NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________

No. 18

- 2151

_____________ ROGER VANDERKLOK, Appellant

v. UNITED STATES OF AMERICA; TRANSPORTATION SECURITY ADMINISTRATION (TSA); CHARLES KIESER, (TSA); CITY OF PHILADELPHIA; RAYMOND PINKNEY, (PHILADELPHIA POLICE); MICHAEL WOJCIECHOWSKI, (PHILADELPHIA POLICE); KENNETH FLAVILLE, (PHILADELPHIA POLICE); JEH JOHNS ON, (DEPARTMENT OF HOMELAND SECURITY); JOHN S. PISTOLE, (TSA)

_______________ On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2

- 15

- cv - 0 0 3 7 0 ) District Judge: Hon. Gerald J. Pappert

_______________ Submitted Under Third Circuit LAR 34.1(a) June 11 , 2019 Before: JORDAN , BIBAS, and NYGAARD, Circuit Judges. (Filed : June 12, 2019 )

_______________ OPINION ∗

_______________

∗ This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7, does not constitute binding precedent.2 JORDAN, Circuit Judge

. Roger Vanderklok appeals the District Court’s dismissal of his suit against Philadelphia police officers Raymond Pinkney, Michael Wojc iechowski, and Kenneth Flaville (the “police officer defendants”). H e contends t hat the District Court erred by concluding that the police officer defendants , whom he sued under 42 U.S.C. § 1983, had probable cause to arrest him , and that the Court further erred in its alternative conclusion that they were entitled to qualified immunity. This is not Van derklok’s first appeal

. We previously r uled that Vanderklok was not entitled to a remedy against Transportation Security Administration (“TSA”) a gent Charles Kieser on his First Amendment retaliation claim. Vanderklok v. United States , 868 F.3d 189 , 209 (3d Cir. 2017). Having been denied reli ef against Kieser, Vanderklok now seeks a recovery from the police
officer defendants who, based on Kieser’s complaint , made the arrest

. For the following reasons, we will affirm.
I. B ACKGROUND As described in our earlier opinion, Vanderklok was flying from Philadelphia to Miami, where he planned to run a marathon. He proceeded to the TSA security checkpoint and sent his carry

- on bag through the X

- ray screening device. A section of PVC pipe , containing a heart monito ring watch , and some Pow er Bars (an energy supplement) , were packed in his bag

. That evidently prompted TSA agents to ask Vanderklok to step aside f or additional inspection

. The interaction did not go well, and Kieser c alled the Philadelphia Police

. Officer Pink n ey respond ed

. Kieser reported that Vanderklok had “angrily said to [Kieser] that ‘anybody can bring a bomb and you3 wouldn’t even know it.’” (App. at 4 6 .) Pinkney then arrested Vanderklok

. Vanderklok

was placed in a cell and later transported to the Philadelphia Police District , where he was processed by Officer Wojciechowski. Pinkney prepared the Complaint Report , and Wojcie chowski completed the Investigation Report , which Officer Flaville approved. Vanderklok was charged with “ Threatening Placement of a Bomb [ , ] ” “Terroristic Threats [ , ] ” and “Disorderly Conduct .” (App. at 46

- 47.) But , at his criminal trial , the court granted his motion for a judgme nt of acquittal at the close of the prosecution’s case. Vanderklok then sued the police officer defendants for claims including ones : (1) pursuant to 42 U.S.C. § 1983 for an unconstitutional search and seizure in violation of his Fourth Amendment rights; (2) pursuant to § 1983 for infringement of his freedom of speech in violation of his First Amendment rights; (3) pursuant to Pennsylvania state law for false arrest, false imprisonment, battery , and assault; and (4) pursuant to Pennsyl vania state law and § 1983 for malicious prosecution and retaliatory p rosecution. The police officer defendants filed a motion t o dismiss, which the District Court
gr anted. T he Court centered its reasoning on what Pinkney , the arresting officer, knew at the time of the arrest , because the propriety of “a warrantless arrest is fundamentally a factual analysis that must be performed by the officers at the scene

. ” (App. at 18 (quoting United States v. Glasser , 750 F.2d 1197, 1206 (3d Cir. 1984 ) ). ) According to the Court, “the ‘objective facts available to’ Pinkney were provided by Kieser[ , ]” and

“ Vanderklok has not alleged that Pinkney did not find, or should not have found, Kieser to be credible at the time Pinkney made the arrest. ” (App. at 18

