Wright v. City of Philadelphia

Aрpellant did undisputed As it dispute via attempt to first resolve cannot sue USPS process, he grievance of the collective any alleged breach

for consequently agreement, and

bargaining any alleged breach

cannot sue NRLCA representation. fair duty Therefore,

Felice, 1226. 985 F.2d at hy- his properly dismissed

District Court entirety. claim in its

brid section 301 reasons, we affirm the deci-

For these District Court.

sion of the

Kimberly WRIGHT, Marnell PHILADELPHIA; Daniel

CITY OF 650;

Heeney, Detective, Badge Number Officer, Individually

Doe(s), Police Police and Detectives

and as Officers Philadelphia; Denise

for the

O’Malley, Officer, Badge Num- Police

ber Heeney; O’Malley,

Daniel Denise

Appellants.

No. 03-1633. Appeals, States Court of

United

Third Circuit.

Argued Sept. 6, 2005.

Decided June

OPINION OF THE COURT FUENTES, Judge. Circuit Kimberly Wright sexually After was as- men, by saulted two she broke a window and entered the house -whichthe assault place purpose retrieving took for the Following separate her clothes. inves- tigations, conducted the defendant offi- concerning cers the sexual assault and the break-in, Wright charged burgla- theft, ry, trespass, and criminal charges against Wright mischief. The eventually Thereafter, were dismissed. filed a against she 1983 action the defen- alleging dant officers violated her rights. The District Court denied the officers’ motion for sum- mary judgment on the issue of аppeal. and the defendants now Because the facts and circumstances with- arresting knowledge officers’ were sufficient to warrant a prudent person be- lieving had committed the trespass, crime of criminal we conclude that there was no constitutional violation. Therefore, we hold that the officers were entitled to and we will reverse denial of the officers’ motion for summary judgment.

I. Facts A. The Assault Feder, Craig (Argued), Richard Gottlieb Wright’s separate action arises from two Solicitor, PA, Philadelphia, Appel- police investigations, for a one sexual as- lants. sault and one for a reported breaking and entry.1 On the morning December Paul Messing (Argued), Kairys, Rudov- 1999, Wright driving alone on Chelten sky, Epstein, Messing, PA, Philadelphia, in Philadelphia Avenue her car broke for Appellee. men, down. Two Ronald Jackson and Ni- RENDELL, FUENTES, Before: mar Thompson, stopped and offered SMITH, Judges. her, Circuit Wright assistance. Instead of helping Katz, reviewing 1. Because we are party claiming injury. claim of See Saucier v. immunity, allegations view factual (2001). Wright, most favorable to L.Ed.2d 272 Department: one forcibly phia took her to Police related to her and they drugged Soon sexual assault that was to beauty parlor owned Jackson. be thereafter, Thompson took investigated by O’Malley Officer Denise Jackson beauty parlor allegations home and one related to Pue’s of a Wright from the investigated by she was held break-in that was to be Park Avenue where on Cedar Heeney. state for several hours. Daniel in an intoxicated Detective awoke, un- partially she was she When Investigations B. The that she had been She believed

