Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-22-2008

Egolf v. Witmer
Precedential or Non-Precedential: Precedential

Docket No. 06-2193




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                                    PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT
                 ___________

                    No. 06-2193
                    ___________

  TRISTAN P. EGOLF; ADAM CLAYTON WILLARD;
   JONATHAN A. KOHLER; DAVID JC OBRYANT;
      BENJAMIN D. KEELY; PAULA EGOLF;
               GARY LEE EGOLF,

                              Appellants

                         v.


  CHRISTOPHER WITMER; JAMES ELY; DEB KOLB;
 GERALD KLING; D.J. KLING, IN THEIR INDIVIDUAL
    CAPACITIES AS POLICE OFFICERS FOR EAST
  LAMPETER TOWNSHIP; LINDA GEROW; BLAINE
HERTZOG; WAYNE KLINE; JOHN/JANE DOE 1 TO 5 IN
     THEIR INDIVIDUAL CAPACITIES WHO ARE
UNKNOWN STATE ACTORS; JOHN/JANE DOE 6 TO 10
   IN THEIR INDIVIDUAL CAPACITIES WHO ARE
  UNKNOWN FEDERAL EMPLOYEES, AGENTS OR
      ACTORS; CHRISTOPHER JONES, IN THEIR
INDIVIDUAL CAPACITIES AS POLICE OFFICERS FOR
 EAST LAMPETER TOWNSHIP; MARIAN ADAMS, in
         their individual capacities as Pennsylvania
   State Troopers; and; EAST LAMPETER TOWNSHIP
                       ___________

      On Appeal from the United States District Court
          for the Eastern District of Pennsylvania
                   (D.C. No. 04-cv-05695)
      District Judge: The Honorable Paul S. Diamond
                       ___________

                ARGUED APRIL 10, 2007

Before: SMITH, NYGAARD, and HANSEN,* Circuit Judges.
                 (Filed May 22, 2008)
                     ___________

J. Dwight Yoder, Esq. (Argued)
Gibbel, Kraybill & Hess
41 East Orange Street
Lancaster, PA 17602

      Counsel for Appellants


John G. Knorr, III (Argued)
Office of the Attorney General of Pennsylvania
Department of Justice
15th Floor, Strawberry Square
Harrisburg, PA 17120
       Counsel for Appellees


       *Honorable David R. Hansen, Senior Circuit Judge for
the Eighth Circuit Court of Appeals, sitting by designation.

                               2
                        ___________

                 OPINION OF THE COURT
                      ___________

NYGAARD, Circuit Judge.

      Appellants, Tristan Egolf, Benjamin Keely, Jonathan

Kohler, David O’Bryant, and Adam Willard claimed that several

state and municipal actors violated their First and Fourth

Amendment rights by arresting them during a demonstration

against the war in Iraq.1 The District Court granted summary

judgment for the police on all claims and denied appellants’

      1.
         Initially, the plaintiffs sued Trooper Linda Gerow,
Blaine Hertzog and Wayne Kline, six East Lampeter Township
police officers, five unknown state actors and five unknown
federal actors, alleging that the police officers acted at the
direction of White House personnel. The plaintiffs amended
their complaint twice, dismissed three Township officers, added
Trooper Adams and the Township as defendants, and withdrew
all claims respecting unknown state and federal actors. When
Mr. Egolf died on May 7, 2005, the District Court substituted
Egolf’s parents as plaintiffs. The District Court eventually
dismissed the Township police officers and the Township as
parties, pursuant to the parties’ stipulation.

                              3
motion for partial summary judgment on the First and Fourth

Amendment claims. We will affirm the District Court’s holding

regarding the Trooper’s motion for summary judgment on their

qualified immunity claim.2




                                I.

        We have plenary review of the District Court’s grant of

summary judgment. 181 South Inc. v. Fischer, 

,

231, n. 4 (3d Cir. 2006).3 For the purpose of our review, we

       2.
         The District Court also granted summary judgment in
favor of the police with regard to the Petitioners’ claims that the
police violated their First and Fourth Amendment constitutional
rights. We do not reach constitutional issues unnecessarily, and
in this instance, we hold only that the police are entitled to
qualified immunity. See U.S. v. Otero, 

, 334 n. 1
(3d Cir. 2007).
       3.
       The District Court exercised jurisdiction over this matter
pursuant to 28 U.S.C. §§1331 and 1343. We have jurisdiction
                                                  (continued...)

                                4
will accept the facts as determined by the District Court,

construing them in a light most favorable to the party that is

claiming a constitutional violation, in this case the protesters.

Gilles v. Davis, 

, 203 (3d Cir. 2005).

       In the summer of 2004, President Bush was scheduled to

make an appearance in East Lampeter, Pennsylvania, as part of

his reelection campaign. Between three and four hundred adults

and children gathered along the motorcade’s expected route. The

East Lampeter Township police, with assistance from several

Troopers from the Pennsylvania State Police, were dispatched

to maintain order.

       A group of people opposed to President Bush and the war

in Iraq gathered at a spot along the route. One protester, wearing

a t-shirt emblazoned with the words, “F--- Texas,” carried a

       3.
       (...continued)
over the District Court’s final order pursuant to 28 U.S.C.
§1291.

                                5
large sign stating, “Great War, George.” Others nearby carried

signs declaring, “F--- Texas,” “F--- Bush,” “Regime Change

Begins at Home,” “Go Back to Texas,” and depicting Bush as

the “World’s No. 1 Terrorist.”

      These protesters planned to demonstrate their opposition

to the war in Iraq by recreating a notorious image from the

prisoner abuse scandal at Abu Ghraib.4 When they believed the

presidential motorcade was near,5 seven male protesters quickly

removed their shirts, pants, socks and shoes. Wearing only

thong underwear, they turned their buttocks toward the road.

Five men got on their hands and knees, and the other two men



      4.
        In the widely publicized image, several naked prisoners
at Abu Ghraib are piled on top of one another, with their backs
facing the camera. Two U.S. service members, Staff Sergeant
Charles Graner and Private First Class Lynndie England, stand
behind the men, smiling and giving a “thumbs-up” signal.
      5.
        In fact, President Bush did not pass through the area
until 15-20 minutes later.

                                 6
climbed on top of them to form a pyramid. An associate of the

protesters, Kara Dimitris, stood behind the pyramid, gave a

“thumbs up” sign with one hand, and in the other, held up the

“Great War, George” sign. Another associate of the protester

group, Dan Rhineer, filmed the event.

      Those that formed the pyramid remained passive and

silent. Rhineer’s video recording evinces sounds of cheering

and some laughter in the surrounding crowd. Other people in

the surrounding crowd objected to the protest and they can be

heard demanding that the group put their clothes back on.

Rhineer defended the men exclaiming: “This happened!

Children need to know about this!”

