Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-25-2005

Gilles v. Davis
Precedential or Non-Precedential: Precedential

Docket No. 04-2542




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                                       PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT



                     No. 04-2542



       JAMES G. GILLES; TIMOTHY PETIT
                                  Appellants
                     v.

          SERGEANT GREGORY DAVIS,
        Indiana University Police Department;
     OFFICER CHRISTOPHER D. GOENNER,
        Indiana University Police Department;
    TERRY APPOLONIA, Director, Student Life,
         Indiana University of Pennsylvania;
RHONDA H. LUCKEY, ED.D., Associate President of
Student Affairs for Indiana University of Pennsylvania;
WILLIAM MONTGOMERY, Director of Public Safety,
          Indiana University of Pennsylvania



    On Appeal from the United States District Court
       for the Western District of Pennsylvania
         D.C. Civil Action No. 03-cv-00529
             (Honorable Arthur J. Schwab)
                    Argued March 8, 2005

              Before: SCIRICA, Chief Judge,
            ROTH and FUENTES, Circuit Judges

                  (Filed October 25, 2005)

J. MICHAEL CONSIDINE, JR., ESQUIRE (ARGUED)
12 East Barnard Street, Suite 100
West Chester, Pennsylvania 19382
      Attorney for Appellants

GREGORY R. NEUHAUSER, ESQUIRE (ARGUED)
SARAH C. YERGER, ESQUIRE
Office of Attorney General of Pennsylvania
15th Floor, Strawberry Square
Harrisburg, Pennsylvania 17120
       Attorneys for Appellees



                 OPINION OF THE COURT



SCIRICA, Chief Judge.

      In this civil rights action for damages under 42 U.S.C. §
1983, plaintiffs were arrested for disorderly conduct on the

                              2
campus of Indiana University of Pennsylvania, a state
university. At issue in this First Amendment suit is whether the
arresting officers are entitled to qualified immunity. Also at
issue is whether resolution of a criminal charge under
Pennsylvania’s “Accelerated Rehabilitative Disposition”
program bars a subsequent § 1983 claim. The District Court
granted defendants summary judgment on all claims. We will
affirm.

                               I.

         Although with no formal religious training, James Gilles
is a self-styled “campus-evangelist” who has appeared at college
campuses across the country since 1982. He preaches against
what he calls the “big four”—“drugs, sex, booze, and rock and
roll.”

      Around noon, October 5, 2001, Gilles appeared and
began preaching in the open air at the Oak Grove, a busy area
open to the public on the campus of Indiana University of
Pennsylvania. With him were some twenty-five members of the
“Campus Ministry,” 1 including Timothy Petit, with a video-
camera. Gilles preached on the evils of pre-marital sex,




  1
    According to Gilles’ deposition, the Campus Ministry is his
“business” and sole source of employment. He states that it is
a sole proprietorship, not a non-profit entity.

                               3
drinking, and homosexuality. The District Court estimated a
crowd of 75-100 students gathered.2

        In a provocative manner, Gilles accosted the crowd,
preaching that Indiana University of Pennsylvania’s student
body was full of “fornicators,” “whores,” “drunken little devils,”
“drunkards,” and “drugs, sex, booze, and rock and roll freaks.”
His speech and manner drew reactions from the students. One
threw an apple core at Gilles. Another shouted “get your
fucking God off our campus.” This set off some name-calling.
Gilles asked the man if he was a communist, which drew the
retort, “you’re a small minded man.” Gilles called another a
“high school flunky.” When someone approached to tell Gilles
he was interrupting classes, Gilles called him “cigarette breath.”
The man responded, “don’t be belittling me. It is Goddamn
campus policy . . . You will not preach while classes are in
session.” Gilles retorted, “oh yes I will, devil.”

       The crowd became more animated in response to Gilles’
invective against homosexuals. Gilles cautioned the students to
“watch out [because] the homosexuals are after you on this
campus” and pronounced that “nothing is lower than a lesbian.”
Gilles warned that “homosexuals and lesbians are headed for
hell” and that “there is no such thing as a Christian lesbian . . .

  2
   We recount the events in the light most favorable to the non-
moving party. In this case, one of the plaintiffs videotaped the
incident. The parties do not dispute its accuracy and we rely
upon it.

                                4
[or] Christian homosexual.” One woman volunteered that she
was a Christian lesbian. Gilles took a pejorative tone, taunting,
“oh, my, you ma’am are most confused. She thinks she’s a
Christian lesbo. She’s a lesbian for Jesus.” Gilles asked the
woman, “do you lay down with dogs? Are you a bestiality
lover? . . . Can you be a bestiality lover and a Christian also?”
This engendered angry responses from the crowd, including one
who shouted at Gilles, “I don’t know, ask your mom.”

       Apparently, someone called the campus police, and
Sergeant Gregory Davis and Officer Christopher Goenner of the
Indiana University of Pennsylvania police force responded to the
reported “near riot taking place.” Davis heard Gilles call one
person a “lesbian” and “homosexual” and said that some
members of the crowd complained to him that Gilles was
singling out individuals, calling them names. After Davis
approached Gilles and had a brief conversation, he arrested
Gilles for disorderly conduct, among other charges. Davis
handcuffed Gilles and escorted him to the police car.

       Davis transported Gilles to Indiana University of
Pennsylvania’s Department of Public Safety building, where he
was held for three to four hours. Gilles contends he complained
that the handcuffs were too tight and were not removed for a
few hours. He never sought out a physician for treatment.

       Gilles was charged with disorderly conduct, failure of
disorderly persons to disperse, defiant trespass, riot and
violating Pennsylvania’s Wiretap Act (he had recorded


                               5
the incident with the police using a dictaphone hidden in his
pocket). He was taken to the Indiana County Correctional
Facility. Four days later on October 9, 2001, he posted a $5,000
bond and was released.3

        Timothy Petit, who videotaped Gilles’ activity, was also
arrested. Officer Goenner confiscated his video-camera at the
direction of Officer Davis. Petit was charged with resisting
arrest, disorderly conduct, and failure of disorderly persons to
disperse, and was released from custody later that day. Petit
entered into the “Accelerated Rehabilitative Disposition”
(“ARD”) program, which permits expungement of the criminal
record upon successful completion of a probationary term.

        After the arrests, Bradley Hoffman, a member of Campus
Ministry, inquired with the university about obtaining a
solicitation permit. Hoffman submitted a “Request/Permit for
Use of Campus Space for Soliciation” to “pass [] out Gospel
Tracts” and “shar[e] . . . the Gospel.” The permit was rejected
by Terry Appolonia, the director of the Center for Student Life.
An e-mail from Appolonia’s supervisor, Rhonda Luckey

   3
     Under the Pennsylvania Rules of Criminal Procedure, ten
percent of the bond amount may be sufficient for release. Pa. R.
Crim. P. 528(c) (“After determining the amount of the monetary
condition, the bail authority may permit the deposit of a sum of
money not to exceed 10% of the full amount of the monetary
condition if he or she determines that such a deposit is sufficient
to ensure the defendant’s appearance and compliance.”).

                                6
(Associate President of Student Affairs), advised that she had
“grave concerns” about the behavior of the group given the
earlier incident.

        At a preliminary hearing on November 28, 2001, a
District Justice held Gilles on the charges of disorderly conduct,
failure of disorderly person to disperse, disorderly conduct and
defiant trespass. The charges of riot and violating the
Pennsylvania Wiretap Act were dismissed. On December 27,
2002, the Court of Common Pleas of Indiana County,
Pennsylvania, granted Gilles’ petition for a writ of habeas
corpus and dismissed all the remaining criminal charges.

