Berg v. County of Allegheny

Opinions of the United

2000 Decisions States Court of Appeals

for the Third Circuit

7-17-2000

Berg v. Allegheny Cty

Precedential or Non-Precedential:

Docket 98-3557

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Filed July 17, 2000

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 98-3557

RAYMOND A. BERG, JR.,

Appellant

v.

COUNTY OF ALLEGHENY;

ALLEGHENY COUNTY ADULT PROBATION SERVICES;

DEBBIE BENTON; RICHARD R. GARDNER;

GLENN ALLEN WOLFGANG; GINNY DEMKO

On Appeal from the United States District Court

for the Western District of Pennsylvania

D.C. Civil Action No. 97-cv-00928

(Honorable Donetta W. Ambrose)

Argued March 10, 1999

Before: MANSMANN, SCIRICA and NYGAARD,

Circuit Judges

(Filed July 17, 2000)

THEODORE E. BREAULT, ESQUIRE

(ARGUED)

Breault & Associates

428 Forbes Avenue

2200 Lawyers Building

Pittsburgh, Pennsylvania 15219

Attorney for Appellant

ERIC N. ANDERSON, ESQUIRE

(ARGUED)

Meyer, Darragh, Buckler, Bebenek

& Eck

2000 The Frick Building

Pittsburgh, Pennsylvania 15219

Attorney for Appellees,

County of Allegheny, Allegheny

County Adult Probation Services,

Debbie Benton, Richard R.

Gardner, Ginny Demko

AUDREY J. COPELAND, ESQUIRE

(ARGUED)

Marshall, Dennehey, Warner,

Coleman & Goggin

1845 Walnut Street

Philadelphia, Pennsylvania 19103

SCOTT G. DUNLOP, ESQUIRE

Marshall, Dennehey, Warner,

Coleman & Goggin

2900 USX Tower

600 Grant Street

Pittsburgh, Pennsylvania 15219

Attorneys for Appellee,

Glenn Allen Wolfgang

OPINION OF THE COURT

PER CURIAM.

Plaintiff Raymond Berg appeals the District Court's grant

of summary judgment to all defendants in this civil rights

action alleging false arrest and imprisonment based on an

erroneously issued warrant. We will affirm in part and

reverse in part.

I. Background

On July 14, 1994, Richard Gardner, the supervisor at

Allegheny County Adult Probation Services, requested an

2

arrest warrant for Paul Banks, who had violated conditions

of his parole. After a judge of the Court of Common Pleas

approved the warrant, Gardner sent an Arrest Warrant

Information Sheet to Virginia Demko, the warrant clerk

responsible for issuing and clearing all arrest warrants in

Allegheny County. The Information Sheet listed Banks's

name, offense, date of birth, criminal complaint number,

Social Security number, and address. On August 3, 1994,

Demko generated the warrant using the County's

computerized Integrated Court Information System (ICIS).

ICIS is operated by typing a criminal complaint number

into the computer, which automatically retrieves the

remaining information and displays it on the user's screen.

Unfortunately, Demko transposed two digits in Banks'

criminal complaint number. As a result, she entered the

criminal complaint number of plaintiff, Raymond A. Berg,

Jr., who three years earlier had completed a six-month

parole term for driving under the influence. Demko's

computer screen displayed Berg's name, date of birth,

criminal complaint number, Social Security number, and

address, all of which were different from the information on

the Arrest Warrant Information Sheet. Berg concedes,

however, that Demko noticed only that the address on the

screen was different from the address on the Information

Sheet. See Appellant's Br. at 7. She did not realize that the

other information was different as well. See id.

Concluding that the ICIS contained an old or otherwise

incorrect address for Banks, Demko manually changed the

information in the ICIS. She replaced Berg's address, in

Sewickley, Pennsylvania, with Banks's last known address,

listed on the Information Sheet, in Finleyville, Pennsylvania.

That was the only change she made.

Demko then generated the warrant for Berg's arrest and

sent it to the Allegheny County Sheriff 's Office. Gardner's

name and telephone number were written on the warrant

as the contact person from whom additional information

could be obtained. Demko also returned the Information

Sheet requesting the Banks warrant to Gardner after date-

stamping it to indicate that the warrant had been issued.

Thus, because of Demko's clerical error, and her

subsequent decision to change the information contained in

3

the ICIS, an arrest warrant was issued for Berg rather than

Banks. Demko later testified in her deposition that, in

issuing over 500 warrants per month since 1989,"this is

the only occasion where this has ever occurred."

In reviewing Banks' case on August 16, 1994, Gardner

noticed that the Information Sheet had been stamped

(indicating the issuance of a warrant) but, according to his

review of ICIS, no warrant in fact existed. Gardner admits

that, "for a brief moment," he may have considered the

possibility that an erroneous warrant was issued, but

would have quickly realized that there was no practical way

to determine whether one had. See Gardner Dep. at 141:16

through 142:3 (A.397-98). He then called Demko, informed

her that no warrant had been issued for Banks, and

requested that she issue one. Nothing in the record

indicates that Gardner suggested to Demko, at that time,

that she may have processed an erroneous warrant.

