Castro v. Debias

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

MARIO CASTRO, No. 3:23cv342

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 :

MEMORANDUM

Plaintiff Mario Castro recorded his attempts to obtain a police report from

‘the Hazleton City Police Department. After his efforts failed, he directed a

profane insult at a police officer, Defendant Christopher Debias. A confrontation

occurred. Debias arrested Castro and cited him for disorderly conduct. The

citation did not result in a conviction. Castro then filed this action pursuant to 42

U.S.C. § 1983 (“Section 1983”) for false arrest and retaliatory arrest, alleging

violations of his First and Fourth Amendment rights. Debias invoked qualified

immunity in a motion to dismiss. (Doc. 6).

Based on the parties’ recordings of the incident, the court converted

Debias’s motion to one for summary judgment. After resolution of several

subsequent discovery issues related to that conversion, Debias filed the videos

of record. The issue of the defendant officer’s qualified immunity is now ripe for a

decision.

Background

Plaintiff Mario Castro records his interactions with police.’ He has been

cast as a police auditor for maintaining a YouTube channel called “Not the End of

Freedom.” (Doc. 22, Def. Br. in Supp. Prot. Order at p. 4, n. 1). In July 2021, an

individual assaulted Castro at a Kentucky Fried Chicken restaurant in Hazleton,

Pennsylvania, (hereinafter “KFC incident’). (Doc. 40-2, Debias Video 1, 9:49-

10:26). A sergeant from the Hazleton City Police Department responded to the

KFC incident. (Id.) Assault charges were ostensibly pending against that other

individual. (Id.)

On July 23, 2021, Castro travelled to Hazleton City Hail where the Hazleton

City Police Department is headquartered. Castro wore a GoPro video camera on

his chest. (Id. at 0:35). Castro sought a police report regarding the KFC incident.

(Id. at 3:28-4:27).

Castro entered the building using the rear entrance of Hazleton City Hall.

(Doc. 40-3, Castro Video, 0:19-0:38). Castro then proceeded through a small

elevator vestibule into the first-floor hallway. (Id, at 0:38-0:44), From there,

All facts from the record are construed in a light most favorable to plaintiff as the nonmoving

party. See Daniels v. Sch. Dist. of Philadelphia, 776 F.3d 181, 187 (3d Cir. 2015)(citation

omitted).

Castro walked over to a nearby door marked with a seal for the Hazieton City

Police Department. (Id. at 0:41-0:49) Castro called the department using a

courtesy phone. (0:49-1:09) When his call was answered, Castro indicated that

he needed a police report. (Id. at 1:09-1:32).

After placing the call, Castro walked around the first floor of City Hall for

approximately two minutes. (Doc. 40-3, Castro Video, 1:32-3:28). At one point,

he walked over to a wall-mounted box labeled “Donations Hazleton Police

Department.” (Id. at 3:06-3:21). Castro remarked, “donations,” and then stated,

“donaciones para los extorsionistas.”* (Id.)

Shortly thereafter, Debias, a Hazleton police officer, emerged from behind

a badge-access door and walked toward the plaintiff. (ld. at 3:28). This

exchange followed from the perspective of Castro’s bodycam:

Castro: Yes sir. For an incident that happened on the Thirteenth, |

need a police report.

Debias: | What incident that happened on the Thirteenth?

Casiro: | was assaulted.

Debias: Did this...was this already reported?

Castro: Yeah. Police was involved.

Debias: | Who was the officer?

Castro: Babula, | think.

2 That statement may be translated to “donations for the extortionists.”

Debias: Ok. You'll have to talk to him about that case.

Castro: So, no one can discuss anything about that?

Debias: No. Only the investigating officer.

Castro: What time he be in?

Debias: —_He’s on vacation...until the beginning of August.

Castro: So no one, | have, have nothing, uh...

Debias: If he’s already investigating it, there’s, there’s nothing anybody

else...

Castro: [speaking over Debtas] | don’t know if he’s investigating it

because...

Debias: [speaking over Castro] Did you report it to him?

Castro: Well, yeah. He was there.

Debias: He talked to you face to face?

Castro: Yeah, but he never contacted me, and it’s been, what, already

some days. And | haven’t heard anything from you guys.

Debias: [speaking over Castro] Ok. |’m sure that’s not the only thing he

has going on. I’m sure he has other stuff to deal with too.

Castro: Yeah, but what about me? What about me? | need...| need...

(Id. at 3:28-4:28).

Debias then turned away from Castro and walked back toward the door for

the police department. As he turned, Debias told Castro: “You can talk

to... Sergeant Babula when he comes back, OK?” (id. at 4:27-4:31).

Simultaneously, Castro followed Debias toward the door and asked: “What’s your

name and badge number? What's your name and badge number?” (Id. at 4:29-

4:32).

Debias, opening the secured door, responded, “1-6-2.” (Id. at 4:31:4:32).

Castro then asked, “What’s your name?” (Id. at 4:32-4:33).

| Debias, now stepping into the police department hallway with his back

| turned to Castro, stated again, “1-6-2.” (id. at 4:33-4:34). Debias's bodycam

video indicates that he also told Castro to have a good day. (Doc. 40-2, Debias

Video 1, 1:40-1:41).

Castro sidestepped with his camera pointed into the police department

hallway and stated: “That's your name? 1-6-2?" (Doc. 40-3, Castro Video,

4:34:4:36). As the door closed, Castro called Debias an “asshole,” and turned

toward the exit at the rear of Hazleton City Hall. (Id. at 4:36-4:38). Castro walked

several steps toward the exit. (Id. at 4:38-4:41). He then turned around to face

Debias reemerging from the police department door, pointing his finger at the

plaintiff. (id. at 4:41-4:44).

