Montgomery v. De Simone

Opinions of the United

1998 Decisions States Court of Appeals

for the Third Circuit

10-16-1998

Montgomery v. De Simone

Precedential or Non-Precedential:

Docket 97-5179

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Filed October 16, 1998

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 97-5179

ROSEMARY MONTGOMERY,

Appellant

v.

JEFFREY DE SIMONE, PTL. a/k/a Joseph De Simone,

PTL; TOWNSHIP OF BRICK; COUNTY OF OCEAN; BRICK

TOWNSHIP POLICE DEPARTMENT; JOHN DOE,

Individually and as an employee of the Brick Township

Police Department

Appeal from the United States District Court

for the District of New Jersey

(D.C. Civ. No. 95-cv-00528)

Argued

March 24, 1998

Before: MANSMANN, ROTH and McKEE, Circuit Judges.

(Filed October 16, 1998)

William J. Farley, Jr., Esquire

(Argued)

2517 Highway 35 South

Valley Park Professional Center

Manasquan, NJ 08736

Counsel for Appellant

Michael E. Wilbert, Esquire (Argued)

Ben A. Montenegro, Esquire

Wilbert & Montenegro

531 Burnt Tavern Road

P.O. Box 1049

Brick Town, NJ 08724

Counsel for Appellee

Joseph De Simone

Steven N. Cucci, Esquire

Cucci & McCarthy

1500 Route 88 West

P.O. Box 1609

Brick, NJ 08723

Counsel for Appellee:

Township of Brick and

Brick Township Police Department

OPINION OF THE COURT

MANSMANN, Circuit Judge.

Rosemary Montgomery appeals from the entry of

summary judgment against her in her suit brought

pursuant to 42 U.S.C. S 1983 which arises out of the events

surrounding her arrest on September 30, 1992.

Montgomery alleges that Officer Jeffrey De Simone did not

have probable cause to stop and arrest her for speeding

and drunk driving. She accordingly brought several section

1983 claims against Officer De Simone, including a claim

based on malicious prosecution.

In this appeal, we are asked to determine whether

Montgomery's convictions, which were overturned upon de

novo review, conclusively establish probable cause and

necessarily negate any possibility that Montgomery could

establish her section 1983 malicious prosecution claim. We

hold that they do not. Accordingly, because we find that

Montgomery has raised a genuine issue of material fact as

to probable cause, we will reverse the district court's grant

of summary judgment in favor of Officer De Simone on

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Montgomery's section 1983 malicious prosection claim and

will remand this case for further proceedings.

In addition, we find that, as a matter of law, the two year

limitations period for Montgomery's section 1983 false

arrest and false imprisonment claims began to run on the

night of Montgomery's arrest and that her claims against

the municipal defendants fail because Montgomery's

allegations are insufficient to establish municipal liability.

Accordingly, we will affirm the district court's order

dismissing those claims.

I.

On September 30, 1992, Officer Jeffrey De Simone

stopped Rosemary Montgomery, arrested her and charged

her with speeding, driving while intoxicated, and refusing to

take a breathalyzer test. At Montgomery's municipal

hearing, Officer De Simone testified that he stopped

Montgomery because she was traveling at approximately 55

m.p.h. in a 40 m.p.h. zone. De Simone testified that he

estimated Montgomery's speed prior to the stop based on

his own observation and a radar reading. According to De

Simone, when he stopped Montgomery he detected a strong

odor of alcohol on her breath. De Simone testified that

Montgomery had difficulty locating her license in her wallet,

could not open the glove box and became frustrated when

De Simone opened the glove box with ease. According to De

Simone, Montgomery could not recite the alphabet when

asked to do so and failed two field sobriety tests. De

Simone stated that Montgomery's eyes were "watery," her

speech was "slightly slurred," and that "she was swaying

and staggering" when standing and walking.

De Simone further testified that during the stop, a

second car pulled up to ask directions. De Simone then

instructed Montgomery to drive her car across the road to

a vacant parking lot so that he might attend to the second

car. He subsequently drove to where she was parked and

took her to the police station. At the police station De

Simone advised Montgomery for the first time that she was

under arrest, read her her Miranda rights, and asked her to

take a breathalyzer test. Montgomery refused the test.

