It is respectfully recommended that the motion for summary judgment filed by Plaintiff (ECF No. 40) be denied. It is further recommended that Defendants' motion for summary judgment (ECF No. 43) be denied.

II. Report

Plaintiff Daylan McLee (“McLee”), who brought this action pursuant to 42 U.S.C. § 1983, alleges that he was subjected to malicious prosecution in violation of his federal civil rights under the Fourth Amendment. Named as Defendants are Dale Brown (“Brown”), then a sergeant with the Pennsylvania State Police (“PSP”) and three PSP officers, Trooper Adam Sikorski (“Sikorski”), Trooper James Pierce (“Pierce”) and Corporal Kip Yarosh (“Yarosh”). McLee's claim arises out of an incident that occurred after midnight on March 20, 2016 at the American Legion in Dunbar Township, Fayette County, Pennsylvania (the “American Legion”).

Currently pending before the Court are the parties' cross-motions for summary judgment. For the reasons that follow, both motions should be denied.

A. Relevant Procedural History

McLee commenced this action on December 6, 2018. Federal question jurisdiction is premised upon the § 1983 claim of malicious prosecution in violation of the Fourth Amendment, 28 U.S.C. § 1331.

Following the close of discovery, the parties filed cross-motions for summary judgment (ECF Nos. 40, 43), which have been fully briefed (ECF Nos. 41, 44, 65, 68, 80, 81).

B. Factual Background

1. The Incident at the American Legion

At around 2:00 a.m. on March 20, 2016, Nathaniel Turner (“Turner”) drove McLee and Vachone Epps (“Epps”) to the American Legion. (Plaintiff's Concise Statement of Undisputed Material Facts (“PCSMF”) ¶ 1.) Shortly after they arrived, a fight broke out between several individuals inside the American Legion, but McLee, Turner, and Epps were not involved. Sikorski and his partner, Trooper Charles Smolleck (“Smolleck”), were on patrol duty at the time and were dispatched to the American Legion in response to allegations that a large fight was taking place. (Id. ¶¶ 2-4; Defendants' Concise Statement of Material Facts (“DCSMF”) ¶¶ 26, 38-39.)

ECF No. 42.

ECF No. 45.

Shortly thereafter, while McLee was in the American Legion's parking lot, he saw a male patron, known to him only as “O'Shea” [his full name is O'Shea Thomas]. Thomas appeared visibly angry and was armed with a firearm. McLee approached Thomas and spoke with him, eventually convincing him to hand over the gun. (DCSMF ¶¶ 28-31.)

According to McLee, after he took the firearm from Thomas, he immediately discarded it after taking only “four or five steps, ” at which point he “flicked it down” onto the ground. Plaintiff's Counterstatement to Defendants' Concise Statement of Material Facts (“PCDCSMF”) ¶ 32.) He “heard it hit the ground” and it wound up either partially or fully underneath a car in the parking lot. (McLee Dep. 63-64.) See DCSMF ¶¶ 34-35.

ECF No. 69.

ECF No. 47 Ex. 1.

Defendants state that McLee “took possession” of the gun (DCSMF ¶ 32). McLee responds that Brown acknowledged that he would not have charged McLee with “possession” of a weapon based upon his momentary touching of the gun while disarming Thomas, which occurred before PSP Troopers even arrived on the scene (PCDCSMF ¶ 32.) It is undisputed that the affidavit of probable cause prepared by Brown did not base the charge of possession on the incident with Thomas. See ECF No. 54 Ex. 30.

Troopers Sikorski and Smolleck were the first officers to arrive at the American Legion moments later. Sikorski exited from the passenger side of their vehicle and had a brief discussion with an individual “to ascertain whether anybody has been hurt in there, is there any weapons or anything like that.” (DCSMF ¶¶ 40-43.) At that point, an individual later identified as Dustyn Grogan (“Grogan”) fired a single shot from a handgun into the air. This caused all of the patrons of the American Legion to flee the area, including McLee. Smolleck, who saw Grogan fire the gunshot, responded by running directly towards him, while Sikorski took cover beside a nearby vehicle. (PCSMF ¶¶ 5-7; DCSMF ¶¶ 37, 44-45.) When Grogan ran into the building, Smolleck pursued him and was able to apprehend him without incident. (DCSMF ¶¶ 46, 49.)

According to Sikorski, as he took cover, he saw McLee standing in the middle of the parking lot in a “triangle isosceles” shooting position, pointing a large, black handgun directly at him. Sikorski screamed “drop the gun” but McLee did not comply. McLee began to flee toward the back of the parking lot, causing Sikorski to give chase. As he ran, McLee had both hands on the weapon. McLee stopped in the back of the parking lot and did not comply with Sikorski's commands to drop the weapon. Sikorski discharged his service weapon twice at McLee because McLee turned and continued to flee. Both rounds missed McLee and struck the front doorway of a nearby residential home. McLee then entered Turner's vehicle with the handgun and left the area of American Legion. McLee pointed the handgun at him only one time-from the middle of the parking lot-and never raised the weapon to him in the back of the parking lot before Sikorski opened fire. (PCSMF ¶¶ 8-15; DCSMF ¶¶ 54-55.)

Defendants did not dispute this statement, which is based on Sikorski's testimony at the preliminary hearing and at the criminal trial (Defendants' Response to Plaintiff's Concise Statement of Material Facts (“DRPCSMF”) ¶ 14).

Sikorski noted the license plate number of the car, which he radioed in. (DCSMF ¶ 56.) Turner's vehicle was ultimately pulled over by police officers from the Uniontown City Police Department, who detained Turner, Epps, and McLee without incident, and transported them to the PSP barracks in Uniontown for questioning. (PCSMF ¶ 16; DCSMF ¶¶ 69-71.)

According to the Uniontown Police Department Incident Report, they made a “felony traffic stop” (meaning that they expected to find a weapon in the car), but no weapons were found when the vehicle was searched. (ECF No. 46 Ex. 5.)

According to Sikorski, after calling in the license plate number, he spoke with Smolleck inside the American Legion. Smolleck states that Sikorski told him “There was a guy that pointed a gun at me. I fired at him. He threw the gun in a ditch and got into a car and drove away.” (DCSMF ¶¶ 57, 60-61.) McLee asserts that this statement is inconsistent with multiple other statements including Sikorski's March 29, 2016 statement to Brown; Smolleck's April 11, 2016 interview with Brown; and the transcription of Brown and Sikorski's November 18, 2016 viewing of the video. None of these contain a reference to McLee throwing a gun into a ditch. McLee also notes that as the record reflects, no one made any effort to secure a gun at that location. (PCDCSMF ¶ 61.)

The record includes other inconsistencies in Sikorski's statements about these events. At his deposition, Sikorski testified that just prior to entering Turner's vehicle, McLee (without turning around) made a gesture and said “I don't have the gun, ” which led Sikorski to conclude that “it had to be in that grass right where he got in the vehicle.” He also testified that he told his supervisor that the gun is “likely over there in the grass.” (DCSMF ¶¶ 56, 76.) According to McLee, this testimony contradicts Sikorski's sworn testimony at the subsequent preliminary hearing and the criminal trial that Defendant Pierce (who spoke to Sikorski at the scene) had no recollection of Sikorski telling him where the gun had been discarded and Pierce would have immediately secured the weapon if Sikorski had told him about it. Further the gun that was later attributed to McLee was not located until 8:55 a.m. (PCDCSMF ¶ 56; Plaintiff's Supplemental Counterstatement to Defendants' Concise Statement of Material Facts (“PSCDCSMF”) ¶ 56.)

ECF No. 73.

As will be discussed later in more detail, McLee also contends that the video evidence in this case does not support Sikorski's version of the events; rather, it shows that by the time Sikorski and Smolleck arrived at the American Legion, McLee did not have a weapon and that he never pointed a weapon at Sikorski. He further contends that, upon being shown the video evidence during discovery in this case, Brown, Pierce and Yarosh all agreed that it does not corroborate Sikorski's narrative that McLee pointed a gun at him. (PCSMF ¶¶ 20-22, 31-33, 5559, 63, 74-76.)

Because the incident at the American Legion included an officer-involved shooting, Sikorski was required to provide an oral “public safety statement” immediately following the shooting. According to Brown, a public safety statement “molds the investigation.” Sikorski states that a public safety statement is intended to “assure everybody that there's no longer a threat to the community and maybe just enough to put in a probable cause affidavit to arrest somebody.” (PCSMF ¶¶ 46-48; DCSMF ¶ 65.) Sikorski supplied his public safety statement to Corporal Alan Stasko. (DCSMF ¶ 64.)

Sikorski's public safety statement included the following facts: 1) McLee was in the middle of the parking lot pointing a large handgun at him; 2) Sikorski pursued McLee because of that and ended up in the back of the parking lot; 3) when he arrived at the back of the parking lot, he saw McLee with a gun in his left hand at his side standing next to somebody; 4) he told McLee in the back of the parking lot to drop the gun from his left hand, at which point McLee turned and fled; and 5) McLee only pointed a handgun at him one time. (PCSMF ¶ 49.)

The protocol in an officer-involved shooting is to remove an officer from the scene as soon as possible and restrict the officer from providing another statement for seventy-two hours after the incident. (DCSMF ¶¶ 66-67.) Defendants assert that the protocol was followed in this case, although they admit that Sikorski also spoke with Pierce at the scene. (DCSMF ¶ 68.) Again referencing the video, McLee contends that Sikorski did not leave the area for some time. An Incident Report records him as still being on the scene at 4:30 a.m. He may even have remained on site as late as 8:50 a.m. and spoken with Trooper Thomas Broadwater (who did not arrive at the American Legion until that time) in connection with Broadwater obtaining a search warrant. (PCDCSMF ¶¶ 66-67; PSCDCSMF ¶ 66 & n.3.)

