                                             NOT PRECEDENTIAL
                 UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT
                           _____________

                         Nos. 12-4020 and 12-4021
                              _____________

                            BRIAN D. KELLY,
                                         Appellant in No. 12-4020

                                     v.

THE BOROUGH OF CARLISLE; DAVID J. ROGERS, individually and as a police
           officer for the Carlisle Borough Police Department


                           DAVID J. ROGERS,
                                        Appellant in No. 12-4021

                             _______________

               On Appeal from the United States District Court
                   for the Middle District of Pennsylvania
                           (D.C. No. 07-cv-1573)
                     District Judge: Hon. Yvette Kane
                              _______________

                 Submitted Under Third Circuit LAR 34.1(a)
                             October 28, 2013

         Before: FISHER, JORDAN and ALDISERT, Circuit Judges.

                        (Filed: November 19, 2013)



                             _______________

                        OPINION OF THE COURT
                            _______________
JORDAN, Circuit Judge.

       This case is before us for the second time. The United States District Court for the

Middle District of Pennsylvania originally granted Officer David Rogers qualified

immunity from a lawsuit brought by Brian Kelly. We vacated and remanded, ordering

the District Court to determine whether Rogers was entitled to qualified immunity for

relying on an assistant district attorney’s incorrect legal advice, even though that advice

resulted in a violation of clearly established law. The District Court held a jury trial to

make findings of fact relating to that issue, and the jury found that Rogers acted in good

faith and reasonably relied on the legal advice he received. The District Court then

granted in part and denied in part both parties’ motions for judgment as a matter of law,

granting Rogers qualified immunity as to his conduct occurring after communicating with

the government attorney but denying it as to conduct occurring prior and further denying

Rogers’s Rule 59(e) motion to amend the portion of the judgment adverse to him. Kelly

appealed, and Rogers cross-appealed. We will affirm the orders of the District Court.

I.     Background

       Rogers is a police officer in the Carlisle Police Department. Kelly was the

passenger in a vehicle pulled over by Rodgers for speeding. Kelly had been using a small

handheld video recorder to record his surroundings, and he surreptitiously filmed the

encounter with Rogers. When Rogers realized he was being filmed, he seized the

camera. Rogers then returned to his patrol car and called the district attorney’s office to

find out whether he could arrest Kelly for a violation of Pennsylvania’s Wiretapping and

Electronic Surveillance Control Act (“Wiretap Act”), 18 Pa. Cons. Stat. §§ 5701-82.

                                              2
Rogers did not mention that he himself was trying to record the stop.1 Assistant District

Attorney (“ADA”) John Birbeck reviewed the statute and told Rogers that he had

probable cause to arrest Kelly. Unfortunately for all concerned, that advice was

erroneous, as recording a person’s statements does not violate the Wiretap Act unless the

person had a reasonable expectation of privacy, and a police officer does not have a

reasonable expectation of privacy during a traffic stop when the officer is himself

recording the traffic stop. See Kelly v. Borough of Carlisle (Kelly I), Civil Action No.

1:07-cv-1573, 2009 WL 1230309, at *4 (M.D. Pa. May 4, 2009). Based on the advice

from Birbeck, Rogers arrested Kelly, and Kelly spent 27 hours in jail before the charges

against him were dropped.

       Kelly later brought suit against Rogers and the Borough of Carlisle under 42

U.S.C. § 1983, alleging that Rogers had violated his constitutional rights under the First

and Fourth Amendments. The District Court granted summary judgment to Rogers based

on qualified immunity and granted the Borough summary judgment because Kelly had

failed to present facts sufficient to establish municipal liability. Kelly I, 2009 WL

1230309, at *11. Kelly appealed, and we affirmed the grant of summary judgment to the

Borough and the grant of summary judgment on the First Amendment claim (those

rulings are not at issue in the current appeal), but vacated the grant of summary judgment

       1
        Rogers did not actually succeed in recording the stop because the recording
device in his patrol car malfunctioned. That, however, is irrelevant for the purpose of
determining whether he was entitled to qualified immunity, since he reasonably believed
he was recording the traffic stop, and thus he did not have a reasonable expectation of
privacy sufficient to demonstrate a violation of the Pennsylvania Wiretap Act. See Kelly
v. Borough of Carlisle, 622 F.3d 248, 256, 258 (3d Cir. 2010).

