Sterling v. Borough of Minersville

property constitutionally protected have STERLING, Executrix and gamble Madonna in the opportunity they complain Marcus of which the activities the Estate thus rights. process their due Wayman violate Anthony do not dis- properly Therefore, court the district and civil the constitutional missed complaint in the count claims sixth MINERSVILLE; F. OF BOROUGH which upon a claim to state failure Officer; Wilinsky, Thom Police Scott granted.7 can be relief Officer; Joseph Hoban, Wi Police as individually Chief, linsky, and Police V. CONCLUSION Borough of police officers for as all carefully considered have We Minersville those including arguments, appellants’ specifical addressed may not have we

that Wilinsky and Officer F. Scott Officer district that ly, have and concluded Hoban, Appellants. Thomas with this action dismissed properly court to the counts respect with prejudice 99-1768. No. addressed, it except complaint six without count have dismissed should Appeals, States United re that the count the extent prejudice Third Circuit. messages offensive sending lated Consequently, over the Internet.8 threats 18, 2000. July Argued modify order of dismissal will we dis partially is 2000. six Filed Nov. that count provide other and we prejudice, without missed 14, 2000. Amended Nov. As with order of dismissal affirm the will wise order re affirm the prejudice, will remaining aspects

manding the New Court of Superior

complaint to to the remand case

Jersey. We will an order consistent court enter

district appeal on this opinion. Costs this against appellants. be taxed

will we find it be deny the as suggest and will motion that we do not hasten add event, appellants’ any holding that the casinos merit. our means immaterial, patrons dealing quite with their blanche are carte concerns” "serious suggest For ex- they otherwise. do not plenary review on all the we have exercised and state discrimination both federal ample, it would not appeal so that on this issues discrimi- implicated if casinos laws would justi- appellants’ concerns were if matter among patrons on the basis nated their recognize we review the we fied. While groups. protected their inclusion in an for leave to amend on of a motion denial basis, uphold- we are here of discretion abuse argument on this Immediately oral before legal basis that ing denial on the requesting appellants filed a motion appeal, would not survive amendment proposed evidentiary hearing possible conflicts on "an 12(b)(6). Rule See dismiss under motion to Smith, court” because district of interest Thus, we have not at 190. con- appellants their "serious were what said any issue on district court deferred "may have undisclosed cerns" that the court passed. we have which or financial interests.” conflicts of interest carefully application We have considered sexu- suspected threat to disclose

cers’ family to his an arrestee al orientation man’s constitu- young violated member affirm the will privacy. We right to tional law because the District Court order of per- that matters clearly established is from threats protected intimacy are sonal disclosure, privacy and right to by the was officers involved one of the least vio- knowingly was that his conduct aware right. of that lative I. Marcus 18-year old April