dressed. Eventually, the two sexually assaulted. investigation The of the sexual assault house, leav- Wright out of the men forced 17, 1999, began on December when O’Mal- Wright porch. the front ing her on ley Wright. first In the inter- interviewed neighbors’ doors for knocked on several view, Wright described the circumstances response. She then help, but received and that of the assault said she had broken house where she had been returned to the get the window to back into the house to assaulted, pane window broke a small get hеr clothes'. On December inside, property. Once reentered accompanied by Wright and her police, personal belongings, her Wright retrieved mother, proceeded to locate the' house bags containing plastic as well as three where she had been assaulted. After lo- a of one photograph items such as: several house, cating Wright’s po- mother told mail, attackers, two pieces her several property lice that had removed Jackson, to un- checks made out cancelled prove from the house to that she had been alcohol, watches, jack- a bottles of opened Thereafter, Wright gave police there. et, clothes, а phone. cordless bags three of items taken from Pue’s police that she took these items later told The items later released to house. were n Pue. identify her attackers. help to the Cedar Park home with leaving After Meanwhile, investigation burglary items, Wright get was able to a ride Heeney begun had on December when a taxi to a friend’s home. The follow- from Park home to examine went to the Cedar her to the ing day, Wright’s sister took of the break-in. Pue told Hee- the scene hospital where she was treated her néy an interview that she learned during injuries. hospital, Wright At physical brother, Jackson, neighbor from a that her Manning was interviewed Officer house brought had a woman to the while circumstances of whom she described the investiga- During she at work. explained that she had bro- the attack and tion, pane Heeney discovered broken get inside the resi- ken a window back front and he recovered glass by the door her clothes. Sometime dence to retrieve “Kimberly with the name slip paper hospital stay, she was treated during her day, Heeney following it. The Wright” on Speci- for sexual assault. and examined admitted interviewed Jackson. Jackson of col- purpose mens were taken for the to his sister’s brought Wright that he may have lecting any DNA evidence that house,' was ex- he claimed that she body by on her her attackers. been left and that she refused tremely intoxicated Meanwhile, Pue, he told her to lеave. Jackson go Denise Jackson’s sister intercourse with having denied sexual Park home where the owner of the Cedar and a occurred, told that he Wright and reported the break-in the assault calling the had left the house after thus two crimi- friend of her home. There were to leave. she refused the Philadel- because investigations nal initiated police investigators, O’Malley Wright. three months after Within Heeney, disagree reopened, as to when each case was Jackson and investigation. Thompson charged aware the other’s were arrested and became O’Malley 19 as the Wright. remembers on December sexual assault Both men day on she received facsimiles of which pled guilty later and were sentenced to Heeney’s burglary complaint Pue’s from periods of incarceration. November however, Heeney, office. documented Philadelphia Police Internal Af- report, his dated December report finding fairs Division issued a O’Malley summary related to him a had O’Malley prop- had “conducted less than Wright’s allegations. spoke The officers er/thorough investigation” Wright’s as- throughout on a few occasions their re- sault case case and her should not spective investigations. have been closed as unfounded. 24, 2000, January O’Malley On deter- reopened After her case was and Jack- Wright’s mined that sexual assault com- arrested, Thompson son and Wright were plaint Heеney was unfounded and told that present filed the 1983 action the Dis- case did not have sufficient founda- against trict Court of Philadelphia date, proceed. tion to At some unknown First, violating and the officers for her prior O’Malley closing to the sexual Fourth, and Fourteenth Amendment case, Heeney prepared assault an affidavit rights. specifically She claimed that she probable Wright’s cause for arrest falsely maliciously prose- was arrested and regard burglary to the of Pue’s residence. by Heeney O’Malley. Wright cuted and by approved His affidavit was an Assistant summary judgment moved for on a num- Attorney January on District issues, including ber of that the defendants February Heeney On arrested were not entitled to immunity. Wright without a warrant for a number of opposed Wright’s The defendants motion offenses, theft, including burglary, and summary for judgment, independently and trespass. criminal report The arrest lists summary judgment moved for on two is- Heeney O’Malley both and as the sues, including O’Malley Heeney that and personnel Nearly involved. two months to qualified immunity. were entitled arrest, after her charges against District Court denied both cross-motions Wright were dismissed for to failure prose- summary for judgment. Specifically with appear cute because Pue to at the failed regard to of qualified immunity, the issue preliminary hearing. the District ruled that if all disputed Court Shortly after the dismissal of facts were viewed in the most favor- charges against Wright, Philadelphia po- to Wright, able a reasonable fact-finder reopened lice authorities O’Malley a number of sex- could conclude that Heeney investigations, including ual assault unreasonably Wright’s purport- dismissed Wright’s reopened case. The cases were ed reason for her break-in —to obtain evi- victims, following complaints made against dence the sexual assault her— Project, Law advocacy Women’s and other the reason for the break-in should groups concerning the manner in which negated any perception probable Philadelphia police handling suspect officers were cause to had req- sexual assault cases. After the burglary. case uisite intent for the The Dis- reopened, samples DNA сonfirmed that trict analyze, independently, Court did not Jackson was the source of the semen found cause existed to arrest rape exam that performed on for criminal trespass. O’Malley theft, mo- on her burglary, the denial of their based arrest appeal summary judgment on their de- tion for mischief, trespass, and criminal immunity. fense prosecution and malicious based on the charges. same The defendant officers II. Jurisdiction maintain that the District Court erred we have first consider whether We denying summary judgment their motion interlocutory jurisdiction to entertain this on their They defense. deny order of the District Court’s appeal argue violated no constitu- immunity O’Malley and ing qualified because, right by arresting Wright tional outset, note that “the Heeney. At the given they possessed, the information stressed Supreme repeatedly Court has person reasonable in their situation could importance resolving have believed that she had committed the possible stages at the earliest questions property and theft offenses. In the alter- Klem, litigation,” Curley v. native, they submit that if even (3d Cir.2002) cases), (collecting be violated, rights were those erroneously permitted cause a case is “[if] rights not clearly were established at the trial, immunity is go then Finally, they time of the arrest. claim effectively quali Id. A decision on lost.” individually that neither officer had suffi- however, immunity, prema “will be fied knowledge Wright’s rape negate cient of to of disputes ture whеn there are unresolved any ‍‌‌​​‌‌​‌​‌​​‌​‌​​‌‌​​​‌‌​‌​‌‌‌​​​‌​‌​‌‌​​​​​​‌​​‍perceived existence of cause. immunity historical fact relevant to the at inter analysis.” Despite Id. the immunity rul locutory qualified nature of Qualified Immunity A.