As Debias walked toward Castro, the defendant warned: “I'd watch your

step on this. You don’t want to get arrested. Watch your step! | told you what to

do, OK! That’s going to be it.” (Id. at 4:44-4:47).

Castro, starting before Debias finished, responded: “Go ahead, arrest me.

Go ahead, arrest me. Arrest me! What you going to do? What you going to do?

What you going to do?” (id. at 4:46-4:52). Castro moved his arms away from his

sides with his palms open and facing the officer. (Doc. 40-2, Debias Video 1,

1:52-2:01)

After Castro stated “arrest me” the third time, Debias pointed at the

direction of the exit and commanded: “Leave City Hall. Leave City Hall now.”

(Doc. 40-3, Castro Video, 4:50-4:52). Debias also advised, “I'm not going to tell

you again.” (Id. at 4:52:4:53),

Castro countered: “You don’t want to do your job. You don’t like to do your

job.” (ld. at 4:53:4:55). Debias responded: “] gave you your information. | told

you what you need to do.” (Id. at 4:55-4:57). Castro then stated, “I told you...”

(Id. at 4:56-4:57).

At this point, Debias walked even closer to Castro, pointed toward the exit,

and shouted: “Out! Leavel” (Id. at 4:57-4:58). Simultaneously, Castro stated: "Go

ahead, touch me.” (Id. at 4:57-4:58). Debias then placed his hands on Castro

and said, “turn around, go ahead,” as the plaintiff's bodycam turned slightly from

the contact. (id. at 4:58-5:00),

Castro then shouted: “You assaulted me right now!” (Id. at 5:00-5:02).

Debias, with his hands still on the plaintiff, pushed Castro toward the exit. (Id. at

5:02-5:04). Castro yelled, “Why are you pushing me? Why are you pushing me?”

| (Id. at 5:02-5:04). Debias, still pushing Castro, stated, twice: “Listen to me.” (Id.

at 5:04-5:06). Castro yelled again, twice: “Why are you pushing me?” (5:04-

5:06).

| “Stop,” Debias commanded. (Id. at 5:06). Castro responded: “No, | stop

nothing.” (id. at 5:06-5:08). Debias continued: “I! told you what you needed to

do.” Castro yelled: “No, sir!” (Id. at 5:08-5:09). Debias then began to shout even

louder at the plaintiff. (ld. at 5:09-5:10). Castro’s bodycam video, however, has a

gap in the encounter at this point. It resumes with the sounds of Castro being

placed in handcuffs in the elevator vestibule area at the rear exit of City Hall. (id.

at 5:10-5:15).

Debias’s bodycam video fills the above gap. With his right hand on

Castro's left shoulder and his left index finger in the plaintiff's face, Debias

shouted at him: “Listen to me!” (Doc. 40-2, Debias Video 1, 2:14-2:16). Castro

shouted back, matching the officer's volume: “Fuck youl” (Id. at 2:15-2:16).

Debias then spun Castro around, grabbed the plaintiff by his suspender-like

camera harness, and pushed the plaintiff in the direction of the rear exit. (id. at

2:16-2:18). As he was being pushed, Castro opened the door into the elevator

vestibule area as Debias released the plaintiff's camera harness, snapping it

against the plaintiff's back. (id. at 2:18-2:19). The back door to Hazleton City Hall

appeared to be open with Castro only a step or two away from that door. □□□□□

Facing each other again, Castro and Debias shouted:

Castro: [pointing at his bodycam] “You're on fucking video right

now.

Debias: {pointing at the open door] “Leave the property!

{pointing at his bodycam] So are you!”

Castro: “Fuck you!”

Debias: [pointing at the open door] “Get out!”

Castro: “Fuck you!”

(ld. at 2:19-2:24).

Debias then turned Castro around in the direction of a brick wall with the

defendant's right hand grabbing the back of the plaintiff's left shirt sleeve. (Id. at

2:24-2:25). From the perspective of Debias’s bodycam video, Castro was either

pushed or he bumped his own chest against the brick wall, Castro yelled: “You

fucking broke my camera! You just broke my camera!” (id. at 2:25-2:30).

Debias then placed Castro in handcuffs, now joined by a city police

detective. (Id. at 2:30-2:39). The officers walked Castro back into City Hall and

into a police department holding cell. (Id. at 2:39-3:10).

Debias’s body camera continued recording for approximately fourteen (14)

more minutes. (id. at 3:10-17:14). As for the remainder of the encounter, Debias

| and the detective removed Castro’s handcuffs. (Id. at 3:59-4:10). Castro

| continued to speak to Debias, the unidentified city police detective, and another

Hazleton officer, Christopher Zubris, as the police searched the plaintiff's

person.® (Id. at 4:20-5:20).

During this exchange, Debias stated to Zubris and the detective: “[T]his is a

| routine with him. | couldn’t tell you how many times.” (Id. at 5:20-5:24).

Subsequently, Castro took a seat in the holding cell at Debias’s request but then

aid not respond to commands to remove his shoes. (Id. at 5:31-5:41). Debias

stated: “We'll do this the hard way. Keep an eye on him.” (id. at 5:41-5:43).

Debias went to retrieve other restraints. (id. at 5:43-6:11).

Returning to the holding cell, Debias spoke with the detective. Debias

stated: “It’s a regular issue with him. He comes in, starts issues, you know what |

mean, doesn’t get the answers he likes, and this is what happens.” (Id. at 6:11-

6:24). Castro asked to know the reason for his arrest. (Id. at 6:30-6:33). The

detective responded: “Disorderly conduct.” (Id. at 6:33-6:34).

