EDWARD D. SNELL, Appellant v. CITY OF YORK, PENNSYLVANIA; MAYOR JOHN S. BRENNER, in his official capacity; COMMISSIONER MARK L. WHITMAN, in his official capacity; RONALD CAMACHO, York Police Department, in his official and individual capacities
No. 07-4439 (Consolidated with Nos. 07-4437 and 07-4438)
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
April 27, 2009
Before: RENDELL, and SMITH, Circuit Judges, and POLLAK,* District Judge.
Argued October 23, 2008; Precedential; Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Civil No. 06-cv-02133); District Judge: Honorable John E. Jones, III
Dennis E. Boyle, Esq.
Suite 200
4660 Trindle Road
Camp Hill, PA 17011 Counsel for Appellants John McTernan; John R. Holman; Edward D. Snell
Donald B. Hoyt, Esq.
Blakey, Yost, Bupp & Rausch
17 East Market Street
York, PA 17401
James D. Young, Esq. [ARGUED]
Lavery, Faherty, Young & Patterson
225 Market Street, Suite 304
P. O. Box 1245
Harrisburg, PA 17108-0000
Counsel for Appellees City of York, Pennsylvania; Mayor John S. Brenner, in His Official Capacity; Police Commissioner Mark L. Whitman, in His Official Capacity; and Ronald Camacho
RENDELL, Circuit Judge.
Appellant Edward Snell appeals from the District Court‘s grant of summary judgment and dismissal of his Monell claims for municipal liability in this action pursuant to
This case and those of two other protesters at the Clinic (McTernan v. City of York, No. 07-4437; and Holman v. City of York, No. 07-4438) were consolidated for oral argument. Each of the three appellants sued individually complaining of restrictions on his First Amendment rights of free speech, peaceful assembly, and religious expression. Additionally, Snell and Holman complain that their arrests for activity outside the Clinic violated their Fourth Amendment rights. While certain facts as stated in the three appeals are similar, the claims of each plaintiff were separately asserted in, and decided by, the District Court. We therefore write separately on each case, and we note that the analysis as it relates to Snell differs from the others somewhat, based on the nature of the government conduct at issue.
The Clinic and its environs are described in full in our Opinion in McTernan v. City of York, No. 07-4437, filed concurrently herewith, and that description will not be repeated here.
I. BACKGROUND
On November 3, 2004, Appellee Sergeant Ronald Camacho was stationed at the Planned Parenthood clinic on
Shortly after 8:00 A.M. on November 3rd, a Planned Parenthood patron, Dorothy Sponseller, stopped her car briefly in Rose Alley to obtain directions. S.A. 316. As Snell approached Sponseller‘s car, Peggy Welch, Planned Parenthood‘s director of client services, intercepted Snell and asked him to step aside. S.A. 316-18, 321. Snell returned to the curb, and Sponseller deposited her daughter at the rear entrance of the Clinic, looped around the block, and parked in the Clinic‘s front lot. S.A. 316-19. There, three Planned Parenthood escorts joined her. S.A. 317. As the group crossed the alley toward the Clinic, Snell approached Sponseller to hand her a pamphlet. S.A. 169, 319. Witnesses’ accounts differ as to whether Snell impeded Sponseller‘s progress to the Clinic;1
Approximately ten to twenty-five minutes later, a second patron entered the alley. S.A. 169. It is not clear whether the second patron was walking or driving when Snell approached -- conflicting evidence was offered. Snell testified that the second patron was on foot, accompanied by several Planned Parenthood
When the second patron entered the alley, Snell stepped off the curb to engage her, and was promptly arrested by Camacho for disorderly conduct.2 Snell testified that he was approximately five feet from the client, and witnesses essentially concurred.3 S.A. 169-70, 296, 305-306.
After his arrest, a backup policeman, Officer Hernandez, re-cuffed Snell. Snell complains that Officer Hernandez affixed the cuffs too tightly, leaving them sore and bruised. Snell did
District Justice Haskell dismissed the summary citation but expressed the view that Snell‘s aggressive tactics, which risked creating a “donnybrook” in the alley, approached the line of disorderly conduct. S.A. 183-84.
Snell filed suit in the United States District Court for the Middle District of Pennsylvania under
Defendants Brenner, Whitman, the City of York, and Sergeant Camacho jointly filed a motion to dismiss under Fed. R. Civ. P. 12(b)(6). Claims against Defendants Brenner, Whitman, and Sergeant Camacho in their official capacity were dismissed. S.A. 4-5 (citing Kentucky v. Graham, 473 U.S. 159, 165 (1985) (noting that “an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity[,]” since “[i]t is not a suit against the official personally, for the real party in interest is the entity.“)). Dismissing Snell‘s municipal liability claim against the City, the District Court found that Snell failed to identify a municipal “custom or policy” of depriving him of his constitutional rights. S.A. 5-9.
