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


6-6-2005

Wright v. Philadelphia
Precedential or Non-Precedential: Precedential

Docket No. 03-1633




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                                                PRECEDENTIAL

           UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT


                           No. 03-1633


               KIMBERLY MARNELL WRIGHT

                                 v.

CITY OF PHILADELPHIA; DANIEL HEENEY, DETECTIVE,
    BADGE NUMBER 650; DOE(S), POLICE OFFICER,
    INDIVIDUALLY AND AS POLICE OFFICERS AND
DETECTIVES FOR THE CITY OF PHILADELPHIA; DENISE
  O’MALLEY, POLICE OFFICER, BADGE NUMBER 4335

          DANIEL HEENEY; DENISE O’MALLEY,

                            Apellants.


         On Appeal from the United States District Court
  for the United States District Court for the Eastern District of
                           Pennsylvania
                      (D.C. No. 01-cv-6160)
           District Judge: Honorable Norma L. Shapiro




               Argued September 27, 2004
  Before: RENDELL, FUENTES, and SMITH, Circuit Judges.

                       (Filed June 6, 2005)


Richard Feder
Craig Gottlieb (Argued)
City Solicitor
1515 Arch Street, 17 th Floor
Philadelphia, PA 19102

ATTORNEYS FOR APPELLANTS

Paul Messing (Argued)
Kairys, Rudovsky, Epstein, Messing
924 Cherry Street, Suite 500
Philadelphia, PA 19107

ATTORNEY FOR APPELLEE


                     OPINION OF THE COURT


FUENTES, Circuit Judge.

       After Kimberly Wright was sexually assaulted by two men,

she broke a window and entered the house in which the assault

took place for the purpose of retrieving her clothes. Following two

separate investigations, conducted by the defendant officers

concerning the sexual assault and the break-in, Wright was charged

with burglary, theft, criminal trespass, and criminal mischief. The

charges against Wright were eventually dismissed. Thereafter, she

filed a § 1983 action against the defendant officers alleging that

they violated her constitutional rights. The District Court denied

the officers’ motion for summary judgment on the issue of

qualified immunity and the defendants now appeal. Because the

facts and circumstances within the arresting officers’ knowledge

                                2
    were sufficient to warrant a prudent person believing that Wright

    had committed the crime of criminal trespass, we conclude that

    there was no constitutional violation. Therefore, we hold that the

    officers were entitled to qualified immunity and we will reverse

    denial of the officers’ motion for summary judgment.

                                  I. Facts

           A. The Assault

           Wright’s   action    arises   from   two   separate   police

    investigations, one for a sexual assault and one for a reported

    breaking and entry.1 On the morning of December 16, 1999,

    Wright was driving alone on Chelten Avenue in Philadelphia when

    her car broke down.        Two men, Ronald Jackson and Nimar

    Thompson, stopped and offered Wright assistance. Instead of

    helping her, they drugged her and forcibly took her to a beauty

    parlor owned by Jackson. Soon thereafter, Jackson and Thompson

    took Wright from the beauty parlor to a home on Cedar Park

    Avenue where she was held in an intoxicated state for several




           1
1           Because we are reviewing a claim of qualified immunity,
2   we view the factual allegations in the light most favorable to
3   Wright, the party claiming injury. See Saucier v. Katz, 533 U.S.
4   194, 201 (2001).

                                     3
hours. When she awoke, she was partially undressed. She believed

that she had been sexually assaulted. Eventually, the two men

forced Wright out of the house, leaving her on the front porch.

Wright knocked on several neighbors’ doors for help, but received

no response. She then returned to the house where she had been

assaulted, broke a small window pane and reentered the property.

Once inside, Wright retrieved her personal belongings, as well as

three plastic bags containing several items such as: a photograph of

one of her attackers, several pieces of mail, two cancelled checks

made out to Jackson, unopened bottles of alcohol, watches, a

jacket, clothes, and a cordless phone. Wright later told police that

she took these items to help identify her attackers.

       After leaving the Cedar Park home with the items, Wright

was able to get a ride from a taxi to a friend’s home. The following

day, Wright’s sister took her to the hospital where she was treated

for her physical injuries. At the hospital, Wright was interviewed

by Officer Manning to whom she described the circumstances of

the attack and explained that she had broken a window to get back

inside the residence to retrieve her clothes. Sometime during her

hospital stay, she was treated and examined for sexual assault.



                                 4
Specimens were taken for the purpose of collecting any DNA

evidence that may have been left on her body by her attackers.

       Meanwhile, Jackson’s sister Denise Pue, the owner of the

Cedar Park home where the assault occurred, reported the break-in

of her home. There were thus two criminal investigations initiated

by the Philadelphia Police Department: one related to Wright’s

sexual assault that was to be investigated by Officer Denise

O’Malley and one related to Pue’s allegations of a break-in that

was to be investigated by Detective Daniel Heeney.