On male friend 17-year old and a Wayman a beer adjacent to in a lot parked were occupants The car and its distributor. offi- police the defendant observed were Wilinsky con- Wilinsky. was cer, F. Scott of the burglaries previous cerned about suspicious and was distributor beer were on car headlights that fact and, back-up Wilinsky called for out. Hoban, thereafter, Thomas Officer shortly Ru- Kairys, Rudovsky, (Argued), David defendant, at the scene. arrived the second Rau, Messing & Philadel- dovsky, Epstein, did not show PA, Appellee. investigation for The officers’ phia, Counsel business, but at the any sign of a break-in Tharaud, (Argued), Mar- Rostaing L. that to the apparent officers it was Warner, Gog- shall, Dennehey, Coleman & drinking alcohol. been young men had PA, Appel- for Counsel Philadelphia, gin, when asked evasive boys were also The lants. doing parking lot. they were what Hanssens, De- Lambda Legal Catherine two search uncovered When an eventual York, NY, Fund, New & fense Education condoms, whether the Wilinsky questioned Amicus-Appellee. Counsel for lot for a sexual parking boys were that both Wilinsky testified assignation. MANSMANN, RENDELL Before eventually ac- companion Wayman his STAPLETON, Judges. Circuit they were homosexuals knowledged that engage lot to parking in the were COURT OPINION OF THE the 17- sex, we note that but consensual making such admissions. MANSMANN, denied Judge. year old Circuit for under- boys two were arrested The interlocutory appeal arises This Min- were taken age drinking and motion of the defendants’ from denial station, At immunity police station. ersville judgment qualified on summary them that Bible Wilinsky police offi- lectured is whether At issue grounds.1 . (3d Cir.2000); Pennsylvania, 221 F.3d a District plenary over review exercise (3d summary judgment Felsing, 128 F.3d v. granting Court’s order Sharrar immunity. plaintiff, Cir.1997). qualified the basis every non-moving party, entitled to as the discrep- undisputed. Where Some facts are from can be drawn inference that favorable exist, plaintiff's version. we relate ancies Bartholomew Commonwealth the record. activity. mine if against plaintiff counseled homosexual has a depriva that if tion Wayman clearly then warned of a Wilinsky established constitutional right. Fields, did Wayman grandfather not inform his 178 F.3d Assaf (3d Cir.1999). homosexuality A his about estab lished if upon would take himself to disclose its outlines are clear sufficiently that a hearing information. After this reasonable officer would understand statement, Wayman confided to his friend his actions right. violate the Korne going Upon gay Cottingham, was to kill he himself. Cir.1997). exists, custody, Wayman his from com- If a release violation the immu nity question home. mitted suicide his focuses on whether law is established to the extent “the unlaw mother, Sterling, Madonna fulness of action ap the would have been estate, executrix of her son’s filed suit parent to a Assaf, reasonable official.” 178 § 42 1983 the Bor- against under U.S.C. F.3d at The right 174. status the as Minersville, Hoban, ough Wilinsky and clearly established and the reasonableness po- and in their capacity as individuals as questions of the official conduct are of law. officers, lice and the Chief of Police of Sharrar, 826, F.3d at 128 complaint alleged The Minersville. borough Way- the officers and the violated Wayman We first ask whether had a right against man’s Fourth Amendment protected privacy right concerning Wilin- arrest, illegal his Fourteenth Amendment sky’s suspected threat to disclose his sexu- privacy rights equal protection to and and exists, If right al orientation. the then we and the the laws the Constitution of Com- query clearly whether was established at of Pennsylvania. monwealth the time of its violation. discovery, Following the defendants Connecticut, In v. Griswold 381 U.S. summary judgment. filed a motion for 479, 1678, (1965), 14 85 S.Ct. L.Ed.2d 510 summary judg- The District Court denied acknowledged the Court first the right privacy, ment on the to law and state right individual’s constitutional to claims, municipal liability but granted Griswold, In Court declared that respect motion with to the Fourth Amend- law prohibiting contraceptives state use ment claim that of Wayman the arrest was by couples married unconstitutional was cause. The further probable court right because it violated the to as