- 19 .) Therefore, the
C ourt concluded , “ Pinkney had the ‘requisite basis to seize’ Vanderklok ” and4 “ Wojciechowski and Flaville were entitled to rely on [Keiser’s] specific s tatements.” (App. at 21 ( quoting Rogers v. Powell , 120 F.3d 446, 453 (3d Cir. 1997 ) ).) In finding that the officers had probable cause to arrest Vanderklok, the District Court only analyzed the disorderly conduct charge because “[p]robable cause need only exist as to any offense that could be charged under the circumstances.” (App. at 18 (quoting Barna v. City of Perth Amboy , 42 F.3d 809, 819 (3d Cir. 1994)). ) It found
p robable cause existed be cause “[m]entions of possessing a bomb or sneaking a bomb through airport se curity

— particularly those [mentions] made ‘angrily’

— may be cause for alarm and the basis of a disorderly conduct charge.” (App. at 20 (cit ation omitted) .) In this case, that stat ement was “made in a public area with several other passengers nearby.” ( App. at 11

- 12 (citation omitted)

. ) Thus, the C ourt concluded that Vanderklok’s words “ risked causing a disturbance.” (App. at 19 ( emphasis in original). ) In the alternative, it held that, “[i] n the absence of prior case law showing that the decision made by the [police officer defendants] t o arrest Vanderklok violated a ‘ clearly establis hed’ Fourth Amendment right, qualified immunity would shield them from liability even if proba ble cause was missing.” (App. at 23.) The Court therefore dismissed all claims against the m . Vanderklok timely appealed.5 II. D ISCUSSION 1 Vanderklok argues the District Court erred both in determining that his rights were

not violated and that the p olice officer defendants were entitled to qualified immunity. We need not address Vanderklok ’s first argument, however, because the District Court properly determined that the police officer defendants were entitled to immunity from this suit. “[Q] ualified immunity is in part an entitlement not to be forced to litigate the

c onsequences of official conduct[.]” Mitchell v. Forsyth , 472 U.S. 511, 527 (1985). Thus, “ l aw enforcement officers acting within their professional capacity are generally immun e from trial insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Wilson v

. Russo , 212 F. 3d 781, 786 (3d Cir. 2000) (citation and internal quotation marks omitted)

. In order to determine if a right is clearly established, courts “ look at the circumstances that confronted [the officer] and ... compare [them to] the circumstances present in those cases [in] which [courts] have concluded that there was an absence of probable cause. ” Paff v. Kaltenbach , 204 F.3d 425, 437 (3d Cir. 2000) . Only “[i]f ther e are cases that would make it ‘ apparent ’ to a reasonable officer in [the defendant’s] position that probable cause was lacking, [is] qualified immunity

... not available

. ” Id.

1 The District Court had subject matter jurisdiction under 28 U.S.C. § 1331 and 28 U.S.C. § 1367. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo a dismissal under Federal Rule of Civil Procedure Rule 12(b)(6). Phillips v. Ct y. of Allegheny , 515 F.3d 224, 230 (3d Cir. 2008).6 (citation omitted). I t is not sufficient that the right be established in a general sense; instead , “[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton , 483 U.S. 635, 640 (1987) . Here, Vande rklok has not brought forward any authority, and we can find none, establishing that probable cause to arrest an individual for disorderly conduct is lacking when that individual has made an angr y statement about bombs in an airport’s TSA screening area. For that reason alone, Vanderklok’s argument against immunity fails. Far from it being clearly established that probable cause was lacking , the most persuasive authority we are aware of support s the conclusion that making comments of the sort Kieser reported would be enough to establish probable cause for a disorderly
conduct charge. In Mustafa v. City of Chicago , a passenger at an airport was reported to the police for being “unruly” and stating , “M aybe I have a bomb [

. ] ” 442 F.3d 544, 546 (7th Cir. 2006) . The Seventh Circuit concluded “ it was reasonable for the officers to conclude that [the passenger] had committed disorderly conduct by stating that she might have a bomb in her purse .” Id. at 548. Vanderklok attempts to distinguish Mustafa by contending that the passenger’s statement was made in a different manner than Vanderklok ’s , as he “was not described as screaming or oth erwise creating a ‘commotion.’” (Opening Br. at 19 (quoting Mustafa , 442 F.3d at 547 ).) But the manner of the passenger’s statement was only one ground for determining probable cause existed
in Mustafa . T he other independent ground was the statement itself. 442 F.3d at 547. Moreover, it is undisputed that Kieser told Pinkney that Vanderklok was indeed agitated7 and angry. I n light of Mustafa , it is difficult to see how it could be clearly established that Pinkney did not have probable cause to arrest Vanderklok. Nonetheless, V anderklok argues that the Distr ict Court erred in finding there was probable cause

