Wright v. City of Philadelphia

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
6-6-2005
Wright v. Philadelphia
Precedential or Non-Precedential: Precedential
Docket No. 03-1633
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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-1633
KIMBERLY MARNELL WRIGHT
v.
CITY OF PHILADELPHIA; DANIEL HEENEY, DETECTIVE,
BADGE NUMBER 650; DOE(S), POLICE OFFICER,
INDIVIDUALLY AND AS POLICE OFFICERS AND
DETECTIVES FOR THE CITY OF PHILADELPHIA; DENISE
O’MALLEY, POLICE OFFICER, BADGE NUMBER 4335
DANIEL HEENEY; DENISE O’MALLEY,
Apellants.
On Appeal from the United States District Court
for the United States District Court for the Eastern District of
Pennsylvania
(D.C. No. 01-cv-6160)
District Judge: Honorable Norma L. Shapiro
Argued September 27, 2004
Before: RENDELL, FUENTES, and SMITH, Circuit Judges.
(Filed June 6, 2005)
Richard Feder
Craig Gottlieb (Argued)
City Solicitor
1515 Arch Street, 17 th Floor
Philadelphia, PA 19102
ATTORNEYS FOR APPELLANTS
Paul Messing (Argued)
Kairys, Rudovsky, Epstein, Messing
924 Cherry Street, Suite 500
Philadelphia, PA 19107
ATTORNEY FOR APPELLEE
OPINION OF THE COURT
FUENTES, Circuit Judge.
After Kimberly Wright was sexually assaulted by two men,
she broke a window and entered the house in which the assault
took place for the purpose of retrieving her clothes. Following two
separate investigations, conducted by the defendant officers
concerning the sexual assault and the break-in, Wright was charged
with burglary, theft, criminal trespass, and criminal mischief. The
charges against Wright were eventually dismissed. Thereafter, she
filed a § 1983 action against the defendant officers alleging that
they violated her constitutional rights. The District Court denied
the officers’ motion for summary judgment on the issue of
qualified immunity and the defendants now appeal. Because the
facts and circumstances within the arresting officers’ knowledge
2
were sufficient to warrant a prudent person believing that Wright
had committed the crime of criminal trespass, we conclude that
there was no constitutional violation. Therefore, we hold that the
officers were entitled to qualified immunity and we will reverse
denial of the officers’ motion for summary judgment.
I. Facts
A. The Assault
Wright’s action arises from two separate police
investigations, one for a sexual assault and one for a reported
breaking and entry.1 On the morning of December 16, 1999,
Wright was driving alone on Chelten Avenue in Philadelphia when
her car broke down. Two men, Ronald Jackson and Nimar
Thompson, stopped and offered Wright assistance. Instead of
helping her, they drugged her and forcibly took her to a beauty
parlor owned by Jackson. Soon thereafter, Jackson and Thompson
took Wright from the beauty parlor to a home on Cedar Park
Avenue where she was held in an intoxicated state for several
1
1 Because we are reviewing a claim of qualified immunity,
2 we view the factual allegations in the light most favorable to
3 Wright, the party claiming injury. See Saucier v. Katz, 533 U.S.
4 194, 201 (2001).
3
hours. When she awoke, she was partially undressed. She believed
that she had been sexually assaulted. Eventually, the two men
forced Wright out of the house, leaving her on the front porch.
Wright knocked on several neighbors’ doors for help, but received
no response. She then returned to the house where she had been
assaulted, broke a small window pane and reentered the property.
Once inside, Wright retrieved her personal belongings, as well as
three plastic bags containing several items such as: a photograph of
one of her attackers, several pieces of mail, two cancelled checks
made out to Jackson, unopened bottles of alcohol, watches, a
jacket, clothes, and a cordless phone. Wright later told police that
she took these items to help identify her attackers.
After leaving the Cedar Park home with the items, Wright
was able to get a ride from a taxi to a friend’s home. The following
day, Wright’s sister took her to the hospital where she was treated
for her physical injuries. At the hospital, Wright was interviewed
by Officer Manning to whom she described the circumstances of
the attack and explained that she had broken a window to get back
inside the residence to retrieve her clothes. Sometime during her
hospital stay, she was treated and examined for sexual assault.
4
Specimens were taken for the purpose of collecting any DNA
evidence that may have been left on her body by her attackers.
Meanwhile, Jackson’s sister Denise Pue, the owner of the
Cedar Park home where the assault occurred, reported the break-in
of her home. There were thus two criminal investigations initiated
by the Philadelphia Police Department: one related to Wright’s
sexual assault that was to be investigated by Officer Denise
O’Malley and one related to Pue’s allegations of a break-in that
was to be investigated by Detective Daniel Heeney.
