concurring and dissenting.
The majority reverses the order of the district court granting summary judgment to four of the defendants on civil rights claims asserted against them under 42 U.S.C. § 1986.
I agree with the conclusion reached by the majority reversing the judgment for three of the defendants on the § 1986 claims, viz., the Borough of Hanover, its former Mayor and its Chief of Police (collectively “defendants”). I write separately on the disposition of those claims because of a somewhat different analysis of the controlling issue. I dissent from the majority’s reversal of the § 1986 claim against the fourth defendant, Carl Boyer, a Conewago Township Police officer.
BOROUGH OF HANOVER, ITS FORMER MAYOR AND ITS CHIEF OF POLICE
At the threshold, I agree with the majority that the district court did not abuse its discretion under Fed.R.Evid. 803(8)(C), in considering for summary judgment purposes some relevant parts of the Pennsylvania State Police Report of its investigation of the Hanover incident. The majority goes on to conclude:
We believe that the PSP Report and other evidence relevant to the defendants’ potential knowledge of the conspiracy is sufficient, for purposes of defending against an adverse summary judgment motion, to submit to the jury the question of whether the defendants’ knowledge of rumors that bikers planned to drive the interracial group from Hanover on the evening of July 13th was sufficiently reliable to constitute “actual knowledge” of a § 1985 conspiracy.
As the majority opinion motes, the State Police Report indicated that the Mayor and the Chief of Police had knowledge of the rumors of the conspiracy at least a day before the rumor came to fruition in Hanover on the date and time contained in the rumor, viz., Saturday, July 13, at 10:00 p.m. Knowledge of the rumors was also stated in the Dixon and Becker depositions.
In my view the issue is whether the combination of these record factors would permit a reasonable finder of fact to infer that the defendants had actual knowledge of the biker conspiracy before it was implemented. The critical and sole factor in resolving that issue here is what constituted “knowledge” as used in § 1986. I believe a useful definition of knowledge is found in § 2.02(7) of the Model Penal Code:
(7) Requirement of Knowledge Satisfied by Knowledge of High Probability. When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence, unless he actually believes that it does not exist.9
Indeed, the Model Penal Code definition of knowledge is more meaningful in a civil law context. Because knowledge of a high probability is sufficient for proof of “knowledge” beyond a reasonable doubt, it is more than sufficient for proof of “knowledge” by a preponderance of the evidence.
The pervasive rumors and the other evidence in this record would permit a reasonable jury to conclude that defendants were aware of a high probability of the existence of the conspiracy, at least a day before it was carried out, thus creating an issue for the factfinder as to the existence of defendants’ knowledge for § 1986 purposes.
In reaching my conclusion I fully realize that rumor often indicates less than certainty. But here its pervasive character is but part of the totality of circumstances in this record which could permit a reasonable fact-finder to determine that these defendants, *1300given their public positions, had sufficient advance knowledge of the alleged conspiracy.
I therefore join in the judgment reversing the order of the district court granting summary judgment to defendants, the Borough of Hanover, its former Mayor and its Chief of Police. Needless to say, I believe other issues raised by defendants are open for later resolution in the district court.
DEFENDANT CARL BOYER
The majority also reverses the order of the district court granting summary judgment to Carl Boyer (“Boyer”) on the § 1986 claim against him. I would affirm that order on this record.
Defendant, Carl Boyer, is an officer of the Conewago Township Police Department. That Department had a mutual aid agreement with the Borough of Hanover. According to the Pennsylvania State Police Report, the Hanover Chief of Police did not begin requesting assistance from outside police units until 12:07 a.m. Sunday, July 14. That assistance began arriving at 12:14 a.m. The necessary inference is that defendant Boyer did not arrive in Hanover until early Sunday morning. Thus, the disturbances were well underway before Boyer even arrived. Moreover, he did not live or work in the Borough of Hanover. Furthermore, there is no record evidence to suggest that the rumors of the conspiracy reached Boyer’s workplace in Conewago Township or his residence in New Oxford, Pennsylvania.
The majority says that:
... given the escalating racial situation, a jury could infer from his presence on the scene that he [Boyer], too, became sufficiently aware of the alleged conspiracy to violate the plaintiffs’ civil rights when he allegedly failed to protect Ms. Chronister and told her that the car incident was her fault for bringing blacks into the Hanover area.
I part company with the majority because I believe the facts relied on by my colleagues do not support the knowledge element required by § 1986.
It is first evident that the majority seems to base its position on the premise that Boyer became aware of the conspiracy when he allegedly failed to protect Ms. Chronister. In my view, the failure to protect Ms. Chron-ister’s civil rights is not evidence of Boyer’s knowledge of an existing conspiracy. The same is true of the majority’s reliance on what Boyer said to her during the car incident. Thus, in my view, there is no record evidence that creates a jury issue as to Boyer’s prior knowledge of any conspiracy. The incident, if anything, raised a possible violation of 42 U.S.C. § 1983.
I would affirm the summary judgment order dismissing the § 1986 claim against Boyer.
. The Supreme Court has relied on Model Penal Code definitions when construing a familiar companion civil statute from 1871-42 U.S.C. § 1983'. See Smith v. Wade, 461 U.S. 30, 41 n. 9, 103 S.Ct. 1625, 1632 n. 9, 75 L.Ed.2d 632 (1983).