2. The First McLee Interview and Recovery of a Firearm

McLee, Epps, and Turner were interviewed at the Uniontown Station by Pierce and Yarosh. The interviews were conducted in an interrogation room that was equipped with audio and video recording capabilities. (DCSMF ¶¶ 72-73.) Pierce and Yarosh were assigned this duty by Brown, the lead investigator in the case. (PCSMF ¶ 37.)

According to the police report and the affidavit of probable cause, McLee's interview began at 7:30 a.m. and ended at 8:25 a.m. (ECF No. 46 Ex. 6 at 15; ECF No. 54 Ex. 30.)

Defendants state that McLee initially gave a statement in which he denied having a firearm. The interview ended and McLee was returned to the lobby. (DCSMF ¶ 75.) While the first interview was audio and video recorded, there is no record of this interview because the recording was destroyed. (PCDCSMF ¶ 75; see also PCSMF ¶ 67.) Both Pierce and Yarosh admitted that in a second interview of McLee, he told them that he discarded the weapon immediately upon taking it from Thomas and that he did not know what kind of gun it was. (PSCDCSMF ¶ 75.)

This statement is not supported by the record evidence cited by Defendants. Although Pierce, Yarosh and Brown mentioned the first interview in their depositions, they did not assert what McLee was asked or what he said.

Yarosh's actual testimony was that he thought the interview had been recorded and he knew no reason why it would be destroyed. (Yarosh Dep. (ECF No. 54 Ex. 17) 58:1-7.) Pierce stated that the interview should have been recorded but was not. (Pierce Dep. (ECF No. 54 Ex. 16) 63:23-25.)

During the search at the American Legion on March 20, 2016, a handgun was found at approximately 8:55 a.m. in the grass near a stop sign at the intersection of Pershing Drive and Ridge Blvd. Pierce recalled being told that this 9mm Luger firearm was found “near the roadway, near where they got inside the vehicle.” (DCSMF ¶¶ 77-81.) Several other firearms were recovered at the scene. No forensic evidence linked the firearm found in the grass to McLee. At the criminal trial and in his deposition, Brown testified that he asked for a DNA and fingerprint analysis for the weapon found in the grass but it was cost prohibitive to perform the same and/or that the lab was backed up and the tests were not performed. (PCDCSMF ¶ 77; PSCDCSMF ¶ 77.) But see PSCDCSMF ¶ 79 (in reviewing the prelog requests, Brown admitted that there was no request made for forensic analysis for DNA or fingerprints).

3. Discovery of Video Evidence

The American Legion utilized an operational video surveillance system (“ALSV”), which captured video footage of the relevant events outside of the American Legion. After a search warrant for the video evidence was executed, the surveillance system was removed from the American Legion and brought to the PSP barracks in Uniontown. (DCSMF ¶¶ 82-84; PCSMF ¶ 17.) In addition, the patrol vehicle used by Sikorski and Smolleck was equipped with an operational mobile vehicle recording device (“MVR”), which also captured video footage from the events outside the American Legion. (PCSMF ¶ 18.)

On the day of McLee's interview, Pierce and Yarosh reviewed the ALSV video obtained from the American Legion and contend that it showed McLee “possessing” a gun. They then approached McLee after his first interview while he was in the lobby of the Uniontown Police Station and had further discussions with him. According to Pierce and Yarosh, they told McLee that the video showed that he had a gun and that a gun had been recovered from the American Legion. (DCSMF ¶¶ 85-88.) McLee was then permitted to view a portion of the American Legion video and according to Pierce and Yarosh, admitted that he “he wasn't being truthful.” They also state that, while viewing the video, McLee also indicated the weapon he obtained from Thomas was “a 9mm.” McLee disputes this, asserting in his counterstatement that there is “no evidence” that he was being untruthful or knew the type of gun that Thomas had. He then returned to the interview room where he gave a recorded statement. (DCSMF ¶¶ 89-91.)

Pierce and Yarosh both testified during discovery that the ALSV showed that McLee did not have a weapon on his person after he disarmed Thomas and immediately discarded it, all of which occurred before Sikorski and Smolleck arrived at the American Legion. (PCDCSMF ¶ 86.)

Contrary to McLee's response, however, Pierce provided deposition testimony about what McLee said. (Pierce Dep. (ECF No. 54 Ex. 16) 100, 108-09.) While the parties dispute the content of McLee's statements, it is undisputed that he did not convey this information during the second interview, which was recorded. Pierce admitted that if McLee had made a statement before being recorded about the type of gun that Thomas had, Pierce would have asked him the same question in the recorded interview because of its importance. (PCDCSMF ¶¶ 90-91; see also PCSMF ¶¶ 68-72.)

4. The Second McLee Interview

In the second McLee interview, McLee used an object, believed to be his cell phone, to demonstrate the manner by which he discarded Thomas' firearm after taking only a few steps. He discarded the weapon, “right in the grass. Right where I was at, I threw it.” He also stated: “As soon as I got it, (inaudible) the gun, as soon as I got it, I went like this; tossed it just like that. Didn't try to wipe it off or anything. Just-I just tossed it.” At this point, McLee did not know that Sikorski had claimed that he had pointed a loaded handgun directly at him. (PCSMF ¶¶ 68-71.) McLee made no admissions regarding the kind of gun Thomas had during this interview.

The recording of the second McLee interview indicates that it began at 9:18 a.m. and ended at 10:34 a.m. (ECF No. 54 Ex. 19.) The subsequent affidavit of probable cause states that the interview began at approximately 10:20 a.m.

The parties dispute certain aspects of this interview. Defendants assert that McLee said that he took possession of the firearm from Thomas; that he discarded it almost immediately upon receiving it; that he “threw it ... near the vehicle that [he] got in”; that he may have had Thomas' firearm when the State Police were at the American Legion; that he did not point the firearm at anybody; and that he was not honest with the State Police during the first interview. (DCSMF ¶ 92.)

McLee argues that Defendants' selective excerpts from the second McLee interview are misleading because they attempt to show that McLee dropped the gun just before entering the vehicle. He claims that the statement about him throwing the gun “near the vehicle that [he] got in” is ambiguous because he threw the gun on the ground near the location in the middle of the parking lot where Turner's vehicle was parked at the time, not near the location where he entered it later. He also asserts that as his entire interview makes clear, he took only a few steps after disarming Thomas; thus, Thomas's gun could not have been thrown into the grass near the intersection of Ridge Boulevard and Patton Street where the gun was found. (PCDCSMF ¶ 92.)

Despite Defendants' insistence that “[t]hese are Plaintiff's words” (ECF No. 65 at 10), McLee did not actually make this statement. Rather, he said “I threw it right in the grass. Right where I was at, I threw it.” Pierce then asked: “Near the vehicle that you got in?” McLee responded: “Yes. Right on the ground. Threw it.” (ECF No. 54 Ex. 19 at 6.)

Turner never left the vehicle but moved it toward the back of the parking lot after McLee disarmed Thomas and then onto Ridge Boulevard. In Turner's interview, he stated that the PSP patrol vehicle took the spot he was previously in and after he heard the gunshots, he was attempting to leave the American Legion when Epps and McLee entered the vehicle. See ECF No. 54 Ex. 8; ECF No. 46 Ex. 6 at 28.

McLee's demonstration to Pierce and Yarosh of how he discarded the gun after taking only a few steps contradicts the allegation that he kept it with him and carried it across the parking lot until just before he got into Turner's vehicle. McLee also argues that Brown falsely testified at the criminal trial that McLee “told us he dropped the firearm at the intersection of Ridge Boulevard and Patton Street at a stop sign in the grass. This firearm was recovered at Ridge Boulevard and Patton Street near the stop sign in the grass.” He also points out that Sikorski testified at his deposition that just before McLee entered the Turner vehicle he gestured and yelled out “I dropped the gun, ” thereby placing it in the ditch near Ridge Boulevard and Patton Street. This is contrary to Sikorski's testimony at the preliminary hearing and the criminal trial. (PCDCSMF ¶ 92; see also PSCDCSMF ¶ 75.)

5. The Criminal Complaint and Affidavit of Probable Cause

As the lead investigator, it was Brown's responsibility to prepare the criminal complaint and an affidavit of probable cause related to the events at the American Legion. Brown relied upon the following in filing criminal charges against McLee: (1) video surveillance (the ALSV and MVR); (2) Sikorski's public safety statement; and (3) Pierce and Yarosh's interviews of McLee, Turner and Epps. (PCSMF ¶¶ 36, 38, 79; see also DCSMF ¶ 112.) Prior to preparing the criminal complaint and an affidavit of probable cause related to the events at the American Legion, Brown watched the MVR and ALSV at least three or four times. (PCSMF ¶¶ 35, 53-54.) Brown did not review the recording from the second interview. Although the interviews of McLee and others were later documented in written reports by Pierce and Yarosh, Pierce and Yarosh orally communicated the substance of their interviews to Brown. (DCSMF ¶¶ 99-102.)

Defendants do not dispute McLee's factual statements that Brown was responsible for drafting and filing the criminal complaint and the affidavit of probable cause (DRPCSMF ¶¶ 36, 79). In their own Concise Statement, however, they contend that he did so at the direction of the District Attorney. This issue is discussed below.

According to Brown, the sole basis for issuing criminal charges against McLee for the events at the American Legion was Sikorski's allegation that he pointed a handgun at him. (PCSMF ¶¶ 35, 53, 56, 80.)

