427 F.3d 197 (3rd Cir. 2005), 04-2542, Gilles v. Davis

Docket Nº:04-2542.
Citation:427 F.3d 197
Party Name:James G. GILLES; Timothy Petit Appellants v. Sergeant Gregory DAVIS, Indiana University Police Department; Officer Christopher D. Goenner, Indiana University Police Department; Terry Appolonia, Director, Student Life, Indiana University of Pennsylvania; Rhonda H. Luckey, Ed.D., Associate President of Student Affairs for Indiana University of Pennsy
Case Date:October 25, 2005
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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427 F.3d 197 (3rd Cir. 2005)

James G. GILLES; Timothy Petit Appellants


Sergeant Gregory DAVIS, Indiana University Police Department; Officer Christopher D. Goenner, Indiana University Police Department; Terry Appolonia, Director, Student Life, Indiana University of Pennsylvania; Rhonda H. Luckey, Ed.D., Associate President of Student Affairs for Indiana University of Pennsylvania; William Montgomery, Director of Public Safety, Indiana University of Pennsylvania.

No. 04-2542.

United States Court of Appeals, Third Circuit.

Oct. 25, 2005.

Argued March 8, 2005

On Appeal from the United States District Court for the Western District of Pennsylvania, D.C. Civil Action No. 03-cv-00529, Honorable Arthur J. Schwab

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J. MICHAEL CONSIDINE, JR., (ARGUED) West Chester, Pennsylvania, for Appellants.

GREGORY R. NEUHAUSER, (ARGUED) SARAH C. YERGER, Office of Attorney General of Pennsylvania West Chester, Pennsylvania, for Appellants.

Before: SCIRICA, Chief Judge, ROTH and FUENTES, Circuit Judges

FUENTES, Circuit Judge, dissenting in part.


SCIRICA, Chief Judge.

In this civil rights action for damages under 42 U.S.C. § 1983, plaintiffs were arrested for disorderly conduct on the campus of Indiana University of Pennsylvania, a state university. At issue in this First Amendment suit is whether the arresting officers are entitled to qualified immunity. Also at issue is whether resolution of a criminal charge under Pennsylvania's "Accelerated Rehabilitative Disposition" program bars a subsequent § 1983 claim. The District Court granted defendants summary judgment on all claims. We will affirm.


Although with no formal religious training, James Gilles is a self-styled "campus-evangelist" who has appeared at college campuses across the country since 1982. He preaches against what he calls the "big four"—"drugs, sex, booze, and rock and roll."

Around noon, October 5, 2001, Gilles appeared and began preaching in the open air at the Oak Grove, a busy area open to the public on the campus of Indiana University of Pennsylvania. With him were some twenty-five members of the "Campus Ministry,"1 including Timothy Petit, with a video-camera. Gilles preached on the evils of pre-marital sex, drinking, and homosexuality. The District Court estimated a crowd of 75-100 students gathered.2

In a provocative manner, Gilles accosted the crowd, preaching that Indiana University of Pennsylvania's student body was full of "fornicators," "whores," "drunken little devils," "drunkards," and "drugs, sex, booze, and rock and roll freaks." His speech and manner drew reactions from the students. One threw an apple core at Gilles. Another shouted "get your fucking God off our campus." This set off some name-calling. Gilles asked the man if he was a communist, which drew the retort, "you're a small minded man." Gilles called another a "high school flunky." When someone approached to tell Gilles he was interrupting classes, Gilles called him "cigarette breath." The man responded, "don't be belittling me. It is Goddamn campus policy . . . You will not preach while classes are in session." Gilles retorted, "oh yes I will, devil."

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The crowd became more animated in response to Gilles' invective against homosexuals. Gilles cautioned the students to "watch out [because] the homosexuals are after you on this campus" and pronounced that "nothing is lower than a lesbian." Gilles warned that "homosexuals and lesbians are headed for hell" and that "there is no such thing as a Christian lesbian . . . [or] Christian homosexual." One woman volunteered that she was a Christian lesbian. Gilles took a pejorative tone, taunting, "oh, my, you ma'am are most confused. She thinks she's a Christian lesbo. She's a lesbian for Jesus." Gilles asked the woman, "do you lay down with dogs? Are you a bestiality lover? . . . Can you be a bestiality lover and a Christian also?" This engendered angry responses from the crowd, including one who shouted at Gilles, "I don't know, ask your mom."

