No. 93-7471.United States Court of Appeals, Third Circuit.Argued January 25, 1994.
Decided April 8, 1994.
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Stefan Preser, Philadelphia, PA, Richard Gutman (Argued), Carlisle, PA, for appellants.
John C. Dowling (Argued), David B. Dowling, Rhoads Sinon, Harrisburg, PA, for appellees.
Appeal from the United States District Court for the Middle District of Pennsylvania.
Before: MANSMANN, NYGAARD and SEITZ, Circuit Judges.
[1] OPINION OF THE COURT
MANSMANN, Circuit Judge.
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I.
[5] Hanover Center Square, in Hanover Borough, York County, Pennsylvania, was the site of a disgraceful two-day spectacle of racial unrest which ignited between the members of a self-styled interracial youth group on the one side, and a band of all-white motorcyclists and a crowd of townspeople on the other. The incidents which gave rise to this cause of action were preceded by a rumor, which apparently circulated about town for two weeks, that the white bikers were conspiring to assemble in the Square on the evening of July 13, 1991, to drive the interracial group, which regularly congregated and socialized in the Square, out of Hanover. In fact, on the evening of July 13th, the interracial group and the white bikers did assemble in the Square, apparently in anticipation of and prepared for a hostile confrontation.[3]
The presence of the two groups, as well as, presumably, the effect of the rumors, incited the participation of many townspeople who had also gathered as spectators and as supporters of the bikers. The series of racial disturbances which ignited from that point on July 13th through the evening of July 14th did not involve serious bodily injury or extensive property damage, despite the grave potential for both.
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incidents.[4] Although there is some dispute as to which officials knew “what” prior to the July 13th Hanover Square incident, the district court acknowledged that at least Mayor Attlesberger became aware of the rumored bikers’ conspiracy on July 12, 1991, and informed Police Chief Lippy of the rumors that same day. The PSP Report confirms the timing of the Mayor’s awareness, and indicates that Police Chief Lippy was apprised of the rumors no later than 4 p.m. on July 13, 1991, hours before the Square incident occurred.
[10] All of the civil rights claimants sued Mayor Attlesberger, Police Chief Lippy and the Borough of Hanover, seeking damages and expunction of criminal records created from their arrests and citations. Only Ms. Chronister sued Police Officer Boyer for a violation of § 1986.II.
[11] Before deciding whether the evidence suggests a genuine issue of material fact as to 42 U.S.C. § 1986 liability such as to warrant vacatur of the district court’s summary judgment order, we must decide first the propriety of the district court’s consideration of the PSP Report. The plaintiffs relied virtually exclusively on this report to support the existence of genuine issues of material fact. The plaintiffs did not submit affidavits in opposition to the motion, but did submit the sworn deposition of Pennsylvania State Police Captain Ronald Rostalski properly authenticating the PSP Report. The plaintiffs also submitted excerpts from their own deposition testimony.
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defendants contend. Cf. Fed.R.Evid. 702 (experts with scientific, technical or specialized knowledge must be qualified before testifying). We have held that “[b]efore [an objection to the opinion testifier’s expert qualifications] may be recognized, . . . the party challenging the validity of an official report admitted under 803(8)(C) must come forward with some evidence which would impugn its trustworthiness.” Melville v. American Home Assur. Co., 584 F.2d 1306, 1316 (3d Cir. 1978). The appellees have failed to do so.
[14] Despite the defendants’ contentions, we are satisfied that the district court’s implicit finding that no special bias impeded a fair investigation or entered into the preparation of the PSP Report was not clearly erroneous. Fed.R.Civ.P. 52(a) (“Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous. . . .”) (emphasis added); see also Anderson v. Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985). The investigating officers and authors of the Report were not and are not now parties to the litigation. Although they did interview persons who are parties to the litigation and incorporated their statements into the PSP Report, the bias of those interviewed does not render the PSP Report itself inherently untrustworthy, and such bias cannot be imputed to the investigating officers. Furthermore, the investigating officers interviewed representatives from all factions involved in the Hanover incidents, and appear thus to have achieved some measure of balance between opposing perspectives. We hold that the district court did not abuse its discretion in admitting the authenticated PSP Report. We turn now to the question of whether the PSP Report has sufficed to raise a material factual issue with regard to an element of the § 1986 claims dismissed by the summary judgment order. III.
