Filed: Aug. 20, 2004
Latest Update: Apr. 11, 2017
Summary: Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 8-20-2004 Blackhawk v. Comm PA Precedential or Non-Precedential: Precedential Docket No. 02-3947 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Blackhawk v. Comm PA" (2004). 2004 Decisions. Paper 364. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/364 This decision is brought to you for free and open access by the Opinions of the Uni
Summary: Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 8-20-2004 Blackhawk v. Comm PA Precedential or Non-Precedential: Precedential Docket No. 02-3947 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Blackhawk v. Comm PA" (2004). 2004 Decisions. Paper 364. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/364 This decision is brought to you for free and open access by the Opinions of the Unit..
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Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
8-20-2004
Blackhawk v. Comm PA
Precedential or Non-Precedential: Precedential
Docket No. 02-3947
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004
Recommended Citation
"Blackhawk v. Comm PA" (2004). 2004 Decisions. Paper 364.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/364
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PRECEDENTIAL GAME COMMISSION;
VERNON ROSS, Director; THOMAS
UNITED STATES COURT OF R. LITTWIN, Law Enf. Director;
APPEALS FREDERICK MERLUZZI, Enf. Officer;
FOR THE THIRD CIRCUIT BARRY HAMBLEY;
DAVID E. OVERCASH, in their
individual and official
Nos. 02-3947/4158 capacities;
DENNIS L. BLACKHAWK ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
v. THE MIDDLE DISTRICT OF
PENNSYLVANIA
COMMONWEALTH OF
PENNSYLVANIA; (Dist. Court No. 99-cv-02048)
PENNSYLVANIA GAME District Court Judge: Hon. Thomas I.
COMMISSION; VERNON ROSS, Vanaskie
Director;
THOMAS R. LITTWIN, Law Enf.
Director; FREDERICK Argued: July 21, 2003
MERLUZZI, Enf. Officer; BARRY
HAMBLEY; DAVID E. OVERCASH, Before: ALITO and FUENTES, Circuit
in their individual and official capacities Judges, and SURRICK,* District Judge.
Vernon Ross (Opinion Filed: August 20, 2004 )
Thomas Littwin
David E. Overcash, D. MICHAEL FISHER
HOW ARD G. HOPKIRK (Argued)
Appellants, No. 02-3947 CALVIN R. KOONS
__________________ JOHN G. KNORR, III
Office of Attorney General
DENNIS L. BLACKHAWK, Appellate Litigation Section
15th Floor, Strawberry Square
Appellant, No. 02-4158
v. *
The Hon. R. Barclay Surrick,
United States District Judge for the
COMMONWEALTH OF Eastern District of Pennsylvania, sitting by
PENNSYLVANIA; PENNSYLVANIA designation.
-1-
Harrisburg, Pa. 17120 spiritual strength. Although Blackhawk is
a Lenape Indian by birth, he was adopted
Counsel for Appellants/Cross-Appellees by elders of the Oglala Lakota and Seneca
tribes, who schooled him in the religious
GARY S. GILDIN (Argued) traditions of the Lakota and Iroquois
150 South College Street people. When Blackhawk began to see
Carlisle, Pa. 17013 bears in a recurring dream, Lakota tribal
elders concluded that the dream was a
THOMAS B. SCHMIDT, III prophesy and predicted that Blackhawk
PEPPER HAMILTON LLP would derive spiritual power from the
200 One Keystone Plaza animals.
North Front and Market Streets
In 1994, Blackhawk purchased two
Post Office Box 1181
black bear cubs, a male and a female
Harrisburg, Pa. 17108-1181
named Timber and Tundra. He moved to
Pennsylvania in 1995 and began
Counsel for Appellee/Cross-Appellant
conducting religious ceremonies with the
bears on his property. Members of various
American Indian tribes visit Blackhawk
OPINION OF THE COURT
from across the country to participate in
these rituals. Due to Blackhawk’s
ALITO, Circuit Judge: stewardship of the bears and his role in
these ceremonies, some consider him to be
This is an appeal by officials of the a holy man.
Pennsylvania Game Commission from an
order permanently enjoining them from The Pennsylvania Game and
enforcing a permit fee provision of the Wildlife Code requires permits in order to
state Game and Wildlife Code against engage in a variety of different activities,
Dennis Blackhawk on the ground that the including such things as bird banding (34
Commission’s current waiver policy Pa. Cons. Stat. Ann. § 2921), falconry (34
violates his right to the free exercise of Pa. Cons. Stat. Ann. § 2925), various types
religion. Blackhawk in turn cross-appeals of field dog trials (34 Pa. Cons. Stat. Ann.
the District Court’s holding that the Game § 2943), fox chasing (34 Pa. Cons. Stat.
Commission officials are not personally Ann. § 2945), maintaining a “menagerie”
liable for violating his rights. We affirm (34 Pa. Cons. Stat. Ann. § 2964), and
the District Court in both respects. either dealing in or possessing “exotic
wildlife.” 34 Pa. Cons. Stat. Ann. §§
I. 2962, 2963. Annual fees ranging from $25
Lakota Indians believe that black to $300 are collected for these permits, see
bears protect the Earth, sanctify religious 34 Pa. Cons. Stat. Ann. § 2904, and the
ceremonies, and imbue worshipers with revenues from all of these fees comprise
-2-
about one percent of the Game fee is $50. See 34 Pa. Cons. Stat. Ann. §
Commission’s annual intake. 2904.
