381 F.3d 202 | 3rd Cir. | 2004
ALITO, Circuit Judge:
these ceremonies, some consider him to be This is an appeal by officials of the a holy man. Pennsylvania Game Commission from an The Pennsylvania Game and order permanently enjoining them from Wildlife Code requires permits in order to enforcing a permit fee provision of the engage in a variety of different activities, state Game and Wildlife Code against including such things as bird banding (34 Dennis Blackhawk on the ground that the Pa. Cons. Stat. Ann. § 2921), falconry (34 Commission’s current waiver policy Pa. Cons. Stat. Ann. § 2925), various types violates his right to the free exercise of of field dog trials (34 Pa. Cons. Stat. Ann. religion. Blackhawk in turn cross-appeals § 2943), fox chasing (34 Pa. Cons. Stat. the District Court’s holding that the Game Ann. § 2945), maintaining a “menagerie” Commission officials are not personally (34 Pa. Cons. Stat. Ann. § 2964), and liable for violating his rights. We affirm either dealing in or possessing “exotic the District Court in both respects. wildlife.” 34 Pa. Cons. Stat. Ann. §§
I.
2962, 2963. Annual fees ranging from $25 to $300 are collected for these permits, see
Lakota Indians believe that black 34 Pa. Cons. Stat. Ann. § 2904, and the bears protect the Earth, sanctify religious revenues from all of these fees comprise ceremonies, and imbue worshipers with about one percent of the Game fee is $50. See 34 Pa. Cons. Stat. Ann. § Commission’s annual intake. 2904.
Although persons wishing to keep In 1998, Blackhawk sought an wildlife in captivity must generally obtain exemption from the permit fee on the a menagerie or exotic wildlife possession ground that he possessed the bears for permit and pay the requisite fee, see 34 Pa. Native American religious purposes. After Cons. Stat. Ann. §§ 2904, 2964(c)(1), the making an inquiry to the Bureau of Indian Code excludes from these requirements Affairs, Merluzzi informed Blackhawk most zoos and all “[n]ationally recognized that Native Americans who possess a circus[es].” 34 Pa. Cons. Stat. Ann. § Bureau of Indian Affairs identification 2965(a)(1)–(3). In addition, the director of card are entitled to some exemptions under the Game Commission is authorized to federal law, but Blackhawk did not possess waive a permit fee “where hardship or such a card. Blackhawk paid the 1998 fee extraordinary circumstance warrants,” so under protest after citing his religious long as the waiver is “consistent with purpose and alleging financial hardship. sound game or wildlife management He then wrote to his representative in the activities or the intent of [the Game and state legislature, Keith McCall, and Wildlife Code]” 34 Pa. Cons. Stat. Ann. § McCall intervened and asked Commission 2901(d). director Vernon Ross to oversee the
situation personally. On October 6, 1999, From 1995 to 1999, Blackhawk Blackhawk received a letter from obtained permits to own the bears. At Commission officials Thomas Littwin and first, he acquired a “menagerie permit,” David Overcash informing him that he did but bears are classified under the Game not qualify for a waiver under 34 Pa. Cons. and Wildlife Code as “exotic wildlife,” see Stat. Ann. § 2901(d) because the 34 Pa. Cons. Stat. Ann. § 2961, and special Commission regarded the keeping of wild permits are required for those wishing to animals in captivity as inconsistent with deal in or possess exotic wildlife. See 34 sound game and wildlife management Pa. Cons. Stat. Ann. §§ 2904, 2962, 2963. activities unless the animals were intended Beginning in 1997, the Game Commission for release into the wild. Since Timber insisted that Blackhawk obtain an exotic and Tundra had been declawed and had wildlife dealer permit, which costs $200 been kept in captivity their entire lives, per year, see 34 Pa. Cons. Stat. Ann. § they could not be released into the wild. 2904, because Frederick Merluzzi, a “Thus, in the Commission’s view, wildlife conservation officer, believed that Blackhawk [was] not entitled to an Blackhawk intended to breed the bears and exemption regardless of his financial sell their cubs. If Blackhawk did not wish circumstanc es.” Black Hawk v. to deal in bears but merely to keep them, Pennsylvania, 225 F. Supp. 2d 465, 470 he needed only an exotic wildlife (M.D. Pa. 2002). The letter from Littwin possession permit, for which the annual and Overcash told Blackhawk that, tested for rabies. See 28 Pa. Code § because his permit had expired on June 30, 27.103(f)(2). The District Court enjoined 1999, if he still possessed the bears he was the Commission from destroying the bears subject to prosecution. and ordered their return. See Black Hawk