[15] 42 U.S.C. § 1986 provides that:
[16] 42 U.S.C.A. § 1986 (West 1981). Thus, § 1986 constitutes an additional safeguard for those rights protected under 42 U.S.C. § 1985, and “transgressions of § 1986 by definition depend on a preexisting violation of § 1985. . . .”[5] Rogin v. Bensalem Township, 616 F.2d 680, 696 (3d Cir. 1980), cert. denied, 450 U.S. 1029, 101 S.Ct. 1737, 68 L.Ed.2d 223 (1981).[6]Every person who, having knowledge that any of the wrongs conspired to be done, and mentioned in section 1985 of this title, are about to be committed, and having power to prevent or aid in preventing the commission of the same, neglects or refuses so to do, if such wrongful act be committed, shall be liable to the party injured, or his legal representatives, for all damages caused by such wrongful act, which such person by reasonable diligence could have prevented; and such damages may be recovered in an action on the case. . . .
Additionally, a § 1986 plaintiff must show that: (1) the defendant had actual knowledge of a § 1985 conspiracy, (2) the defendant had the power to prevent or aid in preventing the commission of a § 1985 violation, (3) the defendant neglected or refused to prevent a § 1985 conspiracy, and (4) a wrongful act was committed. See Perez v. Cucci, 725 F. Supp. 209, 254 (D.N.J. 1989) (citations omitted), aff’d, 898 F.2d 142 (3d Cir. 1990); Chester J. Antieau Gary E.
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Bair, Federal Civil Rights Acts § 281 (1980 Supp. 1993).
[17] The district court dismissed the § 1986 claims brought against Mayor Attlesberger, Chief Police Lippy, the Hanover Borough and police Officer Boyer by holding that:[18] Memorandum Opinion filed May 6, 1993, at A. 18. [19] The plaintiffs contend that the district court misconstrued § 1986’s knowledge requirement to exclude “rumors,” and argue that “knowledge” under § 1986 is any information which would tend to give notice to the community that a conspiracy is in the making. The plaintiffs further contend that the PSP Report and their deposition testimony raise a material issue of fact with regard to how much forewarning the Mayor, the Chief of Police, and the Borough had, arguing that they had as much as two weeks’ prior knowledge of the bikers’ conspiracy. Police Officer Boyer, the plaintiffs argue, had sufficient knowledge of the alleged conspiracy at the time Ms. Chronister was struck by an unidentified person at the scene of the automobile incident on July 14th. [20] We find the factual question of the exact time when the Mayor and the Chief of Police were apprised of the “rumors” to be irrelevant because the district court determined that both had been apprised of the rumors at least by July 12th, i.e., a full day before the events transpired. According to the PSP Report, which we take to be accurate for purposes of reviewing the summary judgment order,The critical element here is the requirement that the defendants have actual knowledge of the conspiracy. Plaintiffs rely on the PSP report to establish this knowledge. This report, however, speaks only about “rumors,” not definite plans. It does not establish the actual knowledge necessary to support a section 1986 claim. This claim will therefore be rejected.