ruled that the officers were not entitled es gleaned penumbra rights from qualified immunity their vio- since conduct Rights. the Bill 485- by tablished Id. at Wayman’s clearly lated right established 86, 85 1678. The decision S.Ct. Griswold protected to privacy by the Constitu- forty years validated a dissent written ear tion. by lier v. Justice Brandeis Olmstead States, 478, 438, 277 S.Ct. United U.S. 48 Hoban filed no- Officers 564, (1928), 72 L.Ed. 944 which described appeal tices of consistent with our authori- right right let as “the to be ty interlocutory on appeals to hear comprehensive alone—the most qualified immunity. issue of Mitchell v. most men. and the valued civilized 2806, 472 105 Forsyth, U.S. S.Ct. 86 protect right, every unjustifiable To 411 It is L.Ed.2d this issue alone government upon pri intrusion of the which our at this draws attention time. vacy of an individual ... must be deemed 478, 48 [constitutional] violation.” Id. at II. (Brandéis, J., dissenting). S.Ct. forth previously have set qualified privacy, analytical deciding framework The boundaries of the First, however, not delineated.2 immunity claims. we must deter been relating Loving Virgi- privacy right marriage, The has been extended ac- tivities Connecticut, 302 U.S. Palko v. heavy Griswold, placed majority In (1937)). 82 L.Ed. relationship of the intimate emphasis deciding inwife husband was The free are marriage relating decisions Roe, 429 U.S. refined Whalen further interference. government unjustified from (1977). In 869, L.Ed.2d 97 S.Ct. however, recognized that Later, the Court New Whalen, constitutionality of a individu- inured that the state required which York statute state. Eisenstadt the marital beyond al copy prescriptions with a provided Baird, 92 S.Ct. by physi challenged drugs was for certain (1972), invalidated a L.Ed.2d the statute’s While patients. cians felony to it a law that made Massachusetts the Court ultimately upheld, validity was person than a married anyone other give right to held that the constitutional or devices. contraceptive medicines autonomy an individual’s only not respects majority held Eisenstadt matters, individual’s also an but in intimate relation- limited to certain not privacy is highly divulgence of avoiding ships: 599-600, 97 Id. at personal information. was reaffirmed the distribution This sentiment under Grisivold S.Ct. 869. If can- Ser persons General to married in Nixon v. Administrator contraceptives of 2777, 425, 53 vices, a ban on distribution 97 S.Ct. prohibited, 433 U.S. not be Court, (1977), equally wherein the would be L.Ed.2d 867 persons unmarried to 599, Whalen, S.Ct. in Gris- 429 at 97 It true that U.S. quoting impermissible. is of question 869, in element right acknowledged “[o]ne of privacy the wold indi relationship. Yet characterized as ‘the the marital has been in inhered of independent avoiding an in disclosure couple is not the marital vidual own, Nixon, 433 U.S. a wind heart of its entity personal with matters....’” 457, of two individuals 97 2777. an association at S.Ct. but and emo- separate intellectual each Court that the recognize We right If makeup. the tional to right the definitively extended has not right of anything, it is the means confidentiality sexu- of one’s individual, to be single, married free or Indeed, gives later a case al orientation. intru- unwarranted governmental from Hardwick, 478 In Bowers pause. us fundamentally af- into matters so sion 2841, 140 186, 92 L.Ed.2d 106 S.Ct. U.S. decision whether fecting person a as the (1986), a Supreme Court overturned beget a child. to bear of the Appeals decision of omitted). (citations 453, that had invalidated Eleventh Circuit at 92 S.Ct. 1029 Id. ho- that made consensual Georgia statute Wade, 410 in Roe v. U.S. year later A sodomy a criminal offense. mosexual 705, (1973), 113, L.Ed.2d 147 93 S.Ct. 35 Con- majority rejected the claim there is “a the Court observed to “fundamental stitution confers guarantee of cer- privacy, or of personal sod- in consensual engage homosexuals to privacy,” protected areas or zones tain 192,106 at 2841. omy.” Id. S.Ct. 152, 93 S.Ct. Id. the Constitution. is that the Court Boioers indicates privacy, While personal guarantee This 705. bestowing protection that can resistant “only personal covers behavior, its some sexual ‘implicit the Constitution ‘fundamental’ or deemed ” of homosex- ruling practice focused on liberty.’ (quoting Id. concept of ordered (1972); relationships, 1817, family 1, 12, nia, 349 L.Ed.2d 87 18 L.Ed.2d 388 U.S. S.Ct. 158, 166, Massachusetts, U.S. 64 321 (1967); Prince v. v. Okla procreation, Skinner 1010 438, (1944); rearing 1110, 535, 541-42, child homa, 88 645 S.Ct. L.Ed. 62 S.Ct. 316 U.S. Sisters, education, Society 268 (1942); contraception, Pierce Eisen L.Ed. 86 1655 571, 438, 453, 1070 stadt, 69 L.Ed. U.S. 45 S.Ct. S.Ct. 31 sodomy In ual not determinative of Fraternal Order Police City (3d an privacy protects Philadelphia, whether the Cir. being 1987), individual from forced to disclose his questions posed we held that con words, In medical, sexual orientation. other cerning financial and behavioral purport punish decision did not homo- relating information police whether offi sexual status. Such a determination would applicants cer capable working were contrary holding fact be to the Court’s dangerous positions stressful and did not California, Robinson v. U.S. unconstitutionally infringe on appli (1962), S.Ct. L.Ed.2d 758 that the privacy rights, cant’s but determined that Eighth and Fourteenth Amendments for- there inadequate safeguards were on un punishment opposed bid of status as to necessary disclosure of the information ob conduct. Id. at do tained. We observed that “[i]t would be placing not read Bowers as a limit on incompatible with the concept privacy protection intensely per- permit protected information ... to be preference.3 sonal decision of sexual publicly disclosed.” Id. at per forming necessary balancing inquiry, jurisprudence encompass Our takes an we looked to the individual’s ex ing view of information entitled to a pro pectation and concluded that “[t]he more tected not