Later in the day on March 20, 2016, Brown prepared a criminal complaint that charged McLee with the following crimes:

1) aggravated assault, 18 Pa. C.S. § 2702(a)(2);

2) persons not to possess/use/manufacture, control, sell, transfer firearms, 18 Pa. C.S. § 6105(a)(1) ;

3) simple assault, 18 Pa. C.S. § 2701(a)(1);

4) recklessly endangering another person, 18 Pa. C.S. § 2705; and

5) disorderly conduct, 18 Pa. C.S. § 5503(a)(1).

(Id. ¶ 81; DCSMF ¶¶ 103, 114.)

McLee was not permitted to possess a firearm because he was on parole. (DCSMF ¶¶ 2-5, 18; ECF No. 46 Ex. 2.)

In a Criminal Information filed on August 18, 2016, an additional aggravated assault charge, 18 Pa. C.S. § 2702(a)(6), and a charge of receiving stolen property, 18 Pa. C.S. § 3925(a), were added.

These criminal charges were supported by an affidavit of probable cause (“Affidavit”), and Brown swore to its factual contents. All information included in the Affidavit came from either Sikorski, Pierce, or Yarosh. (PSCMF ¶¶ 82-83.)

The Affidavit states, in full:

Your affiant is Sergeant Dale J. BROWN, Criminal Investigation Section Supervisor, assigned to Troop B Washington. I have been a Pennsylvania State Police Trooper since 2004 and assigned to my current position since 2013.

This incident occurred in the following manner: On 03/20/16 at approximately 0210 hours, PSP Uniontown was notified of a disturbance at the American Legion located at 209 Ridge Blvd, Dunbar Twp, Fayette County. Troopers SIKORSKI and SMOLLECK arrived on scene at approximately 0210 hours. They were in full uniform and operating a marked patrol unit. At the scene, Trooper SMOLLECK observed a B/N-M holding a handgun and standing near a door to the American Legion. The B/N-M fired a round and fled into the American Legion. Trooper SMOLLECK followed that subject into the building.

Trooper SIKORSKI took cover behind a vehicle after the round was fired and noticed an unidentified B/N-M fleeing the scene and carrying a handgun. Trooper SIKORSKI gave multiple verbal comands [sic] for the unidentified male to drop the weapon. He observed that male turn and raise the weapon to him. At that time, Trooper SIKORSKI fired his issued service weapon two times. The rounds missed the now fleeing unidentified male. The male ran towards the roadway where he entered a silver SUV. There were two other B/N-M occupants inside of the SUV. The SUV left the scene with Trooper SIKORSKI chasing it on foot. Trooper SIKORSKI was able to radio a registration plate number West Virginia 8TF322 and a BOLO was released. Trooper SIKORSKI advised that the B/N-M was wearing a white t-shirt, black pants and had shorter hair.

Uniontown City Police Department Officers encountered the suspect SUV within Uniontown City. A traffic stop was conducted and three B/N-M's were found to be inside. All three men were detained and the vehicle was secured and towed to PSP Uniontown. The vehicle was found to be a 2007 Mazda CX-7 bearing West Virginia registration 8TF322. The three occupants of the vehicle were identified as Nathaniel Stephen TURNER, DOB: 08/05/88; Vachone T. EPPS, DOB: 12/07/79; and Daylan Matthew MCLEE, DOB: 06/03/89.

On 03/20/16 at approximately 0850 hours, a Kel-Tec 9mm pistol was located in the grass near the intersection of Ridge Blvd and Patton St.

MCLEE was interviewed on 03/20/16 at approximately 0730 hours at PSP Uniontown by Corporal Kip YAROSH and Trooper James PEIRCE [sic]. MCLEE initially denied any involvement in the altercation when he was interviewed. However, video surveillance from the American Legion became available and MCLEE was shown the video evidence of his involvement with the altercation. MCLEE was dressed in black pants, a white t-shirt and does have shorter, black hair. At that time, MCLEE admitted that he had lied during the initial interview and that he wanted to tell the truth.

On 03/20/16 at approximately 1020 hours, MCLEE was interviewed a second time by Corporal YAROSH and Trooper PIERCE. He acknowledged that he took a firearm from an acquaintance know [sic] to him as “OSHEA” because other people were trying to take the firearm off of “OSHEA.” MCLEE stated that the firearm was a 9mm pistol. He stated that he threw the firearm in the grass along the side of the road before getting into the SUV and leaving the scene. When shown the video, MCLEE indicated he had discarded the firearm at a location that would have placed it near the intersection of Ridge Blvd and Patton St. MCLEE also related that he heard a Trooper say “Drop it” but did not think the Trooper was talking to him because he only had the gun long enough to throw it in the grass. MCLEE denies pointing the pistol at the Trooper SIKORSKI.

Based upon the above facts, this officer believes that there is sufficient probable cause to make the defendant answer to the charges contained within this criminal complaint.

(PCSMF ¶ 84; ECF No. 54 Ex. 30.)

The abbreviation “B/N-M” means “Black, Non-Hispanic Male.”

According to Brown, he was not required to include, nor did he include, all material information into the Affidavit, including exculpatory information. (Id. ¶ 85.) The Affidavit omitted the fact that the video surveillance did not corroborate Sikorski's public safety statement and did not include any information learned through the interviews of Turner and Epps. (Id. ¶¶ 86-87.)

6. The Subsequent Criminal Proceedings

After Brown prepared and filed the criminal complaint and Affidavit, McLee appeared before a Magisterial District Judge for a preliminary arraignment on April 13, 2016, after which the criminal charges against him were held for court. After formal arraignment was waived, a Criminal Information was filed in the Court of Common Pleas of Fayette County in August 2016. (DCSMF ¶¶ 116-17, 119, 121.) Because he was on parole, these charges resulted in a detainer being lodged against him and he was incarcerated pending his trial. (PCDCSMF ¶ 118.)

A jury trial on the criminal charges against McLee commenced on March 6, 2017, in the Court of Common Pleas of Fayette County, Pennsylvania. McLee was acquitted of all the criminal charges on March 8, 2017, after spending over a year in prison. (DCSMF ¶¶ 122-23; PCSMF ¶ 88.) Ultimately, this lawsuit followed.

C. Standard of Review

As provided in Rule 56 of the Federal Rules of Civil Procedure, summary judgment shall be granted if there is “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Summary judgment may be granted against a party who fails to adduce facts sufficient to establish the existence of any element essential to that party's case, and for which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the initial burden of identifying evidence which demonstrates the absence of a genuine issue of material fact. Once that burden has been met, the non-moving party must set forth “specific facts showing that there is a genuine issue for trial” or the factual record will be taken as presented by the moving party and judgment will be entered as a matter of law. Matsushita Elec. Indus. Corp. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). An issue is genuine only if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court of Appeals has held that “where the movant bears the burden of proof at trial and the motion does not establish the absence of a genuine factual issue, the district court should deny summary judgment even if no opposing evidentiary matter is presented.” National State Bank v. Federal Reserve Bank, 979 F.2d 1579, 1582 (3d Cir. 1992).

In following this directive, a court must take the facts in the light most favorable to the non-moving party and draw all reasonable inferences and resolve all doubts in that party's favor. Hugh v. Butler County Family YMCA, 418 F.3d 265, 266 (3d Cir. 2005); Doe v. County of Centre, Pa., 242 F.3d 437, 446 (3d Cir. 2001).

The parties have filed cross-motions for summary judgment. Because the relevant facts and law overlap to a significant degree, many of the matters at issue will be addressed and resolved as they relate to both motions.

D. Analysis

As provided in 42 U.S.C. § 1983:

Every person who, under color of any statute, ordinance, regulation, custom, or usage of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or any other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress....

As the Supreme Court has held, § 1983 “is not itself a source of substantive rights, but a method for vindicating federal rights elsewhere conferred by those parts of the United States Constitution and federal statutes that it describes.” Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979). “The first step in any such claim is to identify the specific constitutional right allegedly infringed.” Albright v. Oliver, 510 U.S. 266, 271 (1994). See also Baker, 443 U.S. at 140; Graham v. Connor, 490 U.S. 386, 394 (1989).

Defendants concede that as state troopers, they were acting “under color of state law.” (ECF No. 44 at 9 n.3.) Thus, the disputed issue is whether they deprived McLee of “rights, privileges and immunities secured by the constitution or laws of the United States.” Shaw v. Stackhouse, 920 F.2d 1135, 1141-42 (3d Cir. 1990).

McLee has asserted a claim of malicious prosecution against Defendants. A malicious prosecution claim is governed by the Fourth Amendment. See Johnson v. Knorr, 477 F.3d 75, 82 (3d Cir. 2007). In order to prove a cause of action for malicious prosecution under the Fourth Amendment, McLee must show that:

(1) the defendant initiated a criminal proceeding; (2) the criminal proceeding ended in his favor; (3) the defendant initiated the proceeding without probable cause; (4) the defendant acted maliciously or for a purpose other than bringing the plaintiff to justice; and (5) the plaintiff suffered deprivation of liberty consistent with the concept of seizure as a consequence of a legal proceeding.

Johnson, 477 F.3d at 81-82 (citing Estate of Smith v. Marasco, 318 F.3d 497, 521 (3d Cir. 2003) (footnote omitted). In this case, the first two requisite elements are undisputed. The parties' primary focus is on the third element, and vigorously dispute whether the criminal proceeding against McLee was initiated with probable cause.

1. Probable Cause

As stated by the Court of Appeals regarding the issue of probable cause in a malicious prosecution claim:

Courts should exercise caution before granting a defendant summary judgment in a malicious prosecution case when there is a question of whether there was probable cause for the initiation of the criminal proceeding because, “[g]enerally, the existence of probable cause is a factual issue.” Groman v. Twp. of Manalapan, 47 F.3d 628, 635 (3d Cir. 1995). It certainly is inappropriate for a court to grant a defendant officer's motion for summary judgment in a malicious prosecution case if there are underlying factual disputes bearing on the issue or if “reasonable minds could differ” on whether he had probable cause for the institution of the criminal proceedings based on the information available to him.