3 Zubris is identified in Debias’s bodycam video as “1-9-8” when Castro requested his badge

number. (Doc. 40-2, Debias Video 1, 4:41-4:43). A computer aided dispatch report indicates

that this badge number belongs to Zubris. (Doc. 40-6, Def. Appx. 6).

Ultimately, the officers did not use the other restraints that Debias retrieved,

as Castro responded to Zubris’s attempts to deescalate the situation. (id. at 6:34-

8:00). Zubris then conducted a strip search of the plaintiff. (Id. at 8:00-9:43).

Following the strip search, Debias then engaged Zubris in discussion about

Castro outside the holding cell. Zubris advised Debias about the KFC incident:

Debias: | Were you working on the Thirteenth?

Zubris: Yes.

Debias: | don’t know. He’s been in, | don’t know how many times.

Zubris: | was working the day this happened.

Debias: The latest one was on the Thirteenth. | guess he talked to

Babula about an assault or something.

Zubris: Yes. He was up at KFC. It was between him and [redacted].

Babula, | believe, was doing charges on [redacted] for the

incident. This guy...

Debias: | didn’t know anything about this. And you know, he didn't like

the answer | was giving him. And | deait with him before, and

this is what it turned into.

(Id. at 9:49-10:26).

After additional discussion between Debias and Zubris about the current

incident, Debias said: “That’s what this is about...again with him.” (Id. at 10:26-

11:00).

Moreover, after Debias looked into Castro’s other matters at a desk area,

he remarked to another officer: “Every single time he comes in here with his

10

GoPro camera on, he tries to bait you into something, starts acting like an idiot.

[inaudible]. This is the fourth time I’ve dealt with him over this shit. I’m fucking

tired of it.” (Id. at 14:19-14:41). Debias subsequently issued Castro a non-traffic

citation for violating 18 PA. CONS. STAT. § 5503(a)(4), Pennsylvania’s disorderly

conduct statute. (Doc. 40-1). Castro alleges that he was not convicted of the

offense. (Doc. 1, Compl. F 31).

Based on the above incident, Castro filed a two-count complaint against

Debias pursuant to Section 1983. (See id.} Count! of Castro’s complaint

asserts a cause of action for false arrest in violation of his Fourth Amendment

rights. (id. 9] 33-34). In Count Il, plaintiff brings a claim for retaliatory arrest in

violation of his First and Fourth Amendment rights. (Id. Jf] 36-40). Castro did not

attach a copy of his video to the complaint.

Debias initially filed a motion to dismiss plaintiff's Section 1983 claims

pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. 6). In doing so,

Debias asserted qualified immunity as a shield to this action. (Doc. 7, Def. Br. in

Supp. MTD at 4-13). Based on the existence of videos of the incident recorded

by the parties, the court converted Debias’s motion to dismiss to a motion for

summary judgment. (Doc. 16). The parties proceeded with discovery motion

practice. Castro filed a motion to take Debias's deposition, which was denied.

(Docs. 23, 27-28). Debias also filed two motions attempting to restrict public

11

| access to the police bodycam videos. (See Docs. 21-22, 29, 33). Debias’s

| motions were largely denied, except for a permitted redaction of the name of the

| non-party involved in the KFC incident with the plaintiff. (Docs. 27-28, 37-38).

On November 22, 2024, Debias filed a brief in support of summary

judgment, (Doc. 39), and a statement of facts with exhibits as required by the

Rules of Court for the Middle District of Pennsylvania (“Local Rules’), (Doc. 40).

The following exhibits comprise the entire summary judgment record: 1) the

citation issued to Castro, (Doc. 40-1); 2) Debias’s bodycam videos with the

| permitted redactions, (Docs. 40-2, 40-4); 3) Castro’s video recording of portions

of the incident from his own body camera, (Doc. 40-3); 4) the bodycam video of

another officer (not Zubris}, (Doc. 40-6); and 5) a computer aided dispatch report

from the incident, (Doc. 40-7). Castro then responded with a brief in opposition

on December 13, 2024. (Doc. 41). Debias did not file a reply brief within the time

afforded to him by the Local Rules. Accordingly, the qualified immunity issues in

this case are ripe for a decision.

Jurisdiction

As this action was filed 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

12

States.”). Furthermore, the court has jurisdiction pursuant to 28 U.S.C. §

1343(a).

Standard of Review

Debias’s initial motion to dismiss based upon qualified immunity is now

being addressed as a motion for summary judgment with consideration of the

bodycam videos and police department records.* Granting summary judgment is

proper “ ‘if the pleadings, depositions, answers to interrogatories, and admissions

on file, together with the affidavits, if any, show that there is no genuine issue as

to any material fact and that the moving party is entitled to judgment as a matter

of law.’ ” See Knabe v. Boury Corp., 114 F.3d 407, 410 n. 4 (3d Cir.1997)

(quoting Feb. R. Civ. P. 56(c)). “[T]his standard provides that the mere existence

of some alleged factual dispute between the parties will not defeat an otherwise

properly supported motion for summary judgment; the requirement is that there

be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 247-48 (1986) (emphasis in original).

Qualified immunity is “an entitlement not to stand trial or face the other burdens of litigation[.]’

Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). And the Supreme Court of the United States

has repeatedly “stressed the importance of resolving immunity questions at the earliest

possible stage in litigation.” Hunter v. Bryant, 502 U.S. 224, 227 (1991)(citations omitted).