v. Pennsylvania, 114 F. Supp. 2d 327 Blackhawk responded by again (M.D. Pa. 2000). requesting a waiver, and in November of 1999, Merluzzi filed criminal charges When the District Court reached the against Blackhawk for failing to renew. merits of the civil case, it held that the
Game Commission’s refusal to exempt Blackhawk filed an action under 42 religiously motivated activities from the U.S.C. § 1983, seeking to enjoin the Game permit fee violated the First Amendment’s Commission from assessing the fee or Free Exercise Clause. See Black Hawk, confiscating the bears and also seeking 225 F. Supp. 2d at 465. The Court held money damages from Merluzzi, Overcash, that the permit fee requirement was not a Littwin, Hambley, and Ross. Prior to the “‘valid and neutral law of general District Court’s disposition of the case, a applicability’” under Employment Div., state magistrate found Blackhawk guilty of Dep’t of Human Resources of Oregon v. the criminal charges and assessed a Smith, 494 U.S. 872, 879 (1990), because $178,400 fine, which he later reduced to the statutory waiver established a “‘system $6,442. However, the Court of Common of individualized exceptions.’” Black Pleas stayed the criminal case pending a Hawk, 225 F. Supp. 2d at 473. The Court ruling on Blackhawk’s § 1983 action. accordingly applied strict scrutiny to the In August of 2000, Blackhawk waiver scheme, id. at 472–73, and held discovered that the bears’ enclosure had that the scheme could not withstand strict been vandalized, that the locks on the scrutiny because the Commission was enclosure had been cut, and that the unable to “demonstrate a compelling animals were missing. A neighbor interest in refusing to grant a religious encountered Tundra on his property and exemption.” Id. at 477. The District Court was attempting to lead the bear back to the a c co r d i n g l y e n jo i n e d t h e G a m e pen when Tundra bit him. The neighbor Commission from charging Blackhawk a alerted the Game Commission, which permit fee. However, the Court declined tracked the bears and tranquilized them. to hold the individual defendants liable An official who was attempting to restrain under § 1983 because it found that Tundra was also bitten by the bear, but the Merluzzi and Hambley were not personally Commission succeeded in taking both responsible for violating Blackhawk’s bears into custody. It then sought to rights and that Ross, Littwin, and destroy the bears pursuant to a regulation Overcash were entitled to qualified requiring wild animals who have bitten immunity. humans to be decapitated in order to be
On appeal, the Commission argues that the First Amendment does not entitle however, that most laws that burden Blackhawk to a waiver, and Blackhawk religiously motivated conduct stand on a contends that the District Court erred in different footing. Rejecting the argument granting summary judgment in favor of the that such laws must generally satisfy strict individual defendants. We exercise scrutiny, the Court concluded that the First plenary review over a grant of summary Amendment is not ordinarily offended by judgment, Northview Motors, Inc. v. “neutral” and “generally applicable” laws Chrysler Motors Corp., 227 F.3d 78, that merely have “the incidental effect” of 87–88 (3d Cir. 2000), and likewise review burdening religiously motivated conduct. de novo the District Court’s interpretation 494 U.S. 878, 879, 881. of the Constitution. United States v.
The Court recognized several Scarfo, 263 F.3d 80, 91 (3d Cir. 2001). exceptions to this rule. First, the Court did II. not overrule prior decisions in which “hybrid claims” (i.e., claims involving “not
A.