       B. The Investigations

       The investigation of the sexual assault began on December

17, 1999, when O’Malley first interviewed Wright.          In the

interview, Wright described the circumstances of the assault and

said that she had broken the window to get back into the house to

get her clothes. On December 19, the police, accompanied by

Wright and her mother, proceeded to locate the house where she

had been assaulted. After locating the house, Wright’s mother told

police that Wright had removed property from the house to prove

that she had been there. Thereafter, Wright gave police the three

bags of items taken from Pue’s house. The items were later



                                5
released to Pue.

         Meanwhile, the burglary investigation had begun on

December 16 when Heeney went to the Cedar Park home to

examine the scene of the break-in. Pue told Heeney during an

interview that she learned from a neighbor that her brother,

Jackson, had brought a woman to the house while she was at work.

During the investigation, Heeney discovered a broken pane of glass

by the front door and he recovered a slip of paper with the name

“Kimberly Wright” on it. The following day, Heeney interviewed

Jackson. Jackson admitted that he brought Wright to his sister’s

house, but he claimed that she was extremely intoxicated and that

she refused to go when he told her to leave. Jackson denied having

sexual intercourse with Wright and told Heeney that he and a friend

had left the house after calling the police because she refused to

leave.

         The two police investigators, O’Malley and Heeney,

disagree as to when each first became aware of the other’s

investigation. O’Malley remembers December 19 as the day on

which she received facsimiles of Pue’s burglary complaint from

Heeney’s office. Heeney, however, documented in his report,



                                6
dated December 17, 1999, that O’Malley had related to him a

summary of Wright’s allegations. The officers spoke on a few

occasions throughout their respective investigations.

        On January 24, 2000, O’Malley determined that Wright’s

sexual assault complaint was unfounded and told Heeney that the

case did not have a sufficient foundation to proceed. At some

unknown date, but prior to O’Malley closing the sexual assault

case, Heeney prepared an affidavit of probable cause for Wright’s

arrest in regard to the burglary of Pue’s residence. His affidavit

was approved by an Assistant District Attorney on January 30,

2000.

        On February 8, 2000, Heeney arrested Wright without a

warrant for a number of offenses, including burglary, theft, and

criminal trespass. The arrest report lists both Heeney and O’Malley

as the police personnel involved. Nearly two months after her

arrest, the charges against Wright were dismissed for failure to

prosecute because Pue failed to appear at the preliminary hearing.

        Shortly after the dismissal of the charges against Wright,

Philadelphia police authorities reopened a number of sexual assault

investigations, including Wright’s case. The cases were reopened



                                7
following complaints made by victims, the Women’s Law Project,

and other advocacy groups concerning the manner in which

Philadelphia police officers were handling sexual assault cases.

After the case was reopened, DNA samples confirmed that Jackson

was the source of the semen found in the rape exam that was

performed on Wright. Within three months after Wright’s case was

reopened, Jackson and Thompson were arrested and charged with

the sexual assault on Wright. Both men later pled guilty and were

sentenced to periods of incarceration. In November 2001, the

Philadelphia Police Internal Affairs Division issued a report

finding that O’Malley had “conducted a less than proper/thorough

investigation” of Wright’s assault case and that her case should not

have been closed as unfounded.

       After her case was reopened and Jackson and Thompson

were arrested, Wright filed the present § 1983 action in the District

Court against the City of Philadelphia and the officers for violating

her First, Fourth, and Fourteenth Amendment rights.              She

specifically claimed that she was falsely arrested and maliciously

prosecuted by Heeney and O’Malley. Wright moved for summary

judgment on a number of issues, including that the defendants were



                                 8
not entitled to qualified immunity.      The defendants opposed

Wright’s motion for summary judgment, and independently moved

for summary judgment on two issues, including that O’Malley and

Heeney were entitled to qualified immunity. The District Court

denied both cross-motions for summary judgment. Specifically

with regard to the issue of qualified immunity, the District Court

ruled that if all disputed facts were viewed in the light most

favorable to Wright, a reasonable fact-finder could conclude that

O’Malley and Heeney unreasonably dismissed Wright’s purported

reason for her break-in – to obtain evidence of the sexual assault

against her – and that the reason for the break-in should have

negated any perception of probable cause to suspect that Wright

had the requisite intent for the burglary. The District Court did not

analyze, independently, whether probable cause existed to arrest

Wright for criminal trespass. O’Malley and Heeney appeal the

denial of their motion for summary judgment on their defense of

qualified immunity.