                                              3
to Rogers on the Fourth Amendment claim. Kelly v. Borough of Carlisle (Kelly II), 622

F.3d 248, 256, 258 (3d Cir. 2010). Our vacatur was based on two conclusions: (1) “that

a police officer who relies in good faith on a prosecutor’s legal opinion that the arrest is

warranted under the law is presumptively entitled to qualified immunity from Fourth

Amendment claims premised on a lack of probable cause” (but that presumption may be

rebutted by a showing that “a reasonable officer would not have relied on the

prosecutor’s advice”); and (2) that, “at the time of Kelly’s arrest, it was clearly

established that a reasonable expectation of privacy was a prerequisite for a Wiretap Act

violation” and “that police officers do not have a reasonable expectation of privacy when

recording conversations with suspects.” Id. at 255-56, 258. In other words, we

concluded that, as long as Rogers acted in good faith and reasonably relied on Birbeck’s

mistaken advice in concluding there was probable cause to arrest Kelly, he was

presumptively entitled to qualified immunity, but that he nonetheless violated clearly

established law.

       We then remanded the case to the District Court, asking it to determine in the first

instance “how the Pennsylvania Wiretap Act fits into the landscape painted by” the

precedent that “[p]olice officers generally have a duty to know the basic elements of the

laws they enforce.” Kelly II, 622 F.3d at 258-59. We also identified two questions of

fact that required additional elaboration: (1) whether Kelly hid the camera and was in

fact secretly recording Rogers during the stop; and (2) whether Rogers called Birbeck to

seek legal advice, or just to get approval for the arrest that Rogers had decided to make.

Id. at 256.

                                              4
       On remand, the District Court interpreted our holding as requiring “it to determine

whether [Officer Rogers’s] erroneous probable cause determination was unreasonable as

a matter of law and therefore not entitled to qualified immunity.” (App. at 5.) To do so,

it had to resolve the question it believed was left open by our prior opinion – “whether a

police officer’s reliance on a prosecutor’s advice could be reasonable where the advice is

contrary to clearly established law.” (Id. at 25.) Based on an opinion from the United

States Court of Appeals for the Second Circuit, Amore v. Novarro, 624 F.3d 522, 535-36

(2d Cir. 2010), the District Court concluded that there is a narrow category of

circumstances in which such reliance can be reasonable, and thus the officer could be

entitled to qualified immunity even when his conduct violated law that was clearly

established. Specifically, the Court held that “even when the law is clearly established,

where an officer acts ‘deliberately and rationally in seeking to determine the then-valid,

applicable and enforceable law before taking the actions for which the plaintiff [] seeks to

hold him accountable,’ qualified immunity may still be available.” (App. at 9-10

(alteration in original) (quoting Amore, 624 F.3d at 535).)

       Under that rule, the District Court concluded that it was possible that Rogers was

entitled to qualified immunity because of his good faith reliance on Birbeck’s advice, but

that additional factual findings were necessary to reach that conclusion. The Court thus

held a jury trial for the limited purpose of making specific factual findings relevant to

qualified immunity, namely, whether Rogers reasonably believed that Kelly was

attempting to secretly record him, whether Rogers called Birbeck to obtain advice rather

than just approval, and whether Officer Rogers deliberately or recklessly omitted the fact

                                              5
that he was also recording the stop during his conversation with Birbeck. Each of those

factual questions was designed to reveal whether Rogers relied on Birbeck’s advice in

good faith. The jury found that Rogers reasonably believed Kelly was attempting to

videotape him without his knowledge, that Rogers did not deliberately omit the fact that

he was recording the stop, and that he was sincerely seeking legal advice. Based on those

findings, the District Court concluded that Rogers’s conduct fit the narrow category it had

defined, and that he was entitled to qualified immunity with regard to the arrest. The

District Court held that Rogers was not immune for his seizure of the camera, however,

as that action occurred before Rogers obtained advice from Birbeck. Accordingly, the

District Court granted Kelly’s motion for judgment as a matter of law “as to [Kelly]’s

Fourth Amendment claim against [Rogers] for the seizure of [Kelly]’s video camera,”

and granted Rogers’s motion as to the claim regarding his arrest. (App. at 34.)

       Rogers then filed a Rule 59(e) motion to alter or amend judgment, arguing that

judgment should be entered in his favor as to Kelly’s claim arising from the seizure of the

camera because that seizure did not constitute a Fourth Amendment violation, and

because, even if it did constitute a violation, he was entitled to qualified immunity. The

Court denied the motion because Rogers had previously stipulated (by agreeing to a jury

instruction) that the seizure constituted a constitutional violation and was performed in

violation of clearly established law. Now before us are Kelly’s appeal and Rogers’s

cross-appeal.




                                             6
II.    Discussion2

       Kelly argues that the District Court erred in extending qualified immunity to

Rogers with regard to conduct occurring after the call to Birbeck, namely the arrest.

