RUSFELDT v. CITY OF READING

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

__________________________________________

ADEN RUSFELDT, :

Plaintiff, :

:

v. : Civil No. 5:23-cv-01523-JMG

:

CITY OF READING, et al., :

Defendants. :

__________________________________________

MEMORANDUM OPINION

GALLAGHER, J. June 10, 2024

I. OVERVIEW

Plaintiff, a religious pastor, was arrested for disorderly conduct, under 18 Pa. C.S. § 5503,

across the street from a high school when the speech he was giving ascended beyond generic

religious and moral utterances, and he began to personally insult minor students. Prior to his arrest,

the audience threw water at him, yelled invectives, and physically grabbed at his person. Plaintiff’s

claims for violation of his First Amendment and Fourth Amendment rights and False Arrest fail,

as the Police Officer had probable cause to arrest him for disorderly conduct involving fighting

words. In the alternative, the Officer is entitled to qualified immunity.

II. FACTUAL BACKGROUND

On the afternoon of January 10, 2023, near in time to school dismissal, Plaintiff, Aden

Rusfeldt, pastor of the Key of David Christian Center, along with his wife, stepson, and another

individual positioned themselves on a street intersection across from the Reading Senior High

School. Defs.’ Statement of Undisputed Facts at ¶¶ 2-5, 8-9, ECF No. 35. Upon arrival, while

carrying signs bearing religious messages, Plaintiff began speaking through a megaphone and

made statements referencing his religious beliefs and advocating for the crowd to “give their life

to Jesus Christ.” Id. 10, 13; Pl. Statement of Disputed Facts at ¶ 10, ECF No. 45; Def. App. 52

(Video 00:03-:00:09). Plaintiff’s wife recorded the relevant events on a handheld digital

camcorder. ECF No. 35 at ¶ 12. Plaintiff continued to make statements such as “some of you are

suicidal, you need God,” “some of you are depressed, you need God,” and “some of you are

whores, you need God.” Def. App. 52 (Video 00:22-:00:33). Just after the last statement, a minor

female approached Plaintiff and threw water from a bottle at him. Id. at 00:29-00:32.

After being hit with the water, Plaintiff stated “Film that whore. Film that little slut cross

the street.” Id. at 00:35-00:40. After this personal remark, Plaintiff continued to make comments

which ranged from generalized statements with uncertain applicability to comments directed at

sub-groups of the student body. Id. at 1:35-1:37 (“some of you know that you are going to hell”),

01:12-01:15 (“nasty whores and sluts right there”). Additionally, he made comments such as

“you’re gonna go to hell students” that applied to the entire crowd standing before him. Id. at

3:27-3:29. As Plaintiff made these comments, the students in the crowd continued to throw water

on him, yelled back at him, and made crude gestures toward him. Id. at 01:12-02:45.

Eventually members of the School District Police approached and attempted to control the

situation by standing between Plaintiff and the crowd of students. Id. at 02:45. During the

interaction, School Resources Officer Pablo Dominguez radioed on the dispatch channel and

reported that people were throwing bottles at the scene. ECF No. 35 at ¶ 31. Subsequently, City of

Reading Police Officer Morar arrived and exited his vehicle. Id. at ¶ 32. Once on scene, Officer

Morar discussed the ongoing situation with Reading High School Security Officer Ruben

Rodriquez, who informed him that Plaintiff was calling individual girls “whores” and “sluts” and

that parents were on the way to “fight Plaintiff.” Morar Dep., 68:24-25, 69:1-5, 18-24, ECF No.

46 at 73. As the two officers were conversing, Plaintiff said “go to hell lesbo dyke” into his

megaphone.1 ECF No. 45 at ¶ 36. Although Officer Morar mistakenly heard something along the

lines of “go to hell lesbos.” ECF No. 35 at ¶¶ 37, 104. After Plaintiff’s utterance, two female

students approached Plaintiff, and one of them stated “bitch, what? Oh hell no”. Id. at ¶ 38. School

Security Officers intercepted and redirected these students. Id. at ¶ 40.

Officer Morar then approached Plaintiff and warned him that if he continues “ril[ing] these

kids up” he would be “tak[en] in.” Id. at ¶ 46. After Plaintiff requested that Officer Morar get his

supervisor, Officer Morar suggested Plaintiff relocate and speak “three, four, five blocks down.”

