Berg v. County of Allegheny

Opinions of the United
2000 Decisions States Court of Appeals
for the Third Circuit

7-17-2000

Berg v. Allegheny Cty
Precedential or Non-Precedential:

Docket 98-3557

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Filed July 17, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 98-3557

RAYMOND A. BERG, JR.,
Appellant

v.

COUNTY OF ALLEGHENY;
ALLEGHENY COUNTY ADULT PROBATION SERVICES;
DEBBIE BENTON; RICHARD R. GARDNER;
GLENN ALLEN WOLFGANG; GINNY DEMKO

On Appeal from the United States District Court
for the Western District of Pennsylvania
D.C. Civil Action No. 97-cv-00928
(Honorable Donetta W. Ambrose)

Argued March 10, 1999

Before: MANSMANN, SCIRICA and NYGAARD,
Circuit Judges

(Filed July 17, 2000)

THEODORE E. BREAULT, ESQUIRE
(ARGUED)
Breault & Associates
428 Forbes Avenue
2200 Lawyers Building
Pittsburgh, Pennsylvania 15219

Attorney for Appellant
 ERIC N. ANDERSON, ESQUIRE
(ARGUED)
Meyer, Darragh, Buckler, Bebenek
& Eck
2000 The Frick Building
Pittsburgh, Pennsylvania 15219

Attorney for Appellees,
County of Allegheny, Allegheny
County Adult Probation Services,
Debbie Benton, Richard R.
Gardner, Ginny Demko

AUDREY J. COPELAND, ESQUIRE
(ARGUED)
Marshall, Dennehey, Warner,
Coleman & Goggin
1845 Walnut Street
Philadelphia, Pennsylvania 19103

SCOTT G. DUNLOP, ESQUIRE
Marshall, Dennehey, Warner,
Coleman & Goggin
2900 USX Tower
600 Grant Street
Pittsburgh, Pennsylvania 15219

Attorneys for Appellee,
Glenn Allen Wolfgang

OPINION OF THE COURT

PER CURIAM.

Plaintiff Raymond Berg appeals the District Court's grant
of summary judgment to all defendants in this civil rights
action alleging false arrest and imprisonment based on an
erroneously issued warrant. We will affirm in part and
reverse in part.

I. Background

On July 14, 1994, Richard Gardner, the supervisor at
Allegheny County Adult Probation Services, requested an

2
arrest warrant for Paul Banks, who had violated conditions
of his parole. After a judge of the Court of Common Pleas
approved the warrant, Gardner sent an Arrest Warrant
Information Sheet to Virginia Demko, the warrant clerk
responsible for issuing and clearing all arrest warrants in
Allegheny County. The Information Sheet listed Banks's
name, offense, date of birth, criminal complaint number,
Social Security number, and address. On August 3, 1994,
Demko generated the warrant using the County's
computerized Integrated Court Information System (ICIS).
ICIS is operated by typing a criminal complaint number
into the computer, which automatically retrieves the
remaining information and displays it on the user's screen.

Unfortunately, Demko transposed two digits in Banks'
criminal complaint number. As a result, she entered the
criminal complaint number of plaintiff, Raymond A. Berg,
Jr., who three years earlier had completed a six-month
parole term for driving under the influence. Demko's
computer screen displayed Berg's name, date of birth,
criminal complaint number, Social Security number, and
address, all of which were different from the information on
the Arrest Warrant Information Sheet. Berg concedes,
however, that Demko noticed only that the address on the
screen was different from the address on the Information
Sheet. See Appellant's Br. at 7. She did not realize that the
other information was different as well. See id.

Concluding that the ICIS contained an old or otherwise
incorrect address for Banks, Demko manually changed the
information in the ICIS. She replaced Berg's address, in
Sewickley, Pennsylvania, with Banks's last known address,
listed on the Information Sheet, in Finleyville, Pennsylvania.
That was the only change she made.

Demko then generated the warrant for Berg's arrest and
sent it to the Allegheny County Sheriff 's Office. Gardner's
name and telephone number were written on the warrant
as the contact person from whom additional information
could be obtained. Demko also returned the Information
Sheet requesting the Banks warrant to Gardner after date-
stamping it to indicate that the warrant had been issued.
Thus, because of Demko's clerical error, and her
subsequent decision to change the information contained in

3
the ICIS, an arrest warrant was issued for Berg rather than
Banks. Demko later testified in her deposition that, in
issuing over 500 warrants per month since 1989,"this is
the only occasion where this has ever occurred."

In reviewing Banks' case on August 16, 1994, Gardner
noticed that the Information Sheet had been stamped
(indicating the issuance of a warrant) but, according to his
review of ICIS, no warrant in fact existed. Gardner admits
that, "for a brief moment," he may have considered the
possibility that an erroneous warrant was issued, but
would have quickly realized that there was no practical way
to determine whether one had. See Gardner Dep. at 141:16
through 142:3 (A.397-98). He then called Demko, informed
her that no warrant had been issued for Banks, and
requested that she issue one. Nothing in the record
indicates that Gardner suggested to Demko, at that time,
that she may have processed an erroneous warrant.

