                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-29-2005

Dibella v. Beachwood
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-4892




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Recommended Citation
"Dibella v. Beachwood" (2005). 2005 Decisions. Paper 1296.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1296


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                                                NOT PRECEDENTIAL

  IN THE UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT


                 No: 03-4892/04-1257


      ROBERT DIBELLA; JOHN MCLAUGHLIN,

                  Appellants - (Case No.03-4892)
                          v.

      BOROUGH OF BEACHWOOD, a municipality
           organized under the laws of the State
 of New Jersey; BEACHWOOD POLICE DEPARTMENT;
     JOHN WAGNER, CHIEF, in his official capacity
     and personally; JOHN ZUPA, POLICE OFFICER,
           personally and in his official capacity

       ROBERT DIBELLA; JOHN MCLAUGHLIN

                           v.

 BOROUGH OF BEACHWOOD, a municipality organized
       under the laws of the State of New Jersey;
BEACHWOOD POLICE DEPARTMENT; JOHN WAGNER,
      Chief, in his official capacity and personally;
     JOHN ZUPA, Police Officer, personally and in
                    his official capacity

                    Appellants - (Case No. 04-1257)
                    ___________

   On Appeal from the United States District Court
              for the District of New Jersey
             District Court No. 02-cv-03883
  District Judge: The Honorable Garrett E. Brown, Jr.
                   _________________

             Argued on January 11, 2005

                (Filed: April 29, 2005)
   Before: ROTH and CHERTOFF * , Circuit Judges, and SHAPIRO,** District Judge.

Harry J. Levin, Esquire (Argued)
Colleen F. Cyphers
Levin & Cyphers
1410 Hooper Avenue
Toms River, NJ 08753

               Counsel for Appellants/Cross Appellees

David R. Leahy, Esquire (Argued)
Gilmore & Monahan
10 Allen Street
P.O. Box 1540
Toms River, NJ 08754

               Counsel for Appellees/Cross Appellants




                                         OPINION


SHAPIRO, District Judge.

        Plaintiffs, Robert DiBella and John McLauglin, appeal a post-trial district court

order vacating a jury award of $78,237 in compensatory damages, and $95,000 in

punitive damages to each plaintiff. The judge held there had been no Fourth Amendment

seizure as required in a malicious prosecution action under 42 U.S.C. § 1983. The

District Court decision is affirmed.


   *
    Judge Chertoff heard oral argument in this case but resigned prior to the time the
opinion was filed. The opinion is filed by a quorum of the panel. 28 U.S.C. § 46(d).
   **
    Honorable Norma L. Shapiro, Senior District Judge for the United States District
Court for the Eastern District of Pennsylvania, sitting by designation.

                                              2
                      I. FACTS AND PROCEDURAL HISTORY

       On October 30, 1999, DiBella and McLaughlin were campaigning for positions on

the governing body of the Borough of Beachwood, Ocean County, New Jersey. They

were on public property handing out literature to pedestrians, bicyclists, and drivers

stopped at a traffic light. They had also posted signs at the intersection. DiBella testified

their political opponent drove by and they had a verbal confrontation. DiBella suspected

his opponent then called Chief of Police, John Wagner (“Chief Wagner”), and pressured

Chief Wagner to have them stop their campaigning.

       Shortly after the verbal confrontation, Police Officer John Zupa (“Officer Zupa”)

approached DiBella and McLaughlin and told them to move their illegally parked van;

they complied. When Officer Zupa later returned and told them to leave the area, they

refused. DiBella and McLaughlin disputed Officer Zupa’s contention he explained that to

approach automobiles stopped at the intersection was dangerous and the signs were

blocking motorists’ views. Officer Zupa issued a summons for defiant trespass under

N.J.S.A. 2C:18-3B, a petty disorderly offense when a person remains in a place, knowing

he is not licensed or privileged to do so, after he receives notice of trespass by actual

communication.

       DiBella and McLaughlin were convicted of defiant trespass in the Borough of

Beachwood Municipal Court. The Superior Court of New Jersey, Law Division, Criminal

Part, holding their conduct did not constitute defiant trespass as a matter of law, reversed



                                              3
the conviction. The trial court then amended the charge to violation of N.J.S.A. 2C:33-

2a(2) (creating a hazardous condition by an act which serves no legitimate purpose of the

actor). After a second conviction, the Superior Court, Appellate Division, reversed again

and all charges were dismissed.

       Appellants filed this action for malicious prosecution under 42 U.S.C. § 1983 in

federal district court. The jury awarded $78,237 to the appellants in compensatory

damages for legal fees. The jury also awarded each appellant $75,000 in punitive

damages against Chief Wagner, and $20,000 against Officer Zupa.

