*1 No. 04-2542. uniformly testified Kathryn’s teachers as a came across she hearing that Appeals, of States Court United teenager, social, relaxed bubbly, Third Circuit. tes- Arnhold, psychologist, the school Mrs. 8, 2005. March Argued “sup- “nothing” to that she knew tified any type [Kathryn] had fact that port 25, 2005. Oct. or disorder problem mental a serious Moreover, tes- officials school time.” not told had the Cerras tified for anxi- being treated that she was
school see no Accordingly, we ety depression. court to have substi- the district reason for for that of the SRO. judgment tuted its CONCLUSION reasons, we conclude these For all of IDEA’S complied the District requirements. and substantive procedural judgment be- we reverse Accordingly, court with to the district low and remand in favor judgment enter instructions District. GILLES; Timothy James G. Appellants Petit DAVIS, Gregory Indiana Uni Sergeant Department; versity Officer Police Goenner, Christopher Indiana Uni D. Terry Ap versity Department; Police Life, Director, polonia, Student Pennsylvania; University of Indiana Ed.D., Luckey, Associate H. Rhonda Affairs of Student President Pennsylvania; University of Indiana Montgomery, Director William University Safety, Indiana Public Pennsylvania.
I. train- religious with no formal
Although self-styled “campus- ing, Gilíes is James college evangelist” appeared who has country across the since 1982. campuses “big what he calls the preaches against He sex, booze, and rock and four”—“drugs, roll.” noon, 5, 2001, October
Around Considine, Jr., (Argued), began preaching open in the appeared and J. Michael Grove, busy open area air at the Oak Chester, Pennsylvania, Appel- West public campus on the Indiana Uni- lants. him versity Pennsylvania. With Neuhauser, (Argued), Sarah Gregory R. “Campus members of the twenty-five some Petit, including Timothy Attorney Ministry,”1 General Yerger, Office C. on the evils preached video-camera. Gilíes *5 Pennsylvania, Harrisburg, Pennsylvania, sex, drinking, and homosex- pre-marital Appellees. for a District estimated uality. The Court gathered.2 students crowd of 75-100 SCIRICA, Judge, Chief ROTH Before manner, Gilíes accosted provocative In a FUENTES, Judges. and Circuit crowd, that Indiana Univer- preaching body sity Pennsylvania’s student was THE OPINION OF COURT “fornicators,” “whores,” “drunken full of sex, “drunkards,” devils,” “drugs, and little SCIRICA, Judge. Chief booze, His rock and roll freaks.” and from manner drew reactions speech and damages rights action for In this civil an core at apple One threw the students. plaintiffs under U.S.C. your fucking “get shouted Gilíes. Another disorderly on the conduct arrested campus.” This set off some God off our Pennsyl- University of of Indiana campus man if he asked the name-calling. Gilíes vania, At in this university. issue a state retort, communist, a which drew the ar- suit is whether First Amendment minded man.” Gilíes “you’re a small qualified entitled to resting officers are flunky.” “high another a school called resolu- immunity. Also at issue whether he approached to tell Gilíes When someone Pennsylva- charge a criminal under tion of classes, him called interrupting Gilíes Disposi- Rehabilitative nia’s “Accelerated responded, The man “cigarette breath.” § 1983 subsequent bars a program tion” belittling me. It is Goddamn “don’t be granted defen- The District Court claim. preach ... You will campus policy on all claims. We summary judgment re- dants are in session.” Gilíes while classes will, torted, I devil.” yes “oh affirm. will light most Campus We the events in deposition, 2. recount According Gilíes' nonmoving party. this In favorable to the Ministry and source of is his “business” sole case, videotaped plaintiffs the inci- one pro- a employment. He states that it is sole accuracy dispute parties do not its dent. The entity. non-profit a prietorship, not rely upon we it. tight more animated in The crowd became and were not removed for a few against sought physician invective homo- hours. He never out a response to Gilíes’ for treatment. cautioned the students to sexuals. Gilíes the homosexuals out are [because] “watch charged disorderly Gilíes was with con- campus” pronounced you after on this duct, disorderly failure of persons to dis- than a “nothing is lower lesbian.” perse, trespass, violating defiant riot and that “homosexuals and Gilíes warned lesbi- (he Pennsylvania’s Wiretap Act had re- for hell” and that “there is ans are headed police using corded the incident with the a a lesbian ... thing no such as Christian dictaphone pocket). hidden his He was homosexual.” One woman Christian [or] County taken to the Indiana Correctional was a volunteered she Christian lesbi- Facility. days Four later on October tone, pejorative taunting, an. took a $5,000 posted he bond and was “oh, you my, ma'am are most confused. released.3 she’s a lesbo. She thinks Christian She’s Petit, Timothy who videotaped Gilíes’ lesbian