Although persons wishing to keep In 1998, Blackhawk sought an
wildlife in captivity must generally obtain exemption from the permit fee on the
a menagerie or exotic wildlife possession ground that he possessed the bears for
permit and pay the requisite fee, see 34 Pa. Native American religious purposes. After
Cons. Stat. Ann. §§ 2904, 2964(c)(1), the making an inquiry to the Bureau of Indian
Code excludes from these requirements Affairs, Merluzzi informed Blackhawk
most zoos and all “[n]ationally recognized that Native Americans who possess a
circus[es].” 34 Pa. Cons. Stat. Ann. § Bureau of Indian Affairs identification
2965(a)(1)–(3). In addition, the director of card are entitled to some exemptions under
the Game Commission is authorized to federal law, but Blackhawk did not possess
waive a permit fee “where hardship or such a card. Blackhawk paid the 1998 fee
extraordinary circumstance warrants,” so under protest after citing his religious
long as the waiver is “consistent with purpose and alleging financial hardship.
sound game or wildlife management He then wrote to his representative in the
activities or the intent of [the Game and state legislature, Keith McCall, and
Wildlife Code]” 34 Pa. Cons. Stat. Ann. § McCall intervened and asked Commission
2901(d). director Vernon Ross to oversee the
situation personally. On October 6, 1999,
From 1995 to 1999, Blackhawk
Blackhawk received a letter from
obtained permits to own the bears. At
Commission officials Thomas Littwin and
first, he acquired a “menagerie permit,”
David Overcash informing him that he did
but bears are classified under the Game
not qualify for a waiver under 34 Pa. Cons.
and Wildlife Code as “exotic wildlife,” see
Stat. Ann. § 2901(d) because the
34 Pa. Cons. Stat. Ann. § 2961, and special
Commission regarded the keeping of wild
permits are required for those wishing to
animals in captivity as inconsistent with
deal in or possess exotic wildlife. See 34
sound game and wildlife management
Pa. Cons. Stat. Ann. §§ 2904, 2962, 2963.
activities unless the animals were intended
Beginning in 1997, the Game Commission
for release into the wild. Since Timber
insisted that Blackhawk obtain an exotic
and Tundra had been declawed and had
wildlife dealer permit, which costs $200
been kept in captivity their entire lives,
per year, see 34 Pa. Cons. Stat. Ann. §
they could not be released into the wild.
2904, because Frederick Merluzzi, a
“Thus, in the Commission’s view,
wildlife conservation officer, believed that
Blackhawk [was] not entitled to an
Blackhawk intended to breed the bears and
exemption regardless of his financial
sell their cubs. If Blackhawk did not wish
circumstanc es.” Black Hawk v.
to deal in bears but merely to keep them,
Pennsylvania, 225 F. Supp. 2d 465, 470
he needed only an exotic wildlife
(M.D. Pa. 2002). The letter from Littwin
possession permit, for which the annual
-3-
and Overcash told Blackhawk that, tested for rabies. See 28 Pa. Code §
because his permit had expired on June 30, 27.103(f)(2). The District Court enjoined
1999, if he still possessed the bears he was the Commission from destroying the bears
subject to prosecution. and ordered their return. See Black Hawk
v. Pennsylvania, 114 F. Supp. 2d 327
Blackhawk responded by again
(M.D. Pa. 2000).
requesting a waiver, and in November of
1999, Merluzzi filed criminal charges When the District Court reached the
against Blackhawk for failing to renew. merits of the civil case, it held that the
Game Commission’s refusal to exempt
Blackhawk filed an action under 42
religiously motivated activities from the
U.S.C. § 1983, seeking to enjoin the Game
permit fee violated the First Amendment’s
Commission from assessing the fee or
Free Exercise Clause. See Black Hawk,
confiscating the bears and also seeking
225 F. Supp. 2d at 465. The Court held
money damages from Merluzzi, Overcash,
that the permit fee requirement was not a
Littwin, Hambley, and Ross. Prior to the
“‘valid and neutral law of general
District Court’s disposition of the case, a
applicability’” under Employment Div.,
state magistrate found Blackhawk guilty of
Dep’t of Human Resources of Oregon v.
the criminal charges and assessed a
Smith, 494 U.S. 872, 879 (1990), because
$178,400 fine, which he later reduced to
the statutory waiver established a “‘system
$6,442. However, the Court of Common
of individualized exceptions.’” Black
Pleas stayed the criminal case pending a
Hawk, 225 F. Supp. 2d at 473. The Court
ruling on Blackhawk’s § 1983 action.