According to Kelly, it was not objectively reasonable for Rogers to rely on Birbeck’s

advice because that advice was contrary to clearly established law, and police officers are

presumed to know the elements of the clearly established law that they are enforcing.

Rogers too finds fault with the District Court, saying that, for three reasons, it erred in

denying him qualified immunity with regard to the camera seizure: (1) Kelly waived any

specific challenge to that seizure, as the Fourth Amendment issue was not posed to

address that seizure until the opinion following the jury trial, and even then the Court

acted sua sponte; (2) temporary seizure of evidence of a suspected crime is reasonable;

and (3) the seizure was a de minimus constitutional violation. We take up each of the

parties’ arguments in turn.

       A.     The Arrest of Kelly


       2
          The District Court had jurisdiction pursuant to 28 U.S.C. § 1331. “We exercise
plenary review over the District Court’s denial of judgment as a matter of law.”
Eshelman v. Agere Sys., Inc., 554 F.3d 426, 433 (3d Cir. 2009). When reviewing a
district court decision denying a motion for judgment as a matter of law, we exercise the
same standard of review as the District Court. Manus Corp. v. NRG Energy, Inc. (In re
O’Brien Envtl. Energy, Inc.), 188 F.3d 116, 122 (3d Cir. 1999). Therefore, we must grant
such a motion “only if, viewing the evidence in the light most favorable to the nonmovant
and giving it the advantage of every fair and reasonable inference, there is insufficient
evidence from which a jury reasonably could find liability.” ZF Meritor, LLC v. Eaton
Corp., 696 F.3d 254, 268 (3d Cir. 2012) (quoting LePage’s Inc. v. 3M, 324 F.3d 141,
145-46 (3d Cir. 2003) (en banc)) (internal quotation marks omitted). The standard of
review concerning a denial of a motion under Rule 59 is for an abuse of discretion.
Lazaridis v. Wehmer, 591 F.3d 666, 669 (3d Cir. 2010).

                                              7
       Qualified immunity operates “to ensure that before they are subjected to suit,

officers are on notice their conduct is unlawful.” Hope v. Pelzer, 536 U.S. 730, 739

(2002) (internal quotation marks omitted). While qualified immunity can protect police

officers for actions taken in the course of their duties, that protection is forfeited when an

officer’s conduct violates “clearly established statutory or constitutional rights of which a

reasonable person would have known.” Wilson v. Layne, 526 U.S. 603, 614 (1999)

(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, (1982)) (internal quotation marks

omitted). “Qualified immunity gives government officials breathing room to make

reasonable but mistaken judgments, and protects all but the plainly incompetent or those

who knowingly violate the law.” Stanton v. Sims, No. 12-1217, 2013 WL 5878007, –

U.S. –, slip op. at *2 (Nov. 4, 2013) (per curiam) (citation omitted) (internal quotation

marks omitted). Courts follow a two-step analysis to determine whether a government

official is entitled to qualified immunity, looking first to whether “a constitutional right

would have been violated on the facts alleged” and, if so, whether the right was “clearly

established.” Saucier v. Katz, 533 U.S. 194, 200-01 (2001). However, courts may look

to whether the law prohibiting a defendant’s conduct was clearly established without first

determining whether there was a constitutional violation under the circumstances

presented. Pearson v. Callahan, 555 U.S. 223, 236 (2009). As we did in Kelly II and as

the District Court did below, we will focus on Saucier’s second step – whether the

constitutional right was clearly established at the time of the encounter between Kelly

and Rogers.



                                              8
       We have already determined that, “at the time of Kelly’s arrest, it was clearly

established that a reasonable expectation of privacy was a prerequisite for a Wiretap Act

violation,” and that “police officers do not have a reasonable expectation of privacy when

recording conversations with suspects.” Kelly II, 622 F.3d at 258. But we also noted

that, although “[P]olice officers generally have a duty to know the basic elements of the

laws they enforce,” id., in circumstances when a police officer “neither knew nor should

have known of the relevant legal standard,” qualified immunity may still be granted.

Harlow, 457 U.S. at 818-19. In other words, there are circumstances wherein a police

officer’s violation of a law may be within the bounds of reason, even though the law in

question can be said, from the comfort of an armchair, to be “clearly established.” See,

e.g., Amore, 624 F.3d at 535 (2d Cir. 2010) (“‘The statement in Harlow that reasonably

competent public officials know clearly established law[] is a legal fiction.’ Qualified

immunity is appropriate in ‘those situations in which the legal fiction does not make

sense and applying that fiction would create problems that qualified immunity is intended

to avert.’” (citation omitted) (quoting Lawrence v. Reed, 406 F.3d 1224, 1237 (10th Cir.

