NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 18-2151
_____________
ROGER VANDERKLOK,
Appellant
v.
UNITED STATES OF AMERICA; TRANSPORTATION SECURITY
ADMINISTRATION (TSA); CHARLES KIESER, (TSA); CITY OF PHILADELPHIA;
RAYMOND PINKNEY, (PHILADELPHIA POLICE); MICHAEL WOJCIECHOWSKI,
(PHILADELPHIA POLICE); KENNETH FLAVILLE, (PHILADELPHIA POLICE);
JEH JOHNSON, (DEPARTMENT OF HOMELAND SECURITY); JOHN S. PISTOLE,
(TSA)
_______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-15-cv-00370)
District Judge: Hon. Gerald J. Pappert
_______________
Submitted Under Third Circuit LAR 34.1(a)
June 11, 2019
Before: JORDAN, BIBAS, and NYGAARD, Circuit Judges.
(Filed: June 12, 2019)
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OPINION ∗
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∗
This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
JORDAN, Circuit Judge.
Roger Vanderklok appeals the District Court’s dismissal of his suit against
Philadelphia police officers Raymond Pinkney, Michael Wojciechowski, and Kenneth
Flaville (the “police officer defendants”). He contends that the District Court erred by
concluding that the police officer defendants, whom he sued under 42 U.S.C. § 1983, had
probable cause to arrest him, and that the Court further erred in its alternative conclusion
that they were entitled to qualified immunity. This is not Vanderklok’s first appeal. We
previously ruled that Vanderklok was not entitled to a remedy against Transportation
Security Administration (“TSA”) agent Charles Kieser on his First Amendment
retaliation claim. Vanderklok v. United States, 868 F.3d 189, 209 (3d Cir. 2017). Having
been denied relief against Kieser, Vanderklok now seeks a recovery from the police
officer defendants who, based on Kieser’s complaint, made the arrest. For the following
reasons, we will affirm.
I. BACKGROUND
As described in our earlier opinion, Vanderklok was flying from Philadelphia to
Miami, where he planned to run a marathon. He proceeded to the TSA security
checkpoint and sent his carry-on bag through the X-ray screening device. A section of
PVC pipe, containing a heart monitoring watch, and some Power Bars (an energy
supplement), were packed in his bag. That evidently prompted TSA agents to ask
Vanderklok to step aside for additional inspection. The interaction did not go well, and
Kieser called the Philadelphia Police. Officer Pinkney responded. Kieser reported that
Vanderklok had “angrily said to [Kieser] that ‘anybody can bring a bomb and you
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wouldn’t even know it.’” (App. at 46.) Pinkney then arrested Vanderklok. Vanderklok
was placed in a cell and later transported to the Philadelphia Police District, where he was
processed by Officer Wojciechowski. Pinkney prepared the Complaint Report, and
Wojciechowski completed the Investigation Report, which Officer Flaville approved.
Vanderklok was charged with “Threatening Placement of a Bomb[,]” “Terroristic
Threats[,]” and “Disorderly Conduct.” (App. at 46-47.) But, at his criminal trial, the
court granted his motion for a judgment of acquittal at the close of the prosecution’s case.
Vanderklok then sued the police officer defendants for claims including ones: (1)
pursuant to 42 U.S.C. § 1983 for an unconstitutional search and seizure in violation of his
Fourth Amendment rights; (2) pursuant to § 1983 for infringement of his freedom of
speech in violation of his First Amendment rights; (3) pursuant to Pennsylvania state law
for false arrest, false imprisonment, battery, and assault; and (4) pursuant to Pennsylvania
state law and § 1983 for malicious prosecution and retaliatory prosecution.
The police officer defendants filed a motion to dismiss, which the District Court
granted. The Court centered its reasoning on what Pinkney, the arresting officer, knew at
the time of the arrest, because the propriety of “a warrantless arrest is fundamentally a
factual analysis that must be performed by the officers at the scene.” (App. at 18
(quoting United States v. Glasser, 750 F.2d 1197, 1206 (3d Cir. 1984)).) According to
the Court, “the ‘objective facts available to’ Pinkney were provided by Kieser[,]” and
“Vanderklok has not alleged that Pinkney did not find, or should not have found, Kieser
to be credible at the time Pinkney made the arrest.” (App. at 18-19.) Therefore, the
Court concluded, “Pinkney had the ‘requisite basis to seize’ Vanderklok” and
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“Wojciechowski and Flaville were entitled to rely on [Keiser’s] specific statements.”
(App. at 21 (quoting Rogers v. Powell, 120 F.3d 446, 453 (3d Cir. 1997)).)