the Free Exercise Clause alone, but the Blackhawk’s free exercise claim Free Exercise Clause in conjunction with requires us to apply the Supreme Court’s other constitutional protections”) had decisions in Employment Div., Dep’t of prevailed against “neutral, generally Human Resources of Oregon v. Smith, applicable law[s].” Id. at 881 (citations supra, and Church of Lukumi Babalu Aye, omitted). Nor did the Court overrule Inc. v. Hialeah, 508 U.S. 520 (1993) Sherbert and o ther decisions that (“Lukumi”), and our decisions in Fraternal “ i n v a li d a t ed sta t e u ne m p l o y m e nt Order of Police v. City of Newark, 170 compensation rules that conditioned the F.3d 359 (3d Cir. 1999) (“Fraternal Order availability of benefits upon an applicant’s of Police”), and Tenafly Eruv Ass’n, Inc. willingness to work under conditions v. Borough of Tenafly, 309 F.3d 144 (3d forbidden by his religion.” Id. at 883. Cir. 2002) (“Tenafly”). Based on these Finally, the Court observed that even if it decisions, we agree with the District Court “were inclined to breathe into Sherbert that Blackhawk’s free exercise rights were some life beyond the unemployment field, violated. [the Court] would not apply it to require
exemptions from a generally applicable In Smith, the Supreme Court criminal law.” Id. at 884. The Court opened a new chapter in the interpretation wrote: of the Free Exercise Clause. The Court began by reaffirming the principle that the The Sherbert test, it must be Clause prohibits “all ‘governmental recalled, was developed in a regulation of religious beliefs as such.’” context that lent itself to 494 U.S. at 877 (quoting Sherbert v. individualized governmental Verner, 374 U.S. 398, 402 (1963)) assessment of the reasons (emphasis in Sherbert). The Court held, for the relevant conduct. . . .
[O]ur decisions in instructive. The principal ordinances the unemployment challenged in Likumi were claimed to cases stand for the advance two interests – preventing cruelty p r o p o s i ti o n t h a t to animals and protecting public health -- where the State has but the Court concluded that the in place a system of ordinances failed the general applicability i n d i v i d u a l s t a n d a r d b e c a u s e t h e y w e r e exemptions, it may “underinclusive for [their asserted] ends” not refuse to extend and “[t]he underinclusion [was] that system to cases substantial, not inconsequential.” Id. at o f ‘ r e l i g i o u s 543. The Court explained that the hardship’ without ordinances were “underinclusive” because compelling reason. they “fail[ed] to prohibit nonreligious
conduct that endanger[ed] these interests Id. at 884 (citation omitted). in a similar or greater degree than Santeria In Lukumi, the Court applied Smith sacrifice does.” Id. The Court added: to a web of city ordinances that interfered The ordinances “ha[ve] with the practice of Santeria, a religion every appearance of a that employs the sacrifice of animals in its prohibition that society is rituals. The ordinances prohibited the prepared to impose upon killing of animals in Santeria rituals but [Santeria worshippers] but excluded almost all other animal killings, not upon itself.” . . . This including killings that occurred in precise evil is what the connection with hunting, fishing, meat requirement of general production, pest extermination, euthanasia, applicability is designed to and the use of rabbits to train greyhounds. prevent. Id. at 536-37. The Court held that these “gerrymandered” ordinances were neither Id. at 545-46 (quoting Florida Star v. “neutral” nor “generally applicable,” id. at B.J.F., 491 U.S. 524, 542 (1989) (Scalia, J. 533-46, and that they could not withstand concurring in part and concurring in strict scrutiny. Id. at 546-47. judgment) .
The Lukumi Court’s discussion of Applying these precedents, we held the requirement of general applicability is in Fraternal Order of Police that the Free particularly important for present Exercise Clause was violated by a city’s purposes. While the Court did not attempt practice of prohibiting police officers from to “define with precision the standard used wearing beards for religious reasons but to evaluate whether a prohibition is of allowing officers to wear beards for general application,” id. at 543, the Court’s medical reasons. See 170 F.3d at 364-67. discussion of the requireme nt is In reaching this conclusion, we drew on both the C o ur t ’ s dis cus sion of Id. at 366. We therefore applied strict “individualized exemptions” and the scrutiny and held that the no-beards policy general applicability requirement. Id. at could not satisfy that standard. Id. at 366- 364-66. We explained that a system that 67. permits individualized, discretionary
