MICHAEL GWYNN; BRENDON RYAN, Appellants v. CITY OF PHILADELPHIA; CHARLES RAMSEY; PATRICK KELLY; MELVIN SINGLETON; SALVATORE FEDE; FRANK PALOMBO
No. 12-2208
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
June 19, 2013
PRECEDENTIAL. Argued April 16, 2013. On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 11-cv-01128). District Judge: Honorable Robert E. Kelly. Before: AMBRO, HARDIMAN and COWEN, Circuit Judges.
Law Offices of Brian Puricelli
691 Washington Crossing Road
Newtown, PA 18940-0000
Attorneys for Plaintiff-Appellants
Kelly S. Diffily
Jane L. Istvan [ARGUED]
Shant H. Zakarian
City of Philadelphia
Law Department
17th Floor
1515 Arch Street
One Parkway
Philadelphia, PA 19102
Attorneys for Defendant-Appellees
OPINION OF THE COURT
HARDIMAN, Circuit Judge.
City of Philadelphia Police Officers Michael Gwynn and Brendon Ryan appeal a summary judgment entered in favor of several of their fellow officers and the City. Appellants asserted constitutional claims under
As this appeal comes to us following summary judgment, we review the facts in the light most favorable to Appellants. See Montone v. City of Jersey City, 709 F.3d 181, 189 (3d Cir. 2013).
A
On December 15, 2009, while on duty, Appellants stopped and frisked men they believed were engaged in an illegal drug transaction. One of the men they frisked, Keyshawn Artis, accused Appellants of stealing money from him. Appellants denied the accusation, and told Artis to “move along.”
When Appellants returned to headquarters, a superior officer, Sergeant Salvatore Fede, ordered them into his office. After informing Appellants that a complaint about their behavior had been made to the Internal Affairs Bureau, Sergeant Fede took Appellants to Captain Melvin Singleton‘s office. Appellants did not feel free to leave because they had been “ordered to be in the captain‘s office.” App. 285. After waiting fifteen to twenty minutes, Appellants and Sergeant Fede were joined by Captain Singleton, then-Sergeant Patrick Kelly, and Lieutenant Frank Palumbo.
Appellants were instructed to stay in Captain Singleton‘s office until officers from the Internal Affairs Bureau arrived. While Appellants waited, Captain Singleton offered them water and told them that they could watch television, but instructed them not to use their cell phones. Appellants then were questioned about their interaction with Artis, including whether they had taken money from him. In
Upon their arrival at Captain Singleton‘s office, two Internal Affairs officers questioned Appellants for about fifteen to twenty minutes and then left briefly to talk to Artis, the complainant. Appellants were told to stay put until the Internal Affairs officers returned after speaking with Artis. As Appellants waited, Gwynn asked for permission to call his wife to arrange for her to pick up their son, and then-Sergeant Kelly granted permission. The Internal Affairs officers returned, stated that they believed Artis, and told Appellants that they were not needed for anything further that day. Appellants left Captain Singleton‘s office around 8:15 p.m. and when they opened their lockers that evening, it appeared as though they had been searched.
B
In February 2011, Appellants sued Captain Singleton, Lieutenant Kelly, Sergeant Fede, and Lieutenant Palumbo along with the City and its Police Commissioner, Charles Ramsey. Since Appellants’ claims arose under federal and
Appellants served requests for admission in June 2011 that went unanswered until the beginning of August 2011, after the 30-day deadline prescribed by the Federal Rules of Civil Procedure. See
The parties filed cross motions for summary judgment and the District Court granted the motion of Appellees. Gwynn and Ryan filed this timely appeal, which we have jurisdiction to hear pursuant to
II
Gwynn and Ryan first argue that the District Court abused its discretion when it allowed Appellees to withdraw their admissions. Had those admissions remained undisturbed, Appellants argue, their summary judgment motion would have been granted. Because the District Court did not err when it allowed Appellees to withdraw their admissions, we reject Appellants’ first argument.
Here, the District Court‘s discretionary decision to permit Appellees to withdraw the admissions was consistent with both requirements of
In sum, because the District Court did not abuse its discretion when it withdrew Appellees’ deemed admissions, it did not err when it denied Appellants’ motion for summary judgment, which was premised upon the efficacy of those admissions.
