Kelly v. Borough of Carlisle

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 09-2644

BRIAN D. KELLY,

Appellant

v.

BOROUGH OF CARLISLE;

DAVID J. ROGERS, individually and as a police

officer for the Carlisle Borough Police Department

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. No. 07-cv-01573)

District Judge: Honorable Yvette Kane

Argued February 1, 2010

Before: Chief Judge McKEE, HARDIMAN, Circuit Judges

and POLLAK * , District Judge.

*

The Honorable Louis H. Pollak, Senior District Judge

for the United States District Court for the Eastern District of

(Filed: October 4, 2010)

Dennis E. Boyle [Argued]

Randall L. Wenger

Boyle, Neblett & Wenger

4660 Trindle Road

Suite 200

Camp Hill, PA 17011-0000

Attorneys for Appellant

David J. MacMain [Argued]

Timothy J. Kepner

Scot R. Withers

Lamb McErlane

24 East Market Street

P.O. Box 565

West Chester, PA 19381-0000

Attorneys for Appellees

Nancy Winkelman [Argued]

Schnader Harrison Segal & Lewis

1600 Market Street

Suite 3600

Philadelphia, PA 19103

Attorney for Amicus Appellant

Pennsylvania, sitting by designation.

2

OPINION OF THE COURT

HARDIMAN, Circuit Judge.

Brian Kelly appeals the District Court’s summary

judgment in favor of police officer David Rogers and the

Borough of Carlisle. Kelly filed a civil rights action, claiming

that his First and Fourth Amendment rights were violated when

he was arrested for filming Officer Rogers during a traffic stop.

The gravamen of Kelly’s appeal—that the District Court erred

when it held that Officer Rogers’s reliance upon legal advice

before he arrested Kelly shielded him from liability—raises a

question of first impression in the Third Circuit.

I.

A.

On May 24, 2007, Kelly was riding around Carlisle,

Pennsylvania in a truck driven by his friend, Tyler Shopp. As

was his habit, Kelly brought along a small, hand-held video

camera, which he used to record people for no particular reason.

In the course of their meanderings, Shopp was pulled over by

Officer Rogers for speeding and for violating a bumper height

restriction. During the traffic stop, Kelly placed the video

camera in his lap and started recording Officer Rogers, allegedly

without Rogers’s knowledge or consent. Kelly testified that he

began recording Rogers “after I saw how he was acting,” which

conduct allegedly included Rogers yelling at Shopp. Shopp and

3

Rogers stated otherwise, testifying that Rogers acted

professionally at all times. There is no dispute that Kelly was

holding the camera in his lap during the encounter, although the

parties disagree as to whether the camera was hidden. Rogers

contends the camera was hidden by Kelly’s hands, while Kelly

claims it was in plain sight the entire time he was recording.

Toward the end of the traffic stop, Officer Rogers

informed Shopp and Kelly that he was recording the encounter.1

Rogers claims he then noticed Kelly was recording him, which

Rogers believed was a violation of the Pennsylvania

Wiretapping and Electronic Surveillance Control Act (Wiretap

Act), 18 P A. C ONS. S TAT. §§ 5701-82. Rogers ordered Kelly to

turn over the camera and Kelly complied. Rogers then returned

to his police car and called Assistant District Attorney John

Birbeck to confirm that Kelly had violated the Wiretap Act.2 At

his deposition, Rogers explained that he thought Kelly was

violating the Wiretap Act because police must inform people

when they record traffic stops. In Rogers’s words: “as a police

officer, when we conduct traffic stops and we’re audio and

1

It was routine policy for the Carlisle Police to record all

traffic stops using a video camera mounted to the police car and

a microphone attached to the officer’s shirt. According to

Rogers, he believed he was recording the traffic stop, but later

learned the equipment had malfunctioned.

2

Rogers’s call to ADA Birbeck was consistent with

Borough policy, which was to follow the ADA’s advice “unless

it was something outlandish or outrageous.”

4

video recording, we know – I know it’s the law that I must at

some point during the stop inform the occupants that they’re

being audio and video recorded in accordance with the [A]ct.”

Because Kelly had not informed Rogers that he was recording,

Rogers believed Kelly violated the Wiretap Act.

ADA Birbeck also concluded that Kelly violated the

Wiretap Act based on the facts as described by Rogers. Rogers

stated that he had stopped a car for speeding and bumper height

violations. When he realized the passenger was videotaping

him, he had seized the camera. Rogers did not tell Birbeck that

he himself was also videotaping the stop.3 Rogers then asked

Birbeck whether Kelly’s actions constituted a violation of the

Wiretap Act. After reviewing the statute, Birbeck told Rogers

that it was appropriate to make an arrest, although he advised

Rogers not to seek bail at Kelly’s arraignment.

After hearing Birbeck’s opinion, Rogers called for a

back-up unit and at least three additional officers arrived to

assist with Kelly’s arrest. Kelly testified that while he was being

transported from the scene an officer admonished him: “when

are you guys going to learn you can’t record us.” Kelly was

arraigned before a local magistrate, who ordered bail despite

Rogers’s recommendation that Kelly be released on his own

3

The District Court stated that it was disputed whether

Rogers informed Birbeck that he was also recording. But

Birbeck testified in his deposition that he was not so informed,

and Rogers did not say otherwise, so Birbeck’s testimony

controls.

5

recognizance. Kelly could not make bail, however, so he was

held in the Cumberland County Prison for 27 hours. Several

weeks later, the Cumberland County District Attorney dropped

the charges against Kelly, but issued a memorandum opining

that Rogers had probable cause to arrest Kelly.

B.

After the charges against him were dropped, Kelly sued

Officer Rogers and the Borough of Carlisle under 42 U.S.C.

§ 1983, alleging violations of the First and Fourth Amendments

to the United States Constitution as well as various state law

claims. Following discovery, Defendants filed a motion for

summary judgment, and Kelly sought partial summary

judgment. The District Court granted summary judgment to

Officer Rogers based on qualified immunity, and granted the

Borough summary judgment because Kelly failed to present

facts sufficient to establish municipal liability.

