2007 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-1-2007

Blaylock v. Philadelphia

Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2785

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Recommended Citation

"Blaylock v. Philadelphia" (2007). 2007 Decisions. Paper 317.

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PRECEDENTIAL

IN THE UNITED STATES COURT 

OF APPEALS

FOR THE THIRD CIRCUIT

 

NO. 06-2785

 

 ANDRE BLAYLOCK

v.

THE CITY OF PHILADELPHIA; REYNOLDS,

PHILADELPHIA POLICE OFFICER, 

BADGE # 4268; WALKER, PHILADELPHIA

POLICE OFFICER, BADGE # 3730; CUJDIK,

PHILADELPHIA POLICE OFFICER,

BADGE # 1574; LICIARDELLO, PHILADELPHIA

POLICE OFFICER, BADGE # 4383;

MALKOWSKI, PHILADELPHIA POLICE SERGEANT,

BADGE # 8832; PHILADELPHIA POLICE OFFICER

DOES 1-5; BADGE NUMBERS UNKNOWN,

INDIVIDUALLY AND IN THEIR CAPACITY AS

POLICE OFFICERS

Brian Reynolds, Thomas Liciardello, Jeffrey 

Walker, Louis Cujdik and Chester Malkowski,

Appellants
2

 

On Appeal From the United States 

District Court

For the Eastern District of Pennsylvania 

(D.C. Civil Action No. 05-cv-01649)

District Judge: Hon. Norma L. Shapiro

 

Argued June 14, 2007

BEFORE: McKEE, STAPLETON and

NYGAARD, Circuit Judges

(Opinion Filed: October 1, 2007)

 

Richard G. Tuttle (Argued)

Archer & Greiner

One South Broad Street, Suite 1620

Philadelphia, PA 19107

 Attorney for Appellants

Michael Pileggi (Argued)

437 Chestnut Street, Suite 905

The Lafayette Building

Philadelphia, PA 19106

 and

Jane L. Istvan
3

City of Philadelphia Law Department

1515 Arch Street

One Parkway

Philadelphia, PA 19102

 Attorneys for Appellees

 

OPINION OF THE COURT

 

STAPLETON, Circuit Judge

This interlocutory appeal arises out of a case in which

Andre Blaylock sued five officers of the Philadelphia Police

Department under 42 U.S.C. § 1983, alleging false arrest,

excessive force, and malicious prosecution. At the close of

discovery, the officers moved for summary judgment, arguing,

inter alia, that they were entitled to qualified immunity. The

District Court denied that motion, and the officers now appeal.

We lack the benefit of the District Court’s views as to

what facts are subject to genuine dispute with respect to the

claims of excessive force and malicious prosecution, and we

will therefore vacate the District Court’s order denying

summary judgment on those claims and remand pursuant to the

supervisory rule we announced in Forbes v. Lower Merion

Twp., 313 F.3d 144 (3d Cir. 2002). We will dismiss the portion

of the officers’ appeal relating to the false arrest claim for want
 1

All three addresses are within a one-block area.

4

of jurisdiction under Johnson v. Jones, 515 U.S. 304 (1995). 

I

The parties to this case agree that on October 22, 2003,

defendant police officers Brian Reynolds, Jeffrey Walker, and

Thomas Liciardello arrested Andre Blaylock while he was

sitting on the steps of 522 North 38th Street in Philadelphia. He

was held on various drug charges until he was released on

February 2, 2005, and the charges against him were dropped.

The parties dispute how his arrest and incarceration came about.

