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. e du/thir dc ir c uit_1998/249Filed 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 Townsh ip 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 AppellantMichael 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 th e events surrounding her arrest on September 30, 1992. Montgomery alleges that Officer Jeffrey De Simone d id not have probable cause to stop and arrest her for spee ding 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 upo n de novo review, conclusively establish probable cause and necessarily negate any possibility that Montgomery could establish her section 1983 malicious prosecution cl aim. We hold that they do not. Accordingly, because we find that Montgomery has raised a genuine issue of material f act as to probable cause, we will reverse the district cou rt's grant of summary judgment in favor of Officer De Simone o n

2Montgomery's section 1983 malicious prosection clai m 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 fa lse arrest and false imprisonment claims began to run o n the night of Montgomery's arrest and that her claims ag ainst the municipal defendants fail because Montgomery's allegations are insufficient to establish municipal liability. Accordingly, we will affirm the district court's or der dismissing those claims.

I.

On September 30, 1992, Officer Jeffrey De Simone stopped Rosemary Montgomery, arrested her and charg ed her with speeding, driving while intoxicated, and r efusing to take a breathalyzer test. At Montgomery's municipal hearing, Officer De Simone testified that he stoppe d Montgomery because she was traveling at approximate ly 55 m.p.h. in a 40 m.p.h. zone. De Simone testified tha t he estimated Montgomery's speed prior to the stop base d on his own observation and a radar reading. According to De Simone, when he stopped Montgomery he detected a st rong odor of alcohol on her breath. De Simone testified that Montgomery had difficulty locating her license in h er 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 wh en 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 sw aying and staggering" when standing and walking.

De Simone further testified that during the stop, a second car pulled up to ask directions. De Simone t hen instructed Montgomery to drive her car across the r oad 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 stati on De Simone advised Montgomery for the first time that s he was under arrest, read her her Miranda rights, and aske d her to take a breathalyzer test. Montgomery refused the te st.

3Montgomery's testimony at her municipal trial paint ed a

dramatically different picture of the events surrou nding her arrest. According to Montgomery, she had just retur ned 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. S he further testified, and her friend corroborated, tha t 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 fri end further testified that Montgomery did not appear to be intoxicated and that they parted company at approxi mately 11:20 p.m.

Montgomery testified that after leaving her friend' s house, she had been stopped at a red light which was locat ed less

than one tenth of a mile from the intersection wher e De Simone testified she was traveling at 55 m.p.h. In her deposition in this case, Montgomery further testifi ed that she could not have been exceeding the speed limit i n that short distance in her Hyundai and that she knows sh e was not speeding. She also testified that De Simone lie d at her municipal trial.

At her municipal trial, Montgomery testified that s he did have trouble finding her license for De Simone beca use 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 c orrectly

when asked but De Simone never asked her to leave h er vehicle for sobriety tests.

Montgomery testified that at one point during the s top De Simone stated "I shouldn't be doing this but would you pull

across to behind Wall Street and wait for me?" Mont gomery testified that she was unaware of anyone stopping a nd asking for directions. After she waited in the park ing lot for about five to ten minutes, De Simone pulled up behi nd her with no overhead lights on. De Simone got out of th e car and his demeanor changed. De Simone asked Montgomer y if she liked policemen and if she dated them. Montg omery testified that she was very uncomfortable and tried to

4change 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 off ered to take her to the station to make a phone call. Montg omery testified that De Simone's demeanor again changed a nd 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 Montgome ry'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 prob able cause for the stop and the arrest for drunk driving based entirely upon De Simone's testimony. In addition, a fter hearing all the testimony offered, the municipal ju dge found Montgomery guilty of speeding, drunk driving, and r efusing to take a breathalyzer test. Montgomery appealed he r convictions.

On February 4, 1994, a trial de novo was held in th e Superior Court of New Jersey. The court reversed Montgomery's convictions entering not guilty verdic ts on all charges. The Superior Court judge expressed doubt a s to whether Montgomery was speeding, given her testimon y that she had been stopped at a light just a short d istance 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 lo t after she allegedly failed several sobriety tests.

On February 1, 1995, Montgomery filed a complaint i n 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 ar rest 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 rela ting to her arrest. On March 11, 1997, the district courtfi led an order holding that (1) Montgomery's section 1983 cl aim for

5malicious prosecution failed as a matter of law bec ause the

municipal judge had reasonably determined that prob able cause existed for the arrest; (2) the two year stat ute of limitations for Montgomery's section 1983 false arr est 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 munici pal defendants should be dismissed because Montgomery f ailed to produce evidence that would raise a genuine issu e of material fact on those claims.1 Montgomery timely f iled 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 s ummary 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 estab lish an absence of probable cause for purposes of her secti on 1983 malicious prosecution claim.

