Paff v. Kaltenbach

Opinions of the United

2000 Decisions States Court of Appeals

for the Third Circuit

2-28-2000

Paff v. Kaltenbach

Precedential or Non-Precedential:

Docket 99-6025

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Filed February 28, 2000

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 99-6025

JOHN PAFF; JAMES TIMOTHY KONEK, Individuals,

Appellants

v.

GEORGE KALTENBACH, in his individual and official

capacities; JOHN DOES 1-3; THE TOWNSHIP OF

EAST BRUNSWICK

On Appeal From the United States District Court

For the District of New Jersey

(D.C. Civil Action No. 97-cv-01197)

District Judge: Honorable Joseph A. Greenaway, Jr.

Argued June 18, 1999

BEFORE: NYGAARD, COWEN and STAPLETON,

Circuit Judges

(Filed February 28, 2000)

Richard F. Collier, Jr.

Christopher Walsh (Argued)

Collier, Jacob & Mills

580 Howard Avenue

Corporate Park III

Somerset, NJ 08873

Attorneys for Appellants

George Wilgus, III (Argued)

Lenox, Socey, Wilgus, Formidoni

& Casey

3131 Princeton Pike

Trenton, NJ 08648

and

Joseph J. Benedict

Benedict & Altman

247 Livingston Avenue

New Brunswick, NJ 08901

Attorneys for Appellees

OPINION OF THE COURT

STAPLETON, Circuit Judge:

Appellants are two political activists who were arrested

for criminal trespassing while distributing Libertarian Party

literature outside the post office in East Brunswick, New

Jersey. They brought suit against Kaltenbach, the arresting

officer, under 42 U.S.C. S 1983, alleging a violation of their

constitutional rights, as well as violations of state tort law.

The District Court entered summary judgment for the

defendant police officer on grounds of qualified immunity.

We will affirm.

I. FACTS AND PROCEDURAL HISTORY

Plaintiff-Appellants John Paff and James Konek are

officers of the Libertarian Party of Somerset and Middlesex

Counties in New Jersey. The Libertarian Party is a national

organization that advocates a free-market economy and

seeks to "roll back the size of government by replacing

taxes with voluntary user fees for governmental services."

To this end, the Party sponsors peaceful demonstrations

each year on April 15, tax day, to protest the tax burdens

imposed on American citizens and illustrate the Party's

opposition to taxes and to the Internal Revenue Service.

The demonstrations are held each April 15th evening,

throughout the United States, in front of post office

buildings where taxpayers go to mail their tax returns.

2

In order to assist in the organization of these rallies, the

Libertarian National Committee has developed a "Million

Dollar Tax Day Outreach" package, which is provided to

Party representatives and contains tips on how to ensure

an "effective outreach-oriented protest." The mainstay of the

protest is the distribution of mock $1,000,000 bills, which

are printed to resemble a Federal Reserve note and, on the

reverse side, prominently state: "The U.S. Government

Spends $1,000,000 Every Five Seconds." The fake bill also

contains additional information about federal government

appropriations and a coupon designed to be clipped and

mailed in for more information about the Libertarian Party.

The Outreach Package, designed for the organizers of

such events, contains information about printing these

leaflets, selecting a post office, managing volunteers,

distributing press releases, etc. In a section entitled

"Problems," the package advises leafletters not to block the

entrance of the post office; to pick up dropped leaflets; to

hand out literature to people as they are leaving, rather

than entering, the post office; and to avoid "unnecessary

disputes" with post office officials. In the event post office

officials attempt to remove the demonstrators, the package

contains a "Legal Memo" expressing the view that the

demonstrators have a legal right to distribute literature on

post office property. In this instance, Paff, Chairman of the

local chapter's Political Awareness Committee, also

personally researched the relevant law and concluded that

their planned tax day protest did not violate postal

regulations and was in fact protected by the First

Amendment.

On April 10, 1996, Paff mailed a letter to the Postmaster

of the East Brunswick, New Jersey Post Office, signed by

the local party chairperson, advising the Postmaster that

they planned to conduct a tax day protest "on the grounds

of your facility on the evening of April 15th," and enclosing

a press release describing the event. The letter further

explained they had been advised by the national party

leaders that the planned activities were completely lawful

and asked that "[i]f you have a different opinion on this

matter, please advise me prior to the event." The

Postmaster did not reply.

3

On April 15, 1996, the East Brunswick postal branch

remained open until midnight to permit its patrons to file

their 1995 tax returns. At approximately 9:00 p.m. that

evening, Paff, Konek, and three other tax protesters stood

on the postal sidewalk area, between the parking lot and

the front door of the post office. As the postal customers

exited the building, Paff, Konek, or another party member

approached some of them and handed them a prepared

leaflet.

Shortly after the commencement of the leafleting activity,

the Postmaster, Steve Leddy, emerged from the post office

and told Paff that he and the other protesters would have

to move to the public right-of-way, along Cranbury Road.

The East Brunswick postal building is set back

approximately 75 feet from the nearest thoroughfare,

Cranbury Road, which has no adjoining sidewalk. Postal

customers enter the building via an access road that

connects with Cranbury Road and depart the facility

through another access road. As such, the sidewalk area

where plaintiffs stood is designed specifically to facilitate

access by postal customers to the post office from the

parking area. Two newspaper vending machines are located

on this sidewalk area.

Upon being instructed to move to Cranbury Road, Paff

explained to the Postmaster that he had researched the

matter and that he and his fellow protesters had a

constitutional right to remain there. Leddy then re-entered

the postal facility and proceeded to call the police. Paff,

Konek, and the others continued to distribute leaflets.

Shortly thereafter, Officers Kaltenbach and Koslowski

were dispatched to the scene. Upon their arrival, Leddy

introduced himself, identified the protesters, and informed

the officers that he had instructed the protesters to move to

the public thoroughfare along Cranbury Road, but they had

refused. Leddy told the officers that, by using the postal

sidewalk, the protesters were a potential obstruction to

customers entering and exiting the building on postal

business. Kaltenbach told Leddy that if the protesters

refused to move, and if Leddy would sign a complaint,

Kaltenbach would arrest them. Leddy agreed to sign a

complaint.

4

Kaltenbach then told the protesters that they could move

to the public right-of-way beside Cranbury Road, but if they

remained on the postal sidewalk, they would be arrested.

Paff explained that he and his fellow protesters had a

constitutional right to distribute leaflets in front of the post

office building. Kaltenbach repeated that if they did not

move, he would arrest them. Paff said that he was the

"designated arrestee" and that Kaltenbach should arrest

him because he would not move; thereafter, all of the

protesters except Paff and Konek left the area.