ings, they appeal are renewable on where provides 1983 a cause of dispute upon not turn “which Section the does might who, to parties prove, facts the be able against .any person acting action un rather, but, given whether or not certain law, deprives color of of der state another ‘clearly a violation of estab facts showed rights. or an offi his her federal When Jones, law.” Johnson v. 515 U.S. lished’ claim, § to a give cer’s actions rise 1983 311, 2151, 304, 115 238 132 L.Ed.2d S.Ct. immunity, in privilege qualified the cer (1995). in The material facts here are not circumstances, tain can serve as a shield purely The before us is the dispute. issue Bryant, from suit. Hunter v. 502 U.S. See alleged, the legal question of whether facts 534, 224, 227, 112 S.Ct. 116 L.Ed.2d 589 Wright, in most favorable even (1991). primary purpose affording The legally proba sufficient to establish were privilege public officials the Therefore, ble cause for her arrest. this suit, insulating from immunity, thus them ’ jurisdiction pursuant appellate Court has protect them “from undue interfer 1291. See Mitchell v. For 28 U.S.C. potentially and from ence with their duties 2806, 511, 530, 105 86 syth, 472 U.S. S.Ct. liability.” v. disabling threats of Elder (1985). plenary L.Ed.2d 411 exercise We 514, 510, 114 Holloway, 510 U.S. S.Ct. immu rejecting qualified review orders (1994) 1019, 127 (quoting Har L.Ed.2d 344 nity summary judgment stage. at See 800, 806, 102 Fitzgerald, low v. 457 U.S. Auth., 256 Eddy v. V.I. & Power Water (1982)). 73 L.Ed.2d 396 S.Ct. (3d Cir.2001). F.3d however, immunity, privilege III. Discussion officials vio can overcome when state be statutory or con “clearly late established action, Fourth In her raises two a reasonable rights stitutional of which false arrest Amendment violations: Harlow, plaintiff unless a can person would known.” Supreme prove right 2727. The both that a constitutional has U.S. at S.Ct. Katz, Court, violated, explained Saucier been and then that the constitu- determining analytical process right clearly when tional violated was estab- See, has been over- privilege e.g., Murphy, lished. Bennett v. (3d Cir.2002). come: 136-37 Under interpretation, if no required upon A to rule either court found, consider, then, a court must violation is need address issue question: threshold Taken in the whether reasonable officer would have violating clearly party tо the assert- known he or she was light most favorable matter, right. practical As a ing injury, alleged do the facts show established conduct the outcome will be the same whether we the officer’s violated constitu- conclude that the officers are immune from right? tional This must be the initial instead, that inquiry.... right If no constitutional suit or has no cause of action. would have been violated were the alle- established, necessity gations there is concurring colleague Our believes that concerning qualified inquiries for further — Haugen, , Brosseau v. — hand, immunity. if a On other viola- (2004), 160 L.Ed.2d 583 conclu tion out on a could be made favorable sively dispute resolves this favor of the submissions, parties’ view of the interpretation. We note that leаst next, sequential step is to ask whether six of our sister would Appeals Courts clearly established. disagree. Sample Bailey, seem to 695-96, 04-4174, No. (2001) (citation omitted). 272 L.Ed.2d (6th 1283517, 9, 2005) May WL at *6 Cir. disagreement There is some as to (holding step qualified how that the first interpreted. Specifical- immunity analysis Saucier should be is whether a constitu occurred); ly, dispute is whether a court must tional violation has Simkins v. Bruce, (10th Cir.2005) 1239, determine the issue of whether there has 406 F.3d 1241 (same); County, been constitutional violation before Harris v. Coweta 406 (11th Cir.2005) 1307, reaching qualified immunity (same); question, 1312-13 part or whether that is the first of Angels San Jose Charter the Hells Mo of Jose, two-pronged qualified immunity. torcycle test for Club v. San 402 F.3d (9th Cir.2005) eases, 962, (same); In some we interpreted Craighead have Sauci- 971 (8th Lee, 954, Cir.2005) imply er to of qualified the issue v. 399 F.3d (same); are, immunity only relevant after a court Corp. Pimp has Riverdale Mills v. (1st Cir.2004) (same). 55, concluded that constitutional violation 392 F.3d 60-61 view, has In that if Appeals occurred. there is no Those Courts of considered Bros- violation, yet constitutional there is no reason seau and still treated the constitutional qualified immunity to reach the part issue. violation as of the See, test, e.g., Borough Carswell v. opposed separate inquiry Home- to a like (3d Cir.2004). stead, 235, concurring 381 F.3d our colleague recommends.2 cases, interpreted other we have Saucier Burke v. Walpole, See also Town (1st 66, Cir.2005); to mean that a defendant is entitled to F.3d v. Beard Whit- osition, Although only indicating familiarity Riverdale discussed Brosseau the Courts' inquiry, in the context of the structure of the the case. prop- all of the cases cited Brosseau for some action, Dist., 598, challenging Wright’s cause of 402 F.3d Lake Sch. more (6th Cir.2005); Mercy proper way for us to McVay v. Sisters believe review (8th 904, through 907-08 here is Sys., 399 F.3d constitutional violation Health Cir.2005).3 immunity According- at least two of denial. Accordingly, qualified specifically analyzes in- Appeals ly, opinion threshold those Courts be enti conduct quiry, that defendants would whether the officers’ violat- concluded immunity upon rights, a determi ed as the qualified tled to immunity analy- was no constitutional violation nation that F.3d at 695- Sample, 409 sis. committed. See (“Qualified at *6 2005 WL B. Probable Cause if the granted must be elements.”) provides The Fourth Amendment each of these