In Tenafly, we considered a local exemptions provides an opportunity for the ordinance that was neutral and generally decision maker to decide that “secular applicable on its face but that had been motivations are more important than enforced in a discriminatory manner. See religious motivations” and thus to give 309 F.3d at 167-72. The ordinance banned disparate treatment to cases that are the placement of any “‘sign or otherwise comparable. 170 F.3d at 365. advertisement, or other matter upon any “If anything,” we stated, “this concern is pole, tree, curbstone, sidewalk or only further implicated when the elsewhere, in any public street or public government does not merely create a place, excepting such as may be authorized mechanism for individualized exemptions, by this or any other ordinance of the but instead, actually creates a categorical Borough.’” 309 F.3d at 151 (citation exemption for individuals with a secular omitted). The local government, however, objection but not for individuals with a had permitted the placement on utility religious objection.” Id. Concluding that poles of many types of signs and symbols, the policy in question was suspect for including house number signs, signs precisely this reason, we wrote: pointing the way to area churches, lost [T]he medical exemption animal signs, holiday symbols, and orange raises concern because it ribbons signifying opposition to school i n d i c a t e s t h a t t h e regionalization. Id. at 151. By contrast, Department has made a the local government refused to permit value judgment that secular Orthodox Jews to place lechis on utility (i.e., medical) motivations poles in order to construct an eruv , a for wearing a beard are ceremonial demarcation of an area within i m p o r t a n t e n o u g h t o which Orthodox Jews may push or carry overcome its general interest objects on the Sabbath. Id. at 152 . We in uniform ity but that thus held that “the Borough’s selective, religious motivations are discre tionary applic atio n of [the not. . . . [W]hen the ordinance] violates the neutrality principle government makes a value of Lukumi and Fraternal Order of Police judgment in favor of secular because it ‘devalues’ Orthodox Jewish m o t i v a t i o n s , b u t n o t reasons for posting items on utility poles religious motivations, the by ‘judging them to be of lesser import government’s actions must than nonreligious reasons,” and thus survive heightened scrutiny. ‘single[s] out’ the plaintiffs’ religiously
motivated conduct for discriminatory U.S. at 546. Similarly, a law must satisfy treatment.” Id. at 168 (quoting Lukumi, strict scrutiny if it permits individualized, 508 U.S. at 537, and Fraternal Order of discretionary exemptions because such a Police, 170 F.3d at 364-65 (footnote regime creates the opportunity for a omitted)). facially neutral and generally applicable
standard to be applied in practice in a way The teaching of Smith, Lukumi, that discriminates against religiously Fraternal Order of Police, and Tenafly may motivated conduct. Lukumi, 508 U.S. at be summarized as follows. The Free 537; Smith, 494 U.S. at 884, Fraternal Exercise Clause forbids any regulation of Order, 170 F.3d at 364-65. beliefs as such. See Lukumi, 508 U.S. at 533; Smith, 494 U.S. at 877. On the other B. hand, with the exceptions noted above, a
The fee requirement at issue here “neutral” and “generally applicable” law fails the general applicability requirement that burdens conduct regardless of whether for two reasons. First, the Game Code it is motivated by religious or secular creates a regime of individualized, concerns is not subject to strict scrutiny. discretionary exemptions that is not See Lukumi, 508 U.S. at 546; Smith, 494 materially distinguishable from those that U.S. at 878. A law is “neutral” if it does trigge r ed s t r ic t s c ru t i n y in th e not target religiously motivated conduct unemployment compensation cases. either on its face or as applied in practice. Under the laws involved in those cases, See Lukumi, 508 U.S. at 533-40; Tenafly, benefits were generally denied if a person 309 F.3d at 167. A law fails the general had quit or refused work, but applicability requirement if it burdens a individualized exemptions were available category of religiously motivated conduct for persons who had quit or refused work but exempts or does not reach a substantial for “good cause.” See Smith, 494 U.S. at category of conduct that is not religiously 884. Under 34 Pa. Cons. Stat. Ann. § motivated and that undermines the 2901(d), a person may obtain a waiver purposes of the law to at least the same from the fee requirement if the person degree as the covered conduct that is shows “hardship” or “extraordinary religiously motivated. Lukumi, 508 U.S. circumstances” and the w aiver is at 543-46; Fraternal Order of Police, 170 consistent with “sound game or wildlife F.3d at 364-66. If a law burdening management activities or the intent of [the religiously motivated conduct is not Game and W ildlife Code].” Blackhawk neutral and generally applicable it must does not claim that he is entitled to an satisfy strict scrutiny. See Lukumi, 508 e x e m p t i o n f r o m t h e “ h a rd s h i p ” U.S. at 546; Smith 494 U.S. at 878. requ ireme nt, and the regulation’s Accordingly, it must serve a compelling remaining requirements – consistency with government interest and must be narrowly sound game or wildlife management tailored to serve that interest. Lukumi, 508 activities or the intent of Code – are sufficiently open-ended to bring the regulation within the individualized exemption rule.