Halsey v. Pfeiffer, 750 F.3d 273, 300 (3d Cir. 2014). “An officer contemplating an arrest is not free to disregard plainly exculpatory evidence, even if substantial inculpatory evidence (standing by itself) suggests that probable cause exists.” Wilson v. Russo, 212 F.3d 781, 790 (3d Cir. 2000) (citation omitted).

When an arrest is based on a valid warrant, courts conduct a two-pronged analysis to determine whether probable cause existed. See Andrews v. Schiulli, 853 F.3d 690, 697 (3d Cir. 2017). They ask, “first, whether the officers, with at least a reckless disregard for the truth, made false statements or omissions that created a falsehood in applying for the warrant, and second, whether those assertions or omissions were material, or necessary, to the finding of probable cause.” Id. (citing Wilson, 212 F.3d at 786-87 (internal quotation marks and alteration omitted)).

McLee contends that based upon the evidence available to Brown, Defendants brought charges against him without probable cause. In turn, Defendants argue that Brown's reliance on Sikorski's eyewitness account that McLee pointed a gun at him is sufficient to establish probable cause. See Johnson v. Logan, 2016 WL 7187842, *6 (W.D. Pa. Dec. 12, 2016) (“Notably, a positive identification by a victim witness is usually sufficient-on its own-to establish probable cause.”) (citing Wilson, 212 F.3d at 790), aff'd, 721 Fed.Appx. 205 (3d Cir. 2018). As the Court of Appeals went on to state in Wilson, however:

While we agree that a positive identification by a victim witness, without more, would usually be sufficient to establish probable cause, this qualified precept cannot be rendered absolute. Independent exculpatory evidence or substantial evidence of the witness's own unreliability that is known by the arresting officers could outweigh the identification such that probable cause would not exist. Each case must therefore be examined on its facts.

212 F.3d at 790. See also id. at 791 (courts have consistently considered the context of an identification); see also Andrews, 853 F.3d at 701 (same). Recently, in Harvard v. Cesnalis, 973 F.3d 190 (3d Cir. 2020), the Court of Appeals reviewed the case of a police officer who referred to the actual assailant of an incident as “the victim” and entirely credited his version of events. Because the officer had included materially false information or omitted material information from the affidavit of probable cause, the Court of Appeals vacated the district court's grant of summary judgment to the defendant with respect to the plaintiff's malicious prosecution claim. Id. at 203-04.

In addition to asserting that they had probable cause to arrest McLee for charges related to pointing a firearm at Sikorski, Defendants also argue that they had probable cause for charging McLee with unlawful possession of a firearm based upon his admission that he “possessed” a gun when he disarmed Thomas. As noted above, however, all of the charges against McLee were based on the premise that he pointed a loaded gun at Sikorski (ECF No. 54 Ex. 30; Brown Dep. (ECF No. 48 Ex. 2) 88:25-89:4. Indeed, Brown's undisputed testimony is that he would not have filed charges against McLee for “possessing” a gun for the few seconds it took him to disarm Thomas. (Brown Dep. (ECF No. 48 Ex. 2) 123:14-124:4.).

Defendants assert that McLee himself admitted that he may have still been holding the gun when Sikorski arrived, citing his second interview statement that “the gun was already out of my hands probably five to ten seconds before he even said [‘drop the gun.']” (ECF No. 54 Ex. 19 at 12.) However, the ALSV establishes that 52 seconds elapsed between the time McLee discarded Thomas' weapon (1:09:41) and when Sikorski claimed that he saw McLee pointing a gun at him (1:10:33). See Dempsey v. Bucknell Univ., 834 F.3d 457, 481 (3d Cir. 2016) (noting that witnesses' estimates of time are “notoriously inaccurate.”)

Moreover, Defendants' support for their argument that they had probable cause to arrest McLee for unlawful possession based on his act of disarming of Thomas is far from persuasive. They base this argument on cases holding that in order to prove possession, an individual must have had actual physical possession of the weapon or the power of control with the intent to exercise that control. In re R.N., 951 A.2d 363, 369-70 (Pa. Super. 2008) (citation omitted). But they have cited no authority to support their argument that momentarily taking a gun in order to disarm an individual who posed a threat constitutes “unlawful possession.” See, e.g., Commonwealth v. Miklos, 159 A.3d 962, 968 (Pa. Super.), appeal denied, 170 A.3d 1042 (Pa. 2017) (Commonwealth had the burden to demonstrate that defendant had the intent to possess a firearm for him to be guilty of violating 18 Pa. C.S. § 6105(a)).

Sikorski's statement was not the only evidence available to Brown. He also had access to both videos of the incident itself, which he reviewed multiple times prior to drafting the Affidavit. He also had the benefit of information gained from the interviews of McLee. Thus, Sikorski's statement would be sufficient in and of itself to establish probable cause only if his statement was not contradicted by other evidence reviewed by Brown before he prepared the Affidavit. While Defendants contend that officers are not constitutionally required to “investigate independently every claim of innocence” once they have probable cause for arrest, see Waters v. Cheltenham Twp., 700 Fed.Appx. 149, 153 (3d Cir. 2017) (citing Baker, 443 U.S. at 146), in Waters, the video exculpatory evidence did not become available until after the arrest warrant was sought. Here, Brown reviewed the video evidence before filing the charges against McLee. Defendants also cite Merkle v. Upper Dublin School District, in which the Court of Appeals rejected a claim that police lacked probable cause to arrest a teacher because they failed to conduct further interviews, stating that they “had every reason to believe a credible report from a school principal who witnessed the alleged crime.” 211 F.3d 782, 790 n.8 (3d Cir. 2000). Here, the central issue is not whether Brown should have sought additional evidence, but whether he properly ignored exculpatory evidence already in his possession.

Thus, whether probable cause existed must be viewed in light of all of the evidence available to Brown and his determination about what evidence upon which to rely, or not, as outlined below. Simply put, the inquiry here centers on whether the charges against McLee were based on false statements, or omissions that created a falsehood, that were material to a finding of probable cause.

Defendants correctly point out that as the Court of Appeals has held, “in reviewing probable cause determinations made by law enforcement, the role of the courts is not that of the much-maligned ‘Monday morning quarterback' whose critiques are made possible only by the benefits of hindsight. Rather, federal courts review the record to ensure that the proper procedure for determining probable cause was followed.” Dempsey, 834 F.3d at 469. Courts must focus their inquiry on whether the officer's belief was reasonable “in light of the information [he] possessed at the time of the arrest.” Harris v. Jacobs, 2012 WL 4109052, at *7 (E.D. Pa. Sept. 19, 2012) (quoting Wooleyhan v. Cape Henlopen School District, 2011 WL 1875710, at *9 (D. Del. May 17, 2011) (internal citation omitted). “The probable cause inquiry looks to the totality of the circumstances; the standard does not require that officers correctly resolve conflicting evidence or that their determinations of credibility, were, in retrospect, accurate.” Wright v. City of Philadelphia, 409 F.3d 595, 603 (3d Cir. 2005).

McLee's contention that probable cause did not exist is based in part on evidence that was not available to Defendants at the time. He prepared and submitted a synchronized video that purportedly shows exactly where Sikorski was at the moment when he claims McLee pointed a gun at him. Of course, this synchronized video was not and could not have been viewed by Brown before he prepared the Affidavit. Therefore, this inquiry must be limited to the evidence that Brown actually acquired, reviewed, relied upon or chose to exclude in drafting the Affidavit.

The Videos

According to Sikorski, at exactly 01:10:33 on the ALSV counter, McLee can be seen standing in the middle of the American Legion parking lot, pointing a large, black handgun directly at him in an isosceles triangle shooting position. McLee counters that the MVR establishes that Sikorski is facing towards the American Legion for about five seconds after Grogan fired a round into the air. Similarly, he notes, the ALSV shows that during those same five seconds, McLee is running toward the back of the parking lot, away from the gunfire, and away from Sikorski. (PCSMF ¶¶ 23-24.)

According to reports provided by the PSP, the conversion of the ALSV is 25 hours from the actual time (PCSMF ¶ 17 n.2.) Thus, 01:10:33 a.m. would be 2:10:33 a.m.

McLee had the ALSV and MRV, which have different time stamps, synchronized to show the events from that night on a single screen (ECF No. 54 Ex. 13). His Concise Statement contends that the synchronized video establishes where Sikorski was at the exact moment that he claims McLee was pointing a gun at him. (Id. ¶¶ 25-27.) However, as Defendants appropriately note, this synchronized video did not exist when Brown reviewed each video. Thus, the Court cannot rely upon the synchronized videos to resolve the motions for summary judgment.

McLee also asserts that the ALSV conclusively establishes that, by the time Sikorski and Smolleck arrived at the American Legion, he no longer had a weapon. He further asserts that the ALSV also establishes that he never pointed a loaded handgun at Sikorski, or at anyone else, at the American Legion at any time on March 20, 2016. (PCSMF ¶¶ 17-22.)

Defendants deny this statement, contending that the ALSV “stands for itself.” (DRPCSMF ¶¶ 20-22.) However, they do not contend that the ALSV shows McLee pointing a gun at Sikorski.

The Supreme Court's holding in Scott v. Harris, 550 U.S. 372 (2007), is significant to the analysis of McLee's assertions. In Scott, a motorist who was fleeing from police contended that he was not driving recklessly. However, a videotape of the events at issue flatly contradicted his allegations. Id. at 379-80. The Court held that: “When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Id. at 380. See also Morgan v. Borough of Fanwood, 680 Fed.Appx. 76, 80 (3d Cir. 2017) (“when, as here, there is reliable video footage of the facts in the record, we view the facts in the light as depicted by the videotape.”) With this principle in mind, the Court turns to the video evidence.