3

Montgomery's testimony at her municipal trial painted a

dramatically different picture of the events surrounding her

arrest. According to Montgomery, she had just returned

from a transcontinental flight and had met a friend for

dinner. She testified, and her friend corroborated, that she

did not have any alcoholic beverages with dinner. She

further testified, and her friend corroborated, that she

ordered one Irish coffee after dinner and that the bartender

had refilled her same cup with regular coffee after she

finished most of the Irish coffee. Montgomery's friend

further testified that Montgomery did not appear to be

intoxicated and that they parted company at approximately

11:20 p.m.

Montgomery testified that after leaving her friend's house,

she had been stopped at a red light which was located less

than one tenth of a mile from the intersection where

De Simone testified she was traveling at 55 m.p.h. In her

deposition in this case, Montgomery further testified that

she could not have been exceeding the speed limit in that

short distance in her Hyundai and that she knows she was

not speeding. She also testified that De Simone lied at her

municipal trial.

At her municipal trial, Montgomery testified that she did

have trouble finding her license for De Simone because it

was mixed in with receipts from her overseas trip. She also

testified that she had trouble opening the glove

compartment because it always sticks but that she

eventually opened it herself without the help of De Simone.

According to Montgomery, she recited the alphabet correctly

when asked but De Simone never asked her to leave her

vehicle for sobriety tests.

Montgomery testified that at one point during the stop De

Simone stated "I shouldn't be doing this but would you pull

across to behind Wall Street and wait for me?" Montgomery

testified that she was unaware of anyone stopping and

asking for directions. After she waited in the parking lot for

about five to ten minutes, De Simone pulled up behind her

with no overhead lights on. De Simone got out of the car

and his demeanor changed. De Simone asked Montgomery

if she liked policemen and if she dated them. Montgomery

testified that she was very uncomfortable and tried to

4

change the subject and that De Simone then offered her a

ride home. She told De Simone that he would have to leave

his jurisdiction to give her a ride and he then offered to

take her to the station to make a phone call. Montgomery

testified that De Simone's demeanor again changed and he

became sullen. When they arrived at the station, De Simone

advised Montgomery for the first time that she was under

arrest and read her her rights. Another of Montgomery's

friends picked her up at the police station around 2:00 a.m.

and testified that Montgomery did not appear drunk and

that Montgomery told her that she had only had two Irish

coffees that night.

The municipal court judge found that there was probable

cause for the stop and the arrest for drunk driving based

entirely upon De Simone's testimony. In addition, after

hearing all the testimony offered, the municipal judge found

Montgomery guilty of speeding, drunk driving, and refusing

to take a breathalyzer test. Montgomery appealed her

convictions.

On February 4, 1994, a trial de novo was held in the

Superior Court of New Jersey. The court reversed

Montgomery's convictions entering not guilty verdicts on all

charges. The Superior Court judge expressed doubt as to

whether Montgomery was speeding, given her testimony

that she had been stopped at a light just a short distance

from where De Simone claimed she was exceeding the

speed limit. In addition, the judge expressed doubt as to

whether De Simone actually thought Montgomery was

drunk given that De Simone ordered her to drive her car

across four lanes of traffic to a vacant parking lot after she

allegedly failed several sobriety tests.

On February 1, 1995, Montgomery filed a complaint in

the District Court of New Jersey alleging a section 1983

claim for malicious prosecution, section 1983 false arrest

and false imprisonment claims arising out of her arrest and

temporary detention on September 30, 1992, section 1983

claims against the township and police department

(collectively the "municipal defendants") based on De

Simone's actions, and several state law claims relating to

her arrest. On March 11, 1997, the district courtfiled an

order holding that (1) Montgomery's section 1983 claim for

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malicious prosecution failed as a matter of law because the

municipal judge had reasonably determined that probable

cause existed for the arrest; (2) the two year statute of

limitations for Montgomery's section 1983 false arrest and

false imprisonment claims began to run on the date of her

arrest and those claims were therefore time barred; and (3)

Montgomery's section 1983 claims against the municipal

defendants should be dismissed because Montgomery failed

to produce evidence that would raise a genuine issue of

material fact on those claims.1 Montgomery timely filed this

appeal.2

II.