      Pennsylvania State Police and officers from East

Lampeter Township were standing between the crowd and the

road maintaining order in anticipation of the Presidential

motorcade.   At least one Pennsylvania State Trooper was

                             7
standing in front of the protesters as they undressed and formed

the pyramid. The video recording of the event shows that while

the police closest to the protesters saw the event, they did

nothing to immediately respond.      Some bystanders began

loudly imploring to the officers to respond.

       Trooper Blaine Hertzog, monitoring the crowd near the

protesters, became concerned as yelling among the people grew

louder. He testified that he waved to Township Officer

Christopher Jones. Hertzog and Jones asked one another

whether the demonstration was illegal. After Jones signaled

other officers for assistance, Troopers Linda Gerow, Marian

Adams, and Wayne Kline headed to the scene. At that point,

Trooper Hertzog stated that he saw the protesters stacked upon

each other in a pyramid shape, and he saw their “buttocks and

the thongs.”




                               8
       Trooper Hertzog testified during a deposition that he and

Officer Jones did not, on their own, take enforcement action

relative to the protesters, nor had they concluded one way or the

other that any illegal activity was occurring. They moved in

only when a Trooper who was arriving at the scene on foot

made the command to arrest the protesters. The immediate

concern noted by Trooper Hertzog in those moments was the

increasing tension in the crowd that he was monitoring.

       When Trooper Gerow came upon the scene, the pyramid

had stood for less than two minutes. Upon arriving, she saw

men clad in tight thongs “mooning” the crowd and she

immediately pulled one of the men off the pyramid.6 The other

       6.
          At her deposition, Trooper Gerow explained, “It was a
public place. There were children everywhere. . . . There was a
group of men mooning, you know, the general public for no
reason, and it was obviously alarming and offensive to those
around them. It was to me. These are grown men that had tight
little thongs on in a public place where you would expect people
                                                   (continued...)

                               9
officers then arrested Egolf, Keely, Kohler, O’Bryant, Russell

Willard, and Adam Willard.

         As the police began to pull the men out of their

formation, surrounding associates of the protesters responded

that the men were not doing anything illegal. Nonetheless, the

protesters complied with the direction of the officers who took

them away from the scene. The police did not arrest one

member of the pyramid who had quickly put on his pants and

shirt.

         The Township police then took the protesters to the

police station and charged them with disorderly conduct. The

police held the men for approximately two hours and then

released them. Three months later, the Lancaster County District

Attorney announced that he had withdrawn the disorderly

         6.
         (...continued)
to be clothed...You know, its not something I really had to think
about.”

                               10
conduct charges because he doubted that the Commonwealth

could successfully prosecute the matter.7

       Egolf, Keely, Kohler, O’Bryant and Adam Willard filed

suit under 42 U.S.C. §1983, alleging that their arrests violated

the First and Fourth Amendments. The police moved for

summary judgment.       Appellants filed a motion for partial

summary judgment.

       Addressing the protesters’ claimed violations of their

constitutional rights, the District Court noted that the facts of

this case present a question not yet addressed by Pennsylvania

courts.8 Relying on our opinion in Radich, the District Court

       7.
       The police did not participate in the decision to charge
the men, or to withdraw the charges.
       8.
        Police charged the protesters with disorderly conduct at
the time of the arrest. (18 Pa. C.S. 5503(a)). The District
Attorney dropped these charges three months after the arrest.
Yet, obviously aware that probable cause need only exist as to
any offense that could be charged under the circumstances, the
                                                  (continued...)

                               11
held that the ambiguity of whether or not the appellants violated

Pennsylvania’s Open Lewdness Act was reason enough to give

the police probable cause to arrest the protesters. In Radich, we

held that police officers cannot be expected to accurately predict

the court’s interpretation of an issue of first impression.

Therefore, in some such cases, it is reasonable to find that the

police had probable cause. Radich v. Goode, 

,

1398 (3d Cir. 1989).

        Alternately, predicting that Pennsylvania courts would

find that the protesters engaged in prohibited lewd conduct, the

District Court found that a reasonable officer would have

decided that probable cause existed to arrest the protesters.




       8.
         (...continued)
police argued before the District Court that they had probable
cause to arrest the protesters under the Pennsylvania lewdness
statute. See Barna v. City of Perth Amboy, 

, 819 (3d
Cir. 1994).

                               12
Upon these bases, the District Court concluded that the police

did not violate the Fourth Amendment rights of the protesters.

       The District Court also concluded that the police did not

violate the First Amendment. As applied in this instance, the

court found that the police’s arrest of the protesters under the

lewdness statute was a permissible restriction on expressive

conduct using the analysis detailed in United States v. O’Brien,

(1968).

       Finally, the District Court concluded that, even if the

police violated the constitutional rights of the protesters under

either the First or Fourth Amendments, the police had qualified

immunity from suit. The court granted immunity on the basis

that the constitutional rights were not “clearly established” in the

circumstances of this case. This appeal followed.

       We have a longstanding practice of avoiding

constitutional questions in cases where we can reach a decision

                                13
upon other grounds. See U.S. v. Otero, 

, 334 n. 1 (3d

Cir. 2007). In this instance, we agree with the District Court that,

regardless of whether the police violated the protesters’ First and

Fourth Amendment rights, these rights were not “clearly

established” in this circumstance. On this basis, and for the

reasons set out below, we will affirm the District Court’s grant

of qualified immunity to the police but we will not address the

First and Fourth Amendment questions raised in this case.

                                II.

       The assessment of qualified immunity normally involves

two steps. In the usual case, we must assess whether the facts

alleged, viewed in the light most favorable to the party asserting

the injury, demonstrate that the state actor’s conduct violated a

constitutional right. Where a constitutional violation exists, we

then move to a second tier of analysis to determine whether the

violated right was “clearly established.” Saucier v. Katz, 533

                                

, 200 (2001); 

. We find in this

case an exception to this generally mandated analytic

framework.9

                               A.

       Although Saucier requires that courts engage a two-tiered

analysis that first examines whether a constitutional violation

exists, we must approach this framework in a manner that is

consistent with its purpose. As Saucier clearly explains, the

underlying principle of first requiring constitutional analysis is

to advance the elaboration of the law to give state actors better

guidance on the parameters of constitutional violations.




       9.
        The majority does not hold the view that Saucier
abrogated the long-standing maxim that courts will not reach
constitutional issues unnecessarily. 

(“[T]he [sequential] procedure permits courts in appropriate
cases to elaborate the constitutional right with greater degrees
of specificity.”(emphasis added)).

                               15


; 

. This principle

guides our resolution of this case.