After discovery, the District Court granted summary judgment in favor of Sergeant Camacho on Snell‘s First and Fourth Amendment claims. Following form with its analysis of McTernan‘s Free Exercise claim, the Court concluded that the restriction enforced by Sergeant Camacho was “neutral,” “generally applicable,” and only “incidentally burdened” Snell‘s religious expression and, therefore, withstood constitutional review. The District Court determined, alternatively, that the restriction survived strict scrutiny, as it was narrowly tailored to promote public safety and traffic flow in Rose Alley -- “compelling” governmental interests.
Turning to the free speech and peaceful assembly claims, the District Court found that the restriction survived intermediate scrutiny because it was content-neutral, narrowly tailored to serve a compelling governmental interest, and left open ample alternative channels for communication of information.
As to the claim of unlawful arrest and excessive force under the Fourth Amendment, the District Court concluded that Sergeant Camacho acted reasonably in believing that “Snell intended to cause public inconvenience, annoyance, or alarm by creating a hazardous or physically offensive condition by an act
The District Court concluded that the excessive force claim failed because Officer Hernandez -- not Sergeant Camacho -- applied the handcuffs too tightly. Since Sergeant Camacho had no personal involvement in the misconduct alleged, he was not liable for Snell‘s injuries. The District Court also rejected Snell‘s alternative theory -- that any force applied in executing an unlawful arrest is excessive per se -- because Sergeant Camacho had probable cause to arrest Snell for disorderly conduct. S.A. 32.
On appeal, Snell urges that: his rights of free speech, peaceful assembly,5 and religious expression were burdened by the restriction placed on him and by his arrest; the restriction was neither “neutral” nor “generally applicable“; there was no compelling interest in safety, especially because the Planned
II. FIRST AMENDMENT CLAIMS
We incorporate herein the discussion of the standards applicable to Snell‘s Free Exercise and Free Speech claims from our opinion in McTernan v. City of York, No. 07-4437, filed concurrently herewith.6 While the specific conduct here -- on the parts of both the protester and the police -- differs somewhat from the conduct alleged in McTernan, our concerns are quite similar.
A. Free Exercise
The issue as to whether the restriction enforced by Sergeant Camacho was “neutral” and “generally applicable” is more easily resolved than in McTernan‘s case. Here, there is uncontroverted evidence that Snell was treated differently than others using the alley, namely Planned Parenthood escorts and
Our concerns here mirror those expressed in McTernan. Was the safety interest vis-a-vis Snell‘s activity truly compelling, given the frequency with which pedestrians and
We pause specifically to address two governmental interests asserted by Sergeant Camacho, which were not urged by the defendant officer in McTernan: ensuring patient access to the Clinic and protecting clients from physical harassment. Appellant‘s Br. at 28. Neither interest, we conclude, is “compelling” on the facts before us.
As to Clinic access, Sergeant Camacho failed to demonstrate that Snell significantly impeded access to the Facility. It is undisputed that Snell did not “actually stop” Sponseller, and that Sponseller was only momentarily delayed in her progress to the Clinic. S.A. 155-56, 305. Sponseller acknowledged, moreover, that Snell‘s overarching aim was not to block her ingress to the Clinic but rather to communicate his perspective -- to “get his point across.” S.A. 315. In rejecting Sergeant Camacho‘s access argument, we also contrast Snell‘s conduct with the impediments addressed in other abortion protest cases, where hundreds of advocates imposed physical blockades on clinic driveways and entrances. See Madsen, 512 U.S. at 758 (upholding fixed buffer zone around reproductive health clinic, where throngs of up to 400 protesters would congregate in the clinic‘s driveways, surround clinic patients,
We are also unpersuaded that the “contact” between Snell and Sponseller -- brief, isolated, and without attendant injury -- poses a “compelling” public safety threat, justifying the challenged restriction. Sergeant Camacho, conceding the contact was de minimis, characterized the encounter as not “serious” and “just kind of like forcing the literature on them and making some sort of physical contact.” S.A. 155-56. The essentially peaceful nature of the exchange is confirmed by Sponseller, who emphasized that Snell did not “mean[] anybody any harm,” and that she simply walked around Snell. S.A. 305, 315. Further, no pattern of violence or unruliness at the Clinic is alleged. The handful of protesters typically present at the Clinic are generally peaceful. The scene here, therefore, contrasts
Whether the interests asserted by the government, individually or in combination, are “compelling” is thus properly an issue for jury determination. Finding the District Court‘s grant of summary judgment on Snell‘s Free Exercise claim to be error, we will remand the issue for jury decision.