13

Analysis

1. Qualified immunity

“The purpose of [Section] 1983 is to deter state actors from using the

badge of their authority to deprive individuals of their federally guaranteed rights

and to provide relief to victims if such deterrence fails.” Wyatt v. Cole, 504 U.S.

158, 161 (1992). “Police officers, embodying the authority of the state, are liable

under § 1983 when they violate someone's constitutional rights, unless they are

protected by qualified immunity.” Curley v. Kiem, 499 F.3d 199, 206 (3d Cir.

2007). The doctrine of qualified immunity shields government officials performing

discretionary functions “insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person would

have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). “The qualified

immunity standard ‘gives ample room for mistaken judgments’ by protecting ‘all

but the plainly incompetent or those who knowingly violate the law.’ ” Hunter, 502

U.S. at 229 (quoting Malley v. Briggs, 475 U.S. 335, 343 (1986)).

Qualified immunity “is an immunity from suit rather than a mere defense to

liability[.]” Mitchell, 472 U.S. at 526 (emphasis in original). Thus, the defendant

bears the burden of establishing that he is entitled to qualified immunity. Burns v.

Pa. Dep't of Corr., 642 F.3d 163, 176 (3d Cir. 2011\(citing Harlow, 457 U.S. at

819). On a motion summary judgment, this means defendant officers must

14

show: 1) that there is no genuine dispute of material fact to refute their contention

that they did not violate plaintiffs rights; or 2) if a violation of a right occurred, that

reasonable officers could not have known that their conduct constituted such a

violation when they engaged in it. See Halsey v. Pfeiffer, 750 F.3d 273, 288 (3d

Cir. 2014)).

The two-part qualified immunity test is well settled. Montemuro v. Jim

Thorpe Area Sch, Dist., 99 F.4th 639, 642 (3d Cir. 2024) (citing Anglemeyer v.

Ammons, 92 F.4th 184, 188 (3d Cir. 2024)). Under the first prong, a court must

decide whether the plaintiff can demonstrate a violation of a constitutional right.

Pearson v. Callahan, 555 U.S. 223, 232 (2009)(citation omitted). Under the

second prong, “the court must decide whether the right at issue was ‘clearly

_ | established’ at the time of defendant’s alleged misconduct.” Id. (citation omitted).

In considering qualified immunity, the court may address the prongs of this

test in any order. Id. at 236. Beginning a qualified immunity analysis with the

first prong remains “often beneficial.” Id.; see also Halsey, 750 F.3d at 287

(“Normally...in considering a qualified immunity issue, [the court asks] whether a

defendant's conduct violated a [plaintiff's] statutory or constitutional rights before

addressing whether that law had been established at the time of the violation so

that the unlawfulness of the conduct should have been apparent to an objectively

15

reasonable official.”)(citations omitted). The court will thus start with the

substantive constitutional issues in this case,

a. | Whether Debias Violated Castro’s Constitutional Rights

Under the first prong of the qualified immunity analysis, the court asks, “if

the facts, ‘[t]laken in the light most favorable to the party asserting the injury, ...

show the officer's conduct violated a constitutional right.’ ” Lozano v. New Jersey,

9 F.4th 239, 245 (3d Cir. 2021)(quoting Saucier v. Katz, 533 U.S. 194, 201

(2001)).

Castro’s first claim is for false arrest. “[C]laims for false arrest challenge

‘detention without legal process[.]’” Rivera-Guadalupe v. City of Harrisburg, 124

F.4th 295, 303 (3d Cir. 2024)(citing Wallace v. Kato, 549 U.S. 384, 389 (2007)).

Debias arrested Castro without a warrant. “To satisfy the Fourth

Amendment, a warrantless arrest must be based on probable cause that a crime

has been or is being committed.” Revell v. Port Auth. of New York, New Jersey,

598 F.3d 128, 137, n. 16 (3d Cir. 2010)(citing Devenpeck v. Alford, 543 U.S. 146,

152 (2004)); see also Barna v. City of Perth Amboy, 42 F.3d 809, 819 (3d Cir.

1994)). Moreover:

The determination that probable cause exists for a

warrantless arrest is fundamentally a factual analysis that

must be performed by the officers at the scene. It is the

function of the court to determine whether the objective

facts available to the officers at the time of arrest were

| 16

sufficient to justify a reasonable belief that an offense was

being committed.

United States v. Glasser, 750 F.2d 1197, 1206 (3d Cir. 1984)(citing Beck v. Ohio,

379 U.S. 89, 95 (1964)).

Castro’s second claim is for retaliatory arrest. “ ‘[A]s a general matter the

First Amendment prohibits government officials from subjecting an individual to

retaliatory actions’ for engaging in protected speech.” Nieves v. Bartlett, 587 U.S.

391, 405 (2019)(quoting Hartman v. Moore, 547 U.S. 250, 256 (2006)). “If an

official takes adverse action against someone based on that forbidden motive,

and non-retaliatory grounds are in fact insufficient to provoke the adverse

consequences, the injured person may generally seek relief by bringing a First

Amendment claim.” Id. (internal quotation marks and citations omitted). But,

absent facts fitting within a narrow exception, “the existence of probable cause

‘generally defeat[s] a First Amendment retaliatory arrest claim.’ ” Falcone v.

Dickstein, 92 F.4th 193, 210 (3d Cir. 2024) (quoting Nieves, 587 U.S. at 405).

In this case, Debias cited Castro for violating 18 PA. CONS. STAT. §

5503(a)(4), a disorderly conduct offense in the Commonwealth of Pennsylvania.°®

Castro’s disorderly conduct charge was graded as a summary offense. (Doc. 40-1).

