Tarus v. Pine Hill , 105 F. App'x 357 ( 2004 )

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
7-15-2004
Tarus v. Pine Hill
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-3100
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 03-3100
ROBERT WAYNE TARUS,
Appellant
v.
BOROUGH OF PINE HILL;
LESLIE GALLAGHER, MAYOR;
JOHN WELKER, POLICE CHIEF
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 01-cv-04468)
District Judge: Hon. Joseph H. Rodriguez
Submitted Under Third Circuit LAR 34.1(a)
July 15, 2004
Before: SLOVITER, BARRY and WEIS, Circuit Judges
(Filed July 15, 2004)
OPINION OF THE COURT
SLOVITER, Circuit Judge.
This is not the first case before us in which a resident of a local community seeks
to elevate his or her quarrel with local officials into a federal constitutional issue, and this
will probably not be the last of its genre. Each party to this appeal makes broad
unsupported legal propositions. What was needed here was civility, accommodation and
common sense, rather than an arrest, a local trial, and a federal lawsuit. We decline to
expand this matter to yet another level.
I.
Appellant Robert Tarus, a resident of Pine Hill Borough who regularly attends
Borough Council meetings, began videotaping a meeting on September 18, 2000, without
permission. Mayor Leslie Gallagher of the Borough of Pine Hill polled several audience
and council members and found that several did not wish to be videotaped. Tarus refused
the request of Mayor Gallagher to turn off the camera, stating that he had the right to
videotape the proceedings under Maurice River Township Board of Education v. Maurice
River Township Teachers Association, 187 N.J. Super 566 (Ch. Div. 1982). Mayor
Gallagher asked Police Chief John Welker to remove Tarus and Chief Welker asked
Tarus to stop recording. Tarus responded that the only way that the camera would be
turned off would be if Chief Welker arrested him. Chief Welker turned off the video
camera and escorted Tarus out of the meeting room, where he offered to permit Tarus
back into the meeting room if he agreed to keep the camera off. Tarus again refused and
2
Chief Welker then formally charged Tarus with disorderly conduct.
The same sequence occurred again on October 23, 2000. The Borough Solicitor
attempted to explain the Maurice River Township decision to Tarus, but Tarus stated that
he disagreed with the Solicitor’s interpretation. At the Mayor’s instruction, Chief Welker
then escorted Tarus from the meeting room and again requested that Tarus keep the video
equipment off. In the course of a twenty-minute conversation outside of the meeting
room, Tarus told Chief Welker he would have to arrest him in order to keep his camera
off. Chief W elker then arrested him for disorderly conduct.
The following week, a municipal judge entered a finding of not guilty as to the two
disorderly conduct charges pending against Tarus based on his right to videotape the
Council meeting. Since then, Tarus has been permitted to videotape Council meetings.
Tarus filed this 42 U.S.C. § 1983 action for damages against the Borough of Pine
Hill (the Borough), Mayor Gallagher, and Police Chief Welker, claiming that he had been
arrested without probable cause and maliciously prosecuted in violation of his civil rights.
Tarus also alleges that Mayor Gallagher violated his First and Fourteenth Amendment
rights by applying the Borough Council’s five-minute rule, under which an audience
member receives up to five minutes to speak, in a discriminatory fashion based on alleged
political and personal animosity between himself and the Mayor, who are members of
different political parties.
The District Court granted the defendants’ motions for summary judgment in full
3
and declined to exercise supplemental jurisdiction over Tarus’ state law claims. The
court dismissed Tarus’ false arrest and malicious prosecution claims based on the ground
that Tarus’ refusal to obey Chief Welker’s order to stop video recording established
probable cause to arrest him. The court held that qualified immunity shielded Chief
Welker from liability because, in arresting Tarus, he had reasonably relied on the
Borough Solicitor’s opinion that Tarus had no legal basis for videotaping the proceedings.
The court also held that M ayor Gallagher was not responsible for Tarus’ arrest. Lastly,
the court rejected Tarus’ claim that the five-minute speaking rule had been applied to him
in a discriminatory fashion because he had submitted inadmissible, unsworn affidavits in
support of this allegation. Tarus filed a timely notice of appeal.
II.
A. Probable Cause
We have jurisdiction to review this case pursuant to 28 U.S.C. § 1291. We review
the District Court’s grant of summary judgment de novo. Huang v. BP Amoco Corp., 271
F.3d 560, 564 (3d Cir. 2001).
