DUMAS v. ALMUSAWI

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

KAYLEIGH DUMAS, )

)

Plaintiff, ) 2:23-CV-51

)

v. )

)

YOUSSIF ALMUSAWI, et al., )

)

)

Defendants. )

OPINION

J. Nicholas Ranjan, United States District Judge

On July 2, 2022, Plaintiff Kayleigh Dumas was filming police officers with her

cellphone in the parking lot of a Target in Pittsburgh, Pennsylvania, as they worked

to dispel a crowd of unruly juveniles. When Defendant Officer Brendan Orris raised

a can of pepper spray and announced that he would spray the juveniles if they did

not disperse, Ms. Dumas rushed up to him to film his badge number. She ignored his

directive to retreat and flailed her arms overhead. As a result, several police officers,

including Defendant Officers Orris and Almusawi, tackled and arrested her. She was

charged with two counts of aggravated assault, one count of resisting arrest, one

count of obstruction, and one count of disorderly conduct. All charges were eventually

dismissed.

Relying on ten cameras capturing the event, Ms. Dumas brought various

federal civil rights claims under 42 U.S.C. § 1983, alleging that Defendants had no

probable cause to takedown, arrest, and charge her. Moreover, she says that

Defendants retaliated against her for exercising her First Amendment right to film

police officers performing their duty in a public place. Defendants move for summary

judgment, arguing that the videos actually show that they are entitled to and shielded

by qualified immunity.

After careful review, the Court concludes that Defendants are right. The

cameras here didn’t lie, and Ms. Dumas cannot point to any material facts to suggest

otherwise. The videos all clearly show the officers acting within the parameters of

Ms. Dumas’s clearly established rights. Based on this evidence, the Court will grant

summary judgment in Defendants’ favor.

BACKGROUND

The material facts are not in dispute. On the evening of July 2, 2022, police

officers for the City of Pittsburgh Bureau of Police responded to a call from Officer

Andrew Tantanella at the Target store in the East Liberty neighborhood of

Pittsburgh, Pennsylvania. ECF 57-6, pp. 2-3. Officer Tantanella had observed two

juveniles fighting. Id. One of the kids pulled a firearm from his waistband, which

resulted in Officer Tantanella detaining him. Id. While Officer Tantanella detained

the suspect, a crowd of juveniles gathered in the parking lot, leading Officer

Tantanella to call for backup. Id.

Multiple officers, including Defendant Officers Brendan Orris and Youssif

Almusawi, responded and appeared on scene to control and disperse the crowd. ECF

56, p. 3; ECF 62, p. 3; ECF 57-7. Ms. Dumas was driving in the vicinity and noticed

that police were descending on the Target, so she followed them into the parking lot

to “be a witness” to whatever activity was occurring there. ECF 57-5, 17:13-24, 20:21-

21:11.

At this point, multiple cameras—including the Target parking lot CCTV

camera, the officers’ bodyworn cameras, and Ms. Dumas’s cellphone—captured the

events. The juveniles converged near the parking-lot entrance of the Target, and the

officers attempted to break up the crowd. ECF 57-20, 55:30-56:08. Ms. Dumas

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followed and positioned herself several feet away from the crowd and officers. Id.,

56:09-56:28.! She began filming the scene with her phone camera. Id., 56:29-56:59.

Her cellphone video shows that the officers ignored her while she was filming. ECF

57-16, 0:00-0:29.

Officer Orris made his way to the crowd. ECF 57-9, 5:08-5:18; ECF 57-16, 0:30.

He held a can of pepper spray above his head and yelled to the crowd, “I’m going to

spray you,” and ordered the crowd to disperse. Jd. Ms. Dumas left her position of

safety and rushed up to Officer Orris with her cellphone to film his badge number,

impeding his path forward. ECF 57-9, 5:18-5:21; ECF 57-16, 0:30-0:33. She held the

phone inches from Officer Orris’s face. Id.; see also ECF 57-5, 31:2-7.

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the Target CCTV video (ECF 57-20), Ms. Dumas can be seen wearing a black and

yellow shirt and COVID-19 facemask and crosses the top left of the screen, near the

Target entrance beginning at 56:09. She is easily identifiable throughout the video.

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Officer Orris directed Ms. Dumas to back away from him, and she complied at

first. ECF 57-9, 5:20-5:26. But Ms. Dumas was caught between Officer Orris and

some trash cans, and she stopped backing up. J/d., 5:26-5:28; ECF 57-10, 2:13-2:15.

Ms. Dumas raised and flailed her left hand over her head. Id.

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Several officers, including Officer Almusawi, closed on Ms. Dumas as the

distance between her and Officer Orris shrank. Id. Officer Orris pushed Ms. Dumas

away to create space, while saying, “Can you get back, please. Get out of the way.”

Id. Due to the push, Ms. Dumas bumped into a juvenile passing behind her and the

trash cans. ECF 57-10, 2:16-2:18. Then came the pivotal moment: the push from the

front and the juvenile bumping up against her from behind caused Ms. Dumas to pull

back her cellphone-holding hand in a cocking-type motion, as if she were about to use

that hand to hit Officer Orris. Jd., 2:18. Officer Almusawi caught Ms. Dumas’s hand

and pushed it away. Id., 2:18-2:19.