B. The Investigations
The investigation of the sexual assault began on December
17, 1999, when O’Malley first interviewed Wright. In the
interview, Wright described the circumstances of the assault and
said that she had broken the window to get back into the house to
get her clothes. On December 19, the police, accompanied by
Wright and her mother, proceeded to locate the house where she
had been assaulted. After locating the house, Wright’s mother told
police that Wright had removed property from the house to prove
that she had been there. Thereafter, Wright gave police the three
bags of items taken from Pue’s house. The items were later
5
released to Pue.
Meanwhile, the burglary investigation had begun on
December 16 when Heeney went to the Cedar Park home to
examine the scene of the break-in. Pue told Heeney during an
interview that she learned from a neighbor that her brother,
Jackson, had brought a woman to the house while she was at work.
During the investigation, Heeney discovered a broken pane of glass
by the front door and he recovered a slip of paper with the name
“Kimberly Wright” on it. The following day, Heeney interviewed
Jackson. Jackson admitted that he brought Wright to his sister’s
house, but he claimed that she was extremely intoxicated and that
she refused to go when he told her to leave. Jackson denied having
sexual intercourse with Wright and told Heeney that he and a friend
had left the house after calling the police because she refused to
leave.
The two police investigators, O’Malley and Heeney,
disagree as to when each first became aware of the other’s
investigation. O’Malley remembers December 19 as the day on
which she received facsimiles of Pue’s burglary complaint from
Heeney’s office. Heeney, however, documented in his report,
6
dated December 17, 1999, that O’Malley had related to him a
summary of Wright’s allegations. The officers spoke on a few
occasions throughout their respective investigations.
On January 24, 2000, O’Malley determined that Wright’s
sexual assault complaint was unfounded and told Heeney that the
case did not have a sufficient foundation to proceed. At some
unknown date, but prior to O’Malley closing the sexual assault
case, Heeney prepared an affidavit of probable cause for Wright’s
arrest in regard to the burglary of Pue’s residence. His affidavit
was approved by an Assistant District Attorney on January 30,
2000.
On February 8, 2000, Heeney arrested Wright without a
warrant for a number of offenses, including burglary, theft, and
criminal trespass. The arrest report lists both Heeney and O’Malley
as the police personnel involved. Nearly two months after her
arrest, the charges against Wright were dismissed for failure to
prosecute because Pue failed to appear at the preliminary hearing.
Shortly after the dismissal of the charges against Wright,
Philadelphia police authorities reopened a number of sexual assault
investigations, including Wright’s case. The cases were reopened
7
following complaints made by victims, the Women’s Law Project,
and other advocacy groups concerning the manner in which
Philadelphia police officers were handling sexual assault cases.
After the case was reopened, DNA samples confirmed that Jackson
was the source of the semen found in the rape exam that was
performed on Wright. Within three months after Wright’s case was
reopened, Jackson and Thompson were arrested and charged with
the sexual assault on Wright. Both men later pled guilty and were
sentenced to periods of incarceration. In November 2001, the
Philadelphia Police Internal Affairs Division issued a report
finding that O’Malley had “conducted a less than proper/thorough
investigation” of Wright’s assault case and that her case should not
have been closed as unfounded.
After her case was reopened and Jackson and Thompson
were arrested, Wright filed the present § 1983 action in the District
Court against the City of Philadelphia and the officers for violating
her First, Fourth, and Fourteenth Amendment rights. She
specifically claimed that she was falsely arrested and maliciously
prosecuted by Heeney and O’Malley. Wright moved for summary
judgment on a number of issues, including that the defendants were
8
not entitled to qualified immunity. The defendants opposed
Wright’s motion for summary judgment, and independently moved
for summary judgment on two issues, including that O’Malley and
Heeney were entitled to qualified immunity. The District Court
denied both cross-motions for summary judgment. Specifically
with regard to the issue of qualified immunity, the District Court
ruled that if all disputed facts were viewed in the light most
favorable to Wright, a reasonable fact-finder could conclude that
O’Malley and Heeney unreasonably dismissed Wright’s purported
reason for her break-in – to obtain evidence of the sexual assault
against her – and that the reason for the break-in should have
negated any perception of probable cause to suspect that Wright
had the requisite intent for the burglary. The District Court did not
analyze, independently, whether probable cause existed to arrest
Wright for criminal trespass. O’Malley and Heeney appeal the
denial of their motion for summary judgment on their defense of
qualified immunity.
