1998 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-16-1998

Montgomery v. De Simone

Precedential or Non-Precedential:

Docket 97-5179

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Recommended Citation

"Montgomery v. De Simone" (1998). 1998 Decisions. Paper 249.

http://digitalcommons.law.villanova.edu/thirdcircuit_1998/249
Filed October 16, 1998 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 97-5179 

ROSEMARY MONTGOMERY, 

 Appellant 

v. 

JEFFREY DE SIMONE, PTL. a/k/a Joseph De Simone, 

PTL; TOWNSHIP OF BRICK; COUNTY OF OCEAN; BRICK 

TOWNSHIP POLICE DEPARTMENT; JOHN DOE, 

Individually and as an employee of the Brick Township 

Police Department 

Appeal from the United States District Court 

for the District of New Jersey 

(D.C. Civ. No. 95-cv-00528) 

Argued 

March 24, 1998 

Before: MANSMANN, ROTH and McKEE, Circuit Judges. 

(Filed October 16, 1998) 

 William J. Farley, Jr., Esquire 

 (Argued) 

 2517 Highway 35 South 

 Valley Park Professional Center 

 Manasquan, NJ 08736 

 Counsel for Appellant 
 Michael E. Wilbert, Esquire (Argued) 

 Ben A. Montenegro, Esquire 

 Wilbert & Montenegro 

 531 Burnt Tavern Road 

 P.O. Box 1049 

 Brick Town, NJ 08724 

 Counsel for Appellee 

 Joseph De Simone 

 Steven N. Cucci, Esquire 

 Cucci & McCarthy 

 1500 Route 88 West 

 P.O. Box 1609 

 Brick, NJ 08723 

 Counsel for Appellee: 

 Township of Brick and 

 Brick Township Police Department 

OPINION OF THE COURT 

MANSMANN, Circuit Judge. 

Rosemary Montgomery appeals from the entry of 

summary judgment against her in her suit brought 

pursuant to 42 U.S.C. S 1983 which arises out of the events 

surrounding her arrest on September 30, 1992. 

Montgomery alleges that Officer Jeffrey De Simone did not 

have probable cause to stop and arrest her for speeding 

and drunk driving. She accordingly brought several section 

1983 claims against Officer De Simone, including a claim 

based on malicious prosecution. 

In this appeal, we are asked to determine whether 

Montgomery's convictions, which were overturned upon de 

novo review, conclusively establish probable cause and 

necessarily negate any possibility that Montgomery could 

establish her section 1983 malicious prosecution claim. We 

hold that they do not. Accordingly, because we find that 

Montgomery has raised a genuine issue of material fact as 

to probable cause, we will reverse the district court's grant 

of summary judgment in favor of Officer De Simone on 

 2 
Montgomery's section 1983 malicious prosection claim and 

will remand this case for further proceedings. 

In addition, we find that, as a matter of law, the two year 

limitations period for Montgomery's section 1983 false 

arrest and false imprisonment claims began to run on the 

night of Montgomery's arrest and that her claims against 

the municipal defendants fail because Montgomery's 

allegations are insufficient to establish municipal liability. 

Accordingly, we will affirm the district court's order 

dismissing those claims. 

I. 

On September 30, 1992, Officer Jeffrey De Simone 

stopped Rosemary Montgomery, arrested her and charged 

her with speeding, driving while intoxicated, and refusing to 

take a breathalyzer test. At Montgomery's municipal

hearing, Officer De Simone testified that he stopped 

Montgomery because she was traveling at approximately 55 

m.p.h. in a 40 m.p.h. zone. De Simone testified that he 

estimated Montgomery's speed prior to the stop based on 

his own observation and a radar reading. According to De 

Simone, when he stopped Montgomery he detected a strong 

odor of alcohol on her breath. De Simone testified that 

Montgomery had difficulty locating her license in her wallet, 

could not open the glove box and became frustrated when 

De Simone opened the glove box with ease. According to De 

Simone, Montgomery could not recite the alphabet when 

asked to do so and failed two field sobriety tests. De 

Simone stated that Montgomery's eyes were "watery," her 

speech was "slightly slurred," and that "she was swaying 

and staggering" when standing and walking. 