Berg's warrant was executed on the night of December
30, 1994, by Glenn Allen Wolfgang, an elected constable in
Westmoreland County. Wolfgang, who earned a fee for each
person arrested, frequently executed outstanding arrest
warrants for Allegheny County, and on December 30 he
planned to make four arrests. Before leaving home,
Wolfgang retrieved Berg's address and telephone number
using a computer software/on-line system he had
purchased from a credit union. Apparently, however, he did
not notice that the address he retrieved, and the one listed
on the warrant for Berg's arrest, were different. He
proceeded instead to the Finleyville address listed on the
warrant, only to discover that it was an abandoned house.
Wolfgang then telephoned Berg and asked for directions to
his house. Wolfgang called three or four more times for
further directions and took over an hour to drive from
Finleyville to Berg's house. In his deposition, Wolfgang
described Berg as "[v]ery cooperative" on the telephone.

When Wolfgang arrived, Berg was entertaining guests at
his house at a pre-New Year's Eve party. Berg informed
Wolfgang that he had never lived in Finleyville and offered
to produce release documents proving that he was no
longer on parole. After confirming that Berg's birthday and
social security number were the same as those on the

4
warrant, Wolfgang refused to look at the release
documents, instead telling Berg to bring them with him.
Berg did show Wolfgang his driver's license, confirming that
Berg was no longer on parole.1 But Wolfgang simply told
Berg not to take too much time retrieving the release
documents because he had three more people to arrest that
night.

Wolfgang did call the Allegheny County Sheriff 's Office,
but after being told that the warrant was still"active," he
arrested Berg. Wolfgang did not try to call Gardner.
Gardner testified that if Wolfgang had called and asked him
about a warrant for Berg's arrest, Gardner would have
checked Berg's file and told Wolfgang not to arrest Berg.

At the Sheriff 's office, Berg was strip-searched,
fingerprinted, inoculated, and placed in the Allegheny
County Jail. Because Probation Services and the courts
were closed for the holidays, Berg remained in jail until
January 3, 1995, or approximately five days. Finally, after
intervention by Berg's attorney, Demko issued a Notification
to Clear the Warrant and Berg was released.

Berg filed suit against Allegheny County, Gardner,
Demko, and Wolfgang in Pennsylvania state court, alleging
civil rights violations under 42 U.S.C. SS 1983, 1985(3),
1988 (1994), and the Fourth, Fifth, and Fourteenth
Amendments.2 The defendants removed the case to the
District Court for the Western District of Pennsylvania and,
following discovery, moved for summary judgment. The
District Court granted summary judgment to all
defendants, ruling that Berg's arrest was not
unconstitutional because the facially valid warrant gave
Wolfgang probable cause for the arrest.
_________________________________________________________________

1. In his deposition, Wolfgang acknowledged knowing that during "the
penalty phase" of a DUI sentence a defendant must surrender his
driver's license.

2. Berg also sued his former parole officer, Debbie Benton, and Allegheny
County Adult Probation Services. Benton was dismissed with Berg's
consent when it became clear that she was not involved in his arrest.
The District Court dismissed the Probation Services office, concluding
the office is an arm of the County without distinct legal existence. See
Berg v. County of Allegheny, No. 97-928, slip op. at 4 n.2 (W.D. Pa. Sep.
23, 1998). Berg does not challenge this determination on appeal.

5
II. Legal/Analytical Framework

On appeal, Berg presses only his S 1983 claim. 3 To make
a prima facie case under S 1983, the plaintiff must
demonstrate that a person acting under color of law
deprived him of a federal right. See Groman v. Township of
Manalapan, 47 F.3d 628, 633 (3d Cir. 1995). Here, it is
undisputed that defendants were acting under color of law
when they issued and executed the warrant for Berg's
arrest.

The next step is to "identify the exact contours of the
underlying right said to have been violated." County of
Sacramento v. Lewis, 523 U.S. 833, 841 n.5 (1998). Section
1983 is not a source of substantive rights and does not
provide redress for common law torts--the plaintiff must
allege a violation of a federal right. See Baker v. McCollan,
443 U.S. 137, 146 (1979). Berg alleges he was subjected to
false arrest, false imprisonment, and denial of due process
in violation of 42 U.S.C. SS 1983 and 1985(3), and the
Fourth, Fifth, and Fourteenth Amendments.

The Supreme Court has held that when government
behavior is governed by a specific constitutional
amendment, due process analysis is inappropriate.
Although not all actions by police officers are governed by
the Fourth Amendment, see Lewis at 842-43 (noting that
accidents during police chases are not "covered" by the
Fourth Amendment), the constitutionality of arrests by
state officials is governed by the Fourth Amendment rather
than due process analysis. See id.; United States v. Lanier,
520 U.S. 259, 272 n.7 (1997); Graham v. Connor , 490 U.S.
386, 394 (1989); Blackwell v. Barton, 34 F.3d 298, 302 (5th
Cir. 1994). Therefore, we will limit our analysis of Berg's
arrest to his Fourth Amendment claim. See Baker , 443 U.S.
_________________________________________________________________

3. 42 U.S.C. S 1983 provides in part:

Every person who, under color of any statute, ordinance,
regulation,
custom, or usage, of any State or Territory or the District of
Columbia, subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to
the
deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for
redress.

6
at 142-43 (1979) (interpreting S 1983 false imprisonment
claim as grounded in Fourth Amendment rights); Groman,
47 F.3d at 636 (same). Although we recognize the
possibility that some false arrest claims might be subject to
a due process analysis, we also conclude that this record
could not support a due process claim.