Kaltenbach then called his lieutenant and explained the

situation, indicating that he was going to have to arrest two

of the protesters for trespass. The lieutenant told

Kaltenbach to bring the Postmaster back to headquarters to

sign the complaint. Kaltenbach proceeded to arrest both

Paff and Konek and brought them back to police

headquarters, along with Postmaster Leddy. Kaltenbach

also arranged for Konek's car, which was parked at the

postal facility, to be towed and impounded. At the

lieutenant's direction, Kaltenbach himself signed the

complaints, charging Paff and Konek with defiant

trespassing, in violation of N.J. Stat. S 2C:18-3(b)(1).1 After

their arrest and booking, bail was set at $5,000, Paff and

Konek posted bail and were released at 3:00 a.m. the next

morning, April 16, 1996.

On September 17, 1996, at the request of the East

Brunswick prosecutor, the East Brunswick Township

Municipal Court dismissed the charges against Paff and

Konek. The prosecutor explained that, although Leddy

initially requested police assistance and indicated his

willingness to sign the complaints for the arrest of Paff and

Konek, Leddy thereafter learned of an internal Postal

Service policy not to prosecute trespassers unless there has

been a physical obstruction of the postal facility.

_________________________________________________________________

1. The defiant trespass statute provides, in pertinent part, that a

"person

commits a petty disorderly offense if, knowing that he is not licensed or

privileged to do so, he enters or remains in any place as to which notice

against trespass is given by . . . actual communication to the actor."

N.J.

Stat. S 2C:18-3(b)(1) (West 1999).

5

Paff and Konek subsequently brought suit in U.S. District

Court against Kaltenbach, alleging violations ofS 1983 and

state tort law. Specifically, plaintiffs alleged that their arrest

violated their First Amendment right to distribute leaflets

on the post office sidewalk; that Kaltenbach arrested them

without probable cause, in violation of the Fourth

Amendment; that Kaltenbach participated in setting

excessive bail in violation of the Eighth Amendment; and

that Kaltenbach's impoundment of Konek's car amounted

to a deprivation of property without due process in violation

of the Fourteenth Amendment. In addition, plaintiffs

presented common law claims against Kaltenbach for false

arrest, malicious prosecution, and conversion (of Konek's

vehicle).

Following discovery, the plaintiffs moved for summary

judgment as to liability against Kaltenbach, and Kaltenbach

filed a cross-motion for summary judgment on all claims

against him. The District Court granted summary judgment

to plaintiffs only on their claim that the impoundment of

Konek's vehicle was improper. As to plaintiffs' First

Amendment claim, the Court found that plaintiffs had a

right, protected by the First Amendment, to leaflet on the

postal sidewalk. The Court granted summary judgment to

Kaltenbach, however, because it found he was entitled to

qualified immunity. As to plaintiffs' Fourth Amendment

claim, the Court found that, based on the advice

Kaltenbach received from Leddy, he had probable cause to

arrest plaintiffs. On all remaining claims, the District Court

also granted summary judgment to Kaltenbach.2

This appeal followed. This Court exercises plenary review

over a District Court's entry of summary judgment,

including its determination of a law enforcement officer's

entitlement to qualified immunity. See In re: City of

Philadelphia Litigation, 49 F.3d 945, 960 (3d Cir. 1995).

_________________________________________________________________

2. In addition to the First and Fourth Amendment claims discussed

herein, plaintiffs make two other assertions of error, which we find to be

without merit. Specifically, plaintiffs argue that the District Court

erred

in failing to find that (1) Kaltenbach falsely arrested and maliciously

prosecuted plaintiffs, thereby entitling plaintiffs to punitive damages;

and (2) Kaltenbach violated plaintiffs' Eighth Amendment rights by

imposing an excessive bail requirement on them.

6

II. THE FIRST AMENDMENT CLAIM

Under the doctrine of qualified immunity, government

officials performing discretionary functions are"shielded

from liability for civil damages insofar as their conduct does

not violate clearly established statutory or constitutional

rights of which a reasonable person would have known."

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Under

Siegert v. Gilley, 500 U.S. 226, 232 (1991), before a court

even addresses a claim of qualified immunity, however, it

first should determine whether the facts alleged by the

plaintiff constitute a "violation of a constitutional right at

all." In this case, the District Court determined that, under

Int'l Society for Krishna Consciousness, Inc. v. Lee , 505 U.S.

672 (1992) ("Lee") and United States v. Kokinda, 497 U.S.

720 (1990), Paff and Konek had a constitutional right under

the First Amendment to distribute political literature on

postal property and that the facts alleged revealed a

violation of that right. Because appellees did not cross-

appeal this determination, the only issue before us on

appeal is the propriety of the District Court's ruling that

Kaltenbach was entitled to qualified immunity. See Assaf v.

Fields, 178 F.3d 170, 174 (3d Cir. 1999).

A court presented with a claim of qualified immunity

must examine both the law that was clearly established at

the time of the alleged violation and the facts available to

the official at that time, and must then determine, in light

of both, whether a reasonable official could have believed

his conduct was lawful. See Good v. Dauphin County Social

Serv. for Children and Youth, 891 F.2d 1087, 1092 (3d Cir.

1989). Accordingly, we first examine the state of the

relevant law at the time of the arrest of both Paff and Konek

and then turn to an analysis of the information available to

Kaltenbach at that time. The ultimate issue will then be

whether, given the established law and the information

available to Kaltenbach, a reasonable law enforcement

officer in Kaltenbach's position could have believed that his

conduct was lawful.

The Supreme Court has "adopted a forum analysis as a

means of determining when the Government's interest in

limiting the use of its property to its intended purpose

outweighs the interest of those wishing to use the property

7

for other purposes. Accordingly, the extent to which the

Government can control access depends on the nature of

the relevant forum." Cornelius v. NAACP Legal Defense &

Educational Fund, Inc., 473 U.S. 788, 800 (1985). When the

relevant public property is determined to be a "non-public

forum," rather than an "open forum" or a"designated

forum," the government has greater freedom to restrict

speech. Perry Educ. Ass'n v. Perry Local Educators' Ass'n,

460 U.S. 37 (1983).

In United States v. Kokinda, 497 U.S. 720 (1990), the

Supreme Court upheld the constitutionality of postal

regulations that prohibited the solicitation of"alms and

contributions" on post office property.3 In the course of its

analysis, a four-Justice plurality determined that a post

office sidewalk was a non-public forum. The sidewalk, like

the sidewalk here, was located between the parking lot and

the post office, at some distance from the nearby road, and

was constructed solely to assist patrons of the post office.4

_________________________________________________________________

3. In full, the postal regulation upheld in Kokinda provides:

Soliciting alms and contributions, campaigning for election to any

public office, collecting private debts, commercial soliciting and

vending, and displaying or distributing commercial advertising on

postal premises are prohibited.