De Simone further testified that during the stop, a

second car pulled up to ask directions. De Simone then 

instructed Montgomery to drive her car across the road to 

a vacant parking lot so that he might attend to the second 

car. He subsequently drove to where she was parked and 

took her to the police station. At the police station De 

Simone advised Montgomery for the first time that she was 

under arrest, read her her Miranda rights, and asked her to 

take a breathalyzer test. Montgomery refused the test. 

 3 
Montgomery's testimony at her municipal trial painted a 

dramatically different picture of the events surrounding her 

arrest. According to Montgomery, she had just returned 

from a transcontinental flight and had met a friend for 

dinner. She testified, and her friend corroborated, that she 

did not have any alcoholic beverages with dinner. She 

further testified, and her friend corroborated, that she 

ordered one Irish coffee after dinner and that the bartender 

had refilled her same cup with regular coffee after she 

finished most of the Irish coffee. Montgomery's friend 

further testified that Montgomery did not appear to be 

intoxicated and that they parted company at approximately 

11:20 p.m. 

Montgomery testified that after leaving her friend's house, 

she had been stopped at a red light which was located less 

than one tenth of a mile from the intersection where 

De Simone testified she was traveling at 55 m.p.h. In her 

deposition in this case, Montgomery further testified that 

she could not have been exceeding the speed limit in that 

short distance in her Hyundai and that she knows she was 

not speeding. She also testified that De Simone lied at her 

municipal trial. 

At her municipal trial, Montgomery testified that she did 

have trouble finding her license for De Simone because it 

was mixed in with receipts from her overseas trip. She also 

testified that she had trouble opening the glove 

compartment because it always sticks but that she 

eventually opened it herself without the help of De Simone. 

According to Montgomery, she recited the alphabet correctly 

when asked but De Simone never asked her to leave her 

vehicle for sobriety tests. 

Montgomery testified that at one point during the stop De 

Simone stated "I shouldn't be doing this but would you pull 

across to behind Wall Street and wait for me?" Montgomery 

testified that she was unaware of anyone stopping and 

asking for directions. After she waited in the parking lot for 

about five to ten minutes, De Simone pulled up behind her 

with no overhead lights on. De Simone got out of the car 

and his demeanor changed. De Simone asked Montgomery 

if she liked policemen and if she dated them. Montgomery 

testified that she was very uncomfortable and tried to 

 4 
change the subject and that De Simone then offered her a 

ride home. She told De Simone that he would have to leave 

his jurisdiction to give her a ride and he then offered to 

take her to the station to make a phone call. Montgomery 

testified that De Simone's demeanor again changed and he 

became sullen. When they arrived at the station, De Simone 

advised Montgomery for the first time that she was under 

arrest and read her her rights. Another of Montgomery's 

friends picked her up at the police station around 2:00 a.m. 

and testified that Montgomery did not appear drunk and 

that Montgomery told her that she had only had two Irish 

coffees that night. 

The municipal court judge found that there was probable 

cause for the stop and the arrest for drunk driving based 

entirely upon De Simone's testimony. In addition, after 

hearing all the testimony offered, the municipal judge found 

Montgomery guilty of speeding, drunk driving, and refusing 

to take a breathalyzer test. Montgomery appealed her 

convictions. 

On February 4, 1994, a trial de novo was held in the 

Superior Court of New Jersey. The court reversed 

Montgomery's convictions entering not guilty verdicts on all 

charges. The Superior Court judge expressed doubt as to 

whether Montgomery was speeding, given her testimony 

that she had been stopped at a light just a short distance 

from where De Simone claimed she was exceeding the 

speed limit. In addition, the judge expressed doubt as to 

whether De Simone actually thought Montgomery was 

drunk given that De Simone ordered her to drive her car 

across four lanes of traffic to a vacant parking lot after she 

allegedly failed several sobriety tests. 

On February 1, 1995, Montgomery filed a complaint in 

the District Court of New Jersey alleging a section 1983 

claim for malicious prosecution, section 1983 false arrest 

and false imprisonment claims arising out of her arrest and 

temporary detention on September 30, 1992, section 1983 

claims against the township and police department 

(collectively the "municipal defendants") based on De 

Simone's actions, and several state law claims relating to 

her arrest. On March 11, 1997, the district courtfiled an 

order holding that (1) Montgomery's section 1983 claim for 

 5 
malicious prosecution failed as a matter of law because the 

municipal judge had reasonably determined that probable 

cause existed for the arrest; (2) the two year statute of 

limitations for Montgomery's section 1983 false arrest and 

false imprisonment claims began to run on the date of her 

arrest and those claims were therefore time barred; and (3) 

Montgomery's section 1983 claims against the municipal 

defendants should be dismissed because Montgomery failed 

to produce evidence that would raise a genuine issue of 

material fact on those claims.1 Montgomery timely filed this 

appeal.2 

II. 