Our analysis of Berg's Fourth Amendment claim is a
three-step process. First, we must determine whether he
was seized for Fourth Amendment purposes. If so, we next
determine whether that seizure violated the Fourth
Amendment's prohibition against unreasonable seizures.
Finally, if there has been a Fourth Amendment violation, we
must determine which of the defendants, if any, may be
held liable for it.

III. Fourth Amendment Seizures

A person is seized for Fourth Amendment purposes only
if he is detained by means intentionally applied to
terminate his freedom of movement. A seizure occurs even
when an unintended person is the object of detention, so
long as the means of detention are intentionally applied to
that person. See Brower v. County of Inyo, 489 U.S. 593,
596 (1989) (citing Hill v. California, 401 U.S. 797, 802-05
(1971)); see also Medeiros v. O'Connell, 150 F.3d 164, 169
(2d Cir. 1998); Rucker v. Harford County, 946 F.2d 278,
281 (4th Cir. 1991), cert. denied, 502 U.S. 1097 (1992);
Landol-Rivera v. Cruz Cosme, 906 F.2d 791, 796 (1st Cir.
1990).

For example, if a police officer fires his gun at a fleeing
robbery suspect and the bullet inadvertently strikes an
innocent bystander, there has been no Fourth Amendment
seizure. See Medeiros, 150 F.3d at 168-69; Rucker, 946
F.2d at 281; Landol-Rivera, 906 F.2d at 795. If, on the
other hand, the officer fires his gun directly at the innocent
bystander in the mistaken belief that the bystander is the
robber, then a Fourth Amendment seizure has occurred.
See Brower, 489 U.S. at 596 (citing Hill v. California, 401
U.S. 797, 802-05 (1971)).

Applying that law to these facts, there is no doubt that
Berg's arrest constituted a seizure for Fourth Amendment

7
purposes. Even if Wolfgang had thought he was arresting
Banks, his intentional application of control over the
person of Berg would be a Fourth Amendment seizure.
Here, however, Wolfgang knew he was arresting Berg rather
than Banks, and clearly intended to do so, even though
motivated by an erroneous warrant. The question, then, is
whether the arrest violated the Fourth Amendment.

The Fourth Amendment prohibits arrests without
probable cause. See Orsatti v. New Jersey State Police, 71
F.3d 480, 482 (3d Cir. 1995). As previously noted, the
District Court concluded that the warrant for Berg's arrest
was facially valid and that it therefore supplied probable
cause to arrest him. See Berg v. County of Allegheny, No.
97-928, slip op. at 4-7 (W.D. Pa. Sept. 22, 1998) (Wolfgang);
Berg v. County of Allegheny, No. 97-928, slip op. at 4-5
(W.D. Pa. Sept. 23, 1998) (remaining defendants). We
cannot agree.

The Supreme Court's decision in Whiteley v. Warden, 401
U.S. 560 (1971), as well as our own subsequent decisions,
make clear that an erroneously issued warrant cannot
provide probable cause for an arrest. In Whiteley, a county
sheriff obtained a warrant for Whiteley's arrest based on a
conclusory complaint. Police officers in another jurisdiction
arrested Whiteley, discovering evidence later introduced at
his trial. The state argued that because the arresting
officers were unaware of the defect in the warrant, they had
probable cause to arrest whether or not the sheriff did. But
the Supreme Court held that the arrest was
unconstitutional and ordered the evidence excluded:

Certainly police officers called upon to aid other officers
in executing arrest warrants are entitled to assume
that the officers requesting aid offered the magistrate
the information requisite to support an independent
judicial assessment of probable cause. Where, however,
the contrary turns out to be true, an otherwise illegal
arrest cannot be insulated from challenge by the
decision of the instigating officer to rely on fellow
officers to make the arrest.

Id. at 568. As in Whiteley, Constable Wolfgang relied on an
arrest warrant, assuming it had been issued after

8
presentation to a judge of evidence sufficient to establish
probable cause.4 Also as in Whiteley, "the contrary turn[ed]
out to be true"; neither Gardner, Demko, nor anyone else
associated with the creation of the warrant had probable
cause to arrest Berg.

In United States v. Hensley, 469 U.S. 221 (1985), the
Court, relying primarily on Whiteley, held that police may
conduct a Terry stop based on a flyer issued by other
officers, but "[i]f the flyer has been issued in the absence of
a reasonable suspicion, then a stop in the objective reliance
upon it violates the Fourth Amendment." Id. at 232. In
Arizona v. Evans, 514 U.S. 1 (1995), the Court held that
the policies underlying the exclusionary rule do not require
suppression of evidence seized pursuant to an erroneous
warrant resulting from a clerical error. But the Court also
noted that Whiteley "clearly retains relevance in
determining whether police officers have violated the Fourth
Amendment." Id. at 13. Thus, the Supreme Court has made
clear that a mistakenly issued or executed warrant cannot
provide probable cause for an arrest.