       Gilles brought the following claims under § 1983: (1)
malicious prosecution against Sergeant Davis, (2) false arrest
against Sergeant Davis, and (3) excessive force against Sergeant
Davis, based on Gilles’ assertion that the handcuffs were
unnecessarily tight. Gilles and Petit brought these claims under
§ 1983: (1) First Amendment violations by Officers Davis and
Goenner, (2) First Amendment violations by Appolonia and
Luckey, claiming Indiana University of Pennsylvania’s permit
policy was viewpoint based and standardless, vesting unbridled
discretion in Appolonia and Luckey, and (3) First Amendment
violation by William Montgomery, the Director of Public Safety
who supervises the Indiana University of Pennsylvania police
department, for failure to train and monitor police and officials
charged with permit decision making. Gilles and Petit requested
a declaratory judgment that Indiana University of
Pennsylvania’s permit policy is in violation of the First

                                7
Amendment. In addition, Gilles and Petit sought punitive
damages against Sergeant Davis and a state-law replevin for
return of the confiscated videotape.

        The District Court granted defendants summary judgment
on all claims, and declined to exercise supplemental jurisdiction
over the remaining state law replevin claim.

                               II.

       The District Court had jurisdiction under 28 U.S.C. §
1331 and we have jurisdiction under 28 U.S.C. § 1291. The
standard of review is plenary over a grant of a motion for
summary judgment. Camiolo v. State Farm Fire & Cas. Co.,

, 354 (3d Cir. 2003) (internal citations omitted).
The District Court’s grant of summary judgment in favor of the
appellees will be affirmed if it appears that “there is no genuine
issue as to any material fact and that they are entitled to a
judgment as a matter of law.” 

Gilles’ Claims

       1. First Amendment

        With respect to Gilles’ malicious prosecution, false
arrest, and First Amendment claims, the District Court held that
Sergeant Davis was entitled to qualified immunity.
“[G]overnment officials performing discretionary functions
generally are shielded from liability for civil damages insofar as


                                8
their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.” Harlow v. Fitzgerald, 

, 818 (1982). The
qualified immunity standard “gives ample room for mistaken
judgments by protecting all but the plainly incompetent or those
who knowingly violate the law.” Hunter v. Bryant, 

, 229 (1991) (internal quotations omitted). In determining
qualified immunity, we first ask whether “the facts alleged,
viewed in the light most favorable to the party asserting the
injury, show that the officer’s conduct violated a constitutional
right.” Curley v. Klem, 

, 277 (3d Cir. 2002). If so,
we then ask whether it “would be clear to a reasonable officer
that his conduct was unlawful in the situation he confronted.”

v. Katz, 

, 202 (2001)).

       Whether it would have been clear to a reasonable officer
that probable cause justified the arrest requires an examination
of the crime at issue, disorderly conduct. Gilles was charged
with disorderly conduct under Pennsylvania Criminal Code, 18
Pa. C.S. § 5503(a). The statute provides:

       (a) Offense defined. – A person is guilty of
       disorderly conduct if, with intent to cause public
       inconvenience, annoyance or alarm, or recklessly
       creating a risk thereof, he:

              (1) engages in fighting           or
              threatening, or in violent        or
              tumultuous behavior;


                               9
              (2) makes unreasonable noise;
              (3) uses obscene language, or
              makes an obscene gesture; or
              (4) creates a hazardous or
              physically offensive condition by
              any act which serves no legitimate
              purpose of the actor.

Under the statute, whether “words or acts rise to the level of
disorderly conduct hinges upon whether they cause or
unjustifiably risk a public disturbance.” Commonwealth v.
Hock, 

, 946 (Pa. 1999). When the regulated
conduct consists of speech, however, the statute must “be
carefully drawn or authoritatively construed to punish only
unprotected speech and not be susceptible of application to
protected expression.” Johnson v. Campbell, 

, 211
(3d Cir. 2003) (quoting Gooding v. Wilson, 

, 522
(1972)); Commonwealth v. Mastrangelo, 

, 58 (Pa.
1980) (“disorderly conduct statute may not be used to punish
anyone exercising a protected First Amendment right”). Speech
that does not receive First Amendment protection, in turn,
“include[s] the lewd and obscene, the profane, the libelous, and
the insulting or ‘fighting’ words[.]” Chaplinsky v. New
Hampshire, 

, 572 (1942).

       Under the first step of the qualified immunity analysis,
the issue is whether Davis’ conduct violated Gilles’ First




                              10
Amendment rights.4 The District Court held Gilles’ speech
constituted “fighting words,” “those which by their very
utterance inflict injury or tend to incite an immediate breach of
the peace.” Mem. Op. at *13-15 (W.D. Pa. Apr. 22, 2004)
(quoting Chaplinsky, 315 U.S. at 571-72);5 see also Texas v.


   4
     Whether Gilles’ speech was protected depends, in part, on
whether he had a right to speak at the Oak Grove. We do not
believe Indiana University of Pennsylvania’s solicitation policy
required Gilles to obtain permission or approval to use the Oak
Grove area. Regarding “public outdoor areas,” which on this
record appears to include the Oak Grove area, the policy states,
“[a]ll activities involving commercial solicitation and/or fund-
raising for noncommercial purposes in public outdoor areas
must be requested and approved a minimum of ten days in
advance by the Center for Student Life.” Gilles’ conduct does
not constitute commercial solicitation or fund-raising for
noncommercial purposes. This conclusion finds support in the
deposition of Terry Appolonia, the Director of the Center for
Student Life in charge of granting and denying solicitation
requests. Appolonia conceded that “[t]he policy does not state
an application is needed for noncommercial activities in outdoor
locations.”
       5
     Applying this standard, the Pennsylvania Supreme Court
held that a disorderly conduct conviction did not run afoul of the
First Amendment where the criminal defendant had followed a
meter maid for two consecutive days, shouting vulgarities at her

                               11
Johnson, 

, 409 (1989) (“To be punishable, words
must do more than bother the listener; they must be nothing less
than an invitation to exchange fisticuffs.”) (quoting 

). Put another way, fighting words are “likely
to provoke the average person to retaliation, and thereby cause
a breach of the peace.” Texas v. 

(quoting 

).

        We believe that much of Gilles’ speech was protected
under the First Amendment. Crucial to this determination is
that we view the facts in the light most favorable to Gilles (the
non-moving party) under the summary judgment standard and
the first prong of the qualified immunity analysis.

        Of Gilles’ questionable speech, some was derogatory
language generically directed to the crowd (e.g., “by definition,
there are thousands of fornicators on this campus,” “drunkards
are everywhere on this campus”). This type of language, when
not personally directed at a particular member of the audience,
is not likely to incite an immediate breach of the peace. See
Cohen v. California, 

, 20 (1971) (noting that
fighting words are “personally abusive epithets . . . directed to
the person of the hearer”) (internal quotations omitted). Gilles
also specifically directed insults to certain people (“cigarette


in a threatening manner. 

. But a
disorderly conduct conviction was not appropriate for a non-
threatening, profane remark directed at a police officer. 

.

                               12
breath,” “devil,” “communist,” etc.).          But on summary
judgment, at least, we believe this speech in this context could
be reasonably viewed as unpleasant but petty, and not
sufficiently provocative to constitute fighting words. It bears
noting that the videotape reveals that Gilles’ speech and manner
were in part and to some degree lacking in bite. For example,
Gilles stated that “every Mormon is damned to hell,” but added
a comical overtone by finishing the sentence, “including, Donnie
and Maria Osmond.” His manner varied between hostile and
jaunty, and sometimes exuded an air of theatrical exaggeration
(e.g., Gilles emphasized a point by fully extending his arms in
front of him towards the sky, projecting his voice as one might
do in a play).

