The opinion
| IN THE UNITED STATES DISTRICT COURT
| FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
| MARIO CASTRO, : No. 3:23ev342
Plaintiff :
| : (Judge Munley)
| V. :
| CHRISTOPHER DEBIAS, a law
| enforcement officer now or formerly :
| working for the Borough of Hazleton, :
| Pennsylvania, in his personal :
| capacity only, :
| Defendant :
| SIIIIINIENIE EINE LILI LLL LLL bb ben sn seb Ds se Ds See De ge □□□ □□
| MEMORANDUM
Before the court are two motions relative to Defendant Christopher
| Debias’s motion for summary judgment on the issue of qualified immunity: 1) the
| defendant’s motion to seal and limit the dissemination of police videos of the
| incident prompting this lawsuit; and 2) Plaintiff Mario Castro’s motion to take the
| defendant's deposition.!_ These motions are ripe for a decision.
| Background
| Plaintiff filed this civil rights action pursuant to 42 U.S.C. § 1983 (“Section
i 1983”) alleging violations of his First and Fourth Amendment rights. (Doc. 1,
| Compl.).
| Defendant labels his motion as one for a protective order, but for the reasons discussed in
| this memorandum, defendant is seeking more than an order governing information exchanged
| in discovery. He is seeking to seal videos to be filed on the public docket and limit how these
| videos can be disseminated by the plaintiff.
! Plaintiff alleges that he travelled to Hazleton City Hall in March 2021 to
inquire about a report of assault he made to the Hazleton Police Department
| several days earlier. (Id. {[ 7). Once there, he used a phone in a hallway to
contact a member of the police department. (Id. 18). Defendant, a Hazleton
police officer, emerged from behind a closed, locked door. (Id. {] 9). Plaintiff then
inquired into the status of the report he previously made. (Id. {[ 10). Defendant
advised plaintiff that the investigating officer to whom he would have to speak
was on vacation. (Id. J] 11-12). After additional dialogue, defendant turned to
| leave back through the secure door. (Id. 13). Plaintiff alleges the following
| exchange then occurred:
[Plaintiff] asked, “What’s your name and password?” [sic]
[Defendant] responded, “162.”
[Plaintiff] again asked, “What’s your name?”
[Defendant] again stated, “162.”
| As the self-locking door was closing behind [Defendant],
| [Plaintiff] said, “That’s your name — 162? Asshole.”
(Id. 9] 14-20).
As plaintiff headed toward the nearest exit, defendant came back out from
| behind the secure door and approached plaintiff. (Id. J] 21-22). Defendant then
told plaintiff: “Watch your step on this if you don’t want to get arrested! Watch
your step! | told you what to do, okay?” (Id. J] 23). Plaintiff, “taken aback, stated,
|
| ‘Go ahead, arrest me.’ ” (Id. 24). Defendant then demanded that plaintiff “leave
City Hall.” (id. | 25). After additional “agitated words,” defendant commanded
| “OUT!” at plaintiff. (Id. J] 26).
Plaintiff avers that he did not comply with the defendant officer’s directives.
| (Id. 9] 27). “[W]ithin a second[,]’ defendant placed his hands on plaintiff and
| pushed him toward the exit. (Id.) Plaintiff avers that the defendant officer
screamed at him and pushed him to ground, “[a]ngry that [plaintiff] was not
leaving merely upon his lawless command[.]” (Id. {J 27-28). Defendant then
placed plaintiff in handcuffs and brought him behind the secure door where
| plaintiff stayed for an unspecified period of time until he was released. (Id. 28-
29). Per plaintiff, the defendant did not explain the reason for plaintiff's arrest.