Id. at ¶¶ 48-52. Plaintiff vocalized he “would not leave unless [he] was dragged away in

handcuffs.” Id. at ¶ 57. At that time, Officer Morar placed Plaintiff in handcuffs and placed him in

the back of a police van. Id. at ¶¶ 58-60. Plaintiff remained in custody for approximately 50-65

minutes. ECF No. 45 at ¶ 66. He was subsequently released without charges. ECF No. 35 at ¶ 67.

III. LEGAL STANDARD

Summary judgment is appropriate when the moving party “shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). A factual dispute is “genuine” when the “evidence is such that a reasonable jury

could return a verdict for the nonmoving party.” Physicians Healthsource, Inc. v. Cephalon, Inc.,

954 F.3d 615, 618 (3d Cir. 2020). And a fact is material if “it might affect the outcome of the suit

under governing law.” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

1 Defendants contend Plaintiff stated, “go to hell, lesbo dykes.” ECF No. 35 at ¶ 38. However,

Plaintiff contends he said “go to hell, lesbo dyke” in the singular form. ECF No. 45 at ¶ 36. For

the purposes of summary judgment, the Court views the evidence in the light most favorable to

the nonmoving party, Plaintiff, and therefore accepts Plaintiff’s contention that this was a singular,

personal statement. Vaughan v. Boeing Co., 733 Fed. Appx. 617, 621 (3d Cir. 2018).

The party moving for summary judgment must “identify[] those portions of the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,

which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v.

Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted). In response, the nonmoving

party must then “designate specific facts showing that there is a genuine issue for trial.” Id. at 324

(internal quotation marks omitted). “The mere existence of a scintilla of evidence in support of the

[nonmovant’s] position will be insufficient; there must be evidence on which the jury could

reasonably find for the [nonmovant].” Daniels v. Sch. Dist. of Phila., 776 F.3d 181, 192 (3d Cir.

2015) (quoting Anderson, 477 U.S. at 252).

In applying this standard, the court must “construe the evidence in the light most favorable

to the non-moving party.” Anderson, 477 U.S. at 255. At the summary judgment stage, the court’s

role is not to weigh the evidence and determine the ultimate truth of the allegations. Baloga v.

Pittston Area Sch. Dist., 927 F.3d 742, 752 (3d Cir. 2019). Instead, the court’s task is to determine

whether there remains a genuine issue of fact for trial. Id.

IV. ANALYSIS

A. 42 U.S.C. § 1983: Violation of Constitutional Rights

Plaintiff’s Complaint alleges Officer Morar deprived him of his “rights, privileges or

immunities secured by the U.S. Constitution namely retaliation against freedom of speech and of

religion under the First Amendment and arrest without probable cause under the Fourth

Amendment.” Complaint at ¶ 31, ECF No. 1. However, if Officer Morar had probable cause to

arrest Plaintiff, both claims must fail. See Gilles v. Davis, 2004 U.S. Dist. LEXIS 28732, *19

(W.D. Pa. 2004) (“the common component to [the false arrest and First Amendment] claims is

probable cause”); Nieves v. Bartlett, 587 U.S. 391, 397 (2019) (existence of probable cause

precludes First Amendment retaliation claims); Dowling v. City of Philadelphia, 855 F.2d 136,

141 (3d Cir. 1988) (element of false arrest includes arrest without probable cause).

The Court finds Defendant Officer Morar had probable cause to arrest Plaintiff for

disorderly conduct and, in the alternative, if he was mistaken as to the existence of probable cause,

his belief was “an objectively reasonable evaluation of clearly established law, which entitles [him]

to qualified immunity from prosecution.” Gilles, 2004 U.S. Dist. LEXIS 28732 at *19-20. The

Court is guided by the analysis of the Western District of Pennsylvania in Gilles, which was

ultimately upheld by the Third Circuit. See Gilles v. Davis, 427 F.3d 197, 204-205 (3d Cir. 2005).

1. Disorderly Conduct under PA law

Officer Morar arrested Plaintiff for disorderly conduct pursuant to Pennsylvania Criminal

Code, 18 Pa. C.S. § 5503(a) which provides:

(a) Offense defined. –A person is guilty of disorderly conduct if, with intent to cause public

inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he:

(1) Engages in fighting or threatening, or in violent or tumultuous behavior;

(2) Makes unreasonable noise;

(3) Uses obscene language, or makes an obscene gesture; or

(4) Creates a hazardous or physically offensive condition by any act which serves

no legitimate purpose of the actor.

“Under the disorderly conduct statute, ‘whether a defendants’ words or acts rise to the level

of disorderly conduct hinges upon whether they cause or unjustifiable risk a public disturbance.’”

