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O’Keefe v. Lehigh Univ., 2024 U.S. App. LEXIS 853 (3d Cir. January 12, 2024) (Krause, C.J.).

After being arrested for public drunkenness, in violation of 18 Pa. Cons. Stat. § 5505, and later expelled from Lehigh University, Brendan O’Keefe sued two Lehigh University Police Department (LUPD) officers and the University for assault and battery and breach of contract. The District Court granted summary judgment to Defendants on all claims. For the following reasons, we will affirm.

O’Keefe asserts that the District Court erred in failing to hold that the LUPD officers committed assault and battery when they forced him to take a breathalyzer test against his will. He also contends that Lehigh University violated its stated procedures and principles of fundamental fairness when it conducted a disciplinary hearing that resulted in his dismissal from the school. We reject both arguments.

It was not unreasonable for the officers to conduct a breath test in this circumstance. According to two eyewitnesses and the arresting officers, O’Keefe was observed stumbling around and falling after almost being hit by a car, and his speech was slurred. Given those reports, the officers had probable cause to arrest O’Keefe for public drunkenness and to conduct a search incident to arrest. As the Supreme Court and Pennsylvania courts have discussed in the context of driving under the influence, conducting a breath test as a search incident to arrest involves only a “negligible” physical intrusion. Birchfield v. North Dakota, 579 U.S. 438, 461, 136 S. Ct. 2160, 195 L. Ed. 2d 560 (2016); see Commonwealth v. Trahey, 658 Pa. 340, 228 A.3d 520, 532 (Pa. 2020) (quoting Birchfield, 579 U.S. at 461, for the proposition that a breath test “does not implicate ‘significant privacy concerns'”). In addition, the results of such tests may be admissible at trial upon a showing of “sufficient reliability.” And admissible or not, the test allows police and prosecutors to determine what level of medical care may be necessary and to confirm for charging purposes that what appears to be public drunkenness is likely the result of alcohol and not, for example, drug use or a medical episode. See Birchfield, 579 U.S. at 474; Trahey, 228 A.3d at 533. Though the danger to oneself and others from public drunkenness may be less than the danger stemming from drunk driving, it is not insubstantial, as is apparent from the facts of this case.

As O’Keefe argues forcefully and correctly, physical injury is not required to state a claim for battery under Pennsylvania law. See Opening Br. 14; Montgomery v. Bazaz-Sehgal, 568 Pa. 574, 798 A.2d 742, 749 (Pa. 2002). But that is beside the point. O’Keefe’s testimony is relevant not because physical injury is an element of a battery claim, but because “[p]olice officers are privileged to commit a battery pursuant to a lawful arrest” unless they use excessive force, Groman, 47 F.3d at 634, and the de minimis injuries described by O’Keefe confirm that the force the officers used here was not excessive.

In sum, the District Court correctly concluded that Defendants were entitled to summary judgment on O’Keefe’s assault and battery claim.

O’Keefe also challenges the entry of summary judgment against him on his claim for breach of contract. As the District Court observed, “[u]nder Pennsylvania law, the relationship between a student and a private educational institution is contractual.” O’Keefe v. Lehigh Univ., No. 19-cv-0884, 2023 U.S. Dist. LEXIS 3136, 2023 WL 137457, at *9 (E.D. Pa. Jan. 9, 2023) (citing Reardon v. Allegheny Coll., 2007 PA Super 160, 926 A.2d 477, 480 (Pa. Super. Ct. 2007)). And under that contract, as long as the disciplinary procedures established by a university are “fundamentally fair,” a student is entitled “only to those procedural safeguards which the school specifically provides.” Psi Upsilon of Phila. v. Univ. of Pa., 404 Pa. Super. 604, 591 A.2d 755, 758 (Pa. Super. Ct. 1991) (emphasis omitted) (quoting Boehm v. Univ. of Pa. Sch. of Veterinary Med., 392 Pa. Super. 502, 573 A.2d 575, 579 (Pa. Super. Ct. 1990)).

First, O’Keefe contends that Associate Dean of Students Christopher Mulvihill questioned a witness in a “fundamentally unfair and deceptive manner with the goal of fabricating evidence.” Whatever the tone of Mulvihill’s questioning, it did not result in any fundamental unfairness.

Second, O’Keefe argues that Lehigh failed to ensure that the hearing panel made a credibility determination on the eyewitness statements, as recounted in Mulvihill’s interview notes. But O’Keefe did not call those witnesses at the hearing, as he was entitled to do, and Mulvihill testified that he believed that the panel members made a credibility determination about the witnesses “as part of their evaluation of the information presented at the hearing.”

Third, O’Keefe contends that Lehigh’s withholding of an “exculpatory incident report” and body camera footage violated its duty to disclose “all known relevant facts” to the disciplinary panel. Opening Br. 44; App. 1261. In fact, however, the summary of the incident report that Lehigh presented to the disciplinary panel comported with the original report O’Keefe references, and the record on summary judgment reflects that Lehigh lacked access to the body camera footage.

Ultimately, O’Keefe disagrees with the decision rendered by Lehigh’s hearing panel, but he does not identify any step that was fundamentally unfair and thus provides no basis to resurrect his breach-of-contract claim.