Berg's warrant was executed on the night of December

30, 1994, by Glenn Allen Wolfgang, an elected constable in

Westmoreland County. Wolfgang, who earned a fee for each

person arrested, frequently executed outstanding arrest

warrants for Allegheny County, and on December 30 he

planned to make four arrests. Before leaving home,

Wolfgang retrieved Berg's address and telephone number

using a computer software/on-line system he had

purchased from a credit union. Apparently, however, he did

not notice that the address he retrieved, and the one listed

on the warrant for Berg's arrest, were different. He

proceeded instead to the Finleyville address listed on the

warrant, only to discover that it was an abandoned house.

Wolfgang then telephoned Berg and asked for directions to

his house. Wolfgang called three or four more times for

further directions and took over an hour to drive from

Finleyville to Berg's house. In his deposition, Wolfgang

described Berg as "[v]ery cooperative" on the telephone.

When Wolfgang arrived, Berg was entertaining guests at

his house at a pre-New Year's Eve party. Berg informed

Wolfgang that he had never lived in Finleyville and offered

to produce release documents proving that he was no

longer on parole. After confirming that Berg's birthday and

social security number were the same as those on the

4

warrant, Wolfgang refused to look at the release

documents, instead telling Berg to bring them with him.

Berg did show Wolfgang his driver's license, confirming that

Berg was no longer on parole.1 But Wolfgang simply told

Berg not to take too much time retrieving the release

documents because he had three more people to arrest that

night.

Wolfgang did call the Allegheny County Sheriff 's Office,

but after being told that the warrant was still"active," he

arrested Berg. Wolfgang did not try to call Gardner.

Gardner testified that if Wolfgang had called and asked him

about a warrant for Berg's arrest, Gardner would have

checked Berg's file and told Wolfgang not to arrest Berg.

At the Sheriff 's office, Berg was strip-searched,

fingerprinted, inoculated, and placed in the Allegheny

County Jail. Because Probation Services and the courts

were closed for the holidays, Berg remained in jail until

January 3, 1995, or approximately five days. Finally, after

intervention by Berg's attorney, Demko issued a Notification

to Clear the Warrant and Berg was released.

Berg filed suit against Allegheny County, Gardner,

Demko, and Wolfgang in Pennsylvania state court, alleging

civil rights violations under 42 U.S.C. SS 1983, 1985(3),

1988 (1994), and the Fourth, Fifth, and Fourteenth

Amendments.2 The defendants removed the case to the

District Court for the Western District of Pennsylvania and,

following discovery, moved for summary judgment. The

District Court granted summary judgment to all

defendants, ruling that Berg's arrest was not

unconstitutional because the facially valid warrant gave

Wolfgang probable cause for the arrest.

_________________________________________________________________

1. In his deposition, Wolfgang acknowledged knowing that during "the

penalty phase" of a DUI sentence a defendant must surrender his

driver's license.

2. Berg also sued his former parole officer, Debbie Benton, and Allegheny

County Adult Probation Services. Benton was dismissed with Berg's

consent when it became clear that she was not involved in his arrest.

The District Court dismissed the Probation Services office, concluding

the office is an arm of the County without distinct legal existence. See

Berg v. County of Allegheny, No. 97-928, slip op. at 4 n.2 (W.D. Pa. Sep.

23, 1998). Berg does not challenge this determination on appeal.

5

II. Legal/Analytical Framework

On appeal, Berg presses only his S 1983 claim. 3 To make

a prima facie case under S 1983, the plaintiff must

demonstrate that a person acting under color of law

deprived him of a federal right. See Groman v. Township of

Manalapan, 47 F.3d 628, 633 (3d Cir. 1995). Here, it is

undisputed that defendants were acting under color of law

when they issued and executed the warrant for Berg's

arrest.

The next step is to "identify the exact contours of the

underlying right said to have been violated." County of

Sacramento v. Lewis, 523 U.S. 833, 841 n.5 (1998). Section

1983 is not a source of substantive rights and does not

provide redress for common law torts--the plaintiff must

allege a violation of a federal right. See Baker v. McCollan,

443 U.S. 137, 146 (1979). Berg alleges he was subjected to

false arrest, false imprisonment, and denial of due process

in violation of 42 U.S.C. SS 1983 and 1985(3), and the

Fourth, Fifth, and Fourteenth Amendments.

The Supreme Court has held that when government

behavior is governed by a specific constitutional

amendment, due process analysis is inappropriate.

Although not all actions by police officers are governed by

the Fourth Amendment, see Lewis at 842-43 (noting that

accidents during police chases are not "covered" by the

Fourth Amendment), the constitutionality of arrests by

state officials is governed by the Fourth Amendment rather

than due process analysis. See id.; United States v. Lanier,

520 U.S. 259, 272 n.7 (1997); Graham v. Connor , 490 U.S.

386, 394 (1989); Blackwell v. Barton, 34 F.3d 298, 302 (5th

Cir. 1994). Therefore, we will limit our analysis of Berg's

arrest to his Fourth Amendment claim. See Baker , 443 U.S.

_________________________________________________________________

3. 42 U.S.C. S 1983 provides in part:

Every person who, under color of any statute, ordinance,

regulation,

custom, or usage, of any State or Territory or the District of

Columbia, subjects, or causes to be subjected, any citizen of the

United States or other person within the jurisdiction thereof to

the

deprivation of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured in an

action at law, suit in equity, or other proper proceeding for

redress.