39 C.F.R. S 232.1(h)(1) (1989).

4. Rejecting the argument that the postal sidewalk is indistinguishable

from the municipal sidewalk that runs along side the road, the Kokinda

Court explained:

The postal sidewalk at issue does not have the characteristics of

public sidewalks traditionally open to expressive activity. The

municipal sidewalk that runs parallel to the road in this case is a

public passageway. The Postal Service's sidewalk is not such a

thoroughfare. Rather, it leads only from the parking area to the

front door of the post office. Unlike the public street described

in

Heffron v. International Society for Krishna Consciousness, Inc.,

452

U.S. 640 (1981), which was "continually open, often uncongested,

and constitute[d] not only a necessary conduit in the daily affairs

of

a locality's citizens, but also a place where people[could] enjoy

the

open air or the company of friends and neighbors in a relaxed

environment," id., at 651, the postal sidewalk was constructed

solely

to provide for the passage of individuals engaged in postal

business.

8

Because the sidewalk was a non-public forum, the plurality

concluded that the "government's decision to restrict access

. . . need only be reasonable." Id. (quoting Cornelius, 473

U.S. at 806). The prohibition was found to be reasonable

"because solicitation is inherently disruptive of the Postal

Service's business." Id. at 732. Justice Kennedy,

concurring, found the regulations constitutional even if the

sidewalk was a public forum, as the dissenters contended.

In United States v. Bjerke, 796 F.2d 643 (3d Cir. 1986),

this Court foreshadowed the ruling in Kokinda when it

upheld the constitutionality of the same postal regulation.

Like the Kokinda plurality, the Bjerke court also found the

postal sidewalk at issue in that case to be a non-public

forum and rejected the argument that the presence of

"newspaper vending machines and a gumball machine

encouraging charitable contributions" converted the area

into a public forum. As the court there explained,"that the

government permits selective access to a nontraditional

forum does not manifest an intent to designate an area a

public forum for all expressive purposes." Id. at 649. We

held that it was not unreasonable for postal officials to

believe that solicitation held the potential for interference

"with their mission to provide reliable postal services." Id. at

650.

Since Bjerke and Kokinda, both of which addressed bans

on solicitation, a restriction on leafleting was considered by

the Supreme Court in Lee v. Int'l Society for Krishna

Consciousness, Inc., 505 U.S. 830 (1992) (incorporating

concurring opinions at 505 U.S. 672 (1992)). In Lee, the

Court considered both a ban on the solicitation of funds

_________________________________________________________________

The sidewalk leading to the entry of the post office is not the

traditional public forum sidewalk referred to in Perry. Nor is the

right of access under consideration in this case the quintessential

public sidewalk which we addressed in Frisby v. Schultz, 487 U.S.

474 (1988) (residential sidewalk). The postal sidewalk was

constructed solely to assist postal patrons to negotiate the space

between the parking lot and the front door of the post office, not

to

facilitate the daily commerce and life of the neighborhood or city.

Kokinda, 497 U.S. at 727.

9

within the airports of the New York/New Jersey Port

Authority, as well as a ban on the "repetitive distribution of

printed or written materials." It concluded that the airport

terminals were non-public fora, applying the

reasonableness standard, despite the fact "that the public

spaces in the airports are broad, public thoroughfares full

of people and lined with stores and other commercial

activities." 505 U.S. at 700 (Kennedy, J., concurring). The

Court upheld the solicitation ban but struck down the

leafleting ban. The challenged leafleting regulation was a

complete and permanent prohibition on the "sale or

distribution of flyers, brochures, pamphlets, books or any

other printed or written material," if conducted within the

airport terminal, "in a continuous or repetitive manner."

The leafleting issue was resolved in a per curiam opinion

that cited "the reasons set forth in the opinions of " Justices

O'Connor, Kennedy and Souter filed in the appeal relating

to the ban on solicitation. Central to the reasoning of all

three was the view that, in contrast to "discrete, single

purpose facilities" like the post office in Kokinda, the

airports were "operating a shopping mall as well as an

airport." 505 U.S. at 688-89. For the majority of justices

who had concluded that the non-public forum analysis was

appropriate, "the reasonable inquiry, therefore,[was] not

whether the restrictions on speech are `consistent with . . .

preserving the property for air travel, . . . but whether they

[were] reasonably related to maintaining the multi-purpose

environment that the Port Authority [had] deliberately

created." Id. at 689. The Court held that they were not.

Finally, reference to Perry Educ. Ass'n v. Perry Local

Educators Ass'n, 460 U.S. 37 (1983) (upholding rule

granting teachers' bargaining representative exclusive

access to teacher mailboxes and the interschool mail

system to the exclusion of a rival union), and Cornelius v.

NAACP Legal Defense & Educ. Fund, 473 U.S. 788 (1985)

(upholding executive order limiting participation in a

charity drive aimed at federal employees and military

personnel), is appropriate. In each, the relevant forum was

found to be a non-public one. In each, the issue for

decision was whether the public agency involved was

reasonable in believing that the prohibited expression might

10

interfere with its mission, and in each, the party attacking

the restraint stressed that there was no evidence of actual

interference having occurred. In Perry, the Court responded

by acknowledging that there was "no showing in the record

of past disturbances stemming from [the prohibited] access"

to the forum "or evidence that future disturbances would be

likely." Nevertheless, it pointed out that the Court had "not

required that such proof be present to justify the denial of

access to a non-public forum on grounds that the proposed

use may disrupt the property's intended function." Perry,

460 U.S. at 52 n.12. In Cornelius, the Court responded

"that the Government need not wait until havoc is wreaked

to restrict access to a non-public forum." 473 U.S. at 810.

The existing caselaw at the time of the arrests thus

clearly established a number of relevant principles. First, a

sidewalk like the one involved here is a non-public forum.

This follows from Kokinda, Bjerke, and, a fortiori, from Lee.

Second, a public agency may place reasonable restrictions

on speech in a non-public forum. Third, "a restriction on

speech in a non-public forum is `reasonable' when it is

`consistent with the [government's] legitimate interest in

preserv[ing] the property . . . for the use to which it is

lawfully dedicated." Lee, 505 U.S. at 688 (quoting Perry).