to “[T]he information, intimate or concerning have intimate facts one’s life justified more the expectation that it will disclosed without one’s consent ... is a subject public scrutiny.” not be Id. at venerable one signifi whose constitutional ” 112-13. cance we recognized.... Bartnicki Cir.1999), v. Vopper, 200 F.3d Next, in Doe v. Pennsylva- Southeastern cert, —— ——, granted, U.S. 120 S.Ct. Transportation Authority, nia 72 F.3d 2716, 147 L.Ed.2d 981 (3d Cir.1995), public a employee First, Westing in brought United States a section 1983 action for violations Corp., house Electric right employer of his to when the Cir.1980), discovered, private we held that medical in through drug pur- records of formation is “well within the ambit of ma through employee chases made health privacy protection,” program, terials entitled to in that employee had AIDS. part because it concerns intimate of a weighing facts After certain factors to deter- personal nature. at Id. 577. We cau mine whether the disclosure constituted an tioned, however, that the right privacy, is not abso actionable invasion of we deter- public lute. Public health or like public employer’s concerns mined that the need to justify may access to information an access prescription pur- indi records for may vidual to poses monitoring plan desire remain confidential. the health out- claims, we, In examining right to in weighed employee’s keeping interest therefore, balance possible responsi drug purchases a and his confidential. Id. at conclusion, government ble interest in at disclosure 1143. We arrived how- ever, against only identifying govern- the individual’s interests. after Id. in “gen- ment’s interest the information as City Petersburg, part company 3. In Walls v. 895 F.2d 188 with our sister court’s (4th Cir.1990), Appeals court, discussion, the Court of for the ruling because the Fourth Circuit examined the law of in applied controlling Bowers as on the issue of police background question- the context of a despite disclosure of orientation forced sexual applicant naire which asked if the ever had the fact that Bowers focused on whether a appeals same sex relations. The court of re- constitutionally prohibit state could certain lied Court's refusal to find in consensual homosexual conduct. Neither protected Bowers that the homo- Bowers nor Walls inform issue before us. sodomy deciding question sexual that the repugnant right. was not to that intimacy are safe- at that matters of uine, Id. compelling.” and legitimate unwarranted disclosure. guarded against Seip, recently, Gruenke v. Most privacy, while The zone of (3d Cir.2000), high a school swim F.3d 290 personal intima in matters of established coach, teenage suspecting that á team govern is a If there cy, is not absolute. required the pregnant, was team member uncovering or disclosing ment interest pregnancy take a test. woman to young legitimate sexuality “genuine, that is one’s a and her mother filed young woman SEPTA, compelling,” Doe claiming that action inter alia section 1983 can legitimate then this interest unconstitutionally in- test pregnancy of the to protections override the daughter’s right priva- terfered instance, however, no In this privacy. cy matters. We decid- regarding personal has been government such identi squarely claim daughter’s ed “falls Indeed, Wilinsky conceded he would fied. recognized right within the contours this type to disclose reason person- from disclosure of one to be free sensitive information. v. Roe” al matters as outlined Whalen definitely we can conclude Before com- that the fact the coach held occurred, a tort has test, pelled coupled to take the student however, further ask whether we must appropriate failure to with an take disclosure, rather Wilinsky’s than threat tq information steps keep the confidential disclosure, actual constituted violation of privacy. Id. at infringed girl’s Wayman’s right matter, today’s we de- Significant actionability of discussing threats Cases type that this of conduct was not termined appear to violate constitutional objectively under the law and reasonable Simply put, follow one two directions. immunity the coach could not entitle “chilling threats effect” accompanied from suit. Id. deny hinder the exercise a con carefully guard We thus one’s deemed cogni stitutional have been unwarranted privacy against government zable, see Action Fund v. e.g., Citizens imagine It is difficult to a more intrusion. City City, 154 F.3d Morgan private sexuality matter than one’s (5th Cir.1998), opinion withdrawn on de likely that probability government less Cir.1999) (5th 172 923 rehearing, nial F.3d legitimate a in disclo- would have interest (“[ unconstitutionally en t]hreats identity.4 sure of sexual can forcing individuals to against laws lead can, therefore, readily chilling upon speech, silencing effect conclude Wayman’s opinions was an voices which First sexual orientation protect”); meant to La aspect personality of his entitled Amendment was intimate (5th Steele, F.2d 562 privacy protection to under Whalen. The mar 693 Cir. (contested 1982) Court, pre state action aimed at despite the Bowers deci sion, in cluding plaintiffs participation have future clearly spoken and our court exposes aspect an previously not and choices about sex While we have confronted personal or regard pri whether forced disclosure one’s sexual our lives that we as protected by Corrections, to vate); ientation would be Dept. 846 Eastwood privacy, agree other we courts conclud (10th Cir.1988) (right priva F.2d 631 to ing intrinsically pri that such information is cy implicated "is when an individual is forced Schriver, Powell v. vate. See 175 regarding personal to information disclose 1999) ("the excrutiatingly private 111 Cir. matters”); City Segun El sexual Thorne v. transsexualism, nature of and intimate do, (9th (the 1983) Cir. 726 F.2d 468 persons preserve privacy wish to in the who privacy of in the sexual activi raised matter, debate”); really beyond is Bloch v. privacy protected by ties is within the zone Ribar, (6th Cir.1998) (pub 156 F.3d 685 Constitution). sexuality licly revealing regarding information

