Fleck v. Trustees of the Univ. of Pa., PICS Case No. 14-0196 (E.D. Pa. Feb. 5, 2014) Dalzell, J. (37 pages).

U.S. DISTRICT COURT-EASTERN

The Legal Intelligencer

CONSTITUTIONAL LAW

Freedom of Speech • Search and Seizure • False Arrest • False Imprisonment • Malicious Prosecution • §1983

Fleck v. Trustees of the Univ. of Pa., PICS Case No. 14-0196 (E.D. Pa. Feb. 5, 2014) Dalzell, J. (37 pages).

Where plaintiffs disturbed public order through their public speech and were arrested, such arrest did not constitute a violation of First and Fourth Amendment rights. Granted.

Plaintiff Fleck and other plaintiffs were members of a Christian evangelical organization called Repent America, which engaged in "open-air preaching" under often contentious circumstances. Plaintiffs stationed themselves at the entrance to a mosque on two separate days, preaching that Islam was a destructive and hateful religion. Police were called because plaintiffs were impeding access and creating a tense situation with congregants. After refusing police orders, plaintiffs were arrested and their video camera confiscated and erased on the first day by University of Pennsylvania police; on the second day, only one plaintiff was briefly detained and his video camera confiscated for several hours by Philadelphia municipal police.

Plaintiffs brought a variety of claims against multiple defendants pursuant to 42 U.S.C. §1983, for freedom of speech, search and seizure and due process violations, as well as state law claims for false arrest, false imprisonment and malicious prosecution against both police departments and the individual officers involved, and an undefined §1983 against the City of Philadelphia that the court construed as constitutional violations as a result of municipal policy, custom or practice pursuant to Monell.

After determining that the university police were "state actors" under §1983, the court found that neither department violated plaintiffs' right to free speech. The court noted that the state may regulate speech where it is unrelated to content. The officers were concerned with the maintenance of public order and sought to diffuse a tense confrontation by asking plaintiffs to stop impeding entry to the mosque and relocate down the street where they would be free to continue their preaching.

The court also found that defendants did not violate plaintiffs' Fourth Amendment rights in regards to their arrest and the seizure of their video camera. The Penn officers asserted qualified immunity on the basis that they had probable cause for arrest. The court noted that plaintiffs were making unreasonable noise and creating public inconvenience and alarm by their presence and positioning, which generated sufficient probable cause to arrest plaintiffs for disorderly conduct. The brief detention of one of the plaintiffs during the second incident was permissible, as a brief investigatory stop is allowed under reasonable suspicion of criminal activity.

The court found the seizure of plaintiffs' video camera on both occasions reasonable under due process. The court noted that where the deprivation of property is unauthorized, it is not a violation of due process if a meaningful post-deprivation remedy is available. In both occasions, the court noted that the camera was returned to plaintiffs after only several hours, which the court found to be an adequate remedy. The court did find that plaintiffs suffered a deprivation when the recording on the camera was deleted after the first seizure; however, §1983 claims do not cover negligent acts, and the court found nothing in the record to establish that the police acted intentionally in deleting the recording.