PITTSBURGH – A federal magistrate judge has recommended that the efforts of two Pittsburgh police officers to obtain qualified immunity in defense to a retaliation claim should be rejected, in a lawsuit brought by a woman who alleged she was unlawfully arrested because she didn’t support former President Donald Trump.
Plaintiff Darian Balcom first filed suit on May 2, 2019 in the U.S. District Court for the Western District of Pennsylvania against the City of Pittsburgh, Officers Gabe Figueroa and John Doe, under the First and Fourteenth Amendments to the U.S Constitution.
An amended version of the complaint filed on Aug. 28, 2019 added Officers Leo, Donnolley, Smith and Zarate as defendants.
According to the complaint, the plaintiff owns and manages rental properties in Pittsburgh, and was asked in writing by the owner of a neighboring building to feed dogs believed to be abandoned, on Dec. 18, 2017.
The plaintiff alleged when she entered the apartment, she found two cats inside that were not properly cared for – and then took the cats to an empty unit in her apartment building to care for them.
The suit stated five police officers entered the plaintiff’s apartment building without her consent and without a warrant, and accused the plaintiff of illegally entering the apartment and stealing the cats.
Balcom alleged that when Figueroa, a Pittsburgh police officer, asked her if she was a supporter of President Donald Trump and she responded that she was not, that Figueroua said he was glad Trump had won. When Figueroa spoke to Balcom's friend Matthew, out of earshot from the plaintiff, he allegedly told Matthew that while the plaintiff had not done anything wrong, she had "sassed" the police and that when a person does that, they get arrested. Figueroa also reportedly referred to the plaintiff as a "bleeding heart liberal." Matthew was not arrested or charged in the incident.
The suit stated Balcom was taken to the Allegheny County Jail, held overnight and was charged with felony trespassing, theft and burglary, though the charges were later withdrawn.
On Oct. 1, 2019, counsel for the defendants filed a motion to dismiss Balcom’s lawsuit, arguing she has no valid Section 1983 civil rights violation claims.
“Any claims against the City of Pittsburgh should be dismissed with prejudice for failure to properly allege a widespread municipal policy or custom that was the moving force behind the alleged Constitutional injuries. Plaintiff failed to state a claim for municipal liability under a failure to train, control or supervise theory. Further, the actions of one officer, claimed by the plaintiff to be evidence of a failure to train, control, or supervise, does not amount to a widespread policy or custom,” the dismissal motion read, in part.
The magistrate judge opted to throw out Balcom’s municipal liability claim under Monell on April 28, 2020, but denied the defendants’ motion in all other respects.
Both plaintiff attorneys and defense counsel for Officers Leo, Donnelly and Smith filed a mutual stipulation on May 29, 2020 that dismissed the trio of officers from the suit without prejudice. The City of Pittsburgh, Figueroa and Zarate all remain as defendants.
Meanwhile, Figueroa and Zarate filed a motion for summary judgment on July 16, 2021, countering that the discovery process “has failed to yield a ‘genuine dispute as to any material fact’ and the defendants are ‘entitled to judgment as a matter of law.”
Rather, the officers argued they had probable cause to arrest Balcom.
“Plaintiff will most certainly respond that the apartment and the animals inside had been abandoned and that the building managers had given her permission to enter the apartment, but it is not plaintiff’s knowledge or understanding that controls here. What matters is what information the arresting officers had at the time of the arrest, and discovery yielded no evidence that Officers Figueroa and Zarate knew or should have known that plaintiff believed that she was authorized to be in the upstairs unit of 3538 Fleming Avenue. Further, there is no constitutional right to an error-free investigation,” the summary judgment motion said.
“As probable cause existed for plaintiff’s arrest, her Fourth Amendment false arrest/malicious prosecution must fail. The fact that her charges were ultimately withdrawn has no bearing, either, because withdrawal of charges due to absence of a necessary witness is a determination made by prosecuting attorneys.”
Figueroa and Zarate further assert their rights to judgment based on qualified immunity.
Defendants Figueroa and Zarate filed a supplemental brief in support of their pursuit for summary judgment on May 27, believing that they are in fact entitled to qualified immunity in this case.
“Although the court directives granting the Parties the opportunity to file this supplemental brief limit its scope to addressing whether Officer Figueroa and Officer Zarate are entitled to qualified immunity regarding plaintiff’s First Amendment retaliation claim, Officers Figueroa and Zarate note that plaintiff’s response in objection to defendants’ motion for summary judgment and the report and recommendation, which Judge Cercone adopted, rely heavily on the Supreme Court decision in Nieves v. Bartlett, 139 S.Ct. 1715 (2019) in its discussion of the merits of defendants’ arguments for summary judgment on the First Amendment retaliation claim,” the defendants’ supplemental brief stated.
“Nieves did not become law until May of 2019, approximately a year and a half after the events giving rise to plaintiff’s lawsuit occurred. There is no language in the Nieves decision that suggests that the Supreme Court intended it to apply retroactively. As this Court still has jurisdiction over the pending motion for summary judgment, Officers Figueroa and Zarate respectfully ask that this Court reconsider its recommendation regarding the First Amendment retaliation claim.”
The defendants added that the plaintiff agreed that probable cause existed for her arrest and stated so, in her own filings for summary judgment.
“Thus, any attempt by plaintiff at this stage to argue that probable cause is an issue for the jury not only prejudices Officers Figueroa and Zarate, but would be an opportunistic and improper exploitation of the court’s process. Plaintiff made clear her position regarding the existence of probable cause and even informed the court that she offered to ‘voluntarily dismiss her Fourth Amendment claims,’, fully acknowledging that she agreed that the existence of probable cause was not a question for the jury, but was one that the facts of the case conclusively proved. That issue for plaintiff has been waived and cannot be revived at this stage,” the brief stated.
UPDATE
U.S. Magistrate Judge Cynthia Reed Eddy issued a report and recommendation on Oct. 31, which suggested that a motion for summary judgment, which claimed Officers Figueroa and Zarate should be absolved of liability for the plaintiff’s retaliation claim on the grounds of qualified immunity, be denied.
“Because this Court has previously held that the issue of whether there was probable cause to arrest plaintiff is for the jury to determine based on the credibility of the witnesses, defendants are not entitled to qualified immunity on plaintiff’s First Amendment retaliation claim at the summary judgment stage. If an arrest lacks probable cause and is made in retaliation for non-provocative objection to police conduct, there is a violation of clearly established law. Therefore, if the jury determines that no probable cause existed to arrest plaintiff, defendants would not be entitled to qualified immunity, as the right to be free from arrests not supported by probable cause was clearly established at the time of plaintiff’s arrest,” Eddy said.
“Lastly, defendants argue that plaintiff admitted that the officers had probable cause to arrest plaintiff in their brief in opposition to the motion for summary judgment and she should be precluded from arguing that no probable cause existed to arrest her. The Court will not consider plaintiff’s argument made for the limited purpose of responding to a motion for summary judgment as a waiver of the argument that probable cause did not exist for purposes of First Amendment retaliation.”
The plaintiff is seeking all reasonable sums due, attorney’s fees and court costs.
The plaintiff is represented by Margaret S. Coleman and Timothy P. O’Brien of the Law Offices of Timothy P. O’Brien, in Pittsburgh.
The defendants are represented by Emily McNally, Julie E. Koren, Michael E. Kennedy and Yvonne Schlosberg Hilton of the City of Pittsburgh’s Law Department, also in Pittsburgh.
U.S. District Court for the Western District of Pennsylvania case 2:19-cv-00506
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com