The opinion
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 24-2237
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SEAN PATRICK BURKE; EQUINOX ADVANTAGE REAL ESTATE I, INC.;
STELLA CADENTE INVESTMENTS, LLC; EQUINOX PROPERTY
MANAGEMENT, INC.,
Appellants
v.
CHIEF EDWARD BACHERT; OFFICER RICHARD PENN;
CHARLES F. ZURICK, III; OFFICER STEVEN FRITZINGER;
OFFICER MATTHEW DEVERS; OFFICER JOSE VAZQUEZ;
OFFICER ERIC TOSAD; OFFICER RICHARD KRASLEY;
BOROUGH MANAGER ERIC GRATZ; BASE ENGINEERING, INC.;
CINDY WITMAN; TIMOTHY CAMPION; GARREN KNOLL; BARRY COHEN;
JOHN DOES 1-10
_____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 5:23-cv-01959)
District Judge: Honorable John M. Gallagher
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Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
on April 15, 2025
Before: CHAGARES, Chief Judge, SCIRICA and RENDELL, Circuit Judges.
(Filed: May 5, 2025)
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OPINION*
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SCIRICA, Circuit Judge
In this 42 U.S.C. § 1983 action, Appellee police officers twice switched off
Appellants’ LED yard sign, purportedly fearful it would distract motorists.1 Appellants
sued, contending, inter alia, that officers conspired with Appellant Burke’s neighbor,
Appellee Zurick, to violate Appellants’ Fourth Amendment rights. The District Court
dismissed Appellants’ claims at summary judgment, holding qualified immunity applied
as it was not clearly established whether the community caretaking exception to the
warrant requirement allows police to switch off distracting signs on private property. Our
review is de novo. Fagan v. City of Vineland, 22 F.3d 1283, 1289 (3d Cir. 1994).
Appellants do not challenge the substance of the court’s immunity analysis.
Rather, relying solely on an expert report evaluating their sign’s maximum intensity in
footcandles of light, they contend it was “impossible” their sign was “dangerously bright”
in the first place. Reply Br. 1. But the report does not address distraction risk, as distinct
from light output, and Appellants concede the sign was malfunctioning. The report is, at
best, “a scintilla of evidence” in Appellants’ favor, which “is insufficient to avoid
summary judgment.” Fagan, 22 F.3d at 1295. Accordingly, because there is no genuine
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
1
The District Court had jurisdiction under 28 U.S.C §§ 1331 and 1367, and we
have jurisdiction under 28 U.S.C. § 1291.
2
dispute of fact that the sign was potentially distracting to motorists, and Appellants do not
challenge the court’s underlying immunity analysis, we will affirm the order granting
summary judgment in favor of Appellees.
3