In the District Court’s view:

Defendant [Rogers] acted as reasonably as could

be expected. He observed Kelly videotaping the

police stop without his permission. Then, he

followed police policy in calling the ADA to

confirm that there was probable cause to make an

arrest under the Wiretap Act. . . . [T]he ADA’s

advice was reasonable, so Defendant proceeded

with the arrest. The Court agrees that any

reasonable officer in Defendant’s situation would

6

have likewise relied on the advice given by the

ADA.

Kelly v. Borough of Carlisle, 2009 WL 1230309, at *4 (M.D.

Pa. May 4, 2009). In its analysis of the Fourth Amendment

issue, the District Court stated that because Rogers did not have

a reasonable expectation of privacy in his speech, ADA Birbeck

may have incorrectly concluded there was probable cause to

arrest Kelly. Id. Nonetheless, the Court held Rogers was

entitled to qualified immunity on Kelly’s Fourth Amendment

claim because of Rogers’s “good-faith reliance on this outside

legal assessment of the situation.” Id.

As for Kelly’s First Amendment claim, the District Court

held that it would not have been clear to a reasonable officer that

arresting Kelly for violating the Wiretap Act would infringe

upon his free speech rights. The Court reasoned that (1) it was

unclear whether Kelly had a right to videotape the police stop

because this Court had stated only that there “may” be a right to

videotape police performing their duties on public property, and

(2) even if the right to videotape had been clearly established, a

reasonable officer would have thought his actions were

constitutional since Rogers reasonably believed there was

probable cause to arrest. Id. at *8. Kelly timely appealed the

District Court’s judgment.4

II.

4

The District Court had jurisdiction under 28 U.S.C. §

1331. We have appellate jurisdiction under 28 U.S.C. § 1291.

7

Our review of the District Court’s summary judgment is

plenary, and we apply the same standards that the District Court

applied in determining whether summary judgment was

appropriate. Giles v. Kearney, 571 F.3d 318, 322 (3d Cir.

2009). Viewing the evidence in the light most favorable to the

nonmovant, summary judgment is appropriate only if there is

“no genuine issue as to any material fact [such] that the moving

party is entitled to judgment as a matter of law.” Id. (citing Fed.

R. Civ. P. 56(c)). “The mere existence of some evidence in

support of the nonmovant is insufficient to deny a motion for

summary judgment; enough evidence must exist to enable a jury

to reasonably find for the nonmovant on the issue.” Id. (citing

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)).

The doctrine of qualified immunity protects government

officials “from liability for civil damages insofar as their

conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have

known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

Thus, we ask: (1) whether the facts alleged by the plaintiff show

the violation of a constitutional right, and (2) whether the law

was clearly established at the time of the violation. Saucier v.

Katz, 533 U.S. 194, 201 (2001).

“The relevant, dispositive inquiry in determining whether

a right is clearly established is whether it would be clear to a

reasonable officer that his conduct was unlawful in the situation

he confronted.” Id. at 202. This inquiry “must be undertaken in

light of the specific context of the case.” Id. at 201. Therefore,

to decide whether a right was clearly established, a court must

consider the state of the existing law at the time of the alleged

8

violation and the circumstances confronting the officer to

determine whether a reasonable state actor could have believed

his conduct was lawful. See Anderson v. Creighton, 483 U.S.

635, 641 (1987); Berg v. County of Allegheny, 219 F.3d 261,

272 (3d Cir. 2000); Paff v. Kaltenbach, 204 F.3d 425, 431 (3d

Cir. 2000).

In Saucier, the Supreme Court required lower courts to

determine whether a constitutional right was violated before

deciding whether the law was clearly established. 533 U.S. at

201. This “rigid ‘order of battle,’” Brosseau v. Haugen, 543

U.S. 194, 201-02 (2004) (Breyer, J., concurring), was short-

lived, however, as the Supreme Court overruled Saucier’s order

of operations in Pearson v. Callahan, 129 S.Ct. 808, 817 (2009),

holding that trial judges “should be permitted to exercise their

sound discretion in deciding which of the two prongs of the

qualified immunity analysis should be addressed first in light of

the circumstances in the particular case at hand,” id. at 818.

Recognizing its discretion to do so under Pearson, the

District Court bypassed the question of whether Kelly’s

constitutional rights were violated and first considered whether

the law was clearly established. Although the District Court

explicitly held that the First Amendment law was not clearly

established, its analysis of the Fourth Amendment did not

engage the relevant state court precedents interpreting the

Wiretap Act. Instead, the District Court simply concluded that

Officer Rogers acted reasonably under the circumstances.

III.

9

A.

Kelly claims Officer Rogers violated his clearly

established Fourth Amendment rights by arresting him without

probable cause. In challenging the District Court’s conclusion

that Officer Rogers acted reasonably, Kelly contends the District

Court failed to analyze the Wiretap Act and inappropriately

relied on the presence of legal advice. Conversely, Officer

Rogers argues that reliance on a prosecutor’s advice is a

permissible consideration in determining the reasonableness of

his actions, and that the District Court correctly held his reliance

was reasonable.

The Supreme Court has recognized that “it is inevitable

that law enforcement officials will in some cases reasonably but

mistakenly conclude that probable cause is present, and we have

indicated that in such cases those officials—like other officials

who act in ways they reasonably believe to be lawful—should

not be held personally liable.” Anderson, 483 U.S. at 641. “The

qualified immunity standard ‘gives ample room for mistaken

judgments by protecting all but the plainly incompetent or those

who knowingly violate the law.’” Gilles v. Davis, 427 F.3d 197,

203 (3d Cir. 2005) (quoting Hunter v. Bryant, 502 U.S. 224, 229

(1991)). On the other hand, “[i]f the law was clearly

established, the immunity defense ordinarily should fail, since

a reasonably competent public official should know the law

governing his conduct.” Harlow, 457 U.S. at 818-19.

Neither the Supreme Court nor this Court has squarely

addressed the question of whether a police officer’s reliance

upon legal advice cloaks him with qualified immunity.

10

Although there is no holding directly on point, we do not write

on a blank slate. In Malley v. Briggs, the Supreme Court

considered a police officer’s entitlement to qualified immunity

when he applied for an arrest warrant that was approved by a

magistrate but later found to lack probable cause. 475 U.S. 335

(1986). The Court held the magistrate’s issuance of the warrant

did not automatically shield the officer: “[d]efendants will not

be immune if, on an objective basis, it is obvious that no

reasonably competent officer would have concluded that a

warrant should issue; but if officers of reasonable competence

could disagree on this issue, immunity should be recognized.”

