Bielevicz v. Dubinon

• Decision Date: 28 September 1990
• Docket Number: O,No. 512 and C,No. 89-3239,No. 557,No. 512,557,512 and C,512,89-3239
• Citation: 915 F.2d 845
• Parties: Barbara BIELEVICZ v. Officer J. DUBINON, a police officer of the City of Pittsburgh Badgefficer Beck, a police officer of the City of Pittsburgh, Badgeity of Pittsburgh, a second class city in the Commonwealth of Pennsylvania. Robert D. TUMPA v. Officer J. DUBINON, a police officer of the City of Pittsburgh, Badgefficer Beck, a police officer of the City of Pittsburgh, Badge, and City of Pittsburgh, a second class city in the Commonwealth of Pennsylvania. Appeal of Barbara BIELEVICZ and David Tumpa.
• Court: U.S. Court of Appeals — Third Circuit

Page 845

915 F.2d 845

Barbara BIELEVICZ v. Officer J. DUBINON, a police officer of the City of

Pittsburgh Badge No. 557, Officer Beck, a police officer of

the City of Pittsburgh, Badge No. 512 and City of

Pittsburgh, a second class city in the Commonwealth of Pennsylvania.

Robert D. TUMPA v. Officer J. DUBINON, a police officer of the City of

Pittsburgh, Badge No. 557, Officer Beck, a police officer of

the City of Pittsburgh, Badge No. 512, and City of

Pittsburgh, a second class city in the Commonwealth of Pennsylvania.

Appeal of Barbara BIELEVICZ and David Tumpa.

No. 89-3239.

United States Court of Appeals Third Circuit.

Argued Dec. 1, 1989.

Decided Sept. 28, 1990.

Timothy P. O'Brien (argued), Sikov and Love, P.A., Pittsburgh, Pa., for appellants.

Steven H. Bowytz (argued), Bowytz & Bowytz, Bryan Campbell, Pittsburgh, Pa., for appellees Officer Dubinon and Officer Beck.

Robert B. Smith (argued), Asst. City Sol., D.R. Pellegrini, City Sol., Pittsburgh, Pa., for appellee City of Pittsburgh.

Before BECKER and STAPLETON, Circuit Judges, and KELLY, District Judge ^*.

OPINION OF THE COURT

BECKER, Circuit Judge.

In the wee hours of the morning of December 23, 1984, plaintiffs Barbara Bielevicz and David Tumpa were arrested by Officers John Dubinon and Virginia Beck of the Pittsburgh Police Department on charges of public intoxication. They were jailed for several hours and then released with no formal charges ever having been made and without a hearing. Plaintiffs brought this civil rights action, pursuant to 42 U.S.C. Sec. 1983, against Dubinon and Beck and also against the City of Pittsburgh, alleging that their arrest was without probable cause and that it was pursuant to the unconstitutional policy and practice of the City of Pittsburgh of: (1) arresting people on pretextual charges of public drunkenness without any intention of prosecuting them; (2) locking them up for several hours; and (3) releasing them without making charges or holding a hearing.

The case first proceeded to a jury trial on the issue of the liability of Officers Dubinon and Beck. The jury returned a verdict in favor of the plaintiffs. In the next phase of the case, the jury heard plaintiffs' evidence against the City. However, at the close of plaintiffs' evidence, the district court granted a directed verdict for the City, concluding that the jury could not, as a matter of law, find any causal connection between the policies and procedures of the City and the illegal arrest carried out by the individual officers. In the final phase of the trifurcated proceeding, the jury assessed Bielevicz's damages in the case against Dubinon and Beck at $14,000 ($4,000 in compensatory damages and $10,000 in punitive damages) and Tumpa's damages at $12,000 ($2,000 in compensatory damages and $10,000 in punitive damages).

In the companion appeal, No. 89-3197, the judgments entered on the verdicts in favor of plaintiffs have been affirmed by judgment order. This opinion addresses the plaintiffs' appeal from the judgment entered on the directed verdict for the City. Plaintiffs argue that they presented evidence sufficient to withstand a motion for directed verdict on the question whether their injuries were caused by the City's practices concerning public intoxication arrests. We agree with the plaintiffs and will therefore reverse and remand to the district court for further proceedings.

I. FACTS

The factual circumstances giving rise to this appeal, viewed in the light most favorable to the plaintiffs, see Macleary v. Hines, 817 F.2d 1081, 1083 (3d Cir.1987), are as follows. Tumpa is the owner of several pizza shops in the city of Pittsburgh. On the evening of December 22, 1984, and into the early hours of December 23, 1984, Tumpa was working at his Perrysville Street pizza shop. Shortly after midnight, he left the shop to visit a friend's bar across the street, where he consumed two alcoholic drinks within the course of his twenty-minute stay. Upon leaving the bar, he returned to the pizza shop to conduct closing procedures.

