Steven Gregory Johnson v. ERIK CAMPBELL, Officer, in his official

PRECEDENTIAL
Filed June 5, 2003
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-3580
STEVEN GREGORY JOHNSON,
Appellant
v.
ERIK CAMPBELL, Officer, in his official
and personal capacity;
THE TOWNSHIP OF DEWEY BEACH,
a political subdivision of Sussex County, Delaware;
OCEAN BREEZE LIMITED LIABILITY COMPANY
dba The Sea Esta III Motel; CHRISTINE PRICE
Appeal from the United States District Court
for the District of Delaware
(D.C. Civil No. 00-cv-00510)
District Judge: Honorable Joseph J. Farnan, Jr.
Argued March 11, 2003
Before: RENDELL, AMBRO and MAGILL,* Circuit Judges.
(Filed June 5, 2003)
* The Honorable Frank J. Magill, Senior Circuit Judge of the United
States Court of Appeals for the Eighth Circuit, sitting by designation.

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Victor F. Battaglia, Esq. [ARGUED]
Biggs & Battaglia
921 Orange Street
P.O. Box 1489
Wilmington, DE 19899
Counsel for Appellant
Megan Mantzavinos, Esq. [ARGUED]
Marks, O’Neill, O’Brien & Courtney
913 North Market Street
Suite 800
Wilmington, DE 19081
Counsel for Appellees
OPINION OF THE COURT
RENDELL, Circuit Judge.
Steven Gregory Johnson, an African-American high
school basketball coach, was stopped by the police on the
basis of a “suspicious person” complaint and arrested for
disorderly conduct after he swore at the investigating police
officer. He was released without charge. Johnson then
brought an action under 42 U.S.C. § 1983 against the
arresting officer, Officer Erik Campbell, asserting that
Campbell had violated his constitutional rights by detaining
and arresting him without cause and due to his race.
Johnson was denied relief by a jury verdict after trial.
Johnson now seeks reversal of the District Court’s denial of
his motion for judgment as a matter of law and for a new
trial. Because we conclude that the evidence was
insufficient to establish that the stop was based on a
reasonable, articulable suspicion that Johnson was
engaged in criminal activity, or that the arrest was based
on probable cause to believe that Johnson was committing
the crime of disorderly conduct, we will reverse and grant
Johnson judgment as a matter of law.
I.
This case comes to us after a jury verdict finding no
liability on the part of Officer Campbell for the violation of
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Johnson’s rights. We are mindful of the deference that we
owe such verdicts, see Starceski v. Westinghouse Elec.
Corp., 54 F.3d 1089, 1095 (3d Cir. 1995), and therefore
present the facts established at trial in the light most
favorable to Campbell.
Steven Johnson was a forty-four year old African-
American who coaches basketball for William Penn High
School in New Castle, Delaware. In December 1999,
Johnson’s team participated in the Slam Dunk to the
Beach Tournament in Rehobeth Beach, Delaware. During
the tournament, Johnson, his assistant coach Donald
Abblitt, and the team stayed at the Sea Esta III Motel (the
“Motel”) in Dewey Beach.
The team checked into the Motel on December 27 and
played their first game the next day. Following the game,
the team returned to the Wilmington area to be with their
families over the holidays. The team returned to the Motel
after dark on December 29. During the drive back, Abblitt
and Johnson had a disagreement regarding one of the
students. When they arrived at the Motel, Johnson went
across the street to get a cup of coffee, leaving Abblitt to
settle the students into their rooms.
When Johnson returned to the Motel, he stopped in the
office for a few minutes. The Motel office was very small,
the principal feature of which was the front counter. In one
corner was an area with coffee and free newspapers.
Christine Price, who had previously been a fourteen-year
veteran of the police force, was the clerk on duty at the
time. She said hello to Johnson, who mumbled back that
he was staying there. She asked him if it was cold out, and
he replied that it was, and that he had just been across the
street at the gas station. Johnson spoke in a very clipped
manner but politely answered the questions Price put to
him. After they spoke, Johnson walked over to the
newspapers and started flipping through them. A few
minutes later, he started acting agitated, pacing back and
forth, looking out the window, rubbing his head, and
glancing up at the television. His actions made Price
nervous, partly because she had been robbed five months
earlier by two young black males, one of whom had
previously been a guest at the Motel.
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After finishing his coffee, Johnson took the newspaper
and left the office. Price could not see where he went but
believed he had gone out to the parking lot. She had been
on the phone to her husband, and as soon as Johnson was
gone, she told him that she was upset and scared, and
asked him to call the Dewey Beach Police Department to
come check on her welfare. Her husband called the police,
explaining that his wife was upset and he wanted them to
check it out because she had previously been the victim of
a robbery.
Sergeant George Berry then went to the Motel office and
spoke to Price about the complaint. He was joined shortly
thereafter by Officer Erik Campbell. Berry knew that Price
had been trained as a police officer. In fact, Berry had
worked with her a number of times when she was a state
trooper, so he trusted her judgment. Price told him that a
black male, approximately 5’9”, wearing a brown jacket,
who had said he was a guest at the Motel, had entered the
lobby, picked up a paper, and left. She explained that the
man’s actions, “the way he was walking and pacing around
the office and his body language” had made her nervous
and scared her.
Campbell overheard part of the conversation between
Berry and Price but did not himself ask any questions of
Price, as he was distracted by a basketball player who had
come into the office. After Price gave a description of
Johnson, Berry directed Campbell to search for a man
matching that description. Campbell left the lobby and
began looking around the Motel and parking lot. He saw
Johnson reading a paper in the driver’s seat of a green van
with Abblitt beside him. Campbell approached the van from
the front so he did not notice that it was marked “Colonial
School District” nor that it bore a “State Owned” license
tag. Although he did not think that Johnson had committed
any crime, he did believe that Johnson matched the
description of the man who had made Price nervous.
