Egolf v. Witmer

juris- mеrely of a matter that we have no covering contem- merits impact statement Jersey diction to consider. Because New ar- plated projects. the NRC should have conducted

gues that with conjunction its issuance of

an EIS in

NUREG-1757, held that we and we have challenge jurisdiction that

have no over time, independent jurisdic- we have no challenge to the failure to

tion review its EIS.2 EGOLF; Clayton

Tristan P. Adam Wil- A, lard; Kohler; David Jc Jonathan IV. Keely; Obryant; Benjamin D. Paula Gary Appellants Egolf; Egolf, Lee reasons, will For the we above-stated Jersey’s petitions dismiss New for review jurisdiction. for lack of WITMER; Ely; Christopher James Deb Kolb; Kling; Kling, D.J. Gerald JORDAN, Judge, concurring. Circuit Capacities as their Individual Police Lampeter for Town- Officers East II, join I, majority I Parts and IV of ship; Gerow; Hertzog; Linda Blaine agree whole-heartedly I opinion. also Wayne Kline; Doe 1 to 5 John/Jane in Part lack the conclusion III we Capacities in their Individual who argu- jurisdiction Jersey’s consider New Actors; are State Unknown John/ Regulatory Nuclear Com- ment 6 to 10 in Individual Jane Doe (“NRC”) required mission under the Capacities who are Unknown Federal Policy National Environmental Act Actors; Employеes, Agents or Chris- (“NEPA”) to Im- issue an Environmental topher Jones, in their Individual Ca- pact Statement with NUREG-1757. If pacities as Police for East Officers expression Part III were confined to an Lampeter Adams, Township; Marian conclusion, explanation I would capacities in their individual separately. have occasion to write Un- no Troopers; and; State however, majority fortunately, goes Lampeter Township. East III Part to address merits of New Jersey’s argument. It NEPA reviews a No. 06-2193. opines regulation exclusion an NRC Appeals, States United “[bjecause not a NUREG-1757 is Third Circuit. binding guide document but a without le- gal obligations, it covered ex- [that] Argued April 2007. Regardless clusion.” of whether that is a May Filed interpretation application sound of the compelled concur, regulation, feel join III, per-

rather than Part am since I opine ought

suaded on the rule, jurisdiction pre- We Jersey’s also New of a which lack over issuance license or petition for denial review NRC’s jurisdiction requisite for under the Hobbs Act. hearing Jersey's request New to rescind 2342(4); § 28 U.S.C. See U.S.C. NUREG-1757, portions of NU- 2239(a)(1)(A),(b)(1). proceeding REG was not entered in for the SMITH, NYGAARD, and

Before HANSEN,* Judges. Circuit THE OF COURT OPINION NYGAARD, Judge. Circuit Benja Appellants, Egolf, Tristan Kohler, Keely, David min Jonathan O’Bryant, Adam Willard claimed and municipal actors violated several state and rights Fourth Amendment First and their during by arresting them demonstration Iraq.1 The District against war in granted summary judgment for the Court appellants’ police on all claims and denied summary judgment on partial motion for First Fourth Amendment claims. and holding affirm the District Court’s We will for regarding Trooper’s motion sum mary judgment qualified on their immuni ty claim.2 I. plenary have review We Yoder, Gibbel, (Argued), Dwight Esq. J. summary grant judg District Court’s Lancaster, Hess, PA, Kraybill Ap- & for Fischer, v. 454 F.3d ment. 181 South Inc.

pellants. (3d Cir.2006).3 228, 231, n. 4 For the review, Knorr, accept the (Argued), purpose III of our we will John G. Office Court, by as the District Attorney Pennsylvania, De- facts determined General of Justice, PA, construing light them a most favorable partment Harrisburg, for party claiming to the that is a constitution- Appellees. * Hansen, Township ship police par- R. Senior Circuit officers and the as Honorable David ties, Appeals, pursuant parties’ stipulation. Judge Eighth Court of Circuit sitting designation. granted summary Court also The District 2. 1.Initially, Trooper plaintiffs Linda sued regard judgment police in favor of the Kline, Gerow, Wayne Hertzog Blaine and six police that the violated the Petitioners' claims officers, Lampeter police Township five East their First and Fourth Amendment constitu- state actors and five unknown fed- unknown rights. We tional do not reach actors, police alleging eral officers instance, unnecessarily, and in this issues person- acted at the direction White House quali- are entitled to hold plaintiffs complaint nel. The amended Otero, immunity. 502 F.3d fied See U.S. officers, twice, Township three add- dismissed Cir.2007). (3d 334 n. 1 Trooper Township ed as Adams and the de- fendants, jurisdiction respecting withdrew all claims The District Court exercised pursuant When over this matter U.S.C. unknown state and federal actors. Mr. 7, 2005, jurisdiction Egolf May §§ We have over died the District Court 1331 and 1343. parents plaintiffs. pursuant to 28 Egolf's as the District Court's final order substituted eventually dismissed Town- U.S.C. District violation, protesters. in this case protester al Another associate of the group, Davis, (3d Rhineer, 427 F.3d Dan Gilles filmed the event. .2005). Cir pyramid Those that formed the re-

In passive the summer of President Bush mained and silent. Rhineer’s vid- to make an eo appearance recording was scheduled evinces sounds of cheering Pennsylvania, Lampeter, part East laughter some surrounding his reelection campaign. Between three crowd. people Other surrounding gath- objected and four hundred adults and children protest crowd can along expected ered the motorcade’s route. be heard demanding group put police, Lampeter Township East with their clothes back on. Rhineer defended Troopers assistance from several from the the men exclaiming: “This happened! Police, dispatched State were Children need know about this!” to maintain order. Pennsylvania State Police and officers

