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Richard A. Thomas v. Delaware River Port Authority (Drpa)

December 14, 2011

RICHARD A. THOMAS, PLAINTIFF,
v.
DELAWARE RIVER PORT AUTHORITY (DRPA), ET AL., DEFENDANTS.



The opinion of the court was delivered by: Joel Schneider United States Magistrate Judge

[Doc. Nos. 10, 11]

MEMORANDUM OPINION

I

This matter is before the Court on the "Motion for Summary Judgment" [Doc. No. 10] ("Motion") filed by defendants Delaware River Port Authority ("DRPA") and Patrolman Robert Sexton ("Sexton") (collectively, "defendants"), and the "Cross Motion for Partial Summary Judgment on Liability" [Doc. No. 11] ("Cross Motion") filed by plaintiff Richard A. Thomas ("plaintiff").*fn1 Plaintiff alleges false arrest against Sexton and municipal liability pursuant to an unconstitutional policy or custom against the DRPA, all pursuant to 42 U.S.C. § 1983. [Doc. No. 1-1 at 10-15] ("Complaint").*fn2 Plaintiff's claims arise from an incident in which plaintiff was handcuffed and transported to DRPA headquarters as part of an investigation regarding the validity of his New Jersey Permit to Carry a Handgun ("NJ Permit"). Defendants raise four arguments in their motion. First, defendants argue that plaintiff's handcuffing constituted a detention supported by reasonable suspicion. Brief in Support of Defendants' Motion for Summary Judgment at 10-12 ("Defs.' Brief"). Second, if the Court treats plaintiff's handcuffing as an arrest, defendants argue Sexton possessed probable cause. (Defs.' Brief at 12-16). Third, defendants argue Sexton's actions were protected by qualified immunity. (Id. at 16-19). Last, defendants argue that no evidence exists to support plaintiff's claim of municipal liability. (Id. at 20).

In his "Brief in Opposition to Defendants' Motion for Summary Judgment and in Support of Plaintiff's Cross Motion for Partial Summary Judgment on Liability" ("Pl.'s Brief"), plaintiff challenges all arguments raised by defendants. Plaintiff first argues he was arrested without probable cause. (Pl.'s Brief at 14-23). Plaintiff further argues that Sexton is not entitled to qualified immunity or, alternatively, that a question of fact exists as to the availability of qualified immunity. (Id. at 25-28). Plaintiff further argues the DRPA is not entitled to summary judgment on the issue of municipal liability, because Sexton's deposition testimony reveals the existence of "established protocol," and a jury should determine whether a custom or policy was the proximate cause of his alleged injuries. (Id. at 28-29). Last, plaintiff argues he is entitled to summary judgment on the issue of Sexton's liability for unlawful arrest, because the record before the Court is "undisputed." (Id. at 29-31).

This Court recently heard oral argument. For the following reasons, defendants' motion is GRANTED IN PART and DENIED IN PART, and plaintiff's cross motion is DENIED.

II

A summary of the facts in the light most favorable to plaintiff follows. At the time of the events giving rise to this action, plaintiff worked for Wackenhut G4S Solutions ("Wackenhut"), a private security firm operating in Pennsylvania and New Jersey, among other locations. (Id. 17:25; 18:20-21). Plaintiff was employed by Wackenhut as a "Customs Protection Officer," and worked as a security guard at the Liberty Bell Pavilion and the Independence Hall complex in Philadelphia, Pennsylvania. (Id. 18:4-13).

Wackenhut issued plaintiff a Smith & Wesson .38 wheel gun revolver ("firearm"), which he carried as part of his employment. (Id. 23:2-15). Wackenhut did not provide storage facilities for plaintiff's firearm. (Id. 25:18-26:1). Instead, plaintiff carried the firearm with him on his daily commute from Westmont, New Jersey to Philadelphia on the Port Authority Transit Corporation ("PATCO") high-speed commuter line. (Id. 23:23-24:5). During these commutes, plaintiff carried the firearm in a holster that he wore on his right hip, over his clothing. (Id. 24:6-22). The firearm was visible to others at all times. (Id. 24:21-22).

On May 28, 2010, plaintiff ended his shift at the Independence Hall complex at 4:15 in the afternoon. (Id. 25:1-10). He gathered his belongings, left the building, and walked directly from 6th Street to the corner of 8th and Market Streets, where a PATCO station is located. (Id. 25:12-17, 26:8-13). Plaintiff walked to the PATCO station in his security guard uniform: a tan outfit with purple stripes and an insignia that read "Wackenhut." (See Incident Report; Sexton Dep. Tr. 22:3-6). As on prior commutes, plaintiff traveled with his firearm in a holster on his hip, in a position that would have been visible to others. (Pl.'s Dep. Tr. 26:2-7). At the PATCO station, plaintiff waited on the platform for approximately 12-13 minutes before boarding a train to Westmont. (Id 26:14-25). At all times, the firearm remained in a holster on plaintiff's hip, in a position visible to others on the train. (See id. 26:17-22).

When plaintiff arrived in Westmont, he exited the train and walked towards the parking lot of the station. (Id. 27:4-15). Plaintiff recalls stopping briefly to say hello to two individuals whom he recognized. (Id. 27:16-24). While speaking with these individuals, plaintiff was approached by Sexton. (Id. 27:22-28:9).