We have held that the question of probable cause in a section 1983 damage suit is one for the jury. Patzi g v. O'Neil, 577 F.2d 841, 848 (3d Cir. 1978). Summary judgment on Montgomery's malicious prosecution clai m

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

De Simone were time barred and that her state law c laims against the municipal defendants were barred by governmental im munity. Montgomery has not appealed these rulings.

2. The district court properly exercised jurisdicti on over Montgomery's section 1983 action and supplemental claims pursuan t to 28 U.S.C. SS 1331, 1343(a)(3), 1367(a)(1994). We have appella te jurisdiction over the district court's order granting summary judgmen t in favor of the defendants pursuant to 28 U.S.C. S 1291(1994). We e xercise de novo review over the district court's order granting sum mary judgment. Boneberger v. Plymouth Township, 132 F.3d 20, 23 (3 d Cir. 1997).

6therefore is only appropriate if taking all of Mont gomery'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 Montgom ery has raised a genuine issue of material fact as to w hether Officer De Simone had probable cause for her stop a nd

arrest.

A.

At common law, a conviction presumptively establish es the existence of probable cause absent a showing th at 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 magi strate, even if subsequently overturned, may raise a rebutt able presumption of probable cause for purposes of a mal icious prosection claim). Derived from the Restatement of Torts,3 the rule is based on the reasoning that if a factfi nder determined that the accused was guilty beyond a reasonable doubt, the person who initiated the proc eedings must have had reasonable grounds for so doing. See Restatement (Second) of Torts S 667(1) cmt. b. (197 7). The rule was developed to establish probable cause in a malicious prosecution action against a private citi zen, however, not probable cause for arrest by a police officer. Bergstralh v. Lowe, 504 F.2d 1276, 1278 (9th Cir. 1 974). 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,

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

The conviction of the accused by a magistrat e 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).

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

set aside, 86 A.L.R. 2d 1090 (1962) (discussing pos ition taken by various state courts).

The Supreme Court has not yet made clear whether common law rules, such as this Restatement rule, ap ply to section 1983 actions. In determining whether a cert ain common law concept governs a section 1983 action, t he Court has been guided by the extent to which the co mmon law rule is rooted in history and reason and whethe r the policies it serves are compatible with the purposes of section 1983. See Owen v. City of Independence, Mis souri, 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 designe d to expose

state and local officials to a new form of l iability, it would defeat the promise of the statute to r ecognize 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 an alysis in relation to common law immunity, we find this appro ach equally appropriate in determining whether a genera l 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 foll owed City of Newport and held that a rule similar to the Rest atement rule applied to section 1983 actions. Where the pla intiff

had been convicted and the conviction had not been overturned, the common law principle that a convict ion gives the police officer a complete defense barred the plaintiff 's section 1983 false arrest claim. Id. a t 387-89. The court reasoned that the availability of this de fense does not undermine the goals of section 1983 because the exclusionary rule is sufficient to deter law enforc ement officers from making an arrest without probable cau se. 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

8preventing 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 Cam eron. We expressed doubt as to whether the rule announced in Cameron "reflect[s] the `proper accommodation betwe en the individual's interest in preventing unwarranted int rusion into his liberty and society's interest in encourag ing the apprehension of criminals' " in light of the availa bility of qualified immunity as a defense in section 1983 act ions. Rose, 871 F.2d at 351.

We hold today that the Restatement's rule that an overturned municipal conviction presumptively estab lish probable cause contravenes the policies underlying the Civil Rights Act and therefore does not apply to a sectio n 1983 malicious prosection action. The central aim of the Civil Rights Act is to protect citizens from the misuse o f power by individuals cloaked with the authority of state law. Owen, 445 U.S. at 650. As noted by the Court, in en acting the Civil Rights Act:

Congress clearly conceived that it was alter ing the relationship between the States and the Nati on with respect to the protection of federally creat ed rights; it

was concerned that state instrumentalities c ould not protect those rights; it realized that state officers might, in fact, be antipathetic to the vindi cation of those rights; and it believed that these fai lings

extended to the state courts . . . . The ver y purpose of S 1983 was to interpose the federal courts b etween the States and the people, as the guardians of t he 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). Applyi ng a presumption of probable cause in a section 1983 act ion 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

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

Restatement rule and noting that the Court disclaim s the "untenable" position that a conviction "wipes out a person's S 1983 claim for damages for unconstitutional convi ction 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 t he witnesses. According to Montgomery, she had only ha d one drink on the night in question and could not have b een exceeding the speed limit. In addition, Montgomery alleges

that De Simone lied at her trial and that his motiv e for arresting her was unrelated to either her speed or her alleged intoxication. Taking all of Montgomery's al legations as true and resolving all inferences in her favor a s 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 genui ne issue of material fact as to probable cause and sum mary judgment on her section 1983 malicious prosection c laim was accordingly inappropriate.