       Although the District Court thoroughly reviewed the

First and Fourth Amendment claims, it found that the state law

questions underlying the constitutional issues were ones of first

impression for the state courts.10 Accordingly, in both claims of

       10.
         Pennsylvania law states that “[a] person commits a
misdemeanor of the third degree if he does any lewd act which
he knows is likely to be observed by others who would be
affronted or alarmed.” 18 Pa.C.S.A. § 5901. The Pennsylvania
Supreme Court has favorably referenced a comment to the
Model Penal Code that states: “The prohibited [lewd] conduct
amounts to gross flouting of community standards in respect to
sexuality or nudity in public.” (emphasis added) 

, citing Model Penal Code Comment at p. 81.
Nudity or overt sexually offensive displays are therefore
essential to “lewd” conduct. 

v. New York,

, 515 (1948). We presume then, for purposes of
this analysis that the elements of a violation of Pennsylvania’s
lewdness statute to be: nudity and/or sexually explicit displays;
in circumstances likely to be observed by the public; that causes
offense or alarm due to its gross departure from accepted
community standards. 

v. Williams, 

, 1163 (1990). The essence of the inquiry here is
                                                   (continued...)

                               16
constitutional violations the District Court’s analysis relied upon

its prediction of how the Pennsylvania courts would rule if this

case was before them.11 We find such cases to be exceptions to

the constitutional analysis requirement of Saucier, because the

purpose of Saucier would be undermined.

       In concluding that we will not analyze the First or Fourth

Amendment issues in this case, we find a decision of the Court

of Appeals for the Second Circuit to be persuasive in reasoning

that the underlying principle of law elaboration is not



       10.
         (...continued)
whether exposure of one’s buttocks constitutes “nudity” which,
to date, has been defined under the statute as either fully
unclothed or exposing genitalia.
       11.
         The legal definition of nudity is in this case the essence
of a constitutional analysis of the Fourth Amendment under
qualified immunity. By extension, this definition is also critical
to the District Court’s determination of whether the state had a
legitimate interest in regulating nudity under an O’Brien First
Amendment review. See U.S. v. O’Brien, 

(1968).


                                17
meaningfully advanced in situations, such as this, when the

definition of constitutional rights depends on a federal court's

uncertain assumptions about state law. Ehrlich v. Town of

Glastonbury, 

, 55-58 (2d Cir. 2003); See also

Robinette v. Jones, 

, 592 n.8 (8th Cir. 2007). We

agree that, in cases such as this, federal courts do a disservice to

state actors who would be induced to rely on a ruling that might

change altogether upon subsequent review by the state court.

. Our position is bolstered by the fact

that, even if we were to find constitutional rights violations we

are convinced that such rights were not clearly established.12

                                B.




       12.
         We recognize the District Court’s alternate rationale for
finding probable cause was based upon the ambiguity that, we
agree, exists. However, this ambiguity does not provide us with
a compelling rationale to rule on a constitutional issue where
alternate grounds for a decision exist.

                                18
       The second prong of the qualified immunity analysis is

focused upon “whether it would be clear to a reasonable officer

that his conduct was unlawful in the situation he confronted.”

; 

. Qualified

immunity turns on the “objective legal reasonableness of the

action . . . assessed in light of the legal rules that were clearly

established at the time.” Anderson v. Creighton, 

,

639 (1987). Courts have defined the term “clearly established”

to mean “some but not precise factual correspondence between

relevant precedents and the conduct at issue.” McLaughlin v.

Watson, 

, 571 (3d Cir. 2001). It is now axiomatic

that our qualified immunity analysis “gives ample room for

mistaken judgments by protecting all but the plainly

incompetent or those who knowingly violate the law.” 

.




                                19
       Here, even if we assume that the police violated the

protesters’ rights under the First and Fourth Amendments by

arresting them, we are mindful that the circumstances were quite

unusual. There is no dispute that events relating to the group’s

undressing and posing developed quickly. At the same time,

other members of the crowd were loudly making objections

against the protesters. The escalation of tension at the scene was

sudden, surprising and intense. All evidence shows that it was

this rising disturbance of the crowd that captured the attention

and concern of the officers who responded.

        Furthermore, all of this occurred at a time that the

officers were keenly aware of their immediate responsibilities to

keep the crowd under control in anticipation of a passing

Presidential motorcade. Even though the protection of the

President was within the ambit of other officials, maintaining

order within the crowd alongside the motorcade route (which

                               20
was the police’s responsibility) was undeniably an important

component of the overall security for the President on that day.

The officers did not have the luxury of ignoring the brewing

anger. We recognize that a sudden disruption in a crowd does

not, of itself, justify unreasonable arrests. It does, however,

compel us to appreciate the pressures that burdened the

judgments of the officers on that day and the emotionally-

charged prism through which the bystanders appeared to view

the disturbance. 

; 

.

       Adding to the confusion is the fact that the protesters

intentionally chose to simulate the abhorrent image of Abu

Ghraib: an image that was inherently offensive from a number

of perspectives precisely because it showed naked prisoners who

were forced to pose in a sexually humiliating manner. The

protesters admitted that they intentionally clothed themselves in

                               21
a manner that closely simulated the nudity of the original

photograph. Therefore, even the protesters believed that they

were brushing closely to the boundaries of a publically indecent

act. Moreover, the choice that the protesters made to portray this

particular image generates a question that would have been

difficult to assess on the scene: whether the depiction of an

inherently sexually offensive image is any less shocking simply

because people recreate it as a protest. While we can rationalize

from our vantage point that the scene created by the protesters

might be distinguishable from the original image, the objective

on-the-scene perspective required of us in this qualified

immunity review inexorably mires such contrasts. For these

reasons, we conclude that there is ample evidence that this event

was precisely the type of scene envisaged in Saucier, where an

officer in the field must make “split second judgments – in




                               22
circumstances that are tense, uncertain and rapidly evolving.”

demanded an instantaneous, finely

calibrated judgment in response to a disturbance that arose amid

circumstances that were undeniably unique, surprising,

confusing and charged.      It was plainly one in which the

parameters of probable cause were confusing and the boundaries

of free speech were quite muddled. 

. As a result, we cannot characterize the officers’ actions,

for purposes of qualified immunity, as either incompetent or as

willful violations of the law.

       For these reasons, we conclude that, even if the officers’

decision to arrest the protesters was mistaken, it was a

reasonable mistake in the context in which it occurred. We do

not find error in the District Court’s grant of qualified immunity

to the police.

                                 23
                               III.

       For the reasons stated above we affirm the district court’s

grant of summary judgment in favor of the police on the issue of

qualified immunity.



Egolf v. Witmer, No. 06-2193.

SMITH, Circuit Judge, concurring.

       Like the majority, I conclude that we should affirm the

District Court’s grant of summary judgment in favor of the State

Troopers. I write separately, however, because I believe the

constraints of Saucier v. Katz, 

(2001), compel a

different analytical path.13

       13.
          I fully recognize that a number of circuits have
declined to follow Saucier and that there have been doubts
expressed, by some of the courts of appeals and the Supreme
Court alike, regarding the wisdom of Saucier’s mandatory two-
step approach to resolving questions of qualified immunity. See,
e.g., Buchanan v. Maine, 

, 168 (1st Cir. 2006)
                                                    (continued...)