A

According to Andre Blaylock, on October 7, 2003,

Reynolds received a tip from an informant to the effect that

Dana and Omar Blaylock (relatives of Andre) were selling drugs

near the 500 block of North 38th Street in Philadelphia, and

were storing drugs at 522 North 38th Street and at two other

addresses in the same area.1

 After receiving the informant’s tip,

Reynolds performed a “record check” on Omar and Dana, which

connected them to the latter two addresses and revealed that

both had several prior arrests. Reynolds shared that information

with Walker. The parties agree that Omar was incarcerated

during all times relevant to this case. Walker and Officer Louis

Cudjik set up surveillance that afternoon and observed Dana and

another black male participate in drug transactions at 522 North

38th Street. That same day, Cudjik met with a confidential

informant and arranged a controlled narcotics purchase, in
5

which the informant gave prerecorded buy money to Dana in

exchange for two plastic bags of crack cocaine provided by

Dana’s accomplice.

On October 21, 2003, Walker and Cudjik arranged for

another controlled purchase at the same location, and observed

Dana and his accomplice performing additional drug

transactions. Walker and Cudjik set up another controlled buy

that afternoon. After obtaining police photographs of Dana and

Omar Blaylock to confirm their identities as the men he

observed selling drugs, Walker filled out an affidavit of

probable cause, identifying Dana and Omar as the people he had

observed, and obtained a search warrant for 522 North 38th

Street and for the other two addresses the informant identified

in the initial tip.

On October 22, 2003, Andre Blaylock was sitting on the

steps of 522 North 38th Street, and Officers Reynolds, Walker,

and Liciardello arrested him. According to Andre, the officers

handcuffed him, threw him on the ground, and beat him, despite

the fact that he did not resist, possessed no contraband, and was

not the person the police had observed selling drugs with Dana.

After complaining repeatedly of his injuries, Andre was taken to

the hospital. After the arrest, the officers filled out an

Investigation Report, which is nearly identical to the affidavit of

probable cause, but substitutes Andre’s name for Omar’s

throughout the description of what the officers observed prior to

arresting Andre.

B

The officers largely agree with Andre’s allegations, but
6

with a few important exceptions. First, according to them,

Andre was the person they observed selling drugs with Dana.

The officers believed that that person was Omar because of the

informant’s tip and because Andre resembled the police

photograph of Omar. Although Officer Reynolds’s “record

check” showed that Omar was incarcerated at the time, he insists

that he believed that the record check had given him erroneous

information.

Second, the officers dispute Andre’s allegation that they

used excessive force in arresting him. According to them, they

ordered Andre to lie on the ground while they applied handcuffs,

Andre complied, and no significant force was used.

Finally, although Andre denies that he possessed any

contraband or that the officers confiscated any contraband from

him, the officers assert that when Andre was in detention, they

searched him and seized crack cocaine from his waistband, and

that the charges against him were dismissed only because the

crack was suppressed.

C

At the close of discovery, the officers moved for

summary judgment on all of Andre’s claims on the basis of

qualified immunity. The District Court heard argument on the

motion and denied it on May 18, 2006. The officers filed a

notice of appeal the following day and, on June 6, the District

Court filed a memorandum in support of its order, explaining its

denial of qualified immunity on the false arrest claim. Blaylock

v. Reynolds, No. 05-1649, 2006 WL 1582308 (E.D. Pa. June 6,
 2

For certain classes of cases, Congress has authorized

interlocutory or “immediate” appeals through other statutory

provisions. See Johnson, 515 U.S. at 309-10 (citing 28 U.S.C.

§§ 1292, 1651, 2072; Fed. R. Civ. P. 54(b)). None of those

provisions are applicable here, however.

7

2006).

II

Our jurisdiction to hear this appeal depends on whether

we may treat the District Court’s order as a “final decision of the

district court[]” within the meaning of 28 U.S.C. § 1291. Under

the collateral order doctrine, an interlocutory order of a district

court may be treated as a “final decision” if it: “(1) conclusively

determine[s] the disputed question, (2) resolve[s] an important

issue completely separate from the merits of the action, and (3)

[is] effectively unreviewable on appeal from a final judgment.”

Johnson v. Jones, 515 U.S. 304, 310 (1995) (quoting Puerto

Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S.

