In a precedential decision that should be of particular interest to Montgomery County residents, the United States Court of Appeals for the Third Circuit (which includes Pennsylvania, New Jersey, and Delaware) recently vacated a decision of the United States District Court for the Eastern District of Pennsylvania on two issues which will affect civil rights litigation involving Fourth Amendment malicious prosecution and Fourteenth Amendment fabrication of evidence claims.
Michele Owen Black was arrested and charged with felony Arson after a fire started in an electrical outlet while she and her mother were removing belongings from a home, and while electricians were also in the home upgrading the electrical wiring. After a jury found her not guilty of all charges in less than forty minutes, Ms. Black filed a lawsuit against Montgomery County, County Detective John T. Fallon, Lower Merion Township, Lower Merion Detective Gregory Henry, Bryan Garner, Chief Fire Officer Charles McGarvey, Deputy Fire Marshall Frank Hand, and State Trooper Robert Pomponio, alleging that the defendants prosecuted her without probable cause, and fabricated, suppressed and destroyed evidence.
The defendants moved to dismiss Ms. Black’s Fourth Amendment claims alleging malicious prosecution on the basis that she was not “seized” because she was never subjected to a traditional arrest or incarcerated. The Defendants also moved to dismiss Ms. Black’s Fourteenth Amendment due process claims alleging fabrication of evidence on the basis that she was not convicted at trial. The District Court granted those motions and dismissed the lawsuit, and Ms. Black appealed to the Third Circuit.
The Third Circuit vacated the decision of the District Court and remanded the case for further proceedings. First, the court held that a plaintiff does not need to be subjected to a traditional arrest or incarcerated in order to prove she was “seized” for purposes of malicious prosecution claims against police and other state actors under the Fourth Amendment. Second, the court held that a plaintiff does not need to be convicted at trial in order to pursue Fourteenth Amendment due process claims alleging fabrication of evidence against police and other state actors.
The facts (as construed by the Third Circuit in a light most favorable to Ms. Black based on her Amended Complaint) were reported as follows:
On November 21, 2012, a fire broke out at the home where Black had grown up in Lower Merion Township, Montgomery County, Pennsylvania. Black’s mother had sold the home two days before. Originally, the closing date was set for November 30, 2012, but it was moved up so the buyers could upgrade the wiring before they moved in. The buyers could not obtain homeowner’s insurance unless the old wiring was upgraded because it was viewed as a fire hazard. Black’s mother entered into a post-settlement possession addendum which allowed her to remove her possessions from the home while the buyer’s contractors upgraded the wiring.
The fire broke out in the third floor of the home. Black was in the home helping her mother remove possessions, while the buyer’s electricians were upgrading the wiring. The fire resulted in a “V” pattern of fire damage extending from a 220-volt electrical outlet. The electricians extinguished the fire before they called the fire department. After arriving at the home, the Gladwyne Fire Chief called the dispatcher to report an electrical fire.
Defendant Deputy Fire Marshal Frank Hand and his supervisor defendant Chief Fire Officer Charles McGarvey arrived at the scene. Hand was not an electrical expert, but he disassembled the electrical outlet where the fire had started. Hand could not determine that the fire was accidental, so he called the District Attorney’s Office and the state police for help. Hand concluded that the fire was intentionally started and was not an electrical fire. Despite fire damage on the electrical outlet, Hand did not preserve the outlet, supporting brackets, electrical box, or the outlet cover. Hand intentionally misrepresented his findings that the wire to the outlet had been cut 18 inches from the outlet to support the proposition that there was no power source for the outlet. His supervisor, defendant McGarvey, witnessed the fire scene and assisted Hand with his investigation.
Defendant State Trooper Thomas Pomponio, an alternate deputy fire marshal, arrived at the scene. After he learned that the wire had already been cut, Pomponio concluded the fire was caused by an open flame, ruling out that the outlet caused the fire. Pomponio did not inspect the electrical panel in the basement as he normally would because he heard that it had already been inspected. Had he done so, he would have discovered that the fire was an electrical one.
Defendant John Fallon, a certified fire inspector, arrived at the home, examined the outlet and concluded the damage was caused by an open flame, not by the electrical outlet. Fallon determined that the outlet was not energized when the fire occurred. In arriving at his conclusion, Fallon relied on the word of one of the electricians, rather than personally inspecting the panel box in the basement as required by protocol.
