204 F.3d 425 (3rd Cir. 2000), 99-6025, Paff v. Kaltenbach

Docket Nº:99-6025
Citation:204 F.3d 425
Party Name:JOHN PAFF; JAMES TIMOTHY KONEK, Individuals, Appellants v. GEORGE KALTENBACH, in his individual and official capacities; JOHN DOES 1-3; THE TOWNSHIP OF EAST BRUNSWICK
Case Date:February 28, 2000
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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204 F.3d 425 (3rd Cir. 2000)

JOHN PAFF; JAMES TIMOTHY KONEK, Individuals, Appellants


GEORGE KALTENBACH, in his individual and official capacities; JOHN DOES 1-3; THE TOWNSHIP OF EAST BRUNSWICK

No. 99-6025

United States Court of Appeals, Third Circuit

February 28, 2000

Argued June 18, 1999

On Appeal From the United States District Court For the District of New Jersey (D.C. Civil Action No. 97-cv-01197) District Judge: Honorable Joseph A. Greenaway, Jr.

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[Copyrighted Material Omitted]

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Richard F. Collier, Jr. Christopher Walsh (Argued) Collier, Jacob & Mills 580 Howard Avenue Corporate Park III Somerset, NJ 08873 Attorneys for Appellants

George Wilgus, III (Argued) Lenox, Socey, Wilgus, Formidoni & Casey 3131 Princeton Pike Trenton, NJ 08648 and Joseph J. Benedict Benedict & Altman 247 Livingston Avenue New Brunswick, NJ 08901 Attorneys for Appellees


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STAPLETON, Circuit Judge:

Appellants are two political activists who were arrested for criminal trespassing while distributing Libertarian Party literature outside the post office in East Brunswick, New Jersey. They brought suit against Kaltenbach, the arresting officer, under 42 U.S.C. S 1983, alleging a violation of their constitutional rights, as well as violations of state tort law. The District Court entered summary judgment for the defendant police officer on grounds of qualified immunity. We will affirm.


Plaintiff-Appellants John Paff and James Konek are officers of the Libertarian Party of Somerset and Middlesex Counties in New Jersey. The Libertarian Party is a national organization that advocates a free-market economy and seeks to "roll back the size of government by replacing taxes with voluntary user fees for governmental services." To this end, the Party sponsors peaceful demonstrations each year on April 15, tax day, to protest the tax burdens imposed on American citizens and illustrate the Party's opposition to taxes and to the Internal Revenue Service. The demonstrations are held each April 15th evening, throughout the United States, in front of post office buildings where taxpayers go to mail their tax returns.

In order to assist in the organization of these rallies, the Libertarian National Committee has developed a "Million Dollar Tax Day Outreach" package, which is provided to Party representatives and contains tips on how to ensure an "effective outreach-oriented protest." The mainstay of the protest is the distribution of mock $1,000,000 bills, which are printed to resemble a Federal Reserve note and, on the reverse side, prominently state: "The U.S. Government Spends $1,000,000 Every Five Seconds." The fake bill also contains additional information about federal government appropriations and a coupon designed to be clipped and mailed in for more information about the Libertarian Party.

The Outreach Package, designed for the organizers of such events, contains information about printing these leaflets, selecting a post office, managing volunteers, distributing press releases, etc. In a section entitled "Problems," the package advises leafletters not to block the entrance of the post office; to pick up dropped leaflets; to hand out literature to people as they are leaving, rather than entering, the post office; and to avoid "unnecessary disputes" with post office officials. In the event post office officials attempt to remove the demonstrators, the package contains a "Legal Memo" expressing the view that the demonstrators have a legal right to distribute literature on post office property. In this instance, Paff, Chairman of the local chapter's Political Awareness Committee, also personally researched the relevant law and concluded that their planned tax day protest did not violate postal regulations and was in fact protected by the First Amendment.

On April 10, 1996, Paff mailed a letter to the Postmaster of the East Brunswick, New Jersey Post Office, signed by the local party chairperson, advising the Postmaster that they planned to conduct a tax day protest "on the grounds of your facility on the evening of April 15th," and enclosing a press release describing the event. The letter further explained they had been advised by the national party leaders that the planned activities were completely lawful and asked that "[i]f you have a different opinion on this matter, please advise me prior to the event." The Postmaster did not reply.

