Egolf v. Witmer

Citation421 F.Supp.2d 858
Decision Date09 March 2006
Docket NumberNo. Civ.A. 04-5695.,Civ.A. 04-5695.
PartiesTristan P. EGOLF, et al., Plaintiffs, v. Christopher WITMER, et al., Defendants.
CourtU.S. District Court — Eastern District of Pennsylvania

J. Dwight Yoder, Gibbel Kraybill & Hess, Lancaster, PA, Paula Kay Knidsen, Harrisburg, PA, for Plaintiffs.

Robert G. Hanna, Lavery, Faherty, Young & Patterson, P.C., Harrisburg, PA, Susan J. Forney, Office of Attorney General, Harrisburg, PA, for Defendants.


DIAMOND, District Judge.

In July, 2004, Plaintiffs—a small group of young men—protested against President Bush's visit to Lancaster County, Pennsylvania by stripping down to thong underwear and climbing onto each other's backs. Defendants—who are Pennsylvania State Troopers—arrested Plaintiffs and removed them from the public thoroughfare where they staged their protest. Plaintiffs now charge that Defendants violated their First and Fourth Amendment rights. I conclude that the Troopers did not violate the Constitution and, in any event, are entitled to qualified immunity. Accordingly, I grant the Troopers' Motion for Summary Judgment and deny Plaintiffs' Motion for Partial Summary Judgment.


Upon motion of any party, summary judgment is appropriate "if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." FED. R. Civ. P. 56(c). The moving party must initially show the absence of any genuine issues of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). An issue is material only if it could affect the result of the suit under governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In deciding whether to grant summary judgment, I "must view the facts in the light most favorable to the non-moving party" and take every reasonable inference in that party's favor. Hugh v. Butler County Family YMCA, 418 F.3d 265 (3d Cir.2005). If I then determine that the moving party is entitled to judgment as a matter of law, summary judgment is appropriate. See Celotex, 477 U.S. at 322, 106 S.Ct. 2548; Wisniewski v. Johns-Manville Corp., 812 F.2d 81, 83 (3d Cir. 1987).

Because a motion for summary judgment looks beyond the pleadings, factual specificity is required of the party opposing the motion. See Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548. To prevail, the opposing party may not simply restate the allegations made in its pleadings or merely rely upon "self-serving conclusions, unsupported by specific facts in the record." Id.

When qualified immunity is raised as a defense, its availability is "an objective question to be decided by the court as a matter of law." Carswell v. Borough of Homestead, 381 F.3d 235, 242 (3d Cir. 2004). Only "disputed historical facts material to the qualified immunity question" must go to the jury. Id. Thus, the standard I must apply is whether, "[t]aken in the light most favorable to the party asserting the injury, [ ]the facts alleged show the officer[s'] conduct violated a constitutional right." Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001).


On July 9, 2004, President Bush was scheduled to make a campaign visit to East Lampeter Township in Lancaster County. Pl. Mem. in Supp. of Part. S.J. at 4-5. Outside the private, invitation-only event, Township Police provided security and crowd control and several Pennsylvania State Police Troopers assisted them. Pl. S.J. Supp. Record at SJ-96 (Hertzog Dep.); SJ-113 (Gerow Dep.); SJ-138-40 (Ely Dep.).

During the hours before the President arrived, a crowd gathered in an open area across nearby Route 340. Pl. S.J. Record at SJ-13-14, SJ-56 (Egolf Dep.); SJ-114-15 (Gerow Dep.). The gathering crowd included families with young children as well as people carrying signs protesting against the Bush Administration, against the war in Iraq, and against the Abu Ghraib prison. Id. at SJ-71 (Willard Dep.); SJ-64 (Keely Dep.). Bush Administration supporters were also present. Id. at SJ-71 (Willard Dep.), SJ-89 (Kohler Dep.).

With several others, the original PlaintiffsTristan P. Egolf, Adam Clayton Willard, Jonathan A. Kohler, David J.C. O'Bryant, and Benjamin D. Keely—selected a spot near Route 340 to stage a protest during the President's arrival. Pl. S.J. Record at SJ-64 (Egolf Dep.); SJ-70-71 (Willard Dep.). Standing at the front of the crowd, Plaintiffs (along with two others) stripped to thong underwear by removing their shirts and pants. Id. at S2-3 (photos); SJ-54 (Egolf Dep.); SJ-88 (Kohler Dep.); SJ-118 (Gerow Dep.). Five men got on their hands and knees on the ground; two men climbed onto the backs of the five and also got on their hands and knees, baring their buttocks toward the road. Docs in Supp. of Def. Mot. at 28 (Jones Dep. at 35). Plaintiffs intended to form a structure that resembled a photograph taken at the Abu Ghraib prison in Iraq: three individuals perched on the backs of four individuals. Plaintiffs concede, however, that "[i]n their haste," they formed their "pyramid" incorrectly. Pl. Mem. at 7; Pl. S.J. Record at SJ-62-63 (Keely Dep.); SJ-77 (O'Bryant Dep.).