In finding that the officers had probable cause to arrest Vanderklok, the District
Court only analyzed the disorderly conduct charge because “[p]robable cause need only
exist as to any offense that could be charged under the circumstances.” (App. at 18
(quoting Barna v. City of Perth Amboy, 42 F.3d 809, 819 (3d Cir. 1994)).) It found
probable cause existed because “[m]entions of possessing a bomb or sneaking a bomb
through airport security—particularly those [mentions] made ‘angrily’—may be cause for
alarm and the basis of a disorderly conduct charge.” (App. at 20 (citation omitted).) In
this case, that statement was “made in a public area with several other passengers
nearby.” (App. at 11-12 (citation omitted).) Thus, the Court concluded that
Vanderklok’s words “risked causing a disturbance.” (App. at 19 (emphasis in original).)
In the alternative, it held that, “[i]n the absence of prior case law showing that the
decision made by the [police officer defendants] to arrest Vanderklok violated a ‘clearly
established’ Fourth Amendment right, qualified immunity would shield them from
liability even if probable cause was missing.” (App. at 23.) The Court therefore
dismissed all claims against them.
Vanderklok timely appealed.
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II. DISCUSSION 1
Vanderklok argues the District Court erred both in determining that his rights were
not violated and that the police officer defendants were entitled to qualified immunity.
We need not address Vanderklok’s first argument, however, because the District Court
properly determined that the police officer defendants were entitled to immunity from
this suit.
“[Q]ualified immunity is in part an entitlement not to be forced to litigate the
consequences of official conduct[.]” Mitchell v. Forsyth, 472 U.S. 511, 527 (1985).
Thus, “law enforcement officers acting within their professional capacity are generally
immune from trial insofar as their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would have known.” Wilson v.
Russo, 212 F.3d 781, 786 (3d Cir. 2000) (citation and internal quotation marks omitted).
In order to determine if a right is clearly established, courts “look at the
circumstances that confronted [the officer] and … compare [them to] the circumstances
present in those cases [in] which [courts] have concluded that there was an absence of
probable cause.” Paff v. Kaltenbach, 204 F.3d 425, 437 (3d Cir. 2000). Only “[i]f there
are cases that would make it ‘apparent’ to a reasonable officer in [the defendant’s]
position that probable cause was lacking, [is] qualified immunity … not available.” Id.
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The District Court had subject matter jurisdiction under 28 U.S.C. § 1331 and 28
U.S.C. § 1367. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo a
dismissal under Federal Rule of Civil Procedure Rule 12(b)(6). Phillips v. Cty. of
Allegheny, 515 F.3d 224, 230 (3d Cir. 2008).
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(citation omitted). It is not sufficient that the right be established in a general sense;
instead, “[t]he contours of the right must be sufficiently clear that a reasonable official
would understand that what he is doing violates that right.” Anderson v. Creighton, 483
U.S. 635, 640 (1987). Here, Vanderklok has not brought forward any authority, and we
can find none, establishing that probable cause to arrest an individual for disorderly
conduct is lacking when that individual has made an angry statement about bombs in an
airport’s TSA screening area. For that reason alone, Vanderklok’s argument against
immunity fails.
Far from it being clearly established that probable cause was lacking, the most
persuasive authority we are aware of supports the conclusion that making comments of
the sort Kieser reported would be enough to establish probable cause for a disorderly
conduct charge. In Mustafa v. City of Chicago, a passenger at an airport was reported to
the police for being “unruly” and stating, “Maybe I have a bomb[.]” 442 F.3d 544, 546
(7th Cir. 2006). The Seventh Circuit concluded “it was reasonable for the officers to
conclude that [the passenger] had committed disorderly conduct by stating that she might
have a bomb in her purse.” Id. at 548. Vanderklok attempts to distinguish Mustafa by
contending that the passenger’s statement was made in a different manner than
Vanderklok’s, as he “was not described as screaming or otherwise creating a
‘commotion.’” (Opening Br. at 19 (quoting Mustafa, 442 F.3d at 547).) But the manner
of the passenger’s statement was only one ground for determining probable cause existed
in Mustafa. The other independent ground was the statement itself. 442 F.3d at 547.
Moreover, it is undisputed that Kieser told Pinkney that Vanderklok was indeed agitated
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and angry. In light of Mustafa, it is difficult to see how it could be clearly established
that Pinkney did not have probable cause to arrest Vanderklok.
Nonetheless, Vanderklok argues that the District Court erred in finding there was
probable cause. He asserts that, for two reasons, it was clearly established that the police
officer defendants could not legally arrest him. First, he contends that it is clearly
established “that the statement ‘anybody can bring a bomb and you wouldn’t even know
it,’ when made to a TSA agent at an airport security checkpoint” is a statement protected
by the First Amendment. (Opening Br. at 22.) Second, he contends that it is clearly
established that a mention of a bomb in an airport security line, without more, “does not
establish[] probable cause for an arrest for disorderly conduct[]” in Pennsylvania.