accordingly applied strict scrutiny to the
In August of 2000, Blackhawk waiver scheme, id. at 472–73, and held
discovered that the bears’ enclosure had that the scheme could not withstand strict
been vandalized, that the locks on the scrutiny because the Commission was
enclosure had been cut, and that the unable to “demonstrate a compelling
animals were missing. A neighbor interest in refusing to grant a religious
encountered Tundra on his property and exemption.” Id. at 477. The District Court
was attempting to lead the bear back to the a c co r d i n g l y e n jo i n e d t h e G a m e
pen when Tundra bit him. The neighbor Commission from charging Blackhawk a
alerted the Game Commission, which permit fee. However, the Court declined
tracked the bears and tranquilized them. to hold the individual defendants liable
An official who was attempting to restrain under § 1983 because it found that
Tundra was also bitten by the bear, but the Merluzzi and Hambley were not personally
Commission succeeded in taking both responsible for violating Blackhawk’s
bears into custody. It then sought to rights and that Ross, Littwin, and
destroy the bears pursuant to a regulation Overcash were entitled to qualified
requiring wild animals who have bitten immunity.
humans to be decapitated in order to be
On appeal, the Commission argues
-4-
that the First Amendment does not entitle however, that most laws that burden
Blackhawk to a waiver, and Blackhawk religiously motivated conduct stand on a
contends that the District Court erred in different footing. Rejecting the argument
granting summary judgment in favor of the that such laws must generally satisfy strict
individual defendants. We exercise scrutiny, the Court concluded that the First
plenary review over a grant of summary Amendment is not ordinarily offended by
judgment, Northview Motors, Inc. v. “neutral” and “generally applicable” laws
Chrysler Motors Corp., 227 F.3d 78, that merely have “the incidental effect” of
87–88 (3d Cir. 2000), and likewise review burdening religiously motivated conduct.
de novo the District Court’s interpretation
494 U.S. 878, 879, 881.
of the Constitution. United States v.
The Court recognized several
Scarfo, 263 F.3d 80, 91 (3d Cir. 2001).
exceptions to this rule. First, the Court did
II. not overrule prior decisions in which
“hybrid claims” (i.e., claims involving “not
A.
the Free Exercise Clause alone, but the
Blackhawk’s free exercise claim Free Exercise Clause in conjunction with
requires us to apply the Supreme Court’s other constitutional protections”) had
decisions in Employment Div., Dep’t of prevailed against “neutral, generally
Human Resources of Oregon v. Smith, applicable law[s].” Id. at 881 (citations
supra, and Church of Lukumi Babalu Aye, omitted). Nor did the Court overrule
Inc. v. Hialeah, 508 U.S. 520 (1993) Sherbert and o ther decisions that
(“Lukumi”), and our decisions in Fraternal “ i n v a li d a t ed sta t e u ne m p l o y m e nt
Order of Police v. City of Newark, 170 compensation rules that conditioned the
F.3d 359 (3d Cir. 1999) (“Fraternal Order availability of benefits upon an applicant’s
of Police”), and Tenafly Eruv Ass’n, Inc. willingness to work under conditions
v. Borough of Tenafly,
309 F.3d 144 (3d forbidden by his religion.” Id. at 883.
Cir. 2002) (“Tenafly”). Based on these Finally, the Court observed that even if it
decisions, we agree with the District Court “were inclined to breathe into Sherbert
that Blackhawk’s free exercise rights were some life beyond the unemployment field,
violated. [the Court] would not apply it to require
exemptions from a generally applicable
In Smith, the Supreme Court
criminal law.” Id. at 884. The Court
opened a new chapter in the interpretation
wrote:
of the Free Exercise Clause. The Court
began by reaffirming the principle that the The Sherbert test, it must be
Clause prohibits “all ‘governmental recalled, was developed in a
regulation of religious beliefs as such.’” context that lent itself to
494 U.S. at 877 (quoting Sherbert v. individualized governmental
Verner, 374 U.S. 398, 402 (1963)) assessment of the reasons
(emphasis in Sherbert). The Court held, for the relevant conduct. . . .
-5-
[O]ur decisions in instructive. The principal ordinances
the unemployment challenged in Likumi were claimed to
cases stand for the advance two interests – preventing cruelty
p r o p o s i ti o n t h a t to animals and protecting public health --
where the State has but the Court concluded that the
in place a system of ordinances failed the general applicability
i n d i v i d u a l standard because they were
exemptions, it may “underinclusive for [their asserted] ends”
not refuse to extend and “[t]he underinclusion [was]
that system to cases substantial, not inconsequential.” Id. at
of ‘religious 543. The Court explained that the
hardship’ without ordinances were “underinclusive” because
compelling reason. they “fail[ed] to prohibit nonreligious
conduct that endanger[ed] these interests
Id. at 884 (citation omitted).
in a similar or greater degree than Santeria
In Lukumi, the Court applied Smith sacrifice does.” Id. The Court added:
to a web of city ordinances that interfered
The ordinances “ha[ve]
with the practice of Santeria, a religion
every appearance of a
that employs the sacrifice of animals in its
prohibition that society is
rituals. The ordinances prohibited the
prepared to impose upon
killing of animals in Santeria rituals but
[Santeria worshippers] but
excluded almost all other animal killings,
not upon itself.” . . . This
including killings that occurred in
precise evil is what the
connection with hunting, fishing, meat
requirement of general
production, pest extermination, euthanasia,
applicability is designed to
and the use of rabbits to train greyhounds.
prevent.
