NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

____________ No. 14

- 4629

_____________ MARY BOARDMAN,

Appellant

v. CITY OF PHILADELPHIA; BROWN'S SUPER STORE INC, DBA Shoprite of Or egon Avenue; OFFICER JAMES ARENTZEN, Badge No. 4681; OFFICER ROBERT SMITH, Badge No. 3232

_____________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

(D.C. Civil No. 2

- 13

- cv - 01499 ) District Judge: Honorable Paul S. D iamond Magistrate Judge: Honorable Timothy R. Rice

____________ Submitted Under Third Circuit LAR 34.1(a)

July 14 , 2016

____________ Before: FUENTES, SHWARTZ and BARRY, Circuit Judges

(Opinion Filed: August 11, 2016 )

____________ OPINION *

* This disposition is not an opinion of the full court and pursua nt to I.O.P. 5.7 does not constitute binding precedent.2 ____________ BARRY, Circuit Judge Mary Boardman commenced this action after she was arrested by Police Officers Robert Smith and James Arentzen at a ShopRite in Philadelphia, Pennsylvania. She raised claims for false arrest and excessive force, among other s, against the O fficers and the City of Philadelphia, as well as certai n state

- law claims against ShopRite. The District Court dismissed most of the claims on summary judgment, including the false arrest claims, leaving only the federal excessive force cl aim and the state

- law false imprisonment claim against ShopRite for trial. The jury returned a verdict in favor of the Officers on the excessive force count, 1 and Boardman now appeals . We will affirm.
I. BACKGROUND On August 9, 2012, Mary Boardman was g rocery shopping at the ShopRite supermarket on Oregon Avenue in Philadelphia. Surveillance video shows that she opened a box of parchment bags, examined the contents, placed the contents back in the box and then placed the box back on the shelf. Andrew H aenchen, a loss prevention associate at the store, believed this constituted theft and asked Boardman to accompany him to the loss prevention office.

1 The jury also returned a verdict in favor of ShopRite on the false imprisonment claim, but the Court subsequently granted Boardman’s motion for judgment as a matter of law with regard to that count . Following a trial held on damages, judgment was entered against ShopRite in the amount of $100,130.00. The parties later settled, and the Court dismissed the case against ShopRite.3

Once inside, Haenchen and another associate, Herman Jackson, asked Boardman for identification and to si gn a “loss prevention incident report” form, which included the following statement: “I was in ShopRite ... and while there appropriated [certain articles] to my own use, without paying for or intending to pay for [the] same.” ( Appendix (“App.”) 42.) Boar dman acknowledged that she opened the box of parchment bags, rendering the same not fit for resale thereby, but refused to sign the form

. In her view, the form contained a number of substantive inaccuracies and required her to confess to a crime she did n ot commit. The police were subsequently summoned to the store , and Officers Smith and
Arentzen w ere told that Boardman “ opened up merchandise ” and “ put it back on the shelf without paying for it.” (App. 53.) The Officers testified that, on hearing this, they
concluded that she committed criminal mischief. They were also aware, though, that ShopRite would not press charges if Boardman agree d to sign the form as drafted. Boardman refused to sign without making certain changes , and became agitated when sh e was not permitted to do so

. Officer Smith testified that, following Boardman’s final attempt to change the form , one of the loss prevention associates “nod[ded] [his] head,” which Officer Smith interpreted to mean that ShopRite would , indeed , press charges. (App. 56.) Officer Smith then asked Boardman to stand for handcuffing, but she re fused and backed away when the O fficers attempted to stand her up themselves. The Officers forced Boardman4

to the ground and Boardman resisted their effort to han dcuff her , relenting only after Officer Smith threatened to use his Taser

. With Boardman in handcuffs, Officer Smith called his supervisor to verify whether the accusations against her constituted theft or criminal mischief , and was informed that it was “ not theft and that it would have been vandalism at best.” (A pp. 60.) Boardman agreed to sign the ShopRite form , and was released with no criminal charges filed against her. Approximately seven months later, Boardman filed a twelve