A group opposed people Lampeter President from East Township were Iraq Bush and the war in at gathered standing a between the crowd and the road spot along protester, route. maintaining the One wear- order in anticipation the ing words, a t-shirt emblazoned with the Presidential motorcade. At least one “F-Texas,” a large sign carried stat- Pennsylvania Trooper was standing State War, ing, George.” nearby “Grеat Others front of protesters they the as un- Texas,” signs declaring, carried “F- pyramid. dressed and formed the “F-Bush,” “Regime Change recording Begins video of the event shows that Home,” Texas,” “Go depicting Back to and protesters while the to the closest Bush event, as the “World’s No. 1 saw they nothing Terrorist.” the did to immedi- ately respond. bystanders began Some protesters planned These to demon- loudly imploring respond. to the officers opposition strate their to the war in Iraq by recreating image a notorious from the Trooper Hertzog, monitoring Blaine prisoner abuse scandal at Abu near protesters, Ghraib.4 crowd con- became they presidential yelling among When believed the mo- people grew cerned near,5 protesters torcade was seven male louder. He testified that he waved to shirts, quickly Township removed their pants, Christopher socks Officer Jones. and Wearing thong Hertzog shoes. under- and Jones asked one another wear, they turned illegal. their buttocks toward whether the demonstration was got the road. Five men on their signaled hands After Jones other officers for as- knees, sistance, Gerow, and and the other two men climbed Troopers Linda Marian top Adams, on of them to An pyramid. Wayne form and Kline headed to the Dimitris, protesters, point, Trooper associate Kara scene. At that Hertzog pyramid, gave stood behind the protesters “thumbs stated he saw the stacked hand, up” other, sign upon pyramid and in the shape, one each other War, held up George” sign. thongs.” “Great he their “buttocks and -the saw men, widely publicized image, smiling giving sig- In the "thumbs-up” several prisoners piled naked at Abu Ghraib are on nal. another, top facing of one with their backs members, camera. Two service Staff fact, pass through In President did not Bush Sergeant Charles Graner Private First the area until 15-20 minutes later. Lynndie England, Class stand behind the them. Three months during depo- and then released Hertzog testified Trooper later, not, County District Attor- did the Lancaster and Officer Jones sition that he he ney announced that had withdrawn own, action relative enforcement take charges because he disorderly conduct had concluded protestеrs, nor Commonwealth could illegal activi- doubted way or the other one prosecute matter.7 They only successfully ty occurring. moved was arriving Trooper who when Kohler, Egolf, Keely, O’Bryant and command arrest on foot made the scene filed suit under 42 U.S.C. Adam Willard The immediate concern protesters. 1983, alleging that their violated arrests mo- by Trooper Hertzog those noted and Fourth Amendments. The First increasing tension in the was the ments summary judgment. Ap- police moved for monitoring. that he was crowd partial summary a motion pellants filed for upon judgment. Trooper came When Gerow scene, than had stood less pyramid Addressing protesters’ claimed viola- Upon arriving, she saw men two minutes. rights, the tions of their constitutional Dis- thongs the crowd tight “mooning” clad trict noted that the facts of this case Court immediately of the men pulled and she one yet not present addressed then pyramid.6 off The other officers the Pennsylvania Relying on our courts.8 Kohler, Keely, O’Bryant, Egolf, arrested Radich, the opinion in District Court held Willard, Adam Russell Willard. ambiguity of not that the whether or the Pennsylvania’s Open pull appellants violated police began the the men out

As formation, enough give Act surrounding associates Lewdness was reason police probable men to arrest the protesters responded that the the cause the police In held that doing anything illegal. protesters. not Nonethe- were Radich less, expected accurately cannot protesters complied the with the di- officers away court’s is- predict interpretation rection of the officers who took them the Therefore, impression. first police from the scene. The did arrest sue of cases, had it is reasonable to find pyramid one member of the who some such pants police probable his that the had cause. Ra- quickly put on and shirt. Goode, (3d dich v. 886 F.2d Township police pro- The then took the Cir.1989). charged police to the station and testers Alternately, Pennsylva- disorderly police predicting them with conduct. The protesters nia courts would find that the approximately held the men two hours charged protesters deposition, Trooper her ex- 8.Pоlice the with disorder At Gerow place. (18 plained, public was a were ly "It There at the time of the arrest. everywhere.... group was children There 5503(a)). Attorney Pa.C.S. The District know, you mooning, general pub- men the dropped charges after these three months reason, obviously no it was alarm- lic for Yet, obviously probable aware that arrest. ing It and offensive to those around them. cause exist need as to offense grown was to me. These are men that had circumstances, charged could be under the public tight thongs place little on in where police argued Court before District you expect people be clothed ... probable had cause arrest know, really something You its not had protesters under lewdness think about.” Amboy, City statute. See Barna Perth Cir.1994). (3d F.3d police participate 7. The did not the deci- men, charge the sion to to withdraw charges. conduct, prohibited engaged lewd il.

District found a reasonable offi- qualified assessment of immu probable cer would have decided that nity normally involves two In steps. protesters. cause existеd to arrest case, usual we must assess whether the bases, Upon these the District Court con- alleged, facts light viewed in the most .fa police cluded that the did not violate the vorable party asserting injury, rights Fourth the protest- Amendment demonstrate that the state actor’s conduct ‍‌‌​​​‌​‌​‌‌​‌‌‌​​​‌​​‌‌​‌‌‌‌​​​‌‌‌​‌‌‌‌‌‌‌‌‌‌​​‌‍ers. right. violated Where District Court also concluded that exists, constitutional violation we then police did not the First violate Amend- move to a second tier analysis to deter instance, ment. As applied mine whether the violated right court police’s found that the arrest of the “clearly Katz, established.” Saucier v. protesters under the lewdness statute was 194, 200, 121 S.Ct. a permissible expressive restriction on con- Gilles, (2001); 427 F.3d at 203. We using analysis detailed in United duct find in this an exception gener case to this O’Brien, States v. ally analytic mandated framework.9 1673,20 L.Ed.2d 672 Finally, the District Court concluded if even violated the consti- A. rights

tutional protesters ei- under Although requires Saucier Amendments, ther the First or Fourth courts engage .analysis two-tiered that police had qualified immunity from suit. first examines whether a constitutional vio granted court immunity the basis exists, approach that lation we must this frame rights the constitutional were not “clearly in work in a established” manner that is circumstances consistent with of this case. appeal This followed. purpose. its As clearly explains, Saucier of underlying principle first requiring longstanding have a practice of We analysis constitutional is to advance the avoiding questions constitutional in cases give elaboration of the law to state actors where can upon we reach decision other guidance on parameters better of con grounds. Otero, See v.U.S. 502 F.3d Saucier, stitutional violations. U.S. at (3d Cir.2007). instance, 334 n. 1 In this we 200, 121 2151; S.Ct. at Gilíes F.3d 203. agree that, with the regard District Court This principle guides our resolution of this police less of whether the violated the pro case. testers’ First Fourth Amendment

rights, rights these were “clearly not es Although District Court thor in tablished” this circumstance. On this oughly reviewed the First and Fourth basis, below, the reasons out set claims, Amendment it found that the state we will grant affirm the District of Court’s qualified questions law immunity underlying but constitutional we will not address the First impression and Fourth issues were onеs of first Amend for the ment questions case. raised this Accordingly, state courts.10 in both claims majority 9. The does not the view appropriate hold that mits courts in cases to elaborate abrogated right greater degrees long-standing Saucier the constitutional maxim added)). specificity.” (emphasis that courts will not reach constitutional issues Saucier, unnecessarily. 533 U.S. at person law that "[a] states ("[T]he [sequential] S.Ct. 2151 procedure per- degree commits misdemeanor of third if that, if to find the fact even we were District violations the of constitutional prediction analysis upon relied its we are con- rights Court’s violations constitutional rule Pennsylvania courts would clearly of how were not rights vinced such We find before them.11 if case was this established.12 exceptions to the constitu- to be such cases Saucier, analysis requirement be-