cannot establish Riverdale, persons, are “to be secure in their omitted); people 392 F.3d (quotation houses, effects, papers, against were enti unrea (holding that defendants at 65 seizures,... there sonable searches and and no immunity when tled to violation). issue, upon probable shall We believe Warrants no constitutional Const, acted reason cause.” U.S. amend. IV. To deter Appeals that those Courts valid, mine whether an arrest is we look to reading Brosseau as consistent ably law of the state the arrest took immunity inqui where two-step qualified with a Myers, step being place. the “constitu United States ry, with the first ” (3d Cir.2002) (citing Ker v. being and the seсond “wheth Cali tional issue fornia, 374 U.S. clearly established.” er the (1963) (plurality opinion)). L.Ed.2d 726 however, case, require does not us This law, Pennsylvania police officers Under readings to decide between the can arrests for felo execute warrantless viola- because the constitutional Saucier any grade attempted of theft and nies us in the context of presented tion was 3904; §Ann. theft. See 18 Pa. Cons.Stat. immunity. Specifically, Taylor, Pa.Super. Commonwealth claim for asserting course of their (noting 677 A.2d 846 O’Malley ar- immunity, may make warrantless arrests for ‍‌‌​​‌‌​‌​‌​​‌​‌​​‌‌​​​‌‌​‌​‌‌‌​​​‌​‌​‌‌​​​​​​‌​​‍officers violation. there was no constitutional gue peace). of the An felonies or breaches a conclusion no recognize that that We оfficer with by arrest a law enforcement place would constitutional violation took under the out a warrant “is reasonable element of the negate also an essential proba there is Fourth Amendment where Oliver, claim, Albright see v. 510 1983 a criminal offense cause to believe that ble 807, 266, 271, 114 127 L.Ed.2d U.S. S.Ct. being committed.” Deven has been or is (1994), violation 114 but the constitutional — -, 125 Alford, v. U.S. S.Ct. peck of the aspect addressed as an is best (2004). 593, 160 L.Ed.2d 537 immunity analysis because that was is standard probable-cause interlocu- While jurisdictional “[t]he basis for this quantifi- definition or incapable precise of see v. Chambers Coun- tory appeal, Swint cation,” 540 Comm’n, 35, 49-50, Maryland Pringle, v. U.S. 115 514 S.Ct. ty (1995). 366, 371, 157 L.Ed.2d 769 124 S.Ct. While we 131 L.Ed.2d 60 (2003), probable of interpretations all as arguments the officers’ could construe cases, First, Sixth, analyzed vio- pie the constitutional times and indicated As qualified immu- the first Eighth lation as Circuits have considered nity inquiry. light Brosseau multi- doctrine circum- charged that could under the that is rea- be require guilt a belief cause certain, sonable, stances.”), Hill v. person see or a is later opposed as 797, 804, 91 S.Ct. California, 401 U.S. crime for which she or he acquitted of the (1971) (“Sufficient 1106, 28 L.Ed.2d 484 arrested, at DeFillippo, 443 U.S. certainty, not is the touchstone probability, 2627; Devenpeck, see also 99 S.Ct. under the Fourth reasonableness (“The at rule that the offense ...”). Amendment. must be ‘close- establishing probable cause to, ly related’ and based on the same con- require “Probable cause does аs, ar- duct the offense identified type specific evidence of each the same is resting officer at the time of arrest the offense would be needed element of precedent.”). inconsistent with [ ] a support conviction.” Adams Williams, 143, 149, 407 U.S. Wright contends that because the (1972). Therefore, the evi 32 L.Ed.2d of each investi officers were aware other’s probable cause is dentiary standard Heeney have known that gations, should significantly lower than the which standard a window and entered Pue’s broke Michigan required for conviction. See gather home to retrieve her clothes and to 31, 36, DeFillippo, 443 U.S. 99 S.Ct. prove evidence to she had been assaulted. (1979) (“We 2627, 61 L.Ed.2d 343 therefore, ,argues that knew Shé degree that made clear the kinds that or should have known there was procedural requirements proof and necessary prereq any for a conviction are not criminal to commit offense. intent arrest.”) (citations omit uisites to a valid argue they probable that had The officers ted); Russo, Wilson v. they cause to arrest because rea (3d Cir.2000) that (holding probable cause sonably burglary, believed she committed “fair only requires probability” theft, trespass. They or criminal contend crime). An person committed the relevant that a belief that she commit reasonable if “at arrest was made with cause any ted of these offenses entitles them ... the moment the was made arrest qualified immunity. agree. We within оffi facts and circumstances [the any particular sug- Whether set of facts knowledge and of which had cers’] justified by probable an gest arrest is reasonably trustworthy information were of the ele- requires cause an examination man in prudent sufficient to warrant our ments the crime issue. We focus believing suspect] had committed [the proba- on whether the officers had committing an offense.” Beck v. or was cause to arrest her for the offense of Ohio, ble (citations omitted). 