for Jesus.” Gilíes asked the wom- activity, was also arrested. Officer Goenner an, you lay dogs? you with “do down Are confiscated his video-camera at the di- bestiality you lover? Can be a bes- rection of Officer Davis. Petit was tiality lover and Christian also?” This arrest, charged resisting disorderly engendered angry responses from the conduct, disorderly and failure of persons crowd, Gilíes, including one who shouted at disperse, custody was released from know, your “I don’t ask mom.” day. later that Petit entered into the “Ac- celerated Rehabilitative Apparently, campus Disposition” someone called the *6 (“ARD”) program, permits expunge- which police, Sergeant Gregory and Davis and ment of the criminal upon record Christopher Officer of success- Goenner completion ful of a probationary term. University Pennsylvania Indiana of police responded reported force to the “near riot arrests, Hoffman, Bradley After the a taking place.” Davis heard call Gilíes one Campus Ministry, member of inquired person and a “lesbian” “homosexual” and university with the obtaining about a solici- said that some members of the crowd com- permit. tation Hoffman submitted a “Re- him that plained singling Gilíes was out quest/Permit Campus Space for Use of for individuals, calling them names. After Solicitation” “pass Gospel out [ ] Tracts” approached Davis Gilíes and had a brief and Gospel.” permit “shar[e] The conversation, he arrested Gilíes for disor- rejected by Terry Appolonia, di- derly conduct, among charges. other rector of the Center for An Student Life. Davis handcuffed Gilíes and escorted him Appolonia’s supervisor, e-mail from Rhon- police to the car. (Associate Luckey da President of Student Affairs), that “grave advised she had con- transported Davis Gilíes to Indiana Uni- cerns” about group the behavior of the versity Pennsylvania’s Department of given the earlier incident. Safety building, Public where he was held for three to four hours. Gilíes At preliminary hearing contends he on November complained that the handcuffs were too a District Justice held Gilíes on permit deposit Under the Rules of Criminal money of a sum of not to Procedure, percent ten of the bond amount exceed of the full amount of the 10% mone- tary be sufficient for release. Pa. R.Crim. P. condition if he or she determines that 528(c) ("After determining the deposit amount of the such a is sufficient to ensure de- condition, monetary authority may appearance the bail compliance.”). fendant’s and § 1291. The stan- conduct, under 28 failure tion U.S.C. disorderly charges disorderly plenary grant over a disperse, dard of review is disorderly person trespass. summary judgment. and defiant Camiolo conduct motion violating Pennsyl- Co., and charges of riot Fire & v. State Farm Cas. On Act were dismissed. Wiretap (3d Cir.2003) (internal
vania citations 27, 2002, of Common the Court December omitted). grant of The District Court’s Pennsylvania, County, of Indiana Pleas appel- in favor of the summary judgment of habeas for a writ petition granted Gilíes’ if it appears be affirmed lees will remaining all the and dismissed corpus any mate- no issue as genuine “there is charges. criminal they are entitled to rial fact and un- following claims of law.” Id. brought judgment as matter 1983:(1) prosecution malicious der (2) Davis, arrest false
against Sergeant
III.
(3)
Davis,
excessive
against Sergeant
Davis,
on
Sergeant
based
against
force
A. Gilíes’ Claims
that the handcuffs
assertion
and Petit
unnecessarily tight. Gilíes
1. First Amendment
1983:(1)
claims under
brought
these
malicious
respect to Gilíes’
With
by Officers
violations
First Amendment
arrest,
false
and First
prosecution,
(2)
Goenner,
First Amendment
Davis and
claims, the District Court held
Amendment
Luckey,
claim-
by Appolonia
violations
quali
was entitled to
Sergeant
Davis
University
Pennsylvania’s
Indiana
ing
“[Gjovernment officials
immunity.
fied
viewpoint based and
policy was
permit
gener
discretionary functions
performing
standardless,
unbridled discretion
vesting
liability
from
for civil
ally are shielded
(3)
Luckey, and
First
Appolonia
their conduct does
damages insofar as
by William Mont-
Amendment violation
statutory or con
clearly
violate
established
Safety who
Director of Public
gomery, the
a reasonable
rights of which
stitutional
University of Penn-
the Indiana
supervises
have known.” Harlow
person
would
for failure
sylvania police department,
*7
800, 818, 102 S.Ct.
police
Fitzgerald,
and officials
457 U.S.
train and monitor
(1982).
making.
2727,
qualified
permit decision
L.Ed.2d 396
charged with
73
declaratory
requested
“gives ample
and Petit
room for
immunity
Gilíes
standard
University of Penn-
that Indiana
judgment
by protecting all but
judgments
mistaken
in violation of
policy is
sylvania’s permit
incompetent or
those who
plainly
the
addition,
In
the First Amendment.
the law.” Hunter v.
knowingly violate
against
punitive damages
sought
and Petit
224, 229,
534,
112 S.Ct.
Bryant, 502 U.S.