The District Court held that Chief Welker had probable cause to arrest Tarus based
on Tarus’ refusal to cease videotaping and consequent disruption of the Council’s
meetings. The Borough’s disorderly conduct ordinance prohibits persons from behaving
in a disorderly manner in public places. Pine Hill Borough Ordinance 3-11.1b. Although
this ordinance does not define disorderliness, Tarus relies upon New Jersey’s definition of
4
disorderly conduct, which involves fighting, threatening, violent or tumultuous behavior
or behavior tending to create hazardous conditions. See N.J. Stat. Ann. § 2C:33-2.1
Tarus thus argues that Chief Welker acted improperly because his conduct did not meet
the description of disorderly conduct as invoking violence or threats.
Significantly, under New Jersey law, disorderly conduct is not limited to behavior
that rises to the level of violence. In particular, it provides that:
A person commits a disorderly persons offense if, with purpose to prevent
or disrupt a lawful meeting, procession or gathering, he does an act tending
to obstruct or interfere with it physically.
N.J. Stat. Ann. § 2C:33-8. Moreover, the New Jersey Appellate Division has stated as
follows:
Reasonableness is the key. Hence, where an officer’s instructions are
obviously reasonable, in furtherance of his duties, an individual toward
whom such instructions are directed has a correlative duty to obey them. If
his refusal to respond results in an obstruction of the performance of the
officer’s proper tasks, this will constitute a violation of the disorderly
persons statute.
State v. Brennan, 344 N.J. Super. 136, 144 (App. Div. 2001) (citations omitted), certif.
denied, 171 N.J. 43 (2002).
Here, Chief Welker personally witnessed Tarus undertake conduct to disrupt two
1
N.J. Stat. Ann. § 2C:33-2a provides:
A person is guilty of a petty disorderly persons offense, if with purpose to
cause public inconvenience, annoyance or alarm, or recklessly creating a
risk thereof he (1) Engages in fighting or threatening, or in violent or
tumultuous behavior; or (2) Creates a hazardous or physically dangerous
condition by any act which serves no legitimate purpose of the actor.
5
Council meetings: Tarus halted the September meeting as he argued with the Council
about whether he would be permitted to videotape the proceedings and he delayed the
start of the October meeting when he refused to turn off his video camera or change its
location. In both cases, the meeting could not proceed until Chief Welker turned off
Tarus’ video equipment and removed him from the meeting room. Chief Welker thus
acted reasonably in believing that Tarus’ refusal to stop videotaping or move his video
equipment constituted disorderly conduct as tending to obstruct or interfere with the
Council’s meetings.
Because we agree with the District Court that Chief W elker had probable cause to
arrest Tarus, Tarus’ claims for false arrest and malicious prosecution fail. Moreover,
because Chief Welker did not engage in any wrongdoing in arresting Tarus, we need not
reach the related issues of whether Chief W elker and M ayor Gallagher are entitled to
qualified immunity as to Tarus’ constitutional claims or whether M ayor Gallagher should
be held jointly liable for Chief Welker’s actions. We will affirm the District Court’s grant
of summary judgment as to Tarus’ claims for false arrest and malicious prosecution.
B. Admissibility of Tarus’ Affidavit Evidence
Tarus contends that Mayor Gallagher discriminatorily applied the Council’s five-
minute rule to limit his speaking time at Council meetings. He attempted to submit to the
District Court his own signed statement and a signed writing by Laura Ann Adriano
6
stating that the five-minute rule was singularly enforced against Tarus.2 Although both
were notarized, neither statement was sworn under penalty of perjury. The District Court
reasoned that in light of Federal Rule of Civil Procedure 56(e)’s requirement of sworn or
certified papers, the two statements, which were “not made specifically under penalty of
perjury,” did “not contain the requisite assurance of reliability and veracity to allow its
consideration in lieu of an affidavit.” App. at 27. The court thus declined to admit these
statements into evidence.
Tarus argues that because both of the statements in questions were properly
notarized, the District Court erred in refusing to consider the evidence contained therein.
Critically, Tarus does not allege that he suffered any harm or prejudice as a result of the
District Court’s alleged error. Assuming arguendo that the District Court should have
admitted these statements, it does not appear that Tarus has suffered any harm as a result.
Adriano, an ex-Borough resident who stated that she attended Borough meetings from
1995 to 1999, offered no testimony as to the 2001 dates which Tarus had pinpointed as
the dates on which he suffered the Council’s discrimination. Adriano’s statements are
thus irrelevant to Tarus’ claim. Tarus’ statement, though topically relevant, largely
mirrors the factual allegations in his complaint and thus offered little new information.
We therefore conclude that, even if the District Court had admitted the statements, the
admission would not have affected the outcome of the case, making any purported error
2
Tarus also cites another unsworn statement by Godert Van Diermen, but that
statement makes no reference to the five-minute rule. App. at 147.
7
harmless.
III.
For the foregoing reasons, we will affirm the District Court’s decision granting
summary judgment to the Appellees against Tarus, without prejudice to Tarus’
proceeding with his state law claims.