139, 144 (1993) (quoting Coopers & Lybrand v. Livesay, 437

U.S. 463, 468 (1978))); see also Mitchell v. Forsyth, 472 U.S.

511, 526-28 (1985) (same).2

A district court’s order denying a motion for summary

judgment on qualified immunity grounds generally meets the

first and third criteria, because qualified immunity “is an

immunity from suit rather than a mere defense to liability,” and

is therefore “effectively lost if a case is permitted to go to trial.”

Saucier v. Katz, 533 U.S. 194, 200-01 (2001); Mitchell, 472

U.S. at 526-27 (same). The more difficult question is whether
8

and to what extent the appealed order resolves an important

issue “completely separate from the merits of the action.”

In an interlocutory appeal of this type, we lack

jurisdiction to review questions of “evidence sufficiency.”

Johnson, 515 U.S. at 313. That is, if a district court determines

“that there is sufficient record evidence to support a set of facts

under which there would be no immunity,” we must accept that

set of facts on interlocutory review. Schieber v. City of Phila.,

320 F.3d 409, 415 (3d Cir. 2003) (citing Johnson); see also

Forbes v. Twp. of Lower Merion, 313 F.3d 144, 147-48 (3d Cir.

2002) (“When a defendant argues that a trial judge erred in

denying a qualified-immunity summary-judgment motion

because the judge was mistaken as to the facts that are subject

to genuine dispute, the defendant's argument cannot be

entertained under the collateral-order doctrine but must instead

await an appeal at the conclusion of the case.”). Once we accept

the set of facts that the District Court found to be sufficiently

supported, however, we may review the District Court’s

conclusion that the defendants would not be immune from

liability if those facts were proved at trial. See Behrens v.

Pelletier, 516 U.S. 299, 313 (1996) (“Johnson permits petitioner

to claim on appeal that all of the conduct which the District

Court deemed sufficiently supported for purposes of summary

judgment met the [qualified immunity] standard of ‘objective

reasonableness.’”); Rivas v. City of Passaic, 365 F.3d 181, 192

(3d Cir. 2004) (“[I]f a defendant in a constitutional tort case

moves for summary judgment based on qualified immunity and

the district court denies the motion, we lack jurisdiction to

consider whether the district court correctly identified the set of

facts that the summary judgment record is sufficient to prove;
 3

In Behrens, the Supreme Court explained that qualified

immunity “is a right to immunity from certain claims, not from

litigation in general,” and that “when immunity with respect to

those claims has been finally denied, appeal must be available

and cannot be foreclosed by the mere addition of other claims to

the suit.” 516 U.S. at 312 (original emphasis). We therefore

assess our jurisdiction to hear this appeal on a claim-by-claim

basis.

9

but we possess jurisdiction to review whether the set of facts

identified by the district court is sufficient to establish a

violation of a clearly established constitutional right.”) (quoting

Ziccardi v. City of Philadelphia, 288 F.2d 57, 61 (3d Cir.

2002)). 

Thus, for each of Andre Blaylock’s claims,3

 our

jurisdiction to review the District Court’s order denying

summary judgment depends on whether the defendants’ appeal

raises pure questions of law or whether it challenges the District

Court’s determination of which facts were sufficiently supported

by evidence.

III

In Johnson, the Supreme Court recognized that it is often

a difficult endeavor for a court of appeals to “try to separate an

appealed order’s reviewable determination (that a given set of

facts violates clearly established law) from its unreviewable

determination (that an issue of fact is ‘genuine’).” 515 U.S. at

319. The Court suggested that district courts should assist the

courts of appeals by stating the facts that they assume when they
10

deny summary judgment, and noted that when the district courts

do not do so, “a court of appeals may have to undertake a

cumbersome review of the record to determine what facts the

district court, in the light most favorable to the nonmoving

party, likely assumed.” Id. In Forbes, we made a supervisory

rule to enlist the assistance of the district courts:

We . . . announce a supervisory rule to be

followed in all subsequent cases in which a

summary judgment motion based on qualified

immunity is denied on the ground that material

facts are in dispute. So that we can carry out our

review without exceeding the limits of our

jurisdiction under Johnson v. Jones . . . we will

henceforth require the District Courts to specify

those material facts that are and are not subject to

genuine dispute and explain their materiality.