In order to prevail on her section 1983 malicious

prosecution claim, Montgomery must establish, among

other things, an absence of probable cause for the initiation

of the proceedings against her. See Rose v. Bartle, 871 F.2d

331, 349 (3d Cir. 1989)(citing Lee v. Mihalich, 847 F.2d 66,

69-70 (3d Cir. 1988)). The district court granted summary

judgment on Montgomery's section 1983 malicious

prosecution claim based upon the premise that the

municipal judge's finding of probable cause for her arrest

negated any possibility that Montgomery could establish an

absence of probable cause for purposes of her section 1983

malicious prosecution claim.

We have held that the question of probable cause in a

section 1983 damage suit is one for the jury. Patzig v.

O'Neil, 577 F.2d 841, 848 (3d Cir. 1978). Summary

judgment on Montgomery's malicious prosecution claim

_________________________________________________________________

1. The district court also held that Montgomery's state law claims against

De Simone were time barred and that her state law claims against the

municipal defendants were barred by governmental immunity.

Montgomery has not appealed these rulings.

2. The district court properly exercised jurisdiction over Montgomery's

section 1983 action and supplemental claims pursuant to 28 U.S.C.

SS 1331, 1343(a)(3), 1367(a)(1994). We have appellate jurisdiction over

the district court's order granting summary judgment in favor of the

defendants pursuant to 28 U.S.C. S 1291(1994). We exercise de novo

review over the district court's order granting summary judgment.

Boneberger v. Plymouth Township, 132 F.3d 20, 23 (3d Cir. 1997).

6

therefore is only appropriate if taking all of Montgomery's

allegations as true and resolving all inferences in her favor,

a reasonable jury could not find a lack of probable cause

for Montgomery's stop and arrest. Deary v. Three Un-named

Police Officers, 746 F.2d 185, 191 (3d Cir. 1984).

Accordingly, we must examine the evidence presented by

Montgomery on probable cause and, applying any

appropriate presumptions, determine whether Montgomery

has raised a genuine issue of material fact as to whether

Officer De Simone had probable cause for her stop and

arrest.

A.

At common law, a conviction presumptively establishes

the existence of probable cause absent a showing that the

conviction was achieved through perjury, fraud or

corruption. See generally Lind v. Schmid, 337 A.2d 365,

370 (N.J. 1975)(stating that a conviction by a magistrate,

even if subsequently overturned, may raise a rebuttable

presumption of probable cause for purposes of a malicious

prosection claim). Derived from the Restatement of Torts,3

the rule is based on the reasoning that if a factfinder

determined that the accused was guilty beyond a

reasonable doubt, the person who initiated the proceedings

must have had reasonable grounds for so doing. See

Restatement (Second) of Torts S 667(1) cmt. b. (1977). The

rule was developed to establish probable cause in a

malicious prosecution action against a private citizen,

however, not probable cause for arrest by a police officer.

Bergstralh v. Lowe, 504 F.2d 1276, 1278 (9th Cir. 1974).

Moreover, not all state courts adhere to this rule. See

generally C.C. Marvel, Annotation, Conclusiveness, as

evidence of probable cause in malicious prosecution action,

_________________________________________________________________

3. The Restatement of Torts provides, in relevant part, that:

The conviction of the accused by a magistrate or trial court,

although reversed by an appellate tribunal, conclusively

establishes

the existence of probable cause, unless the conviction was obtained

by fraud, perjury or other corrupt means.

Restatement (Second) of Torts S 667(1)(1977).

7

of conviction as affected by the fact that it was reversed or

set aside, 86 A.L.R. 2d 1090 (1962) (discussing position

taken by various state courts).