replevin
Sergeant Davis and
state-law
(internal
(1991)
quotations
victed before for similar In conduct. “near riot situation.” briefly spoke He factually incident, similar the Indiana with members of the crowd about what of Appeals upheld disorderly Court con Davis, transpired. had According to mem duct conviction preaching to a crowd at reported bers of the crowd himto Indiana, a festival. See Gilles v. ... picking “Gilíes was people out of the Dist.1988). N.E.2d (Ind.App. 222-23 individually crowd calling and them names Holding it “readily apparent” that questioning and their identity, ques sexual words, Gilíes fighting used the court fo tioning their sexual orientation.” We see “whores,” cused on his use of the words why no reason Davis’ reliance on their “queers,” “drunkards,” people,” “AIDS accounts was unreasonable. and “scum of the earth.” The court rea placed soned that “Gilíes his Taking listeners account of the entire categories activity, defined episode sexual sexu and the information pos Davis orientation, al sexually time, transmitted sessed at the we hold Davis is enti disease. language This was inherently qualified tled to immunity it because would likely provoke a violent reaction.” Id. not have been clear to a reasonable officer event, any at 223. In that there is more that Gilíes did engage disorderly noted, Gilíes, reviling 6. As pie in addition to striking student core at his briefcase. Two body general, Gilíes initiated Gilíes, and ex- persons other "get your shouted at changed insults with individual students. As fucking campus” "[you’re God off our a] noted, person he asked one if he was a com- small minded man.” There was a confronta- "high munist and if he was a another school person "cigarette tion with the Gilíes called flunky.” interrupting When told he was breath,” who, upset, approached up class, "cigarette Gilíes called the interlocutor close, tie, saying, you, "who are brown breath” and "devil.” The crowd's reaction ugly pants? belittling Don’t be me. It is varied, notably but included some hostile re- campus policy.” Goddamn actions. person ap- An unidentified threw an
207 cases, summary In these tight. were too of Common the Court While conduct.7 quali- an officer who claims to for judgment insufficient Gilíes’ held Pleas where, “after conduct, appropriate not immunity it does is fied disorderly constitute arresting disputes offi- in favor of the the all factual resolving that necessarily follow Quali- arrest. force was for the officer’s civilly liable the use plaintiff, [ ] are cers judg- mistaken circum- immunity encompasses the objectively reasonable under fied incompetent. Tate, 772, plainly not 777 that are F.3d Kopec v. 361 ments stances.” 229, 224, omitted). (internal 502 U.S. Bryant, (3d Cir.2004) v. quotations Hunter (1991). 534, Under grant of sum- reversed Kopec, In we the are enti- immunity, police officers qualified that the cautioned mary judgment, but for of deference a certain amount tled to do overread as we not be “opinion should They in the field. they make decisions to a floodgates the open to intend judgments—in “split-second make must plain- Id. The handcuff claims.” torrent of uncertain, tense, are that circumstances in extreme he was tiff in contended Kopec Katz, v. evolving.” Saucier rapidly to the have been obvious would pain, which 204-05, repeated In to officer. addition arresting (2001). The reasonableness L.Ed.2d al- plaintiff pain, complaints about judged be officer’s belief should “began to ground and to the legedly fell not with perspective, on-scene that from Furthermore, al- plaintiff faint.” Id. Id.; hindsight. see vision of perfect damage one nerve leged permanent D’Alene, 339 City v. Coeur Graves also him wrist, treated for surgeon for which Cir.2003) (9th (“The n. F.3d Id. at 774. one year. over recognizes immunity qualified defense matters two contends Gilles cause assessments probable make officers alleged to his alerted Davis should have and therefore pressure in the field under First, loudly sang notes that he he pain. leeway, permitting the officer affords he custody, part, while religious songs resulting indi- without mistake reasonable pain. Even mind off of to his officer, says, law take when the liability of the vidual objectively true, necessarily established.”) is not if it clearly is not singing Gilíes’ to deduce from reasonable 2. Excessive Force pain. him causing that the handcuffs Furthermore, pur that the Gilíes testified granted sum Court District re to singing “primarily pose of his on judgment to defendants mary being persecut- I that was joice in the fact that his force claim handcuffs excessive to train liability a failure on But to establish Sergeant holding Davis to In addition identify plaintiffs "must claim under immunity, we hold qualified entitled training has a specific provide failure Amendment claim Petit’s First Gilíes's injuries and must their with causal Montgomery, Di- nexus against William fails specific of that that the absence supervises the demonstrate Safety who of Public rector reasonably to reflect be said training can Pennsylvania police de- University of Indiana alleged indifference whether authority may deliberate supervising A partment. deprivations occurred.” Reitz police constitutional failing train under liable Bucks, County to train demon- the failure when officers Cir.1997). pled the have not and Petit to the constitu- deliberate indifference strates against a claim necessary to state elements rights whom the officers those tional officers of contact, Montgomery for failure train notwithstanding the into come police University of the Indiana immunity at the scene. of an officer qualified against Accordingly, claim Harris, department. their City Canton See (1989). Montgomery fails. 103 L.Ed.2d *11 righteousness’ ed for sake for preaching a result of University Indiana Pennsyl- of Second, Gospel.” Gilíes contends he permit vania’s policy or the application of complained pain of to unidentified officers policy. As the found, District Court allegedly passed who the information to Gilíes and Petit applied never nor for Davis, who allegedly instructed them not they denied a permit. Gilíes Petit adjust the handcuffs. Unlike Kopec, appear argue that Bradley Hoffman’s plaintiff where the fell to ground after fact application standing confers pain, fainted with obvious visible indicators on them. argument is meritless. (other pain were absent than his Under a First Amendment excep alleged complaint that the handcuffs were tion to the rules, traditional standing liti tight). too As the District Court noted on gants permitted “are to challenge a statute viewing arrest, videotape not because them own rights of free ex demonstrated no expression signs or pression violated, are but because of a discomfort at the time he was handcuffed. judicial prediction or assumption that the Nor did Gilíes seek or receive medical very statute’s existence cause others treatment after the fact. The only doctor not before the court to refrain from consti Gilíes ever saw relating to this incident tutionally protected speech expression.” 13, 2004, was on April two years and a half Oklahoma, Broadrick v. 601, 612, after the time, arrest. At that Gilíes did (1973). This treatment, seek medical but rather an exception is inapplicable to Gilíes and Pet- “independent medical evaluation.” The it. The policy they challenge does not plaintiff in Kopec permanent alleged nerve unduly restrict First Amendment free damage for which hand-surgeon had doms, nor does it deter third parties from treated him for year. over case, In this engaging protected expression. By its we hold the facts alleged constitute insuffi- terms, it merely allows the university to cient evidence as a matter of law for exces- time, “regulate manner, and location of sive force handcuffing. any and all solicitation activities on cam pus” so as to ensure such activities do not 3. Standing “create undue noise or disruption or inter Gilíes and Petit contend the fere the activities that normally occur Indiana University of Pennsylvania permit in the area in question.” Accordingly, we or registration policy application and its by hold Gilíes and Petit lack standing to chal Appolonia and Luckey violated their First lenge permit policy. rights. Amendment The District Court held Gilíes and Petit had standing no to B. Petit’s Claims bring challenge they because had not Timothy sought Petit damages un applied a permit. der against Davis, Sergeant Officer
The traditional rules of standing Goenner, Indiana University Pennsylva require plaintiff that the has suffered an nia Appolonia administrators Luckey, “injury fact,” which is “concrete and and William Montgomery, the Director of particularized” and “actual or imminent.” Public Safety supervises who the Indiana Lujan v. Wildlife, University police depart Defenders of 555, 560-61, 119 L.Ed.2d ment. The District Court held that Petit’s (1992). The District plain Court held claims were barred under Heck Hum tiffs failed to show they personally suf phrey, U.S.