Apparently, someone called the campus police, and Sergeant Gregory Davis and Officer Christopher Goenner of the Indiana University of Pennsylvania police force responded to the reported "near riot taking place." Davis heard Gilles call one person a "lesbian" and "homosexual" and said that some members of the crowd complained to him that Gilles was singling out individuals, calling them names. After Davis approached Gilles and had a brief conversation, he arrested Gilles for disorderly conduct, among other charges. Davis handcuffed Gilles and escorted him to the police car.

Davis transported Gilles to Indiana University of Pennsylvania's Department of Public Safety building, where he was held for three to four hours. Gilles contends he complained that the handcuffs were too tight and were not removed for a few hours. He never sought out a physician for treatment.

Gilles was charged with disorderly conduct, failure of disorderly persons to disperse, defiant trespass, riot and violating Pennsylvania's Wiretap Act (he had recorded the incident with the police using a dictaphone hidden in his pocket). He was taken to the Indiana County Correctional Facility. Four days later on October 9, 2001, he posted a $5,000 bond and was released.3

Timothy Petit, who videotaped Gilles' activity, was also arrested. Officer Goenner confiscated his video-camera at the direction of Officer Davis. Petit was charged with resisting arrest, disorderly conduct, and failure of disorderly persons to disperse, and was released from custody later that day. Petit entered into the "Accelerated Rehabilitative Disposition" ("ARD") program, which permits expungement of the criminal record upon successful completion of a probationary term.

After the arrests, Bradley Hoffman, a member of Campus Ministry, inquired with the university about obtaining a solicitation permit. Hoffman submitted a "Request/Permit for Use of Campus Space for Soliciation" to "pass [] out Gospel Tracts" and "shar[e] . . . the Gospel." The permit was rejected by Terry Appolonia, the director of the Center for Student Life. An e-mail from Appolonia's supervisor, Rhonda Luckey (Associate President of Student Affairs), advised that she had "grave concerns" about the behavior of the group given the earlier incident.

At a preliminary hearing on November 28, 2001, a District Justice held Gilles on

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the charges of disorderly conduct, failure of disorderly person to disperse, disorderly conduct and defiant trespass. The charges of riot and violating the Pennsylvania Wiretap Act were dismissed. On December 27, 2002, the Court of Common Pleas of Indiana County, Pennsylvania, granted Gilles' petition for a writ of habeas corpus and dismissed all the remaining criminal charges.

Gilles brought the following claims under § 1983: (1) malicious prosecution against Sergeant Davis, (2) false arrest against Sergeant Davis, and (3) excessive force against Sergeant Davis, based on Gilles' assertion that the handcuffs were unnecessarily tight. Gilles and Petit brought these claims under § 1983: (1) First Amendment violations by Officers Davis and Goenner, (2) First Amendment violations by Appolonia and Luckey, claiming Indiana University of Pennsylvania's permit policy was viewpoint based and standardless, vesting unbridled discretion in Appolonia and Luckey, and (3) First Amendment violation by William Montgomery, the Director of Public Safety who supervises the Indiana University of Pennsylvania police department, for failure to train and monitor police and officials charged with permit decision making. Gilles and Petit requested a declaratory judgment that Indiana University of Pennsylvania's permit policy is in violation of the First Amendment. In addition, Gilles and Petit sought punitive damages against Sergeant Davis and a state-law replevin for return of the confiscated videotape.

The District Court granted defendants summary judgment on all claims, and declined to exercise supplemental jurisdiction over the remaining state law replevin claim.


The District Court had jurisdiction under 28 U.S.C. § 1331 and we have jurisdiction under 28 U.S.C. § 1291. The standard of review is plenary over a grant of a motion for summary judgment. Camiolo v. State Farm Fire & Cas. Co., 334 F.3d 345, 354 (3d Cir. 2003) (internal citations omitted). The District Court's grant of summary judgment in favor of the appellees will be affirmed if it appears that "there is no genuine issue as to any material fact and that they are entitled to a judgment as a matter of law." Id.


A. Gilles' Claims

1. First Amendment

With respect to Gilles' malicious prosecution, false arrest, and First Amendment claims, the District Court held that Sergeant Davis was entitled to qualified immunity. "[G]overnment officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The qualified immunity standard "gives ample room for mistaken judgments by protecting all but the plainly incompetent or those who knowingly violate the law." Hunter v. Bryant, 502 U.S. 224, 229 (1991) (internal quotations omitted). In determining qualified immunity, we first ask whether "the facts alleged, viewed in the light most favorable to the party asserting the injury, show that the officer's conduct violated a constitutional right." Curley v. Klem, 298 F.3d 271, 277 (3d Cir. 2002). If so, we then ask whether it "would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Id. (quoting

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Saucier v. Katz, 533 U.S. 194,...

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