And finally, restrictions on speech in a non-public forum

may be imposed if it is reasonable to anticipate that

interference with the mission of the agency may occur, even

though it has not yet occurred.

We now turn to the information available to Kaltenbach

at the time of the arrests. As soon as Kaltenbach arrived on

the scene, Postmaster Leddy identified himself as the

official responsible for the premises and the carrying out of

the mission of the postal facility. It was an extraordinary

evening for that postal facility; it was still open at 9:00 P.M.

because midnight was the deadline for postmarking tax

returns. Accordingly, a heavy public utilization of the postal

facility could be expected. Leddy explained to Kaltenbach

that the protesters were a potential obstruction to

customers entering and exiting the building on postal

business and that they could not remain on the postal

sidewalk. In the event the protestors refused to move their

distribution to the public rights-of-way, Leddy said he

11

would come to police headquarters and sign a complaint so

that charges could be pressed against the protesters.

Kaltenbach then confronted the protestors and learned that

they claimed to have a constitutional right to distribute

leaflets on the sidewalk. They refused to withdraw to the

public roadway, and he made his decision to arrest.

This brings us to the issue of whether, given the

established law and the information available to

Kaltenbach, a reasonable law enforcement officer in his

position could have believed his conduct was legal. We

agree with the plaintiffs that a reasonable law enforcement

officer in Kaltenbach's position would have known, based

on Kokinda and Lee, that the protestors could be precluded

from distributing leaflets on the post office sidewalk only if

it was reasonable under all of the circumstances for the

postal authorities to prohibit that activity. However, we do

not believe that a reasonable officer would understand the

caselaw to mandate a conclusion that the restriction here

imposed was unreasonable. While Lee struck down a

prohibition on leafleting in large airports, there are material

distinctions between the situation there addressed and the

one that faced Kaltenbach. The purpose to which the

property is dedicated is crucial to the reasonableness

analysis, and as the Supreme Court itself noted, the

purpose to which the airports in Lee were dedicated was far

different from that of a sidewalk between a post office and

its parking lot. Moreover, the ban on leafleting in Lee was

a permanent one. The ban imposed by Leddy and enforced

by Kaltenbach was a temporary, one time measure to

address an extraordinary situation which Leddy said held

the potential for interfering with the mission of the facility.

In our view, a reasonable law enforcement officer with

knowledge of the relevant legal principles and the

information available would have done exactly what

Kaltenbach did here. Given the postmaster's responsibility

for and experience with the postal facility, it was reasonable

for Kaltenbach to accept his judgment that the leafleting

activity, if continued, would impede the public in making

timely use of the postal facility. And given that factual

predicate, Kaltenbach had every reason to believe that the

restraint imposed was a constitutionally valid one.

12

Leddy was a public officer whom Kaltenbach could

reasonably presume to be familiar with the conditions likely

to be encountered at the facility on that evening. For

example, more so than any officer just arriving on the

scene, a postmaster could be expected to know relevant

facts, like how much customer traffic through the postal

facility is to be expected between 9 P.M. and midnight on

April 15th, the extent to which conflicts have erupted in the

past between protesters and customers on postal property,

and whether protesters have previously leafleted effectively

along the public right-of-way on Cranbury Road. Such facts

were necessary to an analysis of the reasonableness of the

restriction Leddy sought to impose. To require an officer to

assess the reasonableness of a restriction such as this one

without reference to the postmaster's unique knowledge

would strip the determination of the very facts essential to

its making.

We do not, of course, suggest that a law enforcement

officer will always act reasonably in relying on the facts

provided by a custodian of public property. We hold as we

do because the applicable law required a detailed factual

assessment; the facts necessary to make that assessment

were otherwise unavailable to Kaltenbach; and there was

no reason to question the good faith of the custodian.

Contrary to plaintiffs' suggestion, we do not believe a

reasonable law enforcement officer would have second-

guessed the Postmaster simply because no actual

obstruction of the sidewalk had yet occurred. As we noted

earlier, "the Government need not wait until havoc is

wreaked to restrict access to a non-public forum." Cornelius

v. NAACP Legal Defense & Educ. Fund, 473 U.S. 788, 810

(1985).5

_________________________________________________________________

5. The applicable postal regulations prohibit any activity "which

obstructs the usual use of entrances . . . or which impedes or disturbs

the general public in transacting business or obtaining the services

provided on [post office] property . . . ." 39 C.F.R. S 232.1(e). As we

read

these regulations, they anticipate that local postmasters will be required

to exercise discretion as to whether particular conduct in particular

circumstances is likely to "obstruct," "impede," or "disturb." The

regulations expressly authorize "[l]ocal postmasters . . . [to] enter into

agreements with State and local enforcement agencies to ensure that the

13

In sum, Kokinda and Lee clearly establish that

reasonable restrictions on speech on postal property are

permissible. Because we believe a reasonable officer would,

and in fact should, consider the views of the postmaster in

this situation, we have no difficulty concluding that

Kaltenbach could have believed the restriction imposed

here was reasonable, and that his own conduct was

therefore lawful. Thus, Kaltenbach is protected by the

doctrine of qualified immunity with respect to the plaintiffs'

claimed violation of their First Amendment rights.

III. THE FOURTH AMENDMENT CLAIM

The Fourth Amendment prohibits a police officer from

arresting a citizen without probable cause. See Orsatti v.

New Jersey State Police, 71 F.3d 480, 482 (3d Cir. 1995)

(citing Papachristou v. City of Jacksonville, 405 U.S. 156

(1972)). After their arrest, plaintiffs were charged with

violating New Jersey's criminal defiant trespass statute.

N.J. Stat. S 2C:18-3(b)(1) (West 1999).6 Under this statute,

"[a] person commits a petty disorderly offense if, knowing

that he is not licensed or privileged to do so, he enters or

remains in any place as to which notice against trespass is

given by . . . actual communication to the actor." Id.

_________________________________________________________________

. . . rules and regulations are enforced." Id. S 232.1(q)(2). There is

thus

authority that Postmaster Leddy could cite in support of his right to

make the decision he made on the evening in question. Accordingly, it is

not at all clear to us, as it is to the dissent, that the activity of Paff

and

Konek at the time of their arrest was "indisputably legal." We stress,

however, that we have no occasion to address here whether Postmaster

Leddy violated the First Amendment or whether, if sued, he would be

entitled to qualified immunity. We hold only that, given the clearly

established law and the information available to Kaltenbach, a

reasonable law enforcement officer in his position could have believed his

conduct was lawful.