313 F.3d at 146. When presented with an interlocutory appeal

in which the district court has not followed that directive, we

have remanded for it to do so. See, e.g., Hamilton v. Leavy, 322

F.3d 776, 785-86 (3d Cir. 2003) (applying the Forbes rule in the

context of absolute immunity and remanding); Estate of Smith

v. Marasco, 318 F.3d 497, 511 (3d Cir. 2003) (remanding for

additional findings on the qualified immunity issue and for more

specific findings on the actions of the individual defendants). 

In this case, the District Court did not discuss the

excessive force or malicious prosecution claims in its

memorandum opinion because it apparently did not understand

the defendants to have asserted a qualified immunity defense
 4

As the District Court understood Blaylock’s false arrest

claim, it was based on two separate but overlapping theories: (1)

that Officer Walker knowingly made false statements in the

affidavit of probable cause, and (2) that Blaylock was simply

arrested without probable cause. Blaylock, 2006 WL 1582308

11

with respect to those claims. Blaylock, 2006 WL 1582308 at *1

(“At the close of discovery, defendants moved for summary

judgment, claiming failure of proof on all claims and qualified

immunity on the false arrest claim.”). On appeal, the officers

insist that they did assert such a defense, and our review of their

motion and memorandum of law filed with the District Court

persuades us that they are correct. Although the officers focused

most of their briefing on the false arrest claim, they also argued

that they were entitled to qualified immunity on the excessive

force and malicious prosecution claims. The transcript of the

motion hearing reflects some discussion of those claims, but we

are unable to discern from the transcript with any certainty what

the District Court’s reasons were for denying the officers’

motion for summary judgment on them. We will therefore

apply the supervisory rule of Forbes, and remand so that the

District Court can address the defendants’ qualified immunity

arguments on Andre’s claims of excessive force and malicious

prosecution and, if it rules against the defendants, “specify those

material facts that are and are not subject to genuine dispute and

explain their materiality.” Forbes, 313 F.3d at 146.

IV

The substance of Andre Blaylock’s false arrest claim is

that the defendants arrested him without probable cause.4

 On
at *5. The District Court rejected the first theory because it

found that any misstatements in the affidavit of probable cause

were not material. As the Court stated, “Plaintiff was not

arrested because his name was improperly included in the

affidavit of probable cause; rather, plaintiff was arrested because

Walker allegedly recognized him as the man he had previously

observed selling drugs with Dana Blaylock.” Id. at *6.

12

that claim, we do have the benefit of the District Court’s

analysis in support of its decision to deny the officers’ motion

for summary judgment and we will therefore address it.

A

The qualified immunity standard is one of “objective

legal reasonableness.” Harlow v. Fitzgerald, 457 U.S. 800, 816-

17, 819 (1982). Although the question of what facts the

arresting officer knows is relevant to the inquiry, his subjective

motivation for making the arrest is not. Devenpeck v. Alford,

543 U.S. 146, 153 (2004); Anderson v. Creighton, 483 U.S. 634,

641 (1987); Harlow, 457 U.S. at 816-19. Accordingly, the

defendants are entitled to qualified immunity here “if a

reasonable officer could have believed that probable cause

existed” to arrest Andre Blaylock “in light of clearly established

law and the information the [arresting] officers possessed.”

Hunter v. Bryant, 502 U.S. 224, 228-29 (1991); Anderson, 483

U.S. at 641. 