When Sexton first observed plaintiff, he noted that plaintiff was wearing a uniform, tan in color, with purple stripes. (Id. 21:4-14; Incident Report). As Sexton approached plaintiff, he saw the holstered firearm on his hip. (Incident Report).*fn3 He also noticed the "Wackenhut" insignia. (Sexton Dep. Tr. 22:5). Sexton admits he was aware that Wackenhut is a private security firm. (Sexton Dep. Tr. 36:20-25). Seeing Sexton approach, plaintiff volunteered his NJ Permit, expressing surprise that he had never before been approached regarding his holstered firearm. (Incident Report; Sexton Dep. Tr. 23:22-24:5; Pl.'s Dep. Tr. 28:17-29:9). Plaintiff presented Sexton with four documents:

1) New Jersey Driver's License;

2) Security Officer's Registration Act Card ("SORA Card");

3) Permit to Carry a Weapon Pursuant to Pennsylvania Act 235 ("PA Permit"); and

4) NJ Permit. (Pl.'s Dep. Tr. 30:1-7). Plaintiff also identified himself to Sexton as a private security guard working in Philadelphia. (Sexton Dep. Tr. 24:6-16).

The face of the NJ Permit provides a description of plaintiff, as well as his photograph and a fingerprint taken from his right index finger. The face also includes the following text:

Restrictions: To be carried in connection w/employment as an Armed Security Guard for Wackenhut Serv. Inc.; during working hours only. If employment should end; permit will expire.

In relevant part, the back of the NJ Permit reads:

This Certifies [t]hat [plaintiff] . . . has permission to carry a handgun in the State of New Jersey pursuant to 2C:58-4 of the New Jersey Statutes . . . . Restrictions placed on the Permit must be strictly observed.

The back of the NJ Permit is signed by the issuing judge: the Honorable Samuel D. Natal, J.S.C., of the Superior Court of New Jersey, Camden County. As of May 28, 2010, the NJ Permit had not expired.

After reviewing plaintiff's documentation, Sexton advised him there was a problem with his NJ Permit. (Pl.'s Dep. Tr. 32:15-18). Specifically, Sexton noted that the wording of the permit restricted its use to "working hours only." At his deposition, Sexton testified plaintiff told him he "was still on duty." (Sexton Dep. Tr. 26:18). Plaintiff disputes this assertion, and contends he informed Sexton he had just completed his work day. (See Pl.'s Dep. Tr. 32:16-19).

While the two parties do not differ substantially on the events that followed, plaintiff and Sexton provide different timelines for what occurred once Sexton expressed concern about the validity of the NJ Permit. Adopting plaintiff's timeline for the purpose of evaluating defendants' motion, plaintiff first suggested Sexton contact Judge Natal to clarify the terms of the permit's restrictions. (Pl.'s Dep. Tr. 35:24-36:4). At the time, plaintiff carried contact information for Judge Natal's chambers. (Pl.'s Dep. Tr. 36:10-12). Sexton refused to contact the judge. (Pl.'s Dep. Tr. 36:3-4; Sexton Dep. Tr. 27: 1-5). Plaintiff recalls Sexton saying, "I don't work for the Judge, I work for a corporal." (Pl.'s Dep. Tr. 36:3-4). Sexton testified it was "not protocol" to contact a judge from the scene. (Sexton Dep. Tr. 27:16-19). When asked if there was a written policy prohibiting him from calling the judge, Sexton testified that one did not exist. (Id. at 27:20-21).

After declining to call Judge Natal, Sexton reiterated that plaintiff's NJ Permit stated it was valid "during working hours only." (Pl.'s Dep. Tr. 36:16-18). When plaintiff maintained he had gone off-duty at 4:15 that afternoon, Sexton responded it was uncertain whether plaintiff worked at all that day. (Id. 36:21-25). At some point during this discussion, plaintiff offered to call Marcus Perdue ("Perdue"), a supervisor for Wackenhut working out of its office in Horsham, Pennsylvania. (Id. 41:10-17). Plaintiff called Perdue, who confirmed with Sexton that plaintiff left work at 4:15 that afternoon. (Incident Report; Sexton Dep. Tr. 26:8-10; Pl.'s Dep. Tr. 33:5-7, 37:1-38:7, 41:10-17).

After Perdue confirmed plaintiff's work schedule, plaintiff asked Sexton to use the restroom. (Pl.'s Dep. Tr. 47:6-48:25). Sexton escorted plaintiff to an employee restroom in the Westmont station. (Pl.'s Dep. Tr. 47:17-19). The employee restroom requires a key to enter, but not to exit. (Id. 47:23-48:2). Sexton unlocked the restroom, and plaintiff entered, unaccompanied, to use the facilities. (Id. 48:8-14). While plaintiff used the restroom, Sexton returned to his vehicle. (Id. 48:15-49:1). After plaintiff finished using the restroom, he returned to Sexton's vehicle unaccompanied. (Id.). At all times, plaintiff was in possession of his firearm. (Id. 48:8-9).

While plaintiff was in the restroom, or shortly after he returned, Sexton radioed then-Corporal (now Sergeant) Allison Mankoski ("Cpl. ...


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