                               24
       13.
          (...continued)
(“We do not think the law elaboration purpose will be well
served here, where the Fourth Amendment inquiry involves a
reasonableness question which is highly idiosyncratic and
heavily dependent on the facts. . . . Given the complexity of the
matter, and since it is perfectly clear that the officers are entitled
to immunity, we turn to the second and third prongs.”);
Robinette v. Jones, 

, 592 n.8 (8th Cir. 2007)
(“Saucier requires a full analysis of the first prong of a qualified
immunity analysis because it ‘permits courts in appropriate
cases to elaborate the constitutional right with greater degrees of
specificity.’ However, the ‘law’s elaboration from case to case’
. . . would be ill served by a ruling here, where the parties have
provided very few facts to define and limit any holding on the
reasonableness of the execution of the arrest warrant.”) (internal
citations omitted); McClish v. Nugent, 

, 1253 n.1
(11th Cir. 2007) (Anderson, J., concurring specially)
(“Unfortunately, in this case, because the defendants prevailed
on the clearly established prong, the Saucier rule not only
requires a constitutional holding that would be unnecessary
otherwise; it also operates to insulate from further appellate
review an erroneous constitutional ruling that will guide the
conduct of police officers in three states. . . . Also, under the
Saucier approach, a court is handicapped in addressing the
constitutional issue because at least one party often has little
incentive to litigate the issue vigorously, especially when it is
apparent that the law is not clearly established, as in this case.”);
Lyons v. City of Xenia, 

, 581–84 (6th Cir. 2005)
(Sutton, J., with whom Gibbons, J., joins, concurring) (“I cannot
                                                       (continued...)

                                 25
       The majority acknowledges that “Saucier requires that

courts engage a two-tiered analysis that first examines whether

a constitutional violation exists.” Yet, the majority declines to

follow this mandate because it finds that doing so in this case

       13.
         (...continued)
resist adding still another separate writing in this case that
questions the rigidity of [the Saucier] requirement. While I see
the virtue in telling lower courts that they should generally
answer the constitutional question before the clearly established
question, I wonder whether it makes sense to mandate that they
do so in all cases, no matter the costs, no matter the ease with
which the second question might be answered.”). Further,
twenty-eight states and Puerto Rico have recently urged, albeit
unsuccessfully, the Supreme Court in an amicus brief to
reconsider its mandatory Saucier approach to qualified
immunity. See Brief for Twenty-Eight States and Puerto Rico
as Amici Curiae in Support of Petitioner, Scott v. Harris, 

(2007) (No. 05-1631).
        Most recently, the Supreme Court granted certiorari in
the case of Callahan v. Millard County, 

(10th Cir.
2007), directing the parties to brief and argue “[w]hether the
Court’s decision in Saucier v. Katz, 

(2001) should
be overruled.” Pearson v. Callahan, --- S.Ct. ----, 

, 76 USLW 3316, 76 USLW 3508, 76 USLW 3510 (U.S.
Mar 24, 2008) (No. 07-751).

                               26
would not accomplish Saucier’s purpose. It may be that the

Supreme Court will return to its pre-Saucier jurisprudence,

where determining first whether the plaintiff has alleged a

deprivation of a constitutional right is considered only the

“better approach.” See County of Sacramento v. Lewis, 

, 842 (1998); see also Siegert v. Gilley, 

(1991)

(clarifying the analytical structure under which a claim of

qualified immunity should be addressed). For now, however, I

regard the Saucier rule as mandatory and do not believe that

inferior courts are free to depart from it. In Scott v. Harris, 

(2007), the Court explicitly stated:

       In resolving questions of qualified immunity,
       courts are required to resolve a “threshold
       question: Taken in the light most favorable to the
       party asserting the injury, do the facts alleged
       show the officers conduct violated a constitutional
       right? This must be the initial inquiry.” If, and
       only if, the court finds a violation of a
       constitutional right, “the next, sequential step is to



                                27
       ask whether the right was clearly established . . .
       in light of the specific context of the case.”

(emphasis added) (internal citations

omitted). See also Bunting v. Mellen, 

(2004)

(Scalia, J. dissenting from the denial of certiorari) (“[S]ome

courts [have] conclude[d] (mistakenly) that the constitutional-

question-first rule is customary, not mandatory.”). Perhaps in

circumstances where the underlying principle of law elaboration

is not meaningfully advanced or where a court would be

required to address unsettled questions of state law, the

jurisprudential policy of avoiding unnecessary adjudication of

constitutional issues is actually the better approach.14 But until

       14.
           Along with the majority, I do not hold the view that
Saucier intended to disavow the prudential rule of avoiding
constitutional questions. Rather, the Saucier Court recognized
a competing goal—the development of substantive
constitutional protections in the constitutional tort context that
might otherwise go undeveloped if lower courts routinely
disposed of § 1983 cases without reaching the merits. Indeed,
a right can never be “clearly established” if the right has never
                                                    (continued...)

                               28
       14.
           (...continued)
been recognized at all. The Supreme Court “has never treated
avoidance as an absolute; it is a policy aimed at specific
objectives, and these nearly always compete with other goals.”
Michael L. Wells, The “Order-of-Battle” in Constitutional
Litigation, 60 SMU L. Rev. 1539, 1543 (2007). While I do not
express a view as to whether the Court’s articulated goal
counsels against applying the “long-standing maxim,”
adherence to Saucier’s “order of battle” does not require one to
accept that Saucier abrogated the prudential rule.
         In this vein, the majority’s citation of Saucier, that, “the
[sequential] procedure permits courts in appropriate cases to
elaborate the constitutional right with greater degrees of
specificity” must be read within the context of the entirety of the
opinion, and the Court’s subsequent jurisprudence. (Majority
Op. at 15 n.9) (quoting 

) (emphasis
added). At the outset of the Saucier opinion, the Court explains
that in furtherance of determining whether a constitutional right
was violated, there may be cases in which it is appropriate, and
indeed necessary, to elaborate on the constitutional right with
respect to the new set of facts before the court, so that the right
may be clearly established in later cases. See 

. Specifically, the Court stated that

       In the course of determining whether a
       constitutional right was violated on the premises
       alleged, a court might find it necessary to set forth
       principles which will become the basis for a
       holding that a right is clearly established. This is
                                                     (continued...)