Id. at 341. The Court acknowledged that such a standard might

cause officers to hesitate before submitting a request for a

warrant, but concluded that:

[S]uch reflection is desirable, because it reduces

the likelihood that the officer’s request for a

warrant will be premature. Premature requests for

warrants are at best a waste of judicial resources;

at worst, they lead to premature arrests, which

may injure the innocent or, by giving the basis for

a suppression motion, benefit the guilty.

Id. at 343-44.

Accordingly, a police officer is not entitled to qualified

immunity if “a reasonably well-trained officer in petitioner’s

position would have known that his affidavit failed to establish

probable cause and that he should not have applied for the

warrant.” Id. at 345; see also Orsatti v. N.J. State Police, 71

F.3d 480, 484-85 (3d Cir. 1995) (applying Malley). In rejecting

11

the notion that the officer’s act of applying for a warrant is per

se objectively reasonable, the Supreme Court held police

accountable for “creat[ing] the unnecessary danger of an

unlawful arrest.” Malley, 475 U.S. at 345. Because participants

in the justice system are fallible, there is a risk that magistrates

will make mistakes. Id. at 345-46. In light of this risk, it is

“reasonable to require the officer applying for the warrant to

minimize this danger by exercising reasonable professional

judgment.” Id. at 346.

Like the Supreme Court in Malley, we reject the notion

that a police officer’s decision to contact a prosecutor for legal

advice is per se objectively reasonable. Nevertheless, we

recognize the virtue in encouraging police, when in doubt, to

seek the advice of counsel. Considering the proliferation of

laws and their relative complexity in the context of a rapidly

changing world, we cannot fairly require police officers in the

field to be as conversant in the law as lawyers and judges who

have the benefit not only of formal legal training, but also the

advantage of deliberate study.

Consistent with these principles, the First Circuit has

stated that advice obtained from a prosecutor prior to making an

arrest “should be factored into the totality of the circumstances

and considered in determining the officer’s entitlement to

qualified immunity.” Cox v. Hainey, 391 F.3d 25, 34 (1st Cir.

2004) (collecting cases from other circuits); see also Stearns v.

Clarkson, --- F.3d ---, 2010 WL 3191511, at *5 (10th Cir. Aug.

13, 2010) (citing Cox and holding that receipt of favorable legal

advice prior to making arrest does not necessarily entitle officer

to qualified immunity because it is only one relevant factor). In

12

Cox, Trooper Hainey investigated a tip that Cox’s son was

dealing drugs. After searching Cox’s home and collecting

evidence, Trooper Hainey consulted with an assistant district

attorney, who agreed there was sufficient evidence to arrest Cox

on drug charges, and proceeded to make the arrest. Id. at 27-28.

Reviewing the evidence in support of the arrest, the First Circuit

concluded that “Hainey’s judgment call may walk a thin line

between probable cause and mere suspicion,” however, it was

not “plainly incompetent.” Id. at 32. The Cox court found that

the reasonableness of Hainey’s actions was “cinch[ed]” by

Hainey’s consultation with the local prosecutor. Id. Receipt of

legal advice after “mak[ing] a full presentation of the known

facts to a competent prosecutor” would provide the officer with

a “stronger reason to believe that probable cause existed.” Id.

at 35. In adopting a “totality of the circumstances” approach,

the First Circuit cited the “good sense” of a policy that

“encourage[s] officers to obtain an informed opinion before

charging ahead and making an arrest in uncertain

circumstances.” Id.

Although we agree with much of the First Circuit’s

opinion in Cox, we do not adopt its “totality of the

circumstances” approach. In our view, encouraging police to

seek legal advice serves such a salutary purpose as to constitute

a “thumb on the scale” in favor of qualified immunity.

Accordingly, we hold that a police officer who relies in good

faith on a prosecutor’s legal opinion that the arrest is warranted

under the law is presumptively entitled to qualified immunity

from Fourth Amendment claims premised on a lack of probable

cause. That reliance must itself be objectively reasonable,

however, because “a wave of the prosecutor’s wand cannot

13

magically transform an unreasonable probable cause

determination into a reasonable one.” Id. at 34. Accordingly, a

plaintiff may rebut this presumption by showing that, under all

the factual and legal circumstances surrounding the arrest, a

reasonable officer would not have relied on the prosecutor’s

advice.

B.

In granting summary judgment, the District Court

reviewed the facts of the case and concluded that Officer Rogers

acted reasonably under the circumstances. Specifically, the

District Court noted that Rogers “observed Kelly videotaping

the police stop without his permission. . . . [H]e followed police

policy in calling the ADA . . . and the ADA’s advice was

reasonable.” Kelly, 2009 WL 1230309, at *4. The District

Court also was influenced by Rogers’s “good-faith reliance on

this outside legal assessment of the situation.” Id. On the other

hand, the Court did not analyze sufficiently the state of

Pennsylvania law regarding the Wiretap Act at the time of

Kelly’s arrest. As we shall explain, this omission was

problematic.

Before turning to the District Court’s legal analysis, we

turn to factual issues that remain in dispute. First, the Court

found that Kelly recorded Officer Rogers “without his

permission.” Kelly, 2009 WL 1230309, at *4. Both Kelly and

his friend Shopp testified that the camera sat conspicuously on

Kelly’s lap, and argued that Officer Rogers’s initial failure to

order Kelly to cease recording constituted Rogers’s implied

consent thereto. Thus, while noting that “it is disputed whether

14

the camera was in plain view or was covered by Plaintiff’s

hands,” the District Court apparently rejected Kelly’s assertion

that Officer Rogers was aware of the recording when he initially

approached the car. Id. at 2. On remand, the District Court

should make clear findings of fact regarding this issue.

Second, Kelly claimed that Rogers did not call ADA

Birbeck to seek legal advice, but merely to obtain an approval

number for an arrest, which Kelly contends was required by

Cumberland County Rule of Procedure 107.1. As ADA Birbeck

testified: “Officer Rogers asked for approval [for an arrest] and

I gave him an approval number to charge.” The District Court

must make factual findings on this issue as well.