The Commonwealth contends, natural state within the however, that the regulation categorically Commonwealth. The only rules out waivers for persons, like exception would be where Blackhawk, who wish to keep animals for such activity is done with religious reasons. This is so, the the intent of reintroducing Comm onw ealth maintains, because those animals - or their keeping animals for religious reasons is offspring - into the wild; the not consistent with state wildlife policy. In animals are members of an s u p p o r t o f t h is a r g u m e n t , t h e endangered species; or the Commonwealth relies on the following keeping of the animals in passage from the declaration of a Game captivity provides some Commission official: other tangible benefit for the
welfare and survival of T h e L eg islatu re h a s Pennsylvania’s existing d e l e g a t e d t h e G a m e wildlife population. C o m m i s s i o n t h e responsibility to “protect, App. 121-22 (emphasis added). propagate, manage and
This passage is insufficient to show preserve the game or that 34 Pa. Cons. Stat. Ann. § 2901(d) w i l d l i f e o f t h i s does not create a regime of discretionary, Commonwealth.” 34 Pa. individualized exemptions under which C.S. § 321. The Game Blackhawk might qualify if his conduct C o m m i s s io n n o r m a l l y were not religiously motivated. The considers the keeping of live italicized phrases show that the Game animals in captivity as being C o m m i s s i o n ’ s p o l i c y d o e s n o t inconsistent with sound categorically disfavor the keeping of wild g a m e a n d w i l d l i f e animals in captivity. Although the management, or the overall declaration suggests that the keeping of purpose of the Game Code. wild animals is inconsistent with state This is because in general wildlife policy unless doing so provides a keeping animals in captivity “tangible benefit” for the state’s wild does not provide any animals, this is hardly a self-defining positive benefit to the concept, and the Commonwealth has not welfare of populations of explained what the concept means. wildlife which live in their Moreover, under 34 Pa. Cons. Stat. Ann. § interests served by the fee provision to at 2901(d), a person seeking a waiver need least the same degree as would an not show that the waiver would be exemption for a person like Blackhawk. “consistent with sound game or wildlife
The Commonwealth suggests that management activities.” Instead, a person the fee requirement serves two main seeking a waiver may show that it would interests: it brings in money and it tends to be “consistent with . . . the intent of [the discourage the keeping of wild animals in Game and Wildlife Code],” id., and the captivity, wh ich, as n oted, the Code clearly does not embody a firm or Commonw ealth generally views as uniform policy against keeping wild undesirable. As the Commonwealth’s animals in captivity. For one thing, it brief puts it, “‘in general keeping animals allows anyone to keep wild animals if they in captivity does not provide any positive pay a $50 or $100 fee. See 34 Pa. Cons. benefit to the welfare of populations of Stat. Ann. § 2904. These modest fees, wildlife which live in their natural state which are comparable to many municipal within Pennsylvania.” Appellants’ Br. at dog license fees, can hardly be viewed as 12. expressing a hard policy against the keeping of wild animals. Furthermore, the The exemptions for “nationally Code provides categorical exemptions recognized circuses” and zoos work from the fee requirement for entities such against these interests to at least the same as zoos and “nationally recognized degree as the type of exemption that circuses.” See 34 Pa. Cons. Stat. Ann. § Blackhawk seeks. The state’s interest in 2965(a)(1)-(3). These exemptions serve raising money is undermined by any the Commonw ealth’s interests in exemption, and the Commonwealth has promoting commerce, recreation, and not argued, much less shown, that education, and consequently, a waiver that religiously based exemptions, if granted, furthered these or analogous interests would exceed the exemptions for might be viewed as consistent with the qualifying zoos and circuses and Code’s intent. In sum, then, the waiver individual waivers under 34 Pa. Cons. Stat. mechanism set out in 34 Pa. Cons. Stat. Ann. § 2901(d) for persons with secular Ann. § 2901(d) creates a regime of motivations. individualized, discretionary exemptions
The exemptions for nationally that triggers strict scrutiny. recognized circuses and zoos also work The categorical exemptions in 34 against the Commonwealth’s asserted goal Pa. Cons. Stat. Ann. § 2965(a) for zoos of discouraging the keeping of wild and “nationally recognized circuses” animals in captivity except where doing so likewise trigger strict scrutiny because at provides a “tangible” benefit for least some of the exemptions available P e n n s y lv a n i a ’ s w i l d l if e . T h e under this provision undermine the Commonwealth has not explained how circuses, whether nationally recognized or Fraternal Order of Police. There, police not, provide tangible benefits for animals officers were prohibited from wearing living in the wild in Pennsylvania. beards so that they would all present the Similarly, except in special circumstances same general image to the public. Since (for example, if a zoo is conducting officers working undercover are not research on animals that are indigenous to perceived by the public as police officers, Pennsylvania or is raising animals to be allowing undercover officers to wear released into the wild in Pennsylvania), it beards did not undermine the purpose of is difficult to see how the activities of a the no-beard policy. See Fraternal Order, zoo provide a tangible benefit for 170 F.3d at 366. As explained above, Pennsylvania’s wild animals. Yet under however, the exemptions for circuses and the statute noted above, all zoos are zoos work against both of the interests that exempted. Accordingly, the challenged the permit fee is said to serve. f e e p r o v i s io n s a r e s u bs tantiall y
C.