. He asserts that , for two reasons, it was clearly established that the police
officer defendants could not legally arrest him. First, he contends that it is clearly established “ that the statement ‘anybody can bring a bomb and you wouldn’t even know it,’ when made to a TSA agent at an airport security checkpoint” is a statement protected by the First Amendment. (Opening Br. at 22.) Second, he contends that it is clearly established that a mention of a bomb in an airport se curity line, without more, “ does not establish [] probable cause for an arrest for disorderly conduct[] ” in Pennsylvania. (Opening Br. at 1 3. ) The first of those arguments looks like an effort to move the merits of Vanderklok’s First Amendment argument ahead of the qualified immunity defense. But we are focused on the defense, and it requires us to ask not whether Vanderklok had First Amendment rights but whether the law clearly establishes that he had a right to angrily talk ab out explosives in an airport’s security screening area. That is the factual context as Pinkney understood it , and it is the pertin ent context for our analysis. See Merkle v. Upper Dublin Sch. Dist. , 211 F.3d 782, 790 (3d Cir. 2000) (“The question therefore becomes whether a reasonable person in [the officer’s] position could have concluded, based on th[e] knowledge [he had], that [the plaintiff] had committed a crime.”). For the reasons already discussed, existing law does not appe ar to support the right that Vanderklok claims, let alone clearly establishing it. Mustafa , 442 F.3d at 548.8 As for the second argume nt

– that the mere mention of a bomb in an airport security line does not create probable cause for a disorderly conduct charge under Pennsylvania law

– it too is unpersuasive. “Whethe r any particular set of facts

... [establish es ] probable cause requires an examination of the elements of the crime at issue.” Wright v

. City of Philadelphia , 409 F.3d 595, 602 (3d Cir. 2005). “A person is guilty of disorderly conduct if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he: ... creates a hazardous or physically offensive condition by any act which serves no legitimate purpose o f the actor.” 18 Pa.
C ons. Stat. § 5503(a)(4) . Based on that catch

- all provision, “words or acts [can] rise to the level of disorderly conduct” if “ they cause or unjustifiably risk a public disturbance.” Commonwealth v. Hock , 728 A.2d 943, 946 (Pa. 1999). Van d erklok points out that a charge of disorderly conduct requires at least reckless intent to cause public inconv enience, annoyance , or alarm

. Commonwealth v. Weiss , 490 A.2d 853, 857 ( Pa. Super. Ct. 1985). And he argues that for words to support such a charge , they “ must be uttered with the intent and in a manner to ‘cause or unjustifiably risk a public disturbance[ , ]’” neither of which , he says, applies to his statement. (Opening Br. at 20 (quoting Hock , 728 A.2d at 946 )

. ) “The probable cause inquiry looks to the totality of the circumstances[.]” Wright , 409 F.3d at 603. Within those circumstances , police o fficers may “make a judgment call regarding [a] plaintiff[’s] state of mind.” Paff , 204 F.3d at 437. In thi s case, t he police officer defendants were entitled to infer that Vanderklok ’s angrily making a statement about a b omb in a TSA screening area reckless ly created an unjustifiable risk of public9 disturbance. It is common sense , in light of the shared reali ty of air travel today, that the risk of a public disturbance by angrily talking about explosives i s greatly heightened at a n airport’s passenger s creening area

. Cf. Vanderklok , 868 F.3d at 207 (noting that security screening is “ a critical aspect of national security ” ). Despite that , Vanderklok asserts that the manner in which he made his statement clearly establishes that there was not probable cause to arrest him. To support that assertion, Vanderklok cites to Commonwealth v. Weiss , a decision of the Superior Court of Pennsylvania, for the proposition “that statements made to a single police officer

– as opposed to epithets broadcast to all passers

- by

– [are] too attenuated from the statutory requirement that the conduct be do ne ‘ with intent to cause public inconvenience, annoyance or alarm, or recklessly crea ting a risk thereof.’” (Opening Br. at 17 ( quoting
Weiss , 490 A.2d at 855 ).) He further asserts that Weiss stands for the view that “t he mere potential that a statement made to a law enforcement officer might be overheard does not transform that statement into a deliberate

– or even reckless

– effort to create public alarm or annoyance. ” (Opening Br. at 17

- 18 (citing Weiss , 490 A.2d at 85 5

- 57 ).)
T he statement in Weiss , however, was made on the plaintiff’s own property, id. at 857 , not at a crowded airport security screening area

– a vastly different context

– meaning Weiss cannot clearly establish that the manner in which Vanderklok’s statement was made precludes an officer having probable cause to arrest him. And again, the reliance on Weiss ignores that Pinkney was operating on the report of Vanderklok’s statement as given by Kieser, which described a heated exchange. For the same reason, Vanderklok’s reliance on Commonwealth v. Hock is misplaced

. See 728 A.2d at 944, 94610 (finding probable cause was not present due to a single epithet uttered in a normal tone of voice in an apartment building parking lot in the presence of only the speaker and the officer).
In l ight of all the circumstances, the District Court rightly determined that the police officer defendants were entitled to qualified immunity.
III. C ONCLUSION For the foregoing reasons, we will affirm the judgment of the District Court.