PHILADELPHIA – A federal appellate court has dismissed an interlocutory appeal from a Meadville police officer filed within an underlying suit brought by a former Allegheny College student, who had been wrongfully accused of a barroom assault by Meadville law enforcement.
In a March 12 memorandum opinion, U.S. Court of Appeals for the Third Circuit judges L. Felipe Restrepo, Stephanos Bibas and Anthony J. Scirica dismissed the appeal from Patrolman Jared Frum, brought within plaintiff Kobe Pinkney’s larger litigation against Meadville, Pennsylvania and Frum.
Bibas authored the Court’s opinion in this matter.
The events began with an assault on a man named Rhett Happel at a Meadville establishment named Julian’s Bar on April 7, 2019 - an assault allegedly committed because the assailant suspected Happel of drugging a young woman found unconscious in the bathroom at the same establishment the night before.
Happel was taken to Meadville Medical Center and later transferred to UPMC Hamot for immediate reconstructive surgery.
Defendant Freeland later described the assailant as being an African-American male, about six feet tall with braided hair, who walked up to the victim when he was in line for the restroom, tapped him on the shoulder and punched him in the left side of the face when he turned around. After being shown a photo of plaintiff Pinkney by a friend, Freeland identified him as the assailant.
Frum then asked Freeland several leading questions assuming that Pinkney did it, leading Freeland to confirm Pinkney as the assailant and Frum to seek an arrest warrant for Pinkney, based on probable cause.
In an affidavit Frum submitted to a judge, the officer stated the following: “Freeland stated that they were contacted by Happel’s friend…and was sent a picture of a white male and a Black male. They recognized the white male as Jared Shaw and the Black male as Kobe Pinkney. They recognized Pinkney as the Black male that punched Happel. They stated that the friend sent two more pictures and they were both pictures of Pinkney.”
Pinkney was then removed from class and arrested by Sgt. William Merchbaker on April 11, 2019, on charges of aggravated assault, simple assault, harassment and disorderly conduct. Pinkney was taken to the Crawford County jail, but posted a $5,000 bond later that same day.
However, other witnesses came forward to say that Pinkney was not at Julian’s Bar that night and was therefore not responsible for the assault. Evidence was later uncovered that detailed Pinkney had instead been at a fraternity party that evening, left the party, purchased food from a McDonald’s restaurant and checked back into his dormitory at the very same time the assault had occurred. Additionally, Freeland recanted his identification of Pinkney.
Forensic evidence also concluded Pinkney was not responsible, as further accounts linked another African-American man named Josiah Williams as the actual assailant.
The Commonwealth dropped all charges against Pinkney on May 14, 2019.
On June 6, 2019, Pinkney filed a 12-count lawsuit against the Borough of Meadville, Chief of Police Michael J. Tautin, Frum, Merchbaker, Assistant District Attorney Paula DiGiacomo, Allegheny College and other local media who reported on the initial incident.
Included were claims of racial discrimination, false arrest, false imprisonment, malicious prosecution, false light defamation and invasion of privacy.
However, despite the later evidence of Pinkney’s exoneration, U.S. Magistrate Judge Richard A. Lanzillo initially said in his dismissal ruling April 3, 2020 at the time of the initial events, probable cause existed to arrest him and the officers involved were entitled to qualified immunity. Additionally, Lanzillo said Pinkney failed to show that the Borough of Meadville and Tautin had a custom in failing to properly train its officers or that the defendants treated him with any discrimination or violated his due process rights.
“The complaint acknowledges that [police] did not arbitrarily identify Pinkney as a suspect in the assault simply based on his race conforming to the description, but rather based upon information that included an eyewitness’s identification,” Lanzillo said.
In dismissing all of Pinkney’s federal claims, Lanzillo declined to exercise supplemental jurisdiction over his remaining state law claims against DiGiacomo and the newspaper defendants.
Counsel for Pinkney motioned to re-open the case on April 8, 2020, which was successful, and litigation in the case continued. All defendants except Meadville, Pennsylvania Frum were later dismissed from the case in April 2020 and January 2021.
Though Frum previously motioned to dismiss the case, Lanzillo denied this action in a judicial order handed down on Jan. 3, 2023.
Frum appealed this denial to the Third Circuit, arguing that qualified immunity shields him because he had probable cause for the arrest. To resolve that defense, the Third Circuit had to decide two issues: 1) Whether Frum plausibly violated a constitutional right and 2) If so, we ask if a reasonable officer would have known that Frum’s alleged conduct violated Pinkney’s rights.