2005) (Hartz, J., dissenting))).

       For example, in Amore, which the District Court relied on in concluding that

Rogers was entitled to qualified immunity, the plaintiff offered to perform a sexual act on

an undercover police officer in a public park. Id. at 526. The defendant police officer

then consulted another officer’s copy of the New York Penal Law, which listed loitering

for the purpose of soliciting certain sexual conduct as a violation of state law, and,

relying on that information, arrested the plaintiff. Id. However, that copy of the penal

                                              9
code should not have included the loitering statute because the New York Court of

Appeals had ruled the statute in question unconstitutional 20 years earlier. Id. at 532-33

(citing People v. Uplinger, 447 N.E.2d 62 (N.Y. 1983)). The plaintiff sued the police

officer under 42 U.S.C. § 1983, alleging false arrest, and the police officer moved to

dismiss the complaint based on qualified immunity.3 Id. at 527. Although the district

court denied the motion, the Second Circuit reversed, concluding that, even when a

defendant violates a clearly established law, he may still be entitled to qualified immunity

if he acts “deliberately and rationally in seeking to determine the then-valid, applicable

and enforceable law.” Id. at 535. By undergoing such efforts the police officer may

demonstrate that the violation was not “objectively unreasonable.” Id.

       In Kelly II, we adopted reasoning similar to that of the Amore court, saying “a

police officer who relies in good faith on a prosecutor’s legal opinion that the arrest is

warranted under the law is presumptively entitled to qualified immunity from Fourth

Amendment claims premised on a lack of probable cause.” 622 F.3d at 255-56. We

noted that such “reliance must itself be objectively reasonable, however, because ‘a wave

of the prosecutor’s wand cannot magically transform an unreasonable probable cause

determination into a reasonable one.’” Id. at 256 (quoting Cox v. Hainey, 391 F.3d 25, 34

(1st Cir. 2004)). We further held that a plaintiff may rebut the presumptive entitlement to

immunity if he demonstrates that, “under all the factual and legal circumstances

surrounding the arrest, a reasonable officer would not have relied on the prosecutor’s


       3
        The district court in that case converted the police officer’s motion to dismiss
into a motion for summary judgment. Amore, 624 F.3d at 527.
                                             10
advice.” Id. Finally, we asked the District Court to answer two questions: whether the

District Court “evaluate[d] sufficiently the state of Pennsylvania law at the relevant time”

and whether the record indicates that – although the prerequisites of the Wiretap Act are

clearly established – Rogers reasonably and in good faith relied on the ADA’s advice in

arresting Kelly. Id. at 258-59. The District Court answered both in the affirmative, and,

for at least two reasons, we agree.

       First, although the prerequisites of the Wiretap Act were clearly established at the

time of the incident, this is not a case where Rogers “knew or should have known” that

Kelly’s actions were not criminal in nature. Peterson v. City of Plymouth, 945 F.2d 1416,

1421 (8th Cir. 1991). The District Court noted that Rogers had a “limited familiarity

with the Wiretap Act, gained from his training.” (App. at 28.) Specifically, his

understanding of the law was that because “he was obliged to inform motorists if he

recorded a stop, … he believed the duty was reciprocal under the Act.” (Id. (citing

Commonwealth v. McIvor, 670 A.2d 697, 703-04 (Pa. Super. Ct. 1996) (distinguishing

between the expectation of privacy and the expectation of non-interception of oral

communications, holding that motorists are still entitled to the latter during traffic stops,

and suggesting that police officers are similarly entitled)).)

       Granted, we have previously acknowledged that “two Pennsylvania Supreme

Court cases – one almost 20 years old at the time of Kelly’s arrest – had held that

covertly recording police officers was not a violation of the Act,” and that those cases

supported the conclusion that a reasonable expectation of privacy was a clearly

established prerequisite for a Wiretap Act violation. Kelly II, 622 F.3d at 258. But

                                              11
Rogers’s incorrect understanding of the law is not devoid of merit. As the District Court

noted, federal courts have recently “cited with approval the Pennsylvania Superior

Court’s decision in Commonwealth v. McIvor for the proposition that while there is no

expectation of privacy at a traffic stop, a police officer … does have an expectation of

non-interception in his communications at the stop,” and thus recording his

communications would nonetheless be violative of the Wiretap Act. (App. at 29-30 n.7

(citing Matheny v. Cnty. of Allegheny, No. 09-cv-1070, 2010 WL 1007859, at *9 (W.D.