fered some actual or (1994). threatened injury as L.Ed.2d 383 Heck, Under
209
noted, §
“creates a
Heck
1983
validity of
As
impugns the
action that
§ 1983
483,
liability.”
tort
species of
cannot
underlying conviction
plaintiffs
the
Thus,
to
common law bars
S.Ct. 2364.
has
114
conviction
unless the
maintained
be
§
under
1983.
brought
to
apply
claims
suit
impaired
or
appeal
on direct
been reversed
Heck,
mali
the Court held a
1983
Id. In
District
As the
proceedings.
by collateral
subject to the
claim was
prosecution
cious
noted,
charges
the
resolved
Petit
Court
requirement
plaintiff
that the
law
common
Pennsylva-
entering into
him
against
proceeding
criminal
termi
prior
the
show
Disposi-
nia’s Accelerated Rehabilitation
484, 114
favor.
Id. at
in his
nated
proba-
a successful
After
program.8
tion
requirement,
purpose
The
charges
expunged
the
tionary period,
parallel
to avoid
explained,
the Court
is
The District
record.
from his criminal
Id.
guilt.
and
litigation
probable
cause
however,
Heck
found,
that under
Court
from suc
the claimant
prevents
also
It
Program
ARD
is
under the
expungement
been
having
in a tort action after
ceeding
plaintiff.
to the
a result “favorable”
prose
underlying
in the
criminal
convicted
is
criminal defendant
aWhen
cution,
to the
would
counter
which
run
in
participate
to
and decides
selected
two con
against creating
judicial policy
trial and
avoids
program,
ARD
he
arising from
same
flicting resolutions
time,
expunge
jail
receives
potential
and
Id.
transaction.
exchange for suc
record in
ment of the
applicable
are equally
These reasons
period.
completing a
cessfully
probationary
disorderly
underlying
context. Petit’s
this
seq.;
P.
et
Pa. R.Crim.
300
generally
See
First
his
charge and
conduct
Bader,
92, 458
Pa.Super.
v.
Junod
answering the
require
claim
Amendment
(1983).9
The Comment
253-54
A.2d
Petit’s behavior
question—whether
same
Rules of
Rule 312 of the
to
disorderly
activity or
protected
constituted
“accep
Procedure states
Criminal
If ARD
not constitute
does
conduct.
intend
is not
program
into an ARD
tance
termination,
in the
success
favorable
conviction,”
but “it
ed to constitute
litiga-
parallel
claim would result
§ 1983
a conviction for
statutorily
as
construed
activity
Petit’s
constitut-
over whether
tion
on subse
sentences
computing
purposes
in a
could result
disorderly conduct and
ed
P. 312
R.Crim.
convictions.” Pa.
quent
arising from
resolution
conflicting
(Comment).
pro
ARD
By entering the
conduct.
same
to
right
his
defendant
gram,
waives
concurring
time,
recognize that
innocence,
We
at the same
but
prove his
Rem-
Spencer
dissenting opinions
and
guilt.
does not admit
attorneys admin
guilty
rehabilitation. District
pled
deposition,
stated he
his
Petit
8. At
ap-
discretion
program
never
and have
disorderly conduct
that he
the ARD
ister
Despite Petit’s
grant it for a
pealed
request
that "conviction.”
court
whether
characterization,
Court and
the District
v. Arm
given
Commonwealth
defendant.
into the ARD
that Petit entered
parties
(1981).
state
506,
has no recourse
habeas statute.
Because the
ap
of Heck
*13
19-20,
(Souter, J.,
118
See
at
S.Ct. 978
plies,
id.
Petit
§
cannot maintain a
1983 claim
21,
(Gins
at
concurring); id.
118
978
unless
completion
successful
of the ARD
J.,
burg,
concurring);
8,
id. at 25 n.
118 program constitutes a
of
“termination
the
(Stevens, J., dissenting).
S.Ct. 978
But
prior
proceeding
criminal
in favor of the
opinions
these
do not affect our conclusion
Heck,
accused.”
485,
512
U.S.
114 S.Ct.
to
applies
Heck
Petit’s claims. We 2364. We have not had occasion to ad
undermined,
doubt that Heck has been
but
directly.10
dress this issue
Our trial courts
to the
its
validity
extent
continued
has
have held that ARD is not a termination
question,
join
been called into
we
on this
for purposes
favorable
of bringing a subse
point, our sister
of
courts
appeals
the
§
quent
prosecution
1983malicious
claim.11
First and Fifth Circuits in following the
We find
opinions
instructive
from the
Supreme Court’s admonition “to lower fed
Second and Fifth Circuits that have ad-
eral courts to
directly
follow its
applicable
dressed whether similar pre-trial proba-
precedent, even if that precedent appears
tionary programs are a favorable termi-
by pronouncements in
weakened
its subse
nation
bring
sufficient to
a
decisions,
subsequent
quent
civil
and to leave to the Court
Otarola,
suit.