3503(a)(1) trespass. Section L.Ed.2d words, validity Pennsylvania provides other Crime Codes depend the arrest does not on whether the person that a commits the offense of crimi- any suspect actually committed crime. nal tresрass when: Campbell, 332 F.3d Johnson knowing privi- that he is not licensed or (3d Cir.2003). case, Importantly for this it so, leged to do he: probable analysis is irrelevant to the cause (i) enters, gains entry by subterfuge suspect eventually charged a what crime in surreptitiously any or remains build- with, Amboy, Barna v. Perth (3d Cir.1994) (“Probable ing occupied separately or structure or thereof; only any occupied portion offense secured or or cause need exist as to (ii) any building or occu- seen a woman at her house her into broth- breaks with or separately or secured pied slip paper structure er. found a occupied portion thereof. Wright’s name on it at the scene of the alleged burglary. 3508(a)(1).4 §Ann. Pa. Cons.Stat. statutе, probable cause Under explanation her Although entering criminal trespass for an arrest for exists Pue’s a in probable residence is factor circumstances are the facts and the analysis, it dispositive. cause is not person to believe prudent for a sufficient probable totality cause looks to the (1) entered or broke into suspect: that the circumstances; the standard does (2) structure, know building occupied a or require correctly not that officers resolve privi no or ing that she or he had license conflicting evidence or that their determi burglary, so. Unlike which lege do were, credibility, retrospect, nations of intent, of criminal requires proof accurate. The officers did not believe scienter, trespass merely requires proof Wright’s explanation entry. for her Al words, other the defendant had mistake, though may have made a privilege or knowledge of a lack of license not in light their belief was unreasonable Williams, 344 to enter. Commonwealth possessed of the information the officers 31, 42-43 Pa.Super. 496 A.2d Kaltenbach, the time. See Paff v. Carter, Pa. (citing Commonwealth v. Cir.2000). (3d Wright admitted (1978)). A.2d breaking entering window and resi Looking at the facts in the most removing items of little dence or Wright, favorable to we assume she en- value, evidentiary and she returned those tered the residence to retrieve her clothes only items after the were alerted to police of her assault under the mis- evidence the fact that she had them. In addition to privi- taken belief that she had license or facts, those there was an identification But, lege to enter. we are concerned here her on a neighbor and name was found cause, only question probable with the In piece paper house. those Thus, Wright’s guilt or innocence. circumstances, say we cannot that the offi if Wright requisite even lacked the knowl- in an cers acted unreasonable manner. edge trespass, to commit criminal we must totality of the cir- evaluate whether the opinion, its the District Court deter- justify a rea- cumstances was sufficient disputed mined that “there are factual is- of the officers sonable belief on directly upon question which sues bear - crime. had committed a police officer reasonable mistakenly that there could have believed police admitted to that she broke probable [Wright].” cause to arrest pane a small window and entered Ce- The District reached this (App.34.) Court bags dar Park residence. She left with conclusion, however, by focusing on the containing various items from the resi- burglary offense of and not the other of- wine, watches, clothes, including dence Wright. we consider against fenses When unlikely to help other items that were trespass, the offense of criminal we con- identify her turned police attackers. She officers had cause clude that the оnly bags those over to the after her According- to arrest her for this offense. posses- the to her mother alerted arrest for criminal neighbors ly, Wright’s Pue said that had warrantless sion of them. 3503(a)(2). § trespass felony. 18 Pa. Cons.Stat. Ann. 4. The of criminal is a offense nature of our in this in violation of terize the trespass was not a seizure majority case. the considers this Fourth Amendment. While unsettled, posi- I issue to be believe violation, we Finding no constitutional longer, Supreme no tenable under tion is of sum- reverse the District Court’s denial precedent. Court immuni- mary judgment qualified based on decision, majority, According we need not to the it is unclear ty. light of this existed a court probable cause whether must determine exis address offenses, felony burglary vel non of a constitutional violation for other two tence the. theft, charged. weighing whether officials sued for with which she was before Bama, protected 42 F.3d at 819. that violation are