- count complaint again st the City of Philadelphia, Officers Smith and Arentzen, and ShopRite. She alleged a federal excessive force claim against the Officers (Count 1), a federal false arrest claim against the Officers (Count 2), a Monell claim against the City (Counts 3 and 4), state

law assault a nd battery against the Officers (Count 5), state

- law false imprisonment against the Officers and ShopRite (Count 6), state

- law false arrest against the Officers (Count 7), intentional infliction of emotional distress and conspiracy a gainst all defendants (Counts 8 and 9), and corporate liability, negligent hiring, and negligent supervision against ShopRite (Counts 10

- 12). On March 13 , 2014, on cross - motions for summary judgment, the Hon. Paul S. Diamond (1) granted the City’s motion in its entirety; (2) granted the Officers’ motion on the federal false arrest claim, and the state

- law false imprisonment and false arrest claims (leaving the federal excessive force claim for trial); (3) granted ShopRite’s motion on corporate liability, negligent hiring, and negligent supervision (leaving the false5

imprisonment claim for trial); and (4) granted defendants’ motion on Boardman’s claims for intentional infliction of emotional distress and conspiracy. 2 With regard to the state

law false arre st claim, the District Court concluded that, although it was “unclear whether Pennsylvania law authorized the Officers to arrest Plaintiff on probable cause for criminal mischief,” ( App. 8 ), the Officers were entitled to governmental immunity pursuant to t he Pennsylvania Political Subdivis ion Tort Claims Act, 42 Pa. Cons. Stat. §§ 8541

- 8550. Specifically, the Court held that, because the Tort Claims Act shields officers from liability in the absence of “willful misconduct,” and because Boardman failed to e stablish that the Officers knew their conduct was illegal, the Officers were entitled to summary judgment. (App. 9 .) Boardman’s motion for reconsideration was denied for similar

reasons. The remaining claims were tried before M agistrate Judge Timothy R. Rice , with, as relevant here, the jury returning a verdict in favor of the Officers o n the excessive force claim

. Boardman’s timely notice of appeal followed.

II. JURISDICTION AND STANDARD OF REVIEW The District Court had jurisdiction under 28 U.S.C. § 133 1 and we have jurisdiction under 28 U.S.C. § 1291. T he District Court’s decision on summary judgment is subject to plenary review

. See S.H. v. Lower Merion Sch. Dist. , 729 F.3d 248, 256 (3d Cir. 2013)

. Jury instructions also are subject to plenary revie w , United States v.

2 Boardman abandoned on appeal her claims against the City and her clai ms against all defendants for intentional infliction of emotional distress and conspiracy. She abandoned at trial the assault and battery claim against the Officers.6

Johnstone, 107 F.3d 200, 204 (3d Cir. 1997), but the wording of the instruction, i.e. , “the expression,” is reviewed for abuse of discretion. See United States v. Zehrbach , 47 F.3d 1252, 1264 (3d Cir. 1995)

. Similarly, we review eviden tiary rulings at trial for abuse of discretion

. See United States v. Butch , 2 56 F.3d 171, 175 (3d Cir. 2001); see also Forrest v. Beloit Corp. , 424 F.3d 344, 351 (3d Cir. 2005) (concluding that attorney’s allegedly improper statements in summation did not warrant a new trial).
III. ANALYSIS Boardman presents four arguments on appeal: (1) the Officers demonstrated willful misconduct in connection with her arrest and therefore are not immune from liability; (2) the jury was erroneously instructed that handcuffin g “without more” will never constitute excessive force; (3) Boardman’s objection at trial regarding the Officers’ legal right and obligation to arrest her should have been sustained ; and (4) she was prejudiced at trial by her inability to inform the jury t hat the arrest was, in her view, illegal. A. Summary Judgment: False Arrest Under Pennsylvania law, the tort of false arrest requires a showing of either “ (1) an arrest made without probable cause [ , ] or (2) an arrest made by a person without privilege to do so. ” See Renk v. City of Philadelphia , 641 A .2d 289, 295 n.2 (Pa. 1994) (Montemuro, J. dissenting) . “[W] hether an officer is authorized to make an arrest depends initially on whether state law authorizes such action .” Commonwealth v.7