In Roesch v.
prerogative
‘the
of
980 F.2d
overruling its
850
own deci
”
(2d
Rivera,
Cir.1992),
Figueroa
77,
sions.’
v.
the Court of Appeals
for the
(1st Cir.1998)
81 n. 3
Second
Agostini
Circuit
(citing
v.
held that dismissal of a
Felton,
203, 237,
1997,
Connecticut criminal prosecution under its
(1997));
138
391
L.Ed.2d
see Randell v.
pretrial
“accelerated
pro-
rehabilitation”
Darby
Borough,
Cain v.
In
F.3d
377
tween frivolous and
litigation,”
meritorious
Cir.1993),
Humphrey,
decided before Heck v.
indiscriminately curtailing both. We stated:
validity
we
the
examined
of coupling the ARD
designed
”[w]hile ARD
part
prompt-
to
program
mandatory
ly
with a
dispose
release of civil
charges,
of minor criminal
thus
rights claims. Under a policy
eliminating
costly
Dela-
the need for
and time-con-
Office,
trials,
County
suming
District Attorney’s
ware
criminal
it was never intended
Attorney
dispose
District
would not
approve
rights
the ARD
of civil
claims.” But Cain
program
petitioner
agreed
unless the
Humphrey
first
to a
decided before Heck v.
and did
rights
of all civil
against
release
not
consider whether
claims
ARD was a favorable
Cain,
arresting
petitioner
officers.
In
termination of the
charge
criminal
sufficient
waiver,
agreed
bring §
to this
but
successfully
a
after
1983 claim.
program,
completing
brought
she
§
against
1983 suit
municipalities,
three
Hackett,
11. See Nardini v.
2001 WL
respective police departments,
arresting
(E.D.Pa.
2001)
at *4
Sept.19,
(holding ARD
We
agreement
officers.
held that the release
program not a termination
plain-
favorable
was unenforceable under
Town Newton
purposes
tiff for
bringing
§
1983 mali-
Rumery, 480 U.S.
prosecution claim);
cious
Davis v. Chubb/Pac.
(1987).
Rumery,
L.Ed.2d 405
Under
an
Group,
(D.C.Pa.
Indem.
F.Supp.
agreement releasing § 1983
1980) ("an
claims would be
disposition
A.R.D.
[is not] a
unenforceable "if the interest
its
enforce-
termination”);
favorable
but see Williams v.
outweighed
ment is
in the
by a
Nonistown,
circumstances
Borough
1995 WL
public policy
harmed
(E.D.Pa.
enforcement of the
1995)
July
*1 n. 3
(declining to
agreement.” Id. at
claim.12 F.3d 455-56 Taylor Gregg, In to maintain defendant ting (5th “a criminal Cir.1994), for the Appeals the Court of advantage taking action after adopted Singleton’s reason- section Fifth Circuit rehabilitation, program, diversion or- holding “pre-trial that a ing, accelerated Like a sec- a favorable termination. offenders der” is not give first-time intended who success- program, ARD offenders desirable chance, become less would ond program Texas’ diversion fully complete and less desirable to retain for the State charges. their dismissal of receive savings courts to use because for the *14 are held that “criminal defendants court dismissing the criminal resources from mali- foregoing potential their effectively in consumed resolv- would be proceeding exchange in for con- prosecution suit cious Id. at 853. claims.” the constitutional ing criminal of their ditional dismissal City upon Singleton relied Roesch of charges.” Id. at York, 185, 193-95 Cir. New ARD is a court- program The 1980). the court considered Singleton, In Davis, 493 compromise. See supervised under New York Criminal a mechanism 92; F.Supp. at see also Commonwealth program, the ARD similar to Procedure Kindness, A.2d 1346 Pa.Super. of “adjournment contemplation in termed (1977) criminal (describing termination of Proc. Law See N.Y.Crim. dismissal.” a court- program ARD as charge under adjournment in con an § 170.55. Under Nevertheless, compromise). supervised dismissal, after the accused of templation several bur program imposes ARD the charges the probationary period, serves a not con upon the criminal defendant dens the ad The court likened are dismissed. innocence, including proba sistent with contemplation in of dismissal journment term, imposition ... tionary “restitution decree, reasoning that both leave a consent costs, of a reasonable imposition But guilt. Id. at 193. open question the of adminis relating expense to the charge equate dismissal with the court refused such other condi tering program, and the significance court found acquittal. Id. The by parties.” the may agreed tions as calling it an period, probationary the 316(a). agree with P. We Pa. R.Crim. “period of observation unfavorable constitutes an probation Singleton acqui prosecutor’s the whether determine judicially imposed period “unfavorable” justified.” adjournment in the escence proba in which the limitations on freedom Regarding expungement Id. at 194. terms program’s violation of tioner’s court charge, to the records related Sin prosecution. in criminal may result might stigma Viewing these found this erased “the at 193-95. gleton, 632 F.2d défendant,” pro ARD we hold the together, borne factors otherwise be under a favorable termination juvenile gram delin is not way laws treat the same ARD in the acts, participation Heck.13 Petit’s committed criminal quents who have pay a one tionary period to the court pretrial reha- “accelerated 12. Connecticut's "participation fee.” Pennsylva- dollar hundred program is similar bilitation” program. Gen.Stat. Ann. ARD Conn. nia's (West strongest supporting the conten- factor Supp.1992). To earn dis- 13. 54-56e termination a favorable charges of related tion that ARD is and erasure missal of the pro- completion of the ARD program, the de- that successful Connecticut's records under criminal proba- gram results in dismissal successfully complete a fendant must program bars his 1983 claim.14 brought by plaintiff not in custody. Id. join S.Ct. 2364. I in the re- Conclusion mainder of majority’s opinion.15 reasons, foregoing For the we will af-