Pa. Mar. 16, 2010)).) Such recent case law suggests that Rogers was not “plainly

incompetent” in wondering about the state of the law. See Stanton, slip op. at 3. In other

words, even though the law was, in a sense, “clearly established,” it was not so clearly

established that one could say a reasonable officer “would have known” of the illegality

of the arrest. See Harlow, 457 U.S. at 818 (holding that qualified immunity protects

government officials “insofar as their [discretionary] conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person would have

known” (emphasis added)).

       And second, instead of proceeding solely on his own understanding of the Wiretap

Act, Rogers contacted Birbeck for legal advice on whether he had probable cause to

arrest Kelly. Rogers’s reliance on Birbeck’s comments was justified. Birbeck was “an

experienced prosecutor who had been serving as the chief deputy district attorney in

charge of the trial division for more than a decade.” (App. at 29.) In fact, Birbeck

conducted his own legal research on the Wiretap Act and whether Rogers had probable

cause to arrest Kelly, and his quick research led him to conclude, albeit incorrectly, that

                                             12
Kelly had violated the Act. The District Court eliminated any concern that Rogers’s call

to Birbeck was merely an attempt to rubber-stamp an arrest. The Court submitted the

matter to a jury, which found that (1) Rogers reasonably believed that Kelly was

attempting to secretly record him, and Rogers was not looking for a pretextual reason to

arrest him; (2) Rogers called Birbeck to seek legal advice on whether probable cause

existed to arrest Kelly for a violation of the Wiretap Act, and Rogers was not merely

seeking to obtain approval for the arrest; (3) although Rogers neglected to mention that

he was recording the traffic stop, he did not deliberately or recklessly omit that fact or

any other relevant fact; and (4) Birbeck told Rogers that probable cause existed to arrest

Kelly. Although Birbeck’s advice was flawed, it was plausible in the absence of a

thorough review of the relevant case law and was provided in real-time as Rogers was

involved in a traffic stop.

       Kelly argues for an absolute rule prohibiting qualified immunity when the relevant

law is clearly established. If that were the law, we would have said so the first time this

case was before us. We remanded the matter to the District Court because the law is

more nuanced. Kelly’s argument fails because it does not make appropriate allowances

for government officials who “act[] precisely as one would hope [they] would act” when

faced with law that is nominally “clearly established” and yet is shrouded in some

obscurity or ambiguity. (App. at 30.) One purpose of qualified immunity is to protect

police officers who do their best to understand the law and yet are uncertain of how it

may apply in a specific situation. An officer engaged in a traffic stop may not have

access to a computer, the internet, Westlaw, or enough time to research the law. It is in

                                             13
everyone’s interest to encourage law-enforcement officials to seek out legal advice in

those situations. See Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949); see also Kelly

II, 622 F.3d at 255 (“In our view, encouraging police to seek legal advice serves such a

salutary purpose as to constitute a ‘thumb on the scale’ in favor of qualified immunity.”).

In essence, qualified immunity may be granted when there is a breakdown in the legal

fiction that reasonably competent police officers know every clearly established law. See

Amore, 624 F.3d at 535. Because Rogers’s reliance on Birbeck’s advice was in good

faith and objectively reasonable, he is entitled to qualified immunity as to Kelly’s arrest.

       B.     The Seizure of Kelly’s Camera

       Regarding the seizure of Kelly’s camera, we cannot accept Rogers’s arguments

because of the stipulation he entered into, acknowledging that the “‘seizure … was in

error, without probable cause[,] and in violation of Mr. Kelly’s constitutional rights.’”

(App. at 38 (second alteration in original).)4 He also stipulated to the amount of

damages. Having thus effectively conceded that he is not entitled to qualified immunity,

he cannot now be heard to argue to the contrary. Therefore, Rogers is not entitled to

qualified immunity as to his seizure of Kelly’s camera.5


       4
         Although not in the Appendix, the stipulation was memorialized in the parties’
joint proposed jury instructions provided to the District Court before trial.
       5
         The District Court’s denial of Rogers’s Rule 59(e) motion was justified for
another reason. “The purpose of a motion for reconsideration is to correct manifest errors
of law or fact or to present newly discovered evidence.” Lazaridis, 591 F.3d at 669
(citation omitted) (internal quotation marks omitted). Rogers’s motion included legal
arguments that he had at his disposal throughout the proceedings but failed to include in
his motion for judgment as a matter of law. The District Court correctly determined that
it could not consider those arguments for the first time in a motion for reconsideration.
                                             14
III.   Conclusion

       For the foregoing reasons, we will affirm the orders of the District Court granting

qualified immunity to Rogers as to Kelly’s arrest but denying it as to the seizure of

Kelly’s camera.




                                            15