(Opening Br. at 13.)
The first of those arguments looks like an effort to move the merits of
Vanderklok’s First Amendment argument ahead of the qualified immunity defense. But
we are focused on the defense, and it requires us to ask not whether Vanderklok had First
Amendment rights but whether the law clearly establishes that he had a right to angrily
talk about explosives in an airport’s security screening area. That is the factual context as
Pinkney understood it, and it is the pertinent context for our analysis. See Merkle v.
Upper Dublin Sch. Dist., 211 F.3d 782, 790 (3d Cir. 2000) (“The question therefore
becomes whether a reasonable person in [the officer’s] position could have concluded,
based on th[e] knowledge [he had], that [the plaintiff] had committed a crime.”). For the
reasons already discussed, existing law does not appear to support the right that
Vanderklok claims, let alone clearly establishing it. Mustafa, 442 F.3d at 548.
7
As for the second argument – that the mere mention of a bomb in an airport
security line does not create probable cause for a disorderly conduct charge under
Pennsylvania law – it too is unpersuasive. “Whether any particular set of facts
…[establishes] probable cause requires an examination of the elements of the crime at
issue.” Wright v. City of Philadelphia, 409 F.3d 595, 602 (3d Cir. 2005). “A person is
guilty of disorderly conduct if, with intent to cause public inconvenience, annoyance or
alarm, or recklessly creating a risk thereof, he: … creates a hazardous or physically
offensive condition by any act which serves no legitimate purpose of the actor.” 18 Pa.
Cons. Stat. § 5503(a)(4). Based on that catch-all provision, “words or acts [can] rise to
the level of disorderly conduct” if “they cause or unjustifiably risk a public disturbance.”
Commonwealth v. Hock, 728 A.2d 943, 946 (Pa. 1999). Vanderklok points out that a
charge of disorderly conduct requires at least reckless intent to cause public
inconvenience, annoyance, or alarm. Commonwealth v. Weiss, 490 A.2d 853, 857 (Pa.
Super. Ct. 1985). And he argues that for words to support such a charge, they “must be
uttered with the intent and in a manner to ‘cause or unjustifiably risk a public
disturbance[,]’” neither of which, he says, applies to his statement. (Opening Br. at 20
(quoting Hock, 728 A.2d at 946).)
“The probable cause inquiry looks to the totality of the circumstances[.]” Wright,
409 F.3d at 603. Within those circumstances, police officers may “make a judgment call
regarding [a] plaintiff[’s] state of mind.” Paff, 204 F.3d at 437. In this case, the police
officer defendants were entitled to infer that Vanderklok’s angrily making a statement
about a bomb in a TSA screening area recklessly created an unjustifiable risk of public
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disturbance. It is common sense, in light of the shared reality of air travel today, that the
risk of a public disturbance by angrily talking about explosives is greatly heightened at an
airport’s passenger screening area. Cf. Vanderklok, 868 F.3d at 207 (noting that security
screening is “a critical aspect of national security”).
Despite that, Vanderklok asserts that the manner in which he made his statement
clearly establishes that there was not probable cause to arrest him. To support that
assertion, Vanderklok cites to Commonwealth v. Weiss, a decision of the Superior Court
of Pennsylvania, for the proposition “that statements made to a single police officer – as
opposed to epithets broadcast to all passers-by – [are] too attenuated from the statutory
requirement that the conduct be done ‘with intent to cause public inconvenience,
annoyance or alarm, or recklessly creating a risk thereof.’” (Opening Br. at 17 (quoting
Weiss, 490 A.2d at 855).) He further asserts that Weiss stands for the view that “the mere
potential that a statement made to a law enforcement officer might be overheard does not
transform that statement into a deliberate – or even reckless – effort to create public
alarm or annoyance.” (Opening Br. at 17-18 (citing Weiss, 490 A.2d at 855-57).)
The statement in Weiss, however, was made on the plaintiff’s own property, id. at
857, not at a crowded airport security screening area – a vastly different context –
meaning Weiss cannot clearly establish that the manner in which Vanderklok’s statement
was made precludes an officer having probable cause to arrest him. And again, the
reliance on Weiss ignores that Pinkney was operating on the report of Vanderklok’s
statement as given by Kieser, which described a heated exchange. For the same reason,
Vanderklok’s reliance on Commonwealth v. Hock is misplaced. See 728 A.2d at 944, 946
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(finding probable cause was not present due to a single epithet uttered in a normal tone of
voice in an apartment building parking lot in the presence of only the speaker and the
officer).
In light of all the circumstances, the District Court rightly determined that the
police officer defendants were entitled to qualified immunity.
III. CONCLUSION
For the foregoing reasons, we will affirm the judgment of the District Court.
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