges were dismissed.
Appellants filed this action for malicious prosecution under 42 U.S.C. § 1983 in
federal district court. The jury awarded $78,237 to the appellants in compensatory
damages for legal fees. The jury also awarded each appellant $75,000 in punitive
damages against Chief Wagner, and $20,000 against Officer Zupa.
After the jury verdict, the judge entered judgment for defendants and ruled having
to attend pretrial and trial hearings did not constitute a government “seizure” in a 42
U.S.C. § 1983 malicious prosecution action predicated on the Fourth Amendment.
DiBella and McLaughlin now appeal.
Chief Wagner and Officer Zupa cross-appeal based on: (1) qualified immunity;
and (2) probable cause to issue the summons. They also appeal the jury verdict on the
ground that there was insufficient malice to support an award of punitive damages and the
punitive damages were excessive.
II. JURISDICTION AND STANDARD OF REVIEW
The District Court had federal question jurisdiction over plaintiffs’ civil rights
4
claim asserted under 42 U.S.C. § 1983. We have jurisdiction of this appeal of the
District Court’s final judgment under 28 U.S.C. § 1291, and exercise plenary review over
the grant of a Rule 50(b) motion for judgment as a matter of law. Lightning Lube, Inc. v.
Witco Corp., 4 F.3d 1153, 1166 (3d Cir.1993) (citing Wittekamp v. Gulf & Western, Inc.,
991 F.2d 1137, 1141 (3d Cir.), cert. denied, 510 U.S. 917, 114 S.Ct. 309, 126 L.Ed.2d
256 (1993)).
III. Discussion
Title 42 U.S.C. § 1983 is not a source of substantive rights but a vehicle for
vindicating rights conferred by the U.S. Constitution or by federal statute. See Baker v.
McCollan, 443 U.S. 137, 145 n.3 (1979). DiBella and McLaughlin assert a Section 1983
malicious prosecution action for violation of the Fourth Amendment. They contend
having to attend their trials for defiant trespass and for violation of N.J.S.A. 2C:33-2a(2)
constituted an unreasonable seizure.
To prevail in a Section 1983 action malicious prosecution action, a plaintiff must
show:
(1) the defendants initiated a criminal proceeding;
(2) the criminal proceeding ended in the plaintiff’s favor;
(3) the proceeding was initiated without probable cause;
(4) the defendants acted maliciously or for a purpose other than bringing the
plaintiff to justice; and
(5) the plaintiff suffered a deprivation of liberty consistent with the concept of
seizure as a consequence of a legal proceeding.
Estate of Smith v. Marasco, 318 F.3d 497, 521 (3d Cir. 2003).
5
The state initiated criminal proceedings against DiBella and McLaughlin; the
criminal proceedings ended in their favor when dismissed on appeal. In the subsequent
malicious prosecution trial, the jury found Officer Zupa had no probable cause to issue
the defiant trespass summons, and Chief Wagner and Officer Zupa had acted for a
purpose other than bringing the plaintiffs to justice. The trial judge vacated the jury
verdict by ruling that issuing a summons requiring a criminal defendant to appear in court
did not constitute a Fourth Amendment seizure as a matter of law.
Albright v. Oliver, 510 U.S. 266 (1994), sets the framework for Section 1983
malicious prosecution jurisprudence. Albright was arrested for the sale of a substance
which looked like an illegal drug; he was released after posting bond; and the case was
dismissed because the charge did not state an offense under state law. Albright asserted a
substantive due process violation but did not claim a Fourth Amendment violation.
The Supreme Court rejected Albright’s Section 1983 malicious prosecution claim
based on the Fourteenth Amendment’s Due Process Clause because his surrender to the
State “constituted a seizure for the purposes of the Fourth Amendment” id., at 812, and
where “a particular Amendment provides an explicit textual source of constitutional
protection against a particular sort of government behavior, that Amendment, not the
more generalized notion of substantive due process must be the guide for analyzing these
6
claims.” *** Id., at 813. The Court did not decide whether Albright asserted a viable
malicious prosecution claim under the Fourth Amendment because that question was not
presented in the petition for certiorari. Albright suggested malicious prosecution could
be based on a violation of the Fourth Amendment without delineating the specific types
of actionable violations.
Justice Ginsburg argued in her concurring opinion that Fourth Amendment
protection extends from the initial arrest or seizure to the end of trial, id., at 276-81, but
her concept of “continuing seizure” has been explicitly rejected by three circuits. Karam
v. City of Burbank, 352 F.3d 1188, 1194 (9 th Cir. 2003) (plaintiff's pretrial release
requiring her to make court appearances and imposing pretrial restrictions did not
constitute a Fourth Amendment "seizure" in a Section 1983 malicious prosecution
action); Riley v. Dorton, 115 F.3d 1159, 1164 (4 th Cir. 1997) (rejecting Justice Ginsburg’s
“‘continuing seizure’ theory of the Fourth Amendment” in an excessive force action
where plaintiff’s alleged injuries occurred during booking); Wilkins v. May, 872 F.2d
190, 194 (7 th Cir. 1989) (rejecting “continuing seizure” in an excessive force action where
plaintiff’s injuries occurred during interrogation).
