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A rape victim who was arrested for burglary and theft after breaking into the building where she was attacked to retrieve her clothes and gather evidence may not sue the police who filed charges against her, the 3rd U.S. Circuit Court of Appeals has ruled. Even though the burglary and theft charges were later dropped, there was probable cause at the time they were filed, the panel reasoned. In its 31-page opinion in Wright v. City of Philadelphia, a unanimous three-judge panel overturned a lower court’s decision that would have allowed Kimberly Marnell Wright to pursue her civil rights claim. The ruling reverses a decision by Senior U.S. District Judge for the Eastern District of Pennsylvania Norma L. Shapiro, who held that the police officers were not entitled to “qualified immunity.” In denying a motion for summary judgment, Shapiro found that a jury could conclude the police had unreasonably dismissed Wright’s purported reason for her break-in — to obtain evidence of the sexual assault against her. If the jury sided with Wright on that point, Shapiro said, it could also conclude that the reason for the break-in should have negated any perception of probable cause to suspect that Wright had the requisite intent for the burglary. But the appellate court said Shapiro should have focused instead on the issue of whether the police believed they had probable cause at the time of Wright’s arrest. The court found that the evidence supported a finding of probable cause — since Wright admitted to taking some items from the building, such as watches, that had no value as evidence in her rape charge — and that her civil rights claim therefore should have been dismissed. “The probable cause inquiry looks to the totality of the circumstances; the standard does not require that officers correctly resolve conflicting evidence or that their determinations of credibility, were, in retrospect, accurate,” 3rd Circuit Judge Julio M. Fuentes wrote. “The officers did not believe Wright’s explanation for her entry. Although they may have made a mistake, their belief was not unreasonable in light of the information the officers possessed at the time,” Fuentes wrote. Although Wright’s assailants ultimately pleaded guilty to sexual assault charges, Fuentes found that the incident at first spawned two investigations led by different police officers — one for the alleged break-in, and the other for Wright’s sexual assault charge. At first, the police did not believe Wright’s story and opted not to pursue the sexual assault charges. Instead, they arrested Wright on charges of burglary, theft, criminal trespass and criminal mischief. The charges against Wright were later dropped. Soon after, the Philadelphia police reopened a large number of sexual assault investigations, including Wright’s case, due to complaints made by victims and advocacy groups, including the Women’s Law Project. After Wright’s case was reopened, DNA samples pointed to one of the men Wright had accused. They were arrested and pleaded guilty to sexual assault charges. According to court papers, Wright was driving alone on Chelten Avenue on Dec. 16, 1999, when her car broke down and two men — Ronald Jackson and Nimar Thompson — stopped and offered assistance. But instead of helping her, Wright said the men drugged her and forcibly took her to a beauty parlor owned by Jackson. Soon after, she said, they took her to home on Cedar Park Avenue, where she was held in an intoxicated state for several hours. Wright said that when she awoke, she was partially undressed and the two men forced her out of the house, leaving her on the front porch. When she failed to get help from neighbors, Wright said, she returned to the house where she had been assaulted, broke a small window pane and re-entered the property. Once inside, Wright said she retrieved her clothes and some other items, such as a photograph of one of her attackers and several pieces of mail. She also took bottles of wine, watches, some clothes and a cordless phone. The next day, Wright said, her sister took her to the hospital where she reported the assault to police and explained the break-in. But in the meantime, Jackson’s sister, Denise Pue — the owner of the home where the assault occurred — had reported the break-in. At first, the police handled the two investigations separately. In January 2000, the officer investigating the sexual assault charge decided that Wright’s claim was unfounded. Soon after, the investigating officer on the break-in case arrested Wright. When Pue failed to appear at a preliminary hearing, the charges against Wright were dismissed. Within three months after Wright’s sexual assault case was reopened, Jackson and Thompson were arrested and both later pleaded guilty. In November 2001, the Philadelphia Police Internal Affairs Division issued a report finding that the officer who conducted the sexual assault investigation had “conducted a less than proper/thorough investigation” of Wright’s claims and that her case should not have been closed as unfounded. In her civil rights case, Wright claimed that since the officers were aware of each other’s investigations, they should have known that she broke into Pue’s home to retrieve her clothes and to gather evidence to prove she had been assaulted. Her lawyer, Paul Messing of Kairys Rudovsky Epstein & Messing, argued that the police either knew or should have known that Wright had no criminal intent. But Assistant City Solicitor Craig Gottlieb argued that, although the police were later proven to be wrong, they clearly had probable cause to arrest Wright at the time. The 3rd Circuit agreed, saying the evidence showed that the police were justified in their belief that Wright had committed a crime. “We are concerned here only with the question of probable cause, not Wright’s guilt or innocence,” Fuentes wrote. “Thus, even if Wright lacked the requisite knowledge to commit criminal trespass, we must evaluate whether the totality of the circumstances was sufficient to justify a reasonable belief on the part of the officers that Wright had committed a crime,” Fuentes wrote. Probable cause existed, Fuentes concluded, because Wright admitted to breaking a window and entering Pue’s home, and to removing items that have “little or no evidentiary value.” Fuentes said Shapiro erred when she concluded that a jury should decide the factual issues relating to “whether a reasonable police officer could have mistakenly believed that there was probable cause to arrest [Wright].” Shapiro focused only on the burglary charge, Fuentes noted, and not the other charges lodged against Wright. “When we consider the offense of criminal trespass, we conclude that the officers had probable cause to arrest her for this offense,” Fuentes wrote. 3rd Circuit Judge Marjorie O. Rendell joined the opinion by Fuentes. In a concurring opinion, 3rd Circuit Judge D. Brooks Smith said he reached the same result, but said he believed his colleagues had erred by describing the ruling as a finding of qualified immunity. Smith said he believes that qualified immunity appeals require a two-step process in which courts first decide whether a constitutional violation occurred and then decide whether the right that was violated was a “clearly established” one. Since the majority concluded that no constitutional violation occurred in Wright’s case, Smith said, the ruling should not be described as one in which the officers were found to be entitled to qualified immunity. “The majority apparently feels compelled to hold that the officers have qualified immunity because ‘that was the basis for this interlocutory appeal.’ In other words, the majority seems to believe that what arrived in a ‘qualified immunity’ envelope cannot be returned in a ‘failure to state a claim’ envelope,” Smith wrote. “In my view, where no such claim is stated, dismissal on that ground — rather than on the ground that the officials are immune — is appropriate,” Smith wrote.

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