In addition to its failure to make essential factual

findings, the District Court did not analyze sufficiently the state

of the law at the time of Kelly’s arrest. See Orsatti v. N.J. State

Police, 71 F.3d 480, 484-85 (3d Cir. 1995). Instead, the District

Court relied upon the mere existence of legal advice without

considering the relative clarity or obscurity of the Pennsylvania

Wiretap Act and the cases interpreting it. This was error.

At the time of Kelly’s arrest, it was clearly established

that an arrest could be made only on the basis of probable cause.

Berg, 219 F.3d at 272. “Whether it would have been clear to a

reasonable officer that probable cause justified [an] arrest

requires an examination of the crime at issue,” Gilles, 427 F.3d

at 204, in this case, a violation of the Pennsylvania Wiretap Act.

Under the Wiretap Act, “a person is guilty of a felony of the

third degree if he: (1) intentionally intercepts . . . any . . . oral

communication . . . .” 18 P A. C ONS. S TAT. § 5703. The statute

15

defines “oral communication” as “[a]ny oral communication

uttered by a person possessing an expectation that such

communication is not subject to interception under

circumstances justifying such expectation.” 18 P A. C ONS. S TAT.

§ 5702.

In 1998, the Pennsylvania Supreme Court explained the

elements of a Wiretap Act violation as follows:

[I]n order to establish a prima facie case under the

Wiretap Act for interception of an oral

communication, a claimant must demonstrate: (1)

that he engaged in a communication; (2) that he

possessed an expectation that the communication

would not be intercepted; (3) that his expectation

was justifiable under the circumstances; and (4)

that the defendant attempted to, or successfully

intercepted the communication, or encouraged

another to do so.

Agnew v. Dupler, 717 A.2d 519, 522 (Pa. 1998). In Agnew, two

police officers claimed their police chief violated the Wiretap

Act when he used an intercom to eavesdrop on squadroom

conversations. Id. at 521. The court held the chief did not

violate the Wiretap Act because the officers did not have a

reasonable expectation of privacy in statements made in the

squadroom and “one cannot have an expectation of non-

interception absent a finding of a reasonable expectation of

privacy.” Id. at 523. This holding squelched the distinction

16

developing in some lower court cases between a reasonable

expectation of non-interception and an expectation of privacy.

See id. at 524-25 (Nigro, J. concurring) (“Contrary to the

Majority’s position, I believe that the expectation of

non-interception and the expectation of privacy involve two

distinct inquiries.”). In support of its finding of no reasonable

expectation of privacy, the court noted that anyone in the

squadroom could overhear the conversation, and the door to the

squadroom was open at the time, such that people outside the

room could also hear the conversation. Id. at 524.

Since Agnew, numerous state and federal courts have

applied the expectation of privacy requirement in cases alleging

a violation of the Pennsylvania Wiretap Act.5 Even more

5

See e.g., Kline v. Sec. Guards, Inc., 386 F.3d 246 (3d

Cir. 2004) (claims brought under Pennsylvania Wiretap Act

were not preempted by the Labor Management Relations Act

because it was not necessary to look to the collective bargaining

agreement to determine whether the employees had a reasonable

expectation of privacy in their communications); Walsh v.

Krantz, 2008 WL 2329130, at *6 (M.D. Pa. June 4, 2008)

(alleged eavesdropping on telephone conversation adequately

stated claims under Wiretap Act); Care v. Reading Hosp. &

Med. Ctr., 2004 WL 728532, at *8-9 (E.D. Pa. Mar. 31, 2004)

(plaintiffs adequately asserted a reasonable expectation of

privacy in conversations with labor consultant to state claim

under Pennsylvania Wiretap Act); Schwartz v. Dana

Corp./Parish Div., 196 F.R.D. 275, 282-83 (E.D. Pa. 2000)

(Wiretap Act claims not suitable for class certification because

17

significantly, almost ten years before Agnew, the Pennsylvania

Supreme Court held that secretly recording a police officer in

the performance of his duties did not violate the Wiretap Act.

See Commonwealth v. Henlen, 564 A.2d 905, 906 (Pa. 1989).

In Henlen, a theft suspect who covertly recorded a state

trooper’s interrogation did not violate the Wiretap Act because

the trooper did not have a reasonable expectation of privacy in

the statements. Id. at 906. The factors belying a reasonable

expectation of privacy included: (1) “oral interrogations of

suspects by the police are generally recorded, albeit by the

police rather than the suspect”; (2) the trooper was taking notes

during the interview; and (3) the trooper allowed a third party to

sit in on the interview. Id.

In light of the foregoing precedents, at the time of Kelly’s

arrest, it was clearly established that a reasonable expectation of

privacy was a prerequisite for a Wiretap Act violation. Even

more to the point, two Pennsylvania Supreme Court cases—one

almost 20 years old at the time of Kelly’s arrest—had held that

of individualized inquiry into whether employee had an

expectation of privacy); Keppley v. Sch. Dist., 866 A.2d 1165,

1172 (Pa. Commw. Ct. 2005) (trial court required to examine

whether students had a reasonable expectation of privacy in

communications on school bus); Commonwealth v. Ward, 3 Pa.

D.&C. 5th 268, 273 (Pa. Com. Pl. Ct. 2007) (“In Commonwealth

v. Christopher and Agnew the Appellate Courts have made it

clear that a communication is not an ‘oral communication’ as

defined by the Wiretap[] Act unless the victim has a reasonable

expectation of privacy.” (citations omitted)).

18

covertly recording police officers was not a violation of the Act.

Finally, it was also clearly established that police officers do not

have a reasonable expectation of privacy when recording

conversations with suspects.

Instead of attempting to negate the clearly established

nature of the expectation of privacy requirement or to

distinguish the Pennsylvania Supreme Court’s decisions in

Henlen or Agnew, counsel for Rogers and the Borough of

Carlisle failed even to mention these critical precedents among

the 56 cases cited in their otherwise comprehensive brief.