                                 29
the Supreme Court crafts an exception to the Saucier rule, it is

my view that we are not free to make that policy choice,

however salutary. See, e.g., Doe v. Delie, 

, 315 n.4

(3d Cir. 2001) (“While there may be pragmatic considerations

favoring [the] qualification of the Supreme Court’s unqualified

language, the Court has not yet suggested any basis for

departing from the rule . . . .”). I believe, therefore, that the


       14.
         (...continued)
       the process for the law’s elaboration from case to
       case, and it is one reason for our insisting upon
       turning to the existence or nonexistence of a
       constitutional right as the first inquiry. The law
       might be deprived of this explanation were a court
       simply to skip ahead to the question whether the
       law clearly established that the officer’s conduct
       was unlawful in the circumstances of the case.

majority cannot possibly be arguing that its
citation to Saucier supports a view that the two-step approach is
merely permissive, i.e., should in actuality only be employed “in
appropriate cases.”         Indeed, the Court’s subsequent
jurisprudence reiterating its mandatory nature, as well as the
dissents filed in those opinions, compel a contrary interpretation.

                                30
proper analytical course in this case is first to consider whether

the Troopers violated the Constitution.

         Because I conclude that, on the facts alleged, the

Troopers’ conduct did not violate the Plaintiffs’ constitutional

rights, my analytical course would not require that we reach the

question of qualified immunity.

                                 I.

         Plaintiffs allege that the Troopers violated their Fourth

Amendment rights by arresting them without probable cause.

They argue that their conduct did not present the Troopers with

probable cause to arrest because they were engaging in protected

First Amendment activity and, as such, the expressive nature of

their conduct should have been taken into account by the

Troopers in making their probable cause determination at the

scene.




                                31
       Probable cause to arrest exists when “the facts and

circumstances within the arresting officer’s knowledge are

sufficient in themselves to warrant a reasonable person to

believe that an offense has been or is being committed by the

person to be arrested.” Orsatti v. New Jersey State Police, 

, 482 (3d Cir. 1995). “To determine whether an arrest

is valid, we look to the law of the state where the arrest took

place.” Wright v. City of Philadelphia, 

, 601 (3d

Cir. 2005) (citations omitted). The question of “probable cause

in a section 1983 damage suit is one for the jury.” Montgomery

v. De Simone, 

, 124 (3d Cir. 1998). However, a

district court may conclude “that probable cause did exist as a

matter of law if the evidence, viewed most favorably to Plaintiff,

reasonably would not support a contrary factual finding,” and

may grant summary judgment accordingly.             Sherwood v.

Mulvihill, 

, 401 (3d Cir. 1997).

                               32
         The Troopers contend that they had probable cause to

arrest     the   Plaintiffs   because   their   conduct   violated

Pennsylvania’s open lewdness statute, which provides that “[a]

person commits a misdemeanor of the third degree if he does

any lewd act which he knows is likely to be observed by others

who would be affronted or alarmed.” 18 Pa.C.S.A. § 5901. The

relevant inquiry, then, is whether it was objectively reasonable

for the Troopers to conclude that they had probable cause to

arrest the Plaintiffs based on “the facts available to the officers

at the moment of arrest.” Barna v. City of Perth Amboy, 

, 819 (3d Cir. 1994) (quotation omitted).15

         15.
          As stated, Plaintiffs contend that their First and Fourth
Amendment rights are inextricably linked—that the Troopers
lacked probable cause to arrest them because their conduct was
protected under the First Amendment. Indeed, when pure
speech is at issue this Court has stated that

         [T]he statute must “be carefully drawn or authoritatively
         construed to punish only unprotected speech and not be
                                                    (continued...)

                                 33
       15.
         (...continued)
       susceptible of application to protected expression.”
       Johnson v. Campbell, 

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

, 522, 

, 

(1972)); Commonwealth v.
       Mastrangelo, 

, 

, 58 (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).

Gilles v. Davis, 

, 204 (3d Cir. 2005). The interplay
of Fourth and First Amendment rights with respect to expressive
conduct, as opposed to speech, does not give rise to clear rules
of application. Here, expressive conduct is unquestionably at
issue, as I discuss later. Yet, it is also clear that the open
lewdness statute prohibits conduct that is inherently unrelated to
the political message that the Plaintiffs attempted to convey.
This reality is important, especially in a case such as this in
which police officers are required to make an on-the-spot
probable cause determination. Because the Plaintiffs do not
facially attack the statute as overbroad or void for vagueness,
and because I conclude that the statute was constitutionally
applied to the Plaintiffs and that probable cause for arrest
existed, I need not further consider the extent of the relationship.

                                                     (continued...)

                                34
       A review of the record, particularly the videos of the

event, reveals that a crowd had gathered along the side of a

small commercial highway. Kara Dimitris appeared in the

videos wearing a green shirt, a hat and yellow gloves and

carrying a sign saying, “Great War, George.”         When she

shouted, “Shirts off,” the Plaintiffs removed their clothes until

they were wearing only thong underwear. The District Court

observed that “the thin material of their tight-fitting thongs

unmistakably displayed the contours and movement of their

genitals. . . . From the rear, the thongs displayed the entire

surface of their buttocks; from various angles, Plaintiffs

appeared to be entirely naked.” Egolf v. Witmer, 

, 864 (E.D.Pa. 2006). An examination of the record reveals


       15.
             (...continued)


                               35
that the contours and movement of the Plaintiffs’ genitals could

be seen by bystanders while the Plaintiffs arranged themselves

into the pyramid, but not while they were in the pyramid

formation. And the thongs revealed the entire surface of each

Plaintiff’s buttock. The Plaintiffs did not disrobe with great

speed, but then quickly formed a human pyramid. The videos

show young children, including toddlers, in the immediate area.

Several members of the crowd quickly became agitated,

shouting at the Plaintiffs and at Dan Rhineer, the cameraman.

Several women observed that their children were present and

upbraided the protesters. Others made unfavorable comments

about their taste and respect for authority. Rhineer attempted to

explain the protest, stating that “This has happened before,” and

that, “American soldiers did this [to prisoners].” When Rhineer

remarked that children needed to learn about the Abu Ghraib




                               36
torture, one concerned onlooker responded, “Not naked they

don’t.”

      Pennsylvania case law interpreting what constitutes a

“lewd act” has consistently maintained that the essence of a

“lewd act” is “sexuality or nudity in public,” without much

elaboration. See Commonwealth v. Fenton, 

, 866

(Pa.Super. 2000) (citing Commonwealth v. Williams, 

(Pa.Super. 1990)). In the case of Commonwealth v.

Heinbaugh, 

, 247 (Pa. 1976), the Pennsylvania

Supreme Court concluded that § 5901 “must be read as restating

the established common law standard which has long existed in

this Commonwealth.” The Court explained:
       Open lewdness was an indictable offense at
       common law. It was defined as an act of gross and
       open indecency which tends to corrupt the morals
       of the community. Winters v. New York, 

, 515, 

, 

, 849 (1948);
       Commonwealth v. Sharpless, 2 Serg. & R. 91, 100
       (1815); IV Blackstone Commentaries 64 n.38
       (W. Lewis ed. 1898); 53 C.J.S. Lewdness, p. 4

                              37
      (1948). While the language of the challenged
      Pennsylvania lewdness statute differs in some
      respects from this common law definition, there is
      no difference in meaning. The statute in question
      is a verbatim adoption of the lewdness provision
      of the Model Penal Code, ALI, Model Penal
      Code, Proposed Official Draft 251.1. The
      comment to that section makes it clear that the
      drafters intended to codify the pre-existing
      common law: “Lewd or indecent behavior is
      punishable in all jurisdictions. The prohibited
      conduct amounts to gross flouting of community
      standards in respect to sexuality or nudity in
      public.” ALI, Model Penal Code, Tentative Draft
      No. 13 §§ 213.4 & 251.1 Comment at p. 81.

