Rappa v. Hollins

• Decision Date: 30 December 1997
• Docket Number: No. Civ.A. 97-92 MMS.,Civ.A. 97-92 MMS.
• Citation: 991 F.Supp. 367
• Parties: Daniel D. RAPPA, Sr., Plaintiff, v. Penrose HOLLINS and Robert Weiner, individually, Defendants.
• Court: U.S. District Court — District of Delaware

991 F.Supp. 367

Daniel D. RAPPA, Sr., Plaintiff, v. Penrose HOLLINS and Robert Weiner, individually, Defendants.

No. Civ.A. 97-92 MMS.

United States District Court, D. Delaware.

December 30, 1997.

Thomas S. Neuberger of Thomas S. Neuberger, P.A., Wilmington, DE, for plaintiff.

Kevin J. Connors of Marshall, Dennehey, Warner, Coleman & Goggin, Wilmington, DE, for defendants.

OPINION

MURRAY M. SCHWARTZ, Senior District Judge.

Introduction

On February 28, 1997, plaintiff Daniel D. Rappa, Sr., filed a § 1983 civil rights claim against defendants Penrose Hollins and Robert Weiner in their individual capacity. Plaintiff alleges that defendants, members of the New Castle County Council, violated plaintiffs civil rights by making defamatory remarks¹ against him in retaliation for exercising his First Amendment² rights to free speech and petition. Defendants filed a motion to dismiss on May 15, 1997, based on absolute immunity, qualified immunity, and plaintiff's failure to state a claim upon which relief can be granted under Fed.R.Civ.P. 12(b)(6). This Court has jurisdiction pursuant to 28 U.S.C. § 1331, federal question jurisdiction, and 28 U.S.C. § 1343(a)(3), civil rights jurisdiction. For the reasons which follow, defendants' motion will be granted based on qualified immunity.

Statement of Facts

Plaintiff was a candidate in the September, 1990, Democratic primary for the United States Congressional seat for the State of Delaware, and expects to run for statewide office in future elections. D.I. 1 at 2, ¶ 4. At the time of this incident, defendants were either incumbent or newly elected New Castle County Councilmen. Id. at 2, ¶ 5.

In March of 1994, as a result of a lawsuit brought by plaintiff, the District Court for the District of Delaware invalidated the New Castle County election sign code and the State of Delaware sign code to the extent they unlawfully infringed upon political speech. D.I. 1 at 2, ¶ 6. As a result of this ruling and a lack of subsequent action on the part of relevant officials, election signs remained unregulated. Id. at 3, ¶¶ 7-8. In response to this problem, plaintiff "spoke[] with and petitioned both state and county government elected officials to enact reasonable ... restrictions for election signs during political campaigns." Id. at 3, ¶ 11. As part of this ongoing effort, plaintiff spoke with both defendants at the New Castle County Office Building on November 12, 1996. Id. at 4, ¶ 13. Defendants are opposed to such legislation. Id. at 4, ¶ 14.

Subsequently, at the December 30, 1996, executive committee meeting of the New Castle County Council, which was open to the public and to the press, defendant Weiner said:

`The first time I walked in here, some guy I never met before named Danny Rappa came up and stuck his finger in my face and said I heard you said bad things about me — I'm going to come after you. And he did the same thing to Penrose Hollins.' Defendant Hollins then said, `Bob just mentioned one that happened to me, I hadn't forgot about it but I wasn't going to mention it when someone points at me and says, if it was legal, you're a dead man.'

D.I. 1 at 4-5, ¶ 16. Plaintiff denies making such threats. D.I. 1 at 5, ¶ 17. Shortly after the meeting, the Wilmington News Journal reported on the incident as follows: "Weiner and Hollins said that Daniel D. Rappa, a Wilmington plumbing contractor and a former Democratic Party leader, made some threatening remarks to them while attending a meeting." Id. at 5-6, ¶ 19. The statements caused plaintiff to suffer damages "including but not limited to injury to his reputation." Id. at 5, ¶ 18.

Standard of Review for Qualified Immunity³

In Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), the Supreme Court held that "government officials performing discretionary functions⁴ 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." Id. at 818.⁵ This standard balances the need to compensate individuals for the deprivation of their rights and the "need to protect officials who are required to exercise their discretion and the related public interest in encouraging the vigorous exercise of official authority." Id. at 807.⁶ As a result, the standard is supposed to allow officials "reasonably [to] anticipate when their conduct may give rise to liability...." Anderson v. Creighton, 483 U.S. 635, 646, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987) (quoting Davis v. Scherer, 468 U.S. 183, 195, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984).) Officials are not, however, "expected to anticipate subsequent legal developments." Harlow, 457 U.S. at 818.