tional B. would be purpose cause the Saucier undermined. quali prong second analyze will not concluding In upon immunity analysis is focused fied Amendment issues the First or Fourth clear to a reasonable “whether would be case, of the Court оf we find decision in the unlawful officer his per- to be Appeals for the Second Circuit Saucier, 533 situation he confronted.” reasoning underlying suasive Gilles, 2151; at U.S. meaning- of law elaboration not principle immunity Qualified turns on F.3d this, situations, fully such advanced “objective legal reasonableness of rights when the definition light legal ... assessed in action as- depends on federal court’s uncertain clearly at the rules that were established law. Ehrlich v. sumptions about state Creighton, 483 v. time.” Anderson Glastonbury, 55-58 Town 348 F.3d L.Ed.2d (2d Jones, Cir.2003); also See Robinette Courts have defined term Cir.2007). (8th n. 8 We F.3d “clearly established” to mean “some but this, such as federal agree cases precise correspondence factual be to state actors who courts do disservice precedents and the conduct tween relevant rely ruling on a would be induced Watson, McLaughlin issue.” change altogether upon subsequent might Cir.2001). (3d It Ehrlich, F.3d now by review the state court. immunity qualified that our anal- position is bolstered axiomatic F.3d at 58. Our any likely exposure of one's buttocks consti- he lewd act which he knows is whelher does which, date, by who bе "nudity” to be observed others af- has been de- tutes § 5901. fronted or alarmed.” 18 Pa.C.S.A. fully fined under the statute either un- Pennsylvania Supreme has favor- The exposing genitalia. or clothed ably to the Model Pe- referenced comment prohibited [lewd] that "The nal Code states: legal nudity in case 11. The definition of this gross flouting amounts to of commu- analysis the the essence of nudity nity respect sexuality or standards qualified immuni- Fourth Amendment under added) public.” (emphasis Heinbaugh, extension, ty. By also this definition is criti- 247, citing A.2d at Model Penal Code Com- determination of cal to District Court’s Nudity sexually p.at or overt offen- ment legitimate had a interest in whether the state displays sive are therefore essential "lewd” nudity an regulating under O'Brien First York, (citing conduct. Winters New O’Brien, See U.S: v. Amendment review. U.S. 92 L.Ed. 840 L.Ed.2d 672 then, (1948).) presume purposes We (1968). analysis this of a that elements violation nudity Pennsylvania’s statute be: lewdness recognize 12. We the District Court's alternate explicit displays; sexually in circum- and/or finding probable cause was rationale for likely public; by stances observed upon ambiguity agree, we based gross its that causes offense alarm due to However, ambiguity pro- does not exists. this community departure accepted from stan- compelling Id., Williams, to rule on vide us with a rationale See Commonwealth v. dards. grounds a constitutional issue where alternate Pa.Super. 574 A.2d exist. inquiry here is for decision essence of ysis “gives ample judg room for mistaken from a perspectives number of precisely by all but protecting plainly ments it because showed naked prisoners who incompetent knowingly or those who vio pose sexually were forced to humiliat- Gilles, 427 late the law.” F.3d ing manner. The protesters admitted that they intentionally clothed themselves in a Here, even if we assume manner closely nudity simulated the protesters’ rights violated under original Therefore, photograph. by the First and Fourth ar Amendments even protesters believed that them, resting we are mindful that the cir brushing closely were to the boundaries quite cumstances were unusual. There is publically Moreover, act. indecent dispute no relating events protesters choice that the made to portray group’s undressing posing developed particular this image generates a time, quickly. At the same other members that would have been difficult assess on loudly making objec crowd were the scene: whether the an depiction of against protesters. tions The escala inherently sexually image offensive sudden, tion tension at the scene was shocking less simply people recre- surprising and All intense. evidence ate protest. aas While canwe rational- rising shows it was this disturbance of point ize from our vantage that the scene captured the crowd that the attention and created the protesters might be distin- concern of the responded. officers who guishable from original image, the ob- Furthermore, all of this occurred jective perspective on-the-scene required time that the keenly officers were aware of of us in qualified immunity review responsibilities their immediate to keep inexorably mires such contrasts. For the crowd anticipation under control in of a reasons, these conclude there is passing Presidential motorcade. Even ample evidence that this event was pre- though protection of the President was cisely type envisaged of scene in Sau- officials, within the ambit of other main cier, where officer the field must taining order within alongside the crowd “split judgments make second circum- —in (which the motorcade route the po was tense, stances that are rap- uncertain and responsibility) undeniably lice’s an im idly evolving.” Id. portant component of the security overall This situation demanded an instantane- for the day. President on that offi ous, finely judgment calibrated response did luxury cers not have the of ignoring to a disturbance that arose amid circum- anger. the brewing recognize We that a stances that undeniably unique, were sur- not, disruption sudden in a crowd does of prising, confusing and itself, charged. It was justify unreasonable arrests. It plainly does, one in the of parameters which however, compel appreciate us to the probable confusing cause were the and pressures that the judgments burdened of speech of quite boundaries free mud- the were day officers on that and the emotionаl McLaughlin, dled. F.3d 571. As a ly-charged prism through by which the result, we cannot the appeared standers to the characterize officers’ view disturbance. Saucier, 204-5, actions, 2151; purposes qualified immunity, for of U.S. Gilies, incompetent as either willful F.3d at viola- tions of law. the