Three circuits, to varying degrees, have adopted Justice Ginsburg’s concept of
***
Although the Supreme Court did not directly address the issue, we have interpreted
Albright as requiring a viable Section 1983 action for malicious prosecution be based on a
federal constitutional violation rather than state common law. Merkle v. Upper Dublin
School Dist., 211 F.3d 782, 792 (3 rd Cir. 2000).
7
continuing seizure. The Fifth Circuit found a Fourth Amendment seizure in a case where
the defendant was fingerprinted, photographed, and then required to sign a personal
recognizance bond, report regularly to Pretrial Services, obtain permission before leaving
the state, and provide federal officers with financial and identifying information. Evans
v. Ball, 168 F.3d 856, 860-61 (5 th Cir. 1999). The Second Circuit has ruled travel
restrictions and court appearances “are appropriately viewed as seizures within the
meaning of the Fourth Amendment.” Murphy v. Lynn, 118 F.3d 938, 946 (2 nd Cir. 1997).
However, in Murphy, plaintiff had been verbally abused and physically attacked by four
policeman, arrested, charged with a felony and incarcerated overnight. Id., at 942.
Appellants contend this court has “adopt[ed] a broad approach” to the definition of
“seizure.” See, Gallo v. City of Philadelphia. 161 F. 3d 217, 224 (3 rd Cir. 1998). The
plaintiff in Gallo was arrested for arson and posted a $10,000 bond; he was prohibited
from traveling outside Pennsylvania and New Jersey, required to contact Pretrial Services
on a weekly basis, and required to attend all court hearings including his trial and
arraignment. This court concluded that, “although it was a close question, we agree with
Gallo that these restrictions amounted to a seizure.” 161 F.3d at 222.****
****
In their briefs, and in oral argument, appellants placed considerable weight on a
non precedential Third Circuit decision: Graw v. Fantasky, 68 Fed. Appx. 378 (3d Cir.
2003). Plaintiffs in Graw alleged First, Fourth, and Fourteenth Amendment violations
stemming from a series of incidents and confrontations between members of a citizen
organization and several police officers. The District Court granted defendants’ Motion
to Dismiss; we reversed in part and remanded. After finding the seizure of a videocamera
without probable cause “sufficient to state a Fourth Amendment violation,” we held
8
Appellants reliance on dicta from Gallo is misplaced because “prosecution without
probable cause is not, in and of itself, a constitutional tort.” Id., at 222 (citing Albright,
510 U.S. at 274). The type of constitutional injury the Fourth Amendment is intended to
redress is the deprivation of liberty accompanying prosecution, not prosecution itself. Id.If Gallo was a “close question;” here there could be no seizure significant enough
to constitute a Fourth Amendment violation in support of a Section 1983 malicious
prosecution action. Gallo was arrested and subjected to significant pretrial restrictions.
DiBella and McLaughlin were only issued a summons; they were never arrested; they
never posted bail; they were free to travel; and they did not have to report to Pretrial
Services. Their liberty was restricted only during the Municipal Court trials and the
Fourth Amendment does not extend beyond the period of pretrial restrictions. See, Torres
v. McLaughlin, 163 F.3d 169, 174 (3 rd Cir. 1998) (“the limits of Fourth Amendment
protection relate to the boundary between arrest and pretrial detention.”) ; see also,
Donahue v. Gavin, 280 F.3d 371, 381 (3 rd Cir. 2002) (same).
Pretrial custody and some onerous types of pretrial, non-custodial restrictions
constitute a Fourth Amendment seizure. DiBella and McLaughlin failed to state a cause
having to defend oneself against baseless criminal charges sufficiently alleged a seizure
“for the purpose of surviving a Rule 12(b)(6) motion” to dismiss.” Id. at 382. Graw is
distinguishable, but "[b]ecause only published opinions have precedential value, the court
does not cite to its unpublished opinions as authority." Third Circuit Internal Operating
Procedure 5.7 (July 2002).
9
of action for malicious prosecution because their attendance at trial did not qualify as a
Fourth Amendment seizure.
CONCLUSION
Attending one’s trial is not a government “seizure” in a 42 U.S.C. § 1983malicious prosecution action for violation of the Fourth Amendment. The district court’s
judgment vacating the jury verdict for appellants, DiBella and McLaughlin, is
AFFIRMED; the cross-appeal of Chief Wagner and Officer Zupa is DENIED as moot.
10