UPDATE
“According to the pleadings, Officer Frum made three reckless errors in his affidavit: (1) Overstating Freeland’s certainty, (2) Overlooking an inconsistency in Freeland’s statement, and (3) Leaving out key facts. First, in applying for the arrest warrant, Officer Frum wrote that Freeland ‘recognized’ Pinkney as the attacker. That implied that Freeland had identified Pinkney positively and unequivocally. Yet Freeland had never expressed such certainty. Rather, Officer Frum asked leading questions that suggested that Pinkney looked like the attacker. And to each question, Freeland simply responded ‘yeah.’ But leading questions increase the risk of a false identification. So, though Officer Frum could ask these questions, he could not assume that, by answering them, Freeland was making a confident eye-witness identification. Plus, Freeland said only that Pinkney ‘looked an awful lot like’ the attacker, not that he was the attacker,” Bibas said.
“Second, Officer Frum overlooked a discrepancy. One of the few things Freeland remembered was the attacker’s hairstyle, but he twice sidestepped describing Pinkney’s hair. When asked if Pinkney had braids, Freeland replied: ‘Looked like he had something. So maybe—.’ Later, he said Pinkney looked like the attacker ‘minus the hair in the last two photos].’ He had good reason to hedge: Pinkney never wore braids. But Officer Frum brushed aside Freeland’s hedging. In bolstering Freeland’s identification, he ‘had obvious reasons to doubt the accuracy of the information he reported.’ Finally, Officer Frum omitted three key facts. He did not disclose that the victim had been threatened by other men, that a witness had at first identified the attacker as female and that no other witness had seen Pinkney at the bar. So he ‘withheld a fact…that any reasonable person would have known…and was the kind of thing the judge would wish to know.’ In short, in his affidavit for the warrant application, Officer Frum recklessly disregarded the truth.”
Bibas added that Frum’s “misrepresentations and omissions tainted the probable-cause finding.”
“To start, we remove the language that Freeland ‘recognized’ Pinkney. Instead, the affidavit should have said only that Freeland thought Pinkney looked like the attacker. Next, we add the discrepancy. That makes the identification uncertain. We also add the other omitted exculpatory evidence, which shows that nothing corroborated Freeland’s identification. And Officer Frum relied exclusively on Freeland’s inter-view. So the reconstructed affidavit supports probable cause only if one uncertain eyewitness is enough. We give an eyewitness identification significant weight. It satisfies probable cause unless it is unreliable or undermined by exculpatory evidence. There can be probable cause even if there is ‘some ‘unreliability or exculpatory evidence.’ But when, as here, a witness is the sole source of information, we ‘cast a brighter light’ on his account to ensure that it is reliable enough. Freeland’s identification was not: Its method was flawed. He reviewed three curated photos in which Pinkney was the only Black man. That homemade photo array was suggestive,” Bibas stated.
Bibas added that examining factors (such as how much opportunity Freeland had to view the criminal during the crime, how attentive Freeland was, how accurately Freeland had described the criminal in the past, how certain Freeland was, and how much time passed between the crime and the identification) do not favor reliability on Freeland’s initial identification of Pinkney.
“None of these factors favors reliability here. Officer Frum never asked Freeland about how well he could see the assault or how much attention he was paying. His only questions were conclusory or leading. And Freeland’s general description of a Black man with braids did not match Pinkney. Plus, Freeland expressed uncertainty, saying only that Pinkney ‘looked an awful lot like’ the attacker. Finally, several days passed between the assault and the interview. Because Freeland’s identification was neither reliable nor corroborated, it was not enough to show probable cause. A police officer may not put on blinders and then claim ignorance. A single witness identification, without more, must have at least basic signs of reliability to amount to probable cause. That bar is not high; either corroboration or an appropriate witness interview may suffice. But based on the facts alleged, neither happened here. So Officer Frum violated Pinkney’s Fourth Amendment rights by arresting him without probable cause,” Bibas said.
“Pinkney’s right not to be arrested without probable cause was clearly established. So was his right not to be prosecuted without probable cause. And no reasonable officer would have covered up a lack of probable cause by recklessly disregarding the truth in an affidavit. A reasonable officer thus would have known that Officer Frum’s alleged conduct was unlawful. Probable cause requires enough evidence – one obviously unreliable, uncorroborated witness is not enough. According to the pleadings, Officer Frum exaggerated and hid facts to manufacture probable cause. That was wrong. So we will affirm and let this case proceed.”
The plaintiff is represented by Earl DuBois Raynor Jr. in Philadelphia.
The defendants are represented by Patrick M. Carey and Carol A. VanderWoude of Marshall Dennehey in Erie and Philadelphia.
U.S. Court of Appeals for the Third Circuit case 23-1095
U.S. District Court for the Western District of Pennsylvania case 1:19-cv-00167
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com