Campbell approached the van and gestured to Johnson to
roll down his window. He then told Johnson that he “was
being detained.”
Johnson stared back at Campbell and did not at first
comply with Campbell’s request to roll down his window.
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After Campbell asked a few more times, Johnson rolled his
window down a few inches. Campbell then asked Johnson
for identification, which Johnson refused to provide, asking
what the problem was and why he was being asked for
identification. Campbell responded that Johnson was
required by Delaware law to provide identification and that
as soon as Johnson gave his identification, he could be on
his way. Johnson continued giving Campbell a “hard time,”
questioning Campbell about his motives for interrogating
him, saying he had done nothing wrong. Campbell
explained that he was investigating a “suspicious person”
complaint and told Johnson that he matched the
description. Johnson did not accept this explanation or
hand over his ID; he continued to ask why he had to
provide identification. Campbell tried to contact Berry by
radio, thinking that Berry would be able to give him more
information on what Price had said. Campbell was unable
to get through to Berry but remained on the radio, speaking
to his dispatcher.
Around this time, Abblitt exited the passenger side of the
van and approached Campbell, asking what the problem
was. Members of the team also came out of their rooms and
watched the events unfold in the parking lot.
When Campbell got off the radio, he heard Johnson
mutter “son of a bitch.” Campbell then turned to Abblitt,
said, “I know you heard it,” and placed Johnson under
arrest for disorderly conduct, for his use of profane
language in public. Johnson was taken to the police station
and detained for less than an hour. He was released
without being charged.
Johnson then filed an action under section 1983 in the
United States District Court for the District of Delaware
against Campbell and his employer, the Township of Dewey
Beach, alleging that the stop and arrest had violated his
Fourth Amendment right to be free from unreasonable
seizures and his Fourteenth Amendment right to equal
protection.1 Johnson’s claims went to trial before a jury.2 At
1. Johnson also brought claims against the Motel and Price, which were
settled prior to the end of trial.
2. Neither Campbell nor the Township pled the defense of qualified
immunity.
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trial, Johnson submitted proposed jury instructions on the
federal standard for reasonable, articulable suspicion that
would justify a stop, and on the limitation imposed on the
Delaware disorderly conduct statute, restricting that
conduct, if based on words, to “fighting words.” The District
Court refused to give those instructions. Instead, the Court
instructed the jury on Delaware law allowing the police to
stop anyone whom the officer had reasonable ground to
suspect was about to commit a crime. See Del. Code Ann.
tit. 11, § 1902 (2000). Regarding the disorderly conduct
statute, the Court described the statutory offense exactly as
written, without making any distinction between protected
and unprotected speech. See Del. Code Ann. tit. 11, § 1301
(2000).
At the close of evidence, Johnson moved under Federal
Rule of Civil Procedure 50 for judgment as a matter of law,
which was denied. The jury returned a verdict in favor of
Campbell and the Township. The jury specifically found
that neither Johnson’s detention nor his arrest was due to
racial discrimination or in violation of his constitutional
right not to be deprived of liberty without due process of law.3
After trial, Johnson renewed his motion for judgment as a
matter of law and moved in the alternative for a new trial.
He argued that there was insufficient evidence to support
the jury’s findings that Campbell had reasonable suspicion
to stop him and probable cause to arrest him, and that the
jury instructions on reasonable suspicion and disorderly
conduct were incorrect and prejudicial. The Court denied
both motions.
II.
Johnson appeals, asking us to enter judgment as a
matter of law in his favor or to grant a new trial.4 We
3. We read, and the parties appear to treat, the jury’s findings that
Johnson’s detention and arrest were not in violation of his constitutional
right “not to be deprived of liberty without due process of law” to be
findings that the detention and arrest did not violate the Fourth
Amendment.
4. The District Court had jurisdiction over Johnson’s section 1983 claims
pursuant to 28 U.S.C. § 1331. Our jurisdiction over the District Court’s
final orders is based on 28 U.S.C. § 1291.
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exercise plenary review over the District Court’s denial of
judgment as a matter of law. Goodman v. Pennsylvania
Turnpike Comm’n, 293 F.3d 655, 664-65 (3d Cir. 2002). In
so doing, we apply the same standard as the District Court,
that is, whether, viewing the evidence in the light most
favorable to the verdict, a reasonable jury could have found
for the prevailing party. Starceski, 54 F.3d at 1095. A
scintilla of evidence is not enough for the verdict winner to
survive a Rule 50 motion. Goodman, 293 F.3d at 665.
Although judgment as a matter of law should be granted
sparingly, we will grant it where “the record is critically
deficient of the minimum quantum of evidence” in support
of the verdict. Gomez v. Allegheny Health Servs., Inc., 71
F.3d 1079, 1083 (3d Cir. 1995). “The question is not
whether there is literally no evidence supporting the
unsuccessful party, but whether there is evidence upon
which a reasonable jury could properly have found its
verdict.” Id. (emphasis added); see also Aloe Coal Co. v.
Clark Equip. Co., 816 F.2d 110, 114 (3d Cir. 1987) (vacating
jury verdict and granting judgment as a matter of law for
defendant because plaintiff did not present sufficient
evidence of causation to allow negligence claim to go to
jury).
For the reasons discussed below, we find the record here
critically lacking in evidentiary support for the jury’s
findings that Officer Campbell had a reasonable, articulable
suspicion that Johnson was engaged in criminal activity
when he stopped him, and that Campbell had probable
cause to arrest Johnson for disorderly conduct when
Johnson swore.5 Campbell stopped Johnson on nothing
more than Christine Price’s nervous reaction to Campbell’s
fidgety behavior in the office. He then arrested Johnson for
doing nothing more than speaking unpleasant words.