                          II. Jurisdiction

       We first consider whether we have jurisdiction to

entertain this interlocutory appeal of the District Court’s order



                                 9
denying qualified immunity to O’Malley and Heeney. At the

outset, we note that “the Supreme Court has repeatedly stressed

the importance of resolving immunity questions at the earliest

possible stages of litigation,” Curley v. Klem, 298 F.3d 271, 277

(3d Cir. 2002) (collecting cases), because “[if] a case is

erroneously permitted to go to trial, then qualified immunity is

effectively lost.” Id. A decision on qualified immunity,

however, “will be premature when there are unresolved disputes

of historical fact relevant to the immunity analysis.” Id. at 278.

Despite the interlocutory nature of qualified immunity rulings,

they are reviewable on appeal where the dispute does not turn

upon “which facts the parties might be able to prove, but, rather,

whether or not certain given facts showed a violation of ‘clearly

established’ law.” Johnson v. Jones, 515 U.S. 304, 311 (1995).

The material facts here are not in dispute. The issue before us is

the purely legal question of whether the facts alleged, even in the

light most favorable to Wright, were legally sufficient to

establish probable cause for her arrest. Therefore, this Court has

appellate jurisdiction pursuant to 28 U.S.C. § 1291. See

Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). We exercise



                                10
plenary review of orders rejecting qualified immunity at the

summary judgment stage. See Eddy v. V.I. Water & Power

Auth., 256 F.3d 204, 208 (3d Cir. 2001).

                          III. Discussion

       In her action, Wright raises two Fourth Amendment

violations: (1) false arrest based on her arrest for burglary, theft,

criminal trespass, and criminal mischief, and (2) malicious

prosecution based on the same charges. The defendant officers

maintain that the District Court erred by denying their summary

judgment motion on their qualified immunity defense. They first

argue that they violated no constitutional right by arresting

Wright because, given the information they possessed, a

reasonable person in their situation could have believed that she

had committed the property and theft offenses. In the

alternative, they submit that even if Wright’s constitutional

rights were violated, those rights were not clearly established at

the time of the arrest. Finally, they claim that neither officer

individually had sufficient knowledge of Wright’s rape to negate

any perceived existence of probable cause.

       A. Qualified Immunity



                                 11
       Section 1983 provides a cause of action against any

person who, acting under color of state law, deprives another of

his or her federal rights. When an officer’s actions give rise to a

§ 1983 claim, the privilege of qualified immunity, in certain

circumstances, can serve as a shield from suit. See Hunter v.

Bryant, 502 U.S. 224, 227 (1991). The primary purpose of

affording public officials the privilege of qualified immunity,

thus insulating them from suit, is to protect them “from undue

interference with their duties and from potentially disabling

threats of liability.” Elder v. Holloway, 510 U.S. 510, 514

(1994) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 806

(1982)). The privilege of qualified immunity, however, can be

overcome when state officials violate “clearly established

statutory or constitutional rights of which a reasonable person

would have known.” Harlow, 457 U.S. at 818. The Supreme

Court, in Saucier v. Katz, explained the analytical process for

determining when the privilege of qualified has been overcome:

        A court required to rule upon the qualified
        immunity issue must consider, then, this
        threshold question: Taken in the light most
        favorable to the party asserting the injury, do the
        facts alleged show the officer’s conduct violated
        a constitutional right? This must be the initial

                                12
        inquiry. . . . If no constitutional right would
        have been violated were the allegations
        established, there is no necessity for further
        inquiries concerning qualified immunity. On
        the other hand, if a violation could be made out
        on a favorable view of the parties’ submissions,
        the next, sequential step is to ask whether the
        right was clearly established.

533 U.S. 194, 201 (2001) (citation omitted).

       There is some disagreement as to how Saucier should be

interpreted. Specifically, the dispute is whether a court must

determine the issue of whether there has been a constitutional

violation before reaching the qualified immunity question, or

whether that inquiry is the first part of a two-pronged test for

qualified immunity. In some cases, we have interpreted Saucier

to imply that the issue of qualified immunity is only relevant

after a court has concluded that a constitutional violation has

occurred. In that view, if there is no constitutional violation,

there is no reason to reach the qualified immunity issue. See,

e.g., Carswell v. Borough of Homestead, 381 F.3d 235, 237 (3d

Cir. 2004). In other cases, we have interpreted Saucier to mean

that a defendant is entitled to qualified immunity unless a

plaintiff can prove both that a constitutional right has been

violated, and then that the constitutional right violated was

                                 13
clearly established. See, e.g., Bennett v. Murphy, 274 F.3d 133,

136-37 (3d Cir. 2002). Under either interpretation, if no

constitutional violation is found, a court need not address

whether a reasonable officer would have known he or she was

violating a clearly established right. As a practical matter, the

outcome will be the same whether we conclude that the officers

are immune from suit or instead, that the plaintiff has no cause

of action.