III.

The parties agree that a two-year limitations perio d applies to Montgomery's section 1983 claims. 4 The parties disagree, however, as to when the two-year limitati ons period began to run on Montgomery's section 1983 fa lse arrest and false imprisonment claims. The defendant s contends that the limitations period began to run o n these

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4. In Wilson v. Garcia, 471 U.S. 261, 276 (1985), t he Court held that for S 1983 actions, courts should apply the state statu te of limitations applicable to personal injury torts. We have since held that New Jersey's two-year limitations period on personal injury acti ons, 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 p arties are therefore correct in assuming that a two-year limitations per iod applies to Montgomery's S 1983 claims.

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

the other hand, contends that the statute of limita tions period did not begin to run on these claims until h er criminal charges were resolved in her favor.

It is axiomatic that under federal law, which gover ns the accrual of section 1983 claims, "the limitations pe riod begins to run from the time when the plaintiff know s or has reason to know of the injury which is the basis of the section 1983 action." Genty v. Resolution Trust Cor p., 937 F.2d 899, 919 (3d Cir. 1991). A claim for false arr est, unlike a claim for malicious prosecution, covers da mages only for the time of detention until the issuance o f process or arraignment, and not more. Heck v. Humphrey , 51 2 U.S. 477, 484 (1994)(citing W. Page Keeton et al., Pross er and Keeton on Law of Torts S119, at 888 (5th ed. 1984)) . In addition, Montgomery's section 1983 false imprisonm ent 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 o f 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 198 3 false arrest and false imprisonment claims began to run o n September 30, 1992, the night of Montgomery's arres t and detention. Because Montgomery filed her action on February 1, 1995, more than two years after the dat e of her arrest, the district court was correct in dismissin g Montgomery's section 1983 false arrest and false imprisonment claims as time barred.5

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5. Montgomery argues that under Heck v. Humphrey, 5 12 U.S. 477 (1994), these claims only accrued after her crimina l charges were resolved in her favor. In Heck, the Court held that a section 1983 claim for damages attributable to an unconstitutional con viction or sentence

does not accrue until that conviction or sentence h as been invalidated. Heck, 512 U.S. at 489-90. The Court also noted, how ever, that if a

successful claim would not demonstrate the invalidi ty 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, wef ind 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

11IV.

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 depriva tion results from an official custom or policy. Monell v

. Department of Social Servs. of City of New York, 43 6 U.S. 658, 691-94 (1978). Furthermore, a municipality's f ailure to train police officers only gives rise to a constitu tional

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 tra in, discipline or control can only form the basis for s ection 1983 municipal liability if the plaintiff can show both contemporaneous knowledge of the offending incident or knowledge of a prior pattern of similar incidents a nd circumstances under which the supervisor's actions or inaction could be found to have communicated a mess age of approval to the offending subordinate. See Boneb erger v. Plymouth Township, 132 F.3d 20, 25 (3d Cir. 1997).

Montgomery's claims against the municipal defendant s rest on allegations that these defendants are direc tly responsible for De Simone's action and that they fa iled to adequately train, discipline or control De Simone w hich give him the opportunity to harass and unlawfully detain Montgomery. To the extent that these claims are bas ed 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 contentio n that De Simone was never trained not to sexually harass the female public and was not disciplined as a result o f the incident involving Montgomery. Montgomery, however, points to no inadequacy in De Simone's police train ing

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validity of a conviction or sentence. See Mackey v. Dickson, 47 F.3d 744, 746 (5th Cir. 1995)(stating that "[i]t is well esta blished that a claim of unlawful arrest, standing alone, does not necessari ly implicate the validity of a criminal prosecution following the ar rest."). Accordingly,

we read Heck to be consistent with our determination t hat Montgomery's false arrest and false imprisonment claims accrued on the night of her

arrest.