II. Jurisdiction
We first consider whether we have jurisdiction to
entertain this interlocutory appeal of the District Court’s order
9
denying qualified immunity to O’Malley and Heeney. At the
outset, we note that “the Supreme Court has repeatedly stressed
the importance of resolving immunity questions at the earliest
possible stages of litigation,” Curley v. Klem, 298 F.3d 271, 277
(3d Cir. 2002) (collecting cases), because “[if] a case is
erroneously permitted to go to trial, then qualified immunity is
effectively lost.” Id. A decision on qualified immunity,
however, “will be premature when there are unresolved disputes
of historical fact relevant to the immunity analysis.” Id. at 278.
Despite the interlocutory nature of qualified immunity rulings,
they are reviewable on appeal where the dispute does not turn
upon “which facts the parties might be able to prove, but, rather,
whether or not certain given facts showed a violation of ‘clearly
established’ law.” Johnson v. Jones, 515 U.S. 304, 311 (1995).
The material facts here are not in dispute. The issue before us is
the purely legal question of whether the facts alleged, even in the
light most favorable to Wright, were legally sufficient to
establish probable cause for her arrest. Therefore, this Court has
appellate jurisdiction pursuant to 28 U.S.C. § 1291. See
Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). We exercise
10
plenary review of orders rejecting qualified immunity at the
summary judgment stage. See Eddy v. V.I. Water & Power
Auth., 256 F.3d 204, 208 (3d Cir. 2001).
III. Discussion
In her action, Wright raises two Fourth Amendment
violations: (1) false arrest based on her arrest for burglary, theft,
criminal trespass, and criminal mischief, and (2) malicious
prosecution based on the same charges. The defendant officers
maintain that the District Court erred by denying their summary
judgment motion on their qualified immunity defense. They first
argue that they violated no constitutional right by arresting
Wright because, given the information they possessed, a
reasonable person in their situation could have believed that she
had committed the property and theft offenses. In the
alternative, they submit that even if Wright’s constitutional
rights were violated, those rights were not clearly established at
the time of the arrest. Finally, they claim that neither officer
individually had sufficient knowledge of Wright’s rape to negate
any perceived existence of probable cause.
A. Qualified Immunity
11
Section 1983 provides a cause of action against any
person who, acting under color of state law, deprives another of
his or her federal rights. When an officer’s actions give rise to a
§ 1983 claim, the privilege of qualified immunity, in certain
circumstances, can serve as a shield from suit. See Hunter v.
Bryant, 502 U.S. 224, 227 (1991). The primary purpose of
affording public officials the privilege of qualified immunity,
thus insulating them from suit, is to protect them “from undue
interference with their duties and from potentially disabling
threats of liability.” Elder v. Holloway, 510 U.S. 510, 514
(1994) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 806
(1982)). The privilege of qualified immunity, however, can be
overcome when state officials violate “clearly established
statutory or constitutional rights of which a reasonable person
would have known.” Harlow, 457 U.S. at 818. The Supreme
Court, in Saucier v. Katz, explained the analytical process for
determining when the privilege of qualified has been overcome:
A court required to rule upon the qualified
immunity issue must consider, then, this
threshold question: Taken in the light most
favorable to the party asserting the injury, do the
facts alleged show the officer’s conduct violated
a constitutional right? This must be the initial
12
inquiry. . . . If no constitutional right would
have been violated were the allegations
established, there is no necessity for further
inquiries concerning qualified immunity. On
the other hand, if a violation could be made out
on a favorable view of the parties’ submissions,
the next, sequential step is to ask whether the
right was clearly established.
533 U.S. 194, 201 (2001) (citation omitted).
There is some disagreement as to how Saucier should be
interpreted. Specifically, the dispute is whether a court must
determine the issue of whether there has been a constitutional
violation before reaching the qualified immunity question, or
whether that inquiry is the first part of a two-pronged test for
qualified immunity. In some cases, we have interpreted Saucier
to imply that the issue of qualified immunity is only relevant
after a court has concluded that a constitutional violation has
occurred. In that view, if there is no constitutional violation,
there is no reason to reach the qualified immunity issue. See,
e.g., Carswell v. Borough of Homestead, 381 F.3d 235, 237 (3d
Cir. 2004). In other cases, we have interpreted Saucier to mean
that a defendant is entitled to qualified immunity unless a
plaintiff can prove both that a constitutional right has been
violated, and then that the constitutional right violated was
13
clearly established. See, e.g., Bennett v. Murphy, 274 F.3d 133,
136-37 (3d Cir. 2002). Under either interpretation, if no
constitutional violation is found, a court need not address
whether a reasonable officer would have known he or she was
violating a clearly established right. As a practical matter, the
outcome will be the same whether we conclude that the officers
are immune from suit or instead, that the plaintiff has no cause
of action.
