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


4-12-2005

Schlaflin v. Borowsky
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3019




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Recommended Citation
"Schlaflin v. Borowsky" (2005). 2005 Decisions. Paper 1374.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1374


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                                                          NOT PRECEDENTIAL

                  UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT


                                 No. 04-3019


                           PAUL J. SCHLAFLIN,
                                      Appellant

                                      v.

                   RICHARD BOROWSKY; JAY F. FOX;
                  PHILLIP CAMPO; STEVE MENNONA;
                GEORGE TRAMPLER; ROBERT C. HOLMES;
                      TOWNSHIP OF MARLBORO


                 Appeal from the United States District Court
                          for the District of New Jersey
                          (D.C. Civil No. 03-cv-04184)
                 District Judge: Honorable Anne E. Thompson


                            Argued March 9, 2005

          Before: NYGAARD, McKEE and RENDELL, Circuit Judges.

                           (Filed : April 12, 2005)




Allan Marain [ARGUED]
100 Bayard Street
P.O. Box 1030
New Brunswick, NJ 08903
  Counsel for Appellant
Martin J. McGreevy [ARGUED]
P.O. Box 820
Oakhurst, NJ 07755
  Counsel for Appellees
  Richard Borowsky and Phillip Campo

John T. Bazzurro
Chamlin, Rosen, Uliano & Witherington
268 Norwood Avenue
West Long Branch, NJ 07764
  Counsel for Appellee Jay F. Fox

William J. Gearty [ARGUED]
1222 Third Avenue
Spring Lake, NJ 07762
  Counsel for Appellees
  Steven Mennona, George Trampler
  and Robert C. Holmes




                               OPINION OF THE COURT


RENDELL, Circuit Judge.

                          I. Factual and Procedural Background

       Paul Schlaflin appeals the order of the District Court granting summary judgment

for Appellee Officers based upon qualified immunity. As we write only for the parties,

we include only such factual and procedural events as are necessary to our decision. On

September 11, 2001, Appellant, Schlaflin, painted the words “Death to the Sand Niggers”

on his truck. He then drove his truck from his home in Morganville, New Jersey, into

Marlboro, New Jersey, where he left the truck in the parking lot of a bar. Police received



                                            2
a call from Ms. Rabig, who had seen the truck in the parking lot, reporting that the truck

had the words on it. (App. 65a) The officers then went to the scene. Officer Borowsky

arrived first, followed by Officers Campo, Mennona, Trampler and Chief Holmes. At

some point, Detective Fox was called in because he specialized in investigating bias

crimes. When Fox saw the truck, he ordered that Schlaflin be arrested. He also ordered

that the words on the truck be covered and the truck towed to the police station.

       Schlaflin was arrested and transported to police headquarters, where he was placed

in a cell. He was charged with bias harassment under N.J.S. 2C:33-4d (since repealed).

Police towed and impounded the truck, which they kept for approximately two and one-

half months. As a condition of his release, Fox required Schlaflin to remove the lettering

from the truck.

       Charges were brought against Schlaflin, but he was subsequently found not guilty,

based on the conclusion that the words on his truck constituted protected speech under the

First Amendment. Schlaflin then brought suit against the officers, alleging violation of

his freedom of speech, arrest without probable cause, false imprisonment, the seizure and

impoundment of his truck, and civil conspiracy. The officers moved for summary

judgment on the basis of qualified immunity, and this motion was granted. Schlaflin now

appeals.1


  1
    As the analysis of whether the officers were entitled to qualified immunity flows
primarily from evaluation of his First Amendment claims and because Schlaflin does not
thoroughly raise or discuss any other constitutional violations in his brief, we focus our

                                             3
                          II. Jurisdiction and Standard of Review

       The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343(a)(3).

We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.

       We have plenary review of the District Court's decision to grant summary

judgment. See Blair v. Scott Specialty Gases, 283 F.3d 595, 602-03 (3d Cir. 2002). We

apply the same standard as used by the District Court. Id.