6. "Probable cause need only exist as to any offense that could be

charged under the circumstances." Barna v. City of Perth Amboy, 42

F.3d 809, 819 (3d Cir. 1994) (emphasis added). However, the defiant

trespass statute is the only statute to which Kaltenbach points as

justification for the arrests.

14

Plaintiffs contend that there was no probable cause to

believe that they were committing this offense. 7

Plaintiffs' argument is straightforward. They observe that

an essential element of the offense for which they were

arrested is that the alleged trespasser subjectively knew he

was not licensed or privileged to be on the property in

question. See, e.g., State v. Santiago, 527 A.2d 963, 965

(N.J. Super. Ct. Law Div. 1986) (conviction reversed where

reasonable doubt existed as to whether defendant

subjectively knew she was not privileged to enter). Paff and

Konek insist that according to the undisputed evidence

regarding the facts available to Kaltenbach at the time of

_________________________________________________________________

7. In their briefs before this Court, Paff and Konek maintain that

"Officer

Kaltenbach also lacked probable cause to arrest[them] because the state

criminal statute pursuant to which he made the arrest does not

criminalize the activities at issue on postal property." Brief for

Appellants

at 35. To support their argument, plaintiffs rely on the Assimilative

Crimes Act, 18 U.S.C. S 13(a), which provides that:

Whoever within or upon any [federal enclave], is guilty of any act

or

omission which, although not made punishable by any enactment of

Congress, would be punishable if committed or omitted within the

jurisdiction of the State . . . in which such place is situated, .

. .

shall be guilty of a like offense and subject to like punishment.

Plaintiffs' principle argument is that 39 C.F.R.S 232.1 (entitled "Conduct

on Postal Property") represents a detailed federal enactment that fully

regulates activities conducted on postal property and, thus, preempts

related state laws.

In Lewis v. United States, 523 U.S. 155, 118 S. Ct. 1135, 1141-42

(1998), the Supreme Court held that, where a congressional enactment

applies to the act or omission at issue, courts must determine whether

the "applicable federal law indicate[s] an intent to punish conduct such

as the defendant's to the exclusion of the particular state statute at

issue." If not, then the state criminal statute is applicable,

notwithstanding the fact that the crime occurred in a federal enclave. In

this case, the relevant legislative intent could not be clearer.

Subsection

(p)(2) of the postal regulations expressly provides that "[n]othing

contained in these rules and regulations shall be construed to abrogate

. . . any State and local laws and regulations applicable to any area in

which the property is situated." 39 C.F.R. S 232.1(p)(2). Given such a

clear statement, we have no trouble concluding that New Jersey's

trespass laws are applicable to plaintiffs' conduct.

15

the arrest, they not only subjectively believed (i.e., "knew")

that they were privileged to distribute leaflets on the

sidewalk, but that Paff explained this belief to both Leddy

and Kaltenbach. In addition, plaintiffs contend that the

undisputed facts reveal no evidence that Konek "knew"

anything different. Thus, according to plaintiffs, all of the

evidence available to Kaltenbach at the time of the arrest

established that Paff and Konek believed that they were

constitutionally privileged to remain on the property and,

as a result, there was insufficient evidence from which

Kaltenbach could have found probable cause as to this

essential element of the offense.

Kaltenbach responds that he had probable cause to

believe the plaintiffs knew they were not privileged to

remain on the postal sidewalk as soon as he learned that

the plaintiffs had been so advised by the postmaster. Such

probable cause was reinforced, he contends, once

Kaltenbach himself discussed the matter with the plaintiffs.

Paff informed him that he was the "designated arrestee,"

thereby indicating that advance consideration had been

given to the legality of the proposed protest and that the

protesters recognized that law enforcement authorities

might, at least under some circumstances, view it as illegal.

Probable cause to arrest exists when the information

within the arresting officer's knowledge at the time of the

arrest is sufficient to warrant a reasonable law enforcement

officer to believe that an offense has been or is being

committed by the person to be arrested. See United States

v. Cruz, 910 F.2d 1072, 1076 (3d Cir. 1990). It"is a fluid

concept -- turning on the assessment of probabilities in

particular factual context -- not readily, or even usually,

reduced to a neat set of legal rules." Illinois v. Gates, 462

U.S. 213, 232 (1983). While probable cause to arrest

requires more than mere suspicion, the law recognizes that

probable cause determinations have to be made "on the

spot" under pressure and do "not require thefine resolution

of conflicting evidence that a reasonable doubt or even a

preponderance standard demands." Gerstein v. Pugh, 420

U.S. 103, 121 (1975). A " `common sense' approach [must

be taken] to the issue of probable cause" and a

determination as to its existence must be based on"the

16

totality of the circumstances." Sharrar v. Felsing, 128 F.3d

810, 818 (3d Cir. 1997).

The leading Supreme Court case on the application of the

doctrine of qualified immunity in the context of a

determination of probable cause is Anderson v. Creighton,

483 U.S. 635 (1987). The Court there noted "the difficulty

of determining whether particular searches or seizures

comport with the Fourth Amendment." Id. at 644. Because

reasonable minds can differ on whether particular arrests

meet the imprecise standards of probable cause we have

just discussed, the Court recognized that not every

determination that probable cause was lacking requires a

finding that the arresting officer is liable for damages. Room

must be provided for reasonable mistakes. As the Court put

it:

We have recognized that it is inevitable that law

enforcement officials will in some cases reasonably but

mistakenly conclude that probable cause is present,

and we have indicated that in such cases those officials

-- like other officials who act in ways they reasonably

believe to be lawful -- should not be held personally

liable.

Id. at 641.

The Anderson Court noted the general rule that "whether

an officer protected by qualified immunity may be held

personally liable for an allegedly unlawful action generally

turns on the `objective legal reasonableness' of the action

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

established at the time it was taken." Id. at 639. It then

explained that in the context of a probable cause

determination, a determination regarding whether the

relevant law was clearly established must take into account

the specific circumstances that confronted the officer. "[T]he

right the official is alleged to have violated must have been

`clearly established' in a . . . particularized .. . sense. The

contours of the right must be sufficiently clear that a

reasonable official would understand that what he is doing

violates that right. This is not to say that an official action

is protected by qualified immunity unless the very action in

question has previously been held unlawful, . . . but it is to

17

say that in the light of pre-existing law the unlawfulness

must be apparent." Id. at 640.