Gilles, 2004 U.S. Dist. LEXIS 28732 at *20 (quoting Commonwealth v. Hock, 728 A.2d 943, 946

(Pa. 1999)). Unprotected speech, such as fighting words, can constitute a disorderly conduct

violation. Id.; but see Johnson v. Campbell, 332 F.3d 199, 211 (3d Cir. 2003) (stating statute must

be narrowly drawn and construed to only punish unprotected speech).

2. First Amendment

Plaintiff alleges Officer Morar is liable under 42 U.S.C. § 1983 for retaliating against him

for practicing his First Amendment right to free speech and religion. The Court disagrees.

To successfully prove a retaliation claim, a plaintiff must prove “(1) that he engaged in

constitutionally-protected activity; (2) that the government responded with retaliation; and (3) that

the protected activity caused the retaliation.” Eichenlaub v. Twp. Of Indiana, 385 F.3d 274, 282

(3d Cir. 2004). The first step is for the Court to determine whether Plaintiff was engaging in

constitutionally protected activity. Id.

The First Amendment provides broad protection for speech, and censorship and

punishment are avoided as “a principal function of free speech under our system of government is

to invite dispute.” Texas v. Johnson, 491 U.S. 397, 408 (1989). However, when “shown likely to

produce a clear and present danger of a serious substantive evil that rises far above public

inconvenience, annoyance, or unrest,” speech exceeds the bounds of constitutional protection and

must be limited to maintain order and protect society. Terminiello v. City of Chicago, 337 U.S. 1,

4 (1949). As such, “the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting

words’” are not protected under the First Amendment. Chaplinsky v. New Hampshire, 315 U.S.

568, 572 (1942).

Fighting words are “those which by their very utterance inflict injury or tend to incite an

immediate breach of the peace.” Cantwell v. Connecticut, 310 U.S. 296, 309 (1940); see also

Johnson, 491 U.S. at 409 (“to be punishable, words must do more than bother the listener; they

must be nothing less than an invitation to exchange fisticuffs.”). “Resort to epithets or personal

abuse is not in any proper sense communication of information or opinion safeguarded by the

Constitution…” Id. at 310-11. Whether specific utterances constitute fighting words may depend

on the audience. See City of Houston v. Hill, 482 U.S. 451, 462 (1987) (finding a properly trained

police officer reasonably expected to exercise a higher degree of restraint than the average citizen).

In Gilles, the Third Circuit upheld the District Courts finding of probable cause to arrest

the plaintiff for disorderly conduct based on his use of fighting words. Gilles, 427 F.3d at 205. The

plaintiff, a self-proclaimed “campus-evangelist,” engaged in a mix of protected and unprotected

speech on a college campus. Id. at 201, 205. The Third Circuit found “derogatory language

generically directed to the crowd” protected, as it was not personally directed at any particular

member of the audience and was not likely to incite an immediate breach of the peace. Id. at 205.

However, the plaintiff’s epithets personally directed and abusively targeted at members of the

crowd were determined to be fighting words. Id. (finding “Christian lesbo,” “lesbian for Jesus,”

and other phrases constituted fighting words).

In making the original determination, the District Court relied on the circumstances of the

ongoing situation. The court stated that the defendant was “summoned to a ‘near riot’ situation,

wherein the speaker was calling out individuals and insulting them with highly offensive

language,” which drew a large crowd of viewers that “hurl[ed] heated invectives at him,

approach[ed] him, and even thr[ew] objects at him.” Gilles, 2004 U.S. Dist. LEXIS 28732 at *26.

The court found these factors gave the defendant officer reasonable belief “that fighting words

were being uttered, the speaker intended to cause public inconvenience or provoke annoyance, or

that he recklessly created a risk of public unruliness, tumult, and disorder.” Id.

Here, like Gilles, much of Plaintiff’s speech was constitutionally protected, such as his

generic religious and moral declarations. Statements such as “most of you have no good idea about

life,” “some of you are suicidal, you need God,” and even “some of you are whores” are protected

speech that does not rise to the level of fighting words. See Def. App. 52 (Video 00:16-00:32).