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At the same time, Ms. Dumas pulled and raised her hand overhead in a way

that she could strike Officer Orris or Officer Almusawi. Id.

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Officer Almusawi initiated a takedown of Ms. Dumas. Id., 2:19. Ms. Dumas

began flailing her limbs, and other officers joined in the takedown. Id., 2:19-2:20.

During the takedown, Ms. Dumas kicked off Officer Almusawi’s bodycam. ECF 57-

18, 2:53-3:00 (Officer Almusawi asks someone to pick up bodycam, and Officer Postell

retrieves it); ECF 57-19, 4:21-4:23 (bodycam slides across the ground). Once Ms.

Dumas was on the ground, the officers attempted to put her hands behind her back

and handcuff her, but Ms. Dumas had pulled her hands beneath her, hindering them.

ECF 57-5, 51:17-52:1; ECF 57-9, 5:43-5:50; ECF 57-10, 2:30-2:38; ECF 57-13, 2:50.

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The officers eventually handcuffed Ms. Dumas and arrested her. ECF 57-10,

3:17-3:33. Another individual filmed the arrest from a safe distance, and he was

directed to leave the parking lot by an officer. ECF 57-20, 57:33-57:54.

Ms. Dumas was placed in a police vehicle where she received brief medical

attention for pain in her head from the takedown. ECF 57-5, 59:5-60:9. Officers

brought Ms. Dumas to Allegheny County Jail, where Officer Almusawi charged her

with two counts of aggravated assault, one count of resisting arrest, one count of

obstruction of administration of law enforcement, and one count of disorderly

conduct. ECF 57-8. All charges were eventually dismissed. ECF 57-17.

Ms. Dumas brought four claims under 42 U.S.C. § 1983 against Officers Orris

and Almusawi, as well as Officer Ronald Postell, Officer Joseph Mangiarelli, and a

John Doe police officer, for their participation in her takedown, arrest, and

prosecution. ECF 1. Specifically, she alleged that the officers used excessive force in

conducting the takedown in violation of the Fourth Amendment (Count II), and that

the officers falsely arrested and charged her in retaliation for filming the encounter

in the Target parking lot, in violation of the First and Fourth Amendments, as made

applicable to the States under the Fourteenth Amendment (Counts I, III-IV). Id. She

also sued Allegheny County for violating the Pennsylvania Mental Health Procedures

Act, because the magistrate judge required that Ms. Dumas undergo a behavior clinic

as a condition of her release on bail (Count V). Id.

This Court dismissed the County and Officer Mangiarelli from the case at the

motion-to-dismiss stage. ECF 30; ECF 31. Following discovery, the parties

stipulated to the dismissal of Officer Postell and the John Doe officer, as well as the

dismissal of Count II against Officer Almusawi. ECF 52.

Four claims now remain: (1) false arrest, against Officers Orris and Almusawi;

(2) use of excessive force, against Officer Orris; (3) malicious prosecution, against

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Officer Almusawi2; and (4) First Amendment retaliation, against Officers Orris and

Almusawi. Defendants moved for summary judgment (ECF 55), and Ms. Dumas

opposed the motion (ECF 62). The motion is now ready for disposition.

LEGAL STANDARD

Summary judgment is appropriate “if the movant 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). At summary judgment, the Court must ask

whether the evidence presents “a sufficient disagreement to require submission to a

jury or whether it is so one-sided that one party must prevail as a matter of law.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). In making this

determination, “all reasonable inferences from the record must be drawn in favor of

the nonmoving party and the court may not weigh the evidence or assess credibility.”

Goldenstein v. Repossessors, Inc., 815 F.3d 142, 146 (3d Cir. 2016) (cleaned up). The

moving party bears the initial burden to show the absence of a genuine dispute of

material fact, and “if the evidence is such that a reasonable jury could return a verdict

for the nonmoving party[,]” summary judgment is improper. Id. (cleaned up).

If the non-moving party “fails to make a showing sufficient to establish the

existence of an element essential to that party’s case, and on which that party will

bear the burden of proof at trial[,]” summary judgment is warranted. Celotex Corp.

v. Catrett, 477 U.S. 317, 322 (1986). Summary judgment “is essentially ‘put up or

shut up’ time for the non-moving party: the non-moving party must rebut the motion

with facts in the record and cannot rest solely on assertions made in the pleadings,

2 Ms. Dumas dismissed her malicious-prosecution claim against Officer Orris in her

opposition brief. ECF 62, p. 25, n.9.

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legal memoranda, or oral argument.” Berckeley Inv. Grp., Ltd. v. Colkitt, 455 F.3d

195, 201 (3d Cir. 2006) (cleaned up).

But there is an important caveat to this standard where, as here, the record

includes video footage of the events in question. When video exists, and there is no

allegation that the video misrepresents “what actually happened[,]” the Court need

not view the evidence in the light most favorable to the non-moving party. Scott v.

Harris, 550 U.S. 372, 378 (2007). Instead, the Court must “view the facts in the light

depicted by the videotape, especially when it blatantly contradicts the nonmovant’s

narrative.” Bland v. City of Newark, 900 F.3d 77, 86 n.7 (3d Cir. 2018) (cleaned up).

More on this below.