We understand Anderson to require us to look at the

circumstances that confronted Kaltenbach and to compare

the circumstances present in those cases which have

concluded that there was an absence of probable cause. If

there are cases that would make it "apparent " to a

reasonable officer in Kaltenbach's position that probable

cause was lacking, qualified immunity is not available. Id.

(emphasis added). If not, Kaltenbach is entitled to qualified

immunity. As the Anderson Court noted, "qualified

immunity protects `all but the plainly incompetent or those

who knowingly violate the law.' " Id. at 638 (quoting Malley

v. Briggs, 475 U.S. 335, 341 (1986)).

Absent a confession, the officer considering the probable

cause issue in the context of crime requiring a mens rea on

the part of the suspect will always be required to rely on

circumstantial evidence regarding the state of his or her

mind. Ordinarily, information supporting a conclusion that

the potential defendant in a trespass case was not licensed

or privileged and that he was so advised by the custodian

of the property will provide sufficient circumstantial

evidence to constitute probable cause on the mens rea

element. Moreover, this will normally be true even where

the potential defendant, upon being confronted by a law

enforcement officer, makes a claim of entitlement to be on

the premises.

Kaltenbach learned information prior to the arrest which

provided probable cause to believe that Paff and Konek

were not licensed or privileged and that they had been so

advised by the custodian of the property. What makes the

probable cause/mens rea issue more difficult here than in

most trespass cases are the facts that this was public

property, Paff and Konek were engaged in expressive

activity, and they expressly purported to be acting on legal

advice specifically addressed to the issue of license or

privilege.

Kaltenbach was required to make a judgment call

regarding plaintiffs' state of mind. Paff and Konek told

Kaltenbach that they believed they were entitled to be

18

leafleting on the sidewalk and offered a plausible

explanation for that belief. Nevertheless, we find nothing in

the probable cause jurisprudence that makes it apparent

that Kaltenbach was required to accept that assertion at

face value. The existence of a "designated arrestee"

indicated that Paff and Konek realized that there were

circumstances under which their planned conduct might be

viewed as illegal by law enforcement authorities, and they

had been advised by the postmaster that their conduct, if

continued through the evening, was likely to lead to an

obstruction of post office patrons. A belief in the general

right to leaflet on post office property is not inconsistent

with knowledge that potentially obstructive conduct is

illegal.

Kaltenbach had to make a judgment based on

circumstantial evidence. The issue was close enough that

there was the potential of a court subsequently determining

that he made the wrong choice. In light of the clearly

established law and the information available to him,

however, his choice was not objectively unreasonable and

suggests neither that he was incompetent nor that he

knowingly violated the law. Accordingly, we conclude that

he is entitled to qualified immunity.

IV.

Accordingly, we will affirm the order of the District Court

granting summary judgment to Kaltenbach on all counts.

19

COWEN, Circuit Judge, dissenting.

In this appeal we must decide whether a police officer is

entitled to qualified immunity when, on the night federal

income taxes were due, he arrested John Paff and James

Konek, who stood on a sidewalk outside a post office,

handing out leaflets protesting the government's taxation

policies. At the time of the arrests peaceful leafleting on a

postal sidewalk was indisputably legal: the controlling

postal regulation does not ban leafleting and instead only

prohibits disorderly conduct and soliciting alms or

contributions. See 39 C.F.R. S 232.1. If there were any

doubt about how to interpret this regulation, we have

previously said, while upholding the ban on solicitation,

that protesters can distribute leaflets:

[Protesters] may publicly express their views while on

postal property, they may distribute political literature,

and engage patrons in any lawful dialogue. In fact, they

may even solicit financial contributions immediately

outside postal premises, and perhaps even on certain

portions of postal property. They are simply required

not to engage in solicitations at a place where such

activities would obstruct necessary and nonpolitical

post office operations.

United States v. Bjerke, 796 F.2d 643, 652-63 (3d Cir.

1986). The availability of leafleting was important to our

decision in Bjerke because in upholding the regulation's

ban on solicitation we relied in part on the fact that

leafleting and other types of expressive activity remain

legal. Id. at 650.

Several years after Bjerke five Justices on the Supreme

Court also interpreted the relevant postal regulation to

allow peaceful leafleting, and the remaining four Justices

never maintained that the regulation prohibits it. In Justice

Kennedy's concurrence he said, "The regulation, as the

United States concedes, expressly permits the respondents

and all others to engage in political speech on topics of

their choice and to distribute literature soliciting support,

including money contributions, provided there is no in-

person solicitation for payments on the premises." United

States v. Kokinda, 497 U.S. 720, 738-39, 110 S.Ct. 3115,

20

3126 (1990). Much as we reasoned in Bjerke, Justice

Kennedy also relied in part on the availability of these other

expressive activities when he concurred in the Court's

judgment that the solicitation ban was permissible. Id. at

739, 110 S.Ct. at 3126. The four Justices in dissent

similarly agreed that the postal regulation permits"labor

picketing, soapbox oratory, distributing literature, holding

political rallies, playing music, circulating petitions, or any

other form of speech not specifically mentioned in the

regulation." Id. at 750, 110 S.Ct. at 3132. Even Justice

O'Connor's opinion for the remaining four Justices

conceded that "individuals or groups have been permitted

to leaflet, speak, and picket on postal premises," and never

expressly said that the regulation prohibited such conduct.

Id. at 730, 110 S.Ct. at 3121.

Thus it is clearly established that under the postal

regulation protesters have a legal right to hand out leaflets,

provided they do not engage in disorderly conduct or solicit

money to be paid on the postal premises. Because the

undisputed facts show that Paff and Konek were leafleting

peacefully and were not engaging in unlawful solicitation,

Officer Kaltenbach did not have probable cause to arrest

them, and therefore they have a valid claim under the

Fourth and Fourteenth Amendment. See, e.g., Mackinney v.

Nielson, 69 F.3d 1002 (9th Cir. 1995) (because California

law did not prohibit individuals from writing in chalk on a

public sidewalk, the officer who arrested the plaintiff was

not entitled to qualified immunity from the plaintiff 's

Fourth Amendment claim).

The majority apparently believes that Kaltenbach had

probable cause to arrest Paff and Konek because the

protesters were potentially an obstruction (although the

majority raises this point in its discussion of the First

Amendment claim). But the regulation's prohibition of

disorderly conduct can hardly be construed to make an

offense out of "potentially" committing disorderly conduct.