Although we are cognizant of the important role that the
5. Although we find the record insufficient to support the jury’s verdict
on Officer Campbell’s liability, we will affirm the District Court’s denial
of judgment as a matter of law as against the Township. We agree with
the District Court that there was sufficient evidence for a reasonable jury
to conclude that the Township’s police training did not amount to
“deliberate indifference to the rights of persons with whom the police
come into contact.” City of Canton v. Harris, 489 U.S. 378, 388 (1989).
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police play in keeping our citizens safe, and we do not
lightly second guess the decisions made by police officers in
the field, in this instance Campbell went too far; he stepped
over the line that separates zealous police work from an
unsupportable intrusion on a person’s liberty.
A. Reasonable Suspicion for the Stop
We begin with the stop. The Fourth Amendment protects
individuals from “unreasonable searches and seizures.”
U.S. Const. amend. IV. What is constitutionally
“unreasonable” varies with the circumstances, and requires
a balancing of the “nature and extent of the governmental
interests” that justify the seizure against the “nature and
quality of the intrusion on individual rights” that the
seizure imposes. Terry v. Ohio, 392 U.S. 1, 22, 24 (1968).
In Terry, the Supreme Court held that brief investigative
stops were “seizures” subject to Fourth Amendment
protection, and that a police officer may conduct such a
stop only if the officer can “point to specific and articulable
facts which, taken together with rational inferences from
those facts, reasonably warrant that intrusion.” Id. at 21. In
judging the reasonableness of stops, we must ask if “the
facts available to the officer at the moment of the seizure
. . . ‘warrant a man of reasonable caution in the belief ’ ”
that “criminal activity may be afoot.” Id. at 21-22, 30
(citations omitted). Thus, under Terry, in evaluating
whether Campbell’s interaction with Johnson prior to his
arrest amounted to an unreasonable seizure, we must first
determine at what moment Johnson was seized, and then
whether that seizure was justified by reasonable,
articulable facts known to Campbell as of that time that
indicated that Johnson was engaged in criminal activity.
A person is seized for Terry purposes when, “taking into
account all of the circumstances surrounding the
encounter, the police conduct would . . . ‘communicate[ ] to
a reasonable person that he was not at liberty to ignore the
police presence and go about his business.’ ” Kaupp v.
Texas, 123 S. Ct. 1843, 1845 (2003) (quoting Florida v.
Bostick, 501 U.S. 429, 437 (1991)). A seizure does not
occur every time a police officer approaches someone to ask
a few questions. Such consensual encounters are important
tools of law enforcement and need not be based on any
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suspicion of wrongdoing. Bostick, 501 U.S. at 434.
However, when the interaction ceases to be consensual,
that is, when a reasonable person would no longer “feel free
to decline the officers’ requests or otherwise terminate the
encounter,” the Fourth Amendment requires the officer to
be able to point to specific facts justifying the intrusion. Id.
at 436; see also United States v. Drayton, 122 S. Ct. 2105,
2112 (2002) (finding no seizure where police officers gave
defendants “no reason to believe that they were required to
answer the officers’ questions”); United States v. Kim, 27
F.3d 947, 951 (3d Cir. 1994) (stating that our task in
assessing a police encounter is “to decide whether, under
the totality of the circumstances . . . a reasonable person
would [feel] free to decline [an officer’s] requests or
otherwise terminate the encounter with him”).
The parties disagree about the exact moment when the
interaction between Johnson and Campbell became a stop.
Johnson argues that, based on Campbell’s testimony that
he detained Johnson “at the beginning of [his] dealing with
him,” the stop began before Johnson even had a chance to
protest.6 Campbell disagrees, arguing that the stop began at
some point after Johnson had repeatedly refused to
cooperate, and was therefore justified in part by Johnson’s
hostile behavior.
In light of our standard of review, we read Campbell’s
statement that he detained Johnson “at the beginning”
broadly, and believe that the answer lies somewhere in-
between the positions taken by the parties, at the moment,
perhaps a few seconds into the encounter, when it became
clear that Johnson could not refuse Campbell’s requests.
Although Johnson may have felt free to decline, and did in
fact attempt to decline, Campbell’s initial request to roll
down the window, the very next moment, when Campbell
persisted rather than accepting Johnson’s choice not to
acquiesce, the interaction became a stop. At that time,
6. During direct examination, Campbell was asked, “Officer, did you tell
Mr. Johnson that he was being detained at the beginning of your dealing
with him?” Campbell responded, “Yes, sir, I did.” Johnson’s counsel
continued, “So it was clear that he was not free to go?” To which
Campbell answered, “Yes, sir.”
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Campbell made it clear that Johnson was not free to ignore
him and would not be left alone until he complied.
We must now determine whether the facts known to
Campbell as of that moment were enough to render the
stop constitutionally sound. We review Campbell’s
reasonable suspicion determination de novo. Ornelas v.
United States, 517 U.S. 691, 697 (1996). Under Terry,
Johnson’s detention must have been based on something
more substantial than an “inchoate and unparticularized
suspicion or ‘hunch.’ ” Terry, 392 U.S. at 27. Campbell
must be able to point to “some objective manifestation that
[Johnson was], or [was] about to be, engaged in criminal
activity.” United States v. Cortez, 449 U.S. 411, 417 (1981).
The test is one of reasonableness given the totality of the
circumstances, which can include Johnson’s location, a
history of crime in the area, Johnson’s nervous behavior
and evasiveness, and Campbell’s “commonsense judgments
and inferences about human behavior.” Illinois v. Wardlow,
528 U.S. 119, 124-25 (2000); see also United States v.
Arvizu, 534 U.S. 266, 273 (2002) (reiterating that officers
must be allowed to “draw on their own experience and
specialized training to make inferences from and
deductions about the cumulative information available to
them”). The ultimate question is whether a reasonable,
trained officer standing in Campbell’s shoes could articulate
specific reasons justifying Johnson’s detention.