Adding to the confusion is the fact that protesters intentionally reasons, the to chose simu- For these we conclude late the image abhorrent of Abu Ghraib: even if to the officers’ decision arrest the image mistaken, inherently protesters that was offensive it was a reason- however, I Troopers. separately, it write the context which able mistake in I the constraints of Sauci- because believe error in the do not find occurred. We Katz, 194, 121 S.Ct. er v. immuni- grant qualified of District Court’s (2001), compel a different 150 L.Ed.2d 272 ty police. analytical path.13 majority acknowledges “Sauci III. requires engage a two-tiered er that courts we affirm For the reasons stated above analysis that first examines whether con summary grant judg- court’s district Yet, the violation exists.” ma stitutional on the issue of in favor of ment this mandate be jority declines to follow immunity. qualified this doing it finds that so in case cause accomplish purpose. would not Saucier’s SMITH, concurring. Judge, Circuit may Supreme It will be Court majority, I that we Like the conclude pre-Saucier jurisprudence, return to its grant of determining plain should affirm the District Court’s where first whether alleged deprivation tiff has of a constitu summary judgment in favor of State Also, approach, recognize under the Saucier fully a number of circuits states.... I addressing have declined to follow Saucier and that there handicapped in the consti court is expressed, have been doubts some of party issue at least one tutional often Supreme appeals and the Court courts litigate vigor has the issue little incentive alike, regarding the wisdom of Saucier’s man ously, apparent especially when that the it is datory two-step approach resolving ques established, clearly law as in this is not See, immunity. qualified e.g., Bu tions of Xenia, case.”); Lyons City v. 417 F.3d Maine, (1st v. 469 F.3d Cir. chanan 2006) ("We (Sutton, J., (6th Cir.2005) 581-84 with whom do think the law elaboration Gibbons, J., ("I joins, concurring) cannot re here, purpose be well where the will served adding separate writing sist still another inquiry Fourth Amendment involves reason questions rigidity of [the case question highly idiosyncrat ableness which is requirement. ] Saucier While see virtue heavily dependent ic on the facts.... they gener telling lower courts that should matter, complexity Given the since ally answer the constitutional before perfectly it clear that the officers are enti clearly question, established I wonder immunity, tled to we turn the second sense mandate that whether makes Jones, prongs.”); F.3d third Robinette cases, costs, no do so in all matter the no (8th ("Saucier Cir.2007) re 592 n. ques the ease with which the matter second quires analysis prong a full of the first of a Further, answered.”). might twenty- tion immunity qualified analysis 'per because it eight recently states and Puerto Rico have appropriate mits courts in cases elaborate urged, Supreme unsuccessfully, albeit degrees right greater However, Court in an amicus brief to reconsider its specificity.’ the ‘law’s elabora approach mandatory qualified ill tion from case to case’ ... would be served Saucier im here, by ruling parties pro hаve munity. Twenty-Eight where the See Brief States very facts to define and limit vided few Support and Puerto Rico as Amici Curiae in - holding on the execu Petitioner, Harris, -, reasonableness Scott (internal warrant.”) tion of arrest citations omitted); Nugent, McClish v. 483 F.3d recently, granted Most (11th Cir.2007) (Andei'son, J., n. 1 con 1253 v. certiorari in the case of Callahan Millard specially) ("Unfortunately, curring this in (10th Cir.2007), County, 494 F.3d 891 direct- case, prevailed the defendants on the “[wjhether ing argue parties to brief and the clearly prong, the established Saucier rule not Katz, the Court's decision in Saucier v. 533 holding only requires a that constitutional 194, 2151, 272 U.S. 121 S.Ct. 150 L.Ed.2d otherwise; oper unnecessary be it also (2001) v. overruled.” Pearson Cal- should be appellate review ates to insulate from further - - -, 1702, ‍‌‌​​​‌​‌​‌‌​‌‌‌​​​‌​​‌‌​‌‌‌‌​​​‌‌‌​‌‌‌‌‌‌‌‌‌‌​​‌‍lahan, S.Ct. ruling U.S. an will erroneous constitutional that (2008). guide L.Ed.2d the conduct of officers in three only If, right ry.” only if, is considered the “better and the court tional a finds v. County right, See violation a constitutional approach.” Sacramento “the of of next, 1708, Lewis, sequential step 118 S.Ct. is ask whether U.S. (1998); right the clearly also was ... in Siegert 140 L.Ed.2d 1043 see established light of of Gilley, specific the contеxt the case.” 500 U.S. S.Ct. (1991) analyt the (clarifying L.Ed.2d Scott, added) (emphasis at S.Ct. claim quali ical structure under which a of (internal omitted). citations See also addressed). immunity fied should be For Mellen, Bunting v. however, now, regard I the rule as Saucier (2004) (Scalia, S.Ct. 158 L.Ed.2d 636 mandatory and do not believe that inferior certiorari) dissenting J. from the denial of depart are free to it. In courts from Scott (“[Sjonae (mistak- courts [have] conclude[d] — Harris, —, enly) question-first that the constitutional (2007), Court explicit the customary, rule is not mandatory.”). Per- ly stated: haps underly- circumstances where the resolving questions qualified ing

In of immu- principle of law elaboration not is nity, required courts a meaningfully are resolve advanced or where a court question: light “threshold Taken the would be required to address unsettled party asserting questions law, most favorable to the of jurisprudential state the injury, alleged avoiding unnecessary the do the facts the of policy adjudication show officers conduct violated a actually constitutional of constitutional issues is bet- the right? approach.14 This be initial inqui- must the ter But until the Supreme 2151) added). Along majority, (emphasis with the do the not hold At the opinion, view that Saucier intended to disavow the outset of the the ex Saucier Court prudential avoiding plains detennining rule of constitutional that in furtherance of Rather, violated, questions. recog- right the Saucier Court whether a constitutional was goal competing development may appropriate, nized of there be cases in it is which —the protections necessary, substantive constitutional in the indeed to elaborate on the might right respect context constitutional tort other- constitutional with to the new court, routinely go undeveloped right if wise lower courts set facts before the so that the disposed reaching may clearly cases the without be established in later See cases. Indeed, Saucier, right "clearly merits. can never be 533 U.S. at 121 S.Ct. 2151. right recog- Specifically, established” if the has never been the stated determining nized at all. The never Court "has In course of whether a absolute; as poli- right treated avoidance it is a constitutional was violated cy specific objectives, might aimеd and these premises alleged, a find nec- court it compete nearly always goals.” with other essary principles to set forth which will Wells, Michael L. holding right become the for a basis “Order-of-Battle” Litigation, Constitutional 60 SMU L.Rev. clearly process is established. This express case, While I do not for the law's elaboration from case to view as to whether the Court’s articulated upon insisting reason is one for our "long- goal against applying counsels turning to the existence or nonexistence of maxim,” standing adherence Saucier's "or- right inquiry. the first constitutional accept require der battle” one to does might deprived explana- law be this abrogated prudential Saucier rule. simply skip tion were a court ahead to vein, majority’s clearly In whether law estab- citation of Sauci er, procedure [sequential] permits "the lished that the officer’s conduct unlaw- appropriate courts cases to elaborate ful the circumstances of case. Further, right greater degrees majority possibly cannot be specificity” arguing supports reаd citation to must be within context its Saucier entirety opinion, two-step merely approach view that the Court’s i.e., jurisprudence. (Majority Op. permissive, actuality subsequent should in 9) 207, Indeed, Saucier, (quoting employed appropriate cases.” — n. 533 U.S. at "in 114 an to that offense has been or exception to the Saucier son believe