Instead, Rogers merely notes that the Wiretap Act “does not

contain the phrase ‘reasonable expectation of privacy’ anywhere

within the relevant portions of the Act . . . .” This argument,

while technically correct, is insufficient to establish the

objective reasonableness of Rogers’s actions. See, e.g., Johnson

v. Hawe, 388 F.3d 676, 687 (9th Cir. 2004) (denying qualified

immunity for arrest without probable cause based on its finding

that the Washington Privacy Act was sufficiently established

under state case law and an opinion from state Attorney General

stating that police chief should have known that there was no

reasonable expectation of privacy in communications over

police radio), cert. denied, 544 U.S. 1048 (2005); United States

v. Lopez-Valdez, 178 F.3d 282, 289 (5th Cir. 1999) (officer’s

good-faith but erroneous belief that broken tail light was a

violation of Texas law was not objectively reasonable because,

in light of ten-year-old state court decision holding such

condition did not violate the law, “no well trained Texas police

officer could reasonably believe that white light appearing with

red light through a cracked taillight lens constituted a violation

of traffic law”).

19

Police officers generally have a duty to know the basic

elements of the laws they enforce. See Hall v. Ochs, 817 F.2d

920, 924 (1st Cir. 1987); see, e.g., Lawrence v. Reed, 406 F.3d

1224, 1234 (10th Cir. 2005) (reliance on city attorney’s advice

did not entitle officer to qualified immunity under extraordinary

circumstances test because officer should have known,

independently, that constitution requires notice and a hearing

before depriving a citizen of property and there were no exigent

circumstances requiring that the attorney’s advice “be acted on

immediately”); Peterson v. City of Plymouth, 945 F.2d 1416,

1420-21 (8th Cir. 1991) (no qualified immunity for officer who

sought arrest warrant for theft where there was no evidence of

intent to commit theft and officer “knew or should have known”

that it was therefore not a criminal matter). The question

remains, in this case, how the Pennsylvania Wiretap Act fits into

the landscape painted by these precedents. We leave that

determination, in the first instance, to the District Court.

In sum, because the District Court did not consider the

facts in the light most favorable to Kelly, did not evaluate the

objective reasonableness of Officer Rogers’s decision to rely on

ADA Birbeck’s advice in light of those facts, and did not

evaluate sufficiently the state of Pennsylvania law at the relevant

time, we will vacate the summary judgment insofar as it granted

qualified immunity to Officer Rogers on Kelly’s Fourth

Amendment claims and remand for additional factfinding and

application of the proper legal standard.

IV.

A.

20

Kelly also claims the District Court erred when it held his

First Amendment right to videotape matters of public concern

was not clearly established.6 Kelly contends his First

6

Before turning to Kelly’s First Amendment claims, we

will address the amicus brief submitted by the American Civil

Liberties Union. The ACLU takes issue with the District

Court’s decision to skip the “violation prong” of the qualified

immunity inquiry and proceed directly to the “clearly

established” prong. The ACLU urges us to establish a rule that

the Saucier sequence should be the default approach to qualified

immunity analysis, especially in cases alleging violations of the

First Amendment. The ACLU suggests that deviation from the

Saucier sequence is proper only in cases involving unusual

facts or uncertain state law.

We decline to adopt the rule proffered by the ACLU

because it is inconsistent with Pearson. Although the Supreme

Court acknowledged that Saucier’s two-step procedure is often

advantageous, Pearson, 129 S.Ct. at 821, it also recognized that

the costs of Saucier outweigh its benefits in some cases. As the

Supreme Court explained:

[T]he rigid Saucier procedure comes with a price.

The procedure sometimes results in a substantial

expenditure of scarce judicial resources on

difficult questions that have no effect on the

outcome of the case. There are cases in which it

is plain that a constitutional right is not clearly

established but far from obvious whether in fact

21

Amendment rights were violated when Rogers seized his video

camera (prior to calling ADA Birbeck) and when Rogers

arrested him. In defense, Rogers argues that a “right to

surreptitiously videotape a police officer without an expressive

or communicative purpose” was not clearly established at the

time of the arrest.7

there is such a right.

Id. at 818. For this reason, the Court held that district courts

have wide discretion to decide which of the two prongs

established in Saucier to address first. In our view, it would be

unfaithful to Pearson if we were to require district courts to

engage in “an essentially academic exercise” by first analyzing

the purported constitutional violation in a certain category of

cases. Id. Should the Supreme Court decide that Saucier

sequencing is necessary in First Amendment cases or any other

type of case, it may establish such a rule. It is not our place to

do so in light of Pearson, and, consequently, the District Court

did not abuse its discretion when it bypassed the constitutional

question and proceeded to the clearly established prong.

7

We note that Kelly asserts that the camera was not

hidden, but was in plain view; therefore, we cannot accept

Defendants’ characterization of the recording as “surreptitious”

at the summary judgment stage. Second, it is unclear why the

“surreptitious” nature of the videotaping would be significant to

whether the videotaping implicates the existence of a First

Amendment right or its clearly established nature. The

Defendants have not cited any cases making such a distinction,

22

In determining whether a right is clearly established, it is

not necessary that the exact set of factual circumstances has

been considered previously. Hope v. Pelzer, 536 U.S. 730, 739

(2002) (being “clearly established” does not require that “the

very action in question has previously been held unlawful”).

“[O]fficials can still be on notice that their conduct violates

established law even in novel factual circumstances,” id. at 741,

as long as the law gave the defendant officer “fair warning” that

his conduct was unconstitutional. See Kopec v. Tate, 361 F.3d

772, 778 (3d Cir. 2004) (holding that even though neither the

Supreme Court nor the Third Circuit had addressed the issue, the

right to be free from excessive force in the course of

handcuffing was clearly established based on the case law of

other circuits).

We have not addressed directly the right to videotape

police officers. In Gilles v. Davis, we hypothesized that

“videotaping or photographing the police in the performance of

their duties on public property may be a protected activity.” 427

F.3d at 212 n.14 (citing Smith v. City of Cumming, 212 F.3d

1332, 1333 (11th Cir. 2000)) (emphasis added). We also noted

that “[m]ore generally, photography or videography that has a

communicative or expressive purpose enjoys some First

Amendment protection.” Id. (citations omitted). Though we

have not had occasion to decide this issue, several other courts

have addressed the right to record police while they perform

and we fail to see how the covert nature of a recording would

affect its First Amendment value, which will most often be

realized upon the recording’s dissemination.

