Opinion
Civil Action No. 02-9025.
September 30, 2004
ORDER
AND NOW, this 30th day of September, 2004, upon consideration of defendants' motion for summary judgment (Document No. 13), plaintiff's response, oral argument on September 2, 2004 and September 23, 2004, and the various letter submissions of the parties, the court hereby FINDS and ORDERS as follows:
1. By agreement of the parties, the actions of Chief Smythe on which plaintiff bases its claims are that he established a "cattle chute" at the IGA parking lot, that all cyclists were required to pause or stop at the direction of a police officer as they entered the "cattle chute", and that the cyclists were profiled because cars and pedestrians were not required to stop when they entered the parking lot. Plaintiff agrees that the act of Chief Smythe in calling for a county-wide alert is not actionable and that the placement of snipers in a neighboring township was not under the direction of Chief Smythe so that it is not actionable in this action.
2. Plaintiff's claims based on the aforesaid actions are for the violation of its right of assembly under the First Amendment (which claim is not challenged by the defendants in their motion for summary judgment) and its right against unreasonable searches and seizures under the Fourth Amendment and to equal protection of the laws under the Fourteenth Amendment (which are challenged by defendants' motion for summary judgment). Plaintiff agrees that its claim for a violation of the Fourteenth Amendment based on its right not to be deprived of liberty or property without due process of law is DISMISSED because the proper claim in this regard is made under the more specific provision of the Fourth Amendment.
3. Defendants' motion for summary judgment as to plaintiff's claim based on the equal protection component of the Fourteenth Amendment is GRANTED in that the claim was based on an assertion that the cyclists were treated differently from cars and pedestrians entering the parking lot, but the only evidence on the issue is the testimony of Corporal Trigg who stated that everyone was stopped including "bikes, vehicles, whatever," so that there is no factual basis for the claim and, in addition, plaintiff has been unable to find any legal authority supporting the claim.
4. Defendants' motion for summary judgment based on an assertion that plaintiff has no standing to assert the Fourth Amendment claim because there is no evidence that any member of BACA was stopped by the police is DENIED in that plaintiff has submitted affidavits of Jim McBride and Harry Babe that they were members of BACA at the time in question and were stopped by the police as they entered the parking lot.
5. Defendants' motion for summary judgment in favor of Chief Smythe, the title of which is "qualified immunity", but which is factually based on an assertion that "he was not personally in charge of the operation" and that "the officers were therefore not working under his direction" is in reality a claim that he is not subject to supervisory liability. However, Corporal Trigg, a member of the Darby Police Department, testified in his deposition that Chief Smythe was his chief of police and that Trigg's actions in connection with the cattle chute on that day were "at his (Smythe's) direction" and that Smythe was "overseeing" the entire operation. Kelly Gambale also testified that she received a letter from the Darby Police Department with reference to the anticipated actions of the police on the day in question. There is, therefore, sufficient evidence from which a reasonable jury could find that Chief Smythe was in charge of the conduct of the police officers in the parking lot on the day in question. If so, he could be found to have supervisory liability for the actions of the police officers on that date.
6. Defendants' motion for summary judgment in favor of the Borough of Darby based on the assertion that there was no policy or custom in place is DENIED in that if Chief Smythe is found liable in his individual capacity for the actions of that date, he was a policymaker for the Borough of Darby as its chief of police and the Borough would therefore be responsible for his actions.
7. Defendants also move for summary judgment on the Fourth Amendment claim. First, defendants make a limited effort to assert that the stops were "safety checks" to make sure that the motorcycles met inspection requirements and were safe to drive. Under the overall circumstances, it is abundantly clear that plaintiff has submitted more than sufficient evidence from which a reasonable juror could conclude that this rationale was a pretext. As such the suggestion in Delaware v. Prouse, 440 U.S. 648 (1979) that "questioning of all incoming traffic at roadblock type stops is a possible alternative" does not apply if the jury accepts the plaintiff's evidence.
Defendants also claim that their concern was evidence of a potential fight between the Pagans and Hells Angels motorcycle clubs, two of the many motorcycle clubs that were in attendance that day. This evidence was also disputed by witnesses for the plaintiff who testified that such disputes between motorcycle clubs were never carried over into charitable activities of the bikers such as this where BACA was raising money and seeking toys for children and charitable organizations. Moreover, to the extent that such a rationale's purpose would be to "uncover evidence of ordinary criminal wrongdoing," the stops would violate the Fourth Amendment under Indianapolis v. Edmond, 531 U.S. 32 (2000).
Defendants rely on Illinois v. Lidster, 504 U.S. 419 (2004) which involved a checkpoint to obtain information from members of the public about a crime committed by others in the same area rather than to prevent potential crimes by the persons who were being stopped. To the extent the Lidster factors apply, there are disputed issues of fact which must be resolved by a jury. The "gravity of the public concerns served by the seizure" is disputed as noted. The "degree to which the seizure advances the public interest" by stopping potential fights between the Hells Angels and Pagans is rather unclear from the evidence presented thus far and there is certainly disputed evidence that the stops were not appropriately tailored to fit the particular needs of the police department since all motorcyclists were stopped and not just those who were members of the Hells Angels and Pagans, and who were readily identifiable by their jackets. Finally, although the "severity of the interference with individual liberty" was only moderate (or less) with reference to the individual bikers, plaintiff has submitted evidence that the impact upon the BACA organization was very substantial. Defendants' motion for summary judgment on the Fourth Amendment claim is DENIED.
8. As a result of the aforesaid, the remaining claims are based on the First Amendment and the Fourth Amendment and the remaining defendants are Chief Smythe and the Borough of Darby.
9. If the parties have not already had a settlement conference before Magistrate Judge Charles B. Smith, plaintiff's counsel is directed to contact Judge Smith promptly in order to schedule a settlement conference for a date well in advance of the trial date.
10. By agreement of counsel, the trial is SCHEDULED for November 29, 2004 at 10:00 a.m.