Court crafts by person to being is committed be not free to rule, it is view that we are my Jersey v. New State choice, arrested.” Orsatti salutary. that however policy make Cir.1995). (3d Police, 480, 309, 71 F.3d 482 “To Delie, n. See, 257 F.3d e.g., Doe v. valid, whether an arrest is we (“While determine (3d Cir.2001) may prag- there be of the state where the look to law favoring qualifi- [the] matic considerations place.” City v. Phil- Wright arrest took unqualified cation of the Court’s (3d Cir.2005) 595, adelphia, 409 F.3d yet suggested has not language, the Court omitted). (citations “prob- question from the departing any basis damage cause in a suit is able section ”). therefore, believe, rule.... jury.” Montgomery v. De one for the case course this is first proper analytical (3d Cir.1998). Simone, 159 F.3d Troopers whether the violated cоnsider However, may a conclude district court the Constitution. probable “that cause did exist as matter facts Because I conclude on the evidence, law the most if viewed favor- Troopers’ vio- alleged, the conduct did not Plaintiff, ably reasonably not sup- rights, my late Plaintiffs’ contrary finding,” may factual port not analytical require course would summary judgment accordingly. grant immunity. qualified reach the Mulvihill, 113 F.3d Sherwood (3d Cir.1997). I. they Troopers contend that had allege Troopers that the Plaintiffs violat- probable cause to arrest the Plaintiffs be rights by ed their Amendment ar- Fourth Pennsylvania’s cause their violated resting probable them without cause. statute, provides that open lewdness which argue that not They their conduct did person commits misdemeanor “[a] present Troopers probable cause if degree third he does lewd act which they engaging arrest because were by likely he knows is to be others observed and, protected activity First Amendment who would be affronted or alarmed.” 18 such, expressive as their nature of inquiry, Pa.C.S.A. 5901. The relevant ac- conduct should havе been taken into then, objectively whether it was reason Troopers making count Troopers able for the conclude probable cause determination at scene. probable had to arrest cause the Plaintiffs cause exists Probable to arrest when based on “the facts available the officers n facts and within the City “the circumstances at the moment of Barna v. arrest.” (3d arresting knowledge officer’s are sufficient Amboy, Perth F.3d Cir.1994) omitted).15 per- (quotation themselves to warrant reasonable subsequent jurisprudence carefully [T]he the Court's reiterat- statute must "be drawn or nature, ing mandatory authoritatively punish its well as the dis- construed to un protected speech compel susceptible opinions, those not be sents filed in con- application protected expression.” trary interpretation. John (3d Campbell, son F.3d stated, Wilson, Cir.2003) 15. As Plaintiffs that their First contend (quoting Gooding v. rights Amendment are inextrica- Fourth bly Troopers probable (1972)); linked—that the lacked Mastrange Commonwealth v. lo, (1980) cause to arrest them because their conduct 489 Pa. 414 A.2d protected ("disorderly may under the First Amendment. conduct statute Indeed, pure protect speech punish anyone exercising when issue used to right”). Speech has ed First Amendment stated record, particularly A of the taste respect review and for authority. Rhineer event, videos reveals that a crowd attempted to explain protest, stating gathered along had the side of a small before,” has happened “This and highway. ap commercial Kara Dimitris “American soldiers prisoners].” did this [to shirt, peared wearing green in the videos When Rhineer remarked that children yellow gloves carrying a hat and and a needed learn about the Abu Ghraib War, sign saying, “Great When George.” torture, one respond- concerned onlooker shouted, off,” she “Shirts the Plaintiffs re ed, they “Not naked don’t.” they moved their clothes until wear were interpreting case law what ing thong underwear. The District constitutes consistently “lewd act” has. Court observed that “the thin material of maintained the essence of a “lewd act” tight-fitting thongs unmistakably dis “sexuality is nudity public,” or without played the of their contours movement much genitals.... rear, From the elaboration. See Commonwealth v. thongs displayed Fenton, 863, entire surface of their but 750 A.2d 866 (Pa.Super.2000) tocks; angles, ap from various Plaintiffs Williams, (citing v. Commonwealth peared entirely Egolf naked.” (Pa.Su- Pa.Super. 574 A.2d 1161 (E.D.Pa. Witmer, 421 F.Supp.2d per.1990)). In the case Commonwealth 2006). An examination of the record re v. Heinbaugh, 467 Pa. 354 A.2d veals that the contours and movement of (Pa.1976), Pennsylvania Supreme genitals the Plaintiffs’ seen by could be Court concluded that 5901 “must be bystanders arranged while the Plaintiffs read restating as common established pyramid, themselves into the but not while law long standard which has existed pyramid were formation. And explained: Commonwealth.” The Court the thongs revealed the entire surface Open lewdness was indictable offense each Plaintiffs buttock. The Plaintiffs did at common law. It was defined as an speed, with but great disrobe then indecency act gross which open quickly pyramid. formed a human corrupt tends to the morals of the com- children, young including videos show tod York, munity. Winters v. New 333 U.S. dlers, in the immediate area. Several 507, 515, S.Ct. L.Ed. quickly of the agi members crowd became (1948); Sharpless, 2 Commonwealth v. tated, shouting at the Plaintiffs and at Dan (1815); R. Rhineer, Serg. & Black- IV the cameraman. Several women (W stone 64 n. present observed that their children Commentaries Lewis were 1898); Lewdness, protesters. ed. upbraided p. Others 53 C.J.S. (1948). made language unfavorable comments about their While the of the chai- protec- open prohibits does not receive First Amendment lewdness statute conduct that tion, turn, inherently political "include[s] the lewd and ob- unrelated mes- libelous, scene, profane, sage attempted convey. and the that the Plaintiffs insulting 'fighting' Chaplinsky reality important, especially or words[.]” This in a case 568, 572, Hampshire, v. New such as this which officers are re- quired on-the-spot probable 86 L.Ed. 1031 to make an cause Davis, (3d Gilles F.3d Cir. determination. Because the do not Plaintiffs 2005). interplay facially of Fourth and as First attack statute overbroad void rights respect expressive vagueness, Amendment and because I conclude that conduct, opposed speech, give constitutionally as applied does not statute Here, application. probablе rise to clear rules of ex Plaintiffs and that cause for arrest issue, existed, pressive unquestionably conduct is not further the extent need consider Yet, relationship. I discuss later. it is also clear 116 public place a who nude in a statute man swam Pennsylvania lewdness