        Nonetheless, Gilles’ epithets directed at the woman who
identified herself as a Christian and a lesbian (“Christian lesbo,”
“lesbian for Jesus,” “do you lay down with dogs,” “are you a
bestiality lover”) were especially abusive and constituted
fighting words. Where part of speech constitutes fighting
words, the police may arrest for disorderly conduct even though
other parts of the speech may be less provocative. See, e.g.,
Ovadal v. City of Madison, Wisconsin, 

, 535 (7th
Cir. 2005) (“conduct which is in fact disorderly is not insulated
because it is perpetrated while engaged in a protest
demonstration”) (internal quotations omitted).

       Even if the lesbian/bestiality invectives did not constitute
fighting words, we believe Sergeant Davis is entitled to
qualified immunity. Under the second step of the analysis, a

                                13
police officer is entitled to qualified immunity unless it would
have been clear to a reasonable officer there was no probable
cause to arrest. See Paff v. Kaltenbach, 

, 437 (3d
Cir. 2000) (“If there are cases that would make it apparent to a
reasonable officer in [the arresting officer’s] position that
probable cause was lacking, qualified immunity is not
available.”) (internal quotations omitted); see also Kijonka v.
Seitzinger, 

, 648 (7th Cir. 2004) (“whether there
was any reasonable basis to suppose there was probable cause
. . . is the test for qualified immunity”).

        Gilles’ speech was rude, mocking, confrontational, and
insulting.6 When viewed on the videotape, the crowd responses


  6
    As noted, in addition to reviling the student body in general,
Gilles initiated and exchanged insults with individual students.
As noted, he asked one person if he was a communist and
another if he was a “high school flunky.” When told he was
interrupting class, Gilles called the interlocutor “cigarette
breath” and “devil.” The crowd’s reaction varied, but included
some notably hostile reactions. An unidentified person threw an
apple core at Gilles, striking his briefcase. Two other persons
shouted at Gilles, “get your fucking God off our campus” and
“[you’re a] small minded man.” There was a confrontation with
the person Gilles called “cigarette breath,” who, upset,
approached Gilles up close, saying, “who are you, brown tie,
and ugly pants? Don’t be belittling me. It is Goddamn campus
policy.”

                               14
span the spectrum from pettiness to genuine hostility. Many in
the crowd were upset and angry with Gilles at the time Officer
Davis intervened.

         The words Gilles directed at the woman who identified
herself as a Christian and a lesbian were abusive, akin to a racial
slur. For a police officer confronting Gilles in the field, with
little time to parse Gilles’ speech, it was not unreasonable to
believe Gilles engaged in disorderly conduct.

        At the least, reasonable minds could disagree whether
Gilles’ speech was protected. Subsequent to his arrest, the
Court of Common Pleas dismissed all charges against Gilles,
including the charge of disorderly conduct. Yet, Gilles has been
convicted before for similar conduct. In a factually similar
incident, the Indiana Court of Appeals upheld a disorderly
conduct conviction for preaching to a crowd at a festival. See
Gilles v. Indiana, 

, 222-23 (Ind. App. 4 Dist.
1988). Holding it was “readily apparent” that Gilles used
fighting words, the court focused on his use of the words
“whores,” “queers,” “AIDS people,” “drunkards,” and “scum of
the earth.” The court reasoned that “Gilles placed his listeners
in categories defined by sexual activity, sexual orientation, and
sexually transmitted disease. This language was inherently
likely to provoke a violent reaction.” 

In any event,
that there is more than one judicial view of Gilles’ conduct
strongly suggests that qualified immunity is appropriate here.




                                15
        Finally, whether it was reasonable to believe there was
probable cause is in part based on the limited information that
the arresting officer has at the time. See BeVier v. Hucal, 

, 127 (7th Cir. 1986) (“probable cause is a function of
information and exigency”); Colbert v. Angstadt, 

352, 360-61 (E.D. Pa. 2001) (holding probable cause to arrest
existed where the facts and circumstances within the arresting
officer’s knowledge were sufficient for a reasonable person to
believe that an offense had been committed). Sergeant Davis
appears to have arrived at the scene fifteen to twenty minutes
after Gilles began to speak. According to Davis, he was
summoned to a “near riot situation.” He briefly spoke with
members of the crowd about what had transpired. According to
Davis, members of the crowd reported to him that “Gilles was
. . . picking people out of the crowd individually and calling
them names and questioning their sexual identity, questioning
their sexual orientation.” We see no reason why Davis’ reliance
on their accounts was unreasonable.

       Taking account of the entire episode and the information
Davis possessed at the time, we hold Davis is entitled to
qualified immunity because it would not have been clear to a
reasonable officer that Gilles did not engage in disorderly
conduct.7 While the Court of Common Pleas held Gilles’


  7
    In addition to holding Sergeant Davis is entitled to qualified
immunity, we hold Gilles’s and Petit’s First Amendment claim
fails against William Montgomery, the Director of Public Safety

                               16
speech was insufficient to constitute disorderly conduct, it does
not necessarily follow that the arresting officers are civilly liable
for the arrest. Qualified immunity encompasses mistaken
judgments that are not plainly incompetent. Hunter v. Bryant,

, 229 (1991). Under qualified immunity, police
officers are entitled to a certain amount of deference for
decisions they make in the field. They must make “split-second
judgments—in circumstances that are tense, uncertain, and
rapidly evolving.” Saucier v. Katz, 

, 204-05


who supervises the Indiana University of Pennsylvania police
department. A supervising authority may be liable under § 1983
for failing to train police officers when the failure to train
demonstrates deliberate indifference to the constitutional rights
of those with whom the officers may come into contact,
notwithstanding the qualified immunity of an officer at the
scene. See City of Canton v. Harris, 

, 388 (1989).
But to establish liability on a failure to train claim under § 1983,
plaintiffs “must identify a failure to provide specific training
that has a causal nexus with their injuries and must demonstrate
that the absence of that specific training can reasonably be said
to reflect a deliberate indifference to whether the alleged
constitutional deprivations occurred.” Reitz v. County of Bucks,

, 145 (3d Cir. 1997). Gilles and Petit have not pled
the necessary elements to state a claim against Montgomery for
failure to train the officers of the Indiana University of
Pennsylvania police department. Accordingly, their claim
against Montgomery fails.

                                 17
(2001). The reasonableness of the officer’s belief should be
judged from that on-scene perspective, not with the perfect
vision of hindsight. Id.; see also Graves v. City of Coeur
D’Alene, 

, 848 n.25 (9th Cir. 2003) (“The qualified
immunity defense recognizes that officers make probable cause
assessments in the field under pressure and therefore affords the
officer leeway, permitting a reasonable mistake without
resulting individual liability of the officer, when the law is not
clearly established.”)

       2. Excessive Force

       The District Court granted summary judgment to
defendants on Gilles’ excessive force claim that his handcuffs
were too tight. In these cases, summary judgment for an officer
who claims qualified immunity is appropriate where, “after
resolving all factual disputes in favor of the plaintiff, [] the
officer’s use of force was objectively reasonable under the
circumstances.” Kopec v. Tate, 

, 777 (3d Cir.
2004) (internal quotations omitted). In Kopec, we reversed the
grant of summary judgment, but cautioned that the “opinion
should not be overread as we do not intend to open the
floodgates to a torrent of handcuff claims.” 

in
Kopec contended he was in extreme pain, which would have
been obvious to the arresting officer. In addition to repeated
complaints about the pain, the plaintiff allegedly fell to the
ground and “began to faint.” 

plaintiff
alleged permanent nerve damage in one wrist, for which a
surgeon treated him for over one year. 