“underinclusive” with respect to its asserted goals, and they thus fail the In arguing that the fee provision requirement of general applicability. should not be subjected to strict scrutiny,
the Commonwealth takes the position that The Commonwealth contends that the fee does not violate Blackhawk’s free the exemptions for circuses and zoos are exercise rights because it does not prohibit “analogous to the prescription exception in him from engaging in religiously Smith and the undercover uniform motivated conduct but merely obligates exception” in Fraternal Order of Police, him to pay a modest annual fee. The but this argument is flawed. Appellants’ Commonwealth suggests that many laws Br. at 24 (footnote omitted). In Smith, the imposing user fees and other similar fees state law prohibited the knowing or would be thrown into disarray if every intentional possession of a controlled person claiming a religious objection to a substance unless the substance was fee could obtain a waiver. The prescribed by a doctor. See 494 U.S. at Commonwealth further argues that, if it 874. The purpose of drug laws is to granted waivers for persons who keep wild protect public health and welfare. See id. animals for religious reasons, it would be at 904 (O’Connor, J., concurring in the required under the Establishment Clause to judgment). However, when a doctor grant comparable waivers for persons who prescribes a drug, the doctor presumably wish to keep such animals for secular does so to serve the patient’s health and in reasons. the belief that the overall public welfare will be served. Therefore, the prescription These arguments ignore the content exception in Smith did not undermine the of the statutes that are before us. We are purpose of the state’s drug laws. The same not presented here with a neutral and is true of the undercover exception in generally applicable user fee that is uniformly imposed without allowing are similar to provisions of the Internal individualized exemptions. Under Smith, Revenue Clause involved in Adams v. such a scheme (barring the applicability of C.I.R., 170 F.3d 173 (3d Cir. 1999). In one of the exceptions noted above) would Adams, a taxpayer did not pay taxes not trigger strict scrutiny, and a person because she had a religious objection to seeking to be excused from paying the fee the use of tax revenue for miliary on religious grounds would be unlikely to purposes, and the IRS assessed prevail. Here, by contrast, we are deficiencies and penalties against her. Id. confronted with a scheme that features at 174-75. The taxpayer argued that both individualized and categorical secular requiring her to pay taxes substantially exemptions, and it is these that trigger burdened her free exercise of religion and strict scrutiny. Moreover, because the violated a provision of the Religious state statute permits individualized Freedom Restoration Act (“RFRA”), 42 exemptions for entirely secular reasons, we U.S.C. § 2000bb-1, which remained see no plausible ground on which it could applicable to the federal government be argued that the Establishment Clause despite City of Boerne v. Flores, 521 U.S. precludes equal treatment for persons who 507 (1997). See 170 F.3d at 175. Under wish to keep animals for religious reasons. RFRA, a law that substantially burdens the
exercise of religion must represent the T h e C o m m o n w e a l t h a l s o least restrictive means of furthering a misapprehends the nature of Blackhawk’s compelling government interest. 42 claim. Blackhawk did not ask for a waiver U.S.C. § 2000bb-1. Looking to pre-Smith simply because he possessed the bears for cases involving free exercise challenges to religious reasons. Rather, he asked for a the collection of taxes, Adams held that waiver “because of his Native American the RFRA standard was met. 175 F.3d at beliefs and because the fee would cause 175-80. The Adams panel then rejected [him] hardship.” 225 F. Supp. 2d at 470 the taxpayer’s argument that she had met (emphasis added). In addition, the the statutory requirements needed to avoid Commission did not deny the waiver on penalties and additions to tax. See id. at the ground that Blackhawk did not 180-81. Under the Internal Revenue Code, establish financial hardship. Instead, the these penalties and additions could be Commission concluded that “Blackhawk avoided if the taxpaye r s ho w ed would not be entitled to an exemption “reaso nable c a u s e ” o r “ u n u s u a l regardless of his financial circumstances .” circumstances and unfairness.” See 26 Id. (emphasis added). Thus, although the U.S.C. § 6651(a) (no penalty for failure to Commonwealth argues at some length that file if taxpayer demonstrates “reasonable Blackhawk could scrape together the cause”); 26 U.S.C. § 6654(e)(3) (no money to pay the fee, that question is not addition for underpayment of estimated tax before us. Finally, the Commonwealth where failure is due to “unusual argues that the fee provisions at issue here circumstances” and addition would be “against equity and good