197 however, interlocutory An appeal, First Amendment’s litigation implicated does not qualified to he from denial of speech of free protections immunity when the claim is one of factual in arising while threats constitu petition), Pelletier, insufficiency. Behrens v. 516 without a deterrent effect tional contexts 299, 313, 116 U.S. S.Ct. 133L.Ed.2d claim. not substantiate a section 1983 could (1996). way—an 773 another “I Salimes, Stated e.g. Schlessinger v. 100 F.3d See argument it” Cir.1996) (threat recognizable didn’t do is not (7th to arrest not Sazan, Reyes in context. 168 F.3d Whitmire, Balliet v. cognizable); (5th Cir.1999) 158, 161 (M.D.Pa.1986), aff'd, F.Supp. . (3d Cir.1986) (threat to remove child Thus, jurisdiction are without we dis- violation).

from home not a constitutional immunity qualified argu- cuss Hoban’s ment.5 implicating privácy A threat to disclose not, us, fit into either cate-

rights does Wilinsky B. Officer gory. The threat of disclosure does not Similarly, we' not do' discuss since the chilling effect Wilinsky whether made the state i.e., particular ac- pervasive, ment'concerning the threatened disclosure Instead, the essence of tion is deterred. Wayman’s homosexuality Wayman’s “avoiding disclo- reiterate, grandfather.6 jurisdic To our matters,” Whalen, id. at sure interlocutory qualified tion to hear immu 599, 97 869. The threat to breach S.Ct. nity appeals only exists extent aspect confidential of one’s life then some the denial turns on an issue of law. John is tantamount to a violation of the Jones, 304, 313, son v. U.S. security because the of one’s Where, 132 L.Ed.2d 238 compromised has been the threat of however, the denial turns on the sufficien Thus, Wilinsky’s threat to dis- disclosure. evidence, an cy appeal will not he Wayman’s suspected homosexuality close judg until the District final Court enters as a violation of consti- suffices Montgomery ment the case. In re tutionally protected privacy interest. (3d Cir.2000). Thus, County, 215 F.3d 367 Wilinsky appeal could not the denial of

III. qualified immunity grounds on the he did We next address whether Officers Wilin- Otherwise, not make the statement. his sky reasonably and Hoban could believe appeal would suffer the same fate as Ho regard Wayman their conduct “I do appeal. ban’s didn’t it” light of the established law was lawful We turn then to whether possession. and the information in their conduct, should have known his 224, 227, Bryant, Hunter v. U.S. plaintiff, described violated (1991). 534, 116 L.Ed.2d 589 discussed, previously law. established As by Wilinsky’s acknowledgment-, own -disclo A. Hoban Officer Wayman’s suspected homosexuality of sure private that he is en would a matter concern. Officer Hoban claims be of Wi immunity linsky Wayman was qualified titled because no stated because him to inter questioning evidence connected him to the there no reason for was Wayman, any Wayman’s family’s of other that would fere awareness of action addition, constitute a violation of consti his sexual orientation. Wilin- suspi- rights. sky tutional testified that he did not include Wilinsky Wayman Additionally, argue 6. The so advised did not fact Hoban factually intent to disclose was conceded at oral District Court that he is remote from of his allegations complaint. argument. 635, 639-40, 107 S.Ct. police 483 U.S. activity in his cion of homosexual (1987). Here, prior to of L.Ed.2d 523 nature of the confidential report because case, there was then, to this Wilinsky giving rise Obviously, events the information. addressing case law orientation is Court that one’s sexual was aware there is compelling the issue of whether intrinsically and no either personal of constitutionally protected information was such reason to disclose orientation, issue of confidential and or the Because the in one’s sexual warranted. was obvi to disclose constitu- nature of the information a mere threat private whether can ous, information private and because tionally protected well-settled, the concomitant constitutional tort. Of a constitutional constitute notwithstanding the apparent courts, only one violation was of the inferior decisions question issue, had very City that the action v. fact Walls addressed the former (4th Cir.1990), unlawful. been held to be previously not Petersburg, 895 F.2d 188 (3d 290, 299 Seip, constitutionally 225 F.3d See Gruenke is no and it held that there Cir.2000), Creighton, quoting Anderson sexual one’s protected privacy 639-40, 107 S.Ct. respect to the second With orientation. Accordingly, issue, holding L.Ed.2d 523 that an was no case there that his reasonably have believed private could not infor- threat to disclose unexecuted light lawful in conduct was questioned a violation of mation can constitute protecting privacy dealing the established law the case law privacy, rights.7 to violate other with threats support for no affirmative