McLee contends that upon reviewing the videos, the following sequence of relevant events can be observed:

• McLee and Epps enter the American Legion while Turner stops the car outside the side entrance of the building;

• Sikorski and Smolleck begin driving toward the American Legion;

• Thomas, who can be seen holding a black handgun in his right hand, is pushed back from entering the American Legion by a group of individuals who are exiting at the same time; then he can be seen being “talked down” by a security guard and spoken to by a group of other individuals;

• McLee engages in a short verbal altercation with a woman until they ultimately hug twice;

• McLee sees Thomas holding the handgun, McLee and a group of other people move Thomas away from the building entrance, McLee eventually approaches Thomas, disarms him, and immediately discards the gun;

• McLee can be seen walking toward the American Legion side entrance until he is told to go to a different entrance by a security guard and as he turns and walks in that direction, he does not have a handgun on his person or in his hands;

• Sikorski and Smolleck arrive at the American Legion;

• Grogan, who is holding a handgun, moves toward the side entrance of the American Legion;

• A plume of smoke from a gunshot that Grogan fired into the air at the side entrance can be seen on both videos;

• Smolleck runs toward Grogan, while Sikorski can be seen taking cover behind a nearby SUV;

• Sikorski runs toward the back of the parking lot with his gun drawn;

• Sikorski fires his gun at McLee and misses;

• Sikorski chases McLee and Epps, who ultimately enter Turner's vehicle, which then leaves the American Legion; and

• Sikorski makes two radio transmissions as he makes his way back to the American Legion where Smolleck has detained Grogan. (Id. ¶ 42.)

McLee relies on the synchronized video to demonstrate that, at the moment Sikorski contends that he saw McLee pointing a gun at him, Sikorski was in fact facing away from McLee and by the time he actually sees him, McLee is running toward the back of the parking lot. (Id. ¶¶ 4345.) However, as noted above, Defendants did not have access to the synchronized video.

Brown, Pierce and Yarosh all acknowledge that the best evidence relating to the events at issue are these two videos. Brown watched the ALSV and MVR three or four times before filing criminal charges against McLee. (Id. ¶¶ 39-41.) He claims that the video evidence was “not conclusive.” (DCSMF ¶ 113.) However, when questioned during his deposition, he testified that neither the MVR nor the ALSV reveals any evidence that supports the claims Sikorski made in his public safety statement against McLee. (PCSMF ¶¶ 55-56.) Brown also admitted during his deposition that after Sikorski arrived at the American Legion, there is no evidence that McLee acquired-and had any ability to acquire-a handgun before or after Grogan discharged his weapon. Further, as he acknowledged, neither the ALSV nor the MVR shows McLee ever pointing a handgun at Sikorski or taking a military-style stance facing Sikorski. (PCSMF ¶¶ 2933, 57.) In fact, Brown admitted during discovery that when Sikorski and Smolleck arrived at the American Legion, the ALSV shows McLee walking in a direction away from them-and specifically, away from Sikorski-and that he did not have a weapon. (Id. ¶ 34.) Moreover, Sikorski is facing the American Legion, with his back toward McLee, at the time that Sikorski claims he saw McLee pointing a large, black handgun at him. (PCSMF ¶¶ 58-59.) Further, Brown admitted when he was deposed that in the moments before Sikorski arrives at the American Legion, video surveillance does not show McLee armed with a weapon. In fact, there is no point in time in either video in which Brown observed McLee in the possession of a large, black handgun. Defendants do not offer any explanation as to why Brown was able to draw these conclusions when deposed but found the videos “inconclusive” when he was tasked with determining if there was probable cause to charge McLee.

Brown later testified at his deposition that “there is no close call with me. It's either it happened or it didn't happen.” (Brown Dep. (ECF No. 48 Ex. 2) 114:8-9.)

Defendants dispute this statement (DRPCSMF ¶ 57) but cite no supporting evidence.

The undersigned has watched the ALSV multiple times and concludes that it does not corroborate Sikorski's statement. It is consistent with and corroborates much, but not all, of McLee's version of the events. The video clearly shows a person later identified as Thomas holding a large, black gun and a group of individuals, including McLee, moving him away from the side entrance to the American Legion. The video does not clearly show McLee disarming Thomas and discarding the gun; it shows him reaching toward Thomas and backing away toward a car. However, a few seconds after this interaction, McLee comes close enough to the camera to show that he does not have a gun in his hands, or one that is otherwise visible on his person. There is no visible evidence that Thomas, who also approaches the camera, is still carrying a gun. Thus, there is no evidence in the videos that McLee had a gun on his person before Grogan fires a shot into the air, which is just before Sikorski contends that he saw McLee pointing a gun at him. The ALSV shows Grogan holding a gun and walking toward the side entrance of the American Legion. In the seconds after Grogan fires a shot into the air (the plume of smoke is visible on both videos), McLee can be seen running toward the back of the parking lot. When he ducks behind a vehicle just after Grogan fires the gun, Sikorski is not facing in the direction of the parking lot where McLee was located. The video then shows both McLee and Sikorski running into the back of the parking lot and McLee getting into a car and leaving the American Legion. The events at the back of the parking lot are not clearly visible.

Indeed, because Sikorski contends that he saw McLee pointing a gun at him right after he heard a shot go off and the plume of smoke from the shot is visible in both videos, it is not necessary to refer to the synchronized video to pinpoint the respective positions of McLee and Sikorski at that time.

Other evidence available to Brown

As discussed above, law enforcement officers are required to provide all relevant information, which “ensures that a police officer does not ‘make unilateral decisions about the materiality of information, or, after satisfying him or herself that probable cause exists, merely inform the magistrate or judge of inculpatory evidence.'” Reedy v. Evanson, 615 F.3d 197, 213 (3d Cir. 2010) (quoting Wilson, 212 F.3d at 787). This enables a magistrate to decide independently, on the basis of an affidavit containing all relevant information, whether the circumstances give rise to probable cause.

According to Defendants, McLee denied having a firearm in his first interview. Pierce and Yarosh then reviewed the ALSV and told McLee that it showed him with a gun in his possession. Defendants assert that McLee then watched the video and admitted that he hadn't been truthful about this issue. They relayed this information to Brown.

Pierce now admits that neither the MVR nor the ALSV show McLee possessing a firearm as he had claimed in his investigative report. (PCSMF ¶¶ 61-63, 72-75.) Defendants deny this statement but cite no evidence in support of their denial. In his deposition (ECF No. 47 Ex. 16), Pierce was asked if he saw McLee pointing a gun at Sikorski and replied “No, not from the video that I watched.” (Pierce Dep. (ECF No. 54 Ex. 16) 78:21-24.)

Pierce and Yarosh also told Brown that during his second interview, McLee described how he took a weapon from Thomas and as soon as he had done so, threw it away without looking at it or wiping it for fingerprints. He also stated that he threw it “right in the grass. Right where I was at, I threw it.” (ECF No. 54 Ex. 19 at 6.) At his deposition, Brown admitted that Pierce and Yarosh informed him that McLee repeatedly told them that he only had the gun for a few seconds before throwing it away. (Brown Dep. (ECF No. 48 Ex. 2) 109:21-25.) When asked why he did not put this information into his Affidavit, Brown responded as follows:

Pierce also knew that McLee never said that he threw the gun at a location near the intersection of Ridge Boulevard and Patton Street as the Affidavit stated. (PCSMF ¶¶ 76-77.)

It wouldn't make a difference. He had already lied initially.

Why-why-what is there to change my opinion? There was nothing-there was nothing to show that Trooper Sikorski was lying to me, but yet Mr. McLee had already lied and then wanted to recant his statement. So the fact that he's saying no, I didn't point the weapon, but I'm watching the video and I can see to me it doesn't look like he's running straight across the parking lot. There's some type of movement there. I have to assume that he's lying about that as well, so...

(Id. at 110:5-16.) When asked to elaborate, Brown testified:

In his first statement, he-he says that he didn't know [Thomas], didn't-wasn't involved in any way, shape or form, basically just walked out the building and left. After he's told that there's video evidence showing him with [Thomas] and getting the gun, he decides, okay, now I'm going to tell the truth. He has already lied once. You know, he's only giving us a partial statement, which people do all the time, trying to minimize their involvement.

(Id. at 111:22-112:5.)

Nevertheless, Brown included McLee's denial that he pointed a gun at Sikorski in the Affidavit as well as McLee's acknowledgment that he heard a trooper say “drop it” but did not think the trooper was talking to him because he had already disposed of the gun. Brown did not believe these statements either. (Brown Dep. 111-112, 114.)

Defendants contend that McLee has asserted that Brown recklessly omitted from the Affidavit McLee's denial of pointing a gun at Sikorski (ECF No. 44 at 22). However, McLee does not make this assertion and the Affidavit includes this information.

In his public safety statement, Sikorski indicated that as he was taking cover behind a vehicle, he looked up and saw an individual later identified as McLee pointing a gun at him while in a military-style stance. He ordered McLee to drop the weapon but he did not. McLee then ran towards the back of the parking lot, at which point he turned to face Sikorski again but did not point the gun at him. Because McLee refused to drop the gun, Sikorski stated, he fired two shots at him but missed, and McLee then ran and got into a departing vehicle.