                               18
        Gilles contends that two matters should have alerted
Davis to his alleged pain. First, he notes that he loudly sang
religious songs while in custody, in part, he says, to take his
mind off of the pain. Even if true, it is not necessarily
objectively reasonable to deduce from Gilles’ singing that the
handcuffs were causing him pain. Furthermore, Gilles testified
that the purpose of his singing was “primarily to rejoice in the
fact that I was being persecuted for righteousness’ sake for
preaching the Gospel.” Second, Gilles contends he complained
of pain to unidentified officers who allegedly passed the
information to Davis, who allegedly instructed them not to
adjust the handcuffs. Unlike Kopec, where the plaintiff fell to
the ground and fainted with pain, obvious visible indicators of
Gilles’ pain were absent (other than his alleged complaint that
the handcuffs were too tight). As the District Court noted on
viewing the videotape of the arrest, Gilles demonstrated no
expression or signs of discomfort at the time he was handcuffed.
Nor did Gilles seek or receive medical treatment after the fact.
The only doctor Gilles ever saw relating to this incident was on
April 13, 2004, two and a half years after the arrest. At that
time, Gilles did not seek medical treatment, but rather an
“independent medical evaluation.” The plaintiff in Kopec
alleged permanent nerve damage for which a hand-surgeon had
treated him for over a year. In this case, we hold the facts
alleged constitute insufficient evidence as a matter of law for
excessive force by handcuffing.




                              19
       3. Standing

       Gilles and Petit contend the Indiana University of
Pennsylvania permit or registration policy and its application by
Appolonia and Luckey violated their First Amendment rights.
The District Court held Gilles and Petit had no standing to bring
the challenge because they had not applied for a permit.

        The traditional rules of standing require that the plaintiff
has suffered an “injury in fact,” which is “concrete and
particularized” and “actual or imminent.” Lujan v. Defenders of
Wildlife, 

, 560-61 (1992). The District Court held
plaintiffs failed to show they personally suffered some actual or
threatened injury as a result of Indiana University of
Pennsylvania’s permit policy or the application of that policy.
As the District Court found, Gilles and Petit never applied for
nor were they denied a permit. Gilles and Petit appear to argue
that Bradley Hoffman’s after the fact application confers
standing on them. The argument is meritless.

       Under a First Amendment exception to the traditional
standing rules, litigants “are permitted to challenge a statute not
because their own rights of free expression are violated, but
because of a judicial prediction or assumption that the statute’s
very existence may cause others not before the court to refrain
from constitutionally protected speech or expression.”
Broadrick v. Oklahoma, 

, 612 (1973). This
exception is inapplicable to Gilles and Petit. The policy they
challenge does not unduly restrict First Amendment freedoms,


                                20
nor does it deter third parties from engaging in protected
expression . By its terms, it merely allows the university to
“regulate the time, manner, and location of any and all
solicitation activities on campus” so as to ensure such activities
do not “create undue noise or disruption or interfere with the
activities that normally occur in the area in question.”
Accordingly, we hold Gilles and Petit lack standing to challenge
the permit policy.

B. Petit’s Claims

       Timothy Petit sought damages under § 1983 against
Sergeant Davis, Officer Goenner, Indiana University of
Pennsylvania administrators Appolonia and Luckey, and
William Montgomery, the Director of Public Safety who
supervises the Indiana University of Pennsylvania police
department. The District Court held that Petit’s claims were
barred under Heck v. Humphrey, 

(1994). Under
Heck, a § 1983 action that impugns the validity of the plaintiff’s
underlying conviction cannot be maintained unless the
conviction has been reversed on direct appeal or impaired by
collateral proceedings. As the District Court noted, Petit
resolved the charges against him by entering into Pennsylvania’s
Accelerated Rehabilitation Disposition program.8 After a

   8
     At his deposition, Petit stated he pled guilty to disorderly
conduct and that he never appealed that “conviction.” Despite
Petit’s characterization, the District Court and the parties state
that Petit entered into the ARD program. As we discuss, under

                               21
successful probationary period, the charges were expunged from
his criminal record. The District Court found, however, that
under Heck expungement under the ARD Program is not a result
“favorable” to the plaintiff.

       When a criminal defendant is selected for and decides to
participate in the ARD program, he avoids trial and potential jail
time, and receives expungement of the record in exchange for
successfully completing a probationary period. See generally
Pa. R. Crim. P. 300 et seq.; Junod v. Bader, 

, 253-
54 (Pa. Super. Ct. 1983).9 The Comment to Rule 312 of the



Heck, both a guilty plea and an ARD are sufficient to bar a
subsequent § 1983 claim.
  9
    The purpose of the ARD program is to rehabilitate offenders
and promptly dispose of minor criminal charges. See Pa. Crim.
R. 300-20 & Committee Introduction. The program targets first
time offenders charged with minor crimes that appear receptive
to treatment and rehabilitation. District attorneys administer the
ARD program and have discretion whether to request the court
to grant it for a given defendant. Commonwealth v. Armstrong,

(Pa. 1981). Admission into ARD is not a right.
Commonwealth v. Paul, 

, 358 (1989). But
prosecutors do not have unbridled discretion whether to grant or
deny the program. Commonwealth v. Lutz, 

, 935
(1985). See generally Cain v. Darby Borough, 

, 382
(3d Cir. 1993) (en banc).

                               22
Pennsylvania Rules of Criminal Procedure states that
“acceptance into an ARD program is not intended to constitute
a conviction,” but “it may be statutorily construed as a
conviction for purposes of computing sentences on subsequent
convictions.” Pa. R. Crim. P. 312 (Comment). By entering the
ARD program, the defendant waives his right to prove his
innocence, but at the same time, does not admit guilt.

        As Heck noted, § 1983 “creates a species of tort

. Thus, common law bars to suit
apply to claims brought under § 1983. 

the Court
held a §1983 malicious prosecution claim was subject to the
common law requirement that the plaintiff show the prior
criminal proceeding terminated in his favor. 

The
purpose of the requirement, the Court explained, is to avoid
parallel litigation of probable cause and guilt. 

prevents the claimant from succeeding in a tort action after
having been convicted in the underlying criminal prosecution,
which would run counter to the judicial policy against creating
two conflicting resolutions arising from the same transaction.

are equally applicable in this context.
Petit’s underlying disorderly conduct charge and his § 1983 First
A m e n d m e n t c la im re q u ire a n s w e rin g th e s a m e
question—whether Petit’s behavior constituted protected
activity or disorderly conduct. If ARD does not constitute a
favorable termination, success in the § 1983 claim would result
in parallel litigation over whether Petit’s activity constituted

                               23
disorderly conduct and could result in a conflicting resolution
arising from the same conduct.