In order to prevail on her section 1983 malicious 

prosecution claim, Montgomery must establish, among

other things, an absence of probable cause for the initiation 

of the proceedings against her. See Rose v. Bartle, 871 F.2d 

331, 349 (3d Cir. 1989)(citing Lee v. Mihalich, 847 F.2d 66, 

69-70 (3d Cir. 1988)). The district court granted summary 

judgment on Montgomery's section 1983 malicious 

prosecution claim based upon the premise that the 

municipal judge's finding of probable cause for her arrest 

negated any possibility that Montgomery could establish an 

absence of probable cause for purposes of her section 1983 

malicious prosecution claim. 

We have held that the question of probable cause in a 

section 1983 damage suit is one for the jury. Patzig v. 

O'Neil, 577 F.2d 841, 848 (3d Cir. 1978). Summary 

judgment on Montgomery's malicious prosecution claim 

_________________________________________________________________ 

1. The district court also held that Montgomery's state law claims against 

De Simone were time barred and that her state law claims against the 

municipal defendants were barred by governmental immunity. 

Montgomery has not appealed these rulings. 

2. The district court properly exercised jurisdiction over Montgomery's 

section 1983 action and supplemental claims pursuant to 28 U.S.C. 

SS 1331, 1343(a)(3), 1367(a)(1994). We have appellate jurisdiction over 

the district court's order granting summary judgment in favor of the 

defendants pursuant to 28 U.S.C. S 1291(1994). We exercise de novo 

review over the district court's order granting summary judgment. 

Boneberger v. Plymouth Township, 132 F.3d 20, 23 (3d Cir. 1997). 

 6 
therefore is only appropriate if taking all of Montgomery's 

allegations as true and resolving all inferences in her favor, 

a reasonable jury could not find a lack of probable cause 

for Montgomery's stop and arrest. Deary v. Three Un-named 

Police Officers, 746 F.2d 185, 191 (3d Cir. 1984). 

Accordingly, we must examine the evidence presented by 

Montgomery on probable cause and, applying any 

appropriate presumptions, determine whether Montgomery 

has raised a genuine issue of material fact as to whether 

Officer De Simone had probable cause for her stop and 

arrest. 

A. 

At common law, a conviction presumptively establishes 

the existence of probable cause absent a showing that the 

conviction was achieved through perjury, fraud or 

corruption. See generally Lind v. Schmid, 337 A.2d 365, 

370 (N.J. 1975)(stating that a conviction by a magistrate, 

even if subsequently overturned, may raise a rebuttable 

presumption of probable cause for purposes of a malicious 

prosection claim). Derived from the Restatement of Torts,3 

the rule is based on the reasoning that if a factfinder 

determined that the accused was guilty beyond a 

reasonable doubt, the person who initiated the proceedings 

must have had reasonable grounds for so doing. See 

Restatement (Second) of Torts S 667(1) cmt. b. (1977). The 

rule was developed to establish probable cause in a

malicious prosecution action against a private citizen, 

however, not probable cause for arrest by a police officer. 

Bergstralh v. Lowe, 504 F.2d 1276, 1278 (9th Cir. 1974). 

Moreover, not all state courts adhere to this rule. See 

generally C.C. Marvel, Annotation, Conclusiveness, as 

evidence of probable cause in malicious prosecution action, 

_________________________________________________________________ 

3. The Restatement of Torts provides, in relevant part, that: 

 The conviction of the accused by a magistrate or trial court, 

 although reversed by an appellate tribunal, conclusively 

establishes 

 the existence of probable cause, unless the conviction was obtained 

 by fraud, perjury or other corrupt means. 

Restatement (Second) of Torts S 667(1)(1977). 

 7 
of conviction as affected by the fact that it was reversed or 

set aside, 86 A.L.R. 2d 1090 (1962) (discussing position 

taken by various state courts). 