DISCUSSION & ANALYSIS

Ms. Dumas brings her claims for false arrest, excessive force, malicious

prosecution, and First Amendment retaliation pursuant to 42 U.S.C. § 1983, which

creates a private cause of action for violations of federal law by state officials. 42

U.S.C. § 1983. To prevail, she “must prove that she suffered the deprivation of a

constitutional or federal right[] by a person acting under color of state law.”

Szalabawka v. Russo, No. 09-88, 2011 WL 7776786, at *4 (W.D. Pa. Sept. 28, 2011)

(McLaughlin, J.) (cleaned up).

In doing so, she must overcome a steep hurdle—qualified immunity. This

doctrine “shields governmental officials from suit and from liability if their conduct

does not violate clearly established statutory or constitutional rights of which a

reasonable person would have known.” Mack v. Yost, 63 F.4th 211, 221 (3d Cir. 2023)

(cleaned up). “Officers are entitled to qualified immunity under § 1983 unless (1)

they violated a federal statutory or constitutional right, and (2) the unlawfulness of

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their conduct was clearly established at the time.” Richter v. Pa. State Police, No. 15-

775, 2018 WL 2984966, at *7 (W.D. Pa. June 14, 2018) (Bissoon, J.) (cleaned up).

Defendants argue that no reasonable jury could find on this record that they

violated Ms. Dumas’s constitutional rights, and even if they did, the rights were not

clearly established. ECF 56, p. 1; ECF 63, p. 1. If the Court agrees with Defendants

on one or both points—the constitutional question or the “clearly established right”

question—then Defendants are entitled to qualified immunity.

Courts have discretion on the order in which to address the qualified-immunity

prongs outlined above. Camreta v. Greene, 563 U.S. 692, 705 (2011). The Supreme

Court generally recommends resolving the “clearly established” prong first to avoid

“ruling on the (perhaps difficult) constitutional claim the plaintiff has raised.” Id.

The Court follows that recommendation, and proceeds in reverse order.

I. Defendants did not violate any clearly established rights.

The second qualified-immunity prong asks whether the relevant right was

clearly established at the time of the alleged violation. In analyzing this prong, the

Court proceeds in two steps: first, by “defin[ing] the right allegedly violated at the

appropriate level of specificity[,]” and second, “ask[ing] whether that right was clearly

established at the time of its alleged violation.” Mack, 63 F.4th at 228 (cleaned up).

The first step, defining the right, is “essential.” Id. “The Supreme Court has

repeatedly emphasized that clearly established law should not be defined at a high

level of generality.” Weimer v. Cnty. of Fayette, Pennsylvania, 972 F.3d 177, 190 (3d

Cir. 2020) (cleaned up). The contours of the right must be “sufficiently definite such

that any reasonable official in the defendant’s shoes would have understood that he

was violating it.” Perez v. Teresinski, No. 22-1962, 2023 WL 1879236, at *2 (3d Cir.

Feb. 10, 2023) (cleaned up). This means that “general proposition[s]” will not suffice.

Id. “A rule is too general if the unlawfulness of the official’s conduct does not follow

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immediately from the conclusion that the rule was firmly established.” Weimer, 972

F.3d at 190 (cleaned up). In other words, the Court must apply “a high degree of

specificity” in defining the right, such that it can answer “the crucial question

whether [Defendants] acted reasonably in the particular circumstances that [they]

faced.” Mack, 63 F.4th at 228 (cleaned up).

“Where a defendant asserts a qualified immunity defense in a motion for

summary judgment, the plaintiff bears the initial burden of showing that the

defendant’s conduct violated a clearly established statutory or constitutional right.”

Kitko v. Young, No. 10-189, 2013 WL 5308016, at *9 (W.D. Pa. Sept. 20, 2013) (Gibson,

J.) (citing Sherwood v. Mulvihill, 113 F.3d 396, 399 (3d Cir.1997)), aff’d, 575 F. App’x

21 (3d Cir. 2014). To meet her burden, Ms. Dumas must point “to factually analogous

Supreme Court precedent, as well as binding opinions from” the Third Circuit that

were available at the time of her arrest. Jefferson v. Lias, 21 F.4th 74, 81 (3d Cir.

2021) (cleaned up). If none exist, she may also look to a “robust consensus of cases of

persuasive authority in the Courts of Appeals[]” and the district courts from the Third

Circuit or elsewhere. Id. Ms. Dumas doesn’t need to produce an exactly equivalent

case, but must identify “sufficiently analogous cases that should have placed a

reasonable official in [Defendants’] position on notice that [their] actions were

unlawful.” L.R. v. Sch. Dist. of Phila., 836 F.3d 235, 249 (3d Cir. 2016). The Court

concludes that Ms. Dumas has not carried her burden.

Ms. Dumas’s brief focuses mainly on raising a factual dispute about the merits

of the underlying constitutional violations, without devoting much argument to

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defining the relevant rights. See generally ECF 62. That said, the Court reads her

brief as defining the relevant rights as follows:

• First Amendment retaliation: the “right to record police officers

conducting their official duties in public.” Id. at 25.

• Excessive force: the right to be free from force where the individual “is

compliant and poses no ongoing threat to [herself] or others, or who is

not resisting arrest, even if [she] was initially non-compliant.” Id. at 28

(cleaned up).

• False arrest and malicious prosecution: the “right to be free from .

. . arrest [and prosecution] except upon probable cause under the Fourth

Amendment[.]” Id. at 25.