Our concurring colleague believes that Brosseau v.
Haugen, ___ U.S.___, 125 S. Ct. 596 (2004), conclusively
resolves this dispute in favor of the first interpretation. We note
that at least six of our sister Courts of Appeals would seem to
disagree. See Sample v. Bailey, ___ F.3d ___, No. 04-4174,
2005 U.S. App. LEXIS 8328, at *17-*19 (6th Cir. May 9, 2005)
(holding that the first step in the qualified immunity analysis is
whether a constitutional violation has occurred); Simkins v.
Bruce, ___ F.3d ___, No. 04-3072, 2005 U.S. App. LEXIS 8073,
at *3-*5 (10th Cir. May 9, 2005) (same); Harris v. Coweta
County, ___ F.3d ___, No. 03-15094, 2005 U.S. App. LEXIS
6721, at *7 (11th Cir. April 20, 2005) (same); San Jose Charter
14
of the Hells Angels Motorcycle Club v. City of San Jose, 402
F.3d 962, 971 (9th Cir. 2005) (same); Craighead v. Lee, 399
F.3d 954, 961 (8th Cir. 2005) (same); Riverdale Mills Corp. v.
Pimpare, 392 F.3d 55, 60-61 (1st Cir. 2004) (same). Those
Courts of Appeals considered Brosseau and yet still treated the
constitutional violation as part of the qualified immunity test, as
opposed to a separate inquiry like our concurring colleague
recommends.2 See also Burke v. Town of Walpole, ___ F.3d
___, No. 04-1226, 2005 U.S. App. LEXIS 7105, at * 22 (1st Cir.
Apr. 25, 2005); Beard v. Whitmore Lake Sch. Dist., 402 F.3d
598, 603 (6th Cir. 2005); McVay v. Sisters of Mercy Health
Sys., 399 F.3d 904, 907-08 (8th Cir. 2005).3 Accordingly, at
least two of those Courts of Appeals have specifically concluded
that defendants would be entitled to qualified immunity upon a
determination that no constitutional violation was committed.
See Sample, 2005 U.S. App. LEXIS 8328, at *18 (“Qualified
2
Although only Riverdale discussed Brosseau in the context
of the structure of the inquiry, all of the cases cited Brosseau for
some proposition, indicating the Courts’ familiarity with the case.
3
As indicated by the cases, the First, Sixth, and Eighth
Circuits have considered qualified immunity doctrine in light of
Brosseau multiple times and analyzed the constitutional violation
as the first part of the qualified immunity inquiry.
15
immunity must be granted if the plaintiff cannot establish each
of these elements.”) (quotation omitted); Riverdale, 392 F.3d at
65 (holding that defendants were entitled to qualified immunity
when there was no constitutional violation). We believe that
those Courts of Appeals acted reasonably in reading Brosseau as
consistent with a two-step qualified immunity inquiry, with the
first step being the “constitutional issue” and the second being
“whether the right was clearly established.”
This case, however, does not require us to decide between
the two readings of Saucier because the constitutional violation
was presented to us in the context of qualified immunity.
Specifically, in the course of asserting their claim for qualified
immunity, Heeney and O’Malley argue there was no
constitutional violation. We recognize that a conclusion that no
constitutional violation took place would also negate an essential
element of the § 1983 claim, see Albright v. Oliver, 510 U.S.
266, 271 (1994), but the constitutional violation is best
addressed as an aspect of the qualified immunity analysis
because that was the jurisdictional basis for this interlocutory
appeal, see Swint v. Chambers County Comm’n, 514 U.S. 35,
16
49-50 (1995). While we could construe the officers’ arguments
as challenging Wright’s cause of action, we believe the proper
way for us to review the constitutional violation here is through
the qualified immunity denial. Accordingly, this opinion
analyzes the threshold inquiry, whether the officers’ conduct
violated Wright’s constitutional rights, as the first part of the
qualified immunity analysis.
B. Probable Cause
The Fourth Amendment provides that people are “to be
secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, . . . and no Warrants shall
issue, but upon probable cause.” U.S. Const. amend. IV. To
determine whether an arrest is valid, we look to the law of the
state where the arrest took place. United States v. Myers, 308
F.3d 251, 255 (3d Cir. 2002) (citing Ker v. California, 374 U.S.
23, 37 (1963) (plurality opinion)). Under Pennsylvania law,
police officers can execute warrantless arrests for felonies and
any grade of theft and attempted theft. See 18 Pa. Cons. Stat.
Ann. § 3904; Commonwealth v. Taylor, 677 A.2d 846 (Pa.