The Supreme Court has not yet made clear whether 

common law rules, such as this Restatement rule, apply to 

section 1983 actions. In determining whether a certain 

common law concept governs a section 1983 action, the 

Court has been guided by the extent to which the common 

law rule is rooted in history and reason and whether the 

policies it serves are compatible with the purposes of 

section 1983. See Owen v. City of Independence, Missouri, 

445 U.S. 622, 638 (1980); City of Newport v. Facts Concerts, 

Inc., 453 U.S. 247, 259 (1981). As explained by the Court: 

 [B]ecause the [Civil Rights Act] was designed to expose 

 state and local officials to a new form of liability, it 

 would defeat the promise of the statute to recognize 

 any preexisting [common law concept] without

 determining both the policies that it serves and its 

 compatibility with the purposes of S 1983. 

City of Newport, 453 U.S. at 259. Although in City of 

Newport the Court expressed its approval of this analysis in 

relation to common law immunity, we find this approach 

equally appropriate in determining whether a general 

common law rule should be applied to section 1983 

actions. 

In Cameron v. Fogarty, 806 F.2d 380 (2d Cir. 1986), our 

sister court of appeals for the Second Circuit followed City 

of Newport and held that a rule similar to the Restatement 

rule applied to section 1983 actions. Where the plaintiff 

had been convicted and the conviction had not been 

overturned, the common law principle that a conviction 

gives the police officer a complete defense barred the 

plaintiff 's section 1983 false arrest claim. Id. at 387-89. 

The court reasoned that the availability of this defense does 

not undermine the goals of section 1983 because the

exclusionary rule is sufficient to deter law enforcement 

officers from making an arrest without probable cause. Id. 

at 388. The court concluded that application of the

common law rule to section 1983 actions struck "the proper 

accommodation between the individual's interest in 

 8 
preventing unwarranted intrusions into his liberty and 

society's interest in encouraging the apprehension of 

criminals . . . ." Id. 

In Rose v. Bartle, 871 F.2d 331 (3d Cir. 1989), we 

criticized the policy considerations underlying Cameron. We 

expressed doubt as to whether the rule announced in

Cameron "reflect[s] the `proper accommodation between the 

individual's interest in preventing unwarranted intrusion 

into his liberty and society's interest in encouraging the 

apprehension of criminals' " in light of the availability of 

qualified immunity as a defense in section 1983 actions. 

Rose, 871 F.2d at 351. 

We hold today that the Restatement's rule that an 

overturned municipal conviction presumptively establish 

probable cause contravenes the policies underlying the Civil 

Rights Act and therefore does not apply to a section 1983 

malicious prosection action. The central aim of the Civil 

Rights Act is to protect citizens from the misuse of power 

by individuals cloaked with the authority of state law. 

Owen, 445 U.S. at 650. As noted by the Court, in enacting 

the Civil Rights Act: 

 Congress clearly conceived that it was altering the 

 relationship between the States and the Nation with 

 respect to the protection of federally created rights; it 

 was concerned that state instrumentalities could not 

 protect those rights; it realized that state officers 

 might, in fact, be antipathetic to the vindication of 

 those rights; and it believed that these failings 

 extended to the state courts . . . . The very purpose of 

 S 1983 was to interpose the federal courts between the 

 States and the people, as the guardians of the people's 

 federal rights -- to protect the people from

 unconstitutional action under color of state law . .. ." 

Mitchum v. Foster, 407 U.S. 225, 242 (1972). Applying a 

presumption of probable cause in a section 1983 action on 

the sole basis of a municipal conviction that has 

subsequently been overturned undermines one of the Civil 

Rights Act's raisons d'etre, i.e., to interpose the federal 

courts, as guardians of federal rights, between the

authority of the states and the people. Accord Heck, 512 

 9 
U.S. at 496 (Souter, J., concurring)(discussing generally the 

Restatement rule and noting that the Court disclaims the 

"untenable" position that a conviction "wipes out a person's 

S 1983 claim for damages for unconstitutional conviction or 

postconviction confinement."). 

B. 