Since Harlow, the Supreme Court has clarified the concept of a "clearly established" right. In Anderson, the Court commented that the

contours of the [constitutional] right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of preexisting law the unlawfulness must be apparent.

483 U.S. at 640.⁷ If officials of "reasonable competence could disagree on th[e] issue, immunity should be recognized." Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986). The Third Circuit Court of Appeals has explained the "clearly established" language requires "some but not precise factual correspondence and demand[s] officials apply general, well developed legal principles...." Bennis v. Gable, 823 F.2d 723, 733 (1987) (quoting People of Three Mile Island v. Nuclear Reg. Comm'rs, 747 F.2d 139, 144-145 (3d Cir.1984)). See also Stoneking v. Bradford Area School District, 882 F.2d 720, 726 (3d Cir.1989) (stating that the court inquires into "the general legal principles governing analogous factual situations, if any, and a subsequent determination whether the official should have related this established law to the instant situation") (quoting Hicks v. Feeney, 770 F.2d 375, 380 (3d Cir. 1985)).

Despite the factual correspondence usually necessary to clearly establish the contours of a right, the Supreme Court has stated that a "general constitutional rule already identified in the decisional law" may give fair warning to an official if the rule "appl[ies] with obvious clarity to the specific conduct in question," even though the specific issue has not previously been addressed. U.S. v. Lanier, 520 U.S. 259, 117 S.Ct. 1219, 1227, 137 L.Ed.2d 432 (1997). Nevertheless, the Lanier Court did not undermine or question the Anderson Court's warning against describing the established or asserted constitutional right in overly general terms, thereby automatically converting any action which violates a constitutional right into an action which violates a clearly established right. See Anderson, 483 U.S. at 639.⁸ See also Penthouse International, Ltd. v. Meese, 939 F.2d 1011, 1016-1017 (D.C.Cir.1991) (discussing Anderson's warning).

The Third Circuit Court of Appeals has decided the law may be clearly established even if the court has not ruled on the issue and if there is some disagreement among the circuits, as long as "no gaping divide has emerged in the jurisprudence" which would lead defendants "reasonably [to] expect" the courts in this circuit to rule other than one way. Bieregu v. Reno, 59 F.3d 1445, 1459 (3d Cir.1995). This is especially true if Supreme Court cases and relevant district court cases strongly indicate the asserted right is constitutionally protected. See id. at 1458-1459. See also Pro v. Donatucci, 81 F.3d 1283, 1292 (3d Cir.1996) (applying Bieregu and holding the law was clearly established despite a circuit split).

Whether the law was clearly established at the time of the incident is purely a legal question. See Sharrar v. Dennis Felsing, 128 F.3d 810 (3d Cir.1997); Rogers v. Powell, 120 F.3d 446, 455 (3d Cir. 1997) (quoting Acierno v. Cloutier, 40 F.3d 597, 609 (3d Cir.1994)). In addition, it is a question of law whether the officials acted reasonably given established precedent. See Sharrar, at 815. However, if the conclusion as to whether a reasonable officer could have believed the conduct was lawful requires resolution of a genuine factual dispute over the nature of the conduct, the resolution of the dispute is left for the jury. See Sharrar, at 815; Karnes v. Skrutski, 62 F.3d 485, 491-492 (3d Cir.1995). See also Johnson v. Jones, 515 U.S. 304, 312-313, 319-320, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995) (holding that although the question of whether a given set of undisputed facts violates clearly established law is a question for the court and is appealable, the question of whether a genuine dispute exists as to facts affecting that determination is not appealable). It is the plaintiff's burden to establish the existence of a clearly established constitutional right. See Davis, 468 U.S. at 197.

Discussion on Qualified Immunity⁹

A. Discretionary Function

As a threshold issue, the Court must ascertain whether defendants were engaging in a discretionary function when the alleged constitutional violation occurred. Although neither party addressed this issue in the initial pleadings or briefs, at oral argument the parties disagreed generally over whether the allegedly defamatory statements were made during the performance of a discretionary function. Looking to the complaint, the only pleading relevant to this determination states:

At an executive committee meeting of the New Castle County Council, which was open to the public and to the press, held on December 30, 1996, suddenly and in the midst of a conversation on other unrelated matters defendant Weiner said, `The first time I walked in here, some guy I never met before named Danny Rappa came up and stuck his finger in my face...