The Supreme Court has not yet made clear whether

common law rules, such as this Restatement rule, apply to

section 1983 actions. In determining whether a certain

common law concept governs a section 1983 action, the

Court has been guided by the extent to which the common

law rule is rooted in history and reason and whether the

policies it serves are compatible with the purposes of

section 1983. See Owen v. City of Independence, Missouri,

445 U.S. 622, 638 (1980); City of Newport v. Facts Concerts,

Inc., 453 U.S. 247, 259 (1981). As explained by the Court:

[B]ecause the [Civil Rights Act] was designed to expose

state and local officials to a new form of liability, it

would defeat the promise of the statute to recognize

any preexisting [common law concept] without

determining both the policies that it serves and its

compatibility with the purposes of S 1983.

City of Newport, 453 U.S. at 259. Although in City of

Newport the Court expressed its approval of this analysis in

relation to common law immunity, we find this approach

equally appropriate in determining whether a general

common law rule should be applied to section 1983

actions.

In Cameron v. Fogarty, 806 F.2d 380 (2d Cir. 1986), our

sister court of appeals for the Second Circuit followed City

of Newport and held that a rule similar to the Restatement

rule applied to section 1983 actions. Where the plaintiff

had been convicted and the conviction had not been

overturned, the common law principle that a conviction

gives the police officer a complete defense barred the

plaintiff 's section 1983 false arrest claim. Id. at 387-89.

The court reasoned that the availability of this defense does

not undermine the goals of section 1983 because the

exclusionary rule is sufficient to deter law enforcement

officers from making an arrest without probable cause. Id.

at 388. The court concluded that application of the

common law rule to section 1983 actions struck "the proper

accommodation between the individual's interest in

8

preventing unwarranted intrusions into his liberty and

society's interest in encouraging the apprehension of

criminals . . . ." Id.

In Rose v. Bartle, 871 F.2d 331 (3d Cir. 1989), we

criticized the policy considerations underlying Cameron. We

expressed doubt as to whether the rule announced in

Cameron "reflect[s] the `proper accommodation between the

individual's interest in preventing unwarranted intrusion

into his liberty and society's interest in encouraging the

apprehension of criminals' " in light of the availability of

qualified immunity as a defense in section 1983 actions.

Rose, 871 F.2d at 351.

We hold today that the Restatement's rule that an

overturned municipal conviction presumptively establish

probable cause contravenes the policies underlying the Civil

Rights Act and therefore does not apply to a section 1983

malicious prosection action. The central aim of the Civil

Rights Act is to protect citizens from the misuse of power

by individuals cloaked with the authority of state law.

Owen, 445 U.S. at 650. As noted by the Court, in enacting

the Civil Rights Act:

Congress clearly conceived that it was altering the

relationship between the States and the Nation with

respect to the protection of federally created rights; it

was concerned that state instrumentalities could not

protect those rights; it realized that state officers

might, in fact, be antipathetic to the vindication of

those rights; and it believed that these failings

extended to the state courts . . . . The very purpose of

S 1983 was to interpose the federal courts between the

States and the people, as the guardians of the people's

federal rights -- to protect the people from

unconstitutional action under color of state law . .. ."

Mitchum v. Foster, 407 U.S. 225, 242 (1972). Applying a

presumption of probable cause in a section 1983 action on

the sole basis of a municipal conviction that has

subsequently been overturned undermines one of the Civil

Rights Act's raisons d'etre, i.e., to interpose the federal

courts, as guardians of federal rights, between the

authority of the states and the people. Accord Heck, 512

9

U.S. at 496 (Souter, J., concurring)(discussing generally the

Restatement rule and noting that the Court disclaims the

"untenable" position that a conviction "wipes out a person's

S 1983 claim for damages for unconstitutional conviction or

postconviction confinement.").

B.

In the absence of a presumption of probable cause

arising from the municipal conviction, the issue of whether

De Simone had probable cause to stop and arrest

Montgomery rests entirely upon the credibility of the

witnesses. According to Montgomery, she had only had one

drink on the night in question and could not have been

exceeding the speed limit. In addition, Montgomery alleges

that De Simone lied at her trial and that his motive for

arresting her was unrelated to either her speed or her

alleged intoxication. Taking all of Montgomery's allegations

as true and resolving all inferences in her favor as we must,

we find that a reasonable jury could conclude that

De Simone did not have probable cause to stop or to arrest

Montgomery. Montgomery therefore has raised a genuine

issue of material fact as to probable cause and summary

judgment on her section 1983 malicious prosection claim

was accordingly inappropriate.