This is because the generic nature of the statements and the uncertainty of their application makes

them unlikely to cause an immediate breach of the peace. However, when Plaintiff began

personally targeting minor students his speech ascended beyond First Amendment protection and

inflicted injury from the moment the statements were uttered. For example, Plaintiff specifically

called one minor a “whore” and “slut” and directed another member of his group to film her. Id.

at 00:32-00:40. Later, Plaintiff stated “go to hell lesbo dyke,” as police officers attempted to have

students disperse from the increasingly hostile environment. Id. at 05:31-05:33. While the majority

of Plaintiff’s speech was protected, Officer Morar was justified in arresting him for disorderly

conduct based on the speech that ascended into fighting words.2

Not only were portions of Plaintiff’s speech likely to incite an immediate breach of the

peace, but they in fact did so. Students threw projectiles, physically approached Plaintiff and his

group, and grabbed at Plaintiff’s person. His wife later reported that she believes she was hit with

a bullet from a pellet gun during the interaction.3 The situation became the perfect example of

2 The Court bases its analysis on the comments personally directed to individual students.

However, it also acknowledges the fine line between personally insulting an individual and

directing a statement to members of a crowd with unquestioning applicability. Plaintiff called a

sub-group of the crowd “nasty whores and sluts.” This statement is inherently different than stating

“some of you are whores and sluts” and is more likely to cause a breach of the peace, as it is akin

to telling each member of the group the individual message. While the Third Circuit stated

“language, when not personally directed at a particular member of the audience, is not likely to

incite an immediate breach of the peace,” it was reflecting on language of uncertain applicability.

See Gilles, 427 F.3d at 205 (“by definition, there are thousands of fornicators on this campus,”

“drunkards are everywhere on this campus”). However, when someone addresses members of a

crowd, and those members know they are the target audience, the meaning is different. Plaintiff’s

personal verbal attacks clearly take this case beyond the realm of protected speech, but drawing a

ridged line at similar utterances runs the risk of creating an unworkable standard in future cases.

3 Plaintiff asserts that the police officers had an obligation to arrest the minors, if anyone, for

engaging in the physical aspect of the altercation. While the Court does not condone the use of

violence, whether the police also had probable cause to arrest the minor students does not justify

Plaintiff’s use of unprotected speech or disorderly conduct.

public unruliness, tumult, and disorder. Without police intervention, the public unrest would have

surely escalated, as parents of the students were reportedly en route to join the condemnation.

Despite broad First Amendment protection, police officers are not forced to stand idly by and

watch a physical altercation commence as a result of personally targeted insults.

3. Qualified Immunity

Further, Officer Morar avers he is entitled to qualified immunity. The Court agrees.

“Government officials performing discretionary functions are ‘shielded from liability for

civil damages insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.’” Gilles, 2004 U.S. Dist.

LEXIS 28732, *28 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “The Supreme Court

has emphasized that the inquiry is whether a reasonable officer could have believed that his or her

conduct was lawful, in light of the clearly established law and the information in the officer’s

possession.” Id. (internal citations omitted). The doctrine “gives ample room for mistaken

judgments” by protecting “all but the plainly incompetent or those who knowingly violate the

law.” Hunter v. Bryant, 502 U.S. 224. 227 (1991).

Further, Plaintiff argues that the holding in Nieves v. Bartlett requires that Defendants’ Motion be

denied, since Plaintiff was arrested when other members of the crowd who engaged in prohibited

conduct were not. See Nieves v. Bartlett, 587 U.S. 391, 407-08 (2019) (holding “no-probable-

cause” requirement inapplicable when plaintiff presents “objective evidence that he was arrested

when otherwise similarly situated individuals not engaged in the same sort of protected speech had

not been.”). However, Plaintiff fails to compare similarly situated individuals, and instead

compares his behavior to the very students he caused to breach the peace. Requiring the arrest of

members of the crowd that Plaintiff insulted would be an incomprehensible application of Nieves.

Instead, the Supreme Court illustrated the holding with an example of a jaywalking arrest post-

vocal complaint about police conduct. This example is not akin to police officers making a

judgment call on how to control a near riot situation. Officer Morar was not “exploit[ing] his arrest

power as a means of suppressing [Plaintiff’s] speech.” Id. at 406. Instead, he was trying to control

the situation and arrested the actor who refused to comply with police directives.

Here, Officer Morar could reasonably have believed, in light of clearly established law and

the information known to him, that Plaintiff’s arrest was based on probable cause. While Plaintiff

advocates for the overruling of Chaplinsky v. New Hampshire, which established the fighting

words doctrine, it remains good law. See Chaplinsky, 315 U.S. 568 (1942). Further, the Third

Circuit upheld the Middle District of Pennsylvania’s finding that the defendant used fighting words

in Gilles, a case that contains shockingly similar facts to the instant case.4 A reasonable officer

could have analyzed the instant situation, compared it to the factual circumstances of prior case

law, and concluded that the matter called for an arrest for a disorderly conduct violation.