Each of these framings misses the mark because they are too general—the

Court cannot answer whether Defendants acted reasonably in the particular

circumstances they faced during the takedown, arrest, and charging of Ms. Dumas.

See, e.g., Davis v. Webster, No. 17-273, 2018 WL 1157990, at *2 (W.D. Pa. Mar. 2,

2018) (Hornak, J.) (rejecting plaintiff’s general formulation of right to be free from

warrantless blood draw absent exigent circumstances under Fourth Amendment

because “[t]he dispositive question is whether the violative nature of

conduct is clearly established.” (cleaned up and emphasis original)); Martin for Est.

of Webb v. City of Newark, 762 F. App’x 78, 84 (3d Cir. 2018) (framing issue as

whether “an officer uses excessive force when he shoots at a driver who starts a car

despite having been warned not to and does so while the officer is positioned between

the car and its open driver’s side door” instead of “general” right to be free from deadly

force absent probable cause that suspect poses threat of death or serious injury).

Moreover, Ms. Dumas’s framings fail to capture what actually happened. But

thanks to the ten clear and undisputed videos depicting the unfolding of events on

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July 2, 2022, the Court can and must view the entire incident and define the contours

of the relevant rights based on what is depicted. El v. City of Pittsburgh, 975 F.3d

327, 338 (3d Cir. 2020) (“[T]he presence of the video in the record does not permit us

to embark upon our own factfinding exercise.”).

As recounted above, the videos show that Ms. Dumas was standing off to the

side and filming the officers near the entrance of the Target, without any interference

from the officers. But once Officer Orris raised his can of pepper spray and ordered

the crowd to disperse, Ms. Dumas left her zone of safety and inserted herself into an

active scene. By Ms. Dumas’s own admission, she did so to prevent Officer Orris from

carrying out his official duty. ECF 57-5, 29:5-11. The videos show that she succeeded,

as Officer Orris’s attention was on her, not the crowd he was trying to dispel. But

even then, Officer Orris did not touch Ms. Dumas or prevent her from filming.

Instead, he ordered her to retreat—she took one step back, stopped complying, and

raised her left arm overhead. At that point, Officer Orris shoved Ms. Dumas. Ms.

Dumas then raised her right arm above her head in a threatening motion, such that

she could strike Officer Orris or Officer Almusawi. Then—and only then—did the

officers take Ms. Dumas down, and eventually arrest and charge her.

Given the undisputed and clear video evidence, and applying the

circumstances depicted, the Court formulates the three rights as follows:

• First Amendment retaliation: the right of an individual who is

filming police officers performing their official duties to be free from

arrest and prosecution when the individual is filming in close proximity

to the officers, interferes with and impedes an officer’s ability to disperse

a crowd pursuant to his official duty, ignores his commands, raises her

arm in a threatening manner, and resists arrest. See, e.g., Grant v. City

of Philadelphia, 637 F. Supp. 3d 247, 267 (E.D. Pa. 2022), aff’d, No. 22-

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3200, 2024 WL 1328312 (3d Cir. Mar. 28, 2024); Karns v. Shanahan, 879

F.3d 504, 522 (3d Cir. 2018).

• Excessive force: the right of an individual to be free from non-deadly

force when the individual interferes with and impedes an officer’s ability

to disperse a crowd pursuant to his official duty, ignores his commands,

raises her arm in a threatening manner, and resists arrest. See, e.g.,

Santini v. Fuentes, 739 F. App’x 718, 721 (3d Cir. 2018); Mileham v.

Conley, No. 20-116, 2023 WL 8031818, at *7 (W.D. Pa. Nov. 20, 2023)

(Stickman, J.).

• False arrest and malicious prosecution: the right to be free from

arrest and prosecution for aggravated assault, resisting arrest, and

disorderly conduct absent probable cause that the conduct at issue was

unlawful and supported by the charges.3

With the relevant rights established, the Court must ask whether the rights

were clearly established at the time of their alleged violation, i.e., whether the rights

were sufficiently clear that a reasonable official would understand that what he is

doing violates those rights. Peroza-Benitez v. Smith, 994 F.3d 157, 165 (3d Cir. 2021).

The first right is not clearly established. While the Third Circuit has

acknowledged a right to record “police officers conducting official police activity in

public areas[,]” that right is “not absolute” and may not be protected if “a person’s

3 With respect to the false-arrest and malicious-prosecution claims, the constitutional

rights associated with these claims are general in a certain sense, but narrowed and

framed by the conduct and circumstances at issue. So, here, the question is whether

there was probable cause to arrest and charge Ms. Dumas for aggravated assault

resisting arrest, and disorderly conduct based on the conduct described above. See,

e.g., Hunt v. Smith, No. 20-464, 2022 WL 19977730, at *9 (M.D. Pa. Nov. 3, 2022),

report and recommendation adopted, No. 20-464, 2023 WL 4207446 (M.D. Pa. June

27, 2023), aff’d, No. 23-2362, 2024 WL 747238 (3d Cir. Feb. 23, 2024); Gerhart v.

Energy Transfer Partners, L.P., No. 17-1726, 2018 WL 6589586, at *21 (M.D. Pa. Dec.

14, 2018).