Super. Ct. 1996) (noting that police officers may make
17
warrantless arrests for felonies or breaches of the peace). An
arrest by a law enforcement officer without a warrant “is
reasonable under the Fourth Amendment where there is probable
cause to believe that a criminal offense has been or is being
committed.” Devenpeck v. Alford, 125 S. Ct. 588, 593 (2004).
While “[t]he probable-cause standard is incapable of
precise definition or quantification,” Maryland v. Pringle, 540
U.S. 366, 371 (2003), all interpretations of probable cause
require a belief of guilt that is reasonable, as opposed to certain,
see Hill v. California, 401 U.S. 797, 804 (1971) (“Sufficient
probability, not certainty, is the touchstone of reasonableness
under the Fourth Amendment. . . .”).
“Probable cause does not require the same type of
specific evidence of each element of the offense as would be
needed to support a conviction.” Adams v. Williams, 407 U.S.
143, 149 (1972). Therefore, the evidentiary standard for
probable cause is significantly lower than the standard which is
required for conviction. See Michigan v. DeFillippo, 443 U.S.
31, 36 (1979) (“We have made clear that the kinds and degree of
proof and the procedural requirements necessary for a conviction
18
are not prerequisites to a valid arrest.”) (citations omitted);
Wilson v. Russo, 212 F.3d 781, 789 (3d Cir. 2000) (holding that
probable cause only requires a “fair probability” that a person
committed the relevant crime). An arrest was made with
probable cause if “at the moment the arrest was made . . . the
facts and circumstances within [the officers’] knowledge and of
which they had reasonably trustworthy information were
sufficient to warrant a prudent man in believing that [the
suspect] had committed or was committing an offense.” Beck v.
Ohio, 379 U.S. 89, 91 (1964) (citations omitted). In other
words, the constitutional validity of the arrest does not depend
on whether the suspect actually committed any crime. Johnson
v. Campbell, 332 F.3d 199, 211 (3d Cir. 2003). Importantly for
this case, it is irrelevant to the probable cause analysis what
crime a suspect is eventually charged with, Barna v. City of
Perth Amboy, 42 F.3d 809, 819 (3d Cir. 1994) (“Probable cause
need only exist as to any offense that could be charged under the
circumstances.”), or whether a person is later acquitted of the
crime for which she or he was arrested, DeFillippo, 443 U.S. at
36; see also Devenpeck, 125 S. Ct. at 594 (“The rule that the
19
offense establishing probable cause must be ‘closely related’ to,
and based on the same conduct as, the offense identified by the
arresting officer at the time of arrest is inconsistent with []
precedent.”).
Wright contends that because the officers were aware of
each other’s investigations, Heeney should have known that
Wright broke a window and entered Pue’s home to retrieve her
clothes and to gather evidence to prove she had been assaulted.
She argues therefore, that Heeney knew or should have known
that there was no criminal intent to commit any offense. The
officers argue that they had probable cause to arrest Wright
because they reasonably believed she committed burglary, theft,
or criminal trespass. They contend that a reasonable belief that
she committed any of these offenses entitles them to qualified
immunity. We agree.
Whether any particular set of facts suggest that an arrest
is justified by probable cause requires an examination of the
elements of the crime at issue. We focus our inquiry on whether
the officers had probable cause to arrest her for the offense of
criminal trespass. Section 3503(a)(1) of the Pennsylvania Crime
20
Codes provides that a person commits the offense of criminal
trespass when:
knowing that he is not licensed or privileged to
do so, he:
(i) enters, gains entry by subterfuge or
surreptitiously remains in any building or
occupied structure or separately secured or
occupied portion thereof; or
(ii) breaks into any building or occupied
structure or separately secured or occupied
portion thereof.
18 Pa. Cons. Stat. Ann. § 3503(a)(1).4
Under this statute, probable cause exists for an arrest for
criminal trespass when the facts and the circumstances are
sufficient for a prudent person to believe that the suspect: (1)
entered or broke into a building or occupied structure, (2)
knowing that she or he had no license or privilege to do so.
Unlike burglary, which requires proof of criminal intent,
criminal trespass merely requires proof of scienter, in other
words, that the defendant had knowledge of a lack of license or
privilege to enter. Commonwealth v. Williams, 496 A.2d 31,
42-43 (Pa. Super. Ct. 1985) (citing Commonwealth v. Carter,
4
The offense of criminal trespass is a felony. 18 Pa. Cons.
Stat. Ann. § 3503(a)(2).