Id. at 536-37. The Court held that these
“gerrymandered” ordinances were neither Id. at 545-46 (quoting Florida Star v.
“neutral” nor “generally applicable,” id. at B.J.F., 491 U.S. 524, 542 (1989) (Scalia, J.
533-46, and that they could not withstand concurring in part and concurring in
strict scrutiny. Id. at 546-47. judgment) .
The Lukumi Court’s discussion of Applying these precedents, we held
the requirement of general applicability is in Fraternal Order of Police that the Free
particularly important for present Exercise Clause was violated by a city’s
purposes. While the Court did not attempt practice of prohibiting police officers from
to “define with precision the standard used wearing beards for religious reasons but
to evaluate whether a prohibition is of allowing officers to wear beards for
general application,” id. at 543, the Court’s medical reasons. See 170 F.3d at 364-67.
discussion of the requireme nt is In reaching this conclusion, we drew on
-6-
both t h e C our t ’ s discussion of Id. at 366. We therefore applied strict
“individualized exemptions” and the scrutiny and held that the no-beards policy
general applicability requirement. Id. at could not satisfy that standard. Id. at 366-
364-66. We explained that a system that 67.
permits individualized, discretionary
In Tenafly, we considered a local
exemptions provides an opportunity for the
ordinance that was neutral and generally
decision maker to decide that “secular
applicable on its face but that had been
motivations are more important than
enforced in a discriminatory manner. See
religious motivations” and thus to give
309 F.3d at 167-72. The ordinance banned
disparate treatment to cases that are
the placement of any “‘sign or
otherwise comparable. 170 F.3d at 365.
advertisement, or other matter upon any
“If anything,” we stated, “this concern is
pole, tree, curbstone, sidewalk or
only further implicated when the
elsewhere, in any public street or public
government does not merely create a
place, excepting such as may be authorized
mechanism for individualized exemptions,
by this or any other ordinance of the
but instead, actually creates a categorical
Borough.’” 309 F.3d at 151 (citation
exemption for individuals with a secular
omitted). The local government, however,
objection but not for individuals with a
had permitted the placement on utility
religious objection.” Id. Concluding that
poles of many types of signs and symbols,
the policy in question was suspect for
including house number signs, signs
precisely this reason, we wrote:
pointing the way to area churches, lost
[T]he medical exemption animal signs, holiday symbols, and orange
raises concern because it ribbons signifying opposition to school
indicates that th e regionalization. Id. at 151. By contrast,
Department has made a the local government refused to permit
value judgment that secular Orthodox Jews to place lechis on utility
(i.e., medical) motivations poles in order to construct an eruv, a
for wearing a beard are ceremonial demarcation of an area within
import ant enough to which Orthodox Jews may push or carry
overcome its general interest objects on the Sabbath. Id. at 152. We
in uniform ity but that thus held that “the Borough’s selective,
religious motivations are discre tionary applic atio n of [the
not. . . . [W]hen the ordinance] violates the neutrality principle
government makes a value of Lukumi and Fraternal Order of Police
judgment in favor of secular because it ‘devalues’ Orthodox Jewish
motivations, but not reasons for posting items on utility poles
religious motivations, the by ‘judging them to be of lesser import
government’s actions must than nonreligious reasons,” and thus
survive heightened scrutiny. ‘single[s] out’ the plaintiffs’ religiously
-7-
motivated conduct for discriminatory U.S. at 546. Similarly, a law must satisfy
treatment.” Id. at 168 (quoting Lukumi, strict scrutiny if it permits individualized,
508 U.S. at 537, and Fraternal Order of discretionary exemptions because such a
Police, 170 F.3d at 364-65 (footnote regime creates the opportunity for a
omitted)). facially neutral and generally applicable
standard to be applied in practice in a way
The teaching of Smith, Lukumi,
that discriminates against religiously
Fraternal Order of Police, and Tenafly may
motivated conduct. Lukumi, 508 U.S. at
be summarized as follows. The Free
537; Smith, 494 U.S. at 884, Fraternal
Exercise Clause forbids any regulation of
Order, 170 F.3d at 364-65.
beliefs as such. See Lukumi, 508 U.S. at
533; Smith, 494 U.S. at 877. On the other B.
hand, with the exceptions noted above, a
The fee requirement at issue here
“neutral” and “generally applicable” law
fails the general applicability requirement
that burdens conduct regardless of whether
for two reasons. First, the Game Code
it is motivated by religious or secular
creates a regime of individualized,
concerns is not subject to strict scrutiny.
discretionary exemptions that is not
See Lukumi, 508 U.S. at 546; Smith, 494
materially distinguishable from those that
U.S. at 878. A law is “neutral” if it does
tr igge r e d s t r ic t s c ru t i n y in th e
not target religiously motivated conduct
unemployment compensation cases.
either on its face or as applied in practice.