Our cases have applied the same principle. In Rogers v.
Powell, 120 F.3d 446 (3d Cir. 1997), a county probation
officer told one state trooper that a second state trooper
had reported that a warrant existed for Roger's arrest.
Relying on the probation officer's representation that a
warrant existed, the first state trooper arrested Rogers the
_________________________________________________________________

4. The Court of Appeals for the Second Circuit, without discussion of
Whiteley, has upheld an arrest based on a warrant later found to have
been improperly issued. See United States v. Towne, 870 F.2d 880, 884-
85 (2d Cir. 1989), cert. denied, 490 U.S. 1101 (1989); see also United
States v. Shareef, 100 F.3d 1491, 1505 (10th Cir. 1996) (upholding the
constitutionality of a Terry stop based on good-faith reliance on
inaccurate information provided by other law enforcement officials);
United States v. De Leon-Reyna, 930 F.2d 396, 401 (5th Cir. 1991) (en
banc) (per curiam) (same). Other courts, relying on Whiteley, have
continued to hold that an improperly issued warrant cannot provide
probable cause for an arrest. See United States v. Meade, 110 F.3d 190,
193-94 & 194 n.2 (1st Cir. 1997); Ott v. State , 600 A.2d 111, 115 (Md.
1992); State v. Taylor, 621 A.2d 1252, 1254 (R.I. 1993). The Supreme
Court's subsequent decisions, as well as our own, convince us that
Whiteley remains the governing law.

9
following day. In fact, however, there was no such warrant
and Rogers filed a S 1983 action for violation of his Fourth
and Fourteenth Amendment rights.

Like defendants here, the Rogers defendants argued that
the arresting officer's "mistaken belief that an arrest
warrant had issued for Rogers supplied the probable cause
required by the Fourth Amendment." Id. at 452-53. We
rejected this argument, holding that "[t]he legality of a
seizure based solely on statements issued by fellow officers
depends on whether the officers who issued the statements
possessed the requisite basis to seize the suspect." Id. at
453 (citing Hensley, 469 U.S. at 231). Because "neither [the
trooper] nor [the probation officer] had knowledge of the
requisite facts and circumstances necessary to support a
finding of probable cause," we concluded the arrest violated
the Fourth Amendment. Id. We similarly rejected the
argument that reliance on a mistakenly issued warrant can
supply probable cause in United States v. Miles , 468 F.2d
482, 487-88 (3d Cir. 1972), and United States v. Bianco,
189 F.2d 716, 719 (3d Cir. 1951).

The only potentially distinguishing feature of Berg's
arrest is that the mistake here was made by a court clerk,
rather than a police officer. We do not believe this
distinction is significant, however. The Fourth Amendment
provides: "[N]o Warrants shall issue, but upon probable
cause . . . ." U.S. Const. amend. IV. Because the courts are
the arm of government charged with issuing warrants, we
believe this requirement is directed to court officials as well
as law enforcement officers. This reading is supported by
the case law. In Arizona v. Evans, the Supreme Court did
not find it significant that the unlawful arrest was
occasioned by the mistake of court clerk, as opposed to a
police officer. See 514 U.S. at 13-15. 5 Similarly, in Rogers,
the arresting officers relied on a probation officer's
_________________________________________________________________

5. The Court did recognize that court personnel are not "adjuncts to the
law enforcement team engaged in the often competitive enterprise of
ferreting out crime" and therefore application of the exclusionary rule is
unlikely to alter their behavior. Id. at 15. But this determination is not
relevant to an assessment of whether their mistakes can provide
probable cause for an arrest.

10
statement that another trooper had said a warrant existed
for Rogers' arrest, yet we held the arrest unconstitutional
without inquiring whether the mistake was the trooper's or
the probation officer's. See 120 F.3d at 452-55; see also
Murray v. City of Chicago, 634 F.2d 365, 366 (7th Cir.
1980) (holding that although it was unclear whether the
police department or clerk's office had failed to transmit an
order quashing a warrant, "[i]t seems clear that [plaintiff]
sustained a violation of constitutional rights by being
arrested and detained pursuant to an invalid warrant").

Because the government officials who issued the warrant
here did not have probable cause to arrest Berg, the arrest
violated the Fourth Amendment. Accordingly, summary
judgment should not have been granted based on the
existence of the warrant.6
_________________________________________________________________

6. Unlike defendants, we do not read Baker v. McCollan, 443 U.S. 137
(1979) to hold otherwise. When he was arrested, McCollan's brother
claimed to be McCollan, presenting McCollan's identification. After his
brother violated parole, McCollan was arrested on a warrant and spent
a long New Year's weekend in jail. The Court found no constitutional
violation, but the substance of McCollan's claim was different from
Berg's:

[R]espondent makes clear that his S 1983 claim was based solely on
Sheriff Baker's actions after respondent was incarcerated . . . .

. . . Absent an attack on the validity of the warrant under which
he was arrested, respondent's complaint is simply that despite his
protests of mistaken identity, he was detained [over the long
weekend]. Whatever claims this situation might give rise to under
state tort law, we think it gives rise to no claim under the United
States Constitution.

Id. at 143-44. Unlike McCollan, Berg challenges the generation and
execution of the warrant for his arrest, not the decision to incarcerate
him after arrest. At issue here is not whether authorities must
investigate the claims of innocence of a person who has been legally
arrested but what precautions the Constitution requires before an arrest
warrant is issued and executed. See Murray, 634 F.2d at 367
(distinguishing Baker on the same ground).