As noted above, we lack jurisdiction to review the

District Court’s determination of which facts are subject to

genuine dispute. The ultimate conclusion of “objective legal
13

reasonableness”—i.e. whether, accepting the District Court’s

determination of which facts are subject to genuine dispute, a

reasonable officer could have believed that probable cause

existed to arrest Andre Blaylock—however, is a question of law

that we may properly resolve. See Wright v. City of Phila., 409

F.3d 595, 599 (3d Cir. 2005); Weaver v. Shadoan, 340 F.3d 398,

405-06 (6th Cir. 2003).

B

The officers’ precise position with respect to the false

arrest claim is not completely clear, but a fair reading of their

brief suggests two possibilities—the officers had probable cause

to arrest Andre because, even if he had not been involved in

selling drugs, they: (1) could reasonably have mistaken Andre

for Omar Blaylock at the time of the arrest, or (2) could

reasonably have mistaken Andre for the person they observed

selling drugs with Dana. To accept either of those propositions

would require us to review the District Court’s determination of

which facts are subject to genuine dispute which, as we have

already emphasized, Johnson v. Jones precludes us from doing

in an interlocutory appeal.

The defendants’ first theory presupposes that defendants

had knowledge of facts providing a reasonable basis for

concluding: (1) that Omar was Dana’s accomplice, and (2) that

the person they arrested was Omar. The District Court appears

to have found that a reasonable trier of fact could conclude that

officers in defendants’ position had reason to believe that Omar

was in prison and, accordingly, could have no reasonable basis
 5

There is some language in the District Court’s memorandum

opinion which suggests that the District Court viewed the

officers’ subjective motive for arresting Andre as a material fact

subject to dispute. If that was the District Court’s view, it is

incorrect because, as we have already stated, in a qualified

immunity case, the question of probable cause to arrest is an

objective inquiry that does not depend on the officers’ subjective

motivations. See Devenpeck, 543 U.S. at 153; Anderson, 483

U.S. at 641; Harlow, 457 U.S. at 816-19.

14

for concluding at the time of the arrest that Andre was Omar.5

Blaylock, 2006 WL 1582308 at *6-7. If we accept, as we must,

that the officers knew that Omar was in prison, then it was

plainly unreasonable for them to have mistaken Andre for Omar.

To entertain the officers’ arguments to the contrary would

require us to review the District Court’s determination that their

knowledge was subject to genuine dispute, which we lack

jurisdiction to do under Johnson v. Jones.

In support of their second theory—that the officers could

reasonably have mistaken Andre for the person they observed

selling drugs with Dana—the officers assert that they observed

a person who looked like Omar selling drugs with Dana. Even

if they knew that Omar was in prison, they had the informant’s

tip that Omar was selling drugs with Dana. Thus, the officers

argue, they could reasonably have surmised that the informant

mistook Dana’s accomplice for Omar. Further, even accepting

that Andre was not the accomplice, they could have mistaken

him for the accomplice because he resembles Omar’s

photograph. In other words, because the evidence suggests that

both Dana’s accomplice and Andre resemble Omar, Dana’s
15

accomplice and Andre could reasonably have been mistaken for

each other. That logic is dubious, but even if we accept it, that

would not help the defendants, because the District Court

determined that the degree of resemblance between Andre and

Omar and between Dana’s accomplice and Omar are both facts

subject to genuine dispute. See Blaylock, 2006 WL 1582308 at

*6-7.

The defendants resist that conclusion by arguing that the

degree of resemblance between Andre and Dana’s accomplice

is not a historical fact, but is more in the nature of the ultimate

conclusion of arguable probable cause, and that we may

therefore make an independent determination of whether the

officers acted reasonably in arresting Andre. The defendants

note that the record contains police photographs of both Andre

and Omar and argue that the photographs are undisputed

evidence of the similarity in appearance between Andre and

Dana’s accomplice, and that this court can examine the

photographs for itself and hold that the officers had at least

arguable probable cause to arrest Andre. In support of their

argument, they rely principally on Gilles v. Davis, 427 F.3d 197

(3d Cir. 2005), in which we made an independent

determination—based in part on a videotape that was in the

record—that the defendant police officer had at least arguable

probable cause to arrest the plaintiff for disorderly conduct and

was therefore entitled to qualified immunity. Id. at 206-07. 