21
393 A.2d 660, 661 (Pa. 1978)).
Looking at the facts in the light most favorable to Wright,
we assume she entered the residence to retrieve her clothes and
evidence of her assault under the mistaken belief that she had
license or privilege to enter. But, we are concerned here only
with the question of probable cause, not Wright’s guilt or
innocence. Thus, even if Wright lacked the requisite knowledge
to commit criminal trespass, we must evaluate whether the
totality of the circumstances was sufficient to justify a
reasonable belief on the part of the officers that Wright had
committed a crime.
Wright admitted to police that she broke a small window
pane and entered the Cedar Park residence. She left with bags
containing various items from the residence including wine,
watches, clothes, and other items that were unlikely to help the
police identify her attackers. She turned those bags over to the
police only after her mother alerted the police as to her
possession of them. Pue said that neighbors had seen a woman
at her house with her brother. Heeney found a slip of paper with
Wright’s name on it at the scene of the alleged burglary.
22
Although her explanation for entering Pue’s residence is a
factor in the probable cause analysis, it is not dispositive. The
probable cause inquiry looks to the totality of the circumstances;
the standard does not require that officers correctly resolve
conflicting evidence or that their determinations of credibility,
were, in retrospect, accurate. The officers did not believe
Wright’s explanation for her entry. Although they may have
made a mistake, their belief was not unreasonable in light of the
information the officers possessed at the time. See Paff v.
Kaltenbach, 204 F.3d 425, 437 (3d Cir. 2000). Wright admitted
breaking a window and entering the residence and removing
items of little or no evidentiary value, and she returned those
items only after the police were alerted to the fact that she had
them. In addition to those facts, there was an identification by a
neighbor and her name was found on a piece of paper in the
house. In those circumstances, we cannot say that the officers
acted in an unreasonable manner.
In its opinion, the District Court determined that “there
are disputed factual issues which bear directly upon the question
of whether a reasonable police officer could have mistakenly
23
believed that there was probable cause to arrest [Wright].” (App.
34.) The District Court reached this conclusion, however, by
focusing on the offense of burglary and not the other offenses
against Wright. When we consider the offense of criminal
trespass, we conclude that the officers had probable cause to
arrest her for this offense. Accordingly, Wright’s warrantless
arrest for criminal trespass was not a seizure in violation of the
Fourth Amendment.
Finding no constitutional violation, we reverse the
District Court’s denial of summary judgment based on qualified
immunity. In light of this decision, we need not address whether
probable cause existed for the other two felony offenses,
burglary and theft, with which she was charged. See Barna, 42
F.3d at 819.
C. Malicious Prosecution
Our decision also disposes of Wright’s remaining § 1983
claim– malicious prosecution. Wright bases her malicious
prosecution claim on alleged Fourth Amendment violations
arising from her arrest and prosecution. To prevail on this claim,
she must show that the officers lacked probable cause to arrest
24
her. As already discussed, however, there was probable cause
for Wright’s arrest and prosecution for criminal trespass based
on the information available to the officers at the time of her
arrest. Even though our discussion of probable cause was
limited to the criminal trespass claim, it disposes of her
malicious prosecution claims with respect to all of the charges
brought against her, including the burglary. Because Wright
failed to establish that a constitutional right was violated, the
officers are entitled to qualified immunity with respect to the
malicious prosecution claim as well.
IV. Conclusion
We have considered all of the arguments advanced by the
parties and conclude that no further discussion is required.
Accordingly, the judgment of the District Court will be reversed.
25
Wright v. City of Philadelphia, Case No. 03-1633
SMITH, Circuit Judge, concurring.
Although I reach the same result as does the majority, I
write separately to explain how in my view we should characterize
the nature of our inquiry in this case. While the majority considers
this issue to be unsettled, I believe that position is no longer tenable
under Supreme Court precedent.
According to the majority, it is unclear whether a court must
determine the existence vel non of a constitutional violation before
weighing whether officials sued for that violation are protected by
qualified immunity, or whether the first determination is part and
parcel of the second. I agree that the confusion in this area began
in Saucier v. Katz, 533 U.S. 194 (2001), and that our cases reflect
that confusion. Saucier taught that a court required to rule on a
qualified immunity issue must consider a “threshold” question:
“Taken in the light most favorable to the party asserting the injury,
do the facts alleged show the officer’s conduct violated a
constitutional right?” 533 U.S. at 201. “If no constitutional right
would have been violated were the allegations established,” the
Court continued, “there is no necessity for further inquiries
concerning qualified immunity.” Id. The final clause in that
statement can be read two ways, and we have employed both
readings. At times, we have reasoned that the existence of a
constitutional violation is part of the qualified immunity inquiry.