       We recognize that concurring and dissenting opinions in
Spencer v. Kemna, 

(1998), question the applicability
of Heck to an individual, such as Petit, who has no recourse
under the habeas statute. See 

(Souter, J.,
concurring); 

(Ginsburg, J., concurring); 

n.8
(Stevens, J., dissenting). But these opinions do not affect our
conclusion that Heck applies to Petit’s claims. We doubt that
Heck has been undermined, but to the extent its continued
validity has been called into question, we join on this point, our
sister courts of appeals for the First and Fifth Circuits in
following the Supreme Court’s admonition “to lower federal
courts to follow its directly applicable precedent, even if that
precedent appears weakened by pronouncements in its
subsequent decisions, and to leave to the Court ‘the prerogative
of overruling its own decisions.’” Figuero v. Rivera, 

, 81 n.3 (1st Cir. 1998) (citing Agostini v. Felton, 

, 237 (1989)); see Randell v. Johnson, 

, 301-02
(5th Cir. 2000).

      Because the holding of Heck applies, Petit cannot
maintain a § 1983 claim unless successful completion of the
ARD program constitutes a “termination of the prior criminal
proceeding in favor of the accused.” 

. We




                               24
have not had occasion to address this issue directly.10 Our trial

    10
       In Cain v. Darby Borough, 

(3d Cir. 1993),
decided before Heck v. Humphrey, we examined the validity of
coupling the ARD program with a mandatory release of civil
rights claims. Under a policy of the Delaware County District
Attorney’s Office, the District Attorney would not approve the
ARD program unless the petitioner first agreed to a release of all
civil rights claims against the arresting officers. In Cain, the
petitioner agreed to this waiver, but after successfully
completing the program, she brought a § 1983 suit against three
municipalities, the respective police departments, and arresting
officers. We held that the release agreement was unenforceable
under Town of Newton v. Rumery, 

(1987). Under
Rumery, an agreement releasing § 1983 claims would be
unenforceable “if the interest in its enforcement is outweighed
in the circumstances by a public policy harmed by enforcement
of the agreement.” 

We held that the Delaware
County blanket policy of requiring release of § 1983 claims
failed Rumery because it did not “distinguish between frivolous
and meritorious litigation,” indiscriminately curtailing both. We
stated: “[w]hile ARD was designed in part to promptly dispose
of minor criminal charges, thus eliminating the need for costly
and time-consuming criminal trials, it was never intended to
dispose of civil rights claims.” But Cain was decided before
Heck v. Humphrey and did not consider whether ARD was a
favorable termination of the criminal charge sufficient to bring
a § 1983 claim.

                               25
courts have held that ARD is not a termination favorable for
purposes of bringing a subsequent § 1983 malicious prosecution
claim.11

       We find instructive opinions from the Second and Fifth
Circuits that have addressed whether similar pre-trial
probationary programs are a favorable termination sufficient to
bring a subsequent civil suit. In Roesch v. Otarola, 

(2d Cir. 1992), the Court of Appeals for the Second Circuit
held that dismissal of a Connecticut criminal prosecution under
its “accelerated pretrial rehabilitation” program was not
sufficiently favorable to support a § 1983 malicious prosecution
claim.12 The court reasoned that permitting “a criminal



  11
    See Nardini v. Hackett, 

, at *4 (E.D. Pa.
Sept. 19, 2001) (holding ARD program not a termination
favorable to plaintiff for purposes of bringing a § 1983
malicious prosecution claim); Davis v. Chubb/Pac. Indem.
Group, 

, 92 (D.C. Pa. 1980) (“an A.R.D.
disposition . . . [is not] a favorable termination”); but see
Williams v. Borough of Norristown, 

, at *1 n.3
(E.D. Pa. July 11, 1995) (declining to dismiss § 1983 malicious
prosecution claim where underlying criminal charge was
resolved through ARD, noting “lack of Third Circuit authority
on the issue”).
  12
     Connecticut’s “accelerated pretrial rehabilitation” program
is similar to Pennsylvania’s ARD program. Conn. Gen. Stat.

                              26
defendant to maintain a section 1983 action after taking
advantage of accelerated rehabilitation, the program, intended
to give first-time offenders a second chance, would become less
desirable for the State to retain and less desirable for the courts
to use because the savings in resources from dismissing the
criminal proceeding would be consumed in resolving the
constitutional claims.” 

        Roesch relied upon Singleton v. City of New York, 

, 193-95 (2d Cir. 1980). In Singleton, the court
considered a mechanism under New York Criminal Procedure
similar to the ARD program, termed “adjournment in
contemplation of dismissal.” See N.Y. Crim. Proc. Law §
170.55. Under an adjournment in contemplation of dismissal,
after the accused serves a probationary period, the charges are
dismissed. The court likened the adjournment in contemplation
of dismissal to a consent decree, reasoning that both leave open
the question of guilt. 

But the court refused to equate
dismissal with acquittal. 

found significance in the
probationary period, calling it an unfavorable “period of
observation . . . to determine whether the prosecutor’s
acquiescence in the adjournment was justified.” 

Ann. § 54-56e (West Supp. 1992). To earn dismissal of the
charges and erasure of related records under Connecticut’s
program, the defendant must successfully complete a
probationary period and pay to the court a one hundred dollar
“participation fee.”

                                27
Regarding expungement of the records related to the charge, the
court found this erased “the stigma that might otherwise be
borne by the defendant,” in the same way laws treat juvenile
delinquents who have committed criminal acts, but does not
constitute a finding of “not guilty.” 

v. Gregg, 

, 455-56 (5th Cir. 1994),
the Court of Appeals for the Fifth Circuit adopted Singleton’s
reasoning, holding that a “pre-trial diversion order” is not a
favorable termination. Like the ARD program, offenders who
successfully complete Texas’ diversion program receive
dismissal of their charges. The court held that “criminal
defendants are effectively foregoing their potential malicious
prosecution suit in exchange for conditional dismissal of their
criminal charges.” 

        The ARD program is a court-supervised compromise.
See 

; see also Commonwealth v.
Kindness, 

(Pa. Super. Ct. 1977) (describing
termination of criminal charge under ARD program as a court-
supervised compromise). Nevertheless, the ARD program
imposes several burdens upon the criminal defendant not
consistent with innocence, including a probationary term,
“restitution . . . imposition of costs, and imposition of a
reasonable charge relating to the expense of administering the
program, and such other conditions as may be agreed to by the
parties.” Pa. R. Crim. P. 316(a). We agree with Singleton that
probation constitutes an “unfavorable” period of judicially
imposed limitations on freedom in which the probationer’s

                              28
violation of the program’s terms may result in criminal
prosecution. 

. Viewing these
factors together, we hold the ARD program is not a favorable
termination under Heck.13 Petit’s participation in the ARD
program bars his § 1983 claim.14


  13
     The strongest factor supporting the contention that ARD is
a favorable termination is that successful completion of the
ARD program results in dismissal of the criminal charge and
expungement of the arrest record. See Pa. R. Crim. P. 319, 320.
For the reasons noted, however, we believe the ARD program
is not a favorable termination under Heck.
   14
     The District Court suggested that even if Heck did not bar
Petit’s claim, the First Amendment claim would fail nonetheless
because videotaping does not constitute a protected First
Amendment activity. But videotaping or photographing the
police in the performance of their duties on public property may
be a protected activity. See Smith v. City of Cumming, 

, 1333 (11th Cir. 2000) (“The First Amendment protects the
right to gather information about what public officials do on
public property, and specifically, a right to record matters of
public interest.”). More generally, photography or videography
that has a communicative or expressive purpose enjoys some
First Amendment protection. See generally Bery v. City of New
York, 

(2d Cir. 1996) (holding that sale of art and
photographs are protected activities); Porat v. Lincoln Towers
Cmty. Ass’n, 

, at *4 (S.D.N.Y. Mar. 21, 2005)

                              29
                          Conclusion

        For the foregoing reasons, we will affirm the District
Court’s grant of summary judgment dismissing Gilles’ and
Petit’s claims.