(Id. J] 29). Plaintiff also alleges that the defendant officer broke plaintiff's camera
which was on plaintiff's body during the incident. (Id. {| 28).
| Based on these facts, plaintiff filed the instant civil rights complaint
pursuant to Section 1983. Count | of plaintiff's complaint asserts a cause of
action for false arrest. Plaintiff alleges that the defendant lacked probable cause
Ito place him under arrest in violation of his Fourth Amendment rights. ({a. 9] 33-
| 34). Plaintiff also claims his arrest was in retaliation for directing profanity at the
2 Plaintiff does not specify the speaker of these “agitated words” or whether both parties used
| such language.
|
defendant. Accordingly in Count Il, plaintiff brings a claim for retaliatory arrest in
violation of his First and Fourth Amendment rights. (Id. □□ 36-40).
Defendant initially filed a motion to dismiss plaintiffs Section 1983 claims
pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. 6). In that motion,
defendant argues he is entitled to qualified immunity. Under the law,
consideration of qualified immunity takes precedence. See Curley v. Klem, 298
F.3d 271, 277 (3d Cir. 2002)(citing Hunter v. Bryant, 502 U.S. 224, 226 (1991)
(per curiam) (other citations omitted) (stressing the importance of resolving
immunity questions at the earliest possible stages of litigation). On a motion to
dismiss for failure to state a claim, however, district courts accept all factual
allegations in the complaint as true, construe the complaint in the light most
favorable to the plaintiff, and determine whether, under any reasonable reading
of the complaint, the plaintiff may be entitled to relief. Phillips v. Cnty. of
Allegheny, 515 F.3d 224, 233 (3d Cir. 2008). Furthermore, courts may □□□□□□□□□□
consider only the allegations contained in the complaint, exhibits attached to the
complaint and matters of public record” when deciding a Rule 12(b)(6) motion.
Pension Ben. Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d
Cir. 1993)(citations omitted).
The above standard of review confines the court to the well-pleaded
allegations of plaintiff's complaint without consideration of evidence outside the
| complaint. As noted above, plaintiffs complaint indicates that the defendant
broke a camera the plaintiff had on his body during the incident. (Doc. 1, J] 28). Ir
| the parties’ case management plan, defendant asserts that both plaintiff and
defendant recorded the incident on body-worn video cameras. (Doc. 12).
Against this backdrop, the court converted defendants’ motion to dismiss tc
a motion for summary judgment pursuant to Federal Rule of Civil Procedure
12(d). Defendant's qualified immunity claim can best be addressed with critical
| and potentially dispositive evidence: the parties’ videos from the incident as it
occurring. (Doc. 16).
Following conversion of the motion to dismiss to a motion for summary
judgment, the parties filed the instant motions. The defendant officer's motion
concerns restricting access to three videos from the police-worn cameras
because “the main video from the body worn camera...depicts possible personal
| sensitive, and/or confidential information not related to the subject case,
discussion(s) about a separate criminal investigation, and personal information o
other officers.” (Doc. 21, Def. Mot. | 9). Specifically, the defendant officer seeks
| an order “sealing the videos, precluding use other than for purposes related to
the instant litigation, and precluding production to [p]laintiff himself in order to
| protect privacy.” (Id., requests for relief, p. 3-4).
| Plaintiff seeks to take the defendant officer's deposition to counter the
motion for summary judgment. (Doc. 23). Plaintiff argues that he should be
allowed to question the defendant about “what [the defendant] saw and heard
occurring” during the incident to essentially cross-examine the party relying upon
I the videos, while also ameliorating any potential subconscious biases created by
the perspectives of the camera lenses. (Doc. 24, PI. Br. in Supp. at 3-4). Havinc
been fully briefed, these motions are ripe for a decision.
| Jurisdiction
! As this case is brought pursuant to Section 1983, the court has jurisdiction
| under 28 U.S.C. § 1331 (“The district courts shall have original jurisdiction of all
| civil actions arising under the Constitution, laws, or treaties of the United
States.”). Furthermore, the court has jurisdiction pursuant to 28 U.S.C. §
1343(a).
| Analysis
The court will address defendant’s request for an order sealing and limiting
| dissemination of the police bodycam footage before turning to plaintiffs motion
| seeking the deposition of the defendant officer.