In Gilles, however, we reviewed a District Court’s grant

of summary judgment, and we therefore had no reason to

consider the limits that 28 U.S.C. § 1291 and Johnson v. Jones

place on our jurisdiction to hear interlocutory appeals in
 6

Scott was decided after the briefing in this case concluded,

so we do not fault the parties for failing to discuss it.

16

qualified immunity cases. More directly on point, however, is

the Supreme Court’s recent decision in Scott v. Harris, 127 S.

Ct. 1769 (2007).6

 In Scott, a police officer (Scott) pursued a

fleeing motorist (Harris) and, after approximately six minutes

and ten miles of pursuit, rammed Harris’s car in an effort to end

the pursuit. Id. at 1772-73. The collision caused Harris to lose

control of his car, which left the roadway, ran down an

embankment, overturned, and crashed. Id. at 1773. Harris

suffered injuries that rendered him quadriplegic, and he sued

Scott under 42 U.S.C. § 1983, alleging use of excessive force

resulting in an unreasonable seizure under the Fourth

Amendment. Id.

In his complaint, Harris alleged that he was driving

carefully and presented no danger to other motorists or

bystanders. The District Court denied the officers’ motion for

summary judgment of qualified immunity, finding, inter alia,

that there was a genuine dispute of fact regarding Harris’s

conduct during the chase, and that, viewing the disputed facts in

the light most favorable to Harris, Harris was doing nothing

dangerous other than driving 73 miles per hour in a 55-milesper-hour zone. Harris v. Coweta County, No. 01-CV-148, 2003

WL 25419527, at *5 (N.D. Ga. Sept. 25, 2003) (“Under this

version of the facts, a fact finder could conclude that when Scott

rammed Harris's vehicle, he faced a fleeing suspect who, but for

the chase, did not present an immediate threat to the safety of

others since the underlying crime was driving 73 miles per hour

in a 55 miles-per-hour zone. A jury could also find that Scott's
17

use of force—ramming the car while traveling at high

speeds—was not in proportion to the risk that Harris posed, and

therefore was objectively unreasonable.”). On interlocutory

appeal, the Court of Appeals affirmed, citing the District Court’s

discussion of the facts, taken in the light most favorable to

Harris. Harris v. Coweta County, 433 F.3d 807, 815-16 (11th

Cir. 2005) (“As noted by the district court judge, taking the facts

from the non-movant’s viewpoint, Harris remained in control of

his vehicle, slowed for turns and intersections, and typically

used his indicators for turns. He did not run any motorists off

the road.”).

The Supreme Court reversed, relying primarily on the

existence and contents of a videotape that, in its view, “quite

clearly contradict[ed] the version of the story told by [Harris]

and adopted by the Court of Appeals.” Despite the District

Court’s determination that Harris’s conduct was subject to

reasonable dispute, as the Supreme Court majority assessed the

contents of the videotape (the authenticity of which was

undisputed):

The videotape tells quite a different story. There

we see respondent's vehicle racing down narrow,

two-lane roads in the dead of night at speeds that

are shockingly fast. We see it swerve around

more than a dozen other cars, cross the

double-yellow line, and force cars traveling in

both directions to their respective shoulders to

avoid being hit. We see it run multiple red lights

and travel for considerable periods of time in the

occasional center left-turn-only lane, chased by
18

numerous police cars forced to engage in the same

hazardous maneuvers just to keep up. Far from

being the cautious and controlled driver the lower

court depicts, what we see on the video more

closely resembles a Hollywood-style car chase of

the most frightening sort, placing police officers

and innocent bystanders alike at great risk of

serious injury.