       Our concurring colleague believes that Brosseau v.

Haugen, ___ U.S.___, 125 S. Ct. 596 (2004), conclusively

resolves this dispute in favor of the first interpretation. We note

that at least six of our sister Courts of Appeals would seem to

disagree. See Sample v. Bailey, ___ F.3d ___, No. 04-4174,

2005 U.S. App. LEXIS 8328, at *17-*19 (6th Cir. May 9, 2005)

(holding that the first step in the qualified immunity analysis is

whether a constitutional violation has occurred); Simkins v.

Bruce, ___ F.3d ___, No. 04-3072, 2005 U.S. App. LEXIS 8073,

at *3-*5 (10th Cir. May 9, 2005) (same); Harris v. Coweta

County, ___ F.3d ___, No. 03-15094, 2005 U.S. App. LEXIS

6721, at *7 (11th Cir. April 20, 2005) (same); San Jose Charter



                                 14
of the Hells Angels Motorcycle Club v. City of San Jose, 402

F.3d 962, 971 (9th Cir. 2005) (same); Craighead v. Lee, 399

F.3d 954, 961 (8th Cir. 2005) (same); Riverdale Mills Corp. v.

Pimpare, 392 F.3d 55, 60-61 (1st Cir. 2004) (same). Those

Courts of Appeals considered Brosseau and yet still treated the

constitutional violation as part of the qualified immunity test, as

opposed to a separate inquiry like our concurring colleague

recommends.2 See also Burke v. Town of Walpole, ___ F.3d

___, No. 04-1226, 2005 U.S. App. LEXIS 7105, at * 22 (1st Cir.

Apr. 25, 2005); Beard v. Whitmore Lake Sch. Dist., 402 F.3d

598, 603 (6th Cir. 2005); McVay v. Sisters of Mercy Health

Sys., 399 F.3d 904, 907-08 (8th Cir. 2005).3 Accordingly, at

least two of those Courts of Appeals have specifically concluded

that defendants would be entitled to qualified immunity upon a

determination that no constitutional violation was committed.

See Sample, 2005 U.S. App. LEXIS 8328, at *18 (“Qualified

       2
         Although only Riverdale discussed Brosseau in the context
of the structure of the inquiry, all of the cases cited Brosseau for
some proposition, indicating the Courts’ familiarity with the case.
       3
          As indicated by the cases, the First, Sixth, and Eighth
Circuits have considered qualified immunity doctrine in light of
Brosseau multiple times and analyzed the constitutional violation
as the first part of the qualified immunity inquiry.

                                15
immunity must be granted if the plaintiff cannot establish each

of these elements.”) (quotation omitted); Riverdale, 392 F.3d at

65 (holding that defendants were entitled to qualified immunity

when there was no constitutional violation). We believe that

those Courts of Appeals acted reasonably in reading Brosseau as

consistent with a two-step qualified immunity inquiry, with the

first step being the “constitutional issue” and the second being

“whether the right was clearly established.”

       This case, however, does not require us to decide between

the two readings of Saucier because the constitutional violation

was presented to us in the context of qualified immunity.

Specifically, in the course of asserting their claim for qualified

immunity, Heeney and O’Malley argue there was no

constitutional violation. We recognize that a conclusion that no

constitutional violation took place would also negate an essential

element of the § 1983 claim, see Albright v. Oliver, 510 U.S.

266, 271 (1994), but the constitutional violation is best

addressed as an aspect of the qualified immunity analysis

because that was the jurisdictional basis for this interlocutory

appeal, see Swint v. Chambers County Comm’n, 514 U.S. 35,



                                 16
49-50 (1995). While we could construe the officers’ arguments

as challenging Wright’s cause of action, we believe the proper

way for us to review the constitutional violation here is through

the qualified immunity denial. Accordingly, this opinion

analyzes the threshold inquiry, whether the officers’ conduct

violated Wright’s constitutional rights, as the first part of the

qualified immunity analysis.

       B. Probable Cause

       The Fourth Amendment provides that people are “to be

secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures, . . . and no Warrants shall

issue, but upon probable cause.” U.S. Const. amend. IV. To

determine whether an arrest is valid, we look to the law of the

state where the arrest took place. United States v. Myers, 308

F.3d 251, 255 (3d Cir. 2002) (citing Ker v. California, 374 U.S.

23, 37 (1963) (plurality opinion)). Under Pennsylvania law,

police officers can execute warrantless arrests for felonies and

any grade of theft and attempted theft. See 18 Pa. Cons. Stat.