Fuentes, Circuit Judge, dissenting in part.



       I disagree with the majority that the police officers who
arrested Gilles, who was speaking in an open space at a public
university, and whose speech was not likely to result in a breach
of the peace, are entitled to qualified immunity. The officer
who arrested Gilles observed no conduct that amounted to a
breach of the peace.


      I also disagree that Petit’s First Amendment claim should
be dismissed under Heck v. Humphrey, 

(1994),
because, under Heck and Spencer v. Kemna, 

(1998),
Heck’s favorable termination rule cannot be applied to dismiss


(noting that photography for more than mere aesthetic or
recreational purposes enjoys some First Amendment protection);
Baker v. City of New York, 2002 U.S. Dist LEXIS 18100, at *19
(S.D.N.Y. Sept. 25, 2002) (“It is undisputed that [plaintiff’s]
street photography is First Amendment expression[.]”).

                               30
a § 1983 claim brought by a plaintiff not in custody. 

I join in the remainder of the majority’s opinion.15


                        I. Gilles’ Arrest


         A. First Amendment violation


       The essence of the majority opinion is that, though
defendants may have violated Gilles’ First Amendment rights,
the law was not so clearly established as to deprive the officers
of qualified immunity. I disagree because I believe that the
officers violated long-standing, fundamental principles of First
Amendment law.




    15
       I join in the majority’s opinion with respect to Gilles’
challenge of the Indiana University of Pennsylvania (IUP)
permit policy. I merely wish to add that Gilles has no standing
to bring his challenge because the permit policy is a reasonable,
content-neutral policy that regulates commercial solicitation
only, and therefore Gilles raises no issue with respect to whether
the permit policy “may cause others not before the court to
refrain from constitutionally protected speech or expression.”
Broadrick v. Oklahoma, 

, 612 (1973).

                               31
        To qualify as fighting words, speech must either be
intended and likely to incite violence, or inherently likely to
result in physical fighting. See Cohen v. California, 

, 20 (1971) (“There is . . . no showing that anyone who saw
Cohen was in fact violently aroused or that appellant intended
such a result.”); Texas v. Johnson, 

, 409 (1989)
(“asking whether the expression is directed to inciting or
producing imminent lawless action and is likely to incite or
produce such action”) (internal quotation omitted); Johnson v.
Campbell, 

, 213 (3d Cir. 2003) (“Johnson’s words
were unpleasant, insulting, and possibly unwise, but they were
not intended to, nor did they, cause a fight.”).16



       Here there is no indication, and certainly no showing, that
Gilles acted with the intention of provoking violence.
Therefore, we must consider whether the speech was by its
nature very likely to result in physical fighting. Defendants
argue that the crowd which had gathered before Gilles was on
the verge of riot when police officers arrived. I do not discern,
from what little we can observe on the videotape on record, that
the crowd was on the verge of riot. As the state court, which
granted a writ of habeas corpus to Gilles, noted, many listeners

  16
    Speech that results in violence is not necessarily inherently
provocative, but in the absence of violence or any sign of
impending violence it is especially difficult to show that certain
words ‘inherently’ arouse listeners to violence.

                               32
reacted to Gilles’ speech “by being quietly attentive or simply
laughing at the proceedings.” Besides Gilles himself, the only
noise comes from individuals in the crowd shouting at Gilles
and engaging in various heated exchanges with him. The crowd
occasionally broke out into applause in their support.



        In the videotape, Gilles stands near a tree at a pedestrian
intersection on a campus green. The only other people one can
see for most of the tape are those passing by him on the
pedestrian walkway. The crowd listening and engaging Gilles
is some distance away from him, as there is considerable empty
space visible around Gilles. As the majority describes the scene,
at one point, one individual approached Gilles to confront him,
but that individual remained only briefly. Gilles called him
“cigarette-breath” as he walked away. As the majority notes, the
records suggests that at some point someone also threw an apple
that hit Gilles’ briefcase, but this event is hardly noticeable on
the tape and was hardly an act of physical intimidation.



        The record does suggest that the police were told that the
situation was “near riot” and that a fight might break out.
However, I think it is clear that no fight was actually likely to
break out. The students were certainly angry with Gilles and
wanted him off their campus, but there is no indication that they
intended to force him off of the campus physically.



                                33
        The police defendants were probably concerned upon
arriving at the scene that angry people were shouting at each
other and engaging in some name-calling. But “the First
Amendment recognizes . . . that a certain amount of expressive
disorder not only is inevitable in a society committed to
individual freedom, but must itself be protected if that freedom
would survive.” City of Houston v. Hill, 

, 472
(1987). While “[t]o many, the immediate consequence of this
freedom may often appear to be only verbal tumult, discord, and
even offensive utterance[, t]hese are . . . in truth necessary side
effects of the broader enduring values which the process of open
debate permits us to achieve.” 

.



       Indeed, in this case, Gilles provoked exactly the response
desirable in a democracy: students responded to him by
engaging in argument regarding important issues of religious
and sexual tolerance and personal privacy.



       Defendants argue that however benign the crowd’s
behavior up until the time that Gilles was arrested, his language
was so provocative that it was reasonable to assume that at some
point violence would break out. It is very difficult to show,
however, that words are inherently “likely to produce a clear and
present danger of a serious substantive evil that rises far above
public inconvenience, annoyance, or unrest.” 

(quoting Terminiello v. Chicago, 

, 4 (1949)); see

                                34
also Street v. New York, 

, 592 (1969) (“Though it
is conceivable that some listeners might have been moved to
retaliate upon hearing appellant’s disrespectful words, we
cannot say that appellant’s remarks were so inherently
inflammatory as to come within the small class of ‘fighting
words’ which are likely to provoke the average person to
retaliation.”) (internal quotation omitted).



        The Supreme Court has long rejected the presumption
that “an audience that takes serious offense at particular
expression is necessarily likely to disturb the peace and that the
expression may be prohibited on this basis . . . . On the contrary
. . . a principal function of free speech under our system of
government is to invite dispute. It may indeed best serve its
high purpose when it induces a condition of unrest, creates
dissatisfaction with conditions as they are, or even stirs people
to anger.” Texas v. 

(internal
quotation omitted). The Court has explicitly held that it will
“not permit[] the government to assume that every expression of
a provocative idea will incite a riot, but [has] instead required
careful consideration of the actual circumstances surrounding
such expression.” 

The government in this case was
not justified in presuming that university students, whose
peculiar vocation it is to engage in free and open debate, “are
standing ready to strike out physically at whomever may assault
their sensibilities” so as to effectively censor dissidents. 

. As the Cohen court explained:

                                35
       [While] [t]here may be some persons about with such
       lawless and violent proclivities . . . that is an insufficient
       base upon which to erect, consistently with constitutional
       values, a governmental power to force persons who wish
       to ventilate their dissident views into avoiding particular
       forms of expression. The argument amounts to little
       more than the self-defeating proposition that to avoid
       physical censorship of one who has not sought to provide
       such a response by a hypothetical coterie of the violent
       and the lawless, the States may more appropriately
       effectuate that censorship themselves.

       The force of the defendant’s attempt to characterize
Gilles’ speech as “fighting words” derives almost entirely from
the offensive character of his speech. Cf. 

(“[A]ny shock effect of appellant’s speech must be attributed to
the content of the ideas expressed. It is firmly settled that under
our Constitution the public expression of ideas may not be
prohibited merely because the ideas are themselves offensive to
some of their hearers.”). Yet Ku Klux Klan members and neo-
Nazis are permitted to march, notwithstanding the offense they
cause to the vast majority of people. See Texas v. 