lenged n court, minors, discussing when respects from this com- in some differs conviction, explained § 5901 definition, there is no difference mon law 1) to that: pertains “Section 5901 in is a meaning. in The statute sexuality, public nudity public or involves provi- adoption of lewdness verbatim 2) gross departure represents such Code, ALI, Penal sion of the Model to accepted community standards as from Code, Proposed Official Model Penal ” liability.’ of criminal rise to level The sec- Draft 251.1. comment 1163). Williams, at (citing 574 A.2d the drafters tion makes it clear codify pre-existing com- intended cases make Pennsylvania What or indecent then, mon law: “Lewd behavior clear, public nudity is that either or jurisdictions. pro- The punishable in all public sexuality must have occurred to es gross 5901, amounts to flout- hibited conduct § a violation of not necessari tаblish ing community respect See, in ly standards v. e.g., Po both. Commonwealth ALI, (C.P. sexuality nudity public.” lomchak, 395, in or 10 Pa.D. 397 & C.4th Code, Co.1991), 635, aff'd, Tentative Draft No. Pa.Super. ‍‌‌​​​‌​‌​‌‌​‌‌‌​​​‌​​‌‌​‌‌‌‌​​​‌‌‌​‌‌‌‌‌‌‌‌‌‌​​‌‍Model Penal 421 Bucks (1992) p. §§ 13 213.4 251.1 (finding & Comment 612 A.2d 535 defendant § violating where he sat at a guilty of 5901 A.2d Heinbaugh, 354 Since Hein in lap bar with his hand his underneath his baugh, appears report of the “[a]ll feigned or mastur coat masturbated Pennsylvania open lewdness ed cases bation, nudity is noting that “actual not public public masturbation or dis involved open of the crime of required element plays genitalia.” Commonwealth v. lewdness”); Williams, 574 A.2d 1161 Williams, Pa.Super. 574 A.2d 394 in (holding public appearance that a a t- Nevertheless, 1163 (Pa.Super.1990).16 shirt and is not a “tight-fitting briefs” lewd interpreted “lewd” acts remain as “sexuali act). nudity ty public.” or in Commonwealth v. (Pa.Su 926 A.2d 510-11 Tiffany, argue, do nor Troopers could per.2007) (citing Commonwealth v. Fen they, that the Plaintiffs’ conduct constitut- ton, then, (Pa.Super.2000)). sexuality. question, 750 A.2d 866 ed public Tiffany gave dealt with conviction of whether the Plaintiffs’ conduct While Anzulewicz, summary v. 42 16. The 'Williams Court looked to a Commonwealth Pa.D. & Pennsylvania's open (Q.S.Mont.Cnly.1967) (display case law on lewdness C.2d 484 by majority dwelling аs laid out genitalia private but front Pennsylvania: family Court of neighboring window where "in the (their) reasonable use house” could not prosecutions have been ... on a All based activities); help but observe defendant's community “gross flouting of standards in Helms, v. & Commonwealth 38 Pa.D. C.2d nudity respect sexuality public.” (Q.S. curiam, per Cnty.), 496 York 206 Heinbaugh, supra aff'd See Commonwealth v. (no (1965) Pa.Super. 213 A.2d 389 (masturbation public); Commonwealth v. nudity offense made out where defendant's Davidson, Pa.Super. 289 A.2d 250 private prosecution was in a trailer and refused, (1972) Pa.Super. allocatur xlix small, through (naked witness had observe lou stopped young lady motorist to ask Alessi, window); directions); Falcone, vered Commonwealth Commonwealth (Q.S.1947) (masturbation (mas (1964) Erie 172 in a Pa.Super. A.2d large cemetery); private but window fac public home before turbation in a Common street). Warner, (C.P. ing public wealth v. & C.2d 63 Pa.D. Williams, (defendant (quoting A.2d at Cnty.1971) Common- Centre disrobed in public, Allsup, private wealth v. 392 A.2d made uninvited visits to Pa. homes, (1978)). pizza parlor); public entered a Troopers probable cause to arrest them might argue One open light the fact court following lewdness Williams would hold that date, cases reported involv- the Plaintiffs’ actions fall within the ing nudity only of display genitalia. include Williams Court’s holding that “walking about in may act,” underwear foolish My Pennsylvania read law that it but it illegal Williams, is not an one. contemplates fairly broad definition of Williams, A.2d at In the court noted nudity. statutory definition of “nudi- that the Commonwealth established ty” in Pennsylvania other sug- statutes that appellant through walked a parking gests buttocks, exposure that of the lot in a T-shirt and underwear. Id. The here, engaged conduct Plaintiffs in falls court explained then that “[a]ppellant’s § within example, ambit. 5901’s For behavior cannot reasonably be found to fall Pennsylvania regulating statute distribu- within purview person A [§ 5901]. tion of “nudity” obscene materials defines who is wearing T-shirt and underwear is “showing as the of the human male or nude, not in appearing and walking pubic area, female genitals, or buttocks about in may underwear abe foolish act with a fully less than opaque covering, or but is not a act.” sexual Id. the showing of the female breast with less than fully opaque covering any portion The case аt bar offers clear distinctions thereof top nipple, below the of the or from in the facts Williams. As already depiction stated, genitals of covered male statutory “nudity” definition of discernibly turgid Pennsylvania state.” Pa.C.S. other encompass- statutes added). § addition, In (emphasis exposure es activity the buttocks— Pennsylvania’s statute prohibiting “inva- unmistakably Plaintiffs here engaged in. privacy” Thus, sion of partial defines or it say “[f]ull is reasonable that they as, nudity,” “[display part all or of were “appearing under nude” Penn- genitals the human area pubic sylvania Beyond that, or but- law. one need hard- ly tocks ... less fully opaque expert than a resort to an fashion note covering18 (empha- § Pa.C.S.A. 7507.1 the obvious distinction between wearing added). Therefore, Pennsylvania briefs,” Williams, sis if tight-fitting “elastic 5IA § import courts into statutory 5901 the A.2d at tight-fitting thong and under- nudity definitions of from wear unmistakably other sections of that displays the con- Code, Pennsylvania Crimes is rea- tours and gen- movement of an individual’s itals, sonable to exposure entirety conclude that of the not to mention the of that qualifies “nudity.” buttocks buttocks.17 individual’s ''lеwdness,” 17. The District Court noted state laws ute included no definition § similar to 5901 have been construed simi- and derived from the law. common Id. at larly: Quinn 493-95, N.E.2d 138. Court instance, Supreme For the Massachusetts analogous Florida, reviewed case law from recently Judicial Court held that a Nevada, man Minnesota, Vermont, Michigan, open underwear, violated Massachusetts' lewdness stat- Virginia, Virginia, West found that when, thong ute clad he low- none of those decisions "cabin[ed] of- pants exposed ered his his buttocks to exposure fensive intentional teenagers. four See Commonwealth v. genitals.” Accordingly, Quinn, 439 Mass. N.E.2d Quinn's Judicial held that Court deliberate Quinn (2003). contended he did exposure of his buttocks was a “lewd” act kept violate the statute he had his under Massachusetts law. genitals covered. Id. at 789 N.E.2d Egolf, F.Supp.2d at 865-66. 138. Like the Massachusetts stat- That interfering protest. with their A law demon- review of reasonably con- Troopers require considering strates a court the initial probable had cause to cluded to decide whether Saucier the open violations of Plaintiffs on arrest while pyramid Plaintiffs’ fоrmation ap- the Plaintiffs’ statute when lewdness constituted wearing only thong underwear tight-fitting public gathering at a peared conduct, them in- expressive permitting their buttocks. Where thongs and bared voke the First Amendment. See Texas uncertain, this the state of law Johnson, upon “impose offi- has refused If duty correctly a predict to how [ cer ] this that panel court—or —concluded unresolved and com- court will answer [an] next determi- expressive, conduct was its Goode, issue.” Radich v. 886 plex legal regu- nation be whether the State’s (3d Cir.1989). 1391, Further, F.2d 1398 suppression lation related to the free is Troopers pre- for the was reasonable i.e., expression, whether the statute is genitals exposure that actual sume id.; or content-based. See content-neutral required was in order to violate not Theatres, Inc., 5901, prohibits City Playtime Renton v. separate statute (“A § 3127 41, 48, 925, such conduct. See 18 Pa.C.S. 475 106 S.Ct. 89 L.Ed.2d U.S. “ if person exposure commits indecent that (1986) that (explaining 29 ‘content-neu- her person exposes genitals his or regulations as that speech tral’ those ‘are any place or thеre public place where justified without reference to the content circum- persons are other under present (citations omit- regulated speech’” in which he or she knows should stances ted)). ifAnd the court concluded that the offend, likely know that conduct expres- regulation not related to State’s alarm.”); affront or see also Common- sion, stringent then the less standard an- Polomchak, 10 Pa. D. & C. 4th wealth v. O’Brien, nounced United States v. 391 (“[A]ctual (C.P. Co.1991) 395, Bucks 397 1673, 367, U.S. 88 20 L.Ed.2d 672 S.Ct. nudity required is not a element Johnson, (1968), would control. 491 U.S. lewdness.”). open crime of 403, contrary at A conclu- 109 S.Ct. 2533. uncertainty application Given the regulation place sion would the State’s us, to the facts before law of the O’Brien test. outside “[p]robable cause ex- conclude and circum- facts isted] [because] deciding particular “In conduct whether prudent are sufficient to warrant a stances possesses sufficient communicative ele- man in that the had believing [Plaintiffs] bring ments to the First Amendment into committing an committed or of- [were] play,” inquiry is whether the relevant (internal Radich, F.2d at 1395 fense.” 886 “ convey particulаrized intent ‘[a]n omitted) Ohio, quotations (citing Beck v. present, message was and [whether] 89, 91, 379 U.S. 85 S.Ct. message was great likelihood (1964)). Thus, 142 the Plaintiffs have not by would be understood those who viewed established their Fourth Amendment ” Johnson, it.’ 109 491 U.S. S.Ct. i.e., violated, they rights were suf- (quoting Washington, 418 Spence deprivation under fered a 409-12, 2727, U.S. 94 S.Ct. L.Ed.2d § (1974)). In reaching the constitutional

