The opinion
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 21-2513
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MARKO DEMASKE,
Appellant
v.
BRANDON C. BONIN
____________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 2-19-cv-00426)
District Judge: Honorable Marilyn J. Horan
____________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
April 29, 2022
Before: HARDIMAN, RENDELL and FISHER, Circuit Judges.
(Filed: May 17, 2022)
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OPINION*
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FISHER, Circuit Judge.
Marko Demaske brought suit for malicious prosecution against Pennsylvania
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
Wildlife Conservation Officer Brandon C. Bonin for charging Demaske with violations
of Pennsylvania game laws. The U.S. District Court for the Western District of
Pennsylvania granted summary judgment for Officer Bonin. It concluded Demaske failed
to show a genuine issue of material fact as to whether Officer Bonin initiated criminal
proceedings without probable cause or acted maliciously. We agree Officer Bonin had
probable cause to bring criminal proceedings against Demaske, so we will affirm.1
A malicious prosecution claim under 42 U.S.C. § 1983 requires a plaintiff to
satisfy five elements. Officer Bonin concedes three of them: he initiated proceedings
against Demaske, the proceedings ended in Demaske’s favor, and Demaske suffered a
sufficient deprivation of liberty.2 The other two elements are in dispute on this appeal:
whether “the defendant initiated the proceeding without probable cause,” and whether
“the defendant acted maliciously or for a purpose other than bringing the plaintiff to
justice.”3 For Demaske, failure on any element dooms his malicious prosecution action.
1
The District Court had jurisdiction under 28 U.S.C. §§ 1331 (federal question)
and 1343 (federal civil rights). We have jurisdiction under 28 U.S.C. § 1291 (final
decision). We exercise plenary review over a district court’s grant of summary judgment.
Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 265 (3d Cir. 2014). We view the facts
and draw all reasonable inferences from those facts in the light most favorable to the
nonmoving party. Id. We will affirm if there is no genuine dispute of material fact, and
the movant is entitled to judgment as a matter of law. Id.
2
See Halsey v. Pfeiffer, 750 F.3d 273, 296–97 (3d Cir. 2014). The charges
required Demaske to post a fifteen-thousand-dollar cash bond, but they were eventually
dismissed by the Greene County Court of Common Pleas, which concluded the
government had failed to establish a prima facie case against him.
3
Id. at 297 (quotation omitted).
2
We look first at probable cause.
In assessing probable cause, we ask whether a reasonable officer could have
brought the charges that Officer Bonin filed against Demaske.4 Probable cause requires
only a reasonable belief in guilt, a significantly lower evidentiary threshold than required
for conviction.5 Although typically a question for a jury, a district court may find
probable cause as a matter of law if the evidence viewed in the light most favorable to the
plaintiff supports the existence of probable cause.6
In October 2017, the Commonwealth of Pennsylvania, through Officer Bonin,
filed a thirty-one-count criminal complaint against Demaske and his son, John Demaske.
The complaint charged Demaske with taking or possessing (or aiding or abetting the
possession of) thirteen whitetail deer in excess of hunting limitations during the 2015
season;7 unlawfully taking or possessing sixteen sets of whitetail deer antlers and one
mink;8 and failing to report a whitetail deer harvest.9 The Pennsylvania season limit is
one deer,10 and both deer hunting and mink trapping require specific licenses.11
Officer Bonin had probable cause to bring charges against Demaske. In November
4
See Harvard v. Cesnalis, 973 F.3d 190, 199–200 & n.3, 203 (3d Cir. 2020).
5
Wright v. City of Phila., 409 F.3d 595, 601–02 (3d Cir. 2005).
6
Sherwood v. Mulvihill, 113 F.3d 396, 401 (3d Cir. 1997).
7
See 34 Pa. Cons. Stat. § 2321.
8
See § 2307.
9
See § 2323.
10
58 Pa. Code § 139.4; 45 Pa. Bull. 2601–02 (May 30, 2015).
11
See 34 Pa. Cons. Stat. § 2705.
3
2015, Pennsylvania game authorities received a tip from a confidential informant who
reported seeing a number of whitetail deer in a shed on one of Demaske’s properties in
Jefferson, Pennsylvania. Officers visited the property and talked to Lonnie Starcher, who
rented the shed from Demaske. Inside the shed, they found eight sets of deer antlers with
wet blood and moist brain matter still attached—evidently fresh kills. Starcher stated that
John Demaske, driving his father’s truck, had brought the racks to the shed. Starcher gave
the following statement: “[John] told me his dad, Marco [sic] Demaske, told him to bring
them here because his dad wanted them out from Marcos [sic] house.”12
The next day, officers interviewed John Demaske, who confessed to some illegal
hunting and to giving unlawfully taken deer meat to another of Demaske’s renters living
on Icebox Road. Pennsylvania game authorities then seized thirty pounds of deer meat
from the Icebox property. They subsequently obtained a search warrant for a tavern
owned by Demaske’s mother, where both Demaske and his son were living along with
several other boarders. The officers seized roughly twenty-five packages and bags of
frozen meat, further deer antlers, and one frozen mink pelt. DNA analysis revealed the
meat originated from at least fourteen deer.
The foregoing facts and circumstances suffice for a reasonable officer to conclude
that Demaske and his son were illegally hunting game and hiding the kills on their rental
12
App. 309.
4
properties.13 Demaske responds the officers did not have probable cause to suspect he
“owned” any of the meat or racks.14 He claims they were either gifted to his family or
belonged to the tavern’s other boarders. But the relevant statutes forbid the mere
possession of—or even just aiding, abetting, or attempting to possess—unlawfully taken
game.15 Even construing reasonable inferences in Demaske’s favor, the undisputed facts
show a reasonable officer could have charged him with the relevant violations of
Pennsylvania game laws.
Based on the above, the District Court did not err in concluding Demaske failed to
establish a genuine question with regard to the existence of probable cause. Because one
of the required elements of malicious prosecution is lacking, we need not consider
whether the District Court erred in finding an absence of malice. We similarly leave
unaddressed Officer Bonin’s argument that he is entitled to qualified immunity. We will
affirm the District Court’s grant of summary judgment for Officer Bonin.
13
See Dempsey v. Bucknell Univ., 834 F.3d 457, 467 (3d Cir. 2016).
14
Appellant’s Br. at 13.
15
34 Pa. Cons. Stat. §§ 2307(a), 2321(a); see also § 102 (defining “possession”
broadly). As for illegal hunting, § 2323, the volume of deer meat and antlers seized from
the tavern permits a reasonable inference Demaske failed to report at least one kill.
5