Defendant’s Requests to Seal and Limit Access to Police Videos
To move this matter to a decision on whether the defendant is entitled to
| qualified immunity, the court converted a motion to dismiss to a motion for
| 6
| summary judgment in order to review videos of the incident leading to this
| lawsuit, three taken from the perspective of the defendant officer and other
members of the Hazleton Police Department and one taken from the perspective
| of the plaintiff. To rule on that converted motion and make the videos a part of
| the summary judgment record, both parties would be required to file these videos
| with the Clerk of Court. Defendant requests that the police bodycam videos be
| sealed, that the plaintiff not be given access to these videos, and that the videos
| not be used for purposes other than that related to the subject litigation.
| In support of his request to seal and limit plaintiff's access, the defendant
officer argues:
| Here, there are portions of the video that go beyond the
| interaction between Plaintiff and Defendant, but which are
| necessary for the continuity of the video and a fair and
accurate representation of the interaction.
| Those portions of the video contain computer entries for
| other incident reports, daily activity reports, a criminal
| complaint, and discussions about the facts surrounding the
| incident that brought Plaintiff to the police department as
| well as the overtime call out list.
| The incident reports, daily activity reports, and criminal
| complaint could contain personal identifying information
| (including for juveniles), information related to ongoing
| investigations, wanted subject information, and even
| personal medical information — for people that are not
| parties to this action.
| The discussion about the unrelated incident contains
| names of people unrelated to this subject action. All of
| 7
| those people would have a privacy interest in that
| information. Some of that information being the same
| information which the Court has safeguards in place to
protect from public access.
| However, if these videos are made part of the public record
| and Plaintiff is provided a copy which he would then be
| permitted to publish on his YouTube channel, that very
| protected information would be in the public realm.
| The public disclosure could have dire consequences. It
| could lead to identify theft, others not being able to take
| advantage of a benefit received from having a record
| expunged or sealed, or even tarnishing one’s reputation
| and/or name if they were part of an investigation that did
| not result in charges.
| Any release of medical information would violate the Health
| Insurance Portability and Accountability Act (HIPAA).
| Just as important in keeping private, the overtime call out
| list contains personal home and cell phone numbers of the
| police department. This is information that should not be
7 put out in the public realm. It would subject them to
| criminals having access to their personal details and being
| able to locate their home. We must protect those that
| protect us.
| (Doc. 22, Df. Br. in Supp. 3-5).
| Taking a step back and looking at the larger picture, the bodycam videos
| would be filed of record to support the defendant officer's qualified immunity
| arguments on a motion initially filed by the defendant. Documents filed in
| connection with a motion for summary judgment are judicial records. In re
| Avandia Mktg., Sales Pracs. & Prod. Liab. Litig., 924 F.3d 662, 672, 675 (3d Cir.
|2019)(citing Rep. of the Philippines v. Westinghouse Elec. Corp., 949 F.2d 653,
|
| 660-62 (3d Cir. 1991)). And it is well-settled that the public enjoys a presumptive
| right of access to judicial records with such a right rooted in the common law and
|the Constitution. See id. The public’s interest in the instant matter is “particularly
| legitimate and important” because the defendant officer works for the public. See
| Pansy v. Borough of Stroudsburg, 23 F.3d 772, 786 (3d Cir. 1994). Moreover,
| the right of public access strengthens confidence in the courts and “public
| observation diminishes possibilities for injustice, incompetence, perjury, and
| fraud.” In re Cendant Corp., 260 F.3d 183, 192 (3d Cir. 2001)(quoting Littlejohn v
BIC Corp., 851 F.2d 673, 677-78 (3d Cir. 1988)).