. Since Heinbaugh, it appears that

“[a]ll of the reported Pennsylvania cases on open lewdness

involved public masturbation or public displays of genitalia.”

Commonwealth v. Williams, 

, 1163 (Pa.Super.

1990).16    Nevertheless, “lewd” acts remain interpreted as

      16.
            The Williams Court looked to a summary of
Pennsylvania’s case law on open lewdness as laid out by a
majority of the Supreme Court of Pennsylvania:

      All prosecutions have been based . . . on a “gross
                                                  (continued...)

                              38
16.
  (...continued)
flouting of community standards in respect to
sexuality or nudity in public.” See Commonwealth
v. 

(masturbation in public);
Commonwealth v. Davidson, 220 Pa.Super. 451,

(1972) allocatur refused, 221
Pa.Super. xlix (naked motorist stopped a young
lady to ask directions); Commonwealth v.
Falcone, 202 Pa.Super. 474, 

(1964)
(masturbation in a public cemetery);
Commonwealth v. Warner, 51 Pa.D.&C.2d 63
(C.P. Centre Cnty. 1971) (defendant disrobed in
public, made uninvited visits to private homes,
and entered a public pizza parlor);
Commonwealth v. Anzulewicz, 42 Pa.D.&C.2d
484 (Q.S. Mont. Cnty. 1967) (display of genitalia
in private dwelling but in front of window where
a neighboring family “in the reasonable use of
(their) house” could not help but observe
defendant’s activities); Commonwealth v. Helms,
38 Pa.D. & C.2d 496 (Q.S. York Cnty.), aff’d per
curiam, 206 Pa.Super. 743, 

(1966)
(no offense made out where defendant’s nudity
was in a private trailer and prosecution witness
had to observe through small, louvered window);
Commonwealth v. Alessi, 29 Erie 172 (Q.S. 1947)
(masturbation in a private home but before large
window facing public street).

                                          (continued...)

                       39
“sexuality or nudity in public.” Commonwealth v. Tiffany, 

, 510–11 (Pa.Super. 2007) (citing Commonwealth v.

Fenton, 

, 866 (Pa.Super. 2000)). While Tiffany

dealt with the conviction of a man who swam nude in a public

place with minors, the court, when discussing the § 5901

conviction, explained only that “Section 5901 pertains to

conduct that: ‘1) involves public nudity or public sexuality, and

2) represents such a gross departure from accepted community

standards as to rise to the level of criminal liability.’” 

, 574 A.2d at 1163).

       What the Pennsylvania cases make clear, then, is that

either public nudity or public sexuality must have occurred to

establish a violation of § 5901, not necessarily both. See, e.g.,

Commonwealth v. Polomchak, 10 Pa.D. & C.4th 395, 397 (C.P.

       16.
        (...continued)

(quoting Commonwealth v. Allsup,

, 1312 (1978)).

                                 40
Bucks Co. 1991), aff’d, 421 Pa.Super. 635, 

(1992)

(finding defendant guilty of violating § 5901 where he sat at a

bar with his hand in his lap underneath his coat and masturbated

or feigned masturbation, noting that “actual nudity is not a

required element of the crime of open lewdness”); Williams, 

(holding that a public appearance in a t-shirt and

“tight-fitting briefs” is not a lewd act).

       The Troopers do not argue, nor could they, that the

Plaintiffs’ conduct constituted public sexuality. The question,

then, is whether the Plaintiffs’ conduct gave the Troopers

probable cause to arrest them for open lewdness in light of the

fact that, to date, the reported § 5901 cases involving nudity

include only display of genitalia.

       My read of Pennsylvania law is that it contemplates a

fairly broad definition of nudity. The statutory definition of

“nudity” in other Pennsylvania statutes suggests that exposure

                                41
of the buttocks, the conduct Plaintiffs engaged in here, falls

within § 5901’s ambit. For example, the Pennsylvania statute

regulating distribution of obscene materials defines “nudity” as

the “showing of the human male or female genitals, pubic area,

or buttocks with less than a fully opaque covering, or the

showing of the female breast with less than a fully opaque

covering of any portion thereof below the top of the nipple, or

the depiction of covered male genitals in a discernibly turgid

state.” 18 Pa.C.S. § 5903 (emphasis added).           In addition,

Pennsylvania’s statute prohibiting “invasion of privacy” defines

“[f]ull or partial nudity,” as, “[d]isplay of all or any part of the

human genitals or pubic area or buttocks . . . with less than a

fully opaque covering.” 18 Pa.C.S.A. § 7507.1 (emphasis

added). Therefore, if Pennsylvania courts import into § 5901

the statutory definitions of nudity from other sections of the




                                42
Pennsylvania Crimes Code, it is reasonable to conclude that

exposure of the buttocks qualifies as “nudity.”

       One might argue that a Pennsylvania court following

Williams would hold that the Plaintiffs’ actions fall within the

Williams Court’s holding that “walking about in underwear may

be a foolish act,” but it is not an illegal one. 

. In Williams, the court noted that the Commonwealth

established only that appellant walked through a parking lot in

a T-shirt and underwear. 

then explained that the

“[a]ppellant’s behavior cannot reasonably be found to fall within

the purview of [§ 5901]. A person who is wearing a T-shirt and

underwear is not appearing in the nude, and walking about in

underwear may be a foolish act but is not a sexual act.” 

at bar offers clear distinctions from the facts in

Williams. As already stated, the statutory definition of “nudity”

in other Pennsylvania statutes encompasses exposure of the

                                43
buttocks—activity the Plaintiffs here unmistakably engaged in.

Thus, it is reasonable to say that they were “appearing in the

nude” under Pennsylvania law. Beyond that, one need hardly

resort to an expert on fashion to note the obvious distinction

between wearing “elastic tight-fitting briefs,” 

, and tight-fitting thong underwear that

unmistakably displays the contours and movement of an

individual’s genitals, not to mention the entirety of that

individual’s buttocks.17

       17.
          The District Court noted that state laws similar to §
5901 have been construed similarly:

       For instance, the Massachusetts Supreme Judicial
       Court recently held that a man violated
       Massachusetts’ open lewdness statute when, clad
       in thong underwear, he lowered his pants and
       exposed his buttocks to four teenagers. See
       Commonwealth v. Quinn, 

, 

(2003). Quinn contended that he did
       not violate the statute because he had kept his
       genitals covered. 