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recording interferes with police activity[.]” Fields v. City of Philadelphia, 862 F.3d

353, 360 (3d Cir. 2017). The activity here interfered with official police activity, and

Ms. Dumas does not point to, and this Court cannot find, an analogous case to support

the idea that she had a First Amendment right to film officers in a manner that

impeded their efforts to restore order. See Fleck v. Trs. of Univ. of Pa., 995 F. Supp.

2d 390, 408 (E.D. Pa. 2014) (“there was then no clearly-established First Amendment

right in our Circuit to film police activity where, as here, the plaintiffs actively

impeded efforts to restore public order[]” and refused to comply with police directives,

which officer “took as a threat”).

The Court reaches the same conclusion for the second right. True, there is a

clearly established right under the Fourth Amendment to be free from excessive force.

E.g., Precois v. Dilollo, No. 13-6279, 2015 WL 8513561, at *3 (D.N.J. Dec. 10, 2015).

But that framing isn’t particularized enough. Sholtis v. City of Pittsburgh, No. 2:19-

332, 2021 WL 5144432, at *8 (W.D. Pa. Nov. 4, 2021) (Stickman, J.). The specific

right at issue is the right to be free from non-deadly force when the individual

interferes with and impedes an officer’s ability to disperse a crowd pursuant to his

official duty, ignores his commands, raises her arm in a threatening manner, and

resists arrest, and Ms. Dumas hasn’t provided (and the Court cannot otherwise find)

caselaw clearly establishing that right. The closest that Ms. Dumas gets is Sholtis v.

City of Pittsburgh. ECF 62, p. 28. This Court defined the right in that case as “the

right of an individual not to be tased when he is not suspected of a serious crime, he

does not pose an immediate threat, and he is not actively resisting arrest.” Sholtis,

2021 WL 5144432, at *8. Simply reading that language shows that Sholtis is not

relevant to Ms. Dumas’s case.

The same holds true for the third right. As discussed below, the charges here

were all supported by Ms. Dumas’s conduct, as captured on film. She may have a

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general right to be free from arrest and prosecution absent probable cause, but not

when there is undisputed video evidence of probable cause to support the charges.

Grant, 637 F. Supp. 3d at 268 (no clearly established right to be free from retaliatory

or non-retaliatory arrest where arrest is supported by probable cause); cf. Rector v.

Baca, No. 13-3116, 2014 WL 4244345, at *9 (C.D. Cal. Aug. 25, 2014) (“There is no

clearly established right not to be arrested pursuant to a warrant for a crime the

defendant committed.”).

Because the relevant rights were not clearly established at the time, the Court

concludes that Defendants are entitled to qualified immunity.

II. The undisputed video evidence confirms that there was no

constitutional violation.

Ms. Dumas’s claims also fail under the first prong of the qualified immunity

analysis. Even applying Ms. Dumas’s broad and general framing, the undisputed

video evidence shows that no reasonable jury could find that Defendants violated her

First or Fourth Amendment rights. The false-arrest, malicious-prosecution, and First

Amendment retaliation claims come up short because the arrest and charges were

supported by probable cause. The excessive-force claim fails because Officer Orris’s

use of force was objectively reasonable under the circumstances, as depicted by the

video evidence.

A. Probable cause existed to support the arrest of and charges

against Ms. Dumas.

To succeed on her false-arrest and malicious-prosecution claims, Ms. Dumas

must show the absence of probable cause. Harvard v. Cesnalis, 973 F.3d 190, 199 (3d

Cir. 2020) (claim for false arrest requires showing that arrest was made without

probable cause); id. at 203 (claim for malicious prosecution requires proof that

proceeding was initiated without probable cause). “The probable cause analysis is

the same for § 1983 claims for false arrest and malicious prosecution.” Kessler v.

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Borough of Frackville, No. 17-2231, 2018 WL 2113648, at *4 (M.D. Pa. May 8, 2018).

Thus, both claims “will necessarily fail if probable cause existed for any one of the

crimes charged against [Ms. Dumas].” Harvard, 973 F.3d at 199 (cleaned up); Taylor

v. Rosa, 856 F. App’x 376, 378 (3d Cir. 2021) (existence of probable cause for any one

offense defeats claim for malicious prosecution).

“Probable cause exists if there is a fair probability that the person committed

the crime at issue. An officer has probable cause to arrest a person when the facts

and circumstances within the arresting officer’s knowledge are sufficient in

themselves to warrant a reasonable person to believe that an offense has been or is

being committed by the person to be arrested.” Harvard, 973 F.3d at 199-200 (cleaned

up). This standard “does not depend on the actual guilt or innocence of the arrestee”

and must be assessed at the time of arrest, not in hindsight. Szalabawka, 2011 WL

7776786, at *5. “Furthermore, whether the arresting officer acts in good faith or in

bad faith in effectuating the arrest is irrelevant.” Id. The Court must make this

assessment based on the totality of the circumstances. Harvard, 973 F.3d at 200.

The undisputed video evidence shows that probable cause existed at each step

to arrest Ms. Dumas and file all charges against her.

Beginning with aggravated assault, an individual commits aggravated assault

if he or she “attempts to cause or intentionally or knowingly causes bodily injury to

any of the officers, agents, employees or other persons enumerated in subsection (c),

in the performance of duty[.]” 18 Pa. C.S. § 2702(a)(3). As shown in the footage, there

is a moment when Ms. Dumas raised her phone-holding hand overhead in a

threatening motion suggesting she could strike Officer Orris or Officer Almusawi.