(“The First Amendment does not guarantee that . .
. concepts virtually sacred to our Nation as a whole . . . will go

                                36
unquestioned in the marketplace of ideas.”) (citing Brandenburg
v. Ohio, 

(1969)). “[W]e are often captives
outsides the sanctuary of the home and subject to objectionable
speech.” 

(quotation omitted). People
who do not want exposure to the offensive speech can avert
their eyes or walk away. 

“If there is a bedrock
principle underlying the First Amendment, it is that the
government may not prohibit the expression of an idea simply
because society finds the idea itself offensive or disagreeable.”
Texas v. 

. Neither embarrassing,
disgraceful, shaming, vulgar nor offensive words are inherently
fighting words. See Lewis, 

; NAACP v.
Claiborne Hardware Co., 

, 910, 911 (1982);

; 

.



       The majority suggests that at least those insults that
Gilles directed at a woman who identified herself as Christian
and lesbian were fighting words. Gilles taunted the woman:
“oh, my, you ma’am are most confused. She thinks she’s a
Christian lesbo. She’s a lesbian for Jesus.” He asked her, “do
you lay down with dogs? Are you a bestiality lover? . . . Can you
be a bestiality lover and a Christian also?”



       The government’s constitutional authority “to shut off
discourse solely to protect others from hearing it is . . .
dependent upon a showing that substantial privacy interests are

                               37
being invaded in an essentially intolerable manner.” 

. Although outrageous and offensive, Gilles’
comments to this woman were made in the context of a speech
in which he alleged that most Indiana University of
Pennsylvania (“IUP”) students were going to hell for their
sexual degeneracy. The students he called out specifically,
including the woman who identified herself as a Christian
lesbian, were among those who chose to shout back at Gilles
and engage him. Gilles clearly had no independent knowledge
of any of these students, such that they could feel he was
“revealing” actual information about their private lives. Gilles
was clearly using them as mere examples of his larger point
about campus sexual mores.



       Because Gilles was not directing his comments to
individuals in any meaningful sense, they are especially difficult
to characterize as “fighting words.” “Fighting words” are
“directed to the person of the hearer.” 

(quotation omitted); see also Hess v. Indiana, 

, 107-
08 (1973); Texas v. 

. While in this
case, several of Gilles’ comments were ostensibly directed
toward particular individuals in the course of exchanges initiated
by them, the alleged personal insults were always delivered from
a considerable physical distance and in the course of a sweeping
sermon on sexual immorality.




                               38
       Gilles’ speech was provocative because of its content
rather than because it contained words to which we would
expect university students to react reflexively with violence.
Nor were his words directed to individuals under circumstances
that would lead the police to conclude that those individuals
were likely to fight back physically. Because his speech was
unlikely to result in violence, it clearly did not constitute
“fighting words.” A reasonable officer would know that it fell
outside the statutory prohibition against disorderly conduct.



       B. Qualified Immunity



        Notwithstanding the long line of Supreme Court cases
cited above, the majority concludes that the officers were not on
notice that Gilles’ speech was constitutionally protected. To
assess a qualified immunity claim, this Court must examine not
only “the law that was clearly established at the time of the
alleged violation” but also “the facts available to the official at
that time.” Paff v. Kaltenbach, 

, 431 (3d Cir.
2000). Contrary to the majority’s view, I believe the facts
available to the officers at the time that they arrested Gilles and
Petit were sufficient to put them on notice of plaintiffs’ rights.
        Admittedly, when officers Davis and Goemmer arrived
at the scene they had to rely on their observations and the reports
of witnesses. The incident report suggests that most officers’
assessment of the situation was based primarily on the initial

                                39
report of a possible fight and their observation of Gilles shouting
inflammatory language at the crowd. As explained above, the
officers could not infer the prospect of violence from the content
of Gilles’ speech alone. Nor was it reasonable to rely on the
initial report of a possible fight even after arriving at the scene
and observing a purely verbal engagement. Although Officer
Davis reports that he asked members of the crowd what was
happening and spoke to one witness who identified herself as
someone specifically affected by Gilles’ remarks, the short time
that passed between the officers’ arrival at the scene and their
arrest of Gilles suggests this questioning could not have been
thorough. Moreover, the officers should have known that the
only language remotely approaching fighting words was
unlikely to result in lawlessness because those who allegedly
had been attacked volunteered for an interview with the officers.
Having just identified themselves to the police, these individuals
were unlikely to strike out at Gilles in the officers’ presence. In
these circumstances, the officers acted too quickly in arresting
Gilles shortly after they arrived at the scene. Nothing they saw
or heard in that brief time justified his arrest.



        Even if the officers had a reasonable basis for believing
that a breach of the peace might eventually occur, their concern
could not justify a quick arrest. If the officers were worried that
one or more students might physically assault Gilles, the
appropriate response would have been to stand guard to ensure
that no violence erupted. Their mere presence should have been

                                40
enough to deter a breach of the peace. It was not reasonable for
the officers instead to ask Gilles for a permit he did not need and
then to arrest him.

             III. Petit’s First Amendment Claim



        I disagree with the majority’s view that the District Court
properly dismissed Petit’s claim under Heck v. Humphrey, 

(1994).17 Heck extended the common law principle
that “civil tort actions are not appropriate vehicles for
challenging the validity of outstanding criminal judgments . . .
to § 1983 damages actions that necessarily require the plaintiff
to prove the unlawfulness of his conviction or confinement.” 

     17
       Because Petit’s claims are not barred under Heck, the
District Court should have addressed the merits of his First
Amendment claim and engaged in a qualified immunity analysis
with respect to his arrest. As the majority points out, the District
Court was wrong to suggest that Petit’s claim would fail merely
because he did not literally speak; videotaping can constitute
protected expression. See Smith v. City of Cumming, 

, 1333 (11th Cir. 2000) (“The First Amendment protects the
right to gather information about what public officials do on
public property, and specifically, a right to record matters of
public interest.”).

                                41
       Like the District Court, the majority assumes that the
favorable termination rule in Heck applies to Petit’s claim. But
because Petit was not in custody when he filed his § 1983
action, Heck does not apply to his claims. Under the best
reading of Heck and Spencer v. Kemna, 

(1998), the
favorable termination rule does not apply where habeas relief is
unavailable.



       Justice Souter explained this construction of the rule in
his concurrence in Heck:



     [T]he alternative would needlessly place at risk the rights
     of those outside the intersection of § 1983 and the habeas
     statute, individuals not ‘in custody’ for habeas purposes.
     If these individuals (people who were merely fined, for
     example, or who have completed short terms of
     imprisonment, probation, or parole, or who discover
     (through no fault of their own) a constitutional violation
     after full expiration of their sentences), like state prisoners,
     were required to show the prior invalidation of their
     convictions or sentences in order to obtain § 1983 damages
     for unconstitutional conviction or imprisonment, the result
     would be to deny any federal forum for claiming a
     deprivation of federal rights to those who cannot first
     obtain a favorable state ruling. The reason, of course, is
     that individual not ‘in custody’ cannot invoke federal

                               42
       habeas jurisdiction, the only statutory mechanism besides
       § 1983 by which individuals may sue state officials in
       federal court for violating federal rights. That would be an
       untoward result.

(Souter, J., concurring).



Justice Souter pointed out that courts lack authority to subvert the
“plain language” of § 1983 on the basis of a common law
principle limiting collateral attack, especially where it “would run
counter to §1983’s history and defeat the statute’s purpose.” 