Under the laws involved in those cases,
See Lukumi, 508 U.S. at 533-40; Tenafly,
benefits were generally denied if a person
309 F.3d at 167. A law fails the general
had quit or refused work, but
applicability requirement if it burdens a
individualized exemptions were available
category of religiously motivated conduct
for persons who had quit or refused work
but exempts or does not reach a substantial
for “good cause.” See Smith, 494 U.S. at
category of conduct that is not religiously
884. Under 34 Pa. Cons. Stat. Ann. §
motivated and that undermines the
2901(d), a person may obtain a waiver
purposes of the law to at least the same
from the fee requirement if the person
degree as the covered conduct that is
shows “hardship” or “extraordinary
religiously motivated. Lukumi, 508 U.S.
circumstances” and the w aiver is
at 543-46; Fraternal Order of Police, 170
consistent with “sound game or wildlife
F.3d at 364-66. If a law burdening
management activities or the intent of [the
religiously motivated conduct is not
Game and W ildlife Code].” Blackhawk
neutral and generally applicable it must
does not claim that he is entitled to an
satisfy strict scrutiny. See Lukumi, 508
e x e m p t i o n f r o m t h e “ h a rd s h i p ”
U.S. at 546; Smith 494 U.S. at 878.
requ ireme nt, and the regulation’s
Accordingly, it must serve a compelling
remaining requirements – consistency with
government interest and must be narrowly
sound game or wildlife management
tailored to serve that interest. Lukumi, 508
activities or the intent of Code – are
-8-
sufficiently open-ended to bring the
regulation within the individualized
exemption rule.
The Commonwealth contends, natural state within the
however, that the regulation categorically Commonwealth. The only
rules out waivers for persons, like exception would be where
Blackhawk, who wish to keep animals for such activity is done with
religious reasons. This is so, the the intent of reintroducing
Comm onw ealth maintains, because those animals - or their
keeping animals for religious reasons is offspring - into the wild; the
not consistent with state wildlife policy. In animals are members of an
s u p p o r t o f t h is a r g u m e n t , t h e endangered species; or the
Commonwealth relies on the following keeping of the animals in
passage from the declaration of a Game captivity provides some
Commission official: other tangible benefit for the
welfare and survival of
The L egislature has
Pennsylvania’s existing
d el e g a te d t h e G a m e
wildlife population.
Commission the
responsibility to “protect, App. 121-22 (emphasis added).
propagate, manage and
This passage is insufficient to show
preserve the game or
that 34 Pa. Cons. Stat. Ann. § 2901(d)
wildlife of this
does not create a regime of discretionary,
Commonwealth.” 34 Pa.
individualized exemptions under which
C.S. § 321. The Game
Blackhawk might qualify if his conduct
C o m m i s s io n n o r m a l l y
were not religiously motivated. The
considers the keeping of live
italicized phrases show that the Game
animals in captivity as being
Commission’s polic y does not
inconsistent with sound
categorically disfavor the keeping of wild
g a m e a nd w ildlife
animals in captivity. Although the
management, or the overall
declaration suggests that the keeping of
purpose of the Game Code.
wild animals is inconsistent with state
This is because in general
wildlife policy unless doing so provides a
keeping animals in captivity
“tangible benefit” for the state’s wild
does not provide any
animals, this is hardly a self-defining
positive benefit to the
concept, and the Commonwealth has not
welfare of populations of
explained what the concept means.
wildlife which live in their
-9-
Moreover, under 34 Pa. Cons. Stat. Ann. § interests served by the fee provision to at
2901(d), a person seeking a waiver need least the same degree as would an
not show that the waiver would be exemption for a person like Blackhawk.
“consistent with sound game or wildlife
The Commonwealth suggests that
management activities.” Instead, a person
the fee requirement serves two main
seeking a waiver may show that it would
interests: it brings in money and it tends to
be “consistent with . . . the intent of [the
discourage the keeping of wild animals in
Game and Wildlife Code],” id., and the
captivity, wh ich, as n oted, the
Code clearly does not embody a firm or
Commonw ealth generally views as
uniform policy against keeping wild
undesirable. As the Commonwealth’s
animals in captivity. For one thing, it
brief puts it, “‘in general keeping animals
allows anyone to keep wild animals if they
in captivity does not provide any positive
pay a $50 or $100 fee. See 34 Pa. Cons.
benefit to the welfare of populations of
Stat. Ann. § 2904. These modest fees,
wildlife which live in their natural state
which are comparable to many municipal
within Pennsylvania.” Appellants’ Br. at
dog license fees, can hardly be viewed as
12.
expressing a hard policy against the
keeping of wild animals. Furthermore, the The exemptions for “nationally
Code provides categorical exemptions recognized circuses” and zoos work
from the fee requirement for entities such against these interests to at least the same
as zoos and “nationally recognized degree as the type of exemption that
circuses.” See 34 Pa. Cons. Stat. Ann. § Blackhawk seeks. The state’s interest in
2965(a)(1)-(3). These exemptions serve raising money is undermined by any
the Commonw ealth’s interests in exemption, and the Commonwealth has
promoting commerce, recreation, and not argued, much less shown, that
education, and consequently, a waiver that religiously based exemptions, if granted,
furthered these or analogous interests would exceed the exemptions for
might be viewed as consistent with the qualifying zoos and circuses and
Code’s intent. In sum, then, the waiver individual waivers under 34 Pa. Cons. Stat.