Disorderly conduct can be graded as a misdemeanor of the third degree “if the intent of the

actor is to cause substantial harm or serious inconvenience, or if he persists in disorderly

conduct after reasonable warning or request to desist.” 18 PA. CONS. STAT. § 5503(b). When

disorderly conduct constitutes a summary offense under Pennsylvania law, a police officer has

“upon view...the right of arrest without warrant upon probable cause when there is ongoing

conduct that imperils the persona! security of any person or endangers public or private

property[.]’ 42 Pa. CONS. STAT. § 8902(a)(1).

17

(Doc. 40-1). In the citation, Debias described the nature of the offense by

tracking the language of this statutory subsection without additional description of

the incident. (Id.)

Nonetheless, “[b]ecause probable cause is an objective standard, an arrest

is lawful if the officer had probable cause to arrest for any offense, not just the

offense cited at the time of arrest or booking.” District of Columbia v. Wesby, 583

U.S. 48, 55, n. 2 (2018) (citing Devenpeck v. Alford, 543 U.S. 146, 153-155 & n.

2 (2004)). In support of summary judgment, Debias argues that Castro violated

each subsection of the state disorderly conduct statute. (Doc. 39, Def. Br. in

Supp. at 13). Accordingly, the court refers to the entire offense definition in 18

PA. CONS. STAT. § 5503(a), not just Section 5503(a)(4):

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

“Public” is defined as: “affecting or likely to affect persons in a place to which the public or a

| substantial group has access; among the places included are highways, transport facilities,

schools, prisons, apartment houses, places of business or amusement, any neighborhood, or

any premises which are open to the public.” 18 Pa. CONS. STAT. § 5503(c).

18

(4) creates a hazardous or physically offensive condition

by any act which serves no legitimate purpose of the

actor.

18 PA. CONS. STAT. § 5503(a).

State law defines the offense of disorderly conduct. “Section 5503 Is

aimed at protecting the public from certain enumerated acts.” Commonwealth v.

Fedorek, 946 A.2d 93, 100 (Pa. 2008)(emphasis in original). However, Section

5503 “accomplishes this aim by focusing upon certain individual acts, which, if

pursued with the intent to cause public inconvenience, annoyance, or alarm, or

recklessly creating a risk thereof, constitute the offense of disorderly conduct.

These individual acts focus upon the offender's behavior.” Id. (emphasis in

original).

Furthermore, “whether a defendant's words or acts rise fo the level of

disorderly conduct hinges upon whether they cause or unjustifiably risk a public

disturbance. ‘The cardinal feature of the crime of disorderly conduct is public

unruliness which can or does lead to tumult and disorder.’ ” Commonwealth v.

Hock, 728 A.2d 943, 946 (Pa. 1999)(quoting Commonwealth v. Greene, 189

A.2d 141, 144 (Pa. 1963)). This analysis thus also considers whether Castro’s

conduct caused or unjustifiably risked a public disturbance at Hazleton City Hall.

And, to the extent that Section 5503 regulates Castro's speech at City Hall,

First Amendment law is also implicated. Pennsylvania law recognizes this

19

fundamental concern. Commonwealth v. Mastrangelo, 414 A.2d 54, 58 (Pa.

1980)(‘the disorderly conduct statute may not be used to punish anyone

exercising a protected First Amendment right.”).

Thus, “[w]hen the regulated conduct consists of speech, the [disorderly

conduct] statute must ‘be carefully drawn or authoritatively construed to punish

only unprotected speech and not be susceptible of application to protected

expression.’ ” Johnson v. Campbell, 332 F.3d 199, 211 (3d Cir. 2003)(quoting

Gooding v. Wilson, 405 U.S. 518, 522 (1972)). “The First Amendment on the

whole offers broad protection for speech, be it unpleasant, disputatious, or

downright offensive.” Id. at 212. The “function of free speech under our system

of government is to invite dispute...[and] may indeed best serve its high purpose

when it induces a condition of unrest, creates dissatisfaction with conditions as

they are, or even stirs people to anger.” Terminiello v. Chicago, 337 U.S. 1, 4,

(1949)).

Speech that does not receive First Amendment protection inciudes “the

lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’

words—those which by their very utterance inflict injury or tend to incite an

immediate breach of the peace.” Chaplinsky v. New Hampshire, 315 U.S. 568,

572 (1942)). “On the specific subject of ‘profane’ words, the Supreme Court has

held that even those words alone, unaccompanied by any evidence of violent

20

arousal, are not ‘fighting words,’ and are therefore protected speech.” Johnson,

332 F.3d at 212.

Section 5503(a)(1) has been referred to by the federal courts as the

“fighting words” provision of Pennsyivania’s disorderly conduct statute. See

Pringle v. Ct. of Common Pleas, 778 F.2d 998, 1001 (3d Cir. 1985); Clifton v.

Borough of Eddystone, 824 F. Supp. 2d 617, 625 (E.D. Pa. 2011); Tate v. W.

Norriton Twp., 545 F. Supp. 2d 480, 487 (E.D. Pa. 2008)(citing Hock, 728 A.2d at

943 (Pa. 1999)). The Supreme Court of Pennsylvania has indicated that, to

violate Section 5503(a)(1)}, soeech must constitute “fighting words,” that is, under

the circumstances, the words “risked an immediate breach of the peace.” Hock,

728 A.2d at 846 (citing Chaplinsky, supra). Such words belong to a “small

class[.]” Texas v. Johnson, 491 U.S. 397, 409 (1989). The small class of

“fighting words’ is limited because, otherwise, it would be inconsistent with the

general principles of free speech. See id. at 408—09 (quoting Terminiello, 337

U.S. at 4).