                                       III. Discussion

       The inquiry into whether qualified immunity is proper was laid out by the Supreme

Court in Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982), where the Court stated that

“government officials performing discretionary functions, generally are shielded 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.” The

Court later expanded the explanation of the inquiry into whether the law was clearly

established in Saucier v. Katz, 533 U.S. 194, 202 (2001):

               [T]he right the official is alleged to have violated must have been
       ‘clearly established’ in a more particularized, and hence more relevant
       sense: The contours of the right must be sufficiently clear that a reasonable
       official would understand that what he is doing violates that right. The
       relevant, dispositive inquiry in determining whether a right is clearly
       established is whether it would be clear to a reasonable officer that his
       conduct was unlawful in the situation he confronted.” (quotations omitted).



decision primarily on the alleged First Amendment deprivation.

                                              4
       The first question we must answer, therefore, is whether the officer’s actions

violated a clearly established right belonging to Schlaflin. The District Court found that

Schlaflin’s speech was not protected by the First Amendment under the standard set forth

in Brandenburg v. Ohio, 395 U.S. 444 (1969). The Court in Brandenburg stated that “the

constitutional guarantees of free speech and free press do not permit a State to forbid or

proscribe advocacy of the use of force or of law violation except where such advocacy is

directed to inciting or producing imminent lawless action and is likely to incite or produce

such action.” Id. at 447. Although we find that this is a close case, we ultimately

conclude that the speech at issue here was protected because there was no threat of

imminent unlawful action. The fact that the sole complaint about the truck came from

Ms. Rabig, who had not witnessed any threat of violence or unruliness caused by the

speech, bolsters this conclusion.

       The next inquiry we must undertake is whether, despite the fact that we find that

officers did violate Schlaflin’s First Amendment rights here, they were unreasonable in

doing so. We hold that they were not.

       As stated above, the officers arrested Schlaflin for bias harassment pursuant to

N.J.S. 2C:33-4d (subsequently repealed). At the time of this action, that statute stated:

              Except as provided in subsection (d), a person commits a petty
       disorderly persons offense if, with purpose to harass another, he:
              (a) Makes or causes to be made, a communication or communications
       anonymously or at extremely inconvenient hours, or in offensively course

                                             5
       language, or in any other manner likely to cause annoyance or alarm.
              (d) A person commits a crime of fourth degree if in committing an
       offense under this section, he acted, at least in part, with ill will, hatred or bias
       toward, and with a purpose to intimidate, an individual or group of individuals
       because of race, color, religion, sexual orientation or ethnicity.

       In this case, it was reasonable for the officers, with the language of the statute as a

guide, to believe that their arrest of Schlaflin would not violate any clearly established

right, given the fact that New Jersey had an existing statute which appeared to authorize

such an arrest. The fact that the statute was later found to be unconstitutional does not

change this conclusion. For example, in Blackhawk v. Commonwealth of Pennsylvania,

381 F.3d 202 (3d Cir. 2004), we had to decide whether individual officers of the

Pennsylvania Game Commission were entitled to qualified immunity for their refusal to

grant the plaintiff a waiver of a permit fee for keeping a wild animal when the plaintiff

claimed that his reason for keeping the animal was religious. Subsequent to the

Commission’s refusal to grant the exemption, the statute under which the Commission

justified the refusal was held unconstitutional. Regardless, we held that the defendants

were entitled to qualified immunity because “in this case, the governing precedents were

complex and developing. Although we now hold that the waiver procedure... is

sufficiently open-ended to constitute a system of individual exemptions, a reasonable

officer in the position of defendants could have concluded otherwise.” Id. at 215.

       Under the same logic, we hold that it was reasonable for the officers in the present

case to conclude that the N.J.S. 2C:33-4d provided an adequate basis for believing the



                                                6
arrest of Schlaflin was not in violation of his First Amendment rights. Thus, because we

find that it would not have been clear to a reasonable officer in the defendants’ position

that their conduct violated a clearly established right, we hold that the officers were

entitled to qualified immunity in this case. Therefore, we will affirm the order of the

District Court.2




  2
    Judge McKee agrees that the District Court did not err in granting summary judgment
based upon qualified immunity under Saucier even if defendants violated plaintiff's First
Amendment rights. However, Judge McKee is dubitante on the question of whether any
such First Amendment violation occurred given the totality of circumstances here.
Accordingly, he would not reach that question.

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