Thumbs Up for Qualified Immunity

Federal - Civil Rights

Key Points:

  • Encouraging police to seek legal advice serves such a salutary purpose as to constitute a thumb on the scale in favor of qualified immunity.
  • There is no clearly established right to videotape police officers during traffic stops.


In Kelly v. Borough of Carlisle, 622 F.3d 248 (3d Cir. 2010), a routine traffic stop set the stage for the United States Court of Appeals for the Third Circuit to address matters of first impression concerning qualified immunity for police officers and the right to videotape police officers.

Brian Kelly was a passenger in his friend's pickup truck while the two cruised around Carlisle, Pennsylvania. Consistent with his usual practice, Mr. Kelly brought along a small, hand-held video camera, which he used to randomly record people. Officer Rodgers from the Carlisle Police Department stopped the truck for speeding and for violating a bumper height restriction. During the traffic stop, Mr. Kelly placed his video camera on his lap and started recording Officer Rodgers. Near the end of the traffic stop, Officer Rodgers informed Mr. Kelly and the driver that he was recording the traffic stop consistent with Carlisle Police policy and, at that time, noticed that Mr. Kelly was recording him. Officer Rodgers believed Mr. Kelly's actions violated the Pennsylvania Wiretap Electronic Surveillance Control Act ("Wiretap Act"), 18 Pa. Cons. Stat. §§ 5701-82, and ordered Mr. Kelly to turn over the camera. Officer Rodgers returned to his car and called an Assistant District Attorney to confirm that Mr. Kelly had violated the Wiretap Act. The Assistant District Attorney advised Officer Rodgers that the circumstances, as described by Rodgers over the telephone, supported an arrest for violating the Act. Officer Rodgers arrested Mr. Kelly, and Mr. Kelly spent 27 hours in Cumberland County Prison until he made bail. Several weeks later, the charges were dropped, despite the Cumberland County District Attorney's Office's memorandum opinion indicating Officer Rodgers had probable cause to arrest Mr. Kelly.

Mr. Kelly sued Officer Rodgers and the Borough of Carlisle for Section 1983 civil rights claims alleging violations of his First and Fourth Amendment Rights. Officer Rodgers asserted a qualified immunity defense, and the District Court granted him summary judgment on all issues. Mr. Kelly appealed the trial court's decision in favor of Officer Rodgers.

On appeal, the Third Circuit reviewed the largely well established doctrine of qualified immunity. The Supreme Court in Harlow v. Fitzgerald, 457 U.S. 800 (1982), explained that the doctrine of qualified immunity protects government officials "from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights which a reasonable person would have known." Accordingly, the inquiry focuses on: (1) whether the facts alleged by the plaintiff show the violation of a constitutional right and (2) whether the law or right was clearly established at the time of the violation. Saucier v. Katz, 533 U.S. 194 (2001). The Supreme Court recognizes that police officers will at times reasonably, but mistakenly, conclude that probable cause exists for an arrest and consequently should not be held personally liable. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986).

The Third Circuit initially addressed Mr. Kelly's Fourth Amendment claim and explained that neither the United States Supreme Court nor the Third Circuit had previously tackled the question of whether a police officer's reliance upon legal advice cloaks the officer with qualified immunity. Ultimately, after reviewing how other Circuits decided similar issues, the court set forth this standard:

Encouraging police to seek legal advice serves such a salutary purpose as to constitute a thumb on the scale in favor of qualified immunity.

Thus, the court opined that a police officer's good faith reliance on a prosecutor's opinion that an arrest is legal entitles a police officer to the presumption of qualified immunity from Fourth Amendment claims premised on the lack of probable cause. However, this presumption may be rebutted by showing, under all the factual and legal circumstances surrounding the arrest, that a reasonable officer would not have relied upon the prosecutor's advice.

The court also addressed Mr. Kelly's claim that Officer Rodgers violated his First Amendment rights by seizing his video camera prior to calling the Assistant District Attorney and during the effectuation of his arrest. The court questioned whether the right to videotape police officers during a traffic stop was clearly established. The court noted that they had not previously addressed the right to videotape police officers. However, after reviewing the landscape of other Circuit and District Court decisions, the Third Circuit determined that the right to videotape police officers during traffic stops was not clearly established at the time of Mr. Kelly's arrest. In turn, Officer Rodgers was entitled to qualified immunity on Mr. Kelly's First Amendment claim.

Mr. Kelly's Fourth Amendment claim still survives. The Third Circuit remanded the Fourth Amendment issue in order for the trial court to perform a thorough analysis of the Wiretap Act and to determine whether or not the facts surrounding Mr. Kelly's arrest support Officer Rodger's position that he acted reasonably in relying on the advice of the Assistant District Attorney.

*Don is a shareholder in our Harrisburg, Pennsylvania, office and can be reached at (717) 651-3504 or Allison, also in our Harrisburg office, is an associate who can be reached at (717) 651-3538 or

Defense Digest, Vol. 17, No. 1, March 2011