Ann. § 3904; Commonwealth v. Taylor, 677 A.2d 846 (Pa.

Super. Ct. 1996) (noting that police officers may make



                                 17
warrantless arrests for felonies or breaches of the peace). An

arrest by a law enforcement officer without a warrant “is

reasonable under the Fourth Amendment where there is probable

cause to believe that a criminal offense has been or is being

committed.” Devenpeck v. Alford, 125 S. Ct. 588, 593 (2004).

       While “[t]he probable-cause standard is incapable of

precise definition or quantification,” Maryland v. Pringle, 540

U.S. 366, 371 (2003), all interpretations of probable cause

require a belief of guilt that is reasonable, as opposed to certain,

see Hill v. California, 401 U.S. 797, 804 (1971) (“Sufficient

probability, not certainty, is the touchstone of reasonableness

under the Fourth Amendment. . . .”).

       “Probable cause does not require the same type of

specific evidence of each element of the offense as would be

needed to support a conviction.” Adams v. Williams, 407 U.S.

143, 149 (1972). Therefore, the evidentiary standard for

probable cause is significantly lower than the standard which is

required for conviction. See Michigan v. DeFillippo, 443 U.S.

31, 36 (1979) (“We have made clear that the kinds and degree of

proof and the procedural requirements necessary for a conviction



                                 18
are not prerequisites to a valid arrest.”) (citations omitted);

Wilson v. Russo, 212 F.3d 781, 789 (3d Cir. 2000) (holding that

probable cause only requires a “fair probability” that a person

committed the relevant crime). An arrest was made with

probable cause if “at the moment the arrest was made . . . the

facts and circumstances within [the officers’] knowledge and of

which they had reasonably trustworthy information were

sufficient to warrant a prudent man in believing that [the

suspect] had committed or was committing an offense.” Beck v.

Ohio, 379 U.S. 89, 91 (1964) (citations omitted). In other

words, the constitutional validity of the arrest does not depend

on whether the suspect actually committed any crime. Johnson

v. Campbell, 332 F.3d 199, 211 (3d Cir. 2003). Importantly for

this case, it is irrelevant to the probable cause analysis what

crime a suspect is eventually charged with, Barna v. City of

Perth Amboy, 42 F.3d 809, 819 (3d Cir. 1994) (“Probable cause

need only exist as to any offense that could be charged under the

circumstances.”), or whether a person is later acquitted of the

crime for which she or he was arrested, DeFillippo, 443 U.S. at

36; see also Devenpeck, 125 S. Ct. at 594 (“The rule that the



                                 19
offense establishing probable cause must be ‘closely related’ to,

and based on the same conduct as, the offense identified by the

arresting officer at the time of arrest is inconsistent with []

precedent.”).

       Wright contends that because the officers were aware of

each other’s investigations, Heeney should have known that

Wright broke a window and entered Pue’s home to retrieve her

clothes and to gather evidence to prove she had been assaulted.

She argues therefore, that Heeney knew or should have known

that there was no criminal intent to commit any offense. The

officers argue that they had probable cause to arrest Wright

because they reasonably believed she committed burglary, theft,

or criminal trespass. They contend that a reasonable belief that

she committed any of these offenses entitles them to qualified

immunity. We agree.

       Whether any particular set of facts suggest that an arrest

is justified by probable cause requires an examination of the

elements of the crime at issue. We focus our inquiry on whether

the officers had probable cause to arrest her for the offense of

criminal trespass. Section 3503(a)(1) of the Pennsylvania Crime



                                 20
Codes provides that a person commits the offense of criminal

trespass when:

           knowing that he is not licensed or privileged to
           do so, he:
               (i) enters, gains entry by subterfuge or
           surreptitiously remains in any building or
           occupied structure or separately secured or
           occupied portion thereof; or
               (ii) breaks into any building or occupied
           structure or separately secured or occupied
           portion thereof.

18 Pa. Cons. Stat. Ann. § 3503(a)(1).4

       Under this statute, probable cause exists for an arrest for

criminal trespass when the facts and the circumstances are

sufficient for a prudent person to believe that the suspect: (1)

entered or broke into a building or occupied structure, (2)

knowing that she or he had no license or privilege to do so.

Unlike burglary, which requires proof of criminal intent,

criminal trespass merely requires proof of scienter, in other

words, that the defendant had knowledge of a lack of license or

privilege to enter. Commonwealth v. Williams, 496 A.2d 31,

42-43 (Pa. Super. Ct. 1985) (citing Commonwealth v. Carter,




       4
        The offense of criminal trespass is a felony. 18 Pa. Cons.
Stat. Ann. § 3503(a)(2).

                                  21
393 A.2d 660, 661 (Pa. 1978)).