firm grant summary District Court’s I. Gilíes’ Arrest judgment dismissing Gilíes’ and Petit’s A. First Amendment violation claims. The essence of the majority opinion is that, though defendants have violated
FUENTES, Judge, Circuit dissenting in Gilíes’ First Amendment rights, part. law was not so clearly deprive established as to I disagree majority with the the officers of qualified immunity. I dis- police Gilíes, officers who arrested who agree I because believe that the officers speaking open an space public at a violated long-standing, princi- fundamental university, and speech whose was not like- ples of First Anendment law. ly to result in a peace, breach of the are qualified immunity. entitled to The officer qualify words, To fighting as who arrested Gilíes observed no conduct must either be likely intended and to incite *15 that amounted to a breach of peace. violence, or inherently likely to result physical fighting. I disagree also See Cohen that Petit’s First v. Amend Califor nia, 15, 20, 1780, ment claim 403 U.S. should be dismissed 91 under S.Ct. 29 (1971) (“There 477, 114 Heck Humphrey, v. 512 L.Ed.2d 284 U.S. ... S.Ct. is no show 2364, (1994), because, 129 L.Ed.2d ing anyone un that who saw Cohen was in fact Kemna, der Heck Spencer and v. violently aroused or that appellant intend 1, (1998), result.”); 140 L.Ed.2d Johnson, ed such a Texas v. Heck’s favorable termination 397, 409, rule cannot U.S. 105 L.Ed.2d applied (1989) to dismiss a 1983 claim 342 (“asking whether the expression charge expungement Assn, and of the arrest (S.D.N.Y. record. 2005 WL at *4 See Mar.21, Pa. R.Crim. P. 320. For 2005) the reasons (noting photography that noted, however, program we believe the ARD more than pur- mere aesthetic or recreational is not a favorable termination under Heck. poses enjoys some protec- First Amendment tion); York, City Baker v. New 2002 WL of suggested The District Court that even if 14. *5, 2002 U.S. Dist LEXIS claim, Heck did not bar Petit’s the First (S.D.N.Y. 26, 2002) ("It Sept. *19 is Amendment claim would fail nonetheless be- undisputed [plaintiff's] that photogra- street videotaping cause pro- does not constitute a phy expression[.]”). is First Amendment activity. tected First Amendment But video- taping photographing police or in the join majority's I opinion with re- performance public of their duties on proper- spect challenge to Gilíes’ of the Indiana Uni- ty may protected activity. be a See Smith v. versity (IUP) permit policy. I City Cumming, (11th 212 F.3d merely wish to add Cir.2000) that Gilíes has ("The no stand- First protects Amendment ing bring challenge permit his because the right gather information about what reasonable, policy is a public policy content-neutral public property, officials do on and regulates that specifically, right only, commercial solicitation pub- to record matters of interest.”). lic and therefore generally, Gilíes raises no photography More issue with re- spect videography permit or policy that has a whether the "may communicative or expressive purpose enjoys cause others not before some First Amend- the court to refrain protection. ment generally Bery constitutionally protected See City speech v. from or ex- York, (2d Cir.1996) New pression.” Oklahoma, (holding Broadrick v. 601, 612, that sale art photographs and protected are activities); Porat (1973). Cmty. Lincoln Towers point at some someone also suggests immi- that producing inciting directed is briefcase, hit likely apple to incite or an that and is threw action nent lawless action”) (internal quotation hardly noticeable on the but this event such produce F.3d omitted); Campbell, hardly physical an act of tape and was Johnson Cir.2003) (“Johnson’s words 199, 213 intimidation. possibly insulting, unpleasant,
were
police
suggest
does
that the
The record
to, nor
unwise,
not intended
they were
but
that the situation was “near riot”
were told
fight.”).16
they, cause
did
might break out. Howev-
fight
and that a
indication,
certain-
there is no
Here
er,
fight
that no
I think it is clear
that Gilíes acted with
ly
showing,
no
The students
actually likely to break out.
There-
violence.
provoking
intention of
want-
certainly angry with Gilíes and
were
fore,
speech
consider whether
we must
no
campus,
him off their
but there is
ed
very likely to result
nature
its
him
they intended to force
indication that
argue
Defendants
fighting.
physical
campus physically.
off of the
before
gathered
had
the crowd which
probably
were
police
defendants
police
riot when
verge
Gilíes was on
at the scene that
upon arriving
concerned
discern, from
I do not
officers arrived.
shouting
at each other
angry people
videotape
on the
little we can observe
what
name-calling. But
engaging in some
record,
verge
the crowd was on
on
recognizes
First Amendment
“the
court,
granted
which
As the state
of riot.
disorder
expressive
a certain amount of
noted,
Gilíes,
corpus to
a writ of habeas
society
in a
commit-
only
is inevitable
to Gilíes’
many
reacted
listeners
freedom,
must itself
ted to individual
but
simply
attentive or
“by being quietly
*16
would sur-
protected if that freedom
be
Besides
proceedings.”
the
laughing
Hill,
City Houston v.
vive.”
of
himself,
only noise comes from
Gilíes
451, 472,
96 L.Ed.2d
shouting
at Gilíes
individuals
the crowd
(1987).
many, the immediate
“[t]o
While
exchanges
in various heated
engaging
may
this freedom
often
consequence of
occasionally broke
him. The crowd
with
tumult, discord,
appear
only
to be
verbal
applause
support.
into
their
out
tjhese
utterance[,
are
and even offensive
stands near
videotape,
In the
Gilíes
of the
necessary
...
in truth
side effects
on a cam-
pedestrian
tree at a
intersection
process
enduring values which
broader
can
only
people
other
one
pus green. The
to achieve.”
permits us
open
debate
passing
tape
are those
see for most
Cohen,
24-25,
1780.