conscience”). to at least the same degree as would an Invoking a “well established line of cases exemption for those in the class of the involving challenges to the collection of person mounting the challenge. The taxes on religious grounds,” 170 F.3d at Adams footnote did not go on to address 181, the panel held in the body of its this latter argument, but in any event the opinion that the taxpayer was ineligible for argument was doomed by the panel’s relief under the provisions on which she discussion of the RFRA issue. The panel’s relied. Id. Then, in a footnote, Adams discussion of that issue made it clear that quickly rejected the taxpayer’s contention the relevant Code provisions met strict that these provisions created a mechanism scrutiny because they served a compelling for individual exemptions similar to that in interest (“the ‘uniform, mandatory the unemployment compensation cases and participation in the Federal income tax that “the failure to extend those system,’” 170 F.3d at 178 (citation exemptions to a case of religious hardship omitted), and were narrowly tailored to constitute[d] discrimination on the basis of serve that interest in the sense relevant in religious belief.” Id. at 181 n.10. Adams this context. See id. at 179-80. held that the provisions of the Internal
Properly understood, therefore, the Revenue Code on which the taxpayer Adams footnote does not support the relied did not create a scheme of individual Commonwealth’s position here. In this exemptions under which she might have case, as previously explained, 34 Pa. Cons. qualified if she had refused to file for Sat. Ann. § 2901(d) does not categorically secular, as opposed to religious, reasons. exclude persons wishing to keep animals Id. On the contrary, as previously noted, for religious reasons. In addition, 34 Pa. Adams held that these provisions are Cons. Stat. Ann. § 2965(a)(1)-(3) contains categorically inapplicable to the taxpayer secular exemptions that preclude the fee for facially neutral reasons. Id. scheme from satisfying the requirement of The Adams footnote stands for the general applicability. As a result, the fee proposition that the free exercise rule provisions must satisfy strict scrutiny. regarding individual exemptions does not
III.
apply if the class of persons who may seek such an exemption is defined in facially In order to survive strict scrutiny, neutral terms and the person challenging the fee scheme “must advance interests of the scheme does not fall within that class. the highest order and must be narrowly In that situation, the person challenging the tailored in pursuit of those interests.” scheme must argue instead that the scheme Lukumi, 508 U.S. at 546 (internal fails the requiremen t of gen eral quotation marks omitted). In this case, the applicability because exempting the class Game Commission asserts that the fee of persons who fall within the statutory scheme serves two compelling interests: exemption undermines the statute’s goals (1) “promot[ing] the welfare and prosperity of wildlife populations” and (2) the possession of wild animals as a matter “maintaining the fiscal integrity of its “of the highest order.” permit fee system.” Appellants’ Br. at 28.
Much the same is true with respect It is doubtful that these interests to the Commonwealth’s asserted interest in qualify as compelling. In Lukumi, 508 the financial integrity of the fee system. U.S. at 546-47, the Court held that Because the Commonwealth makes “[w]here government restricts only waivers available for persons seeking to conduct protected by the First Amendment keep animals for secular reasons, the and fails to enact feasible measures to Commonwealth plainly does not regard restrict other conduct prod ucin g waivers as a great threat. substantial harm or alleged harm of the
Furthermore , ev en if the same sort, the interest given in justification Commonwealth’s asserted interests are of the restriction is not compelling.” Here, compelling, the fee scheme is not narrowly the fee scheme has precisely this flaw. tailored to further them. If the Denying fee exemptions to otherwise Commonwealth wishes to reduce the qualified persons who wish to keep number of wild animals held in captivity animals for religious reasons may produce or to reduce the number held by persons a small decrease in the total number of who cannot afford a $100 or $50 annual wild animals held in captivity, but if the fee (and these are the only effects that Commonwealth regarded it as a matter “of denying the exemptions at issue can have), the highest order” to reduce the number of the scheme is substantially underinclusive wild animals in captivity, it could do much for the reasons already set out. As a result, more. For one thing, it could increase the the scheme cannot satisfy strict scrutiny. fees for menagerie and exotic wildlife possession permits, now set at $100 and We therefore affirm the injunction issued $50 per year respectively, to levels that by the District Court. would provide a substantial disincentive
IV.