III.

The parties agree that a two-year limitations period

applies to Montgomery's section 1983 claims. 4 The parties

disagree, however, as to when the two-year limitations

period began to run on Montgomery's section 1983 false

arrest and false imprisonment claims. The defendants

contends that the limitations period began to run on these

_________________________________________________________________

4. In Wilson v. Garcia, 471 U.S. 261, 276 (1985), the Court held that for

S 1983 actions, courts should apply the state statute of limitations

applicable to personal injury torts. We have since held that New Jersey's

two-year limitations period on personal injury actions, N.J.S.A. 2A: 14-2,

applies to a civil rights claim under S 1983. Cito v. Bridgewater Township

Police Dept., 892 F.2d 23, 25 (3d Cir. 1989). The parties are therefore

correct in assuming that a two-year limitations period applies to

Montgomery's S 1983 claims.

10

claims on the date of Montgomery's arrest. Montgomery, on

the other hand, contends that the statute of limitations

period did not begin to run on these claims until her

criminal charges were resolved in her favor.

It is axiomatic that under federal law, which governs the

accrual of section 1983 claims, "the limitations period

begins to run from the time when the plaintiff knows or has

reason to know of the injury which is the basis of the

section 1983 action." Genty v. Resolution Trust Corp., 937

F.2d 899, 919 (3d Cir. 1991). A claim for false arrest,

unlike a claim for malicious prosecution, covers damages

only for the time of detention until the issuance of process

or arraignment, and not more. Heck v. Humphrey , 512 U.S.

477, 484 (1994)(citing W. Page Keeton et al., Prosser and

Keeton on Law of Torts S119, at 888 (5th ed. 1984)). In

addition, Montgomery's section 1983 false imprisonment

claim relates only to her arrest and the few hours she was

detained immediately following her arrest. See App. 74-76

(Complaint). Montgomery therefore reasonably knew of the

injuries that form the basis of these section 1983 claims on

the night of her arrest. Accordingly, under Gentry, the two-

year limitation period for Montgomery's section 1983 false

arrest and false imprisonment claims began to run on

September 30, 1992, the night of Montgomery's arrest and

detention. Because Montgomery filed her action on

February 1, 1995, more than two years after the date of her

arrest, the district court was correct in dismissing

Montgomery's section 1983 false arrest and false

imprisonment claims as time barred.5

_________________________________________________________________

5. Montgomery argues that under Heck v. Humphrey, 512 U.S. 477

(1994), these claims only accrued after her criminal charges were

resolved in her favor. In Heck, the Court held that a section 1983 claim

for damages attributable to an unconstitutional conviction or sentence

does not accrue until that conviction or sentence has been invalidated.

Heck, 512 U.S. at 489-90. The Court also noted, however, that if a

successful claim would not demonstrate the invalidity of any outstanding

criminal judgment, it should be allowed to proceed. Id. at 487. Because

a conviction and sentence may be upheld even in the absence of

probable cause for the initial stop and arrest, wefind that Montgomery's

claims for false arrest and false imprisonment are not the type of claims

contemplated by the Court in Heck which necessarily implicate the

11

IV.

Under 42 U.S.C. S 1983, municipal defendants cannot be

held liable under a theory of respondeat superior; municipal

liability only arises when a constitutional deprivation

results from an official custom or policy. Monell v.

Department of Social Servs. of City of New York, 436 U.S.

658, 691-94 (1978). Furthermore, a municipality's failure to

train police officers only gives rise to a constitutional

violation when that failure amounts to deliberate

indifference to the rights of persons with whom the police

come into contact. City of Canton, Ohio v. Harris, 489 U.S.