91 S.Ct.
walkway. The
pedestrian
him on the
by
case,
Indeed,
provoked ex-
in this
engaging Gilíes is
listening
crowd
in a democ-
actly
response
desirable
him, as there is
away from
some distance
him
en-
responded to
racy: students
space visible around
empty
considerable
important
argument regarding
gaging
majority describes
As the
Gilíes.
tolerance
religious
and sexual
issues
ap-
scene,
one individual
point,
at one
privacy.
personal
him,
confront
but
proached Gilíes to
benign
that however
argue
only briefly. Gilíes
Defendants
remained
individual
until the time that
up
walked
the crowd’s behavior
“cigarette-breath”
him
as he
called
arrested,
was so
notes,
language
his
Gilíes was
majority
the records
away. As the
especially
to show that
is
difficult
nec-
violence it
Speech that results in violence is not
'inherently'
arouse listeners
certain words
essarily inherently provocative, but in the ab-
sign
impending
any
violence.
sence of violence or
provocative that it was reasonable to as-
assault their sensibilities” so as to effec-
point
that at some
sume
violence would tively
Cohen,
censor dissidents.
403 U.S. at
show,
very
It is
break out.
difficult to
23,
whose peculiar vocation it is to
engage
are
captives
“[W]e
often
outsides
debate,
free and open
standing ready
“are
the sanctuary of
subject
the home and
to strike out physically at
may
objectionable
Cohen,
whomever
speech.”
at
U.S.
omitted).
clearly
independent knowledge of
had no
21,
Peo
(quotation
91 S.Ct.
students,
they
could
any of these
such
to the offen
exposure
want
ple who do not
“revealing”
he was
actual information
eyes or walk feel
can avert their
speech
sive
private
their
lives. Gilíes was clear-
“If there
about
at
most
speech
provocative
because
He
tian lesbo. She’s a lesbian
Jesus.”
it con-
of its content rather than because
her,
you lay
dogs?
asked
“do
down with
expect
tained words to which we would
bestiality
you
lover?
you
Are
Can
university
reflexively
students
to react
bestiality lover and a Christian also?”
be a
Nor were his words direct-
with violence.
ed to individuals under circumstances
constitutional authori-
government’s
to conclude that
police
would lead the
solely
protect
ty “to shut off discourse
likely
fight
individuals were
back
those
hearing
dependent
it is ...
others from
un-
Because his
physically.
privacy
that substantial
upon
showing
violence,
clearly did
likely to result in
it
in an essential-
being
interests are
invaded
A
words.”
reason-
“fighting
not constitute
Cohen,
ly intolerable manner.”
*18
it fell outside
officer would know that
able
Although outrageous
at
speech alleged in which he that most Qualified Immunity B. University Indiana (‘TUP”) long Notwithstanding the line Su- going were to hell for students above, majori- cited the degeneracy. preme The students he Court cases their sexual not on ty concludes that the officers were specifically, including called out the woman constitution- speech notice that Gilíes’ herself as a lesbi- who identified Christian im- an, ally protected. qualified To assess among those who chose to shout claim, examine not munity this Court must engage at him. Gilíes back Gilíes only clearly law that was established unlikely “the individuals were to strike out at alleged at the time of violation” but the in presence. Gilíes the officers’ In these also “the facts available the official at circumstances, the quick- officers acted too Kaltenbach, that time.” 204 F.3d ly arresting in shortly they Gilíes after Paff Cir.2000). Contrary to the Nothing they arrived the scene. saw or view, I majority’s believe the facts avail- justified heard that brief time his arrest. they able to the officers at the time that Even if the officers had a reasonable arrested and Petit Gilíes were sufficient to basis for believing that a breach of the put plaintiffs’ rights. them on notice of occur, peace might eventually their con- Admittedly, when officers Davis and Go- cern could not justify quick If arrest. emmer they arrived the scene had to the officers were worried that one more rely on their reports observations the Gilíes, might physically students assault report of witnesses. The incident suggests appropriate response would have been that most officers’ assessment of the situa- guard stand to ensure that no violence primarily tion was based on initial erupted. presence Their mere should report possible fight of a and their obser- have enough been to deter a breach of the shouting inflammatory vation of Gilíes lan- peace. It was not reasonable for the offi- guage above, explained at the crowd. As cers instead to ask permit Gilíes for a he prospect the officers could not infer the of did not need and then to arrest him. violence from the content of Gilíes’ alone. it rely Nor was reasonable to on III. Petit’s First Amendment Claim report possible fight the initial of a even I disagree with majority’s view that after arriving observing at the scene and the District properly Court dismissed Pet- purely engagement. Although verbal Offi- it’s claim under Humphrey, Heck v. reports cer Davis that he asked members U.S. of the crowd what happening (1994).17 Heck extended the common law spoke to who one witness identified herself principle that “civil tort actions are not as specifically someone affected appropriate challenging vehicles for
remarks, passed the short time that be- validity outstanding judgments criminal tween the officers’ arrival at the scene and 1983 damages actions that neces their suggests arrest of ques- this sarily require plaintiff prove tioning could not have thorough. been unlawfulness of his conviction or confine Moreover, the officers should have known 486, 114 ment.” Id. at S.Ct. 2364. only language remotely approach- ing fighting unlikely words was Court, result Like the District majority lawlessness because those who allegedly assumes that the favorable termination had been attacked volunteered for an in- rule Heck applies to Petit’s claim. But terview with Having just the officers. because Petit custody was not in when he identified police, themselves to the action, these filed his Heck ap- does not 17. Because videotaping Petit's claims are not barred protected un- expres- can constitute Heck, der the District Court should ad- have City sion. Cumming, See Smith v. *19 dressed the merits of his First Amendment 1332, (11th Cir.2000) (“The 1333 First claim engaged qualified immunity in a protects right gather Amendment to infor- analysis respect to his arrest. As the public pub- mation about what officials do on out, majority points the District Court was property, specifically, right lic to record wrong suggest that Petit's claim would fail interest.”). public matters of merely literally because he did speak; not
217 (internal er, J., reading concurring) quotation the best omit- ply to his claims. Under Kemna, ted). 523 Spencer of Heck and U.S. (1998), in Justice Souter reiterated his concur- apply termination rule does not favorable Spencer rence in that “Heck did not hold
where habeas relief is unavailable.