(Souter, J., concurring) (internal quotation omitted).



       Justice Souter reiterated in his concurrence in Spencer that
“Heck did not hold that a released prisoner in Spencer’s
circumstances is out of court on a § 1983 claim, and . . . it would
be unsound to read either Heck or the habeas statute as requiring
any such result.” 

(Souter, J.,
concurring). He concluded instead that under a better reading of
Heck, a prisoner who was no longer in custody, or who had never
entered custody, “may bring a § 1983 action establishing the
unconstitutionality of a conviction or confinement without being
bound to satisfy a favorable termination requirement that it would
be impossible as a matter of law for him to satisfy.” 

(Souter, J., concurring).

                                43
       Justice Souter’s concurrence in Spencer was joined by
Justices O’Connor, Ginsburg, and Breyer. Justice Stevens
dissented but indicated that “it is perfectly clear, as Justice Souter
explains, that [a petitioner who does not have a remedy under the
habeas statute] may bring an action under 42 U.S.C. § 1983.”. 

n.8 (Stevens, J., concurring). Thus, a majority of the
Spencer Court favored Justice Souter’s reading of Heck.18



       This Court addressed a related issue in Torres v. Fauver,

(3d Cir. 2002). In Torres, we held that “the
favorable termination rule does not apply to claims that implicate
only the conditions, and not the fact or duration, of a prisoner’s
incarceration.” 

We observed that Torres’ § 1983 claim
was cognizable unless the favorable termination applies to “prison
disciplinary sanctions that do not affect the fact or length of a
prisoner’s confinement, and, more generally . . . persons who
cannot seek habeas relief.” 

Because the Court found
that the rule does not apply to sanctions that affect only the
conditions of confinement, we did not reach the broader question
of whether all those who cannot seek habeas relief are exempt
from the favorable termination rule. 

a lengthy
footnote, this Court pointed out that, after Spencer, a majority of

      18
      The opinions of the Court in both Heck and Spencer do
 suggest in passing that Justice Scalia would not similarly limit
 the application of the favorable termination rule. See 

; 

n.10.

                                 44
the Supreme Court appears to support the broader exemption and,
in a shorter footnote, we approvingly cited Justice Souter’s
reading of Heck. 

n.5, 147 n.8.



        Other circuits, too, lean toward the more narrow
construction of the favorable termination rule. In Jenkins v.
Haubert, the Second Circuit held that a prisoner may bring a §
1983 claim “challenging the conditions of his confinement where
the prisoner is unable to challenge the conditions through a
petition for federal habeas corpus.” 

, 21 (2d Cir.
1999); see also Leather v. Eyck, 

, 424 (2d Cir. 1999)
(holding that favorable termination rule did not apply to a
defendant who “is not and never was in the custody of the State”
because “he . . . has no remedy in habeas corpus”). The Seventh
Circuit agreed, indicating that it too is “hesitant to apply the Heck
rule in such a way as would contravene the pronouncement of five
sitting Justices.” Dewalt v. Carter, 

, 616-17 (7th Cir.
2000) (citation omitted). Finally, the Ninth Circuit also has
indicated it will apply the narrower favorable termination rule.
See Ramirez v. Galaza, 

, 858 (9th Cir. 2003)
(holding Heck does not apply to § 1983 suits challenging
constitutional errors which “do[] not affect the overall length of
the prisoner’s confinement” because even if successful they
“would not necessarily result in an earlier release from




                                 45
incarceration, and hence, do[] not intrude upon the ‘heart of
habeas jurisdiction.’”).19



        Justice Souter’s interpretation of the favorable termination
rule is thus not only the better view, but also was the majority
view of the Spencer Court and is the view among several courts
of appeal. Accordingly, I believe the District Court erred when it
applied Heck without considering whether Petit could have
brought his claim under habeas, and if not, whether that placed
him outside the scope of the favorable termination rule.



        The majority bases its reasoning on three cases, two of
which pre-date Heck. See Taylor v. Gregg, 

(5th Cir.
1994); Roesch v. Otarola, 

(2d Cir. 1992); Singleton
v. City of New York, 

(2d Cir. 1980). In all three
cases, however, the favorable termination rule arose only because
plaintiffs brought suits for malicious prosecution. Favorable
termination was an element of the common law tort of malicious
prosecution long before Heck extended it to certain other § 1983
claims. 

. Accordingly, the favorable

     19
      Two circuits have rejected the more narrow reading of the
 favorable termination rule. See Randell v. Johnson, 

, 301 (5th Cir. 2000); Figueroa v. Rivera, 

, 81
 n.3 (1st Cir. 1998). For the reasons given, I think their reading
 of Heck and Spencer is not persuasive.

                                46
termination rule indisputably applies to all claims of malicious
prosecution regardless of whether habeas relief is available. But
that fact clearly does not imply that the rule applies to all other
§ 1983 claims. Heck applies the rule to only those cases which,
if successful, would render invalid a “conviction or sentence.” 

While Heck extended the scope of the favorable
termination rule in order to reconcile § 1983 with the federal
habeas statute, § 1983 claims which cannot otherwise be pursued
in a habeas petition are not subject to the rule. The cases on
which the majority relies do not suggest otherwise.



        I now turn to the critical question on this point: whether
Petit could have brought a habeas petition instead of the present
§ 1983 action. The duration of Petit’s ARD program is not on
record, but it could not have exceeded two years. See Pa. R.
Crim. P. 316(B). Since Petit filed suit about one and a half years
after his arrest, his ARD program was likely completed before he
brought this suit. Thus, Petit could not have pursued habeas
relief. See Carafas v. LaVallee, 

, 238-40 (1968)
(holding that in making a custody determination, a court looks to
the date that the habeas petition was filed).



        Even if the ARD program was not complete when Petit
initiated the instant action, based on my review of the record, I
conclude that the ARD program never placed Petit “in custody”
for habeas purposes. ARD is a pre-trial diversionary program, the

                                47
purpose of which “is to attempt to rehabilitate the defendant
without resort to a trial and ensuing conviction.” Commonwealth
v. Feagley, 

, 897 (Pa. Super. Ct. 1988) (refusing to
hear appeal from order terminating participation in ARD).
“[A]cceptance of ARD does not constitute a conviction” and “is
not the equivalent of a conviction.” 

       Although we do not know the precise conditions imposed
upon Petit, they do not appear to have required Petit to report
anywhere in Pennsylvania since his stated reason for entering
ARD was to enable his return to Kentucky as quickly as possible
for work. Cf. Dow v. Cir. Ct. of First Cir. Through Huddy, 

, 923 (9th Cir. 1993) (holding alcohol rehabilitation
program that required defendant’s physical presence at a particular
place significantly restrained his liberty and could be
characterized as custody for habeas purposes).              While
Pennsylvania Rule of Criminal Procedure 316 provides that “[t]he
condition of [the ARD program] may be such as may be imposed
with respect to probation after conviction of a crime,” the
conditions of Petit’s ARD program did not approach the normal
conditions of parole. Cf. Jones v. Cunningham, 

,
242-43 (1963) (holding individual confined by parole order to
particular community, house, and job at the sufferance of his
parole officer, who is under constant threat of reincarceration,
qualified as “in custody” for habeas purposes).




                                48
        I therefore conclude that, even in the unlikely event that
Petit was still in ARD at the time that he filed the present suit, his
ARD program was not sufficiently burdensome to render him “in
custody” for habeas purposes. Accordingly, the favorable
termination rule does not apply to his claims and the dismissal of
his claim on that basis was error.




                                 49