immunity, or whether the first determina C. Malicious Prosecution part parcel tion is of the second. I agree began that the confusion in this area disposes Wright’s also Our decision Katz, in Saucier v. prosecu- remaining malicious claim (2001), that our 150 L.Ed.2d prosecu- her malicious tion. bases cases reflect confusion. Saucier alleged Fourth Amendment tion claim on taught required that a court to rule on a arising violations from her arrest and qualified immunity issue must consider a claim, on prosecution. prevail To she “threshold” “Taken in the questiоn: proba- must show the officers lacked party asserting most favorable already her. ble cause to arrest As dis- injury, alleged do the facts show the offi cussed, however, there was cause conduct violated a cer’s constitutional prosecution arrest and for right?” 533 at trespass based on ‍‌‌​​‌‌​‌​‌​​‌​‌​​‌‌​​​‌‌​‌​‌‌‌​​​‌​‌​‌‌​​​​​​‌​​‍the information right “If no constitutional would have been available to the officers at the time of her established,” allegations violated were the though arrest. Even our discussion continued, necessity the Court “there is no probable cause limited to the criminal inquiries concerning for further claim, it trespass disposes of her malicious immunity.” Id. The final clause in that to all of prosecution respect claims with can ways, statement be read two and we her, charges brought against including times, employed readings. have both At burglary. Because failed to reasoned that the existence of a establish that a constitutional quali constitutional violation is violated, the officers are entitled to See, immunity inquiry. fied e.g., Kopec v. respect to the malicious (3d Tate, Cir.2004) (quot 361 F.3d prosecution claim as well. ing Murphy, Bennett v.