II. claim, I am convinced that Plaintiffs convey particularized mes- intended argue Troopers that the The Plaintiffs rights by sage stripped thongs Amendment when down violated First indeed, health, pyramid; public vide for the safety, and formed and mor- Further, on Troopers dispute Theatre, Inc., this. do als.” ‍‌‌​​​‌​‌​‌‌​‌‌‌​​​‌​​‌‌​‌‌‌‌​​​‌‌‌​‌‌‌‌‌‌‌‌‌‌​​‌‍Barnes v. Glen summary judg- 560, 569, from appeal grant U.S. S.Ct. L.Ed.2d ment, it must be that “the likeli- Cases, assumed Accord License (5 How.) great message hood that the would be 504, 527-28, U.S. L.Ed. 256 who it.” (1847); understood those viewed Medtronic, Lohr, Inc. v. 518 U.S. 411-12, Spence, 418 U.S. at 94 S.Ct. 2727. 116 S.Ct. 135 L.Ed.2d 700 Therefore, I begin by recognizing that the (1996); Metro. Ins. Co. v. Massachu- Life engaged expressive conduct. Plaintiffs setts, 724, 756, Accordingly, they permitted are to invoke (1985). I L.Ed.2d 728 am satisfied that the First Amendment. expression, this interest is unrelated therefore, statute is content-

Generally, the Government has a “frеer neutral. expressive restricting hand” in writings than restricting speech. argue The Plaintiffs that the statute18 is Johnson, regulation content-based because it is not, however, may The Government forbid on based “the conduct’s communicative im- particular expres it “because has pact on others.”19 As the Troopers point Therefore, sive elements.” order however, out, argument the Plaintiffs’ is ap determine whether the O’Brien test essentially that here, I plies look to whether conduct which ‘alarms’ or ‘affronts’ oth- has an interest the conduct regulating has a impact’ by ers ‘communicative vir- by § illegal made 5901 that is unrelated to very tue of the fact that it alarms or the suppression expression. of See id. at affronts. by Offensive conduct is thus 407, 109 2533. S.Ct. ‘communicative’—because it definition § initially What is clear about is 5901 people offends for government —and codify