11
IV. Liability of the Individual Defendants

Absent immunity or an adequate defense, a person who,
acting under color of state law, directly and intentionally
applies the means by which another is seized in violation of
the Fourth Amendment can be held liable under S 1983. As
a general rule, a government official's liability for causing
an arrest is the same as for carrying it out. See Gordon v.
Degelmann, 29 F.3d 295, 298 (7th Cir. 1994); see also
Kilborn v. Thompson, 103 U.S. 168, 200 (1880) (holding
that legislators directing an arrest are as responsible as
those who effected arrest). As the Supreme Court has
explained, S 1983 anticipates that an individual will be
"responsible for the natural consequences of his actions."
Malley v. Briggs, 475 U.S. 335, 344 n.7 (1986) (holding that
a police officer who obtains an arrest warrant without
probable cause is liable under S 1983 even though another
officer made the actual arrest). It is thus clear that S 1983
liability for an unlawful arrest can extend beyond the
arresting officer to other officials whose intentional actions
set the arresting officer in motion. We turn, then, to the
issue of which, if any, of the defendants in this case can be
held liable for Berg's unconstitutional arrest.

A. Constable Wolfgang

Constable Wolfgang contends that he is entitled to
qualified immunity from suit because he executed a facially
valid warrant. Unless historical facts are in dispute,
qualified immunity is a matter for the court. See id. at 828.
The inquiry is an objective one; the arresting officer's
subjective beliefs about the existence of probable cause are
not relevant. See Anderson v. Creighton, 483 U.S. 635, 641
(1987). In considering claims of qualified immunity, courts
are sensitive to "[t]he broad range of reasonable
professional judgment accorded" law enforcement officials
in the S 1983 context. Greene v. Reeves , 80 F.3d 1101,
1107 (6th Cir. 1996). Thus, "the qualified immunity
doctrine `gives ample room for mistaken judgments' by
protecting `all but the plainly incompetent or those who
knowingly violate the law.' " Orsatti, 71 F.3d at 484 (quoting
Malley v. Briggs, 475 U.S. 335, 345 (1986)).

12
A government official is entitled to qualified immunity if
his "conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would
have known." Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982). In the context of this case, the question is whether
"a reasonable officer could have believed that his or her
conduct was lawful, in light of the clearly established law
and the information in the officer's possession." Sharrar v.
Felsing, 128 F.3d 810, 826 (3d Cir. 1997) (citing Hunter v.
Bryant, 502 U.S. 224, 227 (1991) (per curiam); Anderson v.
Creighton, 483 U.S. 635, 641 (1987). Our inquiry, then, has
two parts. Did Wolfgang's conduct violate clearly
established law? If so, did he nevertheless reasonably
believe that his conduct was lawful in light of the
information he possessed at the time?

At the time of Berg's arrest in 1994, it was clear that an
arrest could be made only with probable cause. Although
Rogers was decided in 1997, Whiteley clearly established in
1971 the conditions under which an arresting officer can
obtain probable cause from a warrant. As we have already
noted, the warrant at issue in this case did not provide
probable cause to arrest Berg. Therefore, we must consider
whether a reasonable constable in Wolfgang's position
could have concluded that there was probable cause to
arrest Berg based on the information Wolfgang had at the
time.

Ordinarily, it is reasonable for an officer to assume that
a warrant has been issued for probable cause. As the
Supreme Court explained in Baker,

Given the requirements that arrest be made only on
probable cause and that one detained be accorded a
speedy trial, we do not think a sheriff executing an
arrest warrant is required by the Constitution to
investigate independently every claim of innocence,
whether the claim is based on mistaken identity or a
defense such as lack of requisite intent.

443 U.S. at 145-46. Therefore, we have generally extended
immunity to an officer who makes an arrest based on an
objectively reasonable belief that there is a valid warrant.
See Rogers, 120 F.3d at 456 (concluding that a state

13
trooper who was inaccurately told by another trooper that
there was a warrant for the plaintiff 's arrest was immune
from suit); Capone v. Marinelli, 868 F.2d 102, 105-06 (3d
Cir. 1989) (holding that arresting officers were immune in
light of a bulletin correctly reporting the existence of an
arrest warrant "as well as the nature of the alleged offenses
[including child kidnaping] and the fact that a young child
was in possible danger"); cf. Groman v. Township of
Manalapan, 47 F.3d 628, 635 n.10 (3d Cir. 1995) (affirming
summary judgment in favor of officers who arrested plaintiff
after being told by another officer that plaintiff had
assaulted her). Other courts of appeals have adopted the
same rule. See Pickens v. Hollowell, 59 F.3d 1203, 1207-08
(11th Cir. 1995); Salmon v. Schwartz, 948 F.2d 1131, 1140-
41 (10th Cir. 1991); Bennett v. City of Grand Prairie, Tex.,
883 F.2d 400, 408 (5th Cir. 1989); Barr v. Abrams, 810
F.2d 358, 362 (2d Cir. 1987). But see Ruehman v. Sheahan,
34 F.3d 525, 527 (7th Cir. 1994) (dicta) (questioning
whether officers who arrested plaintiff based on an
inaccurate computer report of an outstanding warrant were
protected by qualified immunity).