A box of matches was found on another windowsill in the room where the fire started, and Fallon, Pomponio, and Hand assumed these matches were used to start the fire, despite evidence that this was an electrical fire. These three defendants never tested the box of matches for DNA or fingerprints, or analyzed whether the match strike pad had been used.
Shortly after the fire broke out, Fallon, Pomponio, Hand, as well as defendant Detectives Gregory Henry and Bryan Garner, first questioned the electricians. Black “was advised that she was not free to leave the premises until she was questioned by police, and was escorted by police to and from the bathroom.” Appendix (“App.”) A41. These defendants did not check the veracity of the electricians’ story. During the interrogation of Black, the officers immediately accused Black of setting the fire. Black also alleges that at the end of her interrogation, Fallon told her that if she did not surrender herself to them at a later date, a warrant would be issued for her arrest, the defendants would have her hometown District Attorney’s Office in California send a police officer to arrest her, she would remain in custody until extradited, and remain in jail until her arraignment.
Black alleges that Fallon made several material falsehoods and omissions in an affidavit of probable cause to arrest her. These falsehoods and omissions included: failing to report that the fire started at an electrical outlet; failing to mention that the Gladwyne Fire Chief first reported an electrical fire; failing to mention that electricians were at the scene to fix the wiring; failing to mention that the circuit panel was never checked in the basement; and failing to mention that the outlet and live wires were never tested.
Black returned home to California after the fire. On December 17, 2012, Pennsylvania authorities issued an arrest warrant for Black for arson endangering persons, risking catastrophe, criminal mischief, and recklessly endangering another person. Black flew to Pennsylvania on December 18, 2012 for her arraignment. She was arraigned and was released on $50,000 unsecured bail. A condition of her bail was that Black was required to appear at all subsequent proceedings. Black was then required to be fingerprinted and photographed at a police station, which took over an hour.
Black again returned to her home in California. On January 24, 2013, Black flew from California to Pennsylvania to attend her preliminary hearing. She flew from California to Pennsylvania for twelve out of fourteen pre-trial conferences because the Court Notices for each conference said that if she did not appear a bench warrant would be issued for her arrest.
Prior to trial, Black retained a fire expert, John J. Lentini, who concluded that the fire was unequivocally an electrical one, not an arson. Lentini reached out to Hand to discuss his findings and to review the photographs of the fire with Hand. Lentini never received a response from Hand. Black’s counsel emailed the assistant district attorney assigned to the case to advise him about Lentini’s findings and to offer to meet the prosecutor and his expert. The assistant district attorney never responded to this offer.
On April 23, 2014, Black’s trial began. Fallon and Hand offered evidence at trial that the outlet was not energized and that the wire was cut. Photographs offered by Black, however, taken the day of the fire show the wire was intact. The photographs offered and explained by Fallon and Hand appear to have been taken later. Black presented evidence that the defendants fabricated and suppressed exculpatory evidence. On April 24, 2014, she was found not guilty of all charges. The jury deliberated for less than forty minutes.
The Third Circuit explained that since it was deciding a motion to dismiss for failure to state a claim, it would “assume all of the facts alleged are true,” but carefully noted that “[t]he evidence may tell a different story…”
FOURTH AMENDMENT SEIZURE ANALYSIS
The Third Circuit explained that pre-trial bail conditions can rise to the level of a “seizure” when they intentionally impose “constitutionally significant” restrictions on an individual’s liberty. The Third Circuit relied heavily on Supreme Court Justice Ginsburg’s concept of a “continuing seizure” as explained in her concurring opinion in Albright v. Oliver:
A person facing serious criminal charges is hardly freed from the state’s control upon his release from a police officer’s physical grip. He is required to appear in court at the state’s command. He is often subject, as in this case, to the condition that he seek formal permission from the court (at significant expense) before exercising what would otherwise be his unquestioned right to travel outside the jurisdiction. Pending prosecution, his employment prospects may be diminished severely, he may suffer reputational harm, and he will experience the financial and emotional strain of preparing a defense.
A defendant incarcerated until trial no doubt suffers greater burdens. That difference, however, should not lead to the conclusion that a defendant released pretrial is not still “seized” in the constitutionally relevant sense. Such a defendant is scarcely at liberty; he remains apprehended, arrested in his movements, indeed “seized” for trial, so long as he is bound to appear in court and answer the state’s charges. He is equally bound to appear, and is hence “seized” for trial, when the state employs the less strong-arm means of a summons in lieu of arrest to secure his presence in court.