The portion of the regulation addressing disorderly conduct

states,

Disorderly conduct, or conduct which creates loud and

unusual noise, or which obstructs the usual use of

entrances, foyers, corridors, offices, elevators,

21

stairways, and parking lots, or which otherwise tends

to impede or disturb the public in the performance of

their duties, or which otherwise impedes or disturbs

the general public in transacting business or obtaining

the services provided on property, is prohibited.

39 C.F.R. S 232.1(e). The majority suggests in footnote 5 of

its opinion that this provision gives local postmasters

discretion to decide whether someone's conduct is"likely"

to violate S 232.1(e) and that police may rely on the

postmaster's judgment. Nowhere in the regulation does the

word "likely" appear; the provision prohibits actual

disorderly conduct, not potential disorderly conduct. Not

only is the majority's position unsupported by the language

of the regulation, it also appears to subject members of the

public to a fine or imprisonment, see S 232.1(p)(2), or arrest

at a minimum, because a postmaster deems them likely to

commit an offense, even though their conduct has been

innocent so far. How will people know when they are

potentially committing disorderly conduct as they try to

enjoy their judicially recognized right to leaflet peacefully?

The Supreme Court has firmly rejected laws for vagueness.

See, e.g., City of Chicago v. Morales , ___ U.S. ___, 119 S.Ct.

1849 (1999); Kolender v. Lawson, 461 U.S. 352, 103 S.Ct.

1855 (1983); Papachristou v. City of Jacksonville, 405 U.S.

156, 92 S.Ct. 839 (1972). The Court has also rejected

arrests for disorderly conduct when the police thought the

protesters' conduct was likely to result in disorderly

conduct. Gregory v. City of Chicago, 394 U.S. 111, 89 S.Ct.

946 (1969). And the Court has rejected a law that made

illegal having a disposition to commit an offense. Robinson

v. State of California, 370 U.S. 660, 82 S.Ct. 1417 (1962).

To appreciate the dangers of allowing arrests for

"potentially" committing disorderly conduct, I think it is

worth reviewing in some detail just how little evidence there

is that the plaintiffs' leafleting was creating any problem.

According to the undisputed facts, before Paff or Konek

handed a leaflet to anyone, they first asked if the person

wanted one and were not confrontational. The two only

approached people leaving the post office, and were joined

by a total of three other protesters, hardly creating a

threatening rally. While it may seem reasonable to assume

22

that this particular post office was busy on the night taxes

were due, there is no evidence or allegation that a large

number of people in fact were crowding into this post office.

For all we know one person passed every ten minutes. The

post office in question is also set back from the road and

appears, in some admittedly dark photocopied pictures in

the appendix, to be surrounded by a fair amount of open

land, suggesting that the protesters were not standing in

close quarters. Paff stated that he and the four other

protesters "stood on the sidewalk area between the parking

lot and the front door of the East Brunswick Post Office"

and were "within two feet" of some newspaper vending

machines. App. at 60.

In the postmaster's call to the police department, he

made no reference to any obstruction that the protesters

were creating. A transcript of that call shows that after

identifying himself, the postmaster said, "We have people

on the property giving out pamphlets, we've asked them to

leave the property and they won't. Could you send

somebody down?" He explained that the post office was

open until midnight and then made a partially inaudible

remark about picket signs. "With picket signs?" the

dispatcher asked. The postmaster responded, "Yes, it's a

Libertarian party or something." He continued,"They can

go out on public property which is out by the street so they

can't be on our sidewalk in front of our front door." After

the postmaster gave his name, the dispatcher said,"O . . .

okay, we'll send someone out." App. at 160. This is all the

relevant information the postmaster conveyed to the police

dispatcher.

When Kaltenbach arrived, the postmaster again identified

himself and said that the protesters could move out to

Cranbury Road. On the record before us there is no

evidence--or even allegation--that the postmaster told

Officer Kaltenbach that the protesters had obstructed the

ingress or egress of patrons of the post office, much less

that the postmaster offered any evidence in support of such

an allegation had it been made. At best the postmaster told

Kaltenbach the protesters were a "potential obstruction,"1

_________________________________________________________________

1. In Kaltenbach's statement of undisputed facts he asserts that the

postmaster told him that the protesters were a "potential obstruction."

23

an assertion that by itself is insufficient to provide probable

cause for the arrest and that in any event seems poorly

supported, given the protesters' small numbers and their

peaceful conduct.

By comparison, when the police have invoked the risk

posed by a hostile audience to justify arresting protesters

who were conducting an otherwise lawful demonstration,

the Supreme Court has required considerably more

evidence of imminent harm than was present in our case.

See, e.g., Gregory v. City of Chicago , 394 U.S. 111, 89 S.Ct.

946 (1969); Cox v. Louisiana, 379 U.S. 536, 85 S.Ct. 453

(1965); Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct.

680 (1963); Terminiello v. Chicago, 337 U.S. 1, 69 S.Ct. 894

(1949). Given that the leafleting in our case was legal, I

believe that there should have been much more evidence of

an imminent and significant disruption before an arrest

was made. "[I]n our system, undifferentiated fear or

apprehension of disturbance is not enough to overcome the

right to freedom of expression." Tinker v. Des Moines Indep.

Community School Dist., 393 U.S. 503, 508, 89 S.Ct. 733,

737 (1969); Zamboni v. Stamler, 847 F.2d 73, 78 (3d Cir.

1988).

It is also worth noting that the postmaster's suggested

alternative that the protesters move out to the public road

was highly problematic. As Paff explained, Cranbury Road

did not have a sidewalk and was unlit (events took place at

9 p.m. on April 15th); and it was not possible to hand out

leaflets to passengers in cars that Paff estimated were

traveling approximately 40 miles per hour through the

night. See App. at 173-74. Furthermore, although the

majority suggests that the postmaster's ban on the

protester's leafleting was limited to tax night, nothing in the

record indicates that the postmaster said his ban was

restricted in this way. He simply called the police and asked

_________________________________________________________________

App. at 170. The appellants' response to Kaltenbach's statement of

undisputed facts denies that the postmaster made that statement. App.

at 180. But because Kaltenbach repeated his claim in a certification, and

the certification Paff submitted did not mention whether the postmaster

alleged they were a "potential obstruction," it appears that we should

accept Kaltenbach's allegation for the purposes of this summary

judgment motion.

24

them to remove the protesters. And even if we adopted this

after the fact narrowing of the restriction, the message the

protestors sought to convey was undermined when they

were not allowed to conduct their protest on tax day. In the

end, however, I think that even if Cranbury Road had

offered a viable alternative or the postmaster had limited

his ban to tax night, neither factor would be enough to

justify qualified immunity; the protesters had a right to

leaflet peacefully where they were.