rights provided IV. threats to violate proposition Thus, it actionable. were above, will we For the reasons stated said that the unlawfulness cannot be the District Court de- affirm the order of Wilinsky’s apparent conduct was Officer summary grounds on the nying judgment he is it It follows that the time occurred. immunity. qualified immunity. qualified entitled STAPLETON, Judge, Circuit differences, I elaborating on our Before dissenting: my agreement with much note I respectfully dissent. today Though we have has said. before, agree I the issue “clearly estab- not addressed

In order for law to be that, of this precedents on the qualified immunity, based purposes lished” for Court, in- Wayman possess did pre-existing authority which there must previ- Our terest in his sexual orientation. possibility out that a reasonable rules Westinghouse and FOP position could ous decisions official in the defendant’s be lawful. have understood have believed his conduct to (3d Kaltenbach, of a encompass all “intimate facts 204 F.3d Paff Cir.2000). Westing- United States v. say is not to that an nature.” See “This (3d Cir.1980); house, im- protected by qualified official action is City Phila- Fraternal Police v. munity very question action in Order unless unlawful, 112-13 delphia, Cir. has held but previously been 1987). say that our I think it fair to say light pre-existing that in law person’s a sexual orienta- society regards apparent.” unlawfulness must be See (3rd a 290, as intimate information of tion Seip, Gruenke v. and, recognizes a rea-

Cir.2000), accordingly, nature quoting Creighton, Anderson v. that, lty. only note our dis- police We mention this Wilinsky as a small town offers thus, officer, overtones, concept breadth agreement that the parental with his role has privacy can somehow reducing expectation of one’s constitutional the citizen's by demographics. capac- diminished they when him in an official encounter expectation pri- the victim is made the legitimate sonable and instrument of the It vacy in that information.1 disclosure. makes more sense to exam- culpability ine the of the conduct and ask Wilinsky primarily action of completed whether an officer steps reason- pri- is his threat to disclose at issue here ably designed to effect disclosure with the It clear that while