As discussed supra, Officer Morar arrived at a chaotic scene in which minor students were

throwing water bottles, crowding Plaintiff, and at times physically grabbing his person and the

signs he was holding. He was informed the interaction began with Plaintiff “calling individual girls

whores and sluts.” Morar Dep., 68:24-25, 69:1-5, ECF No. 46 at 73. Upon arrival, in an attempt to

control the crowd, the Police Officers of the Reading Police Department directed everyone to

disperse. As the students were beginning to do so, Plaintiff shouted out “go to hell lesbo dykes,”

which caused a minor student to approach Plaintiff in attempt to make physical contact. ECF No.

45 at ¶¶ 36, 38. It is at that time that Officer Morar warned Plaintiff that if he continues to “rile

up” the students, he will be arrested. Id. at ¶ 46. Officer Morar, facing a chaotic situation involving

minor students, made a judgment call regarding how to maintain law and order. His decision was

4 While Plaintiff argues that Gilles has been abrogated, this is factually and legally incorrect. The

cases cited by Plaintiff are factually distinct and do not involve the use of the fighting words

doctrine. See Snyder v. Phelps, 562 U.S. 443, 458 (2011); see also Matal v. Tam, 582 U.S. 218,

243 (2017). The Court therefore finds no merit to the argument that Gilles is no longer good law.

not plainly incompetent, nor was it a knowing violation of the law, and it is therefore protected

under the qualified immunity doctrine.5

4. Fourth Amendment

Plaintiff also alleges Officer Morar violated his Constitutional rights by arresting him

without probable cause in violation of the Fourth Amendment. However, as discussed supra,

Officer Morar had probable cause to arrest Plaintiff for disorderly conduct based on his use of

fighting words. In addition, he is protected under the doctrine of qualified immunity. The Court

therefore finds no dispute of material fact on this issue.

B. False Imprisonment

Plaintiff alleges Officer Morar is liable for false imprisonment based on his warrantless

arrest of Plaintiff. In response to Defendant’s argument that the arrest was based on probable

cause, Plaintiff asserts that since Officer Morar was not present for much of the speech and

misheard Plaintiff’s “go to hell lesbo dyke” comment, he was not at liberty to arrest Plaintiff for

a misdemeanor or summary offense. However, the focus of the analysis is whether Officer Morar

had probable cause to believe that an offense was being committed in his presence, not whether

he heard the specific comment. See Commonwealth v. Trunzo, 589 A.2d 1147, 1150 (Pa. Super.

Ct. 1991). Probable cause can stem from an Officer’s own observations or from information

relayed from others. Commonwealth v. Schlotthauer, 61 Pa. D. & C.2d 170, 184 (Somerset Cty.

Ct. C.P. 1972).

5 Plaintiff again argues that Defendant’s reliance on Gilles in support of his qualified immunity

argument is misguided, as it was abrogated by Snyder. However, Snyder did not involve the

fighting words doctrine. Additionally, the holding was based upon non-personal public picketing.

It has never been expanded to personal targeted attacks during a face-to-face confrontation.

Here, as discussed supra, under the totality of the circumstances, Officer Morar had

probable cause to believe Plaintiff was engaging in disorderly conduct that was likely to incite a

breach of the peace, even if he misunderstood Plaintiff’s “go to hell lesbo dykes” utterance as

“go to hell lesbos.” The situation was ongoing and continued to escalate after Officer Morar’s

arrival. He was informed that the hostility commenced with Plaintiff uttering personally directed

insults at the minor students, and Officer Morar was present as he continued to do so. Therefore,

he had probable cause to believe Plaintiff was engaging in disorderly conduct and was justified

in arresting Plaintiff.6

V. CONCLUSION

For the reasons set forth above, summary judgment must be granted in favor of both

Defendants.

An appropriate Order follows.

BY THE COURT:

JOHN M. GALLAGHER

United States District Court Judge

6 Additionally, False Imprisonment is the only remaining claim against the City of Reading.

Neither party disputes that this claim fails as a city cannot be held liable for the acts of its police

officers under a theory of respondeat superior. See Randall v. City of Philadelphia, 2014 U.S. Dist.

LEXIS 116429, at *17 (E.D. Pa. Aug. 20, 2014). A plaintiff must instead “show that the City itself,

through the implementation of a policy, custom, or practice, caused the constitutional violation.”

Id. The claim therefore fails against the City.