In the absence of a presumption of probable cause 

arising from the municipal conviction, the issue of whether 

De Simone had probable cause to stop and arrest 

Montgomery rests entirely upon the credibility of the 

witnesses. According to Montgomery, she had only had one 

drink on the night in question and could not have been 

exceeding the speed limit. In addition, Montgomery alleges 

that De Simone lied at her trial and that his motive for 

arresting her was unrelated to either her speed or her 

alleged intoxication. Taking all of Montgomery's allegations 

as true and resolving all inferences in her favor as we must, 

we find that a reasonable jury could conclude that 

De Simone did not have probable cause to stop or to arrest 

Montgomery. Montgomery therefore has raised a genuine 

issue of material fact as to probable cause and summary 

judgment on her section 1983 malicious prosection claim 

was accordingly inappropriate. 

III. 

The parties agree that a two-year limitations period 

applies to Montgomery's section 1983 claims. 4 The parties 

disagree, however, as to when the two-year limitations 

period began to run on Montgomery's section 1983 false 

arrest and false imprisonment claims. The defendants 

contends that the limitations period began to run on these 

_________________________________________________________________ 

4. In Wilson v. Garcia, 471 U.S. 261, 276 (1985), the Court held that for 

S 1983 actions, courts should apply the state statute of limitations 

applicable to personal injury torts. We have since held that New Jersey's 

two-year limitations period on personal injury actions, N.J.S.A. 2A: 14-2, 

applies to a civil rights claim under S 1983. Cito v. Bridgewater Township 

Police Dept., 892 F.2d 23, 25 (3d Cir. 1989). The parties are therefore 

correct in assuming that a two-year limitations period applies to 

Montgomery's S 1983 claims. 

 10 
claims on the date of Montgomery's arrest. Montgomery, on 

the other hand, contends that the statute of limitations 

period did not begin to run on these claims until her 

criminal charges were resolved in her favor. 

It is axiomatic that under federal law, which governs the 

accrual of section 1983 claims, "the limitations period 

begins to run from the time when the plaintiff knows or has 

reason to know of the injury which is the basis of the 

section 1983 action." Genty v. Resolution Trust Corp., 937 

F.2d 899, 919 (3d Cir. 1991). A claim for false arrest, 

unlike a claim for malicious prosecution, covers damages 

only for the time of detention until the issuance of process 

or arraignment, and not more. Heck v. Humphrey , 512 U.S. 

477, 484 (1994)(citing W. Page Keeton et al., Prosser and 

Keeton on Law of Torts S119, at 888 (5th ed. 1984)). In 

addition, Montgomery's section 1983 false imprisonment 

claim relates only to her arrest and the few hours she was 

detained immediately following her arrest. See App. 74-76 

(Complaint). Montgomery therefore reasonably knew of the 

injuries that form the basis of these section 1983 claims on 

the night of her arrest. Accordingly, under Gentry, the twoyear limitation period for Montgomery's section 1983 false 

arrest and false imprisonment claims began to run on 

September 30, 1992, the night of Montgomery's arrest and 

detention. Because Montgomery filed her action on 

February 1, 1995, more than two years after the date of her 

arrest, the district court was correct in dismissing 

Montgomery's section 1983 false arrest and false 

imprisonment claims as time barred.5 

_________________________________________________________________ 

5. Montgomery argues that under Heck v. Humphrey, 512 U.S. 477 

(1994), these claims only accrued after her criminal charges were 

resolved in her favor. In Heck, the Court held that a section 1983 claim 

for damages attributable to an unconstitutional conviction or sentence 

does not accrue until that conviction or sentence has been invalidated. 

Heck, 512 U.S. at 489-90. The Court also noted, however, that if a 

successful claim would not demonstrate the invalidity of any outstanding 

criminal judgment, it should be allowed to proceed. Id. at 487. Because 

a conviction and sentence may be upheld even in the absence of 

probable cause for the initial stop and arrest, wefind that Montgomery's 

claims for false arrest and false imprisonment are not the type of claims 

contemplated by the Court in Heck which necessarily implicate the 

 11 
IV. 

Under 42 U.S.C. S 1983, municipal defendants cannot be 

held liable under a theory of respondeat superior; municipal 

liability only arises when a constitutional deprivation 

results from an official custom or policy. Monell v. 

Department of Social Servs. of City of New York, 436 U.S. 

658, 691-94 (1978). Furthermore, a municipality's failure to 

train police officers only gives rise to a constitutional 

violation when that failure amounts to deliberate 

indifference to the rights of persons with whom the police 

come into contact. City of Canton, Ohio v. Harris, 489 U.S. 