.
                                                (continued...)

                              44
       A review of Pennsylvania law demonstrates that the

Troopers reasonably concluded that they had probable cause to

arrest Plaintiffs on violations of the open lewdness statute when

the Plaintiffs’ appeared at a public gathering in tight-fitting

thongs and beared their buttocks. Where the state of the law is

uncertain, this Court has refused to “impose upon a police

officer [] the duty to correctly predict how a court will answer

[an] unresolved and complex legal issue.” Radich v. Goode, 886


       17.
         (...continued)
       Like § 5901, the Massachusetts statute included
       no definition of “lewdness,” and derived from the
       common law. 

. The
       Quinn Court reviewed analogous case law from
       Florida, Michigan, Minnesota, Nevada, Vermont,
       Virginia, and West Virginia, and found that none
       of those decisions “cabin[ed] the offensive
       conduct to the intentional exposure of genitals.”
       

Supreme Judicial Court held
       that Quinn’s deliberate exposure of his buttocks
       was a “lewd” act under Massachusetts law.

–66.

                               

, 1398 (3d Cir. 1989). Further, it was reasonable for

the Troopers to presume that actual exposure of the genitals was

not required in order to violate § 5901, as a separate statute

prohibits such conduct. See 18 Pa.C.S. § 3127 (“A person

commits indecent exposure if that person exposes his or her

genitals in any public place or in any place where there are

present other persons under circumstances in which he or she

knows or should know that this conduct is likely to offend,

affront or alarm.”); see also Commonwealth v. Polomchak, 

395, 397 (C.P. Bucks Co. 1991) (“[A]ctual

nudity is not a required element of the crime of open

lewdness.”).

       Given the uncertainty in the application of Pennsylvania

law to the facts before us, we conclude that “[p]robable cause

exist[ed] [because] the facts and circumstances are sufficient to

warrant a prudent man in believing that the [Plaintiffs] had

                               46
committed or [were] committing an offense.” 

(internal quotations omitted) (citing Beck v. Ohio, 

, 91 (1964)). Thus, the Plaintiffs have not established

that their Fourth Amendment rights were violated, i.e., that they

suffered a constitutional deprivation under § 1983.

                               II.

       The Plaintiffs argue that the Troopers violated their First

Amendment rights by interfering with their protest. That would

require a court considering the initial Saucier question to decide

whether the Plaintiffs’ formation of the pyramid while wearing

only thong underwear constituted expressive conduct, permitting

them to invoke the First Amendment. See Texas v. Johnson, 

, 403 (1989). If that court—or this panel—concluded

that the conduct was expressive, its next determination would be

whether the State’s regulation is related to the suppression of

free expression, i.e., whether the statute is content-neutral or

                               47
content-based. See id.; City of Renton v. Playtime Theatres,

Inc., 

, 48 (1986) (explaining that “‘content-neutral’

speech regulations as those that ‘are justified without reference

to the content of the regulated speech’” (citations omitted)).

And if the court concluded that the State’s regulation is not

related to expression, then the less stringent standard announced

in United States v. O’Brien, 

(1968), would control.

. A contrary conclusion would place

the State’s regulation outside of the O’Brien test. 

whether particular conduct possesses

sufficient communicative elements to bring the First

Amendment into play,” the relevant inquiry is whether “‘[a]n

intent to convey a particularized message was present, and

[whether] the likelihood was great that the message would be

understood by those who viewed it.’” 

(quoting Spence v. Washington, 

, 409–12 (1974)).

                               48
In reaching the constitutional claim, I am convinced that the

Plaintiffs intended to convey a particularized message when

they stripped down to thongs and formed a pyramid; and indeed,

the Troopers do not dispute this. Further, on an appeal from a

grant of summary judgment, it must be assumed that “the

likelihood was great that the message would be understood by

those who viewed it.” 

–12. Therefore,

I begin by recognizing that the Plaintiffs engaged in expressive

conduct. Accordingly, they are permitted to invoke the First

Amendment.

       Generally, the Government has a “freer hand” in

restricting expressive conduct than restricting writings and

speech. 

. The Government may not,

however, forbid particular conduct “because it has expressive

elements.” 

order to determine whether the

O’Brien test applies here, I look to whether Pennsylvania has an

                              49
interest in regulating the conduct made illegal by § 5901 that is

unrelated to the suppression of expression. See 

       What is initially clear about § 5901 is that it was intended

to codify the common law. The statute was taken directly from

the Model Penal Code and is a descendant of the common law

offense of “open and notorious lewdness.” 14 West’s Pa. Prac.,

Crim. Offenses & Defenses O240 (5th ed.) (quoting 4

Blackstone, Commentaries *64). See also 

. The purpose of the statute was to prohibit conduct that

tended to corrupt the morals of the community. 

(citing Winters v. New York, 

, 515

(1948)).   The Supreme Court has made clear that “[t]he

traditional police power of the States is defined as the authority

to provide for the public health, safety, and morals.” Barnes v.

Glen Theatre, Inc., 

, 569 (1991). Accord The

License Cases, 46 U.S. (5 How.) 504, 527–28 (1847);

Medtronic, Inc. v. Lohr, 

, 475 (1996); Metro. Life

Ins. Co. v. Massachusetts, 

, 756 (1985). I am



                               50
satisfied that this interest is unrelated to expression, and

therefore, that the statute is content-neutral.

       The Plaintiffs argue that the statute18 is a content-based

regulation because it is based on “the conduct’s communicative

impact on others.”19 As the Troopers point out, however, the

Plaintiffs’ argument is essentially that

       conduct which ‘alarms’ or ‘affronts’ others has a
       ‘communicative impact’ by virtue of the very fact
       that it alarms or affronts. Offensive conduct is
       thus by definition ‘communicative’—because it
       offends people––and for the government to
       proscribe such conduct is a ‘content-based
       regulation’ because it proscribes the ‘message’ of,
       well, offensiveness.
Brief of Defendant-Appellees at 27. The Plaintiffs’ argument is

misplaced. It is a well-settled principle of our nation’s First

Amendment jurisprudence that ideas and speech may not be

proscribed merely because of the emotive impact they may have


       18.
          Again, the statute reads: “[a] person commits a
misdemeanor of the third degree if he does any lewd act which
he knows is likely to be observed by others who would be
affronted or alarmed.” 18 Pa.C.S.A. § 5901.
       19.
          To the extent that the Plaintiffs intend this argument to
be a facial challenge to the statute, I do not address it as such
because I have concluded that the statute is content-neutral.

                                51
on listeners. See, e.g., 

; Boos v. Barry,

; R.A.V. v. St. Paul, 

(1992). Yet, I

know of no case in which the Supreme Court has extended this

proscription to conduct because it elicits an “emotive impact.”