On April 15, 1996, the East Brunswick postal branch remained open until midnight to permit its patrons to file their 1995 tax returns. At approximately 9:00 p.m. that evening, Paff, Konek, and three other tax protesters stood on the postal

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sidewalk area, between the parking lot and the front door of the post office. As the postal customers exited the building, Paff, Konek, or another party member approached some of them and handed them a prepared leaflet.

Shortly after the commencement of the leafleting activity, the Postmaster, Steve Leddy, emerged from the post office and told Paff that he and the other protesters would have to move to the public right-of-way, along Cranbury Road. The East Brunswick postal building is set back approximately 75 feet from the nearest thoroughfare, Cranbury Road, which has no adjoining sidewalk. Postal customers enter the building via an access road that connects with Cranbury Road and depart the facility through another access road. As such, the sidewalk area where plaintiffs stood is designed specifically to facilitate access by postal customers to the post office from the parking area. Two newspaper vending machines are located on this sidewalk area.

Upon being instructed to move to Cranbury Road, Paff explained to the Postmaster that he had researched the matter and that he and his fellow protesters had a constitutional right to remain there. Leddy then re-entered the postal facility and proceeded to call the police. Paff, Konek, and the others continued to distribute leaflets.

Shortly thereafter, Officers Kaltenbach and Koslowski were dispatched to the scene. Upon their arrival, Leddy introduced himself, identified the protesters, and informed the officers that he had instructed the protesters to move to the public thoroughfare along Cranbury Road, but they had refused. Leddy told the officers that, by using the postal sidewalk, the protesters were a potential obstruction to customers entering and exiting the building on postal business. Kaltenbach told Leddy that if the protesters refused to move, and if Leddy would sign a complaint, Kaltenbach would arrest them. Leddy agreed to sign a complaint.

Kaltenbach then told the protesters that they could move to the public right-of-way beside Cranbury Road, but if they remained on the postal sidewalk, they would be arrested. Paff explained that he and his fellow protesters had a constitutional right to distribute leaflets in front of the post office building. Kaltenbach repeated that if they did not move, he would arrest them. Paff said that he was the "designated arrestee" and that Kaltenbach should arrest him because he would not move; thereafter, all of the protesters except Paff and Konek left the area.

Kaltenbach then called his lieutenant and explained the situation, indicating that he was going to have to arrest two of the protesters for trespass. The lieutenant told Kaltenbach to bring the Postmaster back to headquarters to sign the complaint. Kaltenbach proceeded to arrest both Paff and Konek and brought them back to police headquarters, along with Postmaster Leddy. Kaltenbach also arranged for Konek's car, which was parked at the postal facility, to be towed and impounded. At the lieutenant's direction, Kaltenbach himself signed the complaints, charging Paff and Konek with defiant trespassing, in violation of N.J. Stat. S 2C:18-3(b)(1).1 After their arrest and booking, bail was set at $5,000, Paff and Konek posted bail and were released at 3:00 a.m. the next morning, April 16, 1996.

On September 17, 1996, at the request of the East Brunswick prosecutor, the East Brunswick Township Municipal Court dismissed the charges against Paff and Konek. The prosecutor explained that, although Leddy initially requested police assistance and indicated his willingness to sign the complaints for the arrest

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of Paff and Konek, Leddy thereafter learned of an internal Postal Service policy not to prosecute trespassers unless there has been a physical obstruction of the postal facility.

Paff and Konek subsequently brought suit in U.S. District Court against Kaltenbach, alleging violations of S 1983 and state tort law. Specifically, plaintiffs alleged that their arrest violated their First Amendment right to distribute leaflets on the post office sidewalk; that Kaltenbach arrested them without probable cause, in violation of the Fourth Amendment; that Kaltenbach participated in setting excessive bail in violation of the Eighth Amendment; and that Kaltenbach's impoundment of Konek's car amounted to a deprivation of property without due process in violation of the Fourteenth Amendment. In addition, plaintiffs presented common law claims against Kaltenbach for false arrest, malicious prosecution, and conversion (of Konek's vehicle).

Following discovery, the plaintiffs moved for summary judgment as to liability against Kaltenbach, and Kaltenbach filed a cross-motion for summary judgment on all claims against him. The District Court granted summary judgment to plaintiffs only on their claim that the impoundment of Konek's vehicle was improper. As to plaintiffs' First Amendment claim, the Court found that plaintiffs had a right, protected by the First Amendment...

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