Although we ask for objective specificity, we do not
demand scientific certainty. Campbell need not have
observed criminal activity first hand to form a reasonable
suspicion of wrongdoing. Rather, officers may rely on a
trustworthy second hand report, if that report includes
facts that give rise to particularized suspicion. See Adams
v. Williams, 407 U.S. 143, 147 (1972) (rejecting the
argument “that reasonable cause for a stop and frisk can
only be based on the officer’s personal observation, rather
than on information supplied by another person”). Thus,
Campbell may rely on Price’s description of Johnson’s
behavior in the office if her account gives rise to reasonable
suspicion that Johnson was about to commit a crime.
Furthermore, “[a] reasonable suspicion of criminal
activity may be formed by observing exclusively legal
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activity.” United States v. Ubiles, 224 F.3d 213, 217 (3d Cir.
2000). The Supreme Court has upheld a number of stops
based on an officer’s observation of entirely legal acts,
where the acts, when viewed through the lens of a police
officer’s experience and combined with other
circumstances, led to an articulable belief that a crime was
about to be committed. One of the best examples is Terry
itself. There, the Supreme Court upheld a stop based on an
officer’s belief that Terry and his cohorts were “casing” a
store. Terry, 392 U.S. at 6. In so doing, the Court
articulated how seemingly innocent actions can lead to a
reasonable belief that criminal activity is afoot, and
provided the prototypical example of particularized
suspicion. The Court stated:
There is nothing unusual in two men standing together
on a street corner, perhaps waiting for someone. Nor is
there anything suspicious about people in such
circumstances strolling up and down the street, singly
or in pairs. Store windows, moreover, are made to be
looked in. But the story is quite different where, as
here, two men hover about a street corner for an
extended period of time, at the end of which it becomes
apparent that they are not waiting for anyone or
anything; where these men pace alternately along an
identical route, pausing to stare in the same store
window roughly 24 times; where each completion of
this route is followed immediately by a conference
between the two men on the corner; where they are
joined in one of these conferences by a third man who
leaves swiftly; and where the two men finally follow the
third and rejoin him a couple of blocks away.
Id. at 22-23. The Court concluded that these “specific,
reasonable inferences” of criminal activity furnished more
than a mere inchoate hunch and therefore justified the
stop. Id. at 27.
Similarly, in Wardlow, the Court held that officers acted
reasonably in stopping a man whose acts, when viewed in
isolation, were entirely legal, but when taken in
combination with other circumstances gave rise to a
reasonable suspicion of criminal activity. Wardlow, 528
U.S. at 125. There, police officers were patrolling an area
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known for heavy narcotics trafficking. They stopped a man
who was carrying an opaque bag and had fled immediately
upon seeing them. Id. at 121-22. The Court held that the
stop did not violate the Fourth Amendment. It explained
that, although “an individual’s presence in an area of
expected criminal activity, standing alone, is not enough to
support a reasonable, particularized suspicion that the
person is committing a crime,” when combined with the
individual’s unprovoked flight, the circumstances were
enough to give rise to a reasonable suspicion of
wrongdoing. Id. at 124; see also Arvizu, 534 U.S. at 268
(holding that it was reasonable for a border patrol agent to
infer that the defendant was attempting to avoid a
smuggling checkpoint because, among other factors, the
defendant’s minivan turned away from the known
recreation areas and the children in the back seat were
waving oddly as if they were being instructed); United
States v. Sokolow, 490 U.S. 1, 3 (1989) (finding stop to be
reasonable where a man had paid for two expensive airline
tickets with a roll of $20 bills, was traveling under a name
that did not match the name listed for his telephone
number, returned to Hawaii from Miami within 48 hours of
departing, appeared nervous during the trip, and did not
check any luggage); United States v. Valentine, 232 F.3d
350, 357 (3d Cir. 2000) (concluding that “officers had
reasonable suspicion after they received [a] face-to-face tip,
were in a high crime area at 1:00 a.m., and saw [the
defendant] and his two companions walk away as soon as
they noticed the police car”).
There are limits, however, to how far police training and
experience can go towards finding latent criminality in
innocent acts. Although the Supreme Court has often
deferred to police expertise in identifying potentially
criminal circumstances, it has held that a police officer may
not stop someone simply because he “looked suspicious.”
Brown, 443 U.S. at 49. In Brown, two police officers were
cruising in a patrol car and observed Brown and another
man walk away from each other in an alley. Id. at 48. One
of the officers thought the situation “looked suspicious”
because he had never seen Brown in that area before and
the area was known to have a high incidence of drug traffic.
The officer got out of the car and asked Brown to identify
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himself and explain what he was doing there. Id. at 49.
When Brown refused to do so and angrily asserted that the
officers had no right to stop him, he was arrested for
violating a Texas statute that made it illegal for someone to
refuse to give his name to an officer who had lawfully
stopped him. Id.
The Supreme Court reversed Brown’s conviction under
the Texas statute, holding that his seizure violated the
Fourth Amendment. The Court explained that the officer
had been unable to point to any facts supporting his
conclusion that the situation in the alley was suspicious,
and that Brown’s presence “in a neighborhood frequented
by drug users, standing alone, [was] not a basis for
concluding that [Brown] himself was engaged in criminal
conduct.” Id. at 52; see also United States v. Brignoni-Ponce,
422 U.S. 873, 885 (1975) (holding that although a trained
border patrol officer is entitled to assess the facts in light of
his experience in detecting illegal entry and smuggling, the
officer cannot rely solely on a driver’s apparent Mexican
ancestry to stop a car and check for illegal aliens).