378, 388 (1989). We have held that a failure to train, 

discipline or control can only form the basis for section 

1983 municipal liability if the plaintiff can show both 

contemporaneous knowledge of the offending incident or 

knowledge of a prior pattern of similar incidents and 

circumstances under which the supervisor's actions or 

inaction could be found to have communicated a message 

of approval to the offending subordinate. See Boneberger v. 

Plymouth Township, 132 F.3d 20, 25 (3d Cir. 1997). 

Montgomery's claims against the municipal defendants 

rest on allegations that these defendants are directly 

responsible for De Simone's action and that they failed to 

adequately train, discipline or control De Simone which give 

him the opportunity to harass and unlawfully detain

Montgomery. To the extent that these claims are based 

upon a respondeat superior theory, they are barred under 

Monell. In addition, Montgomery's failure to train, discipline 

or control claim seems to be based on the contention that 

De Simone was never trained not to sexually harass the 

female public and was not disciplined as a result of the 

incident involving Montgomery. Montgomery, however,

points to no inadequacy in De Simone's police training 

_________________________________________________________________ 

validity of a conviction or sentence. See Mackey v. Dickson, 47 F.3d 744, 

746 (5th Cir. 1995)(stating that "[i]t is well established that a claim of 

unlawful arrest, standing alone, does not necessarily implicate the 

validity of a criminal prosecution following the arrest."). Accordingly, 

we 

read Heck to be consistent with our determination that Montgomery's 

false arrest and false imprisonment claims accrued on the night of her 

arrest. 

 12 
program. In addition, she has failed to allege any action or 

inaction by the municipal defendants that could be 

interpreted as encouraging De Simone's offensive actions. 

Because Montgomery's allegations do not implicate the type 

of deliberate indifference required for section 1983 

municipal liability, the district court was correct in granting 

summary judgment in favor of the municipal defendants on 

Montgomery's section 1983 claims. 

V. 

For the foregoing reasons, we will affirm the district 

court's order dismissing Montgomery's section 1983 false 

arrest, false imprisonment, and municipal liability claims. 

We will reverse that portion of the district court's order 

dismissing Montgomery's section 1983 malicious 

prosecution claim against Officer De Simone because

Montgomery has raised a genuine issue of material fact as 

to probable cause and remand for further proceedings. 

 13 
ROTH, Circuit Judge, Dissenting: 

I join in parts I, III, and IV of the majority opinion which 

holds that Montgomery's false arrest and false 

imprisonment claims are time-barred and which affirms 

summary judgment in favor of the municipal defendants on 

the S 1983 claims. I do not agree, however, with the 

majority's conclusion in Part II that, in an action for 

malicious prosecution under S 1983, an overturned 

conviction does not presumptively establish probable cause. 

The majority holds that such a rule contravenes the

policies underlying the Civil Rights Act. I maintain, to the 

contrary, that the Restatement of Torts/Common Law rule 

should apply. Under this rule, unless a conviction is 

contrary to established law or has been obtained by fraud, 

perjury or other corrupt means, such a conviction, even if 

it is ultimately overturned, has still presumptively 

established probable cause to pursue the original 

prosecution. I believe that the majority's exception for 

actions under S 1983 should not be extended beyond the 

already recognized exceptions. Indeed, with the availability 

of these Restatement/Common Law exceptions, the 

purpose of S 1983 is not defeated. 

As the majority states, in order to prevail on a claim of 

malicious prosecution under S 1983, a plaintiff must 

establish, among other things, the absence of probable 

cause for the original proceeding brought against the 

plaintiff. Rose v. Bartle, 871 F.2d 331, 349 (3d Cir. 1989) 

(citing Lee v. Mihalich, 847 F.2d 66, 69-70 (3d Cir. 1988). In 

reversing the district court, the majority concludes that the 

common law rule, establishing a presumption of probable 

cause from a conviction later reversed, should not apply to 

S 1983 actions. 

The majority acknowledges that the case law reflects 

exceptions to the common law rule so that a conviction 

subsequently overturned establishes only a rebuttable 

presumption of probable cause. See Lind v. Schmid, 337 

A.2d 365 (N.J. 1975). The common law rule is based on the 

concept that, if a fact finder determines guilt beyond a 

reasonable doubt, there must have been probable cause for 

doing so unless it is later determined that the conviction 

was fraudulently or corruptly obtained. Id. 

 14 
The majority does not, however, adopt the 

Restatement/Common Law rebuttable presumption. 