mechanism set out in 34 Pa. Cons. Stat. Ann. § 2901(d) for persons with secular
Ann. § 2901(d) creates a regime of motivations.
individualized, discretionary exemptions
The exemptions for nationally
that triggers strict scrutiny.
recognized circuses and zoos also work
The categorical exemptions in 34 against the Commonwealth’s asserted goal
Pa. Cons. Stat. Ann. § 2965(a) for zoos of discouraging the keeping of wild
and “nationally recognized circuses” animals in captivity except where doing so
likewise trigger strict scrutiny because at provides a “tangible” benefit for
least some of the exemptions available P e n n s y lv a n i a ’ s w i l d l if e . The
under this provision undermine the Commonwealth has not explained how
-10-
circuses, whether nationally recognized or Fraternal Order of Police. There, police
not, provide tangible benefits for animals officers were prohibited from wearing
living in the wild in Pennsylvania. beards so that they would all present the
Similarly, except in special circumstances same general image to the public. Since
(for example, if a zoo is conducting officers working undercover are not
research on animals that are indigenous to perceived by the public as police officers,
Pennsylvania or is raising animals to be allowing undercover officers to wear
released into the wild in Pennsylvania), it beards did not undermine the purpose of
is difficult to see how the activities of a the no-beard policy. See Fraternal Order,
zoo provide a tangible benefit for 170 F.3d at 366. As explained above,
Pennsylvania’s wild animals. Yet under however, the exemptions for circuses and
the statute noted above, all zoos are zoos work against both of the interests that
exempted. Accordingly, the challenged the permit fee is said to serve.
f e e p r o v i s io n s a r e s u bs tantiall y
C.
“underinclusive” with respect to its
asserted goals, and they thus fail the In arguing that the fee provision
requirement of general applicability. should not be subjected to strict scrutiny,
the Commonwealth takes the position that
The Commonwealth contends that
the fee does not violate Blackhawk’s free
the exemptions for circuses and zoos are
exercise rights because it does not prohibit
“analogous to the prescription exception in
him from engaging in religiously
Smith and the undercover uniform
motivated conduct but merely obligates
exception” in Fraternal Order of Police,
him to pay a modest annual fee. The
but this argument is flawed. Appellants’
Commonwealth suggests that many laws
Br. at 24 (footnote omitted). In Smith, the
imposing user fees and other similar fees
state law prohibited the knowing or
would be thrown into disarray if every
intentional possession of a controlled
person claiming a religious objection to a
substance unless the substance was
fee could obtain a waiver. The
prescribed by a doctor. See 494 U.S. at
Commonwealth further argues that, if it
874. The purpose of drug laws is to
granted waivers for persons who keep wild
protect public health and welfare. See id.
animals for religious reasons, it would be
at 904 (O’Connor, J., concurring in the
required under the Establishment Clause to
judgment). However, when a doctor
grant comparable waivers for persons who
prescribes a drug, the doctor presumably
wish to keep such animals for secular
does so to serve the patient’s health and in
reasons.
the belief that the overall public welfare
will be served. Therefore, the prescription These arguments ignore the content
exception in Smith did not undermine the of the statutes that are before us. We are
purpose of the state’s drug laws. The same not presented here with a neutral and
is true of the undercover exception in generally applicable user fee that is
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uniformly imposed without allowing are similar to provisions of the Internal
individualized exemptions. Under Smith, Revenue Clause involved in Adams v.
such a scheme (barring the applicability of C.I.R., 170 F.3d 173 (3d Cir. 1999). In
one of the exceptions noted above) would Adams, a taxpayer did not pay taxes
not trigger strict scrutiny, and a person because she had a religious objection to
seeking to be excused from paying the fee the use of tax revenue for miliary
on religious grounds would be unlikely to purposes, and the IRS assessed
prevail. Here, by contrast, we are deficiencies and penalties against her. Id.
confronted with a scheme that features at 174-75. The taxpayer argued that
both individualized and categorical secular requiring her to pay taxes substantially
exemptions, and it is these that trigger burdened her free exercise of religion and
strict scrutiny. Moreover, because the violated a provision of the Religious
state statute permits individualized Freedom Restoration Act (“RFRA”), 42
exemptions for entirely secular reasons, we U.S.C. § 2000bb-1, which remained
see no plausible ground on which it could applicable to the federal government
be argued that the Establishment Clause despite City of Boerne v. Flores, 521 U.S.