vate information.2 intent that disclosure would result. Wilinsky to disclose Officer threatened short, Wilinsky’s I believe threat itself was orientation, sexual he Wayman’s suspected a of Wayman’s right violation so, so. I am in did not fact do Even officer, Wilinsky, acting because as a state Wilinsky’s agreement with the Court knowingly engaged reasonably in conduct Wayman’s suspected threat to disclose sex- involuntary calculated to effect the disclo- I ual orientation violated the Constitution. Wayman’s sure of sexual orientation. conclusion, however, by reach this a differ- Thus, agree than the I believe that a I with ent route Court. the Court’s decision a private threat to disclose information vio- constitutional violation occurred. I however, privacy part ways my colleagues, lates the constitutional on where, here, only unconstitutionality an officer with no whether the of Wilin- legitimate effecting sky’s clearly disclosure conduct was established threat, pre-existing makes a the intended and foresee- law. case involuntary of which is self- able effect First, person’s right a his disclosure. simply or her sexual orientation was not mechanism, clearly Essentially April Only a blackmail Wi- established in of 1997. linsky’s opinion directly addressing “tell now or I’ll tell later” threat one the issue conduct, forcing Wilinsky’s had disclo- existed at the time the foreseeable effect by Wayman any opinion sure further ac- and that held that part Wilinsky. person’s tion on the It would exists in a sexual orienta- Walls, (reject- make little sense to condone an officer’s tion.3 895 F.2d at 193 See effecting simply ing, authority acts disclosure because on the of Bowers v. Hard- unpersuasive my majority’s it a 1. While I consider closer issue than 3.I find citation of do, colleagues ultimately reject I also several other cases in footnote four. Three of analysis proffered City in Walls v. Peters these cases' were decided after the events at burg, F.2d Unlike the majority . place. issue took As the cor here court, Supreme I Walls do not read the notes, rectly applicable test looks to the opinion intended Court’s in Bowers as to af right's alleged time of the violation. See Conn prong arising fect cases under the disclosure Gabbert, 286, 290, U.S. 1292 , Hardwick, of Whalen. See Bowers v. 478 U.S. (1999). I cannot conclude 143 L.Ed.2d 399 (1986); 106 S.Ct. 92 L.Ed.2d 140 that our law was established in 1997 Roe, Whalen v. 97 S.Ct. upon opinions based issued date. after that 64(1977). L.Ed.2d case, Thorne, remaining involved an sole explicit job inquiry into the factual details of a argument questioning 2. The that the violated applicant’s history miscarriage, sexual in notes, cluding past part the identities .of her sexual unpersuasive. opinion As the Court’s City Segundo; young hiding ners. See Thorne v. El 72 the two men were found in a Cir.1983). (9th parked jeep premises of a closed beer on 462 & 1 While n. high-crime They gave distributor in a area. Thome was decided in it cannot be contradictory explanations and evasive having clearly viewed as established a apparently presence. their Officer right- person's sexual orientation as of activity may believed some criminal The Fourth Circuit’s decision in Walls afoot, unreasonably by been and did not act squarely in addressed the issue 1990 and questioning young why men to find out opposite pri conclusion based reached observes, they were there. As the Court if Bowers, marily prece legitimate governmental interest in there is a uncovering Thus, years after Thome. dent decided three disclosing person’s sexual was, best, the law in this area unclear. orientation, protec- that interest overrides the tions of the 200 to the District Court I remand

wick, 92 would dismiss the count (1986), a with instructions to proposition L.Ed.2d of the Sterling’s alleging claim a violation was violat- right city employee’s right to state whether being requiring by her ed awith had sexual relations

she had “ever sex”). the rele- With

person of the same state, I unable to in this am

vant ease law in Wi- that no reasonable officer

conclude have believed his could

linsky’s position consistent the Constitu-

conduct to be

tion. Second, the Court I must differ with CERTAIN UNDERWRITERS right it finds that when LLOYD’S, LONDON, AT to violate infringed by threats generally Plaintiff-Appellee, concludes that this rule and then Where, with the as established. access to rights of free exercise free SINKOVICH, Defendant- Thomas C. courts, exercise of a constitutional Appellant. act on requires part a volitional No. 97-2634. right, courts have holder of the of the view that alone taken the realistic threats Appeals, States Court of United chill the may impermissibly exercise Fourth Circuit. and, may accordingly, give rise Argued: Oct. confines of liability. the narrow Outside exercise rights specifically protecting free Decided: Nov. access, however, held that courts have constitutional are to violate threats actionable as generally

not Warish, See, Pittsley v. e.g.

violations. (1st Cir.1991); 3, 7 Emmons v. (6th

McLaughlin, 874 F.2d Cir.

1989); County, 117 F.3d King v. Olmsted (8th Cir.1997); Sunn, Gaut (9th Cir.1987); Collins (10th Cir.1979). 825, 827

Cundy, 603 F.2d cites no case which threat been held has violate Constitution, I

to violate the know While, indicated, I have I would

none. willing particular to hold violate

threat did constitutional' the foresee because had effecting disclosure consequence

able part further action on the Wilin I

sky, acknowledge I must that have found precedent anticipating the formation The state of case law

such a rule. with threats to the Consti

dealing violate independent thus an reason for

tution is immunity.

sustaining Wilinsky’s qualified

Case Details

Case Name: Sterling v. Borough of Minersville

Court Name: Court of Appeals for the Third Circuit

Date Published: Nov 6, 2000

Citation: 232 F.3d 190

Docket Number: 99-1768

Court Abbreviation: 3rd Cir.