20 F.3d 1290 (3rd Cir. 1994), 93-7471, Clark v. Clabaugh

Docket Nº:93-7471.
Citation:20 F.3d 1290
Party Name:Angel CLARK; Melvin Thomas; Frederick Anderson; Mary Roe; Jamie Luby, by her next friend Christine M. Luby; Tashiana Elliott, by her next friend, Barbara J. Elliott; Duane Cuthrell; Alfred Colon; Jane Doe; Lynette Chronister, by her next friend Karen Burgess; Lisa Becker; Jeff Dixon; Titus Clark; Sherry Stuffle; Charles Kennedy, II v. Joseph CLABAU
Case Date:April 08, 1994
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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20 F.3d 1290 (3rd Cir. 1994)

Angel CLARK; Melvin Thomas; Frederick Anderson; Mary Roe;

Jamie Luby, by her next friend Christine M. Luby; Tashiana

Elliott, by her next friend, Barbara J. Elliott; Duane

Cuthrell; Alfred Colon; Jane Doe; Lynette Chronister, by

her next friend Karen Burgess; Lisa Becker; Jeff Dixon;

Titus Clark; Sherry Stuffle; Charles Kennedy, II


Joseph CLABAUGH, Sergeant; Douglas Riley, Sergeant; Randy

Whitson, Sergeant; Devis Leese, Sergeant; Ken Smith,

Officer; Dwayne Smith, Officer; David Zumbrum, Officer;

Wayne Martin, Officer; Officer Bigham; Officer Hess; J.D.

Roser, Officer; Hanover Police Department; County of York;

Carl Boyer, Conewago Township Police Department; Randy

Chronister; Scott Leese; Daniel Messinger; Jeffrey Parks;

James Swartz; Jeffrey Trish; Donald Wilson; James

Winebrenner, All Individual defendants are sued individually only,

Angel Clark, Melvin Thomas, Frederick Anderson, "Mary Roe",

Jamie Luby, Tashiana Elliott, Duane Cuthrell, Alfred Colon,

"Jane Doe", Lynette Chronister, Lisa Becker, Jeff Dixon,

Titus Clark, Sherry Stuffle; Charles Kennedy, II, Appellants.

No. 93-7471.

United States Court of Appeals, Third Circuit

April 8, 1994

Argued Jan. 25, 1994.

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[Copyrighted Material Omitted]

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Stefan Preser, Philadelphia, PA, Richard Gutman (Argued), Carlisle, PA, for appellants.

John C. Dowling (Argued), David B. Dowling, Rhoads & Sinon, Harrisburg, PA, for appellees.

Before: MANSMANN, NYGAARD and SEITZ, Circuit Judges.


MANSMANN, Circuit Judge.

A racial riot in Hanover, Pennsylvania, during the summer of 1991 provides the setting for this appeal by the members of an interracial youth group who claimed numerous violations of their civil rights by public officials when the members were attacked by white "bikers" and townspeople. The district court granted summary judgment in favor of the Borough of Hanover, Mayor W. Roy Attlesberger, Chief of Police Gerald Lippy and Conewago Township Police Officer Carl Boyer on all 42 U.S.C. Sec. 1986 civil rights claims charged against them, and certified this appeal pursuant to Fed.R.Civ.P. 54(b). 1

In responding to the motion for summary judgment, the plaintiffs had relied almost exclusively on a Pennsylvania State Police Report, generated from a state police investigation conducted into the circumstances of the racial disturbances, to establish the elements of their claims. The issues before us concern the propriety of the district court's consideration of the PSP Report, which is unsworn and contains opinions based on hearsay, in deciding the summary judgment motions, as well as the Report's sufficiency in raising a genuine issue of material fact as to 42 U.S.C. Sec. 1986 liability. With regard to the latter issue, we focus on the requisite element of "knowledge" of a Sec. 1985 conspiracy in establishing a Sec. 1986 civil rights claim. 2

We exercise plenary review over this challenge to the district court's summary judgment order, and will view all inferences drawn from the evidence in the light most favorable to the party which opposed the motion. Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1262, 122 L.Ed.2d 659 (1993).

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Hanover Center Square, in Hanover Borough, York County, Pennsylvania, was the site of a disgraceful two-day spectacle of racial unrest which ignited between the members of a self-styled interracial youth group on the one side, and a band of all-white motorcyclists and a crowd of townspeople on the other. The incidents which gave rise to this cause of action were preceded by a rumor, which apparently circulated about town for two weeks, that the white bikers were conspiring to assemble in the Square on the evening of July 13, 1991, to drive the interracial group, which regularly congregated and socialized in the Square, out of Hanover. In fact, on the evening of July 13th, the interracial group and the white bikers did assemble in the Square, apparently in anticipation of and prepared for a hostile confrontation. 3 The presence of the two groups, as well as, presumably, the effect of the rumors, incited the participation of many townspeople who had also gathered as spectators and as supporters of the bikers. The series of racial disturbances which ignited from that point on July 13th through the evening of July 14th did not involve serious bodily injury or extensive property damage, despite the grave potential for both.