Furthermore, the Supreme Court has “consistently held
that a refusal to cooperate, without more, does not furnish
the minimal level of objective justification needed for a
detention or seizure.” Bostick, 501 U.S. at 437. In Wardlow,
the Supreme Court carefully distinguished unprovoked
flight in a high crime area, which could lead to a reasonable
suspicion of criminal activity, from mere nervousness or
evasiveness. The Court reiterated that an individual “has a
right to ignore the police and go about his business”
without that activity being deemed inherently suspicious.
Wardlow, 528 U.S. at 125 (citing Florida v. Royer, 460 U.S.
491, 498 (1983)).
Finally, we have recently reiterated that the activity of
which the detainee is suspected must actually be criminal.
Ubiles, 224 F.3d at 218. In Ubiles, the defendant was
stopped and searched at a street carnival in the Virgin
Islands based solely on an anonymous tip that he had a
gun in his possession. Id. at 215. At trial, the District Court
refused to suppress the evidence gathered from the search,
and Ubiles was convicted for possessing an unregistered
firearm. Id. We reversed and vacated the conviction, holding
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that the stop and search were unlawful because they were
not based on a reasonable suspicion of criminal activity. Id.
at 214, 217. First, we noted that it was not necessarily a
crime to possess a gun in the Virgin Islands, and that a
mere allegation that a suspect possesses a gun, without
more, does not justify a stop. Id. at 217 (citing to Florida v.
J.L., 529 U.S. 266 (2000)). We then looked at the officer’s
testimony from the suppression hearing and found no
evidence to suggest that the officers were “aware of any
articulable facts suggesting that the gun Ubiles possessed
was defaced or unlicensed, that Ubiles posed a safety risk
to the authorities or the [carnival] celebrants, or that Ubiles
was acting in a manner indicating that he was involved in
a different crime.” Id. at 218. “For all the officers knew,” we
continued, “Ubiles was another celebrant lawfully
exercising his right under Virgin Islands law to possess a
gun in public. That is as much as [the tipster] told [the
officers] in pointing to Ubiles and informing them that
Ubiles had a gun in his possession.” Id. As the officers
lacked any reason to believe that Ubiles’s conduct was
criminal, the stop infringed on his Fourth Amendment
rights. Id.
Campbell argues that the stop here was justified by
Price’s account of Johnson’s nervous, agitated behavior,
lack of apparent purpose for being in the office, pacing,
head rubbing, and clipped answers to her questions.
Campbell emphasizes that Price was a trained officer and
that Berry and Campbell gave her recitation of the events “a
lot of credibility.” He also argues that two men sitting in a
motel parking lot for no apparent reason on a cold night in
December is inherently suspicious, and that Johnson’s
initial hostile response to his request to roll down the
window added to his suspicion.7 Johnson counters that
7. Campbell further argues in his brief that he was entitled to qualified
immunity because he complied with title 11, section 1902 of the
Delaware Code, which allows an officer to stop any person whom he has
reasonable ground to suspect is committing, has committed, or is about
to commit a crime, and to detain anyone who refuses to provide
identification. There are two problems with this argument: first, as was
clarified at oral argument, Campbell did not raise the defense of qualified
immunity in his pleadings; he may not raise it for the first time on
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Price and Campbell’s inchoate feelings that Johnson was
acting “suspiciously” are nothing more than
unparticularized hunches and are an insufficient basis for
his detention.
We agree with Johnson that the facts available to
Campbell as of the moment he stopped Johnson simply did
not give rise to a reasonable, articulable suspicion that he
was engaged in criminal activity. We do not doubt Price’s
credibility, nor her training and experience. We also do not
doubt that the previous robbery may have been in her mind
and that she was frightened when she asked her husband
to call the police. But no amount of training, experience, or
subjective nervousness can turn the simple, objective facts
that Johnson was drinking coffee, flipping through a
newspaper, pacing, and rubbing his head into articulable
suspicion that Johnson was about to commit a crime.
Furthermore, by the time that Campbell reached him,
Johnson was doing nothing more than sitting in a van with
another man and reading a paper — activities that, even
when done on a cold night in December, do not add any
cause for particularized suspicion, and that a citizen must
be allowed to do unhindered by the police.
This is not like Terry, Wardlow, or the other cases in
which the officers were able to articulate a chain of
inferences that led logically to their belief that criminal
activity was afoot. Unlike in Terry, Campbell has been
unable to articulate why exactly Johnson’s behavior was
suspicious. No one has suggested that Johnson was
“casing” the office, or that anything he did there was
criminal. Campbell has not enunciated a logical series of
inferences that would lead a reasonable person to believe
that Johnson was about to undertake a specific crime. Also,
unlike in Wardlow, where the defendant’s flight was a
appeal. Second, even assuming that Campbell properly followed
Delaware state law, he may not escape liability for the violation of a
federal constitutional right unless he also complied with federal
requirements. See Good News Club v. Milford Cent. School, 533 U.S. 98,
107 n.2 (2001) (noting that state law allowing for exclusion of religious
clubs in public schools was no defense to claim that the exclusion
constituted viewpoint discrimination under the First Amendment).
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relevant consideration, the only evasive action Johnson
took was his initial refusal to roll down his window. As the
Wardlow Court explained, this kind of refusal to comply is
different from full-blown flight and was perfectly within
Johnson’s rights; it cannot provide cause for a reasonable
suspicion of wrongdoing. See Wardlow, 528 U.S. at 125. As
for Johnson’s later uncooperative behavior, that cannot be
held against him because it occurred after the stop had
already begun.