Plaintiffs coordinated their "pyramid" with Kara Dimitris (not a party here), arranging for her to stand behind the pyramid with a sign reading "Great War, George." Id. at SJ-57 (Egolf Dep.). In addition, Plaintiffs arranged for Dan Rhineer (another non-party), to videotape the protest and to explain Plaintiffs' actions to bystanders. Id. at SJ-228 (Rhineer Decl.). Through their behavior, Plaintiffs intended to communicate a message of protest against President Bush and the war in Iraq. Id. at SJ-55 (Egolf Dep.); SJ-86 (Kohler Dep.). The President did not pass the protest area until after the protest had concluded. Id. at SJ-130 (Redden Dep.); Dec. 16, 2005, Tr. at 23.

In planning their protest, Plaintiffs wanted to recreate nudity "as closely as possible." Pl. Mem. at 20. In fact, as Plaintiffs formed their pyramid, they looked naked from a distance except for the tops of their thongs. See Jones Dep. at 35. Moreover, the Rhineer videotape shows that the contours and movement of Plaintiffs' genitals were clearly visible through the flimsy, tight-fitting garments. See Pl. S.J. Record at Ex. 1. Indeed, Plaintiffs acknowledge that one protester's genitals became visible immediately after he was removed from the pyramid. See id.; Dec. 16, 2005 Tr. at 5-6.

When Plaintiffs began their protest, Defendant Trooper Hertzog was standing about twenty feet away. Pl. S.J. Record at SJ-100 (Hertzog Dep.). Defendant Troopers Gerow, Kline, and Adams stood east of Trooper Hertzog along the road. Id. at SJ-100 (Hertzog Dep.); SJ-115 (Gerow Dep.). Approximately one minute after the Plaintiffs stripped and formed the pyramid, Trooper Gerow began pulling the formation apart, and Troopers Kline, Hertzog, and Adams quickly joined her. Pl. Mem. at 9;Pl. S.J. Record at SJ-101-02 (Hertzog Dep.). The Troopers pulled Plaintiffs to the ground, placing them facedown with their hands cuffed behind the back. Pl. S.J. Record at SJ-55 (Egolf Dep.), SJ-65 (Keely Dep.); SJ-72 (Willard Dep.); SJ-90 (Kohler Dep.); SJ-118 (Gerow Dep.). Plaintiffs do not complain that the Troopers used unnecessary force in making the arrest. Id. at SJ-57 (Egolf Dep.).

The Troopers did not arrest one protester who "quickly dressed." Pl. Mem. at 11. Although the crowd included many other protesters who remained clothed—including Ms. Dimitris and Mr. Rhineer—only the five Plaintiffs (and a sixth member of the pyramid, who is not a Plaintiff here) were arrested. Id. at SJ-82; Jones Dep. at 38; Pl. Mem. at 11.

Having taken Plaintiffs into custody, the Troopers moved them out of view. Pl. S.J. Record at SJ-105 (Hertzog Dep.); SJ-118 (Gerow Dep.). The Township Police transported Plaintiffs to the Township Police station where they were held for approximately two hours. Pl. S.J. Record at S81 (O'Bryant Dep.); SJ-159-60 (Adams Dep.); SJ-144 (Ely Dep.). The Troopers returned to their earlier positions monitoring the crowd. Id. at SJ-118 (Gerow Dep.); SJ-159-60 (Adams Dep.).

Initially, Township Police cited Plaintiffs for disorderly conduct. Pl. S.J. Record at SJ-144-45 (Ely Dep.). The Lancaster County District Attorney withdrew these charges and declined to prosecute Plaintiffs. Id. at SJ-20-21.

On December 9, 2004, Plaintiffs instituted this suit against Troopers Gerow, Hertzog, and Kline as well as six named Township Police Officers, five unknown state actors (alleged to be municipal or state law enforcement officers or others), and five unknown federal actors (alleged to be United States Secret Service Agents or members of the "White House advance team"). Pl. Compl. (Doc. No. 1) at 2-3. Plaintiffs asserted claims under 42 U.S.C. § 1983 and the First, Fourth, and Fourteenth Amendments, alleging that Defendants acted at the direction of a Secret Service or White House employee to interrupt the protest. Id. at 5. Plaintiffs filed an Amended Complaint on February 17, 2005, dismissing three of the Township Police Officers. Pl. Am. Compl. (Doc. No. 2) at 2-3.

I granted Plaintiffs leave to file a Second Amended Complaint on April 25, 2005. Order of Apr. 25, 2005 (Doc. No. 16). Plaintiffs withdrew all claims and allegations respecting unknown federal and state actors. Pl. Second Amended Complaint (Doc. No. 17) at 1-3. Plaintiffs also added Trooper Adams and the Township as defendants. Id. Significantly, with the filing of the Second Amended Complaint, Plaintiffs "do not suggest that the Troopers arrested Plaintiffs for expressing a particular political view (i.e. against President Bush or against the war in Iraq)." Pl. Br. in Opp'n. to Def. Mot. for S.J. at 14, n. 8.

On May 7, 2005, Tristan Egolf died, and on June 16, 2005, Defendants suggested his death on the record. Pl. Mot. to Substitute Party (Doc. No. 24) at 1. Pursuant to Plaintiffs' Motion, on ...

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