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IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

Allen E. Robinson, : Civil Action 

 Plaintiff : 

 No. 04-CV-3592 

 v. : 

 : 

Patrick V. Fetterman, 

John Rigney and : 

Grig Riek 

 Defendants : 

PLAINTIFF’S POST-TRIAL MEMORANDUM OF LAW

1. Undisputed Facts

 a. Plaintiff did not curse, push police or create any danger to 

traffic, the police or the public by videotaping October 23, 2002. 

 b. Defendant Grig Reik admitted Plaintiff committed no crime that 

day. Defendant Rigney did not state facts to make out a crime that day. 

 c. Pa. State Trooper Juan Andrews, an eyewitness to a June 20, 

2000 incident in which it is alleged Plaintiff cursed and lightly pushed 

Defendant Fetterman, admitted he did not see Plaintiff curse at or push 

Fetterman. Plaintiff denied ever cursing at or pushing police on June 20, 

2000 or October 23, 2002. 

 d. Jacob Fisher, who witnessed the entire interchange between 

Plaintiff and Fetterman for 5 minutes on June 20, 2000 and could hear 

their loud interchange from 15-20 feet away, said Plaintiff never cursed 

at or pushed Fetterman even though at the scene Fetterman stated he 

pushed him. 

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 e. Defendants Rigney and Reik both heard Fetterman state after 

the October 23, 2002 arrest, in response to another officer’s telling him 

“Don’t erase : it’s evidence,” “I’ll erase the part...erase it...ain’t getting me 

sued.” This is a contemporaneous admission of intent to erase or tamper 

with a videotape and is clear proof Fetterman erased or tampered with 

the tape to cover up wrongdoing. 

 f. Fetterman told Plaintiff on June 20, 2000 and October 23, 2002 

if he saw his face on the tape – meaning if it was released to the public – 

he would come get Plaintiff and his wife. He never denied making those 

statements. 

 g. There are substantial gaps in the tape (4:53 to 5:13) and it 

inexplicably reverts from 5:23 to 5:04, an earlier time. During the time 

represented by the gap Plaintiff said all three defendants were repeatedly 

cursing at him and using obscene language. Defendants never denied 

this. There is no reasonable explanation other than the tape was 

tampered with. 

 h. Plaintiff suffered lost sleep, fear for his family’s safety, 

humiliation, mental distress, $3,000.00 in attorney’s fees and takes 

effexur, stress medication, as a result of the October 23, 2000 incident. 

His wife Shirley experienced a lot of stress as a result of the threats as 

she was concerned about the safety of her two boys and herself. 

2. Law 

 a. False Arrest: Damages 

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 A claimant pleading false arrest can pursue damages only for the 

detention that occurred up until issuance of process or arraignment, 

Snodderly v. R.U.F.F. Drug Enforcement Task Force, 239 F. 3d 892 (7th

Cir. 2001), Montgomery v. Disimone, 159 F. 3d 120 (3rd Cir. 1998), 

Mutual Medical Plans v. County of Peoria, 309 F. Supp. 2d 1067 (C.D. Ill. 

2004). From that point on damages recoverable must be based on a 

malicious prosecution claim. Sulkowska v. City of NY, 129 F. Supp. 2d 

274 (S.D.N.Y. 2001). 

 b. Punitive Damages 

 Fabrication of evidence in a malicious prosecution case supports a 

punitive damages award of $500,000.00. Castellano v. Fragozo, 311 F. 

3d 689 (5th Cir. 2002). 

 c. Proof of Actual Injury Not Required 

 Under the 4th Amendment, Plaintiff – Arrestee may recover nominal 

damages without proof of actual injury for unreasonable intrusions of 

bodily integrity. Headwaters Forest Defense v. County of Humboldt, 240 

F. 3d 1185 (9th Cir. 2000). False arrest exists if under the facts and 

circumstances within the knowledge of the arresting officer, a reasonable 

officer could not have believed an offense had been or was being 

committed by the arrestee. If the police used force which was not 

objectively reasonable under the circumstances and facts confronting 

himm at that time, it is excessive force. Mosley v. Wilson, 102 F. 3rd 85 

(3rd Cir. 1996). 

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 d. Criteria for Damages 

 Damages criteria include length & condition of detention, severity 

of injuries, conduct of police, insulting language, slurs, lost earnings, 

humiliation, emotional distress, mental anguish and injury to feelings. 

Padilla v. Miller, 143 F. Supp. 2d 479 (M.D.Pa. 2001); Hayfield v. Home 

Depot, USA, Inc., 168 F. Supp. 2d 436 (E.D. Pa. 2001). 

 e. Amount of Damages 

 An award of $250,000.00 for false arrest and malicious 

prosecution was upheld where Plaintiff endured 2 trials and was 

exonerated one year after his arrest. Fonseca V. City of Long Beach, 33 

Fed. App. 846 (9th Cir. 2002). An award of $91,500.00 for false arrest 

and malicious prosecution was appropriate even though Plaintiff 

incurred no lost wages or economic loss, no lost sleep, no inconvenience 

and no treatment for mental or medical problems. Noga v. Potenza, 221 

F. Supp. 2d 345 (N.D.N.Y. 2002). 

3. Conclusions of Law

 The October 23, 2002 arrest was to Defendants justified only by 

unproven distraction to police that day and events of June 20, 2000. 

Videotaping from 30 feet away is activity protected by the constitution 

with a legitimate public purpose of recording the safety of police truck 

inspection stops. As a matter of law the October 23, 2002 activity was 

not a course of conduct sufficient to make out harassment under 18 Pa. 

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C.S.A §2709 (c) or (e). There was no probable cause for the October 23, 

2002 arrest. 

 Compensatory damages for false arrest, malicious prosecution and 

the Violation of First Amendment rights should be awarded. Punitive 

damages should be awarded for the undisputed threats of retaliation and 

erasing and tampering with the videotape. 

Date: July 12, 2005 ____________________________________ 

 J. Michael Considine, Jr. 

 12 East Barnard Street, Suite 100 

 West Chester, PA 19382 

 (610)431-3288 

 Counsel for Plaintiff 

CERTIFICATE OF SERVICE

I, J. Michael Considine, Jr., hereby certify I sent Plaintiff’s PostTrial Memorandum of Law to the following counsel of record by filing it 

electronically on the date indicated below: Randall J. Henzes, Deputy 

Attorney General, Office of the Attorney General, 21 South 12th Street, 3rd

Floor, Philadelphia, PA 19107-3603. 

Date: July 12, 2005 s/ J. Michael Considine, Jr. 

 J. Michael Considine, Jr. 

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