The common law right of public access is not absolute. To overcome the
| presumptive right of access, a party seeking a sealing order bears the burden of
demonstrating that the interest in secrecy outweighs the public interest. See In re
| Avandia, 924 F.3d at 672 (citations omitted). More specifically, the moving party
| must show that the material it seeks sealed is information that courts will protect,
| and that disclosure of the information will work a clearly defined and serious
| injury to the party seeking closure.* Id. Broad, vague, and conclusory
1° “The First Amendment right of access requires a much higher showing than the common law
| right [of] access before a judicial proceeding can be sealed[,]” and is evaluated using strict
| scrutiny. See In re Avandia, 924 F.3d at 673 (quoting In re Cendant Corp., 260 F.3d at 198, n.
| 13)); see also PG Publ’g Co. v. Aichele, 705 F.3d 91, 104 (3d Cir. 2013). Since the common
| law allows for less of a showing, which was not met here, the court need not reach a First
Amendment analysis in this matter.
| allegations of harm are insufficient. Id. at 674 (citations omitted). Concerns abou
| public image, embarrassment, or reputational injury, without more, are
insufficient. Id. at 676 (citations omitted).
“IT]he strong presumption of openness inherent in the common law right of
access ‘disallows the routine and perfunctory closing of judicial records.’ ” Id. at
677-78 (citing In re Cendant Corp., 260 F.3d at 193-94). When sealing records,
| district courts must make specific factual findings and articulate the
countervailing interests in secrecy sufficient for a reviewing court to determine
| whether the closure order was properly entered. Id. at 674. Such a process
requires an exacting analysis. Id. at 677. That analysis includes a document-by-
document review of the contents of the challenged records. Id. at 673 (citing
Leucadia, Inc. v. Applied Extrusion Techs.., Inc., 998 F.2d 157, 167 (3d Cir.
| 4993).
| Mindful that that “the common law right of access begins with a thumb on
the scale in favor of opennessj[,]” the instant motion provides little for the court to
consider. See id. at 676. Specifically, defendant did not provide the videos for
the court to engage in a moment-by-moment review, only broad and conclusory
arguments about harm. And, even giving defendant some benefit of the doubt
that police videos could contain potentially sensitive information not relevant to
| these proceedings, the defendant’s arguments fall short because the court
| 10
! cannot appreciate his arguments in context with the videos. See id. at 679
| (“blanket assertions of harm that ‘could’ come to fruition fall short of the clearly
defined and serious injury that [the moving party] must articulate to obtain sealing
under any standard.”).
Finally, addressing defendant's arguments that plaintiff will post videos
from the incident on his YouTube channel and thus his access to the docketed
videos should be restricted, the court notes that such a request, if granted, would
| Clearly be unconstitutional. Accordingly, the court will deny the defendant
officer's motion.*
2. Plaintiffs Request to Depose the Defendant Officer
| Turning next to plaintiff's motion, he seeks to depose the defendant officer
| as part of a limited period of discovery prior to supplementing the record on the
converted motion for summary judgment.
| Plaintiff's request must also be considered in context. Plaintiffs claims for
false arrest and retaliatory arrest, the existence of four videos of the incident, the
| defendant’s assertion of qualified immunity, and the conversion of defendant’s
| 4 The defendant officer did not request any alternate relief such as filing the videos with
redaction, i.e. blurring certain portions of the video and/or muting certain audio. For similar
| reasons, the court is not in a position to determine whether such redactions would be
| appropriate without the videos.
11
| motion to dismiss to a motion for summary judgment all place this matter into an
unorthodox posture.