Williams , 568 A.2d 1281, 1284 (Pa. Super. Ct. 1990) (emphasis omitted). The District Court rightly concluded that , under Pennsylvania law, the Officers had probable cause to believe Boardman committed criminal mischief ( i.e., damage to property), but that they lacked proba ble cause to arrest her for theft. Compare 18 Pa. Cons. Stat. § 3304 (a) (“A person is guilty of criminal mischief if he ... intentionally or recklessly tampers with tangible property of another so as to endanger person or property ... [or] intentionally damag es real or personal property of another”) with 18 Pa. Cons. Stat. § 3929(a) (1) (“A person is guilty of a retail theft if he ... takes possession of, carries away ... any merchandise ... with the intention of depriving the merchant of ... such merchandise without p aying ....”). That distinction is legally significant because, unlike the crime of theft, criminal mischief is categorized as a “summary offense” under Pennsylvania law and requires more than just probable cause to justify arrest. The parties hotly disput e those requirements. Boardman points first to Rule 400 of the Pennsylvania Rules of Criminal Procedure, which deals exclusively with

“ Proceedings in Summary Cases , ” and provides that “[c] riminal proceedings in summary cases shall be instituted either by: (1) issuing a citation to the defendant; or (2) filing a citation; or (3) filing a complaint; or (4) arresting without a warrant when arrest is specifically authorized by law .” Pa. R. Crim. P. 400 (emphasi s added); Commonwealth v. Bullers , 637 A.2d 1326 , 1328

- 29 (Pa. 1994) (holding that a “ court may not permit a warrantless arrest for a summary offense when [the] legislature has not so provided ”).8

Because neithe r the criminal statute at issue nor any other municipal code provision authorizes an arrest w ithout a warrant for criminal mischief, Boardman argues that she was falsely arrested as a matter of law. The Officers maintain otherwise. They urge, as

t he District Court first concluded, that it is “unclear whether Pennsylvania law authorized
the Offic ers to arrest [Boardman] on probable cause for criminal mischief outside their presence,” (App. 8), citing recent federal cases in support

. See Huff v. Cheltenham Twp. , 2015 WL 4041963, at *9 (E.D. Pa. July 1, 2015 )

. 3 We need not resolve this apparent di spute on appeal because, in the absence of willful misconduct, t he Officers are entitled to immunity under the Pennsylvania Political Subdivision Tort Claims Act (“PSTCA”)

. To conclude , as Boardman urges us to do, that the Officers act ed with willful misc onduct , a statutory exception to PSTCA immunity , we must find “not only that the [Officers] intended to commit the acts that [they are] accused of carrying out, but also that [the Officers] understood that the actions [they] intended to take were illegal a nd chose to take the actions anyway.” Maiale v. Youse , 2004 WL 1925004, at *11 (E.D. Pa. Aug. 27, 2004); see also Sanford v. Stiles , 456 F.3d 298, 315 (3d Cir. 2006) (describing willful misconduct as “a demanding level of fault” akin to “intentional tort”) (internal quotation marks omitted); In re City of Phila. Litig. , 158 F.3d

3 The confusion stems from the interpretation of Commonwealth v. Elliot t , 599 A.2d 133 5 (Pa. Super. 1991) by the District Court, as well as by the court in Huff , interpreting Elliot t to stand for the proposition that a “police officer has authority for warrantless arrest for summary offense if he has probable cause.” (A pp. 8.) Boardman cl aims this interpretation was in error, and that Elliot t stands only for the proposition that an officer may issue a citation for a summary offense committed outside the officer’s presence.9

723, 728 (3d Cir. 1998) (explaining that the Pennsylvania Supreme Court’s decision in
Renk “require[es] a subjective standard of willfulness that calls for a showing of an intention to do what is known to be wrong ”). In the context of this claim for false arrest, Boardman must show that the Officers “‘intentionally arrested [ her ] knowing that [they] lacked probable cause to do so.’” Brockington v. City of Philadelphia , 354 F. Supp. 2 d 563, 571