In Hock, a Pennsylvania Supreme Court case, the Commonwealth

contended that the words, “Fuck you, asshole,” constituted a violation of Section

5503(a)(1) when directed at a municipal police officer, relying upon a previous

| decision of the Pennsylvania Supreme Court to equate “fighting words” with

disorderly conduct. 728 A.2d at 944, 946. The Hock court disagreed that such

21

an epithet constituted “fighting words” and concluded that the officer jacked

probable cause to arrest the defendant for disorderly conduct. Id. at 946-47.

Pennsylvania’s highest court has also stated:

We recognize that the police often place their lives in

jeopardy to ensure the safety of the citizenry and thus

perform a task that is valuable, necessary and, at times,

heroic.

Accordingly, the prospect of a citizen verbally abusing a

police officer appears particularly objectionable. It does not

follow, however, that Section 5503(a) may be used as a

vehicle to protect the police from all verbal indignities,

especially under the dubious hypothesis that officers are

likely to break the law when affronted. The police must

expect that, as part of their jobs, they will be exposed to

daily contact with distraught individuals in emotionally

charged situations. See generally Commonwealth v.

Weiss, 340 Pa.Super. 427, 434, 490 A.2d 853, 856 (1985).

Moreover, the offense of disorderly conduct is not intended

as a catchall for every act which annoys or disturbs people;

it is not to be used as a dragnet for all the irritations which

breed in the ferment of a community. It has a specific

purpose; it has a definite objective, it is intended to

preserve the public peace; it has thus a limited periphery

beyond which the prosecuting authorities have no right to

transgress any more than the alleged criminal has the right

to operate within its clearly outlined circumference.

Greene, 410 Pa. at 117, 189 A.2d at 145.

Id. at 947.

In light of the above Pennsylvania jurisprudence, Castro’s first vulgar

remark to Debias did not supply enough objective facts to establish probable

cause for a disorderly conduct arrest. And when viewing the record in Castro’s

22

| favor, as is required at this posture, the plaintiff's subsequent taunts and vulgar

remarks resulted from the defendant officer: 1) abruptly returning to the hallway

to tell the plaintiff to “watch [his] step,” 2) threatening the plaintiff with arrest, 3)

pointing his finger in the plaintiff's face, 4) grabbing the plaintiff, and 5) pushing

him toward the exit of a public building.

In such context, Castro’s statements of: 1) “Arrest me!” 2) “What you going

to do?” 3) “You don’t want to do your job.” 4) “You don’t like to do your job.” 5) “I

told you!” 6) “Go ahead, touch me.” 7) “You assaulted me right now!” 8) “Why are

you pushing me?” 9) “No, | stop nothing.” and even 10) “Fuck you!” do not rise to

the level of “fighting words” as that class of words has been narrowed by the

United States Supreme Court since Chaplinsky.

in contrast to Debias’s physical conduct, Castro’s words were not

accompanied by gestures objectively showing a desire to fight the defendant

officer. Castro responded to Debias reemerging from secure police department

area by holding his arms outward at his sides with his hands open. (Doc. 40-2,

Debias Video 1, 1:53). Castro also offered little physical resistance after being

turned, pushed, grabbed, and shoved out of the police department hallway, (Id.

at 2:04-2:20). Looking at both Castro’s words and conduct at this posture, the

| defendant did not have objective facts available to him to arrest the plaintiff for

violating Section 5503(a)(1).

23

| Turning next to Section 5503(a)(2), “a person is guilty of disorderly conduct

| if, with intent to cause public inconvenience, annoyance or alarm, or recklessly

creating a risk thereof, he... makes unreasonable noise.” 18 PA. CONS. STAT. §

5503(a)(2). Unreasonable noise is defined under Pennsylvania law as “not fitting

or proper in respect to the conventional standards of organized society ora

legally construed community.” Mastrangelo, 414 A.2d 58 (quoting Greene, 189

A.2d at 143)). “Mere annoyance to the public may not suffice.” Commonwealth

v. Gowan, 582 A.2d 879, 882 (1990).

Four factors have been recognized by the Superior Court of Pennsylvania

as relevant to the “unreasonable noise” determination: "(1} the volume of the

noise; (2) the duration of the noise; (3) the time of day; and (4) whether the noise

was reported to the police.” McNeil v. City of Easton, 694 F. Supp. 2d 375, 391

(E.D. Pa. 2010) (citing Commonwealth v. Maerz, 879 A.2d 1267 (Pa. Super.

2005); Commonwealth v. Alpha Epsilon Pi, 540 A.2d 580 (1988))

In applying these factors, the court notes that any noise caused by Castro

_at the rear exit of Hazleton City Hall lasted for approximately forty (40) seconds

| and the plaintiff's volume was equally matched by the volume of Debias’s voice.

Such noise also occurred in a city municipal building while open to the public. It

| does not appear that anyone other than the parties was in the vicinity. Moreover,

it does not appear that the parties disrupted any other city business or impaired

| 24

the work of other city employees outside of the police department area. Finally,

Debias is a police officer, and when the objective facts of record are viewed in a

light most favorable to Castro, the videos can reasonably lead to a conclusion

that the defendant escalated this matter from routine police business to a

physical confrontation with the plaintiff based on the plaintiff's remarks and video

recording. Consequently, upon consideration of these “unreasonable noise”

factors, Debias did not have objective facts available to arrest Castro for violating

Section 5503(a)(2).