for those who are not poor. Similarly, if the Commonwealth believes that persons We proceed to address the question who cannot afford a $100 or $50 annual of the individual defendants’ liability for permit fee should not keep wild animals money damages. The District Court because such persons are likely to find it granted summary judgment to Merluzzi difficult to provide adequate care for the and Hambley on the ground that they “did animals, the Commonwealth could do not participate in the decision to deny away with all “hardship” waivers. Black Hawk an exemption” and did not Because the Commonwealth sets its fees at “‘direct[] others to violate’” his rights. modest levels and provides for “hardship” Black Hawk, 225 F. Supp. 2d at 479 waivers, the Commonwealth clearly does (brackets in original). The Court excluded not regard the objective of discouraging Ross, Littwin, and Overcash from this analysis, because Ross “had ‘actual exemptions, a reasonable officer in the knowledge’ and acquiesced in the decision position of the defendants could have to deny Black Hawk an exemption,” and concluded otherwise. Section 2901(d) is because Littwin and Overcash conceded more structured than the unemployment that they “were personally involved in the compensation statutes, which permitted decision to deny Black Hawk an exemptions for “good cause,” see Smith, exemption.” Id. (citing Andrews v. City of 494 U.S. at 884, and a reasonable officer Philadelphia, 895 F.2d 1469, 1478 (3d Cir. could have viewed § 2901(d) as analogous 1990) (holding that supervisor liability can for present purposes to the Internal be established “‘through allegations of Revenue Code provisions that Adams held personal direction or of actual knowledge did not provide for individual exemptions. and acquiescence’”) (quoting Rode v. See 170 F.3d at 181 n.10. Dellarciprete, 845 F.2d 1195, 1207 (3d
The meaning of the general Cir. 1988))). Nevertheless, the Court applicability principle was also not clearly determined that all three remaining developed in the governing cases at the individual defendants were entitled to time in question. Smith did not explain qualified immunity. how to identify laws that fail the test, and We hold that all of the defendants Lukumi, while providing useful guidance, were entitled to qualified immunity, and explicitly disclaimed any intention of we therefore affirm the order of the “defin[ing] with precision . . . whether a District Court on this basis. A government prohibition is of general application.” 508 officer defendant sued for a constitutional U.S. at 543. Moreover, our decisions on violation is entitled to qualified immunity March 3 and 4, 1999, in Fraternal Order of if a reasonable officer could have believed Police and Adams could have reasonably that the challenged conduct was lawful been interpreted as sending conflicting under the circumstances. Anderson v. signals. As just discussed, the provisions Creighton, 483 U.S. 635, 641 (1987). of the Internal Revenue Code at issue in Qualified immunity “provides ample Adams could have been reasonably protection to all but the plainly regarded as similar to the provisions of the incompetent or those who knowingly Pennsylvania Game and Wildlife Code violate the law.” Malley v. Briggs, 475 involved here, but we held that the Internal U.S. 335, 341 (1986). See also Saucier v. Revenue Code provisions did not create a Katz, 533 U.S. 194, 202 (2001). regime of individual exemptions. The
previous day, in Fraternal Order of Police, In this case, the governing we had explained that the individual precedents were complex and developing. exemption rule is simply one application Although we now hold that the waiver of the broader general-applicability procedure in 34 Pa. Cons. Stat. Ann. § requirement. See 170 F.3d at 365-66. 2901(d) is sufficiently open-ended to Thus, reading Adams in light of Fraternal constitute a system of individual Order of Police, a reasonable officer could have been led to read Adams as holding that the Internal Revenue Code provision also satisfied the general applicability requirement. Not surprisingly, Adams is a centerpiece of the Commonwealth’s argument in this appeal in support of the constitutionality of the de nial of Blackhawk’s waiver request. Although we find Adams to be distinguishable for the reasons explained above, a reasonable officer in the position of the defendants, after reviewing Adams and the other leading cases that had been decided at the time, could have concluded that the denial was constitutional.
IV.
After considering all of the arguments raised in the appeal and cross- appeal, we affirm the judgment of the District Court in all respects.