Nevertheless, an apparently valid warrant does not
render an officer immune from suit if his reliance on it is
unreasonable in light of the relevant circumstances. Such
circumstances include, but are not limited to, other
information that the officer possesses or to which he has
reasonable access, and whether failing to make an
immediate arrest creates a public threat or danger of flight.
See Malley, 475 U.S. at 345 (holding that where a police
office submits an affidavit in support of a warrant request,
and a reviewing magistrate's concludes that the affidavit
establishes probable cause, the officer is not immune from
a S 1983 lawsuit if "a reasonably well-trained officer in
petitioner's position would have known that his affidavit
failed to establish probable cause . . . ."); see also Yancey
v. Carroll County, 876 F.2d 1238, 1243 (6th Cir. 1989)
(holding that "[p]olice officers are entitled to rely on a
judicially secured warrant for immunity from a S 1983
action for illegal search and seizure unless the warrant is
so lacking in indicia of probable cause, that official belief in
the existence of probable cause is unreasonable.").

14
At the summary judgment stage here, Berg submitted a
report from Alan Springer, a Pennsylvania Constable, who
concluded "it was not objectively reasonable for Mr.
Wolfgang to believe that probable cause existed for the
arrest of Mr. Berg" under the circumstances. According to
Springer, the relevant circumstances included the age of
the warrant, the invalid address, Berg's socio-economic
status, Berg's documentation that he had completed his
probation, Berg's cooperativeness, the fact that Berg had a
driver's license despite allegedly being on parole for DUI,
the fact that Berg did not flee or ask his guests to leave
despite having ample warning of Wolfgang's arrival, and the
nonviolent nature of the crime. Springer stated that
Wolfgang should have waited until the probation office re-
opened on January 3, 1995 so he could look into Berg's
claims. He also opined that Wolfgang had been
"predisposed to arrest Mr. Berg" to earn his fee, particularly
after such a large investment of time.

We think Springer's report raises valid questions
concerning the reasonableness of Wolfgang's conduct in
this case. Because the District Court concluded that Berg's
arrest had not been unconstitutional, it did not reach
Wolfgang's qualified immunity claim. Consequently, it did
not make the findings of fact necessary to determine, as a
mater of law, whether Wolfgang's reliance on the warrant
was unreasonable under the circumstances with which he
was confronted. Therefore, we will remand the cause so
that the District Court can make the necessary findings,
and can consider the qualified immunity issue in the first
instance.

B. Demko

To avoid summary judgment under a Fourth Amendment
analysis, Berg must point to some evidence from which a
reasonable jury could conclude that Demko intentionally
caused his arrest. He has failed to do so. In fact, Berg
concedes that Demko failed to notice that her computer
screen displayed his name, rather than Banks', when she
mistakenly transposed the criminal complaint number on
the Warrant Information Request Sheet. See Appellant's Br.
at 7 ("She also failed to note that all of the other

15
information on her computer screen, i.e. the arrestee's
name, his date of birth, his criminal complaint number, his
social security number and the reason for his arrest, was
also incorrect."). Nevertheless, Berg contends that Demko
could be held liable under a due process theory of
deliberate indifference.

Where a defendant does not intentionally cause the
plaintiff to be seized, but is nonetheless responsible for the
seizure, it may be that a due process "deliberate
indifference" rather than a Fourth Amendment analysis is
appropriate. See County of Sacramento v. Lewis , 523 U.S.
823, 843-44 (1998) (holding that if there is no seizure, the
case is not covered by the Fourth Amendment and therefore
due process analysis may be appropriate). We need not
decide that here, however, because Berg has not alleged
anything more than mere negligence on Demko's part.
Negligence by public officials is not actionable as a due
process violation. See Daniels v. Williams, 474 U.S. 327
(1986); Colburn v. Upper Darby Township, 946 F.2d 1017
(3d Cir. 1991). Whether or not she should have noticed the
additional discrepancies between the information displayed
on her computer screen and what appeared on the
Information sheet, the fact remains that she did not.

Berg claims, however, that Demko acted with deliberate
indifference because she failed to take any steps to recall
the erroneously issued warrant when Gardner "informed
her of [her mistake] on August 16, 1994." Appellant's Br. at
25. The record does not support Berg's argument. When
Gardner called Demko on August 16, he merely informed
her that no warrant for Banks had been issued. See
Gardner Dep. at 116:9-14 (App. 372). He did not inform her
that she had issued an erroneous warrant until
approximately January 3, 1995, several days after Berg had
been arrested. See Appellant's Br. at 11 (citing App. 603).
By that time, it was obviously too late to recall the warrant
before it was executed. There is nothing in the record
indicating that Demko was aware of her error at any earlier
date. She could not have been deliberately indifferent to a
risk of which she was reasonably unaware. Therefore, we
will affirm summary judgment in favor of Demko.

16
C. Gardner

As with Demko, Berg points to no record evidence that
Gardner intentionally caused his arrest. Though Gardner
initiated the series of events that ultimately led to Berg's
arrest, his only role was to request a warrant for Banks. He
played no part in issuing the erroneous warrant for Berg.
Neither did he play any part in Wolfgang's execution of that
warrant. In short, there is nothing in this record suggesting
that Gardner ever intended to cause Berg's arrest. His only
intention was to cause Banks' arrest.

By way of rough analogy, Gardner's warrant request is
analogous to the stray bullets at issue in Medeiros, Rucker,
and Landol-Rivera. Gardner "fired" the warrant at Banks,
and it inadvertently "struck" Berg instead. This is not the
intentional application of the means of detention required
for a Fourth Amendment seizure.