ECF 57-10, 2:19. This is the key moment in the entire course of events because, based

on this motion and as depicted by the video, an officer could reasonably believe that

Ms. Dumas was attempting to strike Officer Orris or Officer Almusawi while

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performing their duties (i.e., clearing the crowd). And once Ms. Dumas raised her

arm in this threatening manner, the officers had probable cause to take her down and

charge her with one count of aggravated assault. See Campeggio v. Upper Pottsgrove

Twp., No. 14-1286, 2014 WL 4435396, at *5 (E.D. Pa. Sept. 8, 2014) (probable cause

for simple assault arose when plaintiff inadvertently kicked officer); Smith v. United

States, 121 F. Supp. 3d 112, 120-22 (D.D.C. 2015) (Jackson, J.) (“virtually

indisputable” that probable cause for assault existed based on video that showed

defendant intentionally driving towards officer, such that reasonable officer would

have felt defendant tried to hit him), aff’d, 843 F.3d 509 (D.C. Cir. 2016).

Ms. Dumas argues that there is no evidence that she struck any of the officers

or was planning on doing so. ECF 62, p. 24. But, as noted above, attempt supports

the charge of aggravated assault. 18 Pa. C.S. § 2702(a)(3). And the video depicts

sufficient and undisputed evidence that Ms. Dumas had moved her hands in a

manner suggesting that she was attempting to strike the officers.

The same key moment when Ms. Dumas raised her arm, and the few just

before it, also gave rise to probable cause for the obstruction of justice and disorderly

conduct charges. A person commits obstruction when he or she “intentionally

obstructs, impairs or perverts the administration of law or other governmental

function by force, violence, physical interference or obstacle, breach of official duty,

or any other unlawful act[.]” 18 Pa. C.S. § 5101. “[A]ny interference with [an] officer”

performing his official duties “would be interference with the administration of law.”

Commonwealth v. Reed, 851 A.2d 958, 964 (Pa. Super. Ct. 2004). And a person

commits disorderly conduct when “with intent to cause public inconvenience,

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annoyance or alarm, or recklessly creating a risk thereof, he . . . engages in fighting

or threatening, or in violent or tumultuous behavior[.]” 18 Pa. C.S. § 5503(a)(1).

Ms. Dumas’s stepping into Officer Orris’s path, refusing to comply with his

directives, and raising her arm in that threatening manner all diverted Officer Orris’s

attention away from his official duty in order to address the threat presented by Ms.

Dumas. Thus, a reasonable officer could believe that Ms. Dumas had both obstructed

the administration of law and engaged in disorderly conduct up to and including the

moment she raised her right arm.

Probable cause for the remaining charges (resisting arrest4 and a second

charge for aggravated assault) arose following the takedown. The videos show that

Ms. Dumas hid her hands under her body to prevent the officers from cuffing them,

and that she kicked Officer Almusawi’s bodyworn camera off him. ECF 57-9, 5:42-

5:52; ECF 57-10, 2:25-2:36; ECF 57-13, 2:53-3:00 (Officer Almusawi asks someone to

pick up bodycam, and Officer Postell retrieves it); ECF 57-19, 4:21-4:23 (bodycam

slides across the ground). Again, as shown by the footage, a reasonable officer could

believe that Ms. Dumas tried to prevent the officers from arresting her and to cause

them harm in doing so. Commonwealth v. Cuff, No. 2160 MDA 2013, 2014 WL

10802678, at *8 (Pa. Super. Ct. Nov. 10, 2014) (“striking or kicking” officers during

arrest sufficient to uphold conviction for resisting arrest).

Ms. Dumas argues that the question of probable cause must go to the jury

because “a reasonable jury could credit her assertions over the Defendants and find

that there was no probable cause to arrest her for” the various charges. ECF 62, p.

22. She specifically argues that probable cause falls away if the Court accepts her

4 A person resists arrests when he or she with “the intent of preventing a public

servant from effecting a lawful arrest or discharging any other duty, the person

creates a substantial risk of bodily injury to the public servant or anyone else, or

employs means justifying or requiring substantial force to overcome the resistance.”

18 Pa. C.S. § 5104.

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characterization that Officer Orris “intentionally trapped her” by walking her into

the trash cans at the Target entrance. Id. at 23. But the Court doesn’t need to credit

Ms. Dumas’s characterization. The undisputed footage shows that Ms. Dumas

inserted herself between Officer Orris and the trash cans, stopped complying with his

command to retreat, thereby prompting Officer Orris to shove her to make space, and

raised her hand above her head in a threatening manner. That’s all the evidence

needed to support a finding of probable cause for the first three charges that led to

the takedown and arrest, and reject Ms. Dumas’s characterization in turn. Smith,

610 F. App’x at 115 (“[W]here there are video recordings of the incidents in question,

we need not adopt the non-movant’s version of the facts if the recordings blatantly

contradict the non-movant’s version so that no reasonable jury could believe it.”

(cleaned up)).

Viewing the videos, the Court concludes that Defendants had a reasonable

belief about the existence of probable cause to support each of the charges against

Ms. Dumas. Accordingly, the Court finds that Ms. Dumas’s false arrest and malicious

prosecution claims must fail.