The Affidavit does not include these statements from Sikorski. Rather, it states only that “Trooper Sikorski noticed an unidentified [Black, Non-Hispanic Man] fleeing the scene and carrying a handgun. Trooper Sikorski gave multiple verbal commands for the unidentified male to drop the weapon. He observed the male turn and raise the weapon to him. At that time, Trooper Sikorski fired his issued service weapons two times.” (ECF No. 54 Ex. 30.)

McLee contends that in the Affidavit, Brown altered the sequence of events reported by Sikorski. Because Brown's sequence of events does not correspond to Sikorski's, this suggests that McLee could have pointed a gun at Sikorski from the back of the parking lot in an area near where a gun was found, even though this was not Sikorski's story. The video is too grainy and the events situated too far away to confirm what actually occurred in the back of the parking lot. Notably, Brown also did not account for the absence of any video evidence that McLee “possessed” a gun or adopted a military stance and pointed a weapon at Sikorski.

Brown claims that he did not speak with Sikorski prior to filing the charges but had no reason to believe that Sikorski had provided him with false information; however, he found the video “inconclusive” on the issue of whether McLee pointed a loaded gun at Sikorski. (DCSMF ¶¶ 111, 113.) According to McLee, Brown admitted during his deposition that Sikorski's central allegation-that McLee pointed a gun at him from the middle of the parking lot while standing in a military-like firing position-is not borne out by the video, that he omitted this information from his Affidavit and that he changed the description so that McLee was alleged to have pointed the gun at Sikorski in the back of the parking lot, a version of the events that the video could neither corroborate nor refute. (PCDCSMF ¶¶ 111, 113.)

Reconstruction of Affidavit

The Court of Appeals has held that “when a court determines that information was asserted or omitted in an affidavit of probable cause with at least reckless disregard for the truth, it must perform a word-by-word reconstruction of the affidavit.” Dempsey, 834 F.3d at 470. Here, the record reflects that certain information was omitted from the Affidavit and/or was misleading as to the sequence of events. Thus, the final stage of the analysis is to reconstruct the Affidavit with missing relevant information that a reasonable officer would want a judge to know. The reconstructed affidavit would contain the following information (added information in bold, excised information noted by strike out):

Your affiant is Sergeant Dale J. BROWN, Criminal Investigation Section Supervisor, assigned to Troop B Washington. I have been a Pennsylvania State Police Trooper since 2004 and assigned to my current position since 2013.

This incident occurred in the following manner: On 03/20/16 at approximately 0210 hours, PSP Uniontown was notified of a disturbance at the American Legion located at 209 Ridge Blvd, Dunbar Twp, Fayette County. Troopers SIKORSKI and SMOLLECK arrived on scene at approximately 0210 hours. They were in full uniform and operating a marked patrol unit. At the scene, Trooper SMOLLECK observed a B/N-M holding a handgun and standing near a door to the American Legion. The B/N-M fired a round and fled into the American Legion. Trooper SMOLLECK followed that subject into the building.

Trooper SIKORSKI took cover behind a vehicle after the round was fired and noticed an unidentified B/N-M standing in a military-style position pointing a large, black handgun at him from the middle of the parking lot fleeing the scene and carrying a handgun. Trooper SIKORSKI gave multiple verbal comands [sic] for the unidentified male to drop the weapon. He observed that male run to the back of the parking lot and turn, and- although he did not raise the weapon to him a second time. At that time, Trooper SIKORSKI fired his issued service weapon two times. The rounds missed the now fleeing unidentified male. The male ran towards the roadway where he entered a silver SUV. There were two other B/N-M occupants inside of the SUV. The SUV left the scene with Trooper SIKORSKI chasing it on foot. Trooper SIKORSKI was able to radio a registration plate number West Virginia 8TF322 and a BOLO was released. Trooper SIKORSKI advised that the B/N-M was wearing a white t-shirt, black pants and had shorter hair.

Uniontown City Police Department Officers encountered the suspect SUV within Uniontown City. A traffic stop was conducted and three B/N-M's were found to be inside. All three men were detained and the vehicle was secured and towed to PSP Uniontown. The vehicle was found to be a 2007 Mazda CX-7 bearing West Virginia registration 8TF322. The three occupants of the vehicle were identified as Nathaniel Stephen TURNER, DOB: 08/05/88; Vachone T. EPPS, DOB: 12/07/79; and Daylan Matthew MCLEE, DOB: 06/03/89.

On 03/20/16 at approximately 0850 hours, a Kel-Tec 9mm pistol was located in the grass near the intersection of Ridge Blvd and Patton St., near the area where the three individuals drove off in the SUV. Several other guns were also located in and around the premises of the American Legion following this incident.

MCLEE was interviewed on 03/20/16 at approximately 0730 hours at PSP Uniontown by Corporal Kip YAROSH and Trooper James PEIRCE [sic]. MCLEE initially denied having a gun or pointing a gun at SIKORSKI. any involvement in the altercation when he was interviewed. However, video surveillance from the American Legion became available and it showed that MCLEE could have obtained a gun when he appeared to disarm another B/N-M of a gun in the parking lot before SMOLLECK and SIKORSKI arrived. MCLEE was shown the video evidence. of his involvement with the altercation. MCLEE was dressed in black pants, a white t-shirt and does have shorter, black hair. At that time, MCLEE stated that he had not been truthful and would be willing to be interviewed again to address his involvement in disarming the B/N-M. admitted that he had lied during the initial interview and that he wanted to tell the truth.

On 03/20/16 at approximately 1020 hours, MCLEE was interviewed a second time by Corporal YAROSH and Trooper PIERCE. He acknowledged that he took a firearm from an acquaintance know [sic] to him as “OSHEA” so that no one would get hurt, including his sister, who was also at the American Legion that night. because other people were trying to take the firearm off of “OSHEA.” MCLEE stated that this firearm was a 9mm pistol after being advised that a 9mm gun was found at the scene. He stated that he took only two or three steps and discarded the weapon in the middle of the parking lot. He stated that he threw it “right in the grass. Right where I was at, I threw it.” He also stated: “As soon as I got it, (inaudible) the gun, as soon as I got it, I went like this; tossed it just like that. Didn't try to wipe it off or anything. Just-I just tossed it.” He further stated that, after he heard a gunshot, he ran to the back of the parking lot and gothe threw the firearm in the grass along the side of the road before getting into the SUV and left leaving the scene. When shown the video, MCLEE indicated he had discarded the firearm at a location that would have placed it near the intersection of Ridge Blvd and Patton St. MCLEE also related that he heard a Trooper say “Drop it” but did not think the Trooper was talking to him because he only had the gun long enough to throw it away as described above in the grass. MCLEE denies pointing the pistol at the Trooper SIKORSKI.

This officer has reviewed the video from the American Legion, as well as the mobile video recording recovered from the patrol vehicle driven by SMOLLECK and SIKORSKI. The American Legion video shows MCLEE reaching toward another B/N-M as if to disarm him of a gun and then moving backward toward a car. The video does not show MCLEE discarding the weapon, but when he walks closer to the camera a few seconds later, he does not appear to have a gun on his person or in his hands nor does “OSHEA.” All of this occurs before SIKORSKI and SMOLLECK arrive. After they arrive and a gun shot is fired by another individual, the American Legion video shows MCLEE moving in the opposite direction from SIKORSKI. The video does not show MCLEE taking a military stance while pointing a gun at SIKORSKI in the middle of the parking lot, or possessing a gun at any time.

The Kel-Tech 9mm pistol that was found in the grass near the intersection of Ridge Blvd. and Patton St. has not yet been tested for fingerprints or DNA.

Based upon the above facts, this officer believes that there is sufficient probable cause to make the defendant answer to the charges contained within his criminal complaint.

Based upon the evidence of record, the Court finds that Defendants failed to demonstrate as a matter of law that probable cause existed to arrest McLee. The videos are the best evidence of what occurred at the American Legion. Upon reviewing the videos pursuant to Scott v. Harris, the Court is compelled to reject Sikorski's version of the events for purposes of Defendants' motion for summary judgment. While not entirely conclusive regarding events that may have occurred in the back of the parking lot, they do refute Sikorski's claim that McLee adopted a military stance and pointed a gun at Sikorski in the middle of the parking lot. As Brown admits, every charge filed against McLee was associated with this statement.

With respect to McLee's motion, the reconstructed Affidavit establishes that there was not probable cause to arrest McLee for the asserted crimes. As previously discussed, even if Brown concluded that McLee was not being truthful, the video contradicts Sikorski's version of the events. It does not show McLee positioned in the middle of the American Legion parking lot pointing a handgun at Sikorski. Indeed, it omits this key element of Sikorski's story and portrays the events in a different manner. There is no evidence other than Sikorski's disputed statement that McLee possessed a gun at any time after Sikorski arrived. Thus, the charges of aggravated assault, simple assault, possession of a firearm and disorderly conduct were not supported by probable cause.

2. Malice

The parties also dispute the remaining element of malice. “Legal malice in the context of a claim for malicious prosecution may be found where the defendant is motivated by hatred or ill will, or where his actions evidence a ‘reckless and oppressive disregard of the plaintiff's rights.'” Doherty v. Haverford Twp., 513 F.Supp.2d 399, 409 (E.D. Pa. 2007) (quoting Hugee v. Pennsylvania R.R. Co., 101 A.2d 740, 743 (Pa. 1954)). Defendants argue that McLee has not submitted any evidence of malice.