In short, by midnight of July 13th, a volatile assemblage of approximately 40 interracial youth group members, twelve or more white bikers and approximately 200 to 300 townspeople had gathered in the Square. A racially charged altercation and exchange of taunts, challenges, accusations and obscenities ensued. Only six Hanover police officers were present. The officers formed a police line separating the two factions, which soon proved ineffectual. The bikers and townspeople broke through the line, and the interracial group retreated to an apartment on the Chestnut and Carlyle Streets intersection, where they had frequently congregated. Although the white bikers apparently were not involved in any further confrontation, over 500 townspeople congregated on the street outside this apartment building on the evening of July 14th to confront members of the interracial group gathered on the rooftop. Again, a racial altercation ensued, but this time the two factions threw objects such as stones and bottles at each other. Police officers ascended the fire escape, arrested all the members of the interracial group present on the rooftop and charged them with disorderly conduct. This scenario was repeated when a second group of interracial youths gathered on the rooftop and entered into the same type of altercation with the crowd below. This time the police officers made arrests in a fourth floor apartment which had access to the roof, where the youths had reentered the building from the rooftop.

In addition to these incidents, on the evening of July 14th approximately 50 townspeople gathered across the street from the residence of an interracial couple, the Becker-Dixons, and their young child for the purpose of verbally assaulting the couple. By the time police arrived there, the townspeople had dispersed. The police determined that the threat to the couple was no longer viable. The Hanover police did not take any further action on behalf of the couple, and no other incident at that residence was alleged.

Finally, on the evening of July 14th as well, two black plaintiffs were arrested in an automobile incident after police officers observed what they characterized as the reckless and threatening maneuvering of an automobile through the crowd of townspeople. The owner of the car, Ms. Chronister, a white female plaintiff who was standing on the street within six feet of arresting Police Officer Boyer, was struck several times by an unidentified townsperson. Police Officer Boyer scolded her for allowing black persons to use her car in Hanover under the volatile circumstances.

At midnight on July 14th, Hanover's Mayor Attlesberger declared a state of emergency and invoked a curfew, which ended all

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incidents. 4 Although there is some dispute as to which officials knew "what" prior to the July 13th Hanover Square incident, the district court acknowledged that at least Mayor Attlesberger became aware of the rumored bikers' conspiracy on July 12, 1991, and informed Police Chief Lippy of the rumors that same day. The PSP Report confirms the timing of the Mayor's awareness, and indicates that Police Chief Lippy was apprised of the rumors no later than 4 p.m. on July 13, 1991, hours before the Square incident occurred.

All of the civil rights claimants sued Mayor Attlesberger, Police Chief Lippy and the Borough of Hanover, seeking damages and expunction of criminal records created from their arrests and citations. Only Ms. Chronister sued Police Officer Boyer for a violation of Sec. 1986.


Before deciding whether the evidence suggests a genuine issue of material fact as to 42 U.S.C. Sec. 1986 liability such as to warrant vacatur of the district court's summary judgment order, we must decide first the propriety of the district court's consideration of the PSP Report. The plaintiffs relied virtually exclusively on this report to support the existence of genuine issues of material fact. The plaintiffs did not submit affidavits in opposition to the motion, but did submit the sworn deposition of Pennsylvania State Police Captain Ronald Rostalski properly authenticating the PSP Report. The plaintiffs also submitted excerpts from their own deposition testimony.

We are quite satisfied that the district court exercised sound discretion in admitting for consideration the PSP Report, which is indeed unsworn, authored by an investigator who did not have personal knowledge, and which contains opinion based on hearsay. We note that affidavits in support of summary judgment can be opposed by any admissible evidence, including that contained in "the pleadings, depositions, answers to interrogatories, admissions on file, together with the affidavits, if any." Fed.R.Civ.P. 56(c) (emphasis added). Rule 56(e) further indicates that the adverse parties' response may be in the form of "affidavits or as otherwise provided in [Rule 56] ..." (emphasis added). Thus, while Rule 56(e) makes clear that the appellants were required to submit more than mere allegations in their pleadings to oppose the movants' properly supported summary judgment motions, the evidence submitted showing a material factual issue for trial need not have been in the form of an opposing affidavit, as the defendants contend. Hence it was not incumbent upon the plaintiffs under...

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