Appellants next argue that the District Court erred when it entered summary judgment against them on their constitutional claims arising under
A
Appellants’ constitutional arguments are founded upon the Fourth Amendment‘s prohibition against unreasonable searches and seizures, as applied to the States through the Fourteenth Amendment. Specifically, Gwynn and Ryan claim they were unreasonably seized when they were ordered to wait in Captain Singleton‘s office until the Internal Affairs officers arrived, and that they were unreasonably searched when their superiors asked them to turn out their pockets, take off outer layers of clothing, and reveal the contents of their socks and wallets. Although it is not entirely clear from their brief, Appellants seem also to contend that Appellees conducted an unreasonable search of their lockers. Viewing1 the record in the light most favorable to Appellants, the District Court did not err when it granted summary judgment because Appellants failed to establish either that they were seized or that they were subjected to an unreasonable search.
A person is seized under the Fourth Amendment only when “his freedom of movement is restrained” either “by means of physical force or a show of authority.” United States v. Mendenhall, 446 U.S. 544, 553 (1980) (explaining that “[o]nly when such restraint is imposed is there any foundation whatever for invoking constitutional safeguards“). Police officers, no less than civilians, are protected by the Fourth Amendment, and, in some circumstances, they may be seized as the result of an order given by another officer. See Driebel v. City of Milwaukee, 298 F.3d 622, 637 (7th Cir. 2002) (recognizing “the well-settled rule that men and women do not surrender their freedoms when joining the police force“); see also Cerrone v. Brown, 246 F.3d 194, 196 (2d Cir. 2001) (explaining that when police officers are seized in the context of a criminal investigation, probable cause is required).
This does not mean, however, that every order a police officer feels compelled to obey amounts to a seizure. Public employees, like their counterparts in the private sector, often must comply with orders issued by supervisors, and may suffer work-related consequences if they disobey. See INS v. Delgado, 466 U.S. 210, 218 (1984) (“Ordinarily, when people are at work their freedom to move about has been meaningfully restricted ... by the workers’ voluntary obligations to their employers.“). This is especially true for police officers, who are part of a “paramilitary organization
To determine whether a police officer has been seized for purposes of the Fourth Amendment, our sister courts of appeals have recognized that the distinction between situations in which the police department issues orders “in its capacity as an employer” and those in which it acts “as the law enforcement arm of the state.” Pennington v. Metro. Gov‘t of Nashville & Davidson Cnty., 511 F.3d 647, 652 (6th Cir. 2008) (quoting Driebel, 298 F.3d at 637); see also Aguilera v. Baca, 510 F.3d 1161, 1169 (9th Cir. 2007). An officer is not seized “simply because he believes that he [would] lose his job” or suffer other work-related consequences if he were to leave the police station or fail to
For example, in Driebel v. City of Milwaukee, an officer who was subject to an internal investigation was ordered to “stand by” at the police station until he received further instructions. 298 F.3d at 629. While waiting at the garage, he was neither told that he was the subject of a criminal investigation nor was he read his Miranda rights. Id. at 643. He received overtime pay for the assignment and retained possession of his police-issued equipment while waiting. Id. The Seventh Circuit held that this was not a seizure, explaining that the officer “must have been aware that no officer was permitted to use force or any show of authority to prevent him from departing the garage if he so chose.” Id.
Driebel also addressed the claims of another officer under investigation, who was ordered to report to Internal Affairs headquarters for questioning. While there, he was advised that he was under criminal investigation and read his Miranda rights, and he was not permitted to use the restroom unaccompanied. Id. at 648. Police policy required, however, that officers be told their rights any time they were questioned, even as part of an internal investigation. Id. The Internal Affairs officers also had a legitimate reason for supervising his trips to the restroom, namely, to ensure that he was not communicating with others about the investigation.
The Sixth Circuit applied the same analysis in Pennington v. Metropolitan Government of Nashville and Davidson County. There, while in a bar, off-duty police officer Pennington was involved in an altercation in which he identified himself as a police officer. 511 F.3d at 648. Officers in his department were required to comply with department policy whenever they invoked their authority as police officers, and that policy forbade intoxication. Id. at 649. Another officer who arrived at the scene asked Pennington to return to the station for a breathalyzer test as part of an internal investigation. Pennington was neither handcuffed and placed in the back seat of the police car nor read his Miranda rights, and he was allowed to return home before completing a report. Id. He did not believe that he would be forcibly detained if he attempted to leave; rather he claimed he was “compelled by the threat of job loss” to comply. Id. at 652. The Sixth Circuit explained that “[a] reasonable off-duty officer in Pennington‘s position would not have feared seizure or detention if he had refused to take the breathalyzer test.” Id. Accordingly, Pennington had not been seized. Id.