6

at 142-43 (1979) (interpreting S 1983 false imprisonment

claim as grounded in Fourth Amendment rights); Groman,

47 F.3d at 636 (same). Although we recognize the

possibility that some false arrest claims might be subject to

a due process analysis, we also conclude that this record

could not support a due process claim.

Our analysis of Berg's Fourth Amendment claim is a

three-step process. First, we must determine whether he

was seized for Fourth Amendment purposes. If so, we next

determine whether that seizure violated the Fourth

Amendment's prohibition against unreasonable seizures.

Finally, if there has been a Fourth Amendment violation, we

must determine which of the defendants, if any, may be

held liable for it.

III. Fourth Amendment Seizures

A person is seized for Fourth Amendment purposes only

if he is detained by means intentionally applied to

terminate his freedom of movement. A seizure occurs even

when an unintended person is the object of detention, so

long as the means of detention are intentionally applied to

that person. See Brower v. County of Inyo, 489 U.S. 593,

596 (1989) (citing Hill v. California, 401 U.S. 797, 802-05

(1971)); see also Medeiros v. O'Connell, 150 F.3d 164, 169

(2d Cir. 1998); Rucker v. Harford County, 946 F.2d 278,

281 (4th Cir. 1991), cert. denied, 502 U.S. 1097 (1992);

Landol-Rivera v. Cruz Cosme, 906 F.2d 791, 796 (1st Cir.

1990).

For example, if a police officer fires his gun at a fleeing

robbery suspect and the bullet inadvertently strikes an

innocent bystander, there has been no Fourth Amendment

seizure. See Medeiros, 150 F.3d at 168-69; Rucker, 946

F.2d at 281; Landol-Rivera, 906 F.2d at 795. If, on the

other hand, the officer fires his gun directly at the innocent

bystander in the mistaken belief that the bystander is the

robber, then a Fourth Amendment seizure has occurred.

See Brower, 489 U.S. at 596 (citing Hill v. California, 401

U.S. 797, 802-05 (1971)).

Applying that law to these facts, there is no doubt that

Berg's arrest constituted a seizure for Fourth Amendment

7

purposes. Even if Wolfgang had thought he was arresting

Banks, his intentional application of control over the

person of Berg would be a Fourth Amendment seizure.

Here, however, Wolfgang knew he was arresting Berg rather

than Banks, and clearly intended to do so, even though

motivated by an erroneous warrant. The question, then, is

whether the arrest violated the Fourth Amendment.

The Fourth Amendment prohibits arrests without

probable cause. See Orsatti v. New Jersey State Police, 71

F.3d 480, 482 (3d Cir. 1995). As previously noted, the

District Court concluded that the warrant for Berg's arrest

was facially valid and that it therefore supplied probable

cause to arrest him. See Berg v. County of Allegheny, No.

97-928, slip op. at 4-7 (W.D. Pa. Sept. 22, 1998) (Wolfgang);

Berg v. County of Allegheny, No. 97-928, slip op. at 4-5

(W.D. Pa. Sept. 23, 1998) (remaining defendants). We

cannot agree.

The Supreme Court's decision in Whiteley v. Warden, 401

U.S. 560 (1971), as well as our own subsequent decisions,

make clear that an erroneously issued warrant cannot

provide probable cause for an arrest. In Whiteley, a county

sheriff obtained a warrant for Whiteley's arrest based on a

conclusory complaint. Police officers in another jurisdiction

arrested Whiteley, discovering evidence later introduced at

his trial. The state argued that because the arresting

officers were unaware of the defect in the warrant, they had

probable cause to arrest whether or not the sheriff did. But

the Supreme Court held that the arrest was

unconstitutional and ordered the evidence excluded:

Certainly police officers called upon to aid other officers

in executing arrest warrants are entitled to assume

that the officers requesting aid offered the magistrate

the information requisite to support an independent

judicial assessment of probable cause. Where, however,

the contrary turns out to be true, an otherwise illegal

arrest cannot be insulated from challenge by the

decision of the instigating officer to rely on fellow

officers to make the arrest.

Id. at 568. As in Whiteley, Constable Wolfgang relied on an

arrest warrant, assuming it had been issued after

8

presentation to a judge of evidence sufficient to establish

probable cause.4 Also as in Whiteley, "the contrary turn[ed]

out to be true"; neither Gardner, Demko, nor anyone else

associated with the creation of the warrant had probable

cause to arrest Berg.

In United States v. Hensley, 469 U.S. 221 (1985), the

Court, relying primarily on Whiteley, held that police may

conduct a Terry stop based on a flyer issued by other

officers, but "[i]f the flyer has been issued in the absence of

a reasonable suspicion, then a stop in the objective reliance

upon it violates the Fourth Amendment." Id. at 232. In

Arizona v. Evans, 514 U.S. 1 (1995), the Court held that

the policies underlying the exclusionary rule do not require

suppression of evidence seized pursuant to an erroneous

warrant resulting from a clerical error. But the Court also

noted that Whiteley "clearly retains relevance in

determining whether police officers have violated the Fourth

Amendment." Id. at 13. Thus, the Supreme Court has made

clear that a mistakenly issued or executed warrant cannot

provide probable cause for an arrest.

Our cases have applied the same principle. In Rogers v.

Powell, 120 F.3d 446 (3d Cir. 1997), a county probation

officer told one state trooper that a second state trooper

had reported that a warrant existed for Roger's arrest.