[21] PSP Report at p. 2, A. 72. Even assuming that the Chief of Police did not hear the rumors until 4:00 P.M. on July 13th, it is clear that the Mayor and the Chief of Police, and by extension, the Borough, had heard of the rumors prior to the planned impending civil rights violation. Thus, it is clear that, if knowledge of the rumors constitutes “knowledge” under § 1986, then the Mayor, the Chief of Police and the Borough had the requisite forewarning contemplated under that statute. [22] The nature of conspiracy typically precludes direct evidence or a “blueprint” of the conspiratorial plan, and firsthand knowledge is not required under § 1986. The courts have nevertheless required “actual knowledge.” See, e.g., Hampton v. City of Chicago, 484 F.2d 602, 610 (7th Cir. 1973), cert. denied, 415 U.S. 917, 94 S.Ct. 1413, 39 L.Ed.2d 471 (1974); Perez v. Cucci, 725 F. Supp. 209, 254 (D.N.J. 1989), aff’d, 898 F.2d 142 (3d Cir. 1990). The PSP Report does not indicate that either the Mayor, the Chief of Police, Hanover Borough or Police Officer Boyer had direct prior knowledge of a conspiracy to commit a civil rights violation. Nor does the report indicate that the information circulating prior to the initial incident on July 13th regarding the alleged conspiracy was anything other than in the nature of “rumors.”[t]he Mayor indicated he was aware of the rumors on Friday (July 12, 1991) and that he advised the Chief of Police of them on the same day. The Chief advised he was not aware of any rumors until Saturday (July 13, 1991) at 4:00 P.M., when he was contacted by the Mayor. The Chief then contacted county control in order to have his 3-11 shift commander contact him to clarify the rumors. An article in the Evening Sun,
dated July 15, 1991, attributes the Mayor as stating, “. . . he contacted Hanover Police Chief . . . Wednesday, after hearing rumors of a potential riot.” There is an obvious difference of opinion relative to who knew what and when. However, it was evident that rumors abounded a considerable time before the actual incident. Notwithstanding the differences of opinion regarding prior knowledge of the incident, there was no action taken by Hanover City officials or the Hanover Police Department to defuse the impending situation either with the bikers, townspeople or the youth group.
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[23] One indication of a rumor’s reliability is the manner in which people respond to the rumor. Plaintiff Jeff Dixon testified at his deposition that he had informed Lippy that some motorcycle gangs were coming into town. According to Dixon, Lippy replied at that time that he had heard the rumor too and not to worry about it. When Attlesberger became aware of the rumor of a race riot, he became concerned enough to advise Lippy, who then apparently placed enough credence in the rumor to authorize holding over two extra police officers on Saturday night and to inform Penn Township Police Department about the rumor. [24] We believe that the PSP Report and other evidence relevant to the defendants’ potential knowledge of the conspiracy is sufficient, for purposes of defending against an adverse summary judgment motion, to submit to the jury the question of whether the defendants’ knowledge of rumors that bikers planned to drive the interracial group from Hanover on the evening of July 13th was sufficiently reliable to constitute “actual knowledge” of a § 1985 conspiracy. We note, by way of example of relevant evidence on the record, that plaintiff Lisa Becker, a Hanover resident, testified in her deposition as follows:[25] With regard to Police Officer Boyer, the plaintiffs have shown that he was on the scene of the Chronister automobile incident on July 14th. The PSP Report indicates that by 12:07 a.m. Sunday morning the Hanover Police Department made its first mutual aid request for assistance from other police departments. Twenty-seven other municipal police departments responded, including Boyer’s Conewago Township Police Department, and by 12:14 a.m. outside police units began arriving on the scene in Hanover. Officer Boyer’s precise moment of appearance on the scene is not clear from the record; however, the PSP Report indicates that police officers who were on the scene of the car incident had been standing nearby waiting to transport arrestees from the apartment incident before the police converged on the scene of the car incident in response to the sound of a racing engine, squealing tires and screams. The direct inference is that Officer Boyer may have arrived on the scene in Hanover as early as 12:14 a.m. Sunday morning, but not later than approximately 11 p.m. Sunday evening, the hour of the apartment incident. Not only was he presumably briefed on the circumstances before arriving on the scene, but given the escalating racial situation, a jury could infer from his presence on the scene that he, too, became sufficiently aware of the alleged conspiracy to violate the plaintiffs’ civil rights when he allegedly failed to protect Ms. Chronister and told her that the car incident was her fault for bringing blacks into the Hanover area.[7]Q Had you heard any rumors about there being possible trouble that weekend in Hanover?
A Yes.
Q When did you first hear these rumors?
A I believe it was Thursday, the day before — well, two days, I guess, before.
Q And who did you hear them from?
A Just people like around, like neighbors, people that I’ve worked with. It was just common knowledge that a lot of people heard it. You know, we all went to the store, you heard people talking in the store, but not really people that I really knew. Well, I mean, people that I worked with I knew but not really.
Q Were they mostly people your age that year heard this from?
A No, no, it was a range.
Q What did you hear what was going to happen?
A That motorcycle gangs were supposed to come in and run the black people and interracial groups out of town and off the square.