After closing the Perrysville Street shop, Tumpa took the day's cash receipts to his East Street shop, which was managed by Bielevicz. Bielevicz asked Tumpa to drive her home. He agreed to do so, but told her that he needed first to stop at Chez Kimberly's, a bar in downtown Pittsburgh owned by another of his friends, to pick up a gift. Upon arriving at Chez Kimberly, Tumpa entered the bar and consumed part of another alcoholic drink, while Bielevicz, who was carrying the cash receipts from the pizza shops and consequently considered the walk to the bar too dangerous, remained in the car.

Tumpa left Chez Kimberly at approximately five minutes before two, carrying with him the remainder of his drink, as well as the gift he had come to pick up--a bottle of champagne. Upon entering the car, he put the champagne on the floor in front of the back seat, placed the drink on the dashboard, and began driving. As the car turned onto Liberty Avenue, the drink fell, spilling onto the floor and Bielevicz. Shortly thereafter, Tumpa noticed flashing lights in his rear-view mirror and pulled the car to the side of the road.

Officers Beck and Dubinon, who claim to have stopped the vehicle for reckless driving, put Tumpa in the back of their police van and instructed Bielevicz, who had not consumed any alcohol, to follow them to the Public Safety Building in Tumpa's car. ¹ After arriving at the Public Safety Building, Bielevicz waited for approximately one and one-half hours while Tumpa was subjected to an alcohol breathalyzer test. Beck and Dubinon insisted upon testing Tumpa notwithstanding the fact that he was not loud or boisterous--indeed he was cooperative--and did not exhibit any signs of inebriation. Dubinon then informed Tumpa that he had passed the breathalyzer test with a reading of .08. Tumpa was therefore free to leave, but he was strongly cautioned by Officer Beck that he was not to drive. Further, Beck, referring to Bielevicz, stated that if "that bitch" drives, she would be arrested also. Bielevicz, who had consumed no alcoholic beverages, also showed no signs of intoxication. Beck suggested that Tumpa and Bielevicz get something to eat or call a cab.

Tumpa, apprehensive about leaving his new car in downtown Pittsburgh at that hour, waited until Beck was out of earshot, and confided in Officer Dubinon that he wished neither to call a cab nor to walk the half-mile to the nearest restaurant while carrying significant amounts of cash. More importantly, he saw no reason to do so because both he and Bielevicz were competent to drive. Dubinon suggested that the plaintiffs "wait until we go around the block and go ahead and leave." Tumpa thanked Dubinon, waited until the officers left the building, and walked to the car, where Bielevicz got behind the wheel.

After warming up the engine for a few minutes and watching the police van pull out, Bielevicz began driving. At the first intersection, she made a left-hand turn, and was immediately pulled over, again by Dubinon and Beck. Dubinon opened the passenger door of the car where Tumpa was sitting and said "You really f----d up now." Tumpa and Bielevicz were both frisked and placed in the back of the police van. Dubinon drove Tumpa's car back to the Public Safety Building.

Upon arriving at the Public Safety Building, Tumpa and Bielevicz were led separately, by Dubinon and Beck respectively, to jail cells. Tumpa asked to make a telephone call, but was told he could make one "when he got out." As Beck locked Bielevicz's cell, she said to her "Merry Christmas, Honey." Approximately three hours later, the turnkeys released Tumpa and Bielevicz from their cells. Neither before nor after their detention were Tumpa or Bielevicz issued a citation or provided an opportunity to contest their arrest before a judicial authority.

Tumpa and Bielevicz later learned that the alleged basis for their incarceration was public intoxication. According to William Moore, the former Pittsburgh Chief of Police and a longtime veteran of the police force, it was common knowledge among officers that the charge of public drunkenness could be used to remove from the streets without probable cause a person who was not intoxicated. In particular, Moore stated that the charge was often used to defuse crowd control problems, to detain people found in areas of notorious drug use, to arrest women suspected of prostitution, and to punish anyone who defiantly quarreled with an officer. In these situations, suspects were arrested and incarcerated, notwithstanding that typically there was not probable cause to believe they were intoxicated.

Moore also described the procedure whereby the police routinely arrested people for public intoxication with no intention of prosecuting them. The decision whether to arrest and incarcerate an individual using the charge of public drunkenness was left entirely to the discretion of the arresting officer. If so incarcerated, the person--pursuant to an unwritten policy known as the "four-hour rule"--remained in lockup in the Public Safety Building for a period not exceeding four hours. Upon the termination of this period, the individual was released by the turnkey without a citation or a hearing. At no point in this process was the individual's intoxication confirmed by another officer or a judicial authority; rather, the arresting officer's judgment remained insulated from all external checks. In spite of Moore's knowledge of the details of this suspect procedure, he did nothing to correct it.

Not only were no safeguards implemented to prevent illegal arrests for public drunkenness, but the City also followed an express policy of not investigating--or even accepting--complaints regarding alleged pretextual arrests under the charge. All citizen complaints of police misconduct in Pittsburgh, regardless of where they originated, were referred to the Office of Professional...