Relying on the probation officer's representation that a

warrant existed, the first state trooper arrested Rogers the

_________________________________________________________________

4. The Court of Appeals for the Second Circuit, without discussion of

Whiteley, has upheld an arrest based on a warrant later found to have

been improperly issued. See United States v. Towne, 870 F.2d 880, 884-

85 (2d Cir. 1989), cert. denied, 490 U.S. 1101 (1989); see also United

States v. Shareef, 100 F.3d 1491, 1505 (10th Cir. 1996) (upholding the

constitutionality of a Terry stop based on good-faith reliance on

inaccurate information provided by other law enforcement officials);

United States v. De Leon-Reyna, 930 F.2d 396, 401 (5th Cir. 1991) (en

banc) (per curiam) (same). Other courts, relying on Whiteley, have

continued to hold that an improperly issued warrant cannot provide

probable cause for an arrest. See United States v. Meade, 110 F.3d 190,

193-94 & 194 n.2 (1st Cir. 1997); Ott v. State , 600 A.2d 111, 115 (Md.

1992); State v. Taylor, 621 A.2d 1252, 1254 (R.I. 1993). The Supreme

Court's subsequent decisions, as well as our own, convince us that

Whiteley remains the governing law.

9

following day. In fact, however, there was no such warrant

and Rogers filed a S 1983 action for violation of his Fourth

and Fourteenth Amendment rights.

Like defendants here, the Rogers defendants argued that

the arresting officer's "mistaken belief that an arrest

warrant had issued for Rogers supplied the probable cause

required by the Fourth Amendment." Id. at 452-53. We

rejected this argument, holding that "[t]he legality of a

seizure based solely on statements issued by fellow officers

depends on whether the officers who issued the statements

possessed the requisite basis to seize the suspect." Id. at

453 (citing Hensley, 469 U.S. at 231). Because "neither [the

trooper] nor [the probation officer] had knowledge of the

requisite facts and circumstances necessary to support a

finding of probable cause," we concluded the arrest violated

the Fourth Amendment. Id. We similarly rejected the

argument that reliance on a mistakenly issued warrant can

supply probable cause in United States v. Miles , 468 F.2d

482, 487-88 (3d Cir. 1972), and United States v. Bianco,

189 F.2d 716, 719 (3d Cir. 1951).

The only potentially distinguishing feature of Berg's

arrest is that the mistake here was made by a court clerk,

rather than a police officer. We do not believe this

distinction is significant, however. The Fourth Amendment

provides: "[N]o Warrants shall issue, but upon probable

cause . . . ." U.S. Const. amend. IV. Because the courts are

the arm of government charged with issuing warrants, we

believe this requirement is directed to court officials as well

as law enforcement officers. This reading is supported by

the case law. In Arizona v. Evans, the Supreme Court did

not find it significant that the unlawful arrest was

occasioned by the mistake of court clerk, as opposed to a

police officer. See 514 U.S. at 13-15. 5 Similarly, in Rogers,

the arresting officers relied on a probation officer's

_________________________________________________________________

5. The Court did recognize that court personnel are not "adjuncts to the

law enforcement team engaged in the often competitive enterprise of

ferreting out crime" and therefore application of the exclusionary rule is

unlikely to alter their behavior. Id. at 15. But this determination is not

relevant to an assessment of whether their mistakes can provide

probable cause for an arrest.

10

statement that another trooper had said a warrant existed

for Rogers' arrest, yet we held the arrest unconstitutional

without inquiring whether the mistake was the trooper's or

the probation officer's. See 120 F.3d at 452-55; see also

Murray v. City of Chicago, 634 F.2d 365, 366 (7th Cir.

1980) (holding that although it was unclear whether the

police department or clerk's office had failed to transmit an

order quashing a warrant, "[i]t seems clear that [plaintiff]

sustained a violation of constitutional rights by being

arrested and detained pursuant to an invalid warrant").

Because the government officials who issued the warrant

here did not have probable cause to arrest Berg, the arrest

violated the Fourth Amendment. Accordingly, summary

judgment should not have been granted based on the

existence of the warrant.6

_________________________________________________________________

6. Unlike defendants, we do not read Baker v. McCollan, 443 U.S. 137

(1979) to hold otherwise. When he was arrested, McCollan's brother

claimed to be McCollan, presenting McCollan's identification. After his

brother violated parole, McCollan was arrested on a warrant and spent

a long New Year's weekend in jail. The Court found no constitutional

violation, but the substance of McCollan's claim was different from

Berg's:

[R]espondent makes clear that his S 1983 claim was based solely on

Sheriff Baker's actions after respondent was incarcerated . . . .

. . . Absent an attack on the validity of the warrant under which

he was arrested, respondent's complaint is simply that despite his

protests of mistaken identity, he was detained [over the long

weekend]. Whatever claims this situation might give rise to under

state tort law, we think it gives rise to no claim under the United

States Constitution.

Id. at 143-44. Unlike McCollan, Berg challenges the generation and

execution of the warrant for his arrest, not the decision to incarcerate

him after arrest. At issue here is not whether authorities must

investigate the claims of innocence of a person who has been legally

arrested but what precautions the Constitution requires before an arrest

warrant is issued and executed. See Murray, 634 F.2d at 367

(distinguishing Baker on the same ground).