Moving on to Section 5503(a)(3), this subsection requires obscene

language or an obscene gesture. A review of Pennsylvania law indicates that

this subsection is plainly inapplicable because Castro’s remarks lacked a sexual

component. ‘ See Commonwealth v. Johnson, 327 A.3d 265, 269-70 (Pa. Super.

Ct. 2024)(collecting cases); Commonwealth v. Kelly, 758 A.2d 1284, 1288 (Pa.

Super. Ct. 2000).

? Section 5503(a)(3) is inapplicable based on Pennsylvania's application of the test from Miller

v. California, 413 U.S. 15 (1973). Kelly, 758 A.2d at 1286. The Superior Court of Pennsylvania

has reversed disorderly conduct convictions under Section 5503(a)(3) where the defendant

yelled “fuck the police” or other similar statements. Johnson, 327 A.3d at 269 (collecting

cases); see also Brockway v. Shepherd, 942 F.Supp. 1012, 1016 (M.D. Pa.1996) (“using a

base term for sex does not change the disrespectful, offensive communication into one that

appeals to the prurient interest.”).

25

Thus, the constitutional analysis of the false arrest claim turns on whether

Debias had objective facts amounting to probable cause as to arrest Castro with

the offense listed on the citation, Section 5503(a)(4). In Pennsylvania, “Tal

person is guilty of disorderly conduct if, with intent to cause public inconvenience,

annoyance or alarm, or recklessly creating a risk thereof, he...creates a

hazardous or physically offensive condition by any act which serves no legitimate

purpose of the actor.” 18 PA. CONS. STAT. § 5503{a)(4).

An act “serves no legitimate purpose” if it is not constitutionally protected.

Commonwealth v. Roth, 531 A.2d 1133, 1139 (Pa. Super. Ct. 1987) (discussing

Commonwealth v. Duncan, 363 A.2d at 803 (1976)). On that note, the Supreme

Court of the United States has indicated that “[t]he freedom of individuals verbally

to oppose or to challenge police action without thereby risking arrest is one of the

| principal characteristics by which we distinguish a free nation from a police

state,” City of Houston v. Hill, 482 U.S. 451, 462-63 (1987). Castro's speech,

while vulgar and condescending, fits within that category as discussed above.

Additionally, Castro’s right to record police activity in public is constitutionally

protected. Fields v. City of Philadelphia, 862 F.3d 353, 359 (3d Cir. 2017).

The remainder of Section 5503(a)}(4) is also inapplicable to these facts. “A

‘hazardous’ condition is one which engenders ‘danger or risk.’ ” Vanderklok v.

United States, 140 F. Supp. 3d 373, 383 (E.D. Pa. 2015), affid, 774 F. Appx 73

| 26

(3d Cir. 2019)(quoting Roth, 531 A.2d at 1137). “The dangers and risks against

which the disorderly conduct statute are directed are the possibility of injuries

resulting from public disorders.” Commonwealth v. Williams, 574 A.2d 1161,

1164 (Pa. Super. Ct. 1990). “By contrast, the meaning of ‘physically offensive

condition’ ‘encompasses direct assaults on the physical senses of members of

the public’ as opposed to ‘merely morally offensive’ conduct.” Commonwealth v.

Coniker, 290 A.3d 725, 735 (Pa. Super. Ct. 2023)(quoting Commonwealth v.

McConnell, 244 A.3d 44, 49 (Pa. Super. Ct. 2020)). Examples include: setting off

a “stink bomb,” strewing rotting garbage in public places, or shining blinding lights

in the eyes of others. Williams, 574 A.2d at 1164.

Castro was armed only with his camera and his mouth. His words and

conduct at Hazleton City Hall did not amount to assaults on anyone’s physical

senses. Moreover, given the absence of other people in this area of the building

besides the parties, the plaintiff's behavior neither placed Debias nor any third-

party at risk of injury. So, just as with the other subsections of the disorderly

conduct statute, Debias did not have the objective facts to justify a Section

5503(a)(4) arrest when the videos are viewed in Castro’s favor.

Continuing on to Castro’s retaliatory arrest claim, if the plaintiff establishes

the absence of probable cause, as is the outcome of the analysis above, then the

2t

test from Mt. Healthy City Bd. of Ed. v. Doyle, 429 U.S. 274 (1977) governs that

claim:

The plaintiff must show that the retaliation was a

substantial or 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 retaliation.

Nieves, 587 U.S. at 404 (quoting Lozman v. Riviera Beach, 585 U.S. 87, 97

(2018)); see also Hartman, 547 U.S. at 265-66.

Additionally, to prevail on a First Amendment retaliation claim, a plaintiff

must establish that: (1) he engaged in conduct protected by a constitutional right;

(2) the defendant engaged in retaliatory action sufficient to deter person of

ordinary firmness from exercising his constitutional rights; and (3) a causal link

existed between protected activity and retaliatory action. Falcone, 92 F.4th at

205 (citing Palardy v. Township of Millburn, 906 F.3d 76, 80-81 (3d Cir.

2018))(cleaned up).

As indicated, Castro engaged in conduct protected by the First

Amendment. Furthermore, “[t]here is no dispute that an arrest constitutes

conduct ‘sufficient to deter a person of ordinary firmness from exercising his

constitutional rights.’” Id. (quoting Palardy, supra; Thomas v. Independence

Twp., 463 F.3d 285, 296 (3d Cir. 2006))(alteration removed). On the element of

causation:

28

It is not enough to show that an official acted with a

retaliatory motive and that the plaintiff was injured—the

motive must cause the injury. Specifically, it must be a

“but-for” cause, meaning that the adverse action against

the plaintiff would not have been taken absent ithe

retaliatory motive.