- 72 (E.D. Pa. 2005) ( quoting Renk , 641 A.2d at 293) (emphasis added)

. Boardman’s theory of willful misconduct is novel but unpersuasive. She argues that the Officers arrested her for refusing to sign the form , not because she committed criminal mischief. She submits that a reasonable juror could conclude as much based on the testimony presented, and that such a juror could likewise conclude that “using [an] arrest to coerce a confession” constituted willful misconduct. (Blue Br. at 27.) In

su pport, she points to the deposition testimony of Officer Smith, in which he stated, “[A]s she was changing [the form], that’s when we decided to make the, we made the decision to place her, attempt to place her in handcuffs because she was changing it.” ( A pp. 56

. ) To reach Boardman’s conclusion from this evidence, however, would require us to interpret Officer Smith’s testimony in a manner unreasonably favorable to Boardman and

to ignore contrary testimony from the other parties. Officer Smith testified that he was informed upon arrival that Boardman “opened up merchandise ” and “ put it back on the shelf without paying for it,” but that ShopRite would not press charges for that offense “if she signs [the loss incident form].” (A pp. 53

. ) Similarly, Office r Arentzen testified that,10

after Boardman refused to sign the form in his presence, the Officers informed her that “if she didn’t want to ” sign it they were “going to have to place her under arrest” for “damage to property.” (SA17.) This approach was cons istent with both ShopRite’s policy regarding theft or misuse of store merchandise and Officer Arentzen’s practice of not arresting an accused despite probable cause to do so where the purported victim declines to press char ges. Boardman offers no groun ded explanation as to why the Officers would have wanted to arrest her solely for refusing to sign the form itself, and she provides no reasonable basis for inferring from the testimony anything other than that Officer Smith was summoned to arrest her for damage to property

— i.e. criminal mischief

— and that he elected to do so after the loss prevention associates signaled their intent to press charges. She also fails to offer any evidence or principled argument suggesti ng an absence of probable cause and, mo st importantly, does not identify any basis to refute or undermine the Officers’ belief that they were authorized to make an arrest

. See Sameric Corp. of Del. , Inc. v. City of Philadelphia, 142 F.3d 582, 600

- 01 (3d Cir. 1998) (“’Willful misconduct,’ ..., re quires evidence that the defendants actually knew that their conduct was illegal.”). Officer Smith testified that “criminal mischief is one of the offenses that you can make an arrest for without a warrant ” as long as there is a witness or admission, (A pp. 64), and Officer Arentzen testified that officers have the ri ght to arrest someone without a warrant for a summary offense if “they admit to it.” (SA21. ) Boardman thus11

failed to provide any basis for inferring that the Officers believed the arrest was i llegal , and we conclude that there is no genuine factual dispute regarding their purported willful misconduct

.

B. Jury Instruction: Handcuffing “without more” Boardman also argues that the Magistrate Judge erroneously instructed the jury in connection with the excessive force trial , and specifically challenges the instruction that “handcuffing without more” cannot constitute excessive force. The instruction was as follows: Now in determining whether Officer Smith or Arentzen’s

actions constituted excessive force you must ask whether the amount of force used was the amount a reasonable officer would have used under similar circumstances in making an arrest. The act of handcuffing without more does not constitute excessive force. Rather, you should consider all the relevant facts and circumstances leading up to the time of the arrest that Officer Smith and Officer Arentzen reasonably believed to be true at the time. You should consider those facts and circumstances in order to assess whether there was a need for the application of force and the relationship between the need for force, if any, and the amount of force applied. (A95) (emphasis added). Boardman claims that the instruction was contrary to our decision in Kopec v. Tate , 361 F.3d 772 (3d Cir. 200 4). We disagree. The plaintiff in Kopec alleged that “ Officer Tate placed handcuffs on him that were excessively tight and failed to respond to [his] repeated requests for them to be loosened .” Id. at 777. He alleged further that “ it took Officer Tate ten minutes to loosen12

the handcuffs despite the severe pain they were causing and his efforts to secure their release .” Id. We held that such facts would constitute excessive force if proven at trial