Again, however, Berg argues that Gardner could be held
liable under a due process theory of deliberate indifference.
He contends that Gardner displayed such indifference when
he failed "to act on his `hunch' that perhaps an erroneous
warrant did, in fact, issue." Appellant's Br. at 8. It is worth
noting, however, that the record does not establish any
such "hunch" on Gardner's part. Asked at deposition to
recall his thoughts on a particular day more than three
years in the past, Gardner was only willing to assume that:

based upon the way I try and perform my job, that it
occurred to me that the warrant-- there was no
warrant issued, that the warrant may have not taken
in the computer or that there was a possibility that a
bad warrant had been issued.

Gardner Dep. at 151:16-20 (A.407); see also id. at 140:4-8
(A.396).

Even assuming, for summary judgment purposes, that
Gardner did realize a bad warrant may have issued, his
uncontradicted testimony establishes that he believed there
was simply no reasonable way to investigate his suspicion.
While the term deliberate indifference is generally defined to
require only knowledge of a serious risk of harm, see
Fuentes v. Wagner, 206 F.3d 335, 345 n.12 (3d Cir. 2000)

17
(defining deliberate indifference in the context of a
prisoner's Eighth Amendment claim), it also implies a
failure to take reasonably available measures to reduce or
eliminate that risk. See Farmer v. Brennan, 511 U.S. 825,
847 (1994) (holding that "a prison official may be held liable
under the Eighth Amendment . . . only if he knows that
inmates face a substantial risk of serious harm and
disregards that risk by failing to take reasonable measures
to abate it.") (emphasis added). Where no reasonable
measures exist, neither can deliberate indifference. As with
Demko, we will affirm summary judgment in favor of
Gardner.

V. Municipal Liability

Allegheny County cannot be held liable for the
unconstitutional acts of its employees on a theory of
respondeat superior. See Monell v. Department of Social
Servs., 436 U.S. 658, 691 (1978). Instead, Berg must
demonstrate that the violation of his rights was caused by
either a policy or a custom of the municipality. See Beck v.
City of Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996).

Berg contends that he was arrested as a result of
Allegheny County's "flawed warrant creation practice" and
poor training procedures. As noted, the Integrated Court
Information System generates a warrant based on a single
datum -- the criminal complaint number of the person to
be arrested. Because the user enters no other information,
there is no check in the computer system to guard against
the kind of mistake Demko made. Nor are there procedures
that would allow a probation officer such as Gardner who
suspects an error to confirm that suspicion. Theseflaws,
Berg maintains, caused his unlawful arrest.

"Policy is made when a `decisionmaker possess[ing] final
authority to establish municipal policy with respect to the
action' issues an official proclamation, policy, or edict."
Kneipp v. Tedder, 95 F.3d 1199, 1212 (3d Cir. 1996)
(quoting Pembauer v. City of Cincinnati, 475 U.S. 469, 481
(1986) (plurality opinion)) (alteration in original, other
internal quotation marks omitted). Customs are " `practices
of state officials . . . so permanent and well settled' as to

18
virtually constitute law." Id. (quoting Monell, 436 U.S. at
691) (other internal quotation marks omitted). Both Demko
and Gardner made it clear that there is an established and
predictable procedure for issuing warrants and the County
has not claimed that the method used in Berg's case
differed from any other -- apart from the obvious
aberration. To the contrary, in its answer to the complaint,
the County conceded that Demko "followed the practices
and procedures which had been in effect at the time she
started working." Answer, P 8. We believe it is a more than
reasonable inference to suppose that a system responsible
for issuing 6,000 warrants a year would be the product of
a decision maker's action or acquiescence. See, e.g., Beck,
89 F.3d at 973 ("written complaints were sufficient for a
reasonable jury to infer that Chief of Police of Pittsburgh
and his department knew or should have known" of officer's
violent behavior); Silva v. Worden, 130 F.3d 26, 31 (1st Cir.
1997) (stating custom is demonstrated by showing"practice
is so well settled and widespread that the policymaking
officials have either actual or constructive knowledge of it").
Thus, we hold that there is sufficient evidence that the
procedure was a policy or custom of the County's.

Once a S 1983 plaintiff identifies a municipal policy or
custom, he must "demonstrate that, through its deliberate
conduct, the municipality was the `moving force' behind the
injury alleged." Board of County Comm'rs of Bryan County
v. Brown, 520 U.S. 397, 404 (1997). If, as here, the policy
or custom does not facially violate federal law, causation
can be established only by "demonstrat[ing] that the
municipal action was taken with `deliberate indifference' as
to its known or obvious consequences. A showing of simple
or even heightened negligence will not suffice." Id. at 407
(citations omitted); see also City of Canton, Ohio v. Harris,
489 U.S. 378, 389 (1989).

Failure to adequately screen or train municipal
employees can ordinarily be considered deliberate
indifference only where the failure has caused a pattern of
violations. See Bryan County, 520 U.S. at 408-09. Although
it is possible to maintain a claim of failure to train without
demonstrating such a pattern, the Bryan County Court
made clear that the burden on the plaintiff in such a case
is high:

19
 In leaving open in Canton the possibility that a plaintiff
might succeed in carrying a failure-to-train claim
without showing a pattern of constitutional violations,
we simply hypothesized that, in a narrow range of
circumstances, a violation of federal rights may be a
highly predictable consequence of a failure to equip law
enforcement officers with specific tools to handle
recurring situations. The likelihood that the situation
will recur and the predictability that an officer lacking
specific tools to handle that situation will violate
citizens' rights could justify a finding that
policymakers' decision not to train the officer reflected
"deliberate indifference" to the obvious consequence of
the policymakers' choice.