Scott, 127 S. Ct. at 1775-76 (footnotes omitted). On that basis,

the Court concluded Scott was entitled to qualified immunity

because his actions were objectively reasonable. The Court

acknowledged that district courts must give the nonmoving

party the benefit of all reasonable inferences at the summary

judgment stage, and that under the District Court’s

determination of which facts were subject to genuine dispute, if

one resolved the disputes in Harris’s favor, “one gets the

impression that [Harris], rather than fleeing from police, was

attempting to pass his driving test.” Id. at 1775. However, the

Court noted its admonition in Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 247-48 (1986) that only a genuine dispute of

material fact will preclude summary judgment, and stated that

“[w]hen opposing parties tell two different stories, one of which

is blatantly contradicted by the record, so that no reasonable jury

could believe it, a court should not adopt that version of the facts

for purposes of ruling on a motion for summary judgment.” Id.

at 1776. Neither the majority nor the dissent in Scott cited

Johnson or Behrens or discussed the limits of the collateral
 7

It should be noted that the Supreme Court disagreed with the

lower court as to what Harris’s actions actually were, and not

merely with whether his actions could be described as

“dangerous to others.”

19

order doctrine in qualified immunity cases.7

In Scott, although the District Court held that Harris’s

conduct during the chase (other than his speeding) was a fact

subject to reasonable dispute, the Supreme Court disagreed.

Scott would thus appear to support the proposition that, in this

interlocutory appeal, we may exercise some degree of review

over the District Court’s determination that the degree of

resemblance between Andre and Dana’s accomplice is subject

to reasonable dispute. In Scott, however, the District Court was

charged with determining whether the defendants’ conduct was

reasonable under the circumstances, and the Court had before it

a videotape of undisputed authenticity depicting all of the

defendant’s conduct and all of the necessary context that would

allow the Court to assess the reasonableness of that conduct.

Moreover, as the Supreme Court held, the videotape clearly

supported Scott’s version of events, and “blatantly contradicted”

Harris’s. Such a scenario may represent the outer limit of the

principle of Johnson v. Jones—where the trial court’s

determination that a fact is subject to reasonable dispute is

blatantly and demonstrably false, a court of appeals may say so,

even on interlocutory review. Here, by contrast, we have only

two police photographs, and an argument by the defendants not

that the two men depicted are similar in appearance, but that one

of the men depicted in the photographs must be similar in
20

appearance to a third person whose picture we do not have. As

the District Court noted, the photographs show little more than

that “both Omar and Andre Blaylock are young black men who

had short hair at the time their police photographs were taken,”

Blaylock, 2006 WL 1582308 at *7, and, other than the officers’

affidavits stating that they thought they were observing Omar

selling drugs with Dana, there is “no evidence relating to the

physical characteristics of [Dana’s accomplice].” Moreover, as

Andre’s counsel noted at argument, the photographs do not

depict Andre’s or Omar’s height, weight, or build. Thus, unlike

Scott v. Harris, we do not have a situation in which “opposing

parties tell two different stories, one of which is blatantly

contradicted by the record, so that no reasonable jury could

believe it.” Even if we assume that the photographs are so

similar to each other that a police officer could reasonably

mistake one photograph for the other, that does not establish that

no reasonable jury could find that Andre did not resemble

Dana’s accomplice (who is undisputedly not Omar). 

Because the officers make no arguments regarding the

false arrest claim that do not ask us to contradict the District

Court’s determination of which facts are subject to genuine

dispute, we will dismiss that portion of their appeal for lack of

jurisdiction under Johnson v. Jones.

V

For the reasons set forth above, we will vacate the

District Court’s denial of summary judgment on the excessive

force and malicious prosecution claims and remand for further

proceedings in accordance with the supervisory rule we
21

established in Forbes v. Lower Merion Twp., 313 F.3d 144 (3d

Cir. 2002). We will dismiss the remainder of the defendants’

appeal for lack of jurisdiction.
22

Nygaard, J., Concurring.

