Egolf v. Witmer

526 F.3d 104, 2008 U.S. App. LEXIS 11079, 2008 WL 2151823

Opinions

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’ 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, 454 F.3d 228, 231, n. 4 (3d Cir.2006).³ For the purpose of our review, we will accept the facts as determined by the District Court, construing them in a light most favorable to the party that is claiming a constitution al violation, in this case the protesters. Gilles v. Davis, 427 F.3d 197, 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 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 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 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.”

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 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 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 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, 886 F.2d 1391, 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. 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, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (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 upon other grounds. See U.S. v. Otero, 502 F.3d 331, 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.

il.

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 U.S. 194, 200, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001); Gilles, 427 F.3d at 203. 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. Saucier, 533 U.S. at 200, 121 S.Ct. 2151; Gilíes 427 F.3d at 203. 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 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 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, 348 F.3d 48, 55-58 (2d Cir.2003); See also Robinette v. Jones, 476 F.3d 585, 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. Ehrlich, 348 F.3d at 58. 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.

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.” Saucier, 533 U.S. at 202, 121 S.Ct. 2151; Gilles, 427 F.3d at 203. 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, 483 U.S. 635, 639, 107 S.Ct. 3034, 97 L.Ed.2d 523 (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, 271 F.3d 566, 571 (3d Cir.2001). It is now axiomatic that our qualified immunity anal ysis “gives ample room for mistaken judgments by protecting all but the plainly incompetent or those who knowingly violate the law.” Gilles, 427 F.3d at 203.

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 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. Saucier, 533 U.S. at 204-5, 121 S.Ct. 2151; Gilies, 427 F.3d at 203.

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

This situation 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. McLaughlin, 271 F.3d at 571. 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 reason able 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.

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.

Footnotes

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.

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, 502 F.3d 331, 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 over the District Court's final order pursuant to 28 U.S.C. § 1291.

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

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

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 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, 42 F.3d 809, 819 (3d Cir.1994).

9

. The majority does not hold the view that Saucier abrogated the long-standing maxim that courts will not reach constitutional issues unnecessarily. Saucier, 533 U.S. at 207, 121 S.Ct. 2151 ("[T]he [sequential] procedure permits courts in appropriate cases to elaborate the constitutional right with greater degrees of specificity.” (emphasis added)).

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) Heinbaugh, 354 A.2d at 247, citing Model Penal Code Comment at p. 81. Nudity or overt sexually offensive displays are therefore essential to "lewd” conduct. Id. (citing Winters v. New York, 333 U.S. 507, 515, 68 S.Ct. 665, 92 L.Ed. 840 (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. Id., See Commonwealth v. Williams, 394 Pa.Super. 90, 574 A.2d 1161, 1163 (1990). The essence of the inquiry here is whelher 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, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968).

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.