       Looking at the facts in the light most favorable to Wright,

we assume she entered the residence to retrieve her clothes and

evidence of her assault under the mistaken belief that she had

license or privilege to enter. But, we are concerned here only

with the question of probable cause, not Wright’s guilt or

innocence. Thus, even if Wright lacked the requisite knowledge

to commit criminal trespass, we must evaluate whether the

totality of the circumstances was sufficient to justify a

reasonable belief on the part of the officers that Wright had

committed a crime.

       Wright admitted to police that she broke a small window

pane and entered the Cedar Park residence. She left with bags

containing various items from the residence including wine,

watches, clothes, and other items that were unlikely to help the

police identify her attackers. She turned those bags over to the

police only after her mother alerted the police as to her

possession of them. Pue said that neighbors had seen a woman

at her house with her brother. Heeney found a slip of paper with

Wright’s name on it at the scene of the alleged burglary.



                                 22
       Although her explanation for entering Pue’s residence is a

factor in the probable cause analysis, it is not dispositive. 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. The officers did not believe

Wright’s explanation for her entry. Although they may have

made a mistake, their belief was not unreasonable in light of the

information the officers possessed at the time. See Paff v.

Kaltenbach, 204 F.3d 425, 437 (3d Cir. 2000). Wright admitted

breaking a window and entering the residence and removing

items of little or no evidentiary value, and she returned those

items only after the police were alerted to the fact that she had

them. In addition to those facts, there was an identification by a

neighbor and her name was found on a piece of paper in the

house. In those circumstances, we cannot say that the officers

acted in an unreasonable manner.

       In its opinion, the District Court determined that “there

are disputed factual issues which bear directly upon the question

of whether a reasonable police officer could have mistakenly



                                23
believed that there was probable cause to arrest [Wright].” (App.

34.) The District Court reached this conclusion, however, by

focusing on the offense of burglary and not the other offenses

against Wright. When we consider the offense of criminal

trespass, we conclude that the officers had probable cause to

arrest her for this offense. Accordingly, Wright’s warrantless

arrest for criminal trespass was not a seizure in violation of the

Fourth Amendment.

       Finding no constitutional violation, we reverse the

District Court’s denial of summary judgment based on qualified

immunity. In light of this decision, we need not address whether

probable cause existed for the other two felony offenses,

burglary and theft, with which she was charged. See Barna, 42

F.3d at 819.

       C. Malicious Prosecution

       Our decision also disposes of Wright’s remaining § 1983

claim– malicious prosecution. Wright bases her malicious

prosecution claim on alleged Fourth Amendment violations

arising from her arrest and prosecution. To prevail on this claim,

she must show that the officers lacked probable cause to arrest



                                24
her. As already discussed, however, there was probable cause

for Wright’s arrest and prosecution for criminal trespass based

on the information available to the officers at the time of her

arrest. Even though our discussion of probable cause was

limited to the criminal trespass claim, it disposes of her

malicious prosecution claims with respect to all of the charges

brought against her, including the burglary. Because Wright

failed to establish that a constitutional right was violated, the

officers are entitled to qualified immunity with respect to the

malicious prosecution claim as well.

                         IV. Conclusion

       We have considered all of the arguments advanced by the

parties and conclude that no further discussion is required.

Accordingly, the judgment of the District Court will be reversed.




                                 25
Wright v. City of Philadelphia, Case No. 03-1633

SMITH, Circuit Judge, concurring.

        Although I reach the same result as does the majority, I
write separately to explain how in my view we should characterize
the nature of our inquiry in this case. While the majority considers
this issue to be unsettled, I believe that position is no longer tenable
under Supreme Court precedent.

        According to the majority, it is unclear whether a court must
determine the existence vel non of a constitutional violation before
weighing whether officials sued for that violation are protected by
qualified immunity, or whether the first determination is part and
parcel of the second. I agree that the confusion in this area began
in Saucier v. Katz, 533 U.S. 194 (2001), and that our cases reflect
that confusion. Saucier taught that a court required to rule on a
qualified immunity issue must consider a “threshold” question:
“Taken in the light most favorable to the party asserting the injury,
do the facts alleged show the officer’s conduct violated a
constitutional right?” 533 U.S. at 201. “If no constitutional right
would have been violated were the allegations established,” the
Court continued, “there is no necessity for further inquiries
concerning qualified immunity.” Id. The final clause in that
statement can be read two ways, and we have employed both
readings. At times, we have reasoned that the existence of a
constitutional violation is part of the qualified immunity inquiry.
See, e.g., Kopec v. Tate, 361 F.3d 772, 776 (3d Cir. 2004) (quoting
Bennett v. Murphy, 274 F.3d 133, 136 (3d Cir. 2001) (“If the
plaintiff fails to make out a constitutional violation, the qualified
immunity inquiry is at an end; the officer is entitled to
immunity.”)). At other times, we have declared that determination
of the constitutional issue precedes qualified immunity. See, e.g.,
Carswell v. Borough of Homestead, 381 F.3d 235, 237 (3d Cir.
2004).

