Kelly v. Borough of Carlisle

Brian D. Kelly v. The Borough of Carlisle; David J. Rogers, Nos. 12-4020 and 12-4021 (3d Cir. 2013)

TLDR for Kelly v. Borough of Carlisle

• This case explores whether a police officer was entitled to qualified immunity after arresting a passenger, Brian Kelly, who was surreptitiously filming a traffic stop.

• Officer David Rogers seized Kelly’s camera and then arrested him based on erroneous legal advice from an Assistant District Attorney (ADA) regarding Pennsylvania’s Wiretapping and Electronic Surveillance Control Act (“Wiretap Act”).

• The Wiretap Act requires a reasonable expectation of privacy for a violation, which police officers generally do not have during a public traffic stop.

• The Third Circuit Court of Appeals ultimately affirmed that Officer Rogers was entitled to qualified immunity for Kelly’s arrest because he acted in good faith and his reliance on the ADA’s legal advice was objectively reasonable, despite the advice being incorrect and the underlying law being “clearly established”.

• However, Rogers was denied qualified immunity for the initial seizure of Kelly’s camera because he had previously stipulated that this action was an unconstitutional violation.

Summary of Kelly v. Borough of Carlisle

In Brian D. Kelly v. The Borough of Carlisle; David J. Rogers, the Third Circuit Court of Appeals considered a police officer’s entitlement to qualified immunity following the arrest of a citizen who secretly filmed a traffic stop. The incident began when Officer David Rogers pulled over a vehicle for speeding, and Brian Kelly, a passenger, was observed surreptitiously filming the encounter with a small handheld video recorder. Rogers seized Kelly’s camera and then contacted Assistant District Attorney (ADA) John Birbeck for legal advice regarding a potential violation of Pennsylvania’s Wiretapping and Electronic Surveillance Control Act.

Birbeck, after a quick review, incorrectly advised Rogers that he had probable cause to arrest Kelly. This advice was flawed because, under established law, recording a person’s statements does not violate the Wiretap Act unless that person has a reasonable expectation of privacy, which police officers generally do not have during a public traffic stop, particularly when they themselves are (or believe they are) also recording. Based on this advice, Rogers arrested Kelly, who spent 27 hours in jail before the charges were dropped.

Kelly subsequently sued Rogers, alleging violations of his First and Fourth Amendment rights. The case had a complex procedural history, including a prior appeal where the Third Circuit (in Kelly II) vacated an initial grant of summary judgment for Rogers on the Fourth Amendment claim. The court had noted that while the reasonable expectation of privacy under the Wiretap Act was “clearly established,” a police officer relying in good faith on a prosecutor’s legal opinion could be presumptively entitled to qualified immunity if that reliance was objectively reasonable.

On remand, a jury trial was held to determine the factual questions of Rogers’s good faith and reasonableness. The jury found that Rogers reasonably believed Kelly was attempting to secretly record him, that Rogers sincerely sought legal advice from Birbeck, and that he did not deliberately or recklessly omit relevant facts (such as his own attempt to record the stop, which failed due to equipment malfunction).

Based on these findings, the District Court, and subsequently the Third Circuit, concluded that Rogers was entitled to qualified immunity for Kelly’s arrest. The court reasoned that even though the underlying law was “clearly established,” Rogers’s reliance on advice from an experienced prosecutor was objectively reasonable under the circumstances, protecting him from liability for a “reasonable but mistaken judgment”. However, Rogers was denied qualified immunity for the initial seizure of Kelly’s camera because he had previously stipulated that this action was without probable cause and violated Kelly’s constitutional rights.

Arguments Supporting Kelly’s Claim:

• Violation of Clearly Established Law: Kelly argued that it was not objectively reasonable for Officer Rogers to rely on the ADA’s advice because the relevant legal standard—that a reasonable expectation of privacy is a prerequisite for a Wiretap Act violation—was “clearly established” at the time of the arrest. He contended that police officers are presumed to know the basic elements of the laws they enforce.

• Unlawful Seizure of Camera: Kelly also claimed that the initial seizure of his video camera constituted a Fourth Amendment violation. Officer Rogers later stipulated that this seizure was “in error, without probable cause[,] and in violation of Mr. Kelly’s constitutional rights”.

Arguments Against Kelly’s Claim (Presented by Officer Rogers):

• Reasonable Reliance on Legal Advice for Arrest: Rogers’s primary defense for the arrest was that he acted in good faith and reasonably relied on the legal advice of an experienced prosecutor, ADA Birbeck, before making the arrest. This reliance, the court noted, should generally create a “thumb on the scale” in favor of qualified immunity.