I fully agree with the majority that we lack jurisdiction to

review the District Court’s denial of qualified immunity on the

false arrest claim. Further, I take no issue with the majority’s

decision to remand this matter to the District Court for further

clarification pursuant the supervisory rule we announced in

Forbes v. Twp. of Lower Merion, 313 F.3d 144 (3d Cir. 2002).

I write separately, however, out of concern that the majority’s

opinion does not appear to give the District Judge the full

benefit of her analysis. The majority believes that the District

Judge failed to understand that the defendants asserted a

qualified immunity defense with respect to all claims. Indeed,

Judge Shapiro specifically held that the police officer defendants

“have asserted qualified immunity on the false arrest claim

only.” If indeed the District Judge did not understand upon

which claims the police officers sought qualified immunity, I
23

empathize. In their memorandum in support of their motion for

qualified immunity, the police officers acknowledge that

Blaylock’s claims rest “on his contention that he was arrested

without probable cause for someone else’s misdeeds.” Further,

they characterize Blaylock’s claims this way: “what plaintiff

does claim is that the defendants arrested the wrong person.”

Nowhere in their principal discussion of the case do the police

officers mention or characterize Blaylock’s excessive force or

malicious prosecution claims.

In reviewing what I believe to be inartfully drafted

motions and memoranda filed in the case, I am left with some

question as to precisely what the officers are arguing. For

example, as to Officer Walker, they argue that “in simple terms,

plaintiff was arrested upon probable cause and his claims under

Section 1983 and under state law for false arrest fail for that

reason.” Clearly, the police officers argue for the imposition of
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qualified immunity on the false arrest claim. Just as clearly,

they make no mention of the malicious prosecution claim. With

respect to the excessive force claim against Officer Walker, the

officers do not seem to assert qualified immunity at all, stating

“plaintiff has no claim against Officer Walker for use of

excessive force because no such claim . . . was asserted in the

second amended complaint.” This could be understood as

asking for judgment in his favor based on a perceived waiver. 

Next, the defendants discuss Officer Brian Reynolds.

Here again, they maintain that “[p]laintiff alleges excessive

force in connection with his arrest, but can offer no evidence to

support that claim.” They make only a passing reference to the

excessive force claim, without identifying that claim or

mentioning qualified immunity: “insofar as he was required to

lie down and was handcuffed during the search, that level of

force is lawful as a matter of law.” 
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Things are argued a bit differently with Officer

Liciardello. Here, the defendants submit that “Plaintiff alleges

excessive force by Officer Liciardello in connection with this

arrest, but can offer no evidence to support that claim.” No

mention is made of the false arrest claim or the malicious

prosecution claim.

Two defendants remain: Officers Cujdik and Malkowski.

As to Cujdik, the defendants make arguments that do not appear

to touch on any of Blaylock’s claims. First, the officers argue

that “none of Cujdik’s actions [in observing various drug

transactions], implicate any rights of the plaintiff.” I view this

as an attempt to argue that Cujdik has qualified immunity on the

false arrest claim because the officer’s argument continues,

“Plaintiff claims not to have been present for those transactions,

and he certainly cannot claim that officer Cujdik harmed him in

any way in reporting what he saw.” The remaining defendant is
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Officer Malkowski. Here, the officers argue that the absence of

any allegations in the second amended complaint against

Malkowski entitle him to summary judgment. It is unclear to

me, however, whether they argue this entitlement is based on

qualified immunity, or simply the absence of any allegations

against Malkowski. 

The majority’s opinion indicates that “although the

officers focused most of their briefing on the false arrest claim,

they also argued that they were entitled to qualified immunity on

the excessive force claim and malicious prosecution claims.”

After reviewing their motion for qualified immunity, I am not

certain that the District Court erred by concluding that

“defendants have asserted qualified immunity on the false arrest

claim only.” However, because the motion and memoranda are

far from clear, I do not object to remanding the cause to the

District Court for it to clarify its reasons for denying qualified
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immunity as to claims for excessive force and malicious

prosecution, if indeed it finds such claims to have been properly

raised in the first place.