23

their duties. We turn now to these cases, as well as cases

regarding the more general right to record matters of public

concern.

1.

In Smith v. City of Cumming, the Eleventh Circuit

recognized a “First Amendment right, subject to reasonable

time, manner and place restrictions, to photograph or videotape

police conduct.” 212 F.3d 1332, 1333 (11th Cir. 2000), cert.

denied, 531 U.S. 978 (2000). The court declared: “[t]he First

Amendment protects the right to gather information about what

public officials do on public property, and specifically, a right

to record matters of public interest.” Id. Other than noting that

“Mr. Smith had been prevented from videotaping police

actions,” id. at 1332, the Eleventh Circuit provided few details

regarding the facts of the case, making it difficult to determine

the context of the First Amendment right it recognized.

Ultimately, the court affirmed summary judgment for the

defendants, finding that Mr. Smith had not shown that the

defendants violated his right to videotape the police. Id. In the

decade since City of Cumming was decided, our decision in

Gilles is the only federal appeals court case to cite it. 427 F.3d

at 212, n.14.

District courts within the Third Circuit have also

addressed the right to record police officers. In Robinson v.

Fetterman, the United States District Court for the Eastern

District of Pennsylvania, relying on City of Cumming, held there

is a free speech right to film police officers in the performance

of their public duties. 378 F. Supp. 2d 534, 541 (E.D. Pa. 2005).

24

In that case, Robinson was concerned about the way police were

conducting truck inspections on a local road, so he decided to

document their behavior by filming them from an adjacent

property. Id. at 539. Robinson videotaped from a position

approximately 20 to 30 feet from the highway and never

interfered with police activities. Id. The police approached

Robinson and told him to leave; when he refused, they arrested

him for violating Pennsylvania’s harassment statute. Robinson

was found guilty of harassment, but the conviction was

overturned on appeal and Robinson filed a § 1983 action against

the troopers. Id. at 540.

After noting that Robinson had First Amendment rights

to receive information and ideas, and to express his concern

about the safety of the truck inspections, the district court held:

“there can be no doubt that the free speech clause of the

Constitution protected Robinson as he videotaped the

defendants.” Id. at 541. The court reasoned that a First

Amendment right existed regardless of whether Robinson had

“any particular reason for videotaping the troopers,” though in

this case he wanted to gather evidence of his safety concerns.

Id. Finally, the court held that no reasonable trooper could have

believed that the videotaping constituted harassment, and

rejected the troopers’ argument that they reasonably relied on

the statements of a district justice who, two years earlier, had

convicted Robinson for similar behavior. Id. at 542 (police

cannot “ignore or unreasonably apply a valid law in order to

arrest someone who annoys or offends them”).

In Pomykacz v. Borough of West Wildwood, the United

States District Court for the District of New Jersey held that

25

photographing a police officer in connection with a citizen’s

political activism was protected by the First Amendment. 438

F. Supp. 2d 504, 513 (D.N.J. 2006). In that case, Pomykacz—a

self-described “citizen-activist”—became concerned that a

romantic relationship between the mayor and a police officer

created risks of nepotism and conflict of interest. Pomykacz

began monitoring the officer and mayor, including

photographing the officer while she was on duty. The officer

and mayor initiated criminal charges against Pomykacz for

harassment. In her subsequent § 1983 action alleging First

Amendment retaliation, the district court held that Pomykacz

offered sufficient evidence that her photography was linked to

her speech about local government to be protected by the First

Amendment. Id. at 512-13. Nevertheless, the court declined to

adopt Pomykacz’s blanket assertion that “the observation and

monitoring of public officials is protected by the [F]irst

[A]mendment.” Id. at 513 n.14 (alteration in original). Instead,

the court noted that “[a]n argument can be made that the act of

photographing, in the abstract, is not sufficiently expressive or

communicative and therefore not within the scope of First

Amendment protection - even when the subject of the

photography is a public servant.” Id.

2.

In an effort to show that Rogers should have been on

notice of a right to record police officers, Kelly also cites a

number of cases for the proposition that a general right to record

matters of public concern has been clearly established. Many of

these cases recognize such a right only in passing. See, e.g.,

Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir. 1995)

26

(mentioning that plaintiff who tried to film demonstration on

public street had a “First Amendment right to film matters of

public interest” but ultimately granting qualified immunity to

police because it was not clearly established under what

circumstances conversations in public could be protected under

state privacy statute); Blackston v. Alabama, 30 F.3d 117, 120

(11th Cir. 1994) (prohibition on tape recording meeting of state

committee “touched on expressive conduct protected by the Free

Speech Clause of the First Amendment”); Demarest v.

Athol/Orange Cmty. Television, Inc., 188 F. Supp. 2d 82, 94 (D.

Mass. 2002) (producers of news show on state-owned cable

channel have a First Amendment right to film matters

concerning potential conflicts of interests of local officials);

Thompson v. City of Clio, 765 F. Supp. 1066, 1070 (M.D. Ala.

1991) (First Amendment right to record public town council

meetings); Lambert v. Polk County, 723 F. Supp. 128, 133-35

(S.D. Iowa 1989) (holding that individuals enjoy the same First

Amendment rights to “make and display videotapes of events”

as news organizations where individual filming downtown area

was hoping to capture images of interest so he could sell them

to a television station). We find these cases insufficiently

analogous to the facts of this case to have put Officer Rogers on

notice of a clearly established right to videotape police officers

during a traffic stop.

Moreover, even insofar as it is clearly established, the

right to record matters of public concern is not absolute; it is

subject to reasonable time, place, and manner restrictions, as

long as they are “justified without reference to the content of the

regulated speech, . . . are narrowly tailored to serve a significant

governmental interest, and . . . leave open ample alternative

27

channels for communication of the information.” Ward v. Rock

Against Racism, 491 U.S. 781, 791 (1989) (internal quotation

marks omitted). For example, we have held that the right to

record public meetings does not necessarily create a right to

videotape those meetings. In Whiteland Woods, L.P. v.

Township of West Whiteland, we held that a planning

committee’s adoption of a resolution prohibiting videotaping of

public meetings did not violate the First Amendment. 193 F.3d

177, 183 (3d Cir. 1999). We analyzed that case as one involving

the First Amendment right to access information, and declined

to apply the speech forum doctrine because it “[t]raditionally .