IV. Conclusion (3d Cir.2002) (“If fails make violation, out a arguments We have considered all of the end; immunity inquiry an the officer parties advanced and conclude that times, immunity.”)). is entitled to At other required. further discussion is Accord- we have declared that determination of the ingly, judgment of the District Court precedеs qualified constitutional issue im will be reversed. See, munity. e.g., Borough Carswell v. (3d Homestead, SMITH, Cir. Judge, concurring. Circuit 2004). Although I reach the same result as — majority, separately Haugen,

does the I write I that Brosseau v. believe U.S. -, explain my how in should charac- 160 L.Ed.2d 583 view we crowded, curiam), rigid clarifies the correct “order of (per battle” makes In reading question. on this Saucier little administrative sense and can some- Brosseau, the Court considered whether times lead to a constitutional decision clearly officer violated a established effectively that is insulated from review. right constitutional when the officer shot a J., (Breyer, 600-01 concur- fleeing suspect According in the back. to Stevens, ring).5 Justice dissenting, Court, separatе this was from the seemed equally convinced that the consti- question right the a constitutional whether tutional qualified immunity inquiries place. in the ex- was violated “We separate. Tallying are See id. at 601. the to press view as the correctness of the votes, I conclude that while some Justices on Appeals’ Court decision the constitu- rule, Supreme the Court do not like the itself,” explained, tional the Court question all nine require Justices read Saucier to that, id. at added believe “[w]e that, decided, separate inquiries, question however that is the a constitutional in- Appeals wrong Court of on the issue quiry qualified immunity and a inquiry, immunity.” of qualified Importantly, Id. eight and at least Justices believe the for- the provided Court this disclaimer: “We mer must the precede According- latter.6 have no occasion to our reconsider instruc- ly, that, I disagree majority with the tion in that lower [Saucier ] courts decide Brosseau, wake of is some dis- “[t]here question prior the constitutional to decid- Katz, agreement as to how Saucier ing qualified immunity question.” Id. which sets forth the concurring opinion at 598 n. 3. As the inquiry, should be interpreted.” emphasizes, point Brosseau this is not last majority appears attempt to to merely a matter of semantics. Joined avoid confusion relabeling the second Ginsburg, Justices Scalia and Justice prong of the Saucier test. Bros- Whereas Breyer stated: prong seau refers to the second I am concerned that the current rule addressing “qualified Saucier test as [requiring lower courts to consider the issue, immunity” majority refers to question constitutional before the that prong addressing “whether the immunity question] rigidly requires right clearly I established.” While unnecessarily to courts decide difficult motivating seeming- share the concern questions constitutional is there ly change, commonsensical I think it con- available an easier basis for the decision majority’s problem ceals the basic with the (e.g., immunity) that satis- will is,' approach. Supreme That Court factorily resolve the case before Indeed, clearly prong to court. when courts’ dockets are seems view second battle,” simply skip ahead prescribed of its "order of tion were a court favor part explained Court its clearly Saucier question the law estab- determining was unlaw- the course of whether a lished the officer's conduct [i]n right was violated on ful in the circumstances the case. premises alleged, might a court find it nec- 533 U.S. at 121 S.Ct. 2151. essary principles to set forth which will holding right Brosseau, become the basis for a that a concurring 6. Unlike the Justices in clearly process established. This is the clearly Stevens in dissent Justice did case, law’s for the elaboration from case majority agree that courts with the Brosseau insisting upon and it is one reason for our question must settle the constitutional before turning to the existence or nonexistence qualified immunity question. See 125 inquiry. a constitutional as the first at 601. might explana- deprived of this The law be 606 (en 2005) ),8 nor that banc holds failure “qualified test as the essential