When an officer violates clearly established law and the

facts reasonably known by the officer indisputably show

that the officer's conduct was illegal, qualified immunity is

rarely appropriate. An officer can only obtain qualified

immunity for violating clearly established law when the

officer shows "extraordinary circumstances and can prove

that he neither knew nor should have known of the relevant

legal standard." In re City of Philadelphia Litigation, 49 F.3d

945, 961 (3d Cir. 1995)(quoting Harlow v. Fitzgerald, 457

U.S. 800, 817-19, 102 S.Ct. 2727, 2738 (1982)).

Under this standard Kaltenbach's reliance on the

postmaster should not constitute "extraordinary

circumstances." Even reliance on the advice of counsel may

not be sufficient to constitute extraordinary circumstances.

See, e.g., Davis v. Zirkelbach, 149 F.3d 614, 620 (7th Cir.

1998) cert. denied, 119 S.Ct. 902 (1999); Buonocore v.

Harris, 134 F.3d 245, 252-53 (4th Cir. 1998); V-1 Oil Co. v.

Wyoming, 902 F.2d 1482 (10th Cir. 1990). And the burden

of proving extraordinary circumstances is carried by the

officer. Buonocore, 134 F.3d at 252; Cannon v. City and

County of Denver, 998 F.2d 867, 874 (10th Cir. 1993). In

our case the postmaster did not mention any legal

authority for his action, despite the fact that Paff cited the

postal regulation that he said allowed him to leaflet.

Kaltenbach also did not perform so much as a cursory

independent investigation to see if the protesters were

posing any problem, nor did he inquire into whether their

conduct actually was illegal. It is true that after arresting

Paff, Kaltenbach radioed his supervisor, but even if we

make the dubious assumption that this call could

constitute "extraordinary circumstances," a transcript of

that conversation shows that the purpose was not to obtain

25

advice on whether the leafleting was legal, but merely to

advise headquarters that Kaltenbach was bringing in the

arrestees. Moreover, Kaltenbach could have made

additional inquiries given that, as the facts above indicate,

the protesters' conduct was not creating an impending

conflict requiring immediate action.

The protesters' claim under the First and Fourteenth

Amendments poses closer questions. The majority operates

under the assumption that unless the protesters can show

that the First Amendment clearly prohibits the Postal

Service from issuing any regulation prohibiting leafleting,

then the protesters must lose their claim under the First

Amendment. I disagree with this assumption. If the postal

regulations permit leafleting, then I think the protesters

have a valid First Amendment claim, even if the clearly

established law does not flatly prohibit the Postal Service

from banning all leafleting in the future. Much as the

government cannot discriminate among speakers when it

creates a limited-purpose public forum, see, e.g., Widmar v.

Vincent, 454 U.S. 263, 267-68, 102 S.Ct. 269, 273-74

(1981), the government also violates the First Amendment

in my view if it has people in a nonpublic forum arrested

for engaging in a type of expressive activity that the

government's own regulations permit. This should be

especially true when the government's regulation was saved

from a First Amendment challenge in part because the

regulation permitted that particular type of expressive

activity.

But suppose the majority is right, and the protesters

must show that the First Amendment prohibits the

government from issuing regulations that ban leafleting on

postal sidewalks deemed to be nonpublic forums. Given

that the Postal Service has not yet tried to issue such

regulations, it may seem precipitate to reach this issue. The

majority's view seems to require the discussion, however, so

I will offer several comments on their analysis. If the

protesters must show that postal regulations cannot ban

leafleting, then like the majority I conclude that the

protesters' First Amendment claim must fail--the relevant

right is not yet clearly established. But I hasten to add that

since Kaltenbach did not cross-appeal the District Court's

26

finding that the protesters had a constitutional right under

the First Amendment to leaflet, under our recent decision,

Assaf v. Fields, 178 F.3d 170, 174 (3d Cir. 1999), the

ultimate question of whether the government does have the

power to ban all leafleting is not before us.

In analyzing what is clearly established I agree with the

majority that the sidewalk leading to the post office in this

case is a nonpublic forum, or at least that in the wake of

Kokinda the status of the sidewalk is unclear. I also agree

that the government can impose reasonable restrictions on

speech in a nonpublic forum, where a reasonable

restriction is one that is "consistent with the[government's]

legitimate interest in preserv[ing] the property . . . for the

use to which it is lawfully dedicated." Majority Op. at 11

(quoting Int'l Society for Krishna Consciousness, Inc. v. Lee,

505 U.S. 672, 688, 112 S.Ct. 2711, 2712 (1992) and Perry

Educ. Ass'n v. Perry Local Educators Ass'n, 460 U.S. 37,

50-51, 103 S.Ct. 948, 958 (1983)).

My reasoning differs from the majority's, however,

because I rely exclusively on two doctrinal points to

conclude that the relevant right is not clearly established.

First, Kokinda plainly left the issue unresolved. Second,

and much more crucially, when the Supreme Court rejected

a ban on leafleting in Lee, Justice O'Connor's concurrence

emphasized that the airport in question was run in part as

a shopping mall, supporting many activities, and therefore

was unlike other nonpublic forums considered by the

Court, such as the postal sidewalk in Kokinda in particular.

See Lee, 505 U.S. at 688-89, 112 S.Ct. at 2712-73. Given

the airport's multiple uses, Justice O'Connor's opinion

judged leafleting to be consistent with the functions of the

forum.

After reviewing this caselaw, a reasonable official could

conclude that postal sidewalks are designed simply to give

access to the post office and that, therefore, Lee's protection

of leafleting did not apply and Kokinda does not require

otherwise. These points alone are sufficient, I believe, to

defeat the claim that it is clearly established that the First

Amendment prohibits the government from implementing

regulations that ban leafleting on postal sidewalks deemed

to be nonpublic forums. One does not need to bring in the

27

majority's points about the protesters posing a potential

obstruction or about police officers delegating their

decisionmaking to a postmaster. Neither of these latter

factors would justify granting qualified immunity if the

relevant right were otherwise clearly established.

But in the end whatever the power of the Postal Service

is to ban leafleting on its sidewalks, the fundamental point

in this case is that no such ban has been implemented.

Leafleting is clearly legal under the Postal Service's

regulations, and therefore I cannot agree that Kaltenbach is

entitled to qualified immunity on the plaintiffs' claims

under the First, Fourth, and Fourteenth Amendments. The

plaintiffs' leafleting and criticism of the government should

not have been suppressed.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

28