McLee takes the position that malice may be inferred when a plaintiff demonstrates the lack of probable cause. He is correct, to a point. Courts have held that malice may be inferred from a lack of probable cause. Lippay v. Christos, 996 F.2d 1490, 1502 (3d Cir. 1993). See also Gallo v. City of Philadelphia, 161 F.3d 217, 222 n.6 (3d Cir. 1998) (“if the harm alleged is a seizure lacking probable cause, it is unclear why a plaintiff would have to show that the police acted with malice.”) Under such circumstances, they have denied motions for summary judgment by defendants without requiring plaintiffs to proffer additional evidence of malice. See Lawson v. City of Coatesville, 2014 WL 4080708, at *6 n. 8 (E.D. Pa. Aug.19, 2014); Collins v. Jones, 2015 WL 790055, at *6 (E.D. Pa. Feb. 24, 2015). In the Harvard case, the Court of Appeals concluded that, because a police officer mischaracterized the events and chose to omit crucial exculpatory information in the affidavit of probable cause submitted to the magistrate judge, he created a situation in which a reasonable juror could, viewing the facts in the light most favorable to the plaintiff, find that the officer acted with malice or for a purpose other than bringing the plaintiff to justice. 973 F.3d at 203. See also id. at 204 (“Cesnalis has offered no explanation for why he chose to credit Sutton's statements over Harvard and Mazzetti's statements, and we can think of no valid reason for why Cesnalis would include such grave misrepresentations and falsehoods in the affidavit.”)

However, McLee has not cited, and this Court has not found, a case in which a plaintiff was granted summary judgment in a malicious prosecution case based upon a conclusive finding of malice as a matter of law. There is a reason for that. “The question of the existence of malice is always a question of fact exclusively for the jury.” Hugee, 101 A.2d at 743. See also Gleeson v. Robson, 2005 WL 1210948, at *27 (M.D. Pa. May 6, 2005) (“Malice may be inferred from the want of probable cause and is a factual determination for the jury.”) (citing Bristow v. Clevenger, 80 F.Supp.2d 421, 432 (M.D. Pa. 2000)), aff'd mem., 190 Fed.Appx. 165 (3d Cir. 2006); Milbourne v. Baker, 2012 WL 1889148, at *13 (E.D. Pa. May 23, 2012) (same).

In Hayfield v. Home Depot U.S.A., Inc., 168 F.Supp.2d 436 (E.D. Pa. 2001), Home Depot pursued a prosecution of the plaintiff for passing a bad check even after she demonstrated that the mistake was a printing error and she paid the amount due plus a fee. She was acquitted and sued for malicious prosecution; Home Depot moved for summary judgment. After concluding that the plaintiff demonstrated a lack of probable cause, the court held that “we infer malice from this lack of probable cause for the sake of establishing the elements necessary to overcome a summary judgment motion. At trial, Plaintiff will be able to establish that Home Depot's prosecution was malicious if she shows that it was initiated ‘primarily for a purpose other than that of bringing [her] to justice.'” Id. at 465 (E.D. Pa. 2001) (citation omitted).

Thus, while the Court can infer malice for the purpose of overcoming Defendants' motion for summary judgment, the evidence of record does not prove malice as a matter of law. This is an issue for the fact-finder to decide. As such, McLee is not entitled to judgment as a matter of law on his malicious prosecution claim.

In addition, Defendants contend that McLee was not subjected to an additional deprivation of liberty as a consequence of the charges he challenges here because, by his own admission, he was briefly in possession of a firearm, which constituted a second-degree felony based on his criminal record and which triggered parole revocation proceedings. As explained above, however, all of the charges against McLee were based on the premise that he pointed a loaded gun at Sikorski, as were the parole revocation proceedings, and Brown testified that he would not have filed charges against McLee for “possessing” a gun for the few seconds it took him to disarm Thomas.

3. Involvement of Defendants Sikorski, Pierce and Yarosh

Defendants also contend that McLee cannot maintain a malicious prosecution claim against Sikorski, Pierce and Yarosh because of their lack of personal involvement.

In order to be held liable in a civil rights action, a defendant must have personal involvement in the alleged wrongdoing. Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (citations omitted). “Personal involvement can be shown through allegations of personal direction or of actual knowledge and acquiescence.” Id. See also Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005). The Court of Appeals has held that “a § 1983 malicious prosecution claim might be maintained against one who furnished false information to, or concealed material information from, prosecuting authorities.” Johnson v. Logan, 721 Fed.Appx. 205, 207 (3d Cir. 2018) (citation omitted).

Regarding Sikorski, Defendants contend that because he was not involved in the initiation or filing of criminal charges against McLee, he had no personal involvement in the alleged wrongs. As the record reflects, however, Sikorski provided a public safety statement that accused McLee of pointing a loaded gun at him. This statement formed the basis of Brown's Affidavit which ultimately lead to McLee's arrest and prosecution. Moreover, Sikorski knew that his public safety statement would be used in the Affidavit. (Sikorski Dep. (ECF No. 50 Ex. 4) 80:1-4, 83:17-20.) Given these undisputed facts as well as evidence of record that this incident did not occur as Sikorski claimed, it is impossible to conclude as a matter of law that Sikorski lacked any involvement in the initiation of charges against McLee.

Defendants contend that neither Pierce nor Yarosh were not involved in the decision to file the charges against McLee. (DCSMF ¶ 109.) However, both knew that Brown would rely upon the information that they provided in connection with the preparation of the Affidavit. (PCDCSMF ¶ 109.) McLee contends that they “concocted” two materially false pieces of inculpatory information that were put into the Affidavit: 1) that McLee knew that the weapon he took from Thomas was a 9mm handgun; and 2) that he admitted to discarding the weapon near Ridge Boulevard and Patton Street. The record is in dispute with respect to the first statement, but not as to the second.

Pierce testified that McLee told him upon being shown the video and before the second interview that the gun was a 9mm. (Pierce Dep. (ECF No. 54 Ex. 16) 108:3-18.) However, Pierce admitted at his deposition that if this had occurred, it is likely that he would have asked McLee about his ability to identify the gun during the recorded interview. (Id. at 109:4-17.) He did not do so. This raises an issue of fact would have to be resolved by the trier of fact, not on summary judgment.

Although none of the parties mention it, Pierce's written report of the incident states that Pierce first informed McLee that a 9mm gun had been recovered near the location where he and Epps entered Turner's vehicle, and then McLee stated that Thomas was in possession of a 9mm pistol during the altercation. (ECF No. 46 Ex. 6 at 15.)

According to Pierce and Yarosh, McLee told them at the interview that he threw the gun “near the vehicle that he got in.” This is a true statement, although it was Pierce who made this statement, to which McLee responded “yes.” Nonetheless, there is some ambiguity in this response based on the evidence of record. McLee could have been referring to the vehicle that he would later enter. More significantly, Pierce acknowledged that McLee's entire interview contradicts a version of events in which he carried the gun across the parking lot and dropped it just before entering Turner's vehicle. At the same time, McLee told Pierce and Yarosh that dropped the gun “right in the grass. Right where I was at, I threw it” immediately after disarming Thomas, as depicted on the ALSV, occurred in the middle of the parking lot.

In any event, as explained above, Pierce did tell Brown that McLee demonstrated how he only had the gun for a few seconds, and Brown admitted that Pierce gave him this information, but Brown omitted it from the Affidavit because he concluded that McLee had “lied” and lacked credibility. Thus, it would appear that Pierce provided Brown with two conflicting pieces of information-that McLee claimed to have discarded the gun immediately after disarming Thomas in the middle of the parking lot (which was consistent with the ALSV) and that McLee had admitted to dropping the gun in the grass near the intersection of Ridge Boulevard and Patton Street (which is inconsistent with the ALSV). This is sufficient to create a material issue of fact regarding his involvement.

With respect to Yarosh, the record is unclear as to his involvement in communications to Brown that may have contributed to the contents of the Affidavit. As such, there is insufficient evidence to draw any conclusion as a matter of law as to his potential liability.

Based upon these facts, both motions for summary judgment as to Pierce and Yarosh should be denied.

4. Defendants' Immunity Arguments

Finally, Defendants also assert that based on the facts of record, they are entitled to judgment in their favor based on either the doctrine of derivative prosecutorial immunity or on qualified immunity.

Derivative Prosecutorial Immunity

Defendants argue that the actual decision to charge McLee came from Fayette County prosecutor Richard Bower, who would be entitled to prosecutorial immunity. See Imbler v. Pachtman, 424 U.S. 409, 410 (1976). “Acts undertaken by a prosecutor in preparing for the initiation of judicial proceedings or for trial, and which occur in the course of his role as an advocate for the State, are entitled to the protections of absolute immunity.” Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993). As such, they contend that Brown is entitled to “derivative prosecutorial immunity, ” as are Pierce, Sikorski and Yarosh. See Davis v. Grusemeyer, 996 F.2d 617, 631 (3d Cir. 1993) (police detective who was hired to assist prosecutors with various investigative functions during and after the prosecution was entitled to derivative prosecutorial immunity). The official seeking absolute immunity has the burden of showing that it applies. See Burns v. Reed, 500 U.S. 478, 486 (1991).

McLee contends that Defendants have waived this defense. In the alternative, he argues that because Brown made the decision to file charges, derivative prosecutorial immunity is not applicable here.

Defendants did not address this issue in their Reply Brief.

The record reflects that Defendants did not raise the affirmative defense of derivative prosecutorial immunity at any time before moving for summary judgment. It was not pleaded in their Answer (ECF No. 2) or otherwise raised at any point during discovery or related proceedings. In fact, they admitted in their Answer that it was Brown who initiated criminal proceedings. (Compl. ¶ 11; Answer ¶ 11.) As such, according to McLee, he had no opportunity to explore the basis for his defense during discovery and it would be inappropriate to allow Defendants to raise it at this juncture.

As McLee observes, the Answer raised defenses of sovereign immunity under both federal and state law, the privileges and immunities clause of the United States Constitution, the Eleventh Amendment, and qualified and/or qualified good faith immunity. He also notes that several of these defenses are at odds with the defense of derivative prosecutorial immunity.