11

IV. Liability of the Individual Defendants

Absent immunity or an adequate defense, a person who,

acting under color of state law, directly and intentionally

applies the means by which another is seized in violation of

the Fourth Amendment can be held liable under S 1983. As

a general rule, a government official's liability for causing

an arrest is the same as for carrying it out. See Gordon v.

Degelmann, 29 F.3d 295, 298 (7th Cir. 1994); see also

Kilborn v. Thompson, 103 U.S. 168, 200 (1880) (holding

that legislators directing an arrest are as responsible as

those who effected arrest). As the Supreme Court has

explained, S 1983 anticipates that an individual will be

"responsible for the natural consequences of his actions."

Malley v. Briggs, 475 U.S. 335, 344 n.7 (1986) (holding that

a police officer who obtains an arrest warrant without

probable cause is liable under S 1983 even though another

officer made the actual arrest). It is thus clear that S 1983

liability for an unlawful arrest can extend beyond the

arresting officer to other officials whose intentional actions

set the arresting officer in motion. We turn, then, to the

issue of which, if any, of the defendants in this case can be

held liable for Berg's unconstitutional arrest.

A. Constable Wolfgang

Constable Wolfgang contends that he is entitled to

qualified immunity from suit because he executed a facially

valid warrant. Unless historical facts are in dispute,

qualified immunity is a matter for the court. See id. at 828.

The inquiry is an objective one; the arresting officer's

subjective beliefs about the existence of probable cause are

not relevant. See Anderson v. Creighton, 483 U.S. 635, 641

(1987). In considering claims of qualified immunity, courts

are sensitive to "[t]he broad range of reasonable

professional judgment accorded" law enforcement officials

in the S 1983 context. Greene v. Reeves , 80 F.3d 1101,

1107 (6th Cir. 1996). Thus, "the qualified immunity

doctrine `gives ample room for mistaken judgments' by

protecting `all but the plainly incompetent or those who

knowingly violate the law.' " Orsatti, 71 F.3d at 484 (quoting

Malley v. Briggs, 475 U.S. 335, 345 (1986)).

12

A government official is entitled to qualified immunity if

his "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). In the context of this case, the question is whether

"a reasonable officer could have believed that his or her

conduct was lawful, in light of the clearly established law

and the information in the officer's possession." Sharrar v.

Felsing, 128 F.3d 810, 826 (3d Cir. 1997) (citing Hunter v.

Bryant, 502 U.S. 224, 227 (1991) (per curiam); Anderson v.

Creighton, 483 U.S. 635, 641 (1987). Our inquiry, then, has

two parts. Did Wolfgang's conduct violate clearly

established law? If so, did he nevertheless reasonably

believe that his conduct was lawful in light of the

information he possessed at the time?

At the time of Berg's arrest in 1994, it was clear that an

arrest could be made only with probable cause. Although

Rogers was decided in 1997, Whiteley clearly established in

1971 the conditions under which an arresting officer can

obtain probable cause from a warrant. As we have already

noted, the warrant at issue in this case did not provide

probable cause to arrest Berg. Therefore, we must consider

whether a reasonable constable in Wolfgang's position

could have concluded that there was probable cause to

arrest Berg based on the information Wolfgang had at the

time.

Ordinarily, it is reasonable for an officer to assume that

a warrant has been issued for probable cause. As the

Supreme Court explained in Baker,

Given the requirements that arrest be made only on

probable cause and that one detained be accorded a

speedy trial, we do not think a sheriff executing an

arrest warrant is required by the Constitution to

investigate independently every claim of innocence,

whether the claim is based on mistaken identity or a

defense such as lack of requisite intent.

443 U.S. at 145-46. Therefore, we have generally extended

immunity to an officer who makes an arrest based on an

objectively reasonable belief that there is a valid warrant.

See Rogers, 120 F.3d at 456 (concluding that a state

13

trooper who was inaccurately told by another trooper that

there was a warrant for the plaintiff 's arrest was immune

from suit); Capone v. Marinelli, 868 F.2d 102, 105-06 (3d

Cir. 1989) (holding that arresting officers were immune in

light of a bulletin correctly reporting the existence of an

arrest warrant "as well as the nature of the alleged offenses

[including child kidnaping] and the fact that a young child

was in possible danger"); cf. Groman v. Township of

Manalapan, 47 F.3d 628, 635 n.10 (3d Cir. 1995) (affirming

summary judgment in favor of officers who arrested plaintiff

after being told by another officer that plaintiff had

assaulted her). Other courts of appeals have adopted the

same rule. See Pickens v. Hollowell, 59 F.3d 1203, 1207-08

(11th Cir. 1995); Salmon v. Schwartz, 948 F.2d 1131, 1140-

41 (10th Cir. 1991); Bennett v. City of Grand Prairie, Tex.,

883 F.2d 400, 408 (5th Cir. 1989); Barr v. Abrams, 810

F.2d 358, 362 (2d Cir. 1987). But see Ruehman v. Sheahan,

34 F.3d 525, 527 (7th Cir. 1994) (dicta) (questioning

whether officers who arrested plaintiff based on an

inaccurate computer report of an outstanding warrant were

protected by qualified immunity).

Nevertheless, an apparently valid warrant does not

render an officer immune from suit if his reliance on it is

unreasonable in light of the relevant circumstances. Such

circumstances include, but are not limited to, other

information that the officer possesses or to which he has

reasonable access, and whether failing to make an

immediate arrest creates a public threat or danger of flight.