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[26] In addition to challenging the district court’s disposition of the element of “knowledge,” the plaintiffs also contend that the district court erred as a matter of law by requiring more than negligence in a § 1986 cause of action. This is apparently a misreading of the district court’s opinion. The district court did indeed require that the plaintiffs demonstrate more than negligence to state a civil rights cause of action under § 1983. See Davidson v. O’Lone, 752 F.2d 817, 826 (3d Cir. 1984) (en banc) (more than negligence required to sustain a cause of action under § 1983), aff’d sub nom. Davidson v. Cannon, 474 U.S. 344, 106 S.Ct. 668, 88 L.Ed.2d 677 (1986). [27] The text of § 1986 clearly states that neglecting or refusingto prevent a § 1985 conspiracy is actionable. Although discriminatory intent is essential in proving a § 1985(3) conspiracy, “it does not follow that a defendant charged under section 1986 with neglecting to intervene in a section 1985(3) conspiracy must personally share the class-based animus.” 3 Joseph G. Cook John L. Sobieski, Jr., Civil Rights Actions ¶ 13.10 (1993). Accordingly, we hold that negligence is sufficient to maintain a § 1986 claim. However, we hold that the district court did not err as a matter of law here because it dismissed the § 1986 claims on the basis that the evidence did not establish actual knowledge or a failure to prevent, not on the basis that the evidence did not establish more than negligence. [28] The plaintiffs separately challenge the district court’s judgment against the Becker-Dixons on their § 1986 claim, asserting that the district court erroneously required the element of direct causation. In dismissing this particular § 1986 claim, the district court held that the PSP Report was “far too speculative to allow as proof of causation.” Mem.Op. at 24, A. 24. We believe that although the district court’s rationale presents some ambiguity, the court’s judgment turned on the sufficiency of the PSP Report to raise a material factual issue as to whether the defendants negligently failed to prevent the civil disturbance. We reject the district court’s devaluing of the quality of the evidence contained in the PSP Report, and disagree with the district court that the PSP Report was so highly speculative as to warrant the dismissal of the plaintiffs’ § 1986 claims on summary judgment. The credibility and weight to be given the PSP Report, which contains sufficient evidence from which a reasonable jury could infer that the defendants failed to prevent the commission of a planned wrong, is a quintessential jury question.[8] [29] We additionally wish to clarify that § 1986 is not directed towards the person who causes a § 1985 violation; rather, it provides a claim “against any person who, knowing that a violation of § 1985 is about to be committed and possessing power to prevent its occurrence, fails to take action to frustrate its execution.” Rogin, 616 F.2d at 696. Moreover, § 1986 explicitly imposes liability for damages that a defendant “by reasonable diligence could have prevented.” Therefore, a ruling that the Becker-Dixon’s claim failed because the crowd, rather than the defendants, perpetrated the wrongful acts would have been incorrect as a matter of law. [30] We will thus vacate the district court’s order granting summary judgment to these defendants.
IV.
[31] For the foregoing reasons, we will vacate the district court’s May 6, 1993, entry of
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summary judgment, certified for appeal on May 7, 1993, and amended on June 4, 1993. We will remand to the district court for proceedings consistent with this opinion.
Final judgment is hereby entered on paragraphs 6 and 7 [pertaining to Mayor Attlesberger, Police Chief Lippy and Hanover Borough] of the Order of May 6, 1993. Final judgment is also entered against all plaintiffs on the 42 U.S.C. § 1986 (failure to protect) claim.
(emphasis added). Despite this amendment, it appears that Police Officer Carl Boyer’s name was never deleted from the caption. Because we will order vacatur of the district court’s order, the district court should reinsert the names of Defendants Attlesberger, Lippy and Hanover Borough into the caption.
This appeal pertains only to the Rule 54(b) grant of summary judgment on the § 1986 claims. Outstanding claims of racially motivated conspiracy, discriminatory arrests, arrests without probable cause, excessive force and malicious prosecution remain before the district court.
The district court did not base its grants of summary judgment on a holding that the evidence did not support a § 1985 claim against the bikers or the townspeople. We will thus limit our review to the factual and legal questions which grounded the district court’s summary judgment disposition of the § 1986 claims, and will not address any alleged deficiencies which the defendants raise in their brief with regard to the alleged underlying § 1985 conspiracy.