McLee requests that, in the event the Court does not find this defense waived, the Court reopen discovery for the purposes of allowing him to explore this defense. For the reasons explained in the text, it is unnecessary for the Court to do so.

“Parties are generally required to assert affirmative defenses early in litigation, so they may be ruled upon, prejudice may be avoided, and judicial resources may be conserved.” Robinson v. Johnson, 313 F.3d 128, 134 (3d Cir. 2002). “The purpose of requiring the defendant to plead available affirmative defenses in his answer is to avoid surprise and undue prejudice by providing the plaintiff with notice and the opportunity to demonstrate why the affirmative defense should not succeed.” Id. at 134-35.

“Failure to raise an affirmative defense by responsive pleading or by appropriate motion generally results in the waiver of that defense.” Charpentier v. Godsill, 937 F.2d 859, 863 (3d Cir. 1991) (citations omitted). Failure to raise a defense will not necessarily result in waiver, provided that the defendant raises it in “pragmatically sufficient time, and [the plaintiff] was not prejudiced in its ability to respond.” Id. (citations omitted).

While it is clear that Defendants did not raise this defense in pragmatically sufficient time and therefore have waived this defense, the record also establishes that sufficient evidence was elicited during discovery to compel the conclusion that Defendants are not entitled to judgment as a matter of law based on this derivative prosecutorial immunity.

Defendants cite Brown's deposition testimony that when he returned from the American Legion to the PSP barracks in Uniontown, the criminal investigation section commander was directing this investigation “along with the district attorney.” Brown stated that the District Attorney “was there with us. We discussed the charges. He said, ‘These are the charges I want filed,' and so we began-I basically begin laying out the affidavit based on, from the time I'm called to, you know, me sitting down at the computer to type.” He stated that the District Attorney determined which charges are filed and wanted charges filed for aggravated assault. Brown further stated that the District Attorney was getting factual information from the investigators, including from himself, Yarosh and Pierce. (DCSMF ¶¶ 96, 98, 104-07.)

Defendants also note that it was the District Attorney who filed the Criminal Information on August 18, 2016, thereby indicating that he had independently reviewed the matter. However, they do not dispute that McLee was arrested on March 20, 2016 and prosecuted based on the Criminal Complaint and Affidavit of Probable Cause filed by Brown.

However, Brown testified at McLee's criminal trial that he was the “decision-maker” with respect to the charges filed against McLee; that he was assigned to the investigation and was “basically given charge of the investigation overseeing the other troopers”; and that it was it his decision to file the charges in this case “in consultation with the District Attorney.” Further, the Affidavit of Probable Cause which forms the basis for McLee's arrest was prepared by Brown with input from the other Defendants. Brown's incident report states that he filed the charges based on the evidence before even speaking to Sikorski and he testified at the criminal trial that the District Attorney's role was to determine if Sikorski's use of force was lawful. (PCDCSMF ¶¶ 96, 104-07.) Significantly, Brown could not recall Bower's level of involvement, if any, regarding the content of the Affidavit of Probable Cause. (Brown Dep. (ECF No. 48 Ex. 2) 201:10-15.)

Moreover, at the criminal trial, Brown testified that, based on all of the physical evidence and statements, he made the decision to file charges against McLee “in consultation with the District Attorney.” (T.T. (ECF No. 52 Ex. 6) at 106, 115.)

While there clearly are disputed facts regarding the role of Bower, they are not material to the issue of derivative prosecutorial immunity here. As the Court of Appeals has held:

It is settled law that “officers who conceal and misrepresent material facts to the district attorney are not insulated from a § 1983 claim for malicious prosecution simply because the prosecutor, grand jury, trial court, and appellate court all act independently to facilitate erroneous convictions.” Pierce [v. Gilchrist], 359 F.3d [1279, ] 1292 [(10th Cir. 2004)]; see also Ricciuti [v. N.Y.C. Transit Auth.], 124 F.3d [123, ] 130 [(2d Cir. 1997)]; Jones v. City of Chicago, 856 F.2d 985, 994 (7th Cir. 1988). If the officers influenced or participated in the decision to institute criminal proceedings, they can be liable for malicious prosecution. Sykes v. Anderson, 625 F.3d 294, 308-09, 317 (6th Cir. 2010).

Halsey, 750 F.3d at 297 (footnote omitted). Thus, an officer who conceals or misrepresents material facts in order to influence the initiation of criminal proceedings are not insulated from liability.

The decisions cited by Defendants are inapposite. Unlike the situation in this case, where the Defendants independently investigated the incident and compiled the Affidavit of Probable Cause, in Grusemeyer, the defendant officers were hired by the District Attorney to assist him. Similarly, in Gregg v. Pettit, 2009 WL 57118 (W.D. Pa. Jan. 8, 2009), the plaintiff alleged that state troopers were “acting under the direction and control of Defendant former District Attorney Petit.” Id. at *6. In this case, Brown completed and filed the Affidavit of Probable Cause, and did not indicate that he was employed, directed and/or controlled by Bower when he did so.

Notably, in Malley v. Briggs, 45 U.S. 335 (1986), the Supreme Court determined “the degree of immunity accorded a defendant police officer in a damages action under 42 U.S.C. § 1983 when it is alleged that the officer caused the plaintiffs to be unconstitutionally arrested by presenting a judge with a complaint and a supporting affidavit which failed to establish probable cause.” The Court held that “the judicial process will on the whole benefit from a rule of qualified rather than absolute immunity.” Id. at 343.

For these reasons, Defendants are not shielded from liability based upon the defense of derivative prosecutorial immunity.

Qualified Immunity

Lastly, Defendants contend that they are entitled to qualified immunity. “The doctrine of qualified immunity protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Qualified immunity is an objective decision to be decided by the court as a matter of law. Carswell v. Borough of Homestead, 381 F.3d 235, 242 (3d Cir. 2004). The burden of pleading a qualified immunity defense rests with the defendant, not the plaintiff. Thomas v. Independence Township, 463 F.3d 285, 293 (3d Cir. 2006).

“A Government official's conduct violates clearly established law when, at the time of the challenged conduct, ‘the contours of a right are sufficiently clear' that every ‘reasonable official would have understood that what he is doing violates that right.'” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). The ultimate question is whether the state of the law when the offense occurred gave Defendants “fair warning” that their acts were unconstitutional. Hope v. Pelzer, 536 U.S. 730, 741 (2002).

The Court should look first to applicable Supreme Court precedent. “Even if none exists, it may be possible that a ‘robust consensus of cases of persuasive authority' in the Court[s] of Appeals could clearly establish a right for purposes of qualified immunity.” Mammaro v. New Jersey Div. Child Protection & Permanency, 814 F.3d 164, 169 (3d Cir. 2016) (quoting Taylor v. Barkes, 135 S.Ct. 2042, 2044 (2015)).

“When a defendant raises qualified immunity on summary judgment, the court must ‘adop[t] ... the plaintiff's version of the facts' unless “no reasonable jury could believe it.” Air Wisconsin Airlines Corp. v. Hoeper, 571 U.S. 237, 259 (2014) (quoting Scott, 550 U.S. at 37880). In addition, as explained above, because Sikorski's version of events is blatantly contradicted by the ALSV, it is the video that should be considered by the court.

Defining the right at issue is critical to this inquiry. The court must frame the right “in light of the specific context of the case, not as a broad general proposition.” Saucier v. Katz, 533 U.S. 194, 201 (2001). “The dispositive question is whether the violative nature of particular conduct is clearly established.” Mullenix v. Luna, 577 U.S. 7, 12 (2015) (citation omitted). But this does not mean that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful. The Supreme Court has explained that, “[a]lthough earlier cases involving fundamentally similar facts can provide especially strong support for a conclusion that the law is clearly established, they are not necessary to such a finding.” Hope, 536 U.S. at 741. Indeed, the Court has made clear that “officials can still be on notice that their conduct violates established law even in novel factual circumstances.” Id.

In Andrews, the Court of Appeals held that “there is no question that ... the right to be free from arrest except on probable cause, was clearly established” at the time of Andrews' arrest. Similarly, the right to be free from prosecutions on criminal charges that lack probable cause was also known and clearly established at the time that Sciulli prepared his affidavit.” Andrews, 853 F.3d at 705 (citations omitted).

Defendants do not contend that, in 2016, a reasonable police officer would have believed that he could file charges against an individual without probable cause. In addition, they do not contend that a reasonable police officer would have believed that he could leave out exculpatory evidence such as the fact that the video evidence contradicted Sikorski's version of events, that there was no evidence that McLee possessed a gun when Sikorski arrived or McLee's assertion that he discarded the weapon a few seconds after taking it from Thomas. As noted above: “An officer contemplating an arrest is not free to disregard plainly exculpatory evidence, even if substantial inculpatory evidence (standing by itself) suggests that probable cause exists.” Wilson, 212 F.3d at 790. Thus, it was clearly established that Brown could not disregard plainly exculpatory evidence when drafting the Affidavit.

This is not an excessive force case concerning Sikorski's split-second decisions to fire his weapon or pursue McLee for what he thought he saw that night. Rather, this case concerns the actions by Brown, who watched the video and heard accounts from Sikorski, Pierce and Yarosh, and had time to reflect on what information to put into the Affidavit.

E. Conclusion

For these reasons, it is respectfully recommended that both motions for summary judgment be denied.

Litigants who seek to challenge this Report and Recommendation must seek review by the district judge by filing objections by March 5, 2021. Any party opposing the objections shall file a response by March 17, 2021. Failure to file timely objections will waive the right of appeal.

McLee v. Brown

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McLee v. Brown

McLee v. Brown

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McLee v. Brown

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McLee v. Brown

McLee v. Brown

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