. . applies to ‘expressive’ or ‘speech’ activity,” and the alleged

constitutional violation “consisted of a . . . right to receive and

record information,” not “speech or other expressive activity.”

Id. Although we recognized that the right to receive information

and ideas was well established, id. at 180, we held that the

planning committee’s prohibition on videotaping was not

unconstitutional because other means of recording the

meeting—for example, note-taking—were permitted, thus

protecting the public’s right of access. Id. at 183. We

concluded that “Whiteland Woods’ right of access to Planning

Commission meetings did not create a federal constitutional

right to videotape the meetings.” Id. at 184; see also S.H.A.R.K.

v. Metro Parks Serving Summit County, 499 F.3d 553, 559-63

(6th Cir. 2007) (analyzing animal rights group’s claim that its

First Amendment right to videotape government-ordered deer

culling in state park after hours as a right to access claim instead

of free expression claim, and finding no violation of that right).

3.

28

In light of the foregoing, we conclude there was

insufficient case law establishing a right to videotape police

officers during a traffic stop to put a reasonably competent

officer on “fair notice” that seizing a camera or arresting an

individual for videotaping police during the stop would violate

the First Amendment. Although Smith and Robinson announce

a broad right to videotape police, other cases suggest a narrower

right. Gilles and Pomykacz imply that videotaping without an

expressive purpose may not be protected, and in Whiteland

Woods we denied a right to videotape a public meeting. Thus,

the cases addressing the right of access to information and the

right of free expression do not provide a clear rule regarding

First Amendment rights to obtain information by videotaping

under the circumstances presented here.

Our decision on the First Amendment question is further

supported by the fact that none of the precedents upon which

Kelly relies involved traffic stops, which the Supreme Court has

recognized as inherently dangerous situations. See, e.g., Arizona

v. Johnson, 129 S.Ct. 781, 786 (2009) (“[T]raffic stops are

especially fraught with danger to police officers. The risk of

harm to both the police and the occupants [of a stopped vehicle]

is minimized . . . if the officers routinely exercise unquestioned

command of the situation.”) (alterations in original) (internal

quotations and citations omitted); Pennsylvania v. Mimms, 434

U.S. 106, 110 (1977) (recognizing “the inordinate risk

confronting an officer as he approaches a person seated in an

automobile”). For these reasons, we hold that the right to

videotape police officers during traffic stops was not clearly

established and Officer Rogers was entitled to qualified

immunity on Kelly’s First Amendment claim.

29

V.

We last turn to Kelly’s appeal from the District Court’s

order dismissing his claims against the Borough of Carlisle.

Municipalities cannot be held liable under § 1983 based

solely upon a theory of respondeat superior; rather, the plaintiff

must identify a municipal policy or custom that caused his

injury. Langford v. City of Atlantic City, 235 F.3d 845, 847 (3d

Cir. 2000). “Policy” includes official proclamations made by a

municipal decisionmaker with final authority, and “custom” is

defined as “practices of state officials . . . so permanent and well

settled as to virtually constitute law.” Berg, 219 F.3d at 275

(internal quotation marks and citation omitted). To prove

liability, the plaintiff must show that the municipal action was

the “moving force” behind the constitutional violation. Id. at

276.

If the identified policy or custom “does not facially

violate federal law, causation can be established only by

‘demonstrat[ing] that the municipal action was taken with

deliberate indifference as to its known or obvious consequences.

A showing of simple or even heightened negligence will not

suffice.’” Id. (quoting Bd. of County Comm’rs v. Brown, 520

U.S. 397, 404 (1997)).

Kelly alleges three alternative bases for municipal

liability: (1) the Borough’s policy that police consult with a

prosecutor when unsure how to proceed; (2) the approval of

Kelly’s arrest by Police Chief Margeson; and (3) inadequate

30

training of police officers regarding the Wiretap Act and the

First Amendment.8

A.

Kelly contends the Borough should be liable because

Officer Rogers acted pursuant to Borough policy at all times.

But Kelly does not proffer any evidence that the Borough’s

policies and practices were implemented with deliberate

indifference. Instead, he asserts that a showing of deliberate

indifference is required only for failure to train claims, and is

not required for imposition of liability based on policy or

custom. This assertion is incorrect.

For the proposition that deliberate indifference is not

required, Kelly selectively relies on a statement by the Supreme

Court that a municipality is liable for “all of its injurious

conduct, whether committed in good faith or not.” Owen v. City

of Independence, 445 U.S. 622, 651 (1980). Kelly’s reliance on

Owen is misplaced because that case did not address

implementation of a generally applicable policy; it concerned a

city council’s censure and termination of an employee without

a hearing, and presented the question of whether municipalities

8

Kelly also argues in passing that municipal liability rests

on the Borough’s delegation of decisionmaking authority to

ADA Birbeck. We reject this argument summarily because

Kelly has presented no evidence that the police department’s

practice of consulting with a prosecutor constituted a delegation

of its final decisionmaking authority.

31

were entitled to good-faith qualified immunity from § 1983

liability. The Court rejected the proposed municipal qualified

immunity and did not address when facially valid municipal

policies constitute “injurious conduct.” Id. at 657; see Szabla v.

City of Brooklyn Park, 486 F.3d 385, 389-90 (8th Cir. 2007).

Subsequent cases have established that, in order to be held liable

for a facially valid policy, the municipality must have acted with

deliberate indifference. In Board of County Commissioners v.

Brown, the Court explained that “it is not enough for a § 1983

plaintiff merely to identify conduct properly attributable to the

municipality.” 520 U.S. at 404. Instead, the municipality is

liable only if “municipal action was taken with the requisite

degree of culpability.” Id. Finally, the Court held that:

[A] plaintiff seeking to establish municipal

liability on the theory that a facially lawful

municipal action has led an employee to violate a

plaintiff’s rights must demonstrate that the

municipal action was taken with ‘deliberate

indifference’ as to its known or obvious

consequences. A showing of simple or even

heightened negligence will not suffice.

Id. at 407 (emphasis added) (internal citations omitted). A

showing of deliberate indifference is thus required in this case.