See Malley, 475 U.S. at 345 (holding that where a police

office submits an affidavit in support of a warrant request,

and a reviewing magistrate's concludes that the affidavit

establishes probable cause, the officer is not immune from

a S 1983 lawsuit if "a reasonably well-trained officer in

petitioner's position would have known that his affidavit

failed to establish probable cause . . . ."); see also Yancey

v. Carroll County, 876 F.2d 1238, 1243 (6th Cir. 1989)

(holding that "[p]olice officers are entitled to rely on a

judicially secured warrant for immunity from a S 1983

action for illegal search and seizure unless the warrant is

so lacking in indicia of probable cause, that official belief in

the existence of probable cause is unreasonable.").

14

At the summary judgment stage here, Berg submitted a

report from Alan Springer, a Pennsylvania Constable, who

concluded "it was not objectively reasonable for Mr.

Wolfgang to believe that probable cause existed for the

arrest of Mr. Berg" under the circumstances. According to

Springer, the relevant circumstances included the age of

the warrant, the invalid address, Berg's socio-economic

status, Berg's documentation that he had completed his

probation, Berg's cooperativeness, the fact that Berg had a

driver's license despite allegedly being on parole for DUI,

the fact that Berg did not flee or ask his guests to leave

despite having ample warning of Wolfgang's arrival, and the

nonviolent nature of the crime. Springer stated that

Wolfgang should have waited until the probation office re-

opened on January 3, 1995 so he could look into Berg's

claims. He also opined that Wolfgang had been

"predisposed to arrest Mr. Berg" to earn his fee, particularly

after such a large investment of time.

We think Springer's report raises valid questions

concerning the reasonableness of Wolfgang's conduct in

this case. Because the District Court concluded that Berg's

arrest had not been unconstitutional, it did not reach

Wolfgang's qualified immunity claim. Consequently, it did

not make the findings of fact necessary to determine, as a

mater of law, whether Wolfgang's reliance on the warrant

was unreasonable under the circumstances with which he

was confronted. Therefore, we will remand the cause so

that the District Court can make the necessary findings,

and can consider the qualified immunity issue in the first

instance.

B. Demko

To avoid summary judgment under a Fourth Amendment

analysis, Berg must point to some evidence from which a

reasonable jury could conclude that Demko intentionally

caused his arrest. He has failed to do so. In fact, Berg

concedes that Demko failed to notice that her computer

screen displayed his name, rather than Banks', when she

mistakenly transposed the criminal complaint number on

the Warrant Information Request Sheet. See Appellant's Br.

at 7 ("She also failed to note that all of the other

15

information on her computer screen, i.e. the arrestee's

name, his date of birth, his criminal complaint number, his

social security number and the reason for his arrest, was

also incorrect."). Nevertheless, Berg contends that Demko

could be held liable under a due process theory of

deliberate indifference.

Where a defendant does not intentionally cause the

plaintiff to be seized, but is nonetheless responsible for the

seizure, it may be that a due process "deliberate

indifference" rather than a Fourth Amendment analysis is

appropriate. See County of Sacramento v. Lewis , 523 U.S.

823, 843-44 (1998) (holding that if there is no seizure, the

case is not covered by the Fourth Amendment and therefore

due process analysis may be appropriate). We need not

decide that here, however, because Berg has not alleged

anything more than mere negligence on Demko's part.

Negligence by public officials is not actionable as a due

process violation. See Daniels v. Williams, 474 U.S. 327

(1986); Colburn v. Upper Darby Township, 946 F.2d 1017

(3d Cir. 1991). Whether or not she should have noticed the

additional discrepancies between the information displayed

on her computer screen and what appeared on the

Information sheet, the fact remains that she did not.

Berg claims, however, that Demko acted with deliberate

indifference because she failed to take any steps to recall

the erroneously issued warrant when Gardner "informed

her of [her mistake] on August 16, 1994." Appellant's Br. at

25. The record does not support Berg's argument. When

Gardner called Demko on August 16, he merely informed

her that no warrant for Banks had been issued. See

Gardner Dep. at 116:9-14 (App. 372). He did not inform her

that she had issued an erroneous warrant until

approximately January 3, 1995, several days after Berg had

been arrested. See Appellant's Br. at 11 (citing App. 603).

By that time, it was obviously too late to recall the warrant

before it was executed. There is nothing in the record

indicating that Demko was aware of her error at any earlier

date. She could not have been deliberately indifferent to a

risk of which she was reasonably unaware. Therefore, we

will affirm summary judgment in favor of Demko.

16

C. Gardner

As with Demko, Berg points to no record evidence that

Gardner intentionally caused his arrest. Though Gardner

initiated the series of events that ultimately led to Berg's

arrest, his only role was to request a warrant for Banks. He

played no part in issuing the erroneous warrant for Berg.

Neither did he play any part in Wolfgang's execution of that

warrant. In short, there is nothing in this record suggesting

that Gardner ever intended to cause Berg's arrest. His only

intention was to cause Banks' arrest.

By way of rough analogy, Gardner's warrant request is

analogous to the stray bullets at issue in Medeiros, Rucker,

and Landol-Rivera. Gardner "fired" the warrant at Banks,

and it inadvertently "struck" Berg instead. This is not the

intentional application of the means of detention required

for a Fourth Amendment seizure.