                                  26
        I believe that Brosseau v. Haugen, 125 S. Ct. 596 (2004)
(per curiam), clarifies the correct reading of Saucier on this
question. In Brosseau, the Court considered whether a police
officer violated a clearly established constitutional right when the
officer shot a fleeing suspect in the back. According to the Court,
this inquiry was separate from the question whether a constitutional
right was violated in the first place. “We express no view as to the
correctness of the Court of Appeals’ decision on the constitutional
question itself,” the Court explained, id. at 598, but added that,
“[w]e believe that, however that question is decided, the Court of
Appeals was wrong on the issue of qualified immunity.” Id.
Importantly, the Court provided this disclaimer: “We have no
occasion to reconsider our instruction in [Saucier] that lower courts
decide the constitutional question prior to deciding the qualified
immunity question.” Id. at 598 n.3. As the concurring opinion in
Brosseau emphasizes, this last point is not merely a matter of
semantics. Joined by Justices Scalia and Ginsburg, Justice Breyer
stated:

       I am concerned that the current rule [requiring lower
       courts to consider the constitutional question before
       the qualified immunity question] rigidly requires
       courts unnecessarily to decide difficult constitutional
       questions when there is available an easier basis for
       the decision (e.g., qualified immunity) that will
       satisfactorily resolve the case before the court.
       Indeed, when courts’ dockets are crowded, a rigid
       “order of battle” makes little administrative sense
       and can sometimes lead to a constitutional decision
       that is effectively insulated from review.

125 S. Ct. at 600-01 (Breyer, J., concurring).5 Justice Stevens,



       5
       In favor of its prescribed “order of battle,” the Saucier
Court for its part explained that

       [i]n   the   course   of   determining    whether    a

                                  27
dissenting, seemed equally convinced that the constitutional and
qualified immunity inquiries are separate. See id. at 601. Tallying
the votes, I conclude that while some Justices of the Supreme Court
do not like the rule, all nine Justices read Saucier to require two
separate inquiries, a constitutional inquiry and a qualified immunity
inquiry, and at least eight Justices believe the former must precede
the latter.6 Accordingly, I disagree with the majority that, in the
wake of Brosseau, “[t]here is some disagreement as to how Saucier
v. Katz, which sets forth the qualified immunity inquiry, should be
interpreted.”

        The majority appears to attempt to avoid confusion by re-
labeling the second prong of the Saucier test. Whereas Brosseau
refers to the second prong of the Saucier test as addressing the
“qualified immunity” issue, the majority refers to that prong as
addressing “whether the right was clearly established.” While I
share the concern motivating this seemingly commonsensical
change, I think it conceals the basic problem with the majority’s


       constitutional right was violated on the premises
       alleged, a court might find it necessary to set forth
       principles which will become the basis for a holding
       that a right is clearly established. This is the process
       for the law’s elaboration from case to case, and it is
       one reason for our insisting upon turning to the
       existence or nonexistence of a constitutional right as
       the first inquiry. The law might be deprived of this
       explanation were a court simply to skip ahead to the
       question whether the law clearly established that the
       officer’s conduct was unlawful in the circumstances
       of the case.

533 U.S. at 201.
       6
        Unlike the concurring Justices in Brosseau, Justice Stevens
in dissent did not clearly agree with the Brosseau majority that
courts must settle the constitutional question before the qualified
immunity question. See 125 S.Ct. at 601.

                                 28
approach. That is, the Supreme Court seems clearly to view the
second prong of the Saucier test as the essential “qualified
immunity” inquiry – not as part of a larger qualified immunity
inquiry. See Saucier, 533 U.S. at 208 (“[b]ecause we granted
certiorari only to determine whether qualified immunity was
appropriate, however, and because of the limits imposed on us by
the questions on which we granted review, we will assume a
constitutional violation could have occurred on the facts alleged .
. . .”). We should do the same.