Kelly argues in the alternative that the Borough’s policy

does manifest deliberate indifference because it requires police

officers to follow the ADA’s advice as long as that advice is not

“outlandish” or “outrageous” whereas the proper constitutional

standard permits reliance on legal advice only if “reasonable.”

32

Semantics are insufficient to satisfy Kelly’s burden. Kelly has

not presented any evidence that the Borough ignored obvious

unconstitutional consequences in adopting the policy, nor has he

shown that the Borough’s implementation of the policy varied

from constitutional standards. In fact, the adoption of such a

policy tends to negate deliberate indifference because a policy

of consulting with a lawyer in uncertain cases usually prevents

unlawful arrests. See Cox, 391 F.3d at 34-35 (observing the

“good sense” policy of “encourag[ing] officers to obtain an

informed opinion before charging ahead and making an arrest in

uncertain circumstances”). Thus, Kelly has fallen well short of

meeting his burden of proving that the Borough’s policy

amounted to deliberate indifference to constitutional rights.

B.

An employee who lacks policymaking authority can still

bind the municipality if a municipal policymaker delegated

power to the employee or ratified his decision. LaVerdure v.

County of Montgomery, 324 F.3d 123, 125 (3d Cir. 2003). But

ratification occurs only “when a subordinate’s decision is

subject to review by the municipality’s authorized policymakers

[because] they have retained the authority to measure the

official’s conduct for conformance with their policies.” City of

St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988) (plurality

opinion). “Simply going along with discretionary decisions

made by one’s subordinates, however, is not a delegation to

them of the authority to make policy.” Id. at 130.

Kelly claims the Borough is liable because Chief

Margeson ratified Rogers’s actions. This argument is without

33

merit as Kelly has presented no evidence that Chief Margeson

was a final policymaker for the Borough. “The question of who

is a ‘policymaker’ is a question of state law.” Andrews v. City

of Phila., 895 F.2d 1469, 1481 (3d Cir. 1990). “In looking to

state law, a court must determine which official has final,

unreviewable discretion to make a decision or take an action.”

Id.; see also Hill v. Borough of Kutztown, 455 F.3d 225, 245

(3d Cir. 2006) (“In order to ascertain if an official has final

policy-making authority, and can thus bind the municipality by

his conduct, a court must determine (1) whether, as a matter of

state law, the official is responsible for making policy in the

particular area of municipal business in question, and (2)

whether the official's authority to make policy in that area is

final and unreviewable.” (internal citations omitted)).

Kelly cites two cases in which we previously found that

a police chief was a municipal policymaker. See Keenan v. City

of Phila., 983 F.2d 459, 468-69 (3d Cir. 1992) (relying upon

analysis in Andrews, 895 F.2d 1469, to hold commissioner of

police was policymaker for City of Philadelphia) and Black v.

Stephens, 662 F.2d 181, 191 (3d Cir. 1981) (finding that police

chief was policymaker for City of Allentown). In both cases,

however, the determination that the chief of police was a

policymaker was made only after examining the chief’s

responsibilities and decisionmaking authority with respect to the

conduct at issue. See Andrews, 895 F.2d at 1481 (commissioner

promulgated and disseminated police training manual and

courses on sexual harassment, and established an Equal

Employment Office to handle complaints of discrimination);

Black, 662 F.2d at 191 (chief wrote and implemented official

policy at issue, was a member of the Mayor’s cabinet, and

34

established policies and procedures for entire police

department). Kelly has not presented any similar evidence in

this case; his perfunctory attempt to establish a record by citing

a handful of Pennsylvania statutes concerning the authority of

police chiefs in his reply brief is insufficient to meet his burden

of proof in this regard.

Moreover, Kelly has presented no evidence that Officer

Rogers’s decision to arrest him was subject to final review by

Chief Margeson. Chief Margeson testified at his deposition that

he was informed of the arrest by a third officer a day or two

after it occurred (after Kelly had been released from prison).

While there was certainly evidence that Margeson agreed with

Rogers’s decision to arrest Kelly, in the absence of evidence that

Chief Margeson “retained the authority to measure [Rogers’s]

conduct for conformance with [municipal] policies,”

Margeson’s mere agreement is insufficient to show ratification.

Praprotnick, 485 U.S. at 127.

C.

Finally, Kelly claims the Borough failed to adequately

train Rogers regarding the elements of the Wiretap Act and the

requirements of the First Amendment. He contends that

constitutional violations were “extremely likely” to result from

the Borough’s failure.

Failure to adequately train municipal employees “can

ordinarily be considered deliberate indifference only where the

failure has caused a pattern of violations.” Berg, 219 F.3d at

276 (citation omitted). While it is theoretically possible to show

35

a deliberately indifferent failure to train in the absence of an

underlying pattern of violations, “the burden on the plaintiff in

such a case is high,” because he must show that “a violation of

federal rights [was] a highly predictable consequence of a

failure to equip law enforcement officers with specific tools to

handle recurring situations.” Id. (quoting Board of County

Commissioners, 520 U.S. at 409).

Kelly concedes that he has not presented a pattern of

violations. Kelly also fails to present any evidence that the

situation is likely to recur or that false arrest was highly

predictable. Instead, he argues that “the plethora of

Pennsylvania cases reiterating that the statute does not apply

unless the speaker has a [sic] expectation of non-interception

(i.e. privacy)” shows that the likelihood of a recurring violation

is high. This argument is unpersuasive. Although there are a

number of cases addressing the Wiretap Act, these cases do not

concern the improper enforcement of the Act by the police. Cf.

Johnson, 388 F.3d at 686 (finding that, “[i]n light of the many

Washington cases addressing enforcement of the Privacy Act by

public officers performing official duties,” there was a genuine

issue as to whether a lack of training on the Privacy Act

constituted deliberate indifference). Therefore, Kelly has failed

to satisfy his burden on the failure to train claim.

VI.

For the reasons stated herein, we will affirm the District

Court’s summary judgment in favor of the Borough of Carlisle.

We will also affirm summary judgment in favor of Officer

Rogers on Kelly’s First Amendment claim. Finally, we will

36

vacate the District Court’s summary judgment in favor of

Officer Rogers on Kelly’s Fourth Amendment claims and

remand for further proceedings consistent with this opinion.

37