B. Free Speech
Our concerns with the District Court‘s analysis of the free speech issue in McTernan are also present here. Although we conclude that the challenged restriction was content-neutral, advanced an important governmental interest, and left adequate alternatives for communication of information, we have substantial doubt that it complied with the “tailoring” requirement mandated under heightened scrutiny. For the reasons set forth below, we will thus remand the issue for jury determination.
As to content neutrality, as in McTernan, there is no evidence of police hostility to Snell‘s pro-life message. While it is clear that Snell was treated differently than Planned Parenthood personnel, Snell fails to identify statements or conduct by Sergeant Camacho demonstrating animus to his substantive views. If a jury were to conclude that safety concerns did not motivate Sergeant Camacho, could they conclude that his treatment of Snell was prompted by disagreement with Snell‘s pro-life message? We think not. As we noted in our opinion in McTernan, there must be some evidence tending to show that Sergeant Camacho‘s articulated concern for traffic safety was a pretext for viewpoint discrimination. Here, that would be a matter of unsupported conjecture.
2. Narrowly Tailored to Serve a Significant Government Interest
Under the second prong of Ward, a content-neutral restriction on the time, place, or manner of speech must serve a significant government interest and be narrowly tailored to serve that interest. Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (quoting Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984)).
(i) Significance of the Governmental Interest
The District Court determined that the restriction
Our reasoning here largely mirrors our analysis in McTernan, where we addressed a similar factual situation. There, we underscored the risk of collisions between drivers, clients, personnel, and protesters in Rose Alley. That hazard, we found, was exacerbated by the specific characteristics of Rose Alley, including its narrow physical dimensions and the presence of large trucks. These concerns, centering on the layout and use of the alley, apply with equal force here. Accordingly, we conclude that the government interest in promoting traffic safety and traffic flow in Rose Alley, while not “compelling,” were “significant.”10
(ii) Narrowly Tailored
We now consider whether the challenged restriction was
Here, we cannot conclude that the challenged restriction “burden[s] no more speech than necessary” to protect traffic safety in Rose Alley as a matter of law. Madsen, 512 U.S. at 765. Snell identifies a plausible alternative to safeguard pedestrians and drivers without curtailing advocates’ First Amendment rights. Sergeant Camacho, he urges, could have directed traffic at the intersection of Beaver Street and Rose
The significant fact issues present here also preclude summary judgment on the “tailoring” requirement. A restriction cannot be “narrowly tailored” in the abstract; it must be tailored to the particular government interest asserted. Only when the contours of that interest are clear may we decide whether the means selected to accomplish it have been “narrowly tailored.” Here, Sergeant Camacho cited traffic safety to justify restricting access to Rose Alley. We previously identified traffic safety as a “significant” governmental interest, but query whether the safety issues are sufficiently defined, on the record before us, to sustain summary judgment that the restriction was “narrowly tailored” to that interest. We conclude that significant fact questions persist, precluding summary judgment on this issue. As we noted in McTernan, largely unknown is how drivers, advocates, and clinic personnel interacted in the alley. Absent this information, we are hard pressed to conclude, as a matter of law, that Sergeant Camacho selected the “least burdensome” alternative to promote traffic safety in the alley.
Other evidence confirms that a triable issue existed, and that summary judgment was improper on the issue of “tailoring.” The three appellee-officers assigned security detail at Rose Alley adopted distinct approaches to address the safety
Nor are we persuaded that prohibiting protesters from entering Rose Alley represented the least restrictive means of avoiding confrontations between patients and protesters and ensuring patient access to the Clinic. As we noted, there is no evidence of physical altercations among clients, volunteers, and the handful of protesters typically present at the Clinic. Although Sergeant Camacho maintains that Snell made physical contact with Sponseller, he concedes that the contact was momentary, harmless, and did not impede Sponseller‘s progress to the Clinic. There is no evidence that Sergeant Camacho could not have managed a potential dispute between a protester and a patron. On this sparse record, we cannot conclude that the challenged prohibition represented the least restrictive means of preserving order at the Clinic. Accordingly, we will remand the issue for jury determination.
3. Adequate Alternatives
The final Ward requirement is that the restriction leave
III. FOURTH AMENDMENT CLAIMS
Snell also contends that Sergeant Camacho arrested him
A. Unlawful Arrest
Snell argues that his arrest for disorderly conduct was unsupported by probable cause. Under Pennsylvania law, disorderly conduct requires proof that a person (1) “with intent to cause public inconvenience, annoyance, or alarm” (2) “creates a hazardous or physically offensive condition by any act” that (3) “serves no legitimate purpose of the actor.”