Albright v. Oliver, 510 U.S. 266, 271 (1994). The Third Circuit concluded that the facts alleged by Ms. Black (interrogation by police, being charged with felony Arson, being fingerprinted and photographed by police, posting unsecured bail, having to travel from out-of-state twelve times to attend pre-trial hearings under threat of arrest if she failed to appear) were “constitutionally significant restrictions on her freedom of movement for the purpose of obtaining her presence at a judicial proceeding,” and that she was therefore “seized within the meaning of the Fourth Amendment.” The court did caution, however, that “some conditions of pre-trial release may be so insignificant as to not implicate constitutionally protected liberty interests.”
FOURTEENTH AMENDMENT DUE PROCESS ANALYSIS
The Third Circuit examined its own decision in Halsey v. Pfeiffer, 750 F.3d 273 (3d Cir. 2014), as well as decisions of other circuit courts that had addressed the issue of whether an acquittal at trial should bar a Fourteenth Amendment due process claim for fabrication of evidence. In Halsey, the Third Circuit held that “if a defendant has been convicted at a trial at which the prosecution has used fabricated evidence, the defendant has a stand-alone claim under section 1983 based on the Fourteenth Amendment if there is a reasonable likelihood that, without the use of that evidence, the defendant would not have been convicted.” The Halsey decision “explicitly left open the question” raised in Black- “whether a defendant acquitted at a trial where fabricated evidence has been used against him has an actionable section 1983 claim.”
The Third Circuit, in answering the question it had previously left open, analyzed the purpose of section 1983 and the nature of the harm presented by fabrication of evidence by state actors:
We see no reason to require a conviction as a prerequisite to a stand-alone due process claim against a state actor for fabrication of evidence. The harm we were concerned with in Halsey — corruption of the trial process — occurs whether or not one is convicted. It would be indeed anomalous if an attentive jury correctly saw through fabricated evidence, and its acquittal categorically barred later relief to the criminal defendant. Such a result would insulate the ineffective fabricator of evidence while holding accountable only the skillful fabricator. Fabricated evidence is an affront to due process of law, and state actors seeking to frame citizens undermine fundamental fairness and are responsible for “corruption of the truth-seeking function of the trial process.” United States v. Agurs, 427 U.S. 97, 104 (1976); see Napue v. People of Ill., 360 U.S. 264, 269 (1959) (acknowledging the principle that state actors “may not knowingly use false evidence . . . [is] implicit in any concept of ordered liberty”). The Supreme Court has explained that section 1983 is intended “to deter state actors from using the badge of their authority to deprive individuals of their federally guaranteed rights and to provide relief to victims if such deterrence fails.” Wyatt v. Cole, 504 U.S. 158, 161 (1992). A contrary holding would contravene the purposes of section 1983. There is no meaningful reason why due process protections precluding fabricated evidence should turn on whether or not one is convicted at trial.
The Third Circuit concluded that “an acquitted criminal defendant may have a stand-alone fabricated evidence claim against state actors under the due process clause of the Fourteenth Amendment if there is a reasonable likelihood that, absent that fabricated evidence, the defendant would not have been criminally charged.”
This was a well-written, common sense opinion by the Third Circuit. The opinion recognizes that pending criminal charges often seriously restrict a defendant’s liberty even when they are not incarcerated, and that fabrication of evidence by state actors is a major threat to the integrity of our justice system. The decision will make it easier for victims of malicious prosecution and evidence fabrication to seek redress under our civil rights laws.
The full opinion can be found on the Third Circuit’s website at:
It should be noted that many of the techniques traditionally used by fire analysts (as well as other so-called forensic “experts”) have recently been severely criticized as unscientific and unreliable:
It should also be noted that even forensic analyses which can be performed scientifically and reliably are subject to fabrication and tampering. Two chemists at Massachusetts Department of Health drug testing laboratories were recently convicted of tampering with drug evidence related to more than 40,000 criminal cases, and subsequent investigations revealed a lack of uniform policies and procedures which led to deficient practices:
If you or someone you know has been the victim of a civil rights violation, contact Damien D. Brewster, Esq. at Keenan, Ciccitto and Associates, LLP.