Likewise, in Aguilera v. Baca, the Ninth Circuit held that officers who were ordered to stay after work to speak to Internal Affairs officers had not been seized. 510 F.3d at 1169. The court emphasized that the department‘s treatment
The facts in Driebel, Pennington, and Aguilera stand in contrast to those presented to the Court of Appeals for the Second Circuit in Cerrone v. Brown. There, the officer was stopped by the investigative team, who “asked whether he was carrying a weapon, allegedly placed him in the felony position, placed him in the back of an unmarked police car (where he was guarded), transported him to a hotel room, read him his Miranda rights, and informed him that he was the target of a criminal investigation.” Cerrone, 246 F.3d at 198 (internal quotation marks and alteration omitted). The police officers conceded that their actions amounted to a
We recognize that whether a police officer would reasonably have perceived his superior officer to be issuing orders as his supervisor or as a law enforcement agent during the course of an investigation will not always be clear. Here, however, the evidence demonstrated that, to the extent Appellants felt compelled to obey their superior officers’ commands, that compulsion was borne out of their employment relationship. There was no suggestion that Appellants were under criminal investigation; they were asked to wait in Captain Singleton‘s office so they could speak with Internal Affairs agents. Additionally, the circumstances surrounding the investigation were not particularly coercive. Although Appellants were not able to use the phone while waiting for Captain Singleton to return, they were offered drinks, they were asked if they wanted to watch television, and they retained all of their police-issued equipment. Moreover, Appellants admitted in their affidavits and deposition testimony that they followed the orders of their superior officers because they were concerned that they would suffer work-related consequences if they did not do so. For these reasons, we hold there was no Fourth Amendment seizure of Gwynn and Ryan.
Appellants also argue that their superior officers conducted an unreasonable search when they asked Appellants to reveal whether they had money in their pockets, vests, or socks and when they went through Appellants’ lockers without probable cause or a warrant. Although the Fourth Amendment protects government employees against unreasonable searches by their employers, O‘Connor, 480 U.S. at 715, work-related searches of a government employee‘s person or property often fall into the “special government needs” exception to the Fourth Amendment‘s warrant and probable cause requirements. We find that to be the case here as well.2
When an “intrusion serves special government needs, beyond the normal need for law enforcement,” the government must show that its search was reasonable. Wilcher v. City of Wilmington, 139 F.3d 366, 373-74 (3d Cir. 1998) (quoting Nat‘l Treasury Employees Union v. Von Raab, 489 U.S. 656, 665-66 (1989)). In O‘Connor v. Ortega, the Supreme Court held in a plurality opinion that a non-criminal investigative search will be reasonable if, at its inception, “there are reasonable grounds for suspecting that the search will turn up evidence that the employee is guilty of work-
The need for oversight and corrective action is particularly acute in police departments. This is because officers “exercis[e] the most awesome and dangerous power that a democratic state possesses with respect to its residents—the power to use lawful force to arrest and detain
As noted herein, the investigation into Appellants’ conduct was work related; it was not a criminal investigation. Their superior officers had reasonable grounds to investigate misconduct in view of the formal complaint Artis made to Internal Affairs. Indeed, Ryan acknowledged that he understood why his superiors would need to investigate Artis‘s claim. Further, the search was not excessively intrusive given the nature of the alleged misconduct. Appellants’ superior officers examined their outer clothing, wallets, pockets, socks, and the cuffs of their pants to see if they had a large amount of money on them, and checked their lockers for the same purpose. The search was reasonably related to its purpose—that is, ensuring that Appellants did not possess Artis‘s money—and it was not overly intrusive. Cf. Copeland v. Phila. Police Dep‘t, 840 F.2d 1139, 1143-44 (3d Cir. 1988) (compulsory urinalysis, based on reasonable suspicion that officer had engaged in drug use, was not a violation of the Fourth Amendment). Because the search was not unreasonable, it did not violate the Fourth Amendment.4
B
Appellants also claim they were not credited for working overtime on the day of the Internal Affairs interview, in violation of the Pennsylvania Minimum Wage Act and the Fair Labor Standards Act. Appellees presented evidence, in the form of an affidavit from Lieutenant Palumbo and the police department‘s daily attendance report, that Appellants were, in fact, paid. Appellants failed to produce any evidence to rebut that evidence.
On appeal, Appellants challenge the adequacy of Appellees’ evidence of payment. They claim that the affidavit from Lieutenant Palumbo was not based on personal
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Police officers serve a critical function in any civilized society. The power they wield and the responsibilities they assume require them to act beyond reproach. When a citizen lodges a credible complaint of police misconduct, it is imperative that it is investigated, both to protect the citizen who may be wronged and the officers who may be falsely accused. When police administrators undertake employment-related detentions such as the one experienced by Officers Gwynn and Ryan, there is no Fourth Amendment seizure. And because the searches of Gwynn and Ryan were reasonable, we will affirm the summary judgment of the District Court.