Again, however, Berg argues that Gardner could be held

liable under a due process theory of deliberate indifference.

He contends that Gardner displayed such indifference when

he failed "to act on his `hunch' that perhaps an erroneous

warrant did, in fact, issue." Appellant's Br. at 8. It is worth

noting, however, that the record does not establish any

such "hunch" on Gardner's part. Asked at deposition to

recall his thoughts on a particular day more than three

years in the past, Gardner was only willing to assume that:

based upon the way I try and perform my job, that it

occurred to me that the warrant-- there was no

warrant issued, that the warrant may have not taken

in the computer or that there was a possibility that a

bad warrant had been issued.

Gardner Dep. at 151:16-20 (A.407); see also id. at 140:4-8

(A.396).

Even assuming, for summary judgment purposes, that

Gardner did realize a bad warrant may have issued, his

uncontradicted testimony establishes that he believed there

was simply no reasonable way to investigate his suspicion.

While the term deliberate indifference is generally defined to

require only knowledge of a serious risk of harm, see

Fuentes v. Wagner, 206 F.3d 335, 345 n.12 (3d Cir. 2000)

17

(defining deliberate indifference in the context of a

prisoner's Eighth Amendment claim), it also implies a

failure to take reasonably available measures to reduce or

eliminate that risk. See Farmer v. Brennan, 511 U.S. 825,

847 (1994) (holding that "a prison official may be held liable

under the Eighth Amendment . . . only if he knows that

inmates face a substantial risk of serious harm and

disregards that risk by failing to take reasonable measures

to abate it.") (emphasis added). Where no reasonable

measures exist, neither can deliberate indifference. As with

Demko, we will affirm summary judgment in favor of

Gardner.

V. Municipal Liability

Allegheny County cannot be held liable for the

unconstitutional acts of its employees on a theory of

respondeat superior. See Monell v. Department of Social

Servs., 436 U.S. 658, 691 (1978). Instead, Berg must

demonstrate that the violation of his rights was caused by

either a policy or a custom of the municipality. See Beck v.

City of Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996).

Berg contends that he was arrested as a result of

Allegheny County's "flawed warrant creation practice" and

poor training procedures. As noted, the Integrated Court

Information System generates a warrant based on a single

datum -- the criminal complaint number of the person to

be arrested. Because the user enters no other information,

there is no check in the computer system to guard against

the kind of mistake Demko made. Nor are there procedures

that would allow a probation officer such as Gardner who

suspects an error to confirm that suspicion. Theseflaws,

Berg maintains, caused his unlawful arrest.

"Policy is made when a `decisionmaker possess[ing] final

authority to establish municipal policy with respect to the

action' issues an official proclamation, policy, or edict."

Kneipp v. Tedder, 95 F.3d 1199, 1212 (3d Cir. 1996)

(quoting Pembauer v. City of Cincinnati, 475 U.S. 469, 481

(1986) (plurality opinion)) (alteration in original, other

internal quotation marks omitted). Customs are " `practices

of state officials . . . so permanent and well settled' as to

18

virtually constitute law." Id. (quoting Monell, 436 U.S. at

691) (other internal quotation marks omitted). Both Demko

and Gardner made it clear that there is an established and

predictable procedure for issuing warrants and the County

has not claimed that the method used in Berg's case

differed from any other -- apart from the obvious

aberration. To the contrary, in its answer to the complaint,

the County conceded that Demko "followed the practices

and procedures which had been in effect at the time she

started working." Answer, P 8. We believe it is a more than

reasonable inference to suppose that a system responsible

for issuing 6,000 warrants a year would be the product of

a decision maker's action or acquiescence. See, e.g., Beck,

89 F.3d at 973 ("written complaints were sufficient for a

reasonable jury to infer that Chief of Police of Pittsburgh

and his department knew or should have known" of officer's

violent behavior); Silva v. Worden, 130 F.3d 26, 31 (1st Cir.

1997) (stating custom is demonstrated by showing"practice

is so well settled and widespread that the policymaking

officials have either actual or constructive knowledge of it").

Thus, we hold that there is sufficient evidence that the

procedure was a policy or custom of the County's.

Once a S 1983 plaintiff identifies a municipal policy or

custom, he must "demonstrate that, through its deliberate

conduct, the municipality was the `moving force' behind the

injury alleged." Board of County Comm'rs of Bryan County

v. Brown, 520 U.S. 397, 404 (1997). If, as here, the 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. at 407

(citations omitted); see also City of Canton, Ohio v. Harris,

489 U.S. 378, 389 (1989).

Failure to adequately screen or train municipal

employees can ordinarily be considered deliberate

indifference only where the failure has caused a pattern of

violations. See Bryan County, 520 U.S. at 408-09. Although

it is possible to maintain a claim of failure to train without

demonstrating such a pattern, the Bryan County Court

made clear that the burden on the plaintiff in such a case

is high:

19

In leaving open in Canton the possibility that a plaintiff

might succeed in carrying a failure-to-train claim

without showing a pattern of constitutional violations,

we simply hypothesized that, in a narrow range of

circumstances, a violation of federal rights may be a

highly predictable consequence of a failure to equip law

enforcement officers with specific tools to handle

recurring situations. The likelihood that the situation

will recur and the predictability that an officer lacking

specific tools to handle that situation will violate

citizens' rights could justify a finding that

policymakers' decision not to train the officer reflected

"deliberate indifference" to the obvious consequence of

the policymakers' choice.