that it was intended to the common proscribe such conduct a ‘content- is directly law. The statute was taken from regulation’ based proscribes because it the Model Penal Code and is a descendant well, of, ‘messagе’ offensiveness. of the common law of “open offense of 27. Defendant-Appellees Brief The Prac., notorious lewdness.” 14 West’s Pa. argument Plaintiffs’ It (5th ed.) misplaced. is a Crim. Offenses & Defenses 0240 *64). principle well-settled of our nation’s First Blackstone, (quoting 4 Commentaries Amendment jurisprudence that ideas and Heinbaugh, See also A.2d at 247. The 354 speech may proscribed merely not be be- purpose to prohibit statute was con- impact may cause emotive have corrupt duct that tended to morals See, e.g., community. Spence, listeners. U.S. at Heinbaugh, 354 A.2d at 2727; York, S.Ct. v. Barry, New Boos 485 U.S. (citing Winters v. 333 U.S. 507, 515, (1948)). 312, 333; 99 L.Ed.2d 68 S.Ct. L.Ed. 840 S.Ct. Paul, Supreme Court made St. 505 U.S. has clear R.A.V. S.Ct. Yet, police power traditional L.Ed.2d 305 know “[t]he authority pro- States is defined as case in Supreme no which has Again, person 18. the statute com- "[a] reads: 19. To extent the Plaintiffs intend this degree mits a misdemeanor the third if he argument challenge to be a facial stat- likely act does lewd which he knows is ute, I do not it as such because I have address by observed others who be affronted statute concluded is content-neutral. oralarmed.” Pa.C.S.A. was сontent-based be- to conduct be- the ordinance proscription extended impact.” proscribed “emotive it con- specified cause it elicits an cause the distinction attempt Plaintiffs’ elide anger, alarm or “arouse[] duct had to conduct, between speech and between resentment,” further re- but action, must fail.20 ideas and impermissible of those stricted the bases color, “race, creed, religion Paul, sentiments sev example, For in R.A.V. v. St. 385-88, Id. at prosecuted plac gender.” for or S.Ct. young men were eral burning neighbor’s in a Paul ing regula- cross black R.A.V. v. makes clear St. Paul, Minnesota, yard, in violation of a St. conduct are content- expressive tions prohibited placing “on ordinance which regulation justified based when the symbol, ob public private property or or by an interest related to idea ideas or ject, graffi characterization appellation, conduct, communicated and not be- to, ti, burning including, but not limited the conduct reaction. cause elicits swastika, Nazi one knows cross or which Next, urge the Plaintiffs this court to grounds to knоw arouses or has reasonable regu- refer to the Court’s test anger, alarm or in others on resentment obscenity depictions lation of as articu- race, color, creed, religion the basis of California, lated in Miller v. gender.” (1973).21 2607, 37 L.Ed.2d 419 (1992) (citing St. However, overlook the Miller Plaintiffs Ordinance, Paul Crime St. Bias-Motivated de- express Court’s distinction between (1990)). Paul, Minn., § 292.02 Legis.Code of pictions descriptions lewdness from that, The Court observed “[c]on- conduct, public stating “[a]l- lewd regulations presumptively tent-based are though presented are not here with the we invalid,” because First Amendment “[t]he regulating lewd problem public of conduct generally government pro from prevents itself, greater power the States have to con scribing speech, expressive or even nonverbal, regulate physical conduct than duct, disapproval of the ideas because of suppress depictions descriptions or of R.A.V., 382, expressed.” at 112 U.S. Miller, the same 413 U.S. at 26 omitted). behavior.” (internal S.Ct. 2538 citations 8, explicitly n. 2607. The Court S.Ct. The further elaborated “that non appropri- noted the test O’Briеn expressive activity verbal can be banned entails, dealing the regulation ate when of the it because of action but 385, 112 embodying speech “both and non- of the Id. at S.Ct. because ideas.” speech 2538. The R.A.V. Court made clear elements.” guidelines Importantly, The for trier the record makes clear that basic the of fact (a) political expression average person, tire Plaintiffs’ was not re must "the be: whether message applying contemporary community of the stricted becattse of content stan- Johnson, work, they conveyed. See Texas v. dards” would find that taken as a whole, interest; (b) S.Ct. appeals prurient U.S. L.Ed.2d describes, The record shows that the crowd depicts whether the work or protesters, many included other none of patently way, spe- offensive sexual conduct Further, law; Troopers whom were cifically applicable arrested. defined state work, whole, participated (c) did not arrest one individual who and whether the taken as a pyramid "quickly Egolf artistic, in the who literary, political, dressed.” lacks or serious Witmer, (E.D.Pa. F.Supp.2d value. scientific 2006) 11). (citing 15, 23, Mem. at California, Pl. Miller v. 413 U.S. (1973) (internal 37 L.Ed.2d 419 cita- is, omitted). 21. The Miller test tions full: together, designated Taken R.A. V. St. Paul and statute issue is not as a statute, indecency” “public it Miller v. teach that O’Brien serves the California protecting same function of regulation of societal order appropriate test is Barnes, morality. See justified that can lewd conduct without 111 S.Ct. 2456. an expression of idea. See reference AM., City v. Pap’s also Erie The third O’Brien factor —whether the 277, 289, government interest is unrelated to the (“If (2000) governmental purpose in suppression free expression similar —is enacting the unrelated regulation is question to the' of content-neutrality. See expression, AM., suppression 296, 120 then the regula- Pap’s 529 U.S. at S.Ct. 1382 (“[T]he satisfy stringent” regulation tion need the “less properly is still evaluat ed as a evaluating standard from O’Brien for re- content-neutral restriction in combating secondary on the interest symbolic speech.”). strictions Accord- effects associated with those application of clubs is unre ingly, test is O’Brien suppression lated of the erotic mes appropriate. sage conveyed by dancing.”). nude The next determination for a court in Government’s interest in discouraging deciding the constitutional is protecting lewdness and children and un application whether the statute’s suspecting adults from such acts unre four-part Plaintiffs satisfies the test suppression any message lated to the words, In O’Brien. other must deter- conveyed by intended to be the lewd acts. statute, applied mine if the the Plain- Allsup, See Commonwealth v. 481 Pa. tiffs, is constitutional. I conclude that it is. (Pa.1978) (explaining 392 A.2d Court held that: O’Brien gist the crime is the immedi “[t]he government regulation is suffi- [A] or frightening impact ate offensive ciently justified if it within the consti- public or members who observe are Government; if power tutional conduct”). likely to observe the defendant’s important furthers substantial recognized, As District Court interest; governmental govern- if the argument Plaintiffs’ were “ex —that sup- mental interest unrelated pressing through nudity- themselves” pression expression; and if the free change does this conclusion. See alleged incidental restriction on First Barnes, at U.S. S.Ct. greater Amendment freedoms is no than (“Public nudity the еvil State seeks is essential to furtherance of prevent, whether or not it is combined interest. expressive activity.”). with 376-77, First, at U.S. S.Ct. inquires The fourth factor O’Brien power has the to regulate Amend- whether restriction First public lewdness. The Court has greater ment freedoms is no than neces- upheld legislation often similar as it falls sary to fulfill the interest. Government’s power “[t]he within traditional 391 U.S. at also See health, public ... to provide States for the C.C., Sys., v. F. Turner Broad. Inc. Barnes, safety, and morals.” U.S. 622, 662, 114 S.Ct. Second, 111 S.Ct. 2456. the statute (1994) (“[T]he requirement of narrow gov- important furthers substantial ... tailoring long is satisfied ‘so as the purpose. The held ernment Barnes Court regulation promotes govern- a substantial “public indecency that a statute furthers ‍‌‌​​​‌​‌​‌‌​‌‌‌​​​‌​​‌‌​‌‌‌‌​​​‌‌‌​‌‌‌‌‌‌‌‌‌‌​​‌‍a ment interest achieved less ”) (cita- government protect- substantial effectively regulation.’ interest absent the omitted). ing morality.” order and The interest served While tions prevent lewd conduct § 5901 is to community clearly it

setting violates where A.M., Pap’s See

standards. pro- Plaintiffs do not 120 S.Ct. 1382. achieving means

pose less restrictive employed approach than

this end easy posit find one. nor do I

Furthermore, this is content- restriction, the least restrictive

neutral Pap’s See analysis required.

means is not

AM., 301-02, 120 S.Ct. 1382. 529 U.S. at applied content-

Because State manner

neutral law a constitutional Plaintiffs, already I have and because Troopers proba- that the had

determined Plaintiffs, I con-

ble to arrest cause have failed

clude that Plaintiffs they suffered a constitutional

show that inquiry I

deprivation. would end our determination, and reach decline to immunity. question of qualified

III. join majori- I

Although am unable to

ty analysis, concur in the result grant District

would affirm the Court’s judgment

summary favor the State

Troopers. America,

UNITED STATES of

Plaintiff-Appellee, Sweets, SWEETS, Dana

James a/k/a

Defendant-Appellant.

No. 06-4008. Appeals,

United States Court of Circuit.

Fourth

Argued: Nov. July

Decided:

Case Details

Case Name: Egolf v. Witmer

Court Name: Court of Appeals for the Third Circuit

Date Published: May 22, 2008

Citation: 526 F.3d 104

Docket Number: 06-2193

Court Abbreviation: 3rd Cir.