• Ambiguity in Law: Despite the law being “clearly established,” Rogers argued that it was “shrouded in some obscurity or ambiguity” that made his incorrect understanding and subsequent reliance on legal advice reasonable. He had “limited familiarity with the Wiretap Act” and his belief, though mistaken, was not “plainly incompetent” given some interpretations of the law.

• Qualified Immunity for Camera Seizure (Rogers’ Cross-Appeal): Rogers challenged the denial of qualified immunity for the camera seizure, arguing that Kelly had waived any specific challenge, that temporary seizure of evidence of a suspected crime is reasonable, or that the seizure was a de minimis constitutional violation. However, these arguments were rejected due to his prior stipulation.

The Level of Scrutiny Applied to Kelly’s Claim

In Kelly v. Borough of Carlisle, the Third Circuit did not apply a traditional level of scrutiny (like strict or intermediate) to the constitutionality of the Wiretap Act itself. Instead, the court focused on the “clearly established” prong of the qualified immunity analysis.

While the court had previously determined that the legal principle regarding the Wiretap Act’s “reasonable expectation of privacy” requirement was “clearly established” at the time of Kelly’s arrest, the core of this appeal centered on a more nuanced aspect of qualified immunity: whether an officer’s conduct, even if it violates clearly established law, can still be objectively reasonable if they acted in good faith reliance on erroneous legal advice from a prosecutor.

The court emphasized that qualified immunity gives officers “breathing room to make reasonable but mistaken judgments, and protects all but the plainly incompetent or those who knowingly violate the law”. Citing Amore v. Novarro, the court held that even when the law is clearly established, an officer may still be entitled to qualified immunity if they act “deliberately and rationally in seeking to determine the then-valid, applicable and enforceable law” before taking action. This meant that the question was not just whether the law was established in the abstract, but whether a “reasonable officer would have known” of the illegality under the specific circumstances, especially when seeking and following legal advice from a prosecutor. The court found that Rogers’s actions fit this narrow category, granting him immunity for the arrest.

Other Related Cases

The Kelly case references several other legal decisions:

• Kelly v. Borough of Carlisle (Kelly I & II): The opinion itself discusses its own previous iterations, referring to earlier District Court and Third Circuit rulings as Kelly I and Kelly II, which established the initial framework for qualified immunity and the “clearly established” nature of the Wiretap Act’s requirements.

• Amore v. Novarro: This Second Circuit case was explicitly relied upon by the Third Circuit in Kelly to support the principle that an officer can be entitled to qualified immunity for good-faith, reasonable reliance on erroneous legal advice, even if the advice leads to a violation of clearly established law.

• ACLU v. Alvarez: The Seventh Circuit in ACLU v. Alvarez referenced Kelly v. Borough of Carlisle as a case that “reached a different conclusion regarding qualified immunity, stating that existing case law wasn’t sufficient to establish a clear First Amendment right to record police officers during a traffic stop”. This highlights that Kelly focused on qualified immunity and the nuances of a specific state wiretap statute in the context of an arrest, rather than broadly affirming or denying a First Amendment right to record police, which was the central issue in ACLU v. Alvarez.

• Glik v. Cunniffe: While not directly cited in the Kelly excerpts provided, Glik v. Cunniffe is mentioned in ACLU v. Alvarez as having ruled that “openly recording police officers in public is protected under the First Amendment”. The ACLU v. Alvarez article distinguishes Kelly from Glik by noting that Kelly dealt with qualified immunity rather than the constitutionality of the law itself, and that Glik addressed the First Amendment right directly. The “surreptitious” nature of Kelly’s recording further differentiates it from the “open” recording in Glik.

Key Takeaway:

Kelly v. Borough of Carlisle provides crucial guidance on the application of qualified immunity to police officers who rely on legal advice. It clarifies that an officer can be shielded from liability for an arrest, even if it violates a “clearly established” constitutional right, if their reliance on a prosecutor’s erroneous legal advice was objectively reasonable and made in good faith. This outcome encourages law enforcement to seek legal counsel in ambiguous situations, acknowledging that officers “may not have access to a computer, the internet, Westlaw, or enough time to research the law” during an active stop. However, the case also underscores that qualified immunity is not absolute; it will not protect an officer for actions that have already been stipulated as constitutional violations, such as the initial unlawful seizure of Kelly’s camera.

Think of it this way: the law is like a complex instruction manual for a highly specialized machine. An officer might be expected to know the basic operations (clearly established law). But if a specific operation is unclear, and the officer consults a recognized expert (the prosecutor) who gives incorrect but plausible instructions, and the officer follows those instructions in good faith, they might be excused from personal liability for any resulting malfunction. The “machine” (the law) was still violated, but the officer’s reasonable, good-faith effort to comply protects them.