precludes equal treatment for persons who 507 (1997). See 170 F.3d at 175. Under
wish to keep animals for religious reasons. RFRA, a law that substantially burdens the
exercise of religion must represent the
The Comm onw ealth also
least restrictive means of furthering a
misapprehends the nature of Blackhawk’s
compelling government interest. 42
claim. Blackhawk did not ask for a waiver
U.S.C. § 2000bb-1. Looking to pre-Smith
simply because he possessed the bears for
cases involving free exercise challenges to
religious reasons. Rather, he asked for a
the collection of taxes, Adams held that
waiver “because of his Native American
the RFRA standard was met. 175 F.3d at
beliefs and because the fee would cause
175-80. The Adams panel then rejected
[him] hardship.” 225 F. Supp. 2d at 470
the taxpayer’s argument that she had met
(emphasis added). In addition, the
the statutory requirements needed to avoid
Commission did not deny the waiver on
penalties and additions to tax. See id. at
the ground that Blackhawk did not
180-81. Under the Internal Revenue Code,
establish financial hardship. Instead, the
these penalties and additions could be
Commission concluded that “Blackhawk
avoided if the taxpaye r s ho w ed
would not be entitled to an exemption
“reaso nable c a u s e ” o r “ u n u s u a l
regardless of his financial circumstances.”
circumstances and unfairness.” See 26
Id. (emphasis added). Thus, although the
U.S.C. § 6651(a) (no penalty for failure to
Commonwealth argues at some length that
file if taxpayer demonstrates “reasonable
Blackhawk could scrape together the
cause”); 26 U.S.C. § 6654(e)(3) (no
money to pay the fee, that question is not
addition for underpayment of estimated tax
before us. Finally, the Commonwealth
where failure is due to “unusual
argues that the fee provisions at issue here
circumstances” and addition would be
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“against equity and good conscience”). to at least the same degree as would an
Invoking a “well established line of cases exemption for those in the class of the
involving challenges to the collection of person mounting the challenge. The
taxes on religious grounds,” 170 F.3d at Adams footnote did not go on to address
181, the panel held in the body of its this latter argument, but in any event the
opinion that the taxpayer was ineligible for argument was doomed by the panel’s
relief under the provisions on which she discussion of the RFRA issue. The panel’s
relied. Id. Then, in a footnote, Adams discussion of that issue made it clear that
quickly rejected the taxpayer’s contention the relevant Code provisions met strict
that these provisions created a mechanism scrutiny because they served a compelling
for individual exemptions similar to that in interest (“the ‘uniform, mandatory
the unemployment compensation cases and participation in the Federal income tax
that “the failure to extend those system,’” 170 F.3d at 178 (citation
exemptions to a case of religious hardship omitted), and were narrowly tailored to
constitute[d] discrimination on the basis of serve that interest in the sense relevant in
religious belief.” Id. at 181 n.10. Adams this context. See id. at 179-80.
held that the provisions of the Internal
Properly understood, therefore, the
Revenue Code on which the taxpayer
Adams footnote does not support the
relied did not create a scheme of individual
Commonwealth’s position here. In this
exemptions under which she might have
case, as previously explained, 34 Pa. Cons.
qualified if she had refused to file for
Sat. Ann. § 2901(d) does not categorically
secular, as opposed to religious, reasons.
exclude persons wishing to keep animals
Id. On the contrary, as previously noted,
for religious reasons. In addition, 34 Pa.
Adams held that these provisions are
Cons. Stat. Ann. § 2965(a)(1)-(3) contains
categorically inapplicable to the taxpayer
secular exemptions that preclude the fee
for facially neutral reasons. Id.
scheme from satisfying the requirement of
The Adams footnote stands for the general applicability. As a result, the fee
proposition that the free exercise rule provisions must satisfy strict scrutiny.
regarding individual exemptions does not
III.
apply if the class of persons who may seek
such an exemption is defined in facially In order to survive strict scrutiny,
neutral terms and the person challenging the fee scheme “must advance interests of
the scheme does not fall within that class. the highest order and must be narrowly
In that situation, the person challenging the tailored in pursuit of those interests.”
scheme must argue instead that the scheme Lukumi, 508 U.S. at 546 (internal
fails the requiremen t of gen eral quotation marks omitted). In this case, the
applicability because exempting the class Game Commission asserts that the fee
of persons who fall within the statutory scheme serves two compelling interests:
exemption undermines the statute’s goals (1) “promot[ing] the welfare and
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prosperity of wildlife populations” and (2) the possession of wild animals as a matter
“maintaining the fiscal integrity of its “of the highest order.”
permit fee system.” Appellants’ Br. at 28.
Much the same is true with respect
It is doubtful that these interests to the Commonwealth’s asserted interest in
qualify as compelling. In Lukumi, 508 the financial integrity of the fee system.