On one hand, when a motion to dismiss is converted to a motion for
summary judgment, “[a]ll parties must be given a reasonable opportunity to
present all the material that is pertinent to the motion.” FED. R. Civ. P. 12(d).
| “Otherwise, weighing the new factual assertions against the facts pleaded in the
| complaint would invite courts to consider facts and evidence that have not been
tested in formal discovery.” Robert D. Mabe, Inc. v. OptumRX, 43 F.4th 307, 330
| (3d Cir. 2022)(citing Guidotti v. Legal Helpers Debt Resol., L.L.C., 716 F.3d 764,
775, n. 6 (3d Cir. 2013) (internal quotations and citations omitted)).
| On the other hand, a defendant pleading qualified immunity is entitled to
| dismissal before the commencement of discovery unless the plaintiff's allegations
| state a claim for violation of clearly established law. Mitchell v. Forsyth, 472 U.S.
511, 526 (1985)(quoting Harlow v. Fitzgerald, 457 U.S. 800, 817 (1982)). Put
more simply, “liberal discovery rules are at odds with the doctrine of qualified
| immunity[.]” Graber v. Dales, 511 F. Supp. 3d 594, 599 (E.D. Pa. 2021). “And
| qualified immunity may be implicitly denied when a government official otherwise
entitled to immunity is nonetheless subjected to ‘the burdens of such pretrial
matters as discovery.’ ” Oliver v. Roquet, 858 F.3d 180, 188 (3d Cir. 2017)
(quoting Behrens v. Pelletier, 516 U.S. 299, 308 (1996)).
12
| In this case, plaintiff alleges a Fourth Amendment violation for false arrest.
| This claim fails if the defendant officer had probable cause to believe a crime was
| being committed. James v. City of Wilkes-Barre, 700 F.3d 675, 680 (3d Cir.
| 2012). Plaintiff also alleges First and Fourth Amendment violations for retaliatory
arrest. Generally, absent a showing that the officer lacked probable cause to
| make an arrest, a retaliatory arrest claim cannot succeed. Nieves v. Bartlett, 587
| ———e_rm"
|U.S. 391, 404 (2019); Falcone v. Dickstein, 92 F.4th 193, 210 (3d Cir. 2024),
| cert. denied sub nom. Murray-Nolan v. Rubin, No. 23-1008, 2024 WL 2262337
| (U.S. May 20, 2024). The presence or absence of probable cause is thus critical
in this case. For the retaliatory arrest claim, it is a threshold matter. See Nieves,
U.S. at 407-08. And that determination could factor heavily into the qualified
| immunity analysis if the court chooses to approach this matter by starting with the
first prong of the qualified immunity analysis, i.e., whether a plaintiff has
| demonstrated a violation of a constitutional right.° Pearson v. Callahan, 555 U.S.
223, 232, 236 (2009)(citations omitted).
“Probable cause exists whenever reasonably trustworthy information or circumstances within
| a police officer's knowledge are sufficient to warrant a person of reasonable caution to
| conclude than an offense has been committed by the person being arrested.” United States v.
| Myers, 308 F.3d 251, 255 (3d Cir. 2002)(citing Beck v. Ohio, 379 U.S. 89, 91 (1964)). “The
| probable cause inquiry is ‘commonsense,’ ‘practical,’ and ‘nontechnical;’ it is based on the
| totality of the circumstances and is judged by the standard of ‘reasonable and prudent men.”
| United States v. Donahue, 764 F.3d 293, 300 (3d Cir. 2014) (quoting Illinois v. Gates, 462 U.S.
213, 230-31 (1983)). “Generally, “the existence of probable cause is a factual issue.” Groman
v. Twp. of Manalapan, 47 F.3d 628, 635 (3d Cir. 1995). A court, however, “may conclude in
| the appropriate case...that probable cause [exists] as a matter of law if the evidence, viewed
13
As for the presence of probable cause in the retaliatory arrest context,
| Nieves also sets forth a “narrow qualification” of the general rule in
“circumstances where officers have probable cause to make arrests, but typically
| exercise their discretion not to do so.” 587 U.S. at 407; see also Gonzalez v.
