PHILADELPHIA – A lower court did not err when it approved a declaration of summary judgment to a pair of Philadelphia police officers, in a case initiated by a man who said they lacked probable cause to arrest him, the U.S. Court of Appeals for the Third Circuit said.

On May 1, judges Theodore A. McKee, Marjorie O. Rendell and Julio M. Fuentes decided to affirm the ruling of the U.S. District Court for the Eastern District of Pennsylvania, in upholding the prior granting of summary judgement to Philadelphia police officers Timothy Gibson and David Sherwood.

During the night of July 5, 2013, witness Brenda Lee called 911 to report that she had seen a male individual – later identified as plaintiff Durant T. Tisdale – steal a window grate from her neighbor’s house and put it in a shopping cart. Philadelphia Police Officer Gibson received a radio call about the theft, which included Lee’s description of the suspect as “a man wearing a black shirt and white hat.” Lee proceeded to follow the individual in her own vehicle, while remaining on the phone with the 911 operator.

When the parties involved met at the same location, Lee identified Tisdale as the individual she had seen steal the grate, leading Gibson to arrest Tisdale. When he was arrested, Tisdale did not have the grate, shopping cart, or tools in possession; meanwhile, Lee did not know the location of the stolen items and the police never located them.

During his deposition, Tisdale testified that at the time of his arrest, he was wearing a dark gray shirt and blue hat. Tisdale’s arrest photo depicted him wearing a black shirt, which he testified belonged to him and that he “changed into it at some point before having his picture taken.”

In June 2015, Tisdale sued the City of Philadelphia, Officer Gibson, and the official assigned to the case, Det. Sherwood, raising a number of claims under 42 U.S.C. Section 1983. However, the District Court dismissed his case.

“The District Court granted summary judgment in favor of the defendants. Plaintiff now appeals the dismissal of his claim against the officers and puts forth two arguments: (1) The officers lacked probable cause to arrest him, and (2) The District Court erred in not determining that the officers were not subject to qualified immunity against his claims. We find that both arguments lack merit,” Rendell said.

Rendell explained that the Fourth Amendment “requires that probable cause support a warrantless arrest” and while “not absolute, a positive identification by a witness is considered strong inculpatory evidence; exculpatory facts must be weighed against inculpatory facts, construed from the vantage point of the arresting officer, and do not necessarily undermine the existence of probable cause.”

“Before applying this law, we note that Detective Sherwood was not involved in the probable cause calculation or plaintiff’s arrest. We therefore agree with the District Court that the Section 1983 claim against him must be dismissed,” Rendell said.

Though there was dispute among Tisdale, Lee, and Officer Gibson over the details of Tisdale’s clothing when he was arrested (black VS. dark gray shirt; white VS. blue hat). Tisdale argues that Lee’s “remarkably different” description of his appearance is key because of the quantity of time she had to observe him – and that the discrepancy is “ultimately fatal to the probable cause assessment”, while emphasizing “no physical evidence was recovered from his person or the immediate scene to link him to the stolen crate.”

“But neither of these points is enough to defeat probable cause, and plaintiff cites no authority counseling otherwise. Gibson arrested Tisdale based on both the flash description he received over the radio and Lee’s positive identification. Disagreement over the precise colors of plaintiff’s clothing does not negate the identification by Lee in the face of Gibson’s testimony indicating that it was reasonable to believe Lee was telling the truth. Further, we have consistently held that probable cause does not require that officers ‘correctly resolve conflicting evidence or that their determinations of credibility, were, in retrospect, accurate.’ Nor does the missing physical evidence change our conclusion,” Rendell stated.

“Because Officer Gibson had probable cause to arrest plaintiff, and thus did not violate plaintiff’s constitutional right, we find that the District Court did not err in declining to rule on the officers’ entitlement to qualified immunity. For the foregoing reasons, we will affirm the District Court’s grant of summary judgment in favor of the two officers,” Rendell concluded.

U.S. Court of Appeals for the Third Circuit case 16-1874

U.S. District Court for the Eastern District of Pennsylvania case 2:15-cv-05209

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com

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