B. The existence of probable cause defeats Ms. Dumas’s First

Amendment retaliation claim, and Ms. Dumas hasn’t pointed to

a similarly situated individual to raise an exception to the

probable-cause requirement.

The absence of probable cause also dooms Ms. Dumas’s claim for First

Amendment retaliation.

“To establish a First Amendment retaliation claim, a plaintiff must prove (1)

that she engaged in constitutionally-protected activity; (2) that the government

responded with retaliation; and (3) that the protected activity caused the retaliation.”

Brantley v. Wysocki, 662 F. App’x 138, 142 (3d Cir. 2016) (cleaned up). But where, as

here, “the plaintiff alleges that the particular act of retaliation is criminal prosecution

. . . the plaintiff must plead and prove the absence of probable cause.” Id. (cleaned

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up). And because probable cause existed for all the charges against Ms. Dumas, even

assuming that she engaged in a constitutionally protected activity, her First

Amendment retaliation claim fails by default.

Ms. Dumas argues that an exception to this rule should apply and save her

claim. She emphasizes that the officers didn’t arrest “a single ‘unruly’ juvenile” at

the scene, even though they engaged in almost the same conduct as Ms. Dumas. ECF

62, pp. 25-27. She says that the officers would normally exercise their discretion and

decline to arrest and charge Ms. Dumas—the only reason they did so was because she

was filming them. Id. at 27. Thus, she argues that the Court should discard the

probable-cause requirement and ask the jury to resolve whether Defendants’

behavior amounts to First Amendment retaliation. Id. The Court disagrees, as the

juveniles are not appropriate comparators.

In addressing First Amendment retaliation based on “discretionary” criminal

charges, the Supreme Court explained that “the no-probable-cause requirement

should not apply when a 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.” Nieves v. Bartlett, 587 U.S. 391, 407 (2019). So, Ms.

Dumas must point to other people who engaged in similar behavior (impeding police,

resisting arrest, etc.) who were not filming and who were not arrested. She cannot

do so.

Ms. Dumas argues that she is similarly situated to the juveniles because the

juveniles were “repeatedly being told to leave by police officers,” but didn’t, and were

“repeatedly being pushed back by police officers, but not obeying[.]” ECF 62, p. 27.

But Ms. Dumas was taken down and arrested not because she refused to leave, but

because she interfered with Officer Orris and raised her arm in that threatening

manner, right in front of Officers Orris and Almusawi. No evidence has been

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presented that any juvenile took comparable action, or engaged in a comparable

direct confrontation with officers. In fact, the videos show that when Officer Orris

ordered the juveniles to disperse, every single person complied—except for Ms.

Dumas. See ECF 57-20, 57:01-57:09.5

Ms. Dumas also points to statements that Officer Orris made about her after

the incident (“That bitch definitely gets obstruction,” and “She’s gotta be a social

justice warrior”) to try to create a dispute of material fact. ECF 57-9, 9:07-9:10, 15:50-

54; ECF 62, p. 27. But those statements are immaterial because the probable cause

analysis is an objective one based on the circumstances at the time of arrest. Karns,

879 F.3d at 522-23.

“Probable cause defeats a retaliatory arrest claim in all but the most narrow of

exceptions[,]” and “[t]his case is not within those exceptions.” Thomas v. Weiss, No.

21-14554, 2024 WL 2830662, at *13 (D.N.J. June 4, 2024) (cleaned up). Thus,

summary judgment for Defendants is appropriate on the First Amendment

retaliation claim.

C. The undisputed video shows that Officer Orris’s use of force was

reasonable under the circumstances.

Despite the presence of probable cause to support her arrest and charges, Ms.

Dumas argues that Officer Orris used an unreasonable amount of force during the

5 Somewhat tellingly, the parking lot CCTV footage shows that another individual

filmed the officers taking down and arresting Ms. Dumas, but there is no evidence in

the record that this individual was also arrested and charged. ECF 57-20, 57:32-

57:55. Unlike Ms. Dumas, this individual filmed from a distance, complied when an

officer told him to clear the area, and did not make any threatening motions with his

arms. Id. That another individual exercised the same First Amendment right that

Ms. Dumas asserts without being arrested and charged underscores that Defendants

were not “exploiting [their] arrest power as a means of suppressing [Ms. Dumas’s]

speech[,]” but were “trying to control the situation and arrested the [only] actor who

refused to comply with police directives[,]” and in fact threatened the officers’ safety.

Rusfeldt v. City of Reading, No. 23-1523, 2024 WL 2943771, at *5 n.3 (E.D. Pa. June

11, 2024) (cleaned up).

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arrest. ECF 62, p. 29. But the Court concludes that, based on the video evidence, the

degree of force used here was reasonable.

“[N]ot every push or shove, even if it may later seem unnecessary in the peace

of a judge’s chambers, is constitutionally unreasonable.” Whiting v. Bonazza, 545 F.

App’x 126, 130 (3d Cir. 2013) (cleaned up). In an excessive force claim, “the standard

is whether the police officer’s actions were objectively reasonable in light of the facts

and circumstances, regardless of the officer’s intent or motivation.” El, 975 F.3d at

336 (cleaned up). Courts in the Third Circuit consider several factors, including (1)

the severity of the crime at issue; (2) whether the suspects pose an immediate threat

to the safety of the officers or others; (3) whether they are actively resisting arrest or

attempting to evade arrest by flight; (4) the physical injury to the plaintiff; (5) the

possibility that the persons subject to the police action are themselves violent or

dangerous; (6) the duration of the action; (7) whether the action takes place in the

context of effecting an arrest; (8) the possibility that the suspect may be armed; and

(9) the number of persons with whom the police officers must contend at one time.