In assessing the presence of probable cause, a court must determine the fact pattern the officer encountered and, in light of that, whether the arresting officer had “probable cause to believe that a criminal offense has been or is being committed.” Sharrar v. Felsing, 128 F.3d 810, 818 (3d Cir. 1997). The Court has explained the standard as whether, “at the moment the arrest was made, the officers had probable cause to make it.” Beck v. Ohio, 379 U.S. 89, 91 (1964) (quoted in U.S. v. Burton, 288 F.3d 91, 98 (3d Cir. 2002)). In other words, “whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense.” Id. “Mere suspicion,” however, is insufficient. Burton, 288 F.3d at 98 (quoting Orsatti v. N.J. State Police, 71 F.3d 480, 482-83 (3d Cir. 1995)).
Notwithstanding the District Court‘s conclusion that Sergeant Camacho acted reasonably, we are not so sure. For one thing, we cannot discern exactly what occurred. While the various accounts as to the encounter with Sponseller are confusing, the evidence as to what happened thereafter -- which was the basis for the arrest -- is even less clear. Did Snell approach a car, or was the second patron on foot? What was his exact distance from that patron? What aspect of what he did created a “hazardous or physically offensive” condition?13
The District Court also apparently relied on the possibility of physical aggression by Snell -- that is, the Court found that Sergeant Camacho reasonably perceived a possibility that Snell would touch the second patron because of his earlier, alleged conduct towards Sponseller:
Sergeant Camacho observed Snell enter the alley and move into the path of individuals attempting to access the facility, and perceived that Snell made physical contact with these individuals. Sergeant Camacho then gave Snell yet another warning. When Sergeant Camacho observed Snell enter the alley again, he was justified in reasonably believing that Snell intended to cause public inconvenience, annoyance, or harm by creating a hazardous or physically offensive condition by an act which serves no legitimate purpose.
S.A. 31 (emphasis added). However, the disorderly conduct statute, by its terms, requires the “creation,” rather than a possibility, of a “hazardous or physically offensive” condition. Accordingly, a rational jury could find that Officer Camacho lacked probable cause to arrest him.14 Thus, we will remand this
B. Excessive Force
Snell contends that his Fourth Amendment rights were also violated when Sergeant Camacho applied excessive force. Snell abandons the argument, urged before the District Court, that Sergeant Camacho should be liable for Officer Hernandez‘s improper application of handcuffs. Appellant‘s Br. at 29-30. Snell‘s sole contention on appeal, instead, is that the force applied was excessive per se because the initial arrest was illegal:
The trial court also erred in finding that Officer Camacho is not responsible for excessive force since it was another officer who put Mr. Snell‘s handcuff‘s (sic) on too tight. However, it is not simply the handcuffs that are at issue, but all force used against Mr. Snell as a result of Officer Camacho arresting him. Any force used against Mr. Snell in the circumstances was excessive.
Appellant‘s Br. at 29-30. Hence, Snell contends that the force applied was excessive solely because probable cause was lacking for his arrest. We have rejected similar efforts to bootstrap excessive force claims and probable cause challenges. Robinson v. Fetterman, 378 F.Supp.2d 534, 544 (E.D. Pa. 2005) (citing Bodine v. Warwick, 72 F.3d 393, 400 & n.10 (3d Cir. 1995) (rejecting conflation of claims for false arrest and excessive force, noting that “merely because a person has been falsely arrested does not mean that excessive force has been used.“); see Beier v. City of Lewiston, 354 F.3d 1058, 1064 (9th Cir. 2004) (citing Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 921-22 (9th Cir. 2001) (“Because the excessive force and false arrest factual inquiries are distinct, establishing
IV. MUNICIPAL LIABILITY CLAIMS
Finally, Snell contends that the District Court erred in dismissing his Monell claims for municipal liability against the City of York. Monell v. New York City Dep‘t of Social Servs., 436 U.S. 658 (1978). Snell‘s complaint is more skeletal than McTernan‘s. Whereas McTernan pled that he and other protesters had been prohibited from entering the ally on multiple occasions by different York officers, Snell solely alleges restrictions imposed by a single officer -- Sergeant Camacho -- on his use of the alley. M.A. at 50. Incorporating our analysis in McTernan, we conclude that the District Court properly dismissed Snell‘s municipal liability claims against the City and Defendants Brenner, Whitman, and Camacho in their official capacity.
V. CONCLUSION
In light of the foregoing, we will AFFIRM the Order of the District Court as to its dismissal of appellant‘s municipal liability claim and his official capacity claims against Sergeant Camacho, Mayor Brenner, and Police Commissioner Whitman. Further, we will VACATE the Order of the District Court as to the other causes of action and REMAND to the District Court for further proceedings in accordance with this Opinion.