Nieves, 587 U.S. at 398-99 (discussing Hartman, 547 U.S. at 260).

When the parties’ words and conduct in the chain of events are reviewed in

Castro's favor, there is both direct and circumstantial evidence that Debias would

not have arrested the plaintiff but-for a retaliatory motive arising from the

plaintiff's speech and video recording. Consequently, after an analysis of the first

prong of the qualified immunity test on a summary judgment standard of review,

Castro can demonstrate violations of his First and Fourth Amendment rights by

the defendant. As for the ultimate determination of whether Debias actually

violated Castro’s rights, that task is not for the court.

b. Whether the Law Was Clearly Established

One task does remain in resolving the defendant's assertion of qualified

immunity, that is, “the court must decide whether the right at issue was ‘clearly

established’ at the time of defendant's alleged misconduct.” Pearson, 555 U.S.

223, 232 (citing Saucier, 533 U.S. at 201). “A clearly established right is one that

is ‘sufficiently clear that every reasonable official would have understood that

what he is doing violates that right.’ ” Mullenix v. Luna, 577 U.S. 7, 11 (2015)

(quoting Reichle v. Howards, 566 U.S, 658, 664 (2012)). Under Supreme Court

29

precedent, “the clearly established right must be defined with specificity.” City of

Escondido, Cal. v. Emmons, 586 U.S. 38, 42 (2019). The court thus frames the

right considering the specific context of the case, as the right needs to be specific

enough to put every reasonable official on notice of it. See Fields, 862 F.3d at

361 (citation omitted).

“To be clearly established, a legal principle must have a sufficiently clear

foundation in then-existing precedent. The rule must be settled law. . .which

means it is dictated by controlling authority or a robust consensus of cases of

persuasive authority.” Wesby, 583 U.S. at 63. Clearly established rights are

derived either from binding United States Supreme Court and Third Circuit Court

of Appeals precedent or from a robust consensus of cases of persuasive

authority from other circuits. See James v. N.J. State Police, 957 F.3d 165, 170

(3d Cir. 2020); Bland v. City of Newark, 900 F.3d 77, 84 (3d Cir. 2018)).

The foundation of law in this case has been sufficiently clear for some time.

Plaintiff's First Amendment right to record the police is clearly established.

Fields, 862 F.2d at 356. Plaintiff's First Amendment right to criticize the police is

also clearly established. City of Houston, 482 U.S. at 461. Plaintiff's right to use

profane language in his police criticism is also clearly established.® Johnson, 332

8 addition to Johnson, a robust consensus of cases from other circuits at the time of Castro’s

arrest stand for the proposition that the police cannot use disorderly conduct statutes to punish

people for merely saying contemptuous things to police officers. Provost v. City of Newburgh,

30

F.3d at 212. Such a right clearly exists up to the point where his words “must be

nothing iess than ‘an invitation to exchange fisticuffs.’ ” Id., 332 F.3d at 212

(quoting Texas v. Johnson, 491 U.S. at 409). Moreover, “the law is settled that

as a general matter the First Amendment prohibits government officials from

subjecting an individual to retaliatory actions, including criminal prosecutions, for

speaking out.” Hartman, 547 U.S. at 256.

Additionally, “the Fourth Amendment prohibits a police officer from

arresting a citizen except upon probable cause.” Orsatti v. N.J. State Police, 71

F.3d 480, 482 (3d Cir. 1995\citing Papachristou v. City of Jacksonville, 405 U.S.

156, 169 (1972)). “Defendants will not be immune if, on an objective basis, it is

obvious that no reasonably competent officer would have concluded that” there

was probable cause. See Malley, 475 U.S. at 341 (discussing the Harlow

standard in the context of seeking an arrest warrant). “[Blut if officers of

reasonable competence could disagree on this issue, immunity should be

recognized.” Id. at 341. All told, “officers are entitled to qualified immunity when

they ‘reasonably but mistakenly conclude that probable cause is present[.]’”

Lozano, 9 F.4th at 246 (quoting Anderson, 483 U.S. at 641); see also Curley, 499

262 F.3d 146, 159 (2d Cir. 2001); Payne v. Pauley, 337 F.3d 767, 777 (7th Cir. 2003); Greene

v. Barber, 310 F.3d 889, 892 (6th Cir. 2002); Buffkins v. City of Omaha, 922 F.2d 465 (8th Cir.

1990): Thurairajah v. City of Fort Smith, Arkansas, 925 F.3d 979, 985 (8th Cir. 2019); Duran v.

City of Douglas, 904 F.2d 1372 (9th Cir. 1989): United States v. Poocha, 259 F.3d 1077, 1082

(9th Cir. 2001): Guffey v. Wyatt, 18 F.3d 869, 872 (10th Cir. 1994).

31

| at 207 (“The second step...addresses whether, if there was a wrong...the officer

| made a reasonable mistake about the legal constraints on his actions and should

therefore be protected against suit[.]’).

As the record is postured, it cannot be said that a reasonable officer would

| find probable cause to arrest Castro for disorderly conduct. That is so because

| Castro’s First Amendment rights are so well-established here. Consequently,

| Castro has provided sufficient record evidence to support a set of facts under

which there would be no immunity. And accordingly, Debias’s motion for

summary judgment will be denied.

Conclusion

For the reasons set forth above, the defendant's motion for summary

judgment (Doc. 6) will be denied. An appropriate order follows.

Date: 2 | ok AS \ = AW

| JUDGE|JULIA K. MUNLEY\

| United States District C

32