The fact remains that Campbell stopped Johnson simply
because he looked like he might be the man who had made
Christine Price nervous. He did so without first ascertaining
any facts that would lead to reasonable suspicion and
without investigating whether Johnson was a guest or even
briefly glancing at the license plate or the signage on the
van. As in Brown, Campbell was acting on no more than a
feeling that Johnson was “suspicious.” As in Ubiles,
Campbell has been unable to identify any facts suggesting
that Johnson was about to rob Price or commit any other
criminal act. For all he knew, Campbell was simply a jittery
man reading a newspaper, an act that involves no illegality.
Again, in coming to our decision that no reasonable jury
could find that Campbell had a reasonable, articulable
suspicion that Johnson was engaged in wrongdoing, we do
not ignore Price’s subjective feeling of nervousness or her
testimony that she was scared and upset after Johnson left.
However, one citizen’s subjective feelings are not enough to
justify the seizure of another where the objective facts do
not point to any articulable basis for suspicion. The
availability of objective facts justifying a seizure is of
paramount importance. As the Supreme Court has
emphasized, the “demand for specificity in the information
upon which police action is predicated is the central
teaching of . . . Fourth Amendment jurisprudence.” Cortez,
449 U.S. at 418. For, when a stop is not based on specific,
objective criteria, “the risk of arbitrary and abusive police
practices exceeds tolerable limits.” Brown, 443 U.S. at 52.
Here, because the stop was based on nothing more than an
“inchoate and unparticularized suspicion or ‘hunch,’ ”
Terry, 392 U.S. at 27, it violated Johnson’s Fourth
Amendment right to be free from unreasonable seizures.8
8. In addition to finding that the stop did not violate Johnson’s right to
due process, the jury also found that it was not “due to racial
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We will therefore reverse the District Court’s denial of
judgment as a matter of law.
B. Probable Cause for the Arrest
We next address whether Johnson’s arrest for disorderly
conduct also violated his Fourth Amendment rights. The
arrest was sound only if it was based on probable cause.
Michigan v. DeFillippo, 443 U.S. 31, 36 (1979); Estate of
Smith v. Marasco, 318 F.3d 497, 514 (3d Cir. 2003).
Probable cause “means facts and circumstances within the
officer’s knowledge that are sufficient to warrant a prudent
person, or one of reasonable caution, in believing, in the
circumstances shown, that the suspect has committed, is
committing, or is about to commit an offense.” DeFillippo,
443 U.S. at 37. The validity of the arrest is not dependent
on whether the suspect actually committed any crime, and
“the mere fact that the suspect is later acquitted of the
offense for which he is arrested is irrelevant.” Id. at 36.
What matters is whether, looking at the totality of the
circumstances at the time of the arrest, “the objective facts
available to the officers . . . were sufficient to justify a
reasonable belief that an offense was being committed.”
United States v. Glasser, 750 F.2d 1197, 1206 (3d Cir.
1984) (citing Beck v. Ohio, 379 U.S. 89, 96 (1964)). Here,
we must determine whether, looking at the totality of the
circumstances at the time of Johnson’s arrest, Campbell
had probable cause to believe that Johnson was committing
the offense of disorderly conduct.
We must first understand what the crime of disorderly
conduct entails. The Delaware Code provides:
A person is guilty of disorderly conduct when: (1) The
person intentionally causes public inconvenience,
annoyance or alarm to any other person, or creates a
discrimination.” On appeal, Johnson does not address this aspect of the
jury’s finding, except to urge, during oral argument, that we remand for
a new trial because the jury was never given the opportunity to truly
decide the issue. As this aspect was not briefed, and we find the record
supportive of the jury’s finding that the stop was not due to racial
discrimination, we will affirm the District Court’s denial of judgment as
a matter of law and a new trial regarding racial discrimination.
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risk thereof by: a. Engaging in fighting or in violent,
tumultuous or threatening behavior; or b. Making an
unreasonable noise or an offensively coarse utterance,
gesture or display, or addressing abusive language to
any person present.
Del. Code Ann. tit. 11, § 1301. The language of section
1301 alone, however, is not sufficiently comprehensive in
certain situations. When the regulated conduct consists of
speech, the statute must “be carefully drawn or
authoritatively construed to punish only unprotected
speech and not be susceptible of application to protected
expression.” Gooding v. Wilson, 405 U.S. 518, 522 (1972).
To bring section 1301 within constitutional limits, the
Superior Court of Delaware has authoritatively construed it
to prohibit only “fighting words — those which by their very
utterance inflict injury or tend to incite an immediate
breach of the peace.” State v. White, 1989 WL 25818, at *1
(Del. Super. March 7, 1989) (quoting Chaplinsky v. New
Hampshire, 315 U.S. 568, 572 (1942)).9 Such an
authoritative construction of the statute by a state court “is
as binding [on a federal court] as though the precise words
had been written into the [statute].” Terminiello v. City of
Chicago, 337 U.S. 1, 4 (1949). Therefore, when we read
section 1301, we must also read into it a restriction to
punish only such speech that consists of “fighting words,”
as those words are understood in First Amendment
jurisprudence.
The unprotected category of speech called “fighting
words” is an extremely narrow one. The First Amendment
on the whole offers broad protection for speech, be it
unpleasant, disputatious, or downright offensive. As the
Supreme Court has explained, “a principal ‘function of free
speech under our system of government is to invite dispute.
It may indeed best serve its high purpose when it induces
9. We have found nothing in the Delaware Court Rules to lead us to
conclude that an unreported decision of the Superior Court of Delaware
is not authoritative in this context, nor have the parties so argued. On
the contrary, the Court Rules allow for the citation of unreported
decisions. See Del. Sup. Ct. Rules, Rule 14(b)(vi)(4) (West 2003)
(describing how unreported opinions should be attached to briefs); Id.,
Rule 93(d)(ii) (describing how unreported opinions should be cited).