The Plaintiffs’ attempt to elide the distinction between speech

and conduct, between ideas and action, must fail.20

       For example, in R.A.V. v. St. Paul, several young men

were prosecuted for placing a burning cross in a black

neighbor’s yard, in violation of a St. Paul, Minnesota, ordinance

which prohibited placing “on public or private property a

symbol, object, appellation, characterization or graffiti,

including, but not limited to, a burning cross or Nazi swastika,

which one knows or has reasonable grounds to know arouses

anger, alarm or resentment in others on the basis of race, color,

       20.
           Importantly, the record makes clear that the Plaintiffs’
political expression was not restricted because of the content of
the message they conveyed. See Texas v. Johnson, 

, 412 (1989). The record shows that the crowd included
many other protesters, none of whom were arrested. Further, the
Troopers did not arrest one individual who participated in the
pyramid who “quickly dressed.” Egolf v. Witmer, 

, 862 (E.D.Pa. 2006) (citing Pl. Mem. at 11).

                                52
creed, religion or gender.” 

, 380 (1992) (citing St.

Paul Bias-Motivated Crime Ordinance, St. Paul, Minn.,

Legis.Code § 292.02 (1990)). The Supreme Court observed

that, “[c]ontent-based regulations are presumptively invalid,”

because “[t]he First Amendment generally prevents government

from proscribing speech, or even expressive conduct, because of

disapproval of the ideas expressed.” 

(internal citations omitted). The Court further elaborated “that

nonverbal expressive activity can be banned because of the

action it entails, but not because of the ideas.” 

The

R.A.V. Court made clear that the ordinance was content-based

not because it specified that the proscribed conduct had to

“arouse[] anger, alarm or resentment,” but because it further

restricted the impermissible bases of those sentiments to “race,

color, creed, religion or gender.” 

R.A.V. v. St.

Paul makes clear that regulations of expressive conduct are

content-based only when the regulation is justified by an interest




                               53
related to an idea or ideas communicated by the conduct, and

not because the conduct elicits a reaction.

       Next, the Plaintiffs urge this court to refer to the Supreme

Court’s test for regulation of depictions of obscenity as

articulated in Miller v. California, 

(1973).21

However, Plaintiffs overlook the Miller Court’s express

distinction between depictions and descriptions of lewdness

from lewd public conduct, stating that, “[a]lthough we are not

presented here with the problem of regulating lewd public

conduct itself, the States have greater power to regulate


       21.
             The Miller test is, in full:

       The basic guidelines for the trier of fact must be:
       (a) whether “the average person, applying
       contemporary community standards” would find
       that the work, taken as a whole, appeals to the
       prurient interest; (b) whether the work depicts or
       describes, in a patently offensive way, sexual
       conduct specifically defined by the applicable
       state law; and (c) whether the work, taken as a
       whole, lacks serious literary, artistic, political, or
       scientific value.

Miller v. California, 

, 23 (1973) (internal citations
omitted).

                                    54
nonverbal, physical conduct than to suppress depictions or

descriptions of the same behavior.” 

n.8.

The Court explicitly noted that the O’Brien test was appropriate

when dealing with the regulation of conduct embodying “both

speech and non-speech elements.” 

R.A.V. v. St. Paul and Miller v.

California teach that the O’Brien test is appropriate for the

regulation of lewd conduct that can be justified without

reference to expression of an idea. See also City of Erie v. Pap’s

A.M., 

, 289 (2000) (“If the governmental purpose

in enacting the regulation is unrelated to the suppression of

expression, then the regulation need only satisfy the “less

stringent” standard from O’Brien for evaluating restrictions on

symbolic speech.”). Accordingly, application of the O’Brien

test is appropriate.

       The next determination for a court in deciding the

constitutional question is whether the statute’s application to the

Plaintiffs satisfies the four-part test of O’Brien. In other words,



                                55
we must determine if the statute, as applied to the Plaintiffs, is

constitutional. I conclude that it is. The O’Brien Court held

that:

     [A] government regulation is sufficiently justified
     if it is within the constitutional power of the
     Government; if it furthers an important or
     substantial governmental interest; if the
     governmental interest is unrelated to the
     suppression of free expression; and if the
     incidental restriction on alleged First Amendment
     freedoms is no greater than is essential to the
     furtherance of that 

–77. First, Pennsylvania has the power to

regulate public lewdness. The Supreme Court has often upheld

similar legislation as it falls within “[t]he traditional police

power of the States . . . to provide for the public health, safety,

and morals.” 

. Second, the statute

furthers an important or substantial government purpose. The

Barnes Court held that a “public indecency statute furthers a

substantial government interest in protecting order and

morality.” 

statute at issue is not designated as a

“public indecency” statute, it serves the same function of




                                56
protecting societal order and morality. See 

.

       The third O’Brien factor—whether the government

interest is unrelated to the suppression of free expression—is

similar to the question of content-neutrality. See Pap’s 

(“[T]he regulation is still properly evaluated as

a content-neutral restriction because the interest in combating

the secondary effects associated with those clubs is unrelated to

the suppression of the erotic message conveyed by nude

dancing.”).    The Government’s interest in discouraging

lewdness and protecting children and unsuspecting adults from

such acts is unrelated to the suppression of any message

intended to be conveyed by the lewd acts. See Commonwealth

v. Allsup, 

, 1311 (Pa. 1978) (explaining that

“[t]he gist of the crime is the immediate offensive or frightening

impact on members of the public who observe or are likely to

observe the defendant’s conduct”).       As the District Court

recognized,    the   Plaintiffs’    argument—that    they   were



                                   57
“expressing themselves” through their nudity—does not change

this conclusion. See 

(“Public nudity is

the evil the State seeks to prevent, whether or not it is combined

with expressive activity.”).

       The fourth O’Brien factor inquires whether the restriction

on First Amendment freedoms is no greater than necessary to

fulfill the Government’s 

. See also

Turner Broad. Sys., Inc. v. F.C.C., 

, 662 (1994)

(“[T]he requirement of narrow tailoring is satisfied ‘so long as

the . . . regulation promotes a substantial government interest

that would be achieved less effectively absent the regulation.’”)

(citations omitted). The interest served by § 5901 is to prevent

lewd conduct in a setting where it clearly violates community

standards. See Pap’s 

. Plaintiffs do not

propose a less restrictive means of achieving this end than the

approach employed in § 5901, nor do I find it easy to posit one.

Furthermore, because this is a content-neutral restriction, the




                               58
least restrictive means analysis is not required. See Pap’s 

–02.

       Because the State applied a content-neutral law in a

constitutional manner to the Plaintiffs, and because I have

already determined that the Troopers had probable cause to

arrest the Plaintiffs, I conclude that the Plaintiffs have failed to

show that they suffered a constitutional deprivation. I would

end our inquiry with that determination, and decline to reach the

question of qualified immunity.




                                III.

       Although I am unable to join the majority analysis, I

concur in the result and would affirm the District Court’s grant

of summary judgment in favor of the State Troopers.




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