See, e.g., Kopec v. Tate, 361 F.3d 772, 776 (3d Cir. 2004) (quoting
Bennett v. Murphy, 274 F.3d 133, 136 (3d Cir. 2001) (“If the
plaintiff fails to make out a constitutional violation, the qualified
immunity inquiry is at an end; the officer is entitled to
immunity.”)). At other times, we have declared that determination
of the constitutional issue precedes qualified immunity. See, e.g.,
Carswell v. Borough of Homestead, 381 F.3d 235, 237 (3d Cir.
2004).
26
I believe that Brosseau v. Haugen, 125 S. Ct. 596 (2004)
(per curiam), clarifies the correct reading of Saucier on this
question. In Brosseau, the Court considered whether a police
officer violated a clearly established constitutional right when the
officer shot a fleeing suspect in the back. According to the Court,
this inquiry was separate from the question whether a constitutional
right was violated in the first place. “We express no view as to the
correctness of the Court of Appeals’ decision on the constitutional
question itself,” the Court explained, id. at 598, but added that,
“[w]e believe that, however that question is decided, the Court of
Appeals was wrong on the issue of qualified immunity.” Id.Importantly, the Court provided this disclaimer: “We have no
occasion to reconsider our instruction in [Saucier] that lower courts
decide the constitutional question prior to deciding the qualified
immunity question.” Id. at 598 n.3. As the concurring opinion in
Brosseau emphasizes, this last point is not merely a matter of
semantics. Joined by Justices Scalia and Ginsburg, Justice Breyer
stated:
I am concerned that the current rule [requiring lower
courts to consider the constitutional question before
the qualified immunity question] rigidly requires
courts unnecessarily to decide difficult constitutional
questions when there is available an easier basis for
the decision (e.g., qualified immunity) that will
satisfactorily resolve the case before the court.
Indeed, when courts’ dockets are crowded, a rigid
“order of battle” makes little administrative sense
and can sometimes lead to a constitutional decision
that is effectively insulated from review.
125 S. Ct. at 600-01 (Breyer, J., concurring).5 Justice Stevens,
5
In favor of its prescribed “order of battle,” the Saucier
Court for its part explained that
[i]n the course of determining whether a
27
dissenting, seemed equally convinced that the constitutional and
qualified immunity inquiries are separate. See id. at 601. Tallying
the votes, I conclude that while some Justices of the Supreme Court
do not like the rule, all nine Justices read Saucier to require two
separate inquiries, a constitutional inquiry and a qualified immunity
inquiry, and at least eight Justices believe the former must precede
the latter.6 Accordingly, I disagree with the majority that, in the
wake of Brosseau, “[t]here is some disagreement as to how Saucier
v. Katz, which sets forth the qualified immunity inquiry, should be
interpreted.”
The majority appears to attempt to avoid confusion by re-
labeling the second prong of the Saucier test. Whereas Brosseau
refers to the second prong of the Saucier test as addressing the
“qualified immunity” issue, the majority refers to that prong as
addressing “whether the right was clearly established.” While I
share the concern motivating this seemingly commonsensical
change, I think it conceals the basic problem with the majority’s
constitutional right was violated on the premises
alleged, a court might find it necessary to set forth
principles which will become the basis for a holding
that a right is clearly established. This is the process
for the law’s elaboration from case to case, and it is
one reason for our insisting upon turning to the
existence or nonexistence of a constitutional right as
the first inquiry. The law might be deprived of this
explanation were a court simply to skip ahead to the
question whether the law clearly established that the
officer’s conduct was unlawful in the circumstances
of the case.
533 U.S. at 201.
6
Unlike the concurring Justices in Brosseau, Justice Stevens
in dissent did not clearly agree with the Brosseau majority that
courts must settle the constitutional question before the qualified
immunity question. See 125 S.Ct. at 601.
28
approach. That is, the Supreme Court seems clearly to view the
second prong of the Saucier test as the essential “qualified
immunity” inquiry – not as part of a larger qualified immunity
inquiry. See Saucier, 533 U.S. at 208 (“[b]ecause we granted
certiorari only to determine whether qualified immunity was
appropriate, however, and because of the limits imposed on us by
the questions on which we granted review, we will assume a
constitutional violation could have occurred on the facts alleged .
. . .”). We should do the same.
Unfortunately, in my view the majority compounds its error
in describing the nature of our inquiry by holding that the officers
in this case were entitled to qualified immunity because there was
no constitutional violation. See Maj. Op. at 2 (“[W]e conclude that
there was no constitutional violation. Therefore, we hold that the
officers were entitled to qualified immunity and we will reverse
denial of the officers’ motion for summary judgment.”) To my
knowledge, only one of our sister circuits has gone this far. See
Riverdale Mills Corp. v. Pimpare, 392 F.3d 55, 65 (1st Cir. 2004)
(holding that government agents were entitled to qualified
immunity because the plaintiff failed to establish a constitutional
violation under Saucier’s first prong). 7 By contrast, the Eleventh
Circuit speaks neither of the qualified immunity inquiry as
consisting of two steps, see Evans v. Stephens, ___ F.3d ___, No.