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a condition of unrest, creates dissatisfaction with
conditions as they are, or even stirs people to anger.’ ”
Texas v. Johnson, 491 U.S. 397, 408 (1989) (quoting
Terminiello, 337 U.S. at 4). This is why “freedom of speech,
though not absolute, is nevertheless protected against
censorship or punishment, unless shown likely to produce
a clear and present danger of a serious substantive evil that
rises far above public inconvenience, annoyance, or
unrest.” Terminiello, 337 U.S. at 4. To be punishable, words
must do more than bother the listener; they must be
nothing less than “an invitation to exchange fisticuffs.”
Johnson, 491 U.S. at 409.
This is equally true when the words are spoken in the
presence of police officers. “The freedom of individuals
verbally to oppose or challenge police action without
thereby risking arrest is one of the principal characteristics
by which we distinguish a free nation from a police state.”
City of Houston v. Hill, 482 U.S. 451, 462-63 (1987)
(holding that ordinance making it unlawful to interrupt a
policeman in the execution of his duty was overbroad).
Indeed, the Supreme Court has suggested that the “fighting
words” exception “might require a narrower application in
cases involving words addressed to a police officer, because
‘a properly trained officer may reasonably be expected to
exercise a higher degree of restraint than the average
citizen, and thus be less likely to respond belligerently to
‘fighting words.’ ”’ Id. at 462 (quoting Lewis v. City of New
Orleans, 415 U.S. 130, 135 (1974) (Powell, J., concurring)).
On the specific subject of “profane” words, the Supreme
Court has held that even those words alone,
unaccompanied by any evidence of violent arousal, are not
“fighting words,” and are therefore protected speech. Cohen
v. California, 403 U.S. 15, 20 (1971). In Cohen, the
Supreme Court reversed a conviction for disturbance of the
peace where the defendant had worn a jacket bearing the
words “F—k the Draft” inside a courthouse. Id. at 16. The
Court held that it was not enough that the jacket might
cause others to “rise up to commit a violent act against the
person of the defendant or attempt to forcibly remove his
jacket.” Id. at 17. Because the defendant did not threaten
anyone or provoke others to acts of violence, he could not
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be punished. The Court emphasized that even offensive and
distasteful words must be protected, for “one man’s
vulgarity is another’s lyric,” and courts cannot make
principled distinctions on matters of taste and style. Id. at
25. It is the function of words to convey “not only ideas
capable of relatively precise, detached explication, but
otherwise inexpressible emotions as well.” Id. at 26. The
emotive function of an expletive “may often be the more
important element of the overall message sought to be
communicated,” id.; so long as one does not incite violence,
one should not be forced to express one’s anger or
disapproval in measured terms.
Thus, when we ask whether Campbell had probable
cause to arrest Johnson for disorderly conduct, we must
interpret the Delaware Code to prohibit only that speech
that falls into the narrow category of “fighting words,” and
not speech that is simply disputatious, emotionally
charged, or profane. Armed with a fuller understanding of
the First Amendment restrictions, we can now turn to the
facts before us.
First, we must ascertain precisely what “conduct” of
Johnson’s formed the basis for his arrest. Campbell argues
in his brief that Johnson was arrested not just for his
words, but for his actions during the entire encounter,
including his “verbal harass[ment]” of Campbell and his
refusal to comply with Campbell’s request for identification.
However, this contention is not supported by the record,
even when taken in the light most favorable to Campbell.
Rather, it is clear from Campbell’s unequivocal and
uncontroverted testimony at trial that Johnson was
arrested solely for the words he spoke. When Campbell was
asked directly why Johnson had been arrested for
disorderly conduct, he replied that Johnson had breached
the peace by “[u]sing profane language in public.” We find
unavailing Campbell’s attempt to justify the arrest on
different grounds on appeal, when he repeatedly testified
that he arrested Johnson on the basis of his words.
Furthermore, viewed objectively, none of Johnson’s other
actions, as described by Campbell himself, amounted to
threatening or tumultuous behavior. What Johnson did was
sit in the van, refuse Campbell’s requests for identification,
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demand to know why he had been stopped, and question
Campbell’s motives. The worst and most potentially
disruptive thing he did during the entire encounter was
mutter “son of a bitch;” it was those words that
immediately precipitated his arrest.10
Since Johnson was arrested for the words he spoke, the
question must be whether Campbell had probable cause to
believe that Johnson’s words were “fighting words.” Again,
Campbell’s testimony on this point is conclusive. When
asked whether Johnson’s words “cause[d] anybody to fight
or become angry,” which is the very definition of “fighting
words,” Campbell’s response was, “No, not that I am aware
of, no fighting, no angry, no, no one became angry.” Thus,
Campbell himself testified that the words did not cause
him, Johnson, or the onlookers to become angry or provoke
anyone to fight. Here, as in Cohen, the words were
emotionally expressive of Johnson’s displeasure with the
way Campbell was handling the situation. Johnson’s words
were unpleasant, insulting, and possibly unwise, but they
were not intended to, nor did they, cause a fight. As
Johnson’s words were not “fighting words,” Campbell had
no probable cause to arrest him for disorderly conduct.
Our conclusion is consistent with case law from other
circuits. Two other federal courts of appeals have also held
that swear words, spoken to a police officer, do not provide
probable cause for an arrest for disorderly conduct because
the words, as a matter of law, are not “fighting words.” In
a situation akin to that here, the Court of Appeals for the
Eighth Circuit reversed a jury verdict in a section 1983
case for the defendant police officers and granted judgment
as a matter of law to the plaintiff, holding that her arrest
for disorderly conduct was not based on probable cause.
See Buffkins v. City of Omaha, 922 F.2d 465 (8th Cir.