[35] BOROUGH OF HANOVER, ITS FORMER MAYOR AND ITS CHIEF OF POLICE
[36] At the threshold, I agree with the majority that the district court did not abuse its discretion under Fed.R.Evid. 803(8)(C), in considering for summary judgment purposes some relevant parts of the Pennsylvania State Police Report of its investigation of the Hanover incident. The majority goes on to conclude:
[37] As the majority opinion notes, the State Police Report indicated that the Mayor and the Chief of Police had knowledge of the rumors of the conspiracy at least a day before the rumor came to fruition in Hanover on the date and time contained in the rumor, viz., Saturday, July 13, at 10:00 p.m. Knowledge of the rumors was also stated in the Dixon and Becker depositions. [38] In my view the issue is whether the combination of these record factors would permit a reasonable finder of fact to infer that the defendants had actual knowledge of the biker conspiracy before it was implemented. The critical and sole factor in resolving that issue here is what constituted “knowledge” as used in § 1986. I believe a useful definition of knowledge is found in § 2.02(7) of the Model Penal Code:We believe that the PSP Report and other evidence relevant to the defendants’ potential knowledge of the conspiracy is sufficient, for purposes of defending against an adverse summary judgment motion, to submit to the jury the question of whether the defendants’ knowledge of rumors that bikers planned to drive the interracial group from Hanover on the evening of July 13th was sufficiently reliable to constitute “actual knowledge” of a § 1985 conspiracy.
[39] Indeed, the Model Penal Code definition of knowledge is more meaningful in a civil law context. Because knowledge of a high probability is sufficient for proof of “knowledge” beyond a reasonable doubt, it is more than sufficient for proof of “knowledge” by a preponderance of the evidence. [40] The pervasive rumors and the other evidence in this record would permit a reasonable jury to conclude that defendants were aware of a high probability of the existence of the conspiracy, at least a day before it was carried out, thus creating an issue for the factfinder as to the existence of defendants’ knowledge for § 1986 purposes. [41] In reaching my conclusion I fully realize that rumor often indicates less than certainty. But here its pervasive character is but part of the totality of circumstances in this record which could permit a reasonable factfinder to determine that these defendants,(7) Requirement of Knowledge Satisfied by Knowledge of High Probability. When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence, unless he actually believes that it does not exist.[9]
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given their public positions, had sufficient advance knowledge of the alleged conspiracy.
[42] I therefore join in the judgment reversing the order of the district court granting summary judgment to defendants, the Borough of Hanover, its former Mayor and its Chief of Police. Needless to say, I believe other issues raised by defendants are open for later resolution in the district court.[43] DEFENDANT CARL BOYER
[44] The majority also reverses the order of the district court granting summary judgment to Carl Boyer (“Boyer”) on the § 1986 claim against him. I would affirm that order on this record.
[47] I part company with the majority because I believe the facts relied on by my colleagues do not support the knowledge element required by § 1986. [48] It is first evident that the majority seems to base its position on the premise that Boyer became aware of the conspiracy when he allegedly failed to protect Ms. Chronister. In my view, the failure to protect Ms. Chronister’s civil rights is not evidence of Boyer’s knowledge of an existing conspiracy. The same is true of the majority’s reliance on what Boyer said to her during the car incident. Thus, in my view, there is no record evidence that creates a jury issues as to Boyer’s prior knowledge of any conspiracy. The incident, if anything, raised a possible violation of 42 U.S.C. § 1983. [49] I would affirm the summary judgment order dismissing the § 1986 claim against Boyer.. . . given the escalating racial situation, a jury could infer from his presence on the scene that he [Boyer], too, became sufficiently aware of the alleged conspiracy to violate the plaintiffs’ civil rights when he allegedly failed to protect Ms. Chronister and told her that the car incident was her fault for bringing blacks into the Hanover area.
definitions when construing a familiar companion civil statute from 1871-42 U.S.C. § 1983. See Smith v. Wade, 461 U.S. 30, 41 n. 9, 103 S.Ct. 1625, 1632 n. 9, 75 L.Ed.2d 632 (1983).
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