. Id. Magistrate Judge Rice discussed that decision with counsel before instructing the jury , and interpreted it to stand for the proposition that “handcuffing could constitute excessive force if there’s complaints, obvious signs of discomfort, damage that requires medical attention, things of that nature.” (A17.) He agreed that there are “ circumstances where [handcuffing] could” constitute excessive force, but cautioned that the jury must
nonetheless look at all the relevant circumstances

— “I don’t want the jury returning a
verdict of excessive force merel y because the officers handcuffed the plaintiff. Because I don’t think

... that was the theory that you charged the case on, or that you filed the [ c ] omplaint on.” ( Id. ) Magistrate Judge Rice properly acknowledged that the act of handcuffing may, in certai n circumstances, constitute excessive force

— including, but not necessarily limited to, those presented in Kopec

. And, b y instructing the jury to consider “all of the relevant
facts

... leading up to the time of the arrest,” he accounted for the possibility of such circumstances , while leaving it to the jury to assess whether the force employed was reasonable in light thereof. (A95.) Boardman has not shown that the specific instruction of which she complains

— that “handcuffing without more does not constitut e excessive force”

— misle d the jury into ignoring the possibility of other exacerbating factors.

C. Trial Objection: “Right” to Arrest13

Boardman next claims that, throughout defense counsel’s closing, he repeatedly told the jury that Officers Smith and Arentz en had a legal right to arrest and that these purported misstatements of law warrant a new trial. To find as much, we must conclude both that the argument was “so gross as probably to prejudice” Boardman’s likelihood of success and that “the prejudice [wa s not] neutralized by the trial judge before submission of the case to the jury.” United States v. Somers , 496 F.2d 723, 738 (3d Cir. 1974) (citation omitted)

. Even assuming that Boardman was somehow prejudiced by these statements, 4 Magistrate Judge Ric e’s instruction neutralized any possibility that the jury would be influenced thereby. Boardman’s argument is that the grade of her offense was so
minimal that it could not legally warrant an arrest , let alone the use of force attendant
thereto . T his con cern was properly accounted for by the Court’s instruction that the jury consider “the severity of the crime at issue [and] whether [Boardman] posed an immediate threat to the safety of the officer or others.” ( A95.) T he jury was free to consider whether the nature of her offense rendered the force app lied more or less justifiable. Magistrate Judge Rice did not abuse his discretion in rejecting Boardman’s argument

.

D. Prejudice Finally, Boardman argues that a new trial is warranted because her excessive fo rce

4 For the reasons outlined in the following section, we conclude that she was not.14

trial would have been different if the District C ourt had not “erroneously” dismissed her
false arrest claim against the Officers at summary judgment. T his argument ignores the fact that the lawfulness of Boardman’s arrest does not bear upon her exces sive force claim. See Romero v. Story, 672 F.3d 880, 890 (10th Cir. 2012) (“[I] f the district court concludes the arrest was unlawful, the court may not automatically find any force used in effecting the unlawful arrest to be excessiv e. Instead, the distr ict court must then analyze the excessive force inquiry under the assumption the arrest was lawful. ”) (citing Cortez v. McCauley , 478 F.3d 1108, 1126 (10th Cir. 2 007) (en banc) ) ; see also Snell v. City of York , 564 F.3d 659 , 672 (3d Cir. 2009) (rejecting a rgument that “the force applied was

e xcessive solely because probable c ause was lacking for his arrest” as well as “ similar efforts to bootstrap excessive force claims and probable cause challenges.” ) Boardman suffered no prejudice by virtue of her inabil ity to tell the jury that the arrest was unlawful , and she otherwise presents no ground with any merit for a new trial

. IV. CONCLUSION The O rders of the District Court will be affirmed.