Id. at 409. The Court has stated that an example of
deliberate indifference to an obvious risk is arming officers
without training them "in the constitutional limitations on
the use [of the arms.]" Canton, 489 U.S. at 390 n.10.

Berg contends the County is liable because of its failure
to provide sufficient procedural or technical safeguards
against errors such as the one that resulted in Berg's
arrest. We have previously applied the Supreme Court's
rulings in failure-to-train cases to other claims of liability
through inaction, see, e.g., Beck, 89 F.3d at 972; Williams
v. Borough of West Chester Pennsylvania, 891 F.2d 458,
467 n. 14 (3d Cir. 1989), and we do so here as well.

The record contains no evidence of procedures guarding
against Demko's mistake. Expressing considerable
knowledge of the warrant-issuing procedures, Gardner
testified that he knew of no "double check" to ensure that
warrants were issued in the correct name. Nor was Gardner
aware of any procedure by which he could check to
ascertain if an erroneous warrant had issued. Having
employed a design where the slip of a finger could result in
wrongful arrest and imprisonment, there remains an issue
of fact whether the County was deliberately indifferent to an
obvious risk. The County's failure to provide protective
measures and failsafes against Demko's mistake seems
comparable to "a failure to equip law enforcement officers
with specific tools to handle recurring situations." Bryan
County, 520 U.S. at 409. When such a simple mistake can

20
so obviously lead to a constitutional violation, we cannot
hold that the municipality was not deliberately indifferent
to the risk as a matter of law. Accordingly, the County may
be liable under Monell.

We will reverse the District Court's grant of summary
judgment to the County so that a fact finder may address
these questions.7

VI. Future Violations

It is clear we have entered an age in which law
enforcement personnel will rely increasingly on computer
technology. Dissenting in Arizona v. Evans, Justice
Ginsburg noted,

Widespread reliance on computers to store and convey
information generates, along with manifold benefits,
new possibilities of error, due to both computer
malfunctions and operator mistakes. . . .
[C]omputerization greatly amplifies an error's effect,
and correspondingly intensifies the need for prompt
correction; for inaccurate data can infect not only one
agency, but the many agencies that share access to the
database.

514 U.S. at 26 (Ginsburg, J., dissenting). Similarly, Justice
O'Connor emphasized,

In recent years, we have witnessed the advent of
powerful, computer-based recordkeeping systems that
facilitate arrests in ways that have never before been
possible. The police, of course, are entitled to enjoy the
substantial advantages this technology confers. They
may not, however, rely on it blindly. With the benefits
of more efficient law enforcement mechanisms comes
the burden of corresponding constitutional
responsibilities.
_________________________________________________________________

7. Demko and Gardner intended to arrest Banks. But the County
intended that the individuals identified by the warrant-issuing system be
arrested. In this case, the person was Berg. Thus the County
intentionally seized Berg through means it intentionally applied.

21
Id. at 17-18 (O'Connor, J., concurring). We would add that
widespread computerization carries with it the ability and
responsibility to institute more effective safeguards against
human error than existed in the past.

The Bryan County Court noted that no pattern of
violations would be necessary to show deliberate
indifference where it was obvious that a policy or custom
would lead to constitutional violations. What is obvious in
the field of technology is determined under an evolving
standard. In this case, Allegheny County may have been
liable for Raymond Berg's arrest through deliberate
indifference to the obvious danger of such an arrest.
Whether or not Allegheny County is ultimately found to
have been deliberately indifferent in this case, this tragedy
will never again be novel. Allegheny County is on notice of
ICIS's shortcomings and at least one of the dangers of
using compartmentalized computer systems without viable
failsafes.

VII. Conclusions

For the reasons given, the judgment of the District Court
will be affirmed as to Defendants Gardner and Demko and
reversed as to Defendants Wolfgang and Allegheny County.
We will remand for further proceedings consistent with this
opinion.

22
MANSMANN, Circuit Judge, concurring in part and
dissenting in part.

I respectfully concur in all parts of the court's opinion
except Part IV. In Part IV, I differ only with respect to
defendants Demko and Gardner, which the majority
addresses in subparts B and C, respectively. I would
reverse this portion of the District Court's summary
judgment and remand because, in my view, there remains
a genuine issue of material fact as to each of these
defendants.

I take issue with the court's conclusion that Demko did
not intend to cause Berg's seizure. First, Demko's state of
mind at the time she processed the warrant is not clear on
this record. Demko's statement that "Berg and Bank, I'm
sorry, looked very close to me," could be read in two
different ways. She could have meant that the name"Berg"
looked so similar to the name "Banks" that she did not
notice the wrong name was on the screen. Alternatively, she
could have meant that she knew Berg's name appeared on
the screen rather than Banks', but assumed the error was
in the warrant request, not the computer system. In other
words, Demko could have concluded that Gardner had
intended to request a warrant for Berg, but inadvertently
wrote down Banks' name instead. Thus, Demko's state of
mind remains a jury question.

In addition, even if we assume that Demko did not notice
discrepancies between the information displayed on the
screen and what appeared on the information sheet at the
time she typed in th