       After the jury verdict, the judge entered judgment for defendants and ruled having

to attend pretrial and trial hearings did not constitute a government “seizure” in a 42

U.S.C. § 1983 malicious prosecution action predicated on the Fourth Amendment.

DiBella and McLaughlin now appeal.

       Chief Wagner and Officer Zupa cross-appeal based on: (1) qualified immunity;

and (2) probable cause to issue the summons. They also appeal the jury verdict on the

ground that there was insufficient malice to support an award of punitive damages and the

punitive damages were excessive.

                 II. JURISDICTION AND STANDARD OF REVIEW

       The District Court had federal question jurisdiction over plaintiffs’ civil rights

claim asserted under 42 U.S.C. § 1983. We have jurisdiction of this appeal of the

District Court’s final judgment under 28 U.S.C. § 1291, and exercise plenary review over



                                              4
the grant of a Rule 50(b) motion for judgment as a matter of law. Lightning Lube, Inc. v.

Witco Corp., 4 F.3d 1153, 1166 (3d Cir.1993) (citing Wittekamp v. Gulf & Western, Inc.,

991 F.2d 1137, 1141 (3d Cir.), cert. denied, 510 U.S. 917, 114 S.Ct. 309, 126 L.Ed.2d

256 (1993)).

                                       III. Discussion

        Title 42 U.S.C. § 1983 is not a source of substantive rights but a vehicle for

vindicating rights conferred by the U.S. Constitution or by federal statute. See Baker v.

McCollan, 443 U.S. 137, 145 n.3 (1979). DiBella and McLaughlin assert a Section 1983

malicious prosecution action for violation of the Fourth Amendment. They contend

having to attend their trials for defiant trespass and for violation of N.J.S.A. 2C:33-2a(2)

constituted an unreasonable seizure.

        To prevail in a Section 1983 action malicious prosecution action, a plaintiff must

show:

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

Estate of Smith v. Marasco, 318 F.3d 497, 521 (3d Cir. 2003).

        The state initiated criminal proceedings against DiBella and McLaughlin; the

criminal proceedings ended in their favor when dismissed on appeal. In the subsequent



                                              5
malicious prosecution trial, the jury found Officer Zupa had no probable cause to issue

the defiant trespass summons, and Chief Wagner and Officer Zupa had acted for a

purpose other than bringing the plaintiffs to justice. The trial judge vacated the jury

verdict by ruling that issuing a summons requiring a criminal defendant to appear in court

did not constitute a Fourth Amendment seizure as a matter of law.

         Albright v. Oliver, 510 U.S. 266 (1994), sets the framework for Section 1983

malicious prosecution jurisprudence. Albright was arrested for the sale of a substance

which looked like an illegal drug; he was released after posting bond; and the case was

dismissed because the charge did not state an offense under state law. Albright asserted a

substantive due process violation but did not claim a Fourth Amendment violation.

         The Supreme Court rejected Albright’s Section 1983 malicious prosecution claim

based on the Fourteenth Amendment’s Due Process Clause because his surrender to the

State “constituted a seizure for the purposes of the Fourth Amendment” id., at 812, and

where “a particular Amendment provides an explicit textual source of constitutional

protection against a particular sort of government behavior, that Amendment, not the

more generalized notion of substantive due process must be the guide for analyzing these

claims.” *** Id., at 813. The Court did not decide whether Albright asserted a viable




   ***
       Although the Supreme Court did not directly address the issue, we have interpreted
Albright as requiring a viable Section 1983 action for malicious prosecution be based on a
federal constitutional violation rather than state common law. Merkle v. Upper Dublin
School Dist., 211 F.3d 782, 792 (3 rd Cir. 2000).

                                              6
malicious prosecution claim under the Fourth Amendment because that question was not

presented in the petition for certiorari. Albright suggested malicious prosecution could

be based on a violation of the Fourth Amendment without delineating the specific types

of actionable violations.

       Justice Ginsburg argued in her concurring opinion that Fourth Amendment

protection extends from the initial arrest or seizure to the end of trial, id., at 276-81, but

her concept of “continuing seizure” has been explicitly rejected by three circuits. Karam

v. City of Burbank, 352 F.3d 1188, 1194 (9 th Cir. 2003) (plaintiff's pretrial release

requiring her to make court appearances and imposing pretrial restrictions did not

constitute a Fourth Amendment "seizure" in a Section 1983 malicious prosecution

action); Riley v. Dorton, 115 F.3d 1159, 1164 (4 th Cir. 1997) (rejecting Justice Ginsburg’s

“‘continuing seizure’ theory of the Fourth Amendment” in an excessive force action

where plaintiff’s alleged injuries occurred during booking); Wilkins v. May, 872 F.2d

190, 194 (7 th Cir. 1989) (rejecting “continuing seizure” in an excessive force action where

plaintiff’s injuries occurred during interrogation).