Trevino, 602 U.S. ----, 144 S. Ct. 1663, 1667 (2024)(per curiam). Thus, the “no-
probable-cause” requirement for a retaliatory arrest claim does not apply “when a
plaintiff presents objective evidence that he was arrested when otherwise
| similarly situated individuals not engaged in the same sort of speech had not
been.” Nieves, 587 U.S. at 407 (citation omitted).
| “The only express limit... placed on the sort of evidence a plaintiff may
present for that purpose is that it must be objective in order to avoid ‘the
| significant problems that would arise from reviewing police conduct under a
purely subjective standard.’ ” Gonzalez, 144 S. Ct. at 1667 (quoting Nieves, 587
| most favorably to Plaintiff, reasonably would not support a contrary factual finding.” Sherwood
| Vv. Mulvihill, 113 F.3d 396, 401 (3d Cir. 1997).
6 The hypothetical example used in Nieves is as follows:
| For example, at many intersections, jaywalking is endemic but rarely
results in arrest. If an individual who has been vocally complaining
about police conduct is arrested for jaywalking at such an
intersection, it would seem _ insufficiently protective of First
| Amendment rights to dismiss the individual's retaliatory arrest claim
| on the ground that there was undoubted probable cause for the
arrest. In such a case...probable cause does little to prove or
disprove the causal connection between animus and injury[.]
| 587 U.S. at 407.
| 14
| U.S. at 406)(emphasis added). For example, reference to a survey of arrest data
could sufficiently place a case within the Nieves exception. See id. at 1666-67.
But specific comparator evidence is not required to proceed pursuant to that
| carve-out. Id. at 1667.
Where a plaintiff establishes the absence of probable cause or meets the
narrow exception, a plaintiff must then show that retaliation was a substantial anc
motivating factor behind the arrest, and if that showing is made, the defendant
can prevail only by showing that the arrest would have been initiated without
respect to the retaliation. Nieves, 587 U.S. at 404, 407-08 (citations omitted).
Here, plaintiff argues that the defendant officer’s state of mind must be
explored in his deposition because this case involves retaliation. (Doc. 24, Pl. Br
jin Supp. at 5-6). Based on the case law, the court disagrees.
| For both the false arrest and retaliatory arrest claims, a probable cause
| determination must eventually be made. “[B]ecause probable cause speaks to
the objective reasonableness of an arrest, ...its absence will... generally provide
| weighty evidence that the officer's animus caused the arrest, whereas the
| presence of probable cause will suggest the opposite.” Nieves, 587 U.S. at 402
(citing Ashcroft v. al-Kidd, 563 U.S. 731, 736 (2011))(emphasis added).
Furthermore, when reviewing an arrest, courts must ask whether the
circumstances, viewed objectively, justify the challenged action. Id. at 403 (citing
| al-Kidd, 563 U.S. at 736). “A particular officer's state of mind is simply
‘irrelevant,’ and it provides ‘no basis for invalidating an arrest.’ ” Id. (citing
Devenpeck v. Alford, 543 U.S. 146, 153, 155 (2004)). In Nieves, the Supreme
Court flatly rejected a subjective inquiry in retaliatory arrest cases because “it
| would threaten to set off ‘broad ranging discovery’ in which ‘there often is no
clear end to the relevant evidence[.]’” Id. at 404 (quoting Harlow, 457 U.S. at
|817)).
Based on plaintiff's arguments, a deposition of the defendant officer is more
| likely to probe the subjective versus the objective. This case is postured at a
stage where objective evidence will determine how it moves forward. Thus, the
| court will deny plaintiff's motion to take the defendant officer's deposition in this
case.
Conclusion
| For the reasons set forth above, the defendant’s motion to seal and limit
3 the dissemination of police videos will be denied as will the plaintiff's motion to
take the defendant officer's deposition. The deadlines for submission of
documents and supplemental briefs regarding the motion for summary judgment
| will be reset with additional instructions. An appropriate order follows.
16
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Date: 0 _
- MUNLEY
United 7) Court
17