Instead, they conclude that, when a malicious prosecution 

action is brought under S 1983, an overturned municipal 

court conviction does not presumptively establish probable 

cause. Majority at 8-9. Because I conclude that the

purposes of S 1983 are not offended by application of a 

rebuttable presumption and because I find that the district 

court committed no legal error in applying the common law 

rule in its summary judgment determination, I respectfully 

dissent. 

In this case, Montgomery's municipal court conviction 

was overturned upon a trial de novo by the state superior 

court. After deeming radar gun evidence inadmissible, the 

superior court judge concluded that Montgomery could not 

be found guilty beyond a reasonable doubt. If, however, a 

failure to find guilt beyond a reasonable doubt could negate 

a finding of probable cause to initiate the proceeding, every 

successful appeal would prompt a claim of malicious

prosecution. 

In its analysis, the district court examined the effect of 

the overturned municipal conviction on the malicious 

prosecution claim. The court relied on the common law rule 

to conclude that if a magistrate's determination of guilt was 

reasonably reached (even if later overturned), the 

presumption of probable cause should not be disturbed 

unless rebutted with evidence that the conviction was 

obtained fraudulently. See, e.g., Lind at 370. The district 

court then found that the New Jersey magistrate had relied 

both on radar evidence and on Officer De Simone's 

testimony of a visual estimate of a speeding violation and 

had reasonably concluded that there was probable cause to 

stop Montgomery and to find her guilty of speeding.

Although the superior court ultimately deemed the radar 

evidence to be inadmissible because a proper foundation 

had not been laid, the district court reasoned, correctly I 

believe, that the inadmissibility of the radar evidence 

should have no effect on whether it was reasonable to 

prosecute Montgomery in the first place. 

The District Court's dismissal of the malicious 

prosecution claim hinged on Montgomery's failure to

 15 
establish such an absence of probable cause. I believe that 

the reversal of the municipal court conviction, based on 

insufficient evidence to prove guilt beyond a reasonable 

doubt, should not be sufficient to dislodge afinding of 

probable cause to initiate the proceeding. A reversal for 

insufficient evidence is not a finding that the conviction was 

brought about fraudulently or corruptly. 

The majority concludes to the contrary that the 

rebuttable presumption should not apply here because we 

are dealing with a claim of malicious prosecution under 

S 1983. The majority reasons that, since the Civil Rights Act 

was created to interpose the federal courts between the 

misuse of state authority and individuals, we would violate 

the goals of the Civil Rights Act if we were to allow a 

reversed conviction to create a presumption of probable 

cause in a S 1983 malicious prosecution claim. 

The Second Circuit has also adopted the common law 

exceptions in a S 1983 action for false arrest. In Cameron v. 

Fogarty, 806 F.2d 380, 388 (2d Cir. 1988), that court held 

that the common law rule provides a sufficient balance 

between individual liberty interests and societal interest in 

law enforcement because the exclusionary rule sufficiently 

deters police from arresting without probable cause. The 

majority points out that this Court has questioned whether 

the rule in Cameron reflects the "proper accommodation" 

between individual and societal interests. Rose v. Bartle, 

871 F.2d 331 (3d Cir. 1989). Cameron and Rose, however, 

both involved claims for false arrest. I conclude that the 

difference between a false arrest claim, in which a person 

may have been illegally arrested even though guilty of the 

prosecuted offense, is very different from a malicious 

prosecution claim where the propriety of the prosecution 

itself depends on it being initiated with probable cause. For 

this reason, I do not find that our concern in Rose carries 

over to the present situation. 

The majority also quotes with approval from Justice

Souter's concurrence in Heck v. Murphy where he called 

"untenable" the notion that a municipal conviction could 

"wipe out" a S 1983 claim. Heck v. Humphrey, 512 U.S. 

477, 496 (1994). But, the common law rule does not wipe 

out a person's S 1983 claim. To the contrary, it raises a 

 16 
rebuttable presumption of probable cause. This 

presumption may be rebutted with a showing that the

conviction was brought about through fraud or coercion, 

precisely the type of conduct which S 1983 was created to 

guard against. Applying the common law rule of a 

rebuttable presumption of probable cause in the case before 

us does not interfere with the goals of the Civil Rights Act. 

For the foregoing reasons, I respectfully dissent. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 17