        Unfortunately, in my view the majority compounds its error
in describing the nature of our inquiry by holding that the officers
in this case were entitled to qualified immunity because there was
no constitutional violation. See Maj. Op. at 2 (“[W]e conclude that
there was no constitutional violation. Therefore, we hold that the
officers were entitled to qualified immunity and we will reverse
denial of the officers’ motion for summary judgment.”) To my
knowledge, only one of our sister circuits has gone this far. See
Riverdale Mills Corp. v. Pimpare, 392 F.3d 55, 65 (1st Cir. 2004)
(holding that government agents were entitled to qualified
immunity because the plaintiff failed to establish a constitutional
violation under Saucier’s first prong). 7 By contrast, the Eleventh
Circuit speaks neither of the qualified immunity inquiry as
consisting of two steps, see Evans v. Stephens, ___ F.3d ___, No.
02-16424, 2005 WL 1076603, at *4 (11th Cir. May 9, 2005) (en



       7
        The other cases from the Courts of Appeals cited by the
majority do speak of Saucier’s two-step qualified immunity
inquiry, but they do not cite Brosseau to support that
characterization. See Craighead v. Lee, 399 F.3d 954, 962 (8th
Cir. 2005) (considering Brosseau’s instructions regarding Saucier’s
second prong); Beard v. Whitmore Lakes Sch. Dist., 402 F.3d 598,
607 (6th Cir. 2005) (same); San Jose Charter of the Hells Angels
Motorcycle Club v. City of San Jose, 402 F.3d 962, 978 n.17 (9th
Cir. 2005) (same). See also Simkins v. Bruce, ___ F.3d ___, No.
04-3072, 2005 WL 1077718, at *1 (10th Cir. May 9, 2005) (same).

                                29
banc),8 nor holds that failure to establish a constitutional violation
triggers qualified immunity. See Purcell v. Toombs County, 400
F.3d 1313, 1324 (11th Cir. 2005) (Edmondson, C.J.).9 As the
majority’s terminology and holding seem to me inconsonant with
Brosseau, I believe the Eleventh Circuit employs the better
approach.

       Ultimately, the majority apparently feels compelled to hold
that the officers have qualified immunity because “that was the
basis for this interlocutory appeal.” In other words, the majority
seems to believe that what arrived in a “qualified immunity”
envelope cannot be returned in a “failure to state a claim”
envelope. I disagree with the majority for two reasons.

       First, the purpose of the qualified immunity doctrine is to
“permit insubstantial lawsuits to be quickly terminated,” Harlow v.
Fitzgerald, 457 U.S. 800, 814 (1982), i.e., to allow the “dismissal
of insubstantial lawsuits without trial.” Id. In other words, the
essential reason we are permitted to exercise interlocutory
jurisdiction when qualified immunity is denied by a district court
is broadly to determine whether dismissal is appropriate. “Unless
the plaintiff’s allegations state a claim of violation of clearly
established law,” the Court has explained, a defendant pleading
qualified immunity is entitled to dismissal before the
commencement of discovery.” Mitchell v. Forsyth, 472 U.S. 511,
526 (1985) (emphasis added). Thus, “[a] court evaluating a claim


       8
        But see Harris v. Coweta County, ___ F.3d ___, No. 03-
15094, 2005 WL 901889, at *2 (11th Cir. Apr. 20, 2005)
(describing two-step Saucier test as plaintiff’s burden to show that
qualified immunity is not appropriate).
       9
        See also Myers v. Redwood City, 400 F.3d 765, 770 (9th
Cir. 2005) (“Although we conclude that the Defendants did not
violate the constitutional rights of the Plaintiffs, given the
complexity of the question, we will address the easier question of
qualified immunity as well.”).

                                 30
of qualified immunity must first determine whether the plaintiff has
alleged a deprivation of a constitutional right at all, and if so,
proceed to determine whether that right was clearly established at
the time of the violation.” Wilson v. Layne, 526 U.S. 603, 609
(1999) (emphasis added; citation omitted). In my view, where no
such claim is stated, dismissal on that ground – rather than on the
ground that the officials are immune – is appropriate.

        Second, the majority’s reasoning contravenes the purpose of
the two-step Saucier inquiry. As discussed above, Saucier’s “order
of battle” is designed to force courts to establish precedent on the
contours of constitutional rights to provide guidance for law
enforcement officers. See 533 U.S. at 201, 207. Applying this
approach, a court may find that an official’s alleged conduct was
constitutionally permissible or that the conduct, while
constitutionally impermissible, did not cross a “clearly established”
line. Referring to both of these scenarios as establishing “qualified
immunity” sends a confusing signal to law enforcement officials
concerning what actions they may or may not take. The majority’s
reasoning thus ironically has the potential to frustrate the
development of “clearly established” law, the very raison d’etre for
Saucier’s two-step test.

        In view of the foregoing, I believe the proper analytical
course in this case would be first to consider whether the
defendants violated the Constitution. Because we answer that
question in the negative, Ms. Wright lacks a cause of action. That
determination should end our inquiry, and we should decline to
reach the “second, qualified immunity question.” Brosseau, 125 S.
Ct. at 597.




                                 31