that a
in
prisoner
Spencer’s
released
cir-
explained
Justice Souter
this construc-
§
cumstances is out of court on a
1983
tion of the rule in his concurrence in Heck:
claim, and ...
it would be unsound to read
needlessly place
alternative would
[T]he
either Heck or the habeas statute as re-
rights
at risk the
those outside the
quiring any
Spencer,
such result.”
523
§
intersection of
1983 and the habeas
(Souter, J.,
at
U.S.
Id. at
con-
S.Ct.
This Court addressed a related issue in
curring).
Fauver,
Torres v.
F.3d
Cir.
2002).
Torres,
In
held that “the favor
we
pointed
lack
Justice Souter
out
courts
apply
able termination rule
does
authority
“plain language”
subvert
conditions,
implicate only
claims that
§of
1983 on the basis of a common law
duration,
attack,
prisoner’s
and not the fact or
of a
principle limiting
espe
collateral
incarceration.” Id. at
cially where it “would run counter
143. We observed
cognizable
claim
history
1983’s
and defeat the statute’s
Torres’
(Sout-
501, 114
purpose.”
applies
Id. at
S.Ct. 2364
unless the favorable termination
opinions
18. The
of the Court in both Heck and
tion of the favorable termination rule. See
Heck,
978;
suggest
Spencer
passing
Spencer,
do
that Justice
523 U.S. at
similarly
applica-
Scalia would not
limit the
“prison
which
not affect the overall
“do[]
a
rors
length
prisoner’s
of
fact
affect the
confinement”
length
prisoner’s
of the
be-
and,
confinement,
generally
per
more
they
even if successful
“would not
cause
Id.
seek habeas relief.”
who cannot
sons
necessarily result
in an earlier
release
the Court found
at 145. Because
incarceration,
hence,
not
do[]
from
to sanctions that affect
apply
rule does not
jurisdic-
of
upon
intrude
the ‘heart
habeas
confinement, we did
only the conditions
”).19
tion.’
question of whether
the broader
not reach
seek habeas relief are
cannot
all those who
fa-
interpretation of the
Justice Souter’s
favorable termination
from the
exempt
only
rule
thus not
vorable termination
footnote,
However,
lengthy
in a
rule.
Id.
view,
majority
also
the better
but
that,
Spencer,
after
pointed out
this Court
Spencer
of the
Court and is the view
view
appears
Supreme Court
majority
among
appeal. According-
courts of
several
and,
exemption
in a
the broader
support
I
the District Court erred when
ly, believe
footnote,
cited Jus
approvingly
we
shorter
applied
considering
it
Heck without
wheth-
Torres,
Heck.
292
reading of
tice Souter’s
brought his claim un-
er Petit could have
5, 147 n. 8.
F.3d at 145 n.
habeas,
not,
placed
if
whether that
der
scope
him outside the
of the favorable
circuits, too,
toward the more
lean
Other
termination rule.
the favorable termi
narrow construction
Haubert,
majority
reasoning
v.
bases its
on
In Jenkins
nation rule.
cases,
Heck.
prisoner may
pre-date
three
two of which
held that
Second Circuit
(5th
“challenging
Taylor
Gregg,
the con
v.
tempt to rehabilitate the with- defendant ensuing
out resort trial and convic- Feagley, tion.” Commonwealth v. (1988) Pa.Super. 538 A.2d America, UNITED STATES of (refusing appeal to hear from termi- order ARD). nating participation “[AJccep- INC, corporation; ARD tance of does not constitute a con- LANE LABS-USA Lane, individual, Andrew J. an equivalent viction” and “is not the of a Appellants. conviction.” Id. at 897. No. 04-3592.
Although precise we do not know the Petit, imposed upon they conditions do not Appeals, United States Court of report to have appear required Petit Third Circuit. anywhere since his stated Argued June 2005. entering for ARD to enable reason his Oct. Kentucky quickly possible return to as as work. Dow Cir. Ct. First Cir. Cf. (9th Through Huddy, 995 F.2d