the Saucier larger as of a immunity” inquiry triggers a constitutional violation establish —not Saucier, immunity inquiry. See qualified immunity. See Purcell v. qualified (“[bjecause 208, 533 121 S.Ct. 2151 (11th 1313, County, 400 F.3d 1324 Toombs granted only certiorari to determine we C.J.).9 Cir.2005) (Edmondson, As the ma immunity appropri- qualified holding seem to jority’s terminology ate, however, and because of the limits Brosseau, I believe me inconsonant with imposed by questions on us the on which the better employs the Eleventh Circuit review, a con- granted we will assume approach. have occurred on stitutional violation could ”). Ultimately, majority apparently the feels should do the alleged.... the facts We compelled same. to hold that the officers have immunity because “that was the qualified Unfortunately, my majority view the interlocutory appeal.” basis for this na compounds describing its error the words, ‍‌‌​​‌‌​‌​‌​​‌​‌​​‌‌​​​‌‌​‌​‌‌‌​​​‌​‌​‌‌​​​​​​‌​​‍majority other the seems believe by holding that inquiry ture of our “qualified immunity” in a that what arrived quali officers in this case were entitled to in a “failure envelope cannot be returned immunity fied because there was no consti disagree I Maj. Op. envelope. at 596 to state a claim” tutional violation. See (“[W]e majority conclude that there was no consti reasons. two Therefore, tutional violation. we hold that First, immu- purpose qualified of the entitled to im officers were nity “permit doctrine insubstantial is munity and we will reverse denial of the terminated,” quickly lawsuits to be Harlow summary judgment.”) officers’ motion for Fitzgerald, v. my knowledge, only To one of our sister (1982), 2727, i.e., 73 L.Ed.2d 396 to allow gone circuits has this far. See Riverdale the “dismissal of insubstantial lawsuits 55, Corp. Pimpare, Mills v. 392 F.3d 65 words, without trial.” Id. In other (1st Cir.2004) (holding government permitted essential reason we are to exer- agents qualified immunity were entitled to interlocutory jurisdiction cise because the failed to establish immunity is denied a district court constitutional violation under Saucier’s broadly is to determine whether dismissal contrast, prong).7 By the Eleventh appropriate. plaintiffs alle- is “Unless speaks Circuit neither of the im gations clearly state a claim of viоlation of munity consisting of steps, as 40,7 law, 1272, explained, established the Court has Stephens, see Evans v. F.3d (11th 1076603, pleading qualified immunity 2005 at *4 WL Cir. defendant County, Appeals 7.The other cases 8. But from Courts see Harris Coweta F.3d majority (11th Cir.2005) cited do speak of Saucier’s (describing two- immunity two-step qualified inquiry, plaintiffs step Saucier test as burden to show support do not cite Brosseau to that charac appropriate). is not Lee, Craighead terization. See 399 F.3d (8th Cir.2005) (considering Bros City, Meyers 9. See also v. Redwood 400 F.3d regarding seau 's instructions Saucier’s sec (9th Cir.2005) ("Although we con- prong); ond Beard v. Whitmore Lake Sch. clude that the did not violate the Defendants Dist., (6th Cir.2005) 402 F.3d Plaintiffs, given rights of the (same); Angels San Charter Jose Hells complexity question, we will address Jose, Motorcycle Club v. San question the easier Cir.2005) (9th (same). 978 n. well.”). Bruce, also Simkins v. 1240- (10th Cir.2005) (same). question negative, Ms. the commence swer before to dismissal entitled Forsyth, discovery.” Mitchell v. lacks a cause of action. That de- ment inquiry, termination end our should (1985) added). (emphasis “second, L.Ed.2d reach the should decline to Thus, quali evaluating Brosseau, court a claim immunity question.” “[a] fied wheth immunity must first determine at 597. alleged deprivation has er the all, so, at and if a constitutional that right

proceed to determine time of the clearly established at the Layne, 526 U.S. Wilson v.

violation.”

609, 119 1692, 143L.Ed.2d 818 omitted). added; my In citation

(emphasis stated, view, claim dis where no such VOCI, Petitioner Alket than on the ground missal on that —rather are immune—is ground that the officials appropriate. *, Attorney Alberto GONZALES Second, majority’s reasoning contra- States, General of the United two-step of the Saucier purpose

venes the Respondent above, As discussed Saucier’s inquiry. No. 04-1807. designed to force “order of battle” is precedent establish on the con- courts to of Appeals, United States Court rights provide of constitutional tours Third Circuit. law enforcement officers. guidance Argued May 201, 207, 121 S.Ct. 2151. may approach, a court find Applying 6, 2005. Filed June was con- alleged that an official’s conduct

stitutionally permissible or that the con-

duct, constitutionally impermissible, ‍‌‌​​‌‌​‌​‌​​‌​‌​​‌‌​​​‌‌​‌​‌‌‌​​​‌​‌​‌‌​​​​​​‌​​‍while “clearly line.

did not cross a established”

Referring to both of these scenarios as immunity” sends a

establishing “qualified offi-

confusing signal to law enforcement they may or concerning

cials what actions majority’s reasoning

may not take. The ironically potential to frus-

thus has “clearly estab- development

trate the law, very raison d’etre for Sau-

lished” two-step ’s test.

cier I foregoing, believe the view analytical course this case would

proper defendants

be first to consider whether the an- Because we

violated Constitution.

* 43(c). Attorney been substitut- General Gonzales has R.App. respondent pursuant to Fed. P. ed as

Case Details

Case Name: Wright v. City of Philadelphia

Court Name: Court of Appeals for the Third Circuit

Date Published: Jun 6, 2005

Citation: 409 F.3d 595

Docket Number: 03-1633

Court Abbreviation: 3rd Cir.