Id. at 409. The Court has stated that an example of

deliberate indifference to an obvious risk is arming officers

without training them "in the constitutional limitations on

the use [of the arms.]" Canton, 489 U.S. at 390 n.10.

Berg contends the County is liable because of its failure

to provide sufficient procedural or technical safeguards

against errors such as the one that resulted in Berg's

arrest. We have previously applied the Supreme Court's

rulings in failure-to-train cases to other claims of liability

through inaction, see, e.g., Beck, 89 F.3d at 972; Williams

v. Borough of West Chester Pennsylvania, 891 F.2d 458,

467 n. 14 (3d Cir. 1989), and we do so here as well.

The record contains no evidence of procedures guarding

against Demko's mistake. Expressing considerable

knowledge of the warrant-issuing procedures, Gardner

testified that he knew of no "double check" to ensure that

warrants were issued in the correct name. Nor was Gardner

aware of any procedure by which he could check to

ascertain if an erroneous warrant had issued. Having

employed a design where the slip of a finger could result in

wrongful arrest and imprisonment, there remains an issue

of fact whether the County was deliberately indifferent to an

obvious risk. The County's failure to provide protective

measures and failsafes against Demko's mistake seems

comparable to "a failure to equip law enforcement officers

with specific tools to handle recurring situations." Bryan

County, 520 U.S. at 409. When such a simple mistake can

20

so obviously lead to a constitutional violation, we cannot

hold that the municipality was not deliberately indifferent

to the risk as a matter of law. Accordingly, the County may

be liable under Monell.

We will reverse the District Court's grant of summary

judgment to the County so that a fact finder may address

these questions.7

VI. Future Violations

It is clear we have entered an age in which law

enforcement personnel will rely increasingly on computer

technology. Dissenting in Arizona v. Evans, Justice

Ginsburg noted,

Widespread reliance on computers to store and convey

information generates, along with manifold benefits,

new possibilities of error, due to both computer

malfunctions and operator mistakes. . . .

[C]omputerization greatly amplifies an error's effect,

and correspondingly intensifies the need for prompt

correction; for inaccurate data can infect not only one

agency, but the many agencies that share access to the

database.

514 U.S. at 26 (Ginsburg, J., dissenting). Similarly, Justice

O'Connor emphasized,

In recent years, we have witnessed the advent of

powerful, computer-based recordkeeping systems that

facilitate arrests in ways that have never before been

possible. The police, of course, are entitled to enjoy the

substantial advantages this technology confers. They

may not, however, rely on it blindly. With the benefits

of more efficient law enforcement mechanisms comes

the burden of corresponding constitutional

responsibilities.

_________________________________________________________________

7. Demko and Gardner intended to arrest Banks. But the County

intended that the individuals identified by the warrant-issuing system be

arrested. In this case, the person was Berg. Thus the County

intentionally seized Berg through means it intentionally applied.

21

Id. at 17-18 (O'Connor, J., concurring). We would add that

widespread computerization carries with it the ability and

responsibility to institute more effective safeguards against

human error than existed in the past.

The Bryan County Court noted that no pattern of

violations would be necessary to show deliberate

indifference where it was obvious that a policy or custom

would lead to constitutional violations. What is obvious in

the field of technology is determined under an evolving

standard. In this case, Allegheny County may have been

liable for Raymond Berg's arrest through deliberate

indifference to the obvious danger of such an arrest.

Whether or not Allegheny County is ultimately found to

have been deliberately indifferent in this case, this tragedy

will never again be novel. Allegheny County is on notice of

ICIS's shortcomings and at least one of the dangers of

using compartmentalized computer systems without viable

failsafes.

VII. Conclusions

For the reasons given, the judgment of the District Court

will be affirmed as to Defendants Gardner and Demko and

reversed as to Defendants Wolfgang and Allegheny County.

We will remand for further proceedings consistent with this

opinion.

22

MANSMANN, Circuit Judge, concurring in part and

dissenting in part.

I respectfully concur in all parts of the court's opinion

except Part IV. In Part IV, I differ only with respect to

defendants Demko and Gardner, which the majority

addresses in subparts B and C, respectively. I would

reverse this portion of the District Court's summary

judgment and remand because, in my view, there remains

a genuine issue of material fact as to each of these

defendants.

I take issue with the court's conclusion that Demko did

not intend to cause Berg's seizure. First, Demko's state of

mind at the time she processed the warrant is not clear on

this record. Demko's statement that "Berg and Bank, I'm

sorry, looked very close to me," could be read in two

different ways. She could have meant that the name"Berg"

looked so similar to the name "Banks" that she did not

notice the wrong name was on the screen. Alternatively, she

could have meant that she knew Berg's name appeared on

the screen rather than Banks', but assumed the error was

in the warrant request, not the computer system. In other

words, Demko could have concluded that Gardner had

intended to request a warrant for Berg, but inadvertently

wrote down Banks' name instead. Thus, Demko's state of

mind remains a jury question.

In addition, even if we assume that Demko did not notice

discrepancies between the information displayed on the

screen and what appeared on the information sheet at the

time she typed in th