       Three circuits, to varying degrees, have adopted Justice Ginsburg’s concept of

continuing seizure. The Fifth Circuit found a Fourth Amendment seizure in a case where

the defendant was fingerprinted, photographed, and then required to sign a personal

recognizance bond, report regularly to Pretrial Services, obtain permission before leaving

the state, and provide federal officers with financial and identifying information. Evans



                                               7
v. Ball, 168 F.3d 856, 860-61 (5 th Cir. 1999). The Second Circuit has ruled travel

restrictions and court appearances “are appropriately viewed as seizures within the

meaning of the Fourth Amendment.” Murphy v. Lynn, 118 F.3d 938, 946 (2 nd Cir. 1997).

However, in Murphy, plaintiff had been verbally abused and physically attacked by four

policeman, arrested, charged with a felony and incarcerated overnight. Id., at 942.

          Appellants contend this court has “adopt[ed] a broad approach” to the definition of

“seizure.” See, Gallo v. City of Philadelphia. 161 F. 3d 217, 224 (3 rd Cir. 1998). The

plaintiff in Gallo was arrested for arson and posted a $10,000 bond; he was prohibited

from traveling outside Pennsylvania and New Jersey, required to contact Pretrial Services

on a weekly basis, and required to attend all court hearings including his trial and

arraignment. This court concluded that, “although it was a close question, we agree with

Gallo that these restrictions amounted to a seizure.” 161 F.3d at 222.****

          Appellants reliance on dicta from Gallo is misplaced because “prosecution without




   ****
        In their briefs, and in oral argument, appellants placed considerable weight on a
non precedential Third Circuit decision: Graw v. Fantasky, 68 Fed. Appx. 378 (3d Cir.
2003). Plaintiffs in Graw alleged First, Fourth, and Fourteenth Amendment violations
stemming from a series of incidents and confrontations between members of a citizen
organization and several police officers. The District Court granted defendants’ Motion
to Dismiss; we reversed in part and remanded. After finding the seizure of a videocamera
without probable cause “sufficient to state a Fourth Amendment violation,” we held
having to defend oneself against baseless criminal charges sufficiently alleged a seizure
“for the purpose of surviving a Rule 12(b)(6) motion” to dismiss.” Id. at 382. Graw is
distinguishable, but "[b]ecause only published opinions have precedential value, the court
does not cite to its unpublished opinions as authority." Third Circuit Internal Operating
Procedure 5.7 (July 2002).

                                               8
probable cause is not, in and of itself, a constitutional tort.” Id., at 222 (citing Albright,

510 U.S. at 274). The type of constitutional injury the Fourth Amendment is intended to

redress is the deprivation of liberty accompanying prosecution, not prosecution itself. Id.




       If Gallo was a “close question;” here there could be no seizure significant enough

to constitute a Fourth Amendment violation in support of a Section 1983 malicious

prosecution action. Gallo was arrested and subjected to significant pretrial restrictions.

DiBella and McLaughlin were only issued a summons; they were never arrested; they

never posted bail; they were free to travel; and they did not have to report to Pretrial

Services. Their liberty was restricted only during the Municipal Court trials and the

Fourth Amendment does not extend beyond the period of pretrial restrictions. See, Torres

v. McLaughlin, 163 F.3d 169, 174 (3 rd Cir. 1998) (“the limits of Fourth Amendment

protection relate to the boundary between arrest and pretrial detention.”) ; see also,

Donahue v. Gavin, 280 F.3d 371, 381 (3 rd Cir. 2002) (same).

       Pretrial custody and some onerous types of pretrial, non-custodial restrictions

constitute a Fourth Amendment seizure. DiBella and McLaughlin failed to state a cause

of action for malicious prosecution because their attendance at trial did not qualify as a

Fourth Amendment seizure.

                                       CONCLUSION

       Attending one’s trial is not a government “seizure” in a 42 U.S.C. § 1983



                                                9
malicious prosecution action for violation of the Fourth Amendment. The district court’s

judgment vacating the jury verdict for appellants, DiBella and McLaughlin, is

AFFIRMED; the cross-appeal of Chief Wagner and Officer Zupa is DENIED as moot.




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