12program. 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 ac tions. Because Montgomery's allegations do not implicate t he type of deliberate indifference required for section 198 3 municipal liability, the district court was correct in granting summary judgment in favor of the municipal defendan ts on Montgomery's section 1983 claims.

V.

For the foregoing reasons, we will affirm the distr ict 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 f act as to probable cause and remand for further proceeding s.

13ROTH, Circuit Judge, Dissenting:

I join in parts I, III, and IV of the majority opin ion which holds that Montgomery's false arrest and false imprisonment claims are time-barred and which affir ms summary judgment in favor of the municipal defendan ts on the S 1983 claims. I do not agree, however, with th e majority's conclusion in Part II that, in an action for malicious prosecution under S 1983, an overturned conviction does not presumptively establish probabl e cause.

The majority holds that such a rule contravenes the policies underlying the Civil Rights Act. I maintai n, 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 presumptivel y established probable cause to pursue the original prosecution. I believe that the majority's exceptio n for actions under S 1983 should not be extended beyond the already recognized exceptions. Indeed, with the ava ilability of these Restatement/Common Law exceptions, the purpose of S 1983 is not defeated.

As the majority states, in order to prevail on a cl aim of malicious prosecution under S 1983, a plaintiff mus t establish, among other things, the absence of proba ble cause for the original proceeding brought against t he plaintiff. Rose v. Bartle, 871 F.2d 331, 349 (3d Ci r. 1989) (citing Lee v. Mihalich, 847 F.2d 66, 69-70 (3d Cir . 1988). In reversing the district court, the majority conclude s that the common law rule, establishing a presumption of prob able cause from a conviction later reversed, should not apply to

S 1983 actions.

The majority acknowledges that the case law reflect s exceptions to the common law rule so that a convict ion subsequently overturned establishes only a rebuttab le 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 bey ond a reasonable doubt, there must have been probable cau se for doing so unless it is later determined that the con viction was fraudulently or corruptly obtained. Id.

14The majority does not, however, adopt the

Restatement/Common Law rebuttable presumption. Instead, they conclude that, when a malicious prose cution action is brought under S 1983, an overturned munic ipal court conviction does not presumptively establish p robable 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 comm on law rule in its summary judgment determination, I respe ctfully

dissent.

In this case, Montgomery's municipal court convicti on was overturned upon a trial de novo by the state su perior court. After deeming radar gun evidence inadmissibl e, the superior court judge concluded that Montgomery coul d not be found guilty beyond a reasonable doubt. If, howe ver, a failure to find guilt beyond a reasonable doubt cou ld negate a finding of probable cause to initiate the proceed ing, every successful appeal would prompt a claim of malicious prosecution.

In its analysis, the district court examined the ef fect of the overturned municipal conviction on the maliciou s prosecution claim. The court relied on the common l aw 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 disturb ed

unless rebutted with evidence that the conviction w as 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 violat ion and had reasonably concluded that there was probable ca use to stop Montgomery and to find her guilty of speeding. Although the superior court ultimately deemed the r adar evidence to be inadmissible because a proper founda tion had not been laid, the district court reasoned, cor rectly I believe, that the inadmissibility of the radar evid ence 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

15establish such an absence of probable cause. I beli eve that

the reversal of the municipal court conviction, bas ed on insufficient evidence to prove guilt beyond a reaso nable doubt, should not be sufficient to dislodge afindin g of probable cause to initiate the proceeding. A revers al for insufficient evidence is not a finding that the con viction was brought about fraudulently or corruptly.

The majority concludes to the contrary that the rebuttable presumption should not apply here becaus e we are dealing with a claim of malicious prosecution u nder 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 all ow a reversed conviction to create a presumption of prob able 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 cou rt held that the common law rule provides a sufficient bala nce between individual liberty interests and societal i nterest in law enforcement because the exclusionary rule suffi ciently deters police from arresting without probable cause . The majority points out that this Court has questioned whether the rule in Cameron reflects the "proper accommodat ion"

between individual and societal interests. Rose v. Bartle, 871 F.2d 331 (3d Cir. 1989). Cameron and Rose, howe ver, both involved claims for false arrest. I conclude t hat 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 malici ous prosecution claim where the propriety of the prosec ution 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 cal led "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 ra ises a

16rebuttable presumption of probable cause. This

presumption may be rebutted with a showing that the conviction was brought about through fraud or coerc ion, precisely the type of conduct which S 1983 was crea ted to guard against. Applying the common law rule of a rebuttable presumption of probable cause in the cas e before us does not interfere with the goals of the Civil R ights 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