02-16424, 2005 WL 1076603, at *4 (11th Cir. May 9, 2005) (en
7
The other cases from the Courts of Appeals cited by the
majority do speak of Saucier’s two-step qualified immunity
inquiry, but they do not cite Brosseau to support that
characterization. See Craighead v. Lee, 399 F.3d 954, 962 (8th
Cir. 2005) (considering Brosseau’s instructions regarding Saucier’s
second prong); Beard v. Whitmore Lakes Sch. Dist., 402 F.3d 598,
607 (6th Cir. 2005) (same); San Jose Charter of the Hells Angels
Motorcycle Club v. City of San Jose, 402 F.3d 962, 978 n.17 (9th
Cir. 2005) (same). See also Simkins v. Bruce, ___ F.3d ___, No.
04-3072, 2005 WL 1077718, at *1 (10th Cir. May 9, 2005) (same).
29
banc),8 nor holds that failure to establish a constitutional violation
triggers qualified immunity. See Purcell v. Toombs County, 400
F.3d 1313, 1324 (11th Cir. 2005) (Edmondson, C.J.).9 As the
majority’s terminology and holding seem to me inconsonant with
Brosseau, I believe the Eleventh Circuit employs the better
approach.
Ultimately, the majority apparently feels compelled to hold
that the officers have qualified immunity because “that was the
basis for this interlocutory appeal.” In other words, the majority
seems to believe that what arrived in a “qualified immunity”
envelope cannot be returned in a “failure to state a claim”
envelope. I disagree with the majority for two reasons.
First, the purpose of the qualified immunity doctrine is to
“permit insubstantial lawsuits to be quickly terminated,” Harlow v.
Fitzgerald, 457 U.S. 800, 814 (1982), i.e., to allow the “dismissal
of insubstantial lawsuits without trial.” Id. In other words, the
essential reason we are permitted to exercise interlocutory
jurisdiction when qualified immunity is denied by a district court
is broadly to determine whether dismissal is appropriate. “Unless
the plaintiff’s allegations state a claim of violation of clearly
established law,” the Court has explained, a defendant pleading
qualified immunity is entitled to dismissal before the
commencement of discovery.” Mitchell v. Forsyth, 472 U.S. 511,
526 (1985) (emphasis added). Thus, “[a] court evaluating a claim
8
But see Harris v. Coweta County, ___ F.3d ___, No. 03-
15094, 2005 WL 901889, at *2 (11th Cir. Apr. 20, 2005)
(describing two-step Saucier test as plaintiff’s burden to show that
qualified immunity is not appropriate).
9
See also Myers v. Redwood City, 400 F.3d 765, 770 (9th
Cir. 2005) (“Although we conclude that the Defendants did not
violate the constitutional rights of the Plaintiffs, given the
complexity of the question, we will address the easier question of
qualified immunity as well.”).
30
of qualified immunity must first determine whether the plaintiff has
alleged a deprivation of a constitutional right at all, and if so,
proceed to determine whether that right was clearly established at
the time of the violation.” Wilson v. Layne, 526 U.S. 603, 609
(1999) (emphasis added; citation omitted). In my view, where no
such claim is stated, dismissal on that ground – rather than on the
ground that the officials are immune – is appropriate.
Second, the majority’s reasoning contravenes the purpose of
the two-step Saucier inquiry. As discussed above, Saucier’s “order
of battle” is designed to force courts to establish precedent on the
contours of constitutional rights to provide guidance for law
enforcement officers. See 533 U.S. at 201, 207. Applying this
approach, a court may find that an official’s alleged conduct was
constitutionally permissible or that the conduct, while
constitutionally impermissible, did not cross a “clearly established”
line. Referring to both of these scenarios as establishing “qualified
immunity” sends a confusing signal to law enforcement officials
concerning what actions they may or may not take. The majority’s
reasoning thus ironically has the potential to frustrate the
development of “clearly established” law, the very raison d’etre for
Saucier’s two-step test.
In view of the foregoing, I believe the proper analytical
course in this case would be first to consider whether the
defendants violated the Constitution. Because we answer that
question in the negative, Ms. Wright lacks a cause of action. That
determination should end our inquiry, and we should decline to
reach the “second, qualified immunity question.” Brosseau, 125 S.
Ct. at 597.
31