U.S. at 546-47, the Court held that Because the Commonwealth makes
“[w]here government restricts only waivers available for persons seeking to
conduct protected by the First Amendment keep animals for secular reasons, the
and fails to enact feasible measures to Commonwealth plainly does not regard
r e str i c t other conduct prod ucin g waivers as a great threat.
substantial harm or alleged harm of the
Furthermore , e ve n if the
same sort, the interest given in justification
Commonwealth’s asserted interests are
of the restriction is not compelling.” Here,
compelling, the fee scheme is not narrowly
the fee scheme has precisely this flaw.
tailored to further them. If the
Denying fee exemptions to otherwise
Commonwealth wishes to reduce the
qualified persons who wish to keep
number of wild animals held in captivity
animals for religious reasons may produce
or to reduce the number held by persons
a small decrease in the total number of
who cannot afford a $100 or $50 annual
wild animals held in captivity, but if the
fee (and these are the only effects that
Commonwealth regarded it as a matter “of
denying the exemptions at issue can have),
the highest order” to reduce the number of
the scheme is substantially underinclusive
wild animals in captivity, it could do much
for the reasons already set out. As a result,
more. For one thing, it could increase the
the scheme cannot satisfy strict scrutiny.
fees for menagerie and exotic wildlife
possession permits, now set at $100 and We therefore affirm the injunction issued
$50 per year respectively, to levels that by the District Court.
would provide a substantial disincentive
IV.
for those who are not poor. Similarly, if
the Commonwealth believes that persons We proceed to address the question
who cannot afford a $100 or $50 annual of the individual defendants’ liability for
permit fee should not keep wild animals money damages. The District Court
because such persons are likely to find it granted summary judgment to Merluzzi
difficult to provide adequate care for the and Hambley on the ground that they “did
animals, the Commonwealth could do not participate in the decision to deny
away with all “hardship” waivers. Black Hawk an exemption” and did not
Because the Commonwealth sets its fees at “‘direct[] others to violate’” his rights.
modest levels and provides for “hardship” Black Hawk, 225 F. Supp. 2d at 479
waivers, the Commonwealth clearly does (brackets in original). The Court excluded
not regard the objective of discouraging Ross, Littwin, and Overcash from this
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analysis, because Ross “had ‘actual exemptions, a reasonable officer in the
knowledge’ and acquiesced in the decision position of the defendants could have
to deny Black Hawk an exemption,” and concluded otherwise. Section 2901(d) is
because Littwin and Overcash conceded more structured than the unemployment
that they “were personally involved in the compensation statutes, which permitted
decision to deny Black Hawk an exemptions for “good cause,” see Smith,
exemption.” Id. (citing Andrews v. City of 494 U.S. at 884, and a reasonable officer
Philadelphia, 895 F.2d 1469, 1478 (3d Cir. could have viewed § 2901(d) as analogous
1990) (holding that supervisor liability can for present purposes to the Internal
be established “‘through allegations of Revenue Code provisions that Adams held
personal direction or of actual knowledge did not provide for individual exemptions.
and acquiescence’”) (quoting Rode v. See 170 F.3d at 181 n.10.
Dellarciprete,
845 F.2d 1195, 1207 (3d
The meaning of the general
Cir. 1988))). Nevertheless, the Court
applicability principle was also not clearly
determined that all three remaining
developed in the governing cases at the
individual defendants were entitled to
time in question. Smith did not explain
qualified immunity.
how to identify laws that fail the test, and
We hold that all of the defendants Lukumi, while providing useful guidance,
were entitled to qualified immunity, and explicitly disclaimed any intention of
we therefore affirm the order of the “defin[ing] with precision . . . whether a
District Court on this basis. A government prohibition is of general application.” 508
officer defendant sued for a constitutional U.S. at 543. Moreover, our decisions on
violation is entitled to qualified immunity March 3 and 4, 1999, in Fraternal Order of
if a reasonable officer could have believed Police and Adams could have reasonably
that the challenged conduct was lawful been interpreted as sending conflicting
under the circumstances. Anderson v. signals. As just discussed, the provisions
Creighton, 483 U.S. 635, 641 (1987). of the Internal Revenue Code at issue in
Qualified immunity “provides ample Adams could have been reasonably
protection to all but the plainly regarded as similar to the provisions of the
incompetent or those who knowingly Pennsylvania Game and Wildlife Code
violate the law.” Malley v. Briggs, 475 involved here, but we held that the Internal
U.S. 335, 341 (1986). See also Saucier v. Revenue Code provisions did not create a
Katz,
533 U.S. 194, 202 (2001). regime of individual exemptions. The
previous day, in Fraternal Order of Police,
In this case, the governing
we had explained that the individual
precedents were complex and developing.
exemption rule is simply one application
Although we now hold that the waiver
of the broader general-applicability
procedure in 34 Pa. Cons. Stat. Ann. §
requirement. See 170 F.3d at 365-66.
2901(d) is sufficiently open-ended to
Thus, reading Adams in light of Fraternal
constitute a system of individual
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Order of Police, a reasonable officer could
have been led to read Adams as holding
that the Internal Revenue Code provision
also satisfied the general applicability
requirement. Not surprisingly, Adams is a
centerpiece of the Commonwealth’s
argument in this appeal in support of the
constitutionality of the de nial of
Blackhawk’s waiver request. Although we
find Adams to be distinguishable for the
reasons explained above, a reasonable
officer in the position of the defendants,
after reviewing Adams and the other
leading cases that had been decided at the
time, could have concluded that the denial
was constitutional.
IV.
After considering all of the
arguments raised in the appeal and cross-
appeal, we affirm the judgment of the
District Court in all respects.
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