378, 388 (1989). We have held that a failure to train,

discipline or control can only form the basis for section

1983 municipal liability if the plaintiff can show both

contemporaneous knowledge of the offending incident or

knowledge of a prior pattern of similar incidents and

circumstances under which the supervisor's actions or

inaction could be found to have communicated a message

of approval to the offending subordinate. See Boneberger v.

Plymouth Township, 132 F.3d 20, 25 (3d Cir. 1997).

Montgomery's claims against the municipal defendants

rest on allegations that these defendants are directly

responsible for De Simone's action and that they failed to

adequately train, discipline or control De Simone which give

him the opportunity to harass and unlawfully detain

Montgomery. To the extent that these claims are based

upon a respondeat superior theory, they are barred under

Monell. In addition, Montgomery's failure to train, discipline

or control claim seems to be based on the contention that

De Simone was never trained not to sexually harass the

female public and was not disciplined as a result of the

incident involving Montgomery. Montgomery, however,

points to no inadequacy in De Simone's police training

_________________________________________________________________

validity of a conviction or sentence. See Mackey v. Dickson, 47 F.3d 744,

746 (5th Cir. 1995)(stating that "[i]t is well established that a claim of

unlawful arrest, standing alone, does not necessarily implicate the

validity of a criminal prosecution following the arrest."). Accordingly,

we

read Heck to be consistent with our determination that Montgomery's

false arrest and false imprisonment claims accrued on the night of her

arrest.

12

program. In addition, she has failed to allege any action or

inaction by the municipal defendants that could be

interpreted as encouraging De Simone's offensive actions.

Because Montgomery's allegations do not implicate the type

of deliberate indifference required for section 1983

municipal liability, the district court was correct in granting

summary judgment in favor of the municipal defendants on

Montgomery's section 1983 claims.

V.

For the foregoing reasons, we will affirm the district

court's order dismissing Montgomery's section 1983 false

arrest, false imprisonment, and municipal liability claims.

We will reverse that portion of the district court's order

dismissing Montgomery's section 1983 malicious

prosecution claim against Officer De Simone because

Montgomery has raised a genuine issue of material fact as

to probable cause and remand for further proceedings.

13

ROTH, Circuit Judge, Dissenting:

I join in parts I, III, and IV of the majority opinion which

holds that Montgomery's false arrest and false

imprisonment claims are time-barred and which affirms

summary judgment in favor of the municipal defendants on

the S 1983 claims. I do not agree, however, with the

majority's conclusion in Part II that, in an action for

malicious prosecution under S 1983, an overturned

conviction does not presumptively establish probable cause.

The majority holds that such a rule contravenes the

policies underlying the Civil Rights Act. I maintain, to the

contrary, that the Restatement of Torts/Common Law rule

should apply. Under this rule, unless a conviction is

contrary to established law or has been obtained by fraud,

perjury or other corrupt means, such a conviction, even if

it is ultimately overturned, has still presumptively

established probable cause to pursue the original

prosecution. I believe that the majority's exception for

actions under S 1983 should not be extended beyond the

already recognized exceptions. Indeed, with the availability

of these Restatement/Common Law exceptions, the

purpose of S 1983 is not defeated.

As the majority states, in order to prevail on a claim of

malicious prosecution under S 1983, a plaintiff must

establish, among other things, the absence of probable

cause for the original proceeding brought against the

plaintiff. Rose v. Bartle, 871 F.2d 331, 349 (3d Cir. 1989)

(citing Lee v. Mihalich, 847 F.2d 66, 69-70 (3d Cir. 1988). In

reversing the district court, the majority concludes that the

common law rule, establishing a presumption of probable

cause from a conviction later reversed, should not apply to

S 1983 actions.

The majority acknowledges that the case law reflects

exceptions to the common law rule so that a conviction

subsequently overturned establishes only a rebuttable

presumption of probable cause. See Lind v. Schmid, 337

A.2d 365 (N.J. 1975). The common law rule is based on the

concept that, if a fact finder determines guilt beyond a

reasonable doubt, there must have been probable cause for

doing so unless it is later determined that the conviction

was fraudulently or corruptly obtained. Id.

14

The majority does not, however, adopt the

Restatement/Common Law rebuttable presumption.