Id. Normally, this inquiry is reserved for the jury, but based on the video evidence,

the Court concludes that no reasonable jury could find that Officer Orris’s use of force

was excessive. Wisneski v. Denning, No. 12-864, 2014 WL 1758118, at *16 (W.D. Pa.

Apr. 30, 2014) (Conti, J.).

Ms. Dumas challenges two applications of force: the initial shove by Officer

Orris, and the takedown. ECF 62, p. 29. The Court addresses each in turn.

As depicted by the videos, Ms. Dumas rushed Officer Orris to film his badge

number, inserting herself between him and several trash cans. In doing so, she

impeded his path forward and prevented him from deploying pepper spray if needed.

Indeed, Ms. Dumas testified that that was exactly her intention. ECF 57-5, 29:5-11.

When Officer Orris instructed her to retreat, she took one step back, but then stopped

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retreating given the obstructions behind her. Id. at 115:12-21. At this point, Officer

Orris shoved Ms. Dumas in the chest.

Applying the factors enumerated above, the Court concludes that the shove

was objectively reasonable. Though Ms. Dumas was not under arrest, she was, by

her own admission, committing a crime—obstructing the performance of Officer

Orris’s official duties. Rushing up to a police officer creates the suspicion that the

rusher may be violent or has an intent to harm the officer; indeed, Officer Orris knew

that a firearm had been recovered just a few minutes before this encounter (ECF 57-

9, 3:07-3:11), and so it would be natural to suspect that anyone in the parking lot,

including Ms. Dumas, might threaten his safety. Ms. Dumas suffered no injury from

the shove. ECF 57-5, 70:23-72:25 (Ms. Dumas detailing injuries she sustained from

encounter, none of which involved injuries to her chest). The duration of the shove

was minimal, only a fraction of a second. Officer Orris was contending with many

juveniles in the parking lot, as he was attempting to get them to leave the area. ECF

57-10, 2:11-2:18. But Ms. Dumas’s actions took his attention away from the

performance of that duty to focus on her.

In all, the video shows that Officer Orris pushed Ms. Dumas—who, again,

placed herself in this position—back to create space and carry out his official duties;

the shove was a minimal intrusion given the circumstances, one that was brief and

didn’t hurt Ms. Dumas.6 No reasonable jury could conclude that the shove was

excessive under the circumstances.

The takedown, too, was reasonable. The officers began the takedown only after

Ms. Dumas raised her right hand overhead in that threatening motion, suggesting

6 Ms. Dumas repeatedly characterizes Officer Orris as “stalking,” “trapping,” and

“walking her down into an ambush.” ECF 62, pp. 23, 26, 29. Because the video

contradicts that characterization, the Court need not credit it. For one, Ms. Dumas

rushed Officer Orris and placed herself between him and the trash cans. Further,

Ms. Dumas had an escape route from the position in which she placed herself to her

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danger; as explained, the officers had probable cause to arrest Ms. Dumas for

aggravated assault at this point. Thus, the takedown came about in effecting an

arrest. The takedown itself was brief, lasting only five seconds. ECF 59-10, 2:19-

2:24. The officers then took six seconds to flip Ms. Dumas onto her stomach. Id.,

2:24-2:30. The video shows that Ms. Dumas resisted arrest, including by kicking

Officer Almusawi, and she admitted to resisting at her deposition. ECF 57-5, 51:20-

23; ECF 57-9, 5:42-5:52; ECF 57-10, 2:25-2:36; ECF 57-13, 2:53-3:00; ECF 57-19, 4:21-

4:23. Ms. Dumas suffered only minor injuries—pain and bruising that healed after

two weeks. ECF 57-5, 74:2-5. Each of these facts is undisputed and weighs heavily

in favor of finding no use of excessive force.

Ms. Dumas argues that a reasonable jury could believe her version of events

because she “was not a threat to anyone” and “simply was not violent or dangerous

in any capacity.” ECF 62, p. 29. But her position ignores the key action in the

sequence of events—the act of raising her arm overhead in a threatening motion, such

that she could strike Officer Orris or Officer Almusawi. As soon as that happened, it

became reasonable for the officers to perceive her as a physical threat, regardless of

Ms. Dumas’s actual intention to commit violence. And in the end, that’s all the

reasonableness test asks for. Wisneski, 2014 WL 1758118, at *11. Accordingly, the

Court concludes that, based on the undisputed video evidence, no reasonable jury

right. ECF 57-9, 5:20-5:23. The officers only converged once Ms. Dumas refused to

take that route, and instead stood her ground and raised her left hand up, which

immediately preceded Officer Orris’s shoving her. Id., 5:24-5:26.

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could find that Officer Orris used excessive force at any point during the events on

July 2, 2022.

CONCLUSION

For the reasons above, the Court concludes that Defendants are entitled to

qualified immunity, and so will grant their motion for summary judgment in its

entirety. An appropriate judgment order follows.

DATED this 15th day of July, 2024.

BY THE COURT:

/s/ J. Nicholas Ranjan

United States District Judge

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