1990). In Buffkins, the police arrested the plaintiff after she
10. There is some question as to whether Johnson directed his words at
Campbell or simply said them to express his frustration. Given our
standard of review, we must accept Campbell’s testimony, that Johnson
directed the words at him, as true. Either way, our conclusion (indeed,
Campbell’s conclusion as well) that the words were not “fighting words”
remains the same.
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said to them, “I will have a nice day, asshole.” Id. at 467.
The court held that because there was no evidence that her
speech was an incitement to immediate lawless action,
neither officer contended that she had become violent or
threatened violence, and her “use of the word ‘asshole’
could not reasonably have prompted a violent response
from the arresting officers,” the officers had no probable
cause to arrest her.
Similarly, in Duran v. City of Douglas, 904 F.2d 1372 (9th
Cir. 1989), the Court of Appeals for the Ninth Circuit held
that the defendant police officer was not entitled to
qualified immunity against a claim under section 1983 that
he had wrongfully stopped and arrested the plaintiff for
disorderly conduct after the plaintiff made “obscene
gestures toward him and yell[ed] profanities in Spanish
while traveling along a rural Arizona highway.” Id. at 1377.
The court explained that it did not condone the plaintiff ’s
conduct, which was “boorish, crass, and . . . unjustified.”
Id. But, the court went on, “disgraceful as [the plaintiff]’s
behavior may have been, it was not illegal; criticism of the
police is not a crime.” Id. (citing Hill, 482 U.S. at 461-63).
Because the plaintiff ’s conduct took place late at night on
a deserted road, it “could not have disturbed the peace or
incited a riot,” therefore the officer did not have any cause
to stop him, let alone arrest him. Id.
Campbell urges us not to confuse the probable cause
standard governing Johnson’s arrest with the higher
standard required to convict him, and argues that even if
Johnson’s actions did not actually constitute disorderly
conduct, Campbell still reasonably believed that Johnson
was committing a crime under Delaware law because he
uttered profane words in public. Campbell appears to be
arguing that an officer may arrest someone even if the
officer has an erroneous understanding of what constitutes
a crime. Although this sounds a bit like a qualified
immunity defense, Campbell did not raise qualified
immunity in the pleadings and does not phrase it as such
before us. Rather, he asks us to find that probable cause to
arrest may exist even if predicated on a flawed view of what
is prohibited by the disorderly conduct statute.
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This cannot be. While it is true that the standard for
probable cause is less than the standard for conviction, see
DeFillippo, 443 U.S. at 36, we must still ask the question as
to whether a reasonable officer would have had cause to
believe that a crime was being committed. Campbell
believed that the simple act of speaking a profane epithet in
public amounted to a criminal breach of the peace. He did
not believe that the words needed to cause anyone to fight
or become angry. Campbell was simply wrong about what
Delaware law prohibits. He cannot now justify Johnson’s
arrest by arguing that, under his own erroneous
understanding, he had probable cause to believe Johnson
was committing a crime. Probable cause is objective, not
subjective; essential to probable cause is that an officer
would be justified in believing that an actual offense was
being committed.
Here, what Campbell believed Johnson had done —
speak profane words in public — is not a crime, therefore
Campbell could not have had probable cause to believe a
crime was being committed. It is the same as if an officer,
believing that a statute that prohibited crossing the street
on a red light actually prohibited crossing the street at all
times, arrested someone who crossed the street on a green
light. No matter the strength of the evidence that the
person arrested did in fact cross the street, the officer could
not have had probable cause to believe that a crime was
being committed, because crossing the street on a green
light is simply not a crime.
Therefore, because Campbell concedes that Johnson’s
words were not “fighting words,” and thus could not have
properly believed that Johnson was committing the crime of
disorderly conduct, Johnson’s arrest violated the Fourth
Amendment.11 Accordingly, we will reverse the District
Court’s denial of judgment as a matter of law on this claim.12
11. As with the stop, in addition to finding that the arrest did not violate
Johnson’s right to due process, the jury also found that it was not “due
to racial discrimination.” For the same reasons given regarding the stop,
see n.8 supra, we will affirm the District Court’s denial of judgment as
a matter of law and a new trial regarding racial discrimination.
12. Johnson also complains that the jury instructions were incomplete in
two key respects: the “reasonable suspicion” required for a stop and the
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III.
For the reasons given above, we hold that the evidence
demonstrated neither that Officer Campbell had a
reasonable, articulable suspicion that Johnson was
engaged in criminal conduct when he stopped Johnson, nor
that he had probable cause to arrest Johnson for disorderly
conduct. We will therefore reverse the District Court’s
denial of judgment as a matter of law with respect to
Johnson’s claims that the stop and the arrest violated his
Fourth Amendment right to be free from unreasonable
seizures, grant him judgment as a matter of law, and
remand to the District Court for a trial on damages. We will
affirm the District Court’s order in all other respects.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
description of a “disorderly conduct” offense. As we reverse and need not
decide this case on this basis, we will not opine on this issue, but note
that in light of the facts of this case and the principle that the District
Court should insure that the instructions do not confuse the jury, see
United States v. Fischbach & Moore, Inc., 750 F.2d 1183, 1195 (3d Cir.
1984), the District Court’s refusal to give the instructions desired by
Johnson in both instances is troubling in that it may have left the jurors
with a less than complete understanding of the guiding principles. In one
instance, the Court refused to elaborate on the need for Officer Campbell
to have had a “reasonable, articulable” suspicion in order to have cause
to stop Johnson. In the other instance, the Court refused to add an
instruction that would make clear that the crime of “disorderly conduct”
requires speech to have been disruptive, as discussed above. The District
Court’s refusal may have amounted to an abuse of discretion. See
Montgomery County v. Microvote Corp., 320 F.3d 440, 445 (3d Cir. 2003)
(stating that a jury instruction is erroneous when it does not “properly
appraise[ ] the jury of the issues and the applicable law”).
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