Instead, they conclude that, when a malicious prosecution

action is brought under S 1983, an overturned municipal

court conviction does not presumptively establish probable

cause. Majority at 8-9. Because I conclude that the

purposes of S 1983 are not offended by application of a

rebuttable presumption and because I find that the district

court committed no legal error in applying the common law

rule in its summary judgment determination, I respectfully

dissent.

In this case, Montgomery's municipal court conviction

was overturned upon a trial de novo by the state superior

court. After deeming radar gun evidence inadmissible, the

superior court judge concluded that Montgomery could not

be found guilty beyond a reasonable doubt. If, however, a

failure to find guilt beyond a reasonable doubt could negate

a finding of probable cause to initiate the proceeding, every

successful appeal would prompt a claim of malicious

prosecution.

In its analysis, the district court examined the effect of

the overturned municipal conviction on the malicious

prosecution claim. The court relied on the common law rule

to conclude that if a magistrate's determination of guilt was

reasonably reached (even if later overturned), the

presumption of probable cause should not be disturbed

unless rebutted with evidence that the conviction was

obtained fraudulently. See, e.g., Lind at 370. The district

court then found that the New Jersey magistrate had relied

both on radar evidence and on Officer De Simone's

testimony of a visual estimate of a speeding violation and

had reasonably concluded that there was probable cause to

stop Montgomery and to find her guilty of speeding.

Although the superior court ultimately deemed the radar

evidence to be inadmissible because a proper foundation

had not been laid, the district court reasoned, correctly I

believe, that the inadmissibility of the radar evidence

should have no effect on whether it was reasonable to

prosecute Montgomery in the first place.

The District Court's dismissal of the malicious

prosecution claim hinged on Montgomery's failure to

15

establish such an absence of probable cause. I believe that

the reversal of the municipal court conviction, based on

insufficient evidence to prove guilt beyond a reasonable

doubt, should not be sufficient to dislodge afinding of

probable cause to initiate the proceeding. A reversal for

insufficient evidence is not a finding that the conviction was

brought about fraudulently or corruptly.

The majority concludes to the contrary that the

rebuttable presumption should not apply here because we

are dealing with a claim of malicious prosecution under

S 1983. The majority reasons that, since the Civil Rights Act

was created to interpose the federal courts between the

misuse of state authority and individuals, we would violate

the goals of the Civil Rights Act if we were to allow a

reversed conviction to create a presumption of probable

cause in a S 1983 malicious prosecution claim.

The Second Circuit has also adopted the common law

exceptions in a S 1983 action for false arrest. In Cameron v.

Fogarty, 806 F.2d 380, 388 (2d Cir. 1988), that court held

that the common law rule provides a sufficient balance

between individual liberty interests and societal interest in

law enforcement because the exclusionary rule sufficiently

deters police from arresting without probable cause. The

majority points out that this Court has questioned whether

the rule in Cameron reflects the "proper accommodation"

between individual and societal interests. Rose v. Bartle,

871 F.2d 331 (3d Cir. 1989). Cameron and Rose, however,

both involved claims for false arrest. I conclude that the

difference between a false arrest claim, in which a person

may have been illegally arrested even though guilty of the

prosecuted offense, is very different from a malicious

prosecution claim where the propriety of the prosecution

itself depends on it being initiated with probable cause. For

this reason, I do not find that our concern in Rose carries

over to the present situation.

The majority also quotes with approval from Justice

Souter's concurrence in Heck v. Murphy where he called

"untenable" the notion that a municipal conviction could

"wipe out" a S 1983 claim. Heck v. Humphrey, 512 U.S.

477, 496 (1994). But, the common law rule does not wipe

out a person's S 1983 claim. To the contrary, it raises a

16

rebuttable presumption of probable cause. This

presumption may be rebutted with a showing that the

conviction was brought about through fraud or coercion,

precisely the type of conduct which S 1983 was created to

guard against. Applying the common law rule of a

rebuttable presumption of probable cause in the case before

us does not interfere with the goals of the Civil Rights Act.

For the foregoing reasons, I respectfully dissent.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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