Blackhawk v. Pennsylvania

Opinions of the United

2004 Decisions States Court of Appeals

for the Third Circuit

8-20-2004

Blackhawk v. Comm PA

Precedential or Non-Precedential: Precedential

Docket No. 02-3947

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004

Recommended Citation

"Blackhawk v. Comm PA" (2004). 2004 Decisions. Paper 364.

http://digitalcommons.law.villanova.edu/thirdcircuit_2004/364

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

PRECEDENTIAL GAME COMMISSION;

VERNON ROSS, Director; THOMAS

UNITED STATES COURT OF R. LITTWIN, Law Enf. Director;

APPEALS FREDERICK MERLUZZI, Enf. Officer;

FOR THE THIRD CIRCUIT BARRY HAMBLEY;

DAVID E. OVERCASH, in their

individual and official

Nos. 02-3947/4158 capacities;

DENNIS L. BLACKHAWK ON APPEAL FROM THE UNITED

STATES DISTRICT COURT FOR

v. THE MIDDLE DISTRICT OF

PENNSYLVANIA

COMMONWEALTH OF

PENNSYLVANIA; (Dist. Court No. 99-cv-02048)

PENNSYLVANIA GAME District Court Judge: Hon. Thomas I.

COMMISSION; VERNON ROSS, Vanaskie

Director;

THOMAS R. LITTWIN, Law Enf.

Director; FREDERICK Argued: July 21, 2003

MERLUZZI, Enf. Officer; BARRY

HAMBLEY; DAVID E. OVERCASH, Before: ALITO and FUENTES, Circuit

in their individual and official capacities Judges, and SURRICK,* District Judge.

Vernon Ross (Opinion Filed: August 20, 2004 )

Thomas Littwin

David E. Overcash, D. MICHAEL FISHER

HOW ARD G. HOPKIRK (Argued)

Appellants, No. 02-3947 CALVIN R. KOONS

__________________ JOHN G. KNORR, III

Office of Attorney General

DENNIS L. BLACKHAWK, Appellate Litigation Section

15th Floor, Strawberry Square

Appellant, No. 02-4158

v. *

The Hon. R. Barclay Surrick,

United States District Judge for the

COMMONWEALTH OF Eastern District of Pennsylvania, sitting by

PENNSYLVANIA; PENNSYLVANIA designation.

-1-

Harrisburg, Pa. 17120 spiritual strength. Although Blackhawk is

a Lenape Indian by birth, he was adopted

Counsel for Appellants/Cross-Appellees by elders of the Oglala Lakota and Seneca

tribes, who schooled him in the religious

GARY S. GILDIN (Argued) traditions of the Lakota and Iroquois

150 South College Street people. When Blackhawk began to see

Carlisle, Pa. 17013 bears in a recurring dream, Lakota tribal

elders concluded that the dream was a

THOMAS B. SCHMIDT, III prophesy and predicted that Blackhawk

PEPPER HAMILTON LLP would derive spiritual power from the

200 One Keystone Plaza animals.

North Front and Market Streets

In 1994, Blackhawk purchased two

Post Office Box 1181

black bear cubs, a male and a female

Harrisburg, Pa. 17108-1181

named Timber and Tundra. He moved to

Pennsylvania in 1995 and began

Counsel for Appellee/Cross-Appellant

conducting religious ceremonies with the

bears on his property. Members of various

American Indian tribes visit Blackhawk

OPINION OF THE COURT

from across the country to participate in

these rituals. Due to Blackhawk’s

ALITO, Circuit Judge: stewardship of the bears and his role in

these ceremonies, some consider him to be

This is an appeal by officials of the a holy man.

Pennsylvania Game Commission from an

order permanently enjoining them from The Pennsylvania Game and

enforcing a permit fee provision of the Wildlife Code requires permits in order to

state Game and Wildlife Code against engage in a variety of different activities,

Dennis Blackhawk on the ground that the including such things as bird banding (34

Commission’s current waiver policy Pa. Cons. Stat. Ann. § 2921), falconry (34

violates his right to the free exercise of Pa. Cons. Stat. Ann. § 2925), various types

religion. Blackhawk in turn cross-appeals of field dog trials (34 Pa. Cons. Stat. Ann.

the District Court’s holding that the Game § 2943), fox chasing (34 Pa. Cons. Stat.

Commission officials are not personally Ann. § 2945), maintaining a “menagerie”

liable for violating his rights. We affirm (34 Pa. Cons. Stat. Ann. § 2964), and

the District Court in both respects. either dealing in or possessing “exotic

wildlife.” 34 Pa. Cons. Stat. Ann. §§

I. 2962, 2963. Annual fees ranging from $25

Lakota Indians believe that black to $300 are collected for these permits, see

bears protect the Earth, sanctify religious 34 Pa. Cons. Stat. Ann. § 2904, and the

ceremonies, and imbue worshipers with revenues from all of these fees comprise

-2-

about one percent of the Game fee is $50. See 34 Pa. Cons. Stat. Ann. §

Commission’s annual intake. 2904.

Although persons wishing to keep In 1998, Blackhawk sought an

wildlife in captivity must generally obtain exemption from the permit fee on the

a menagerie or exotic wildlife possession ground that he possessed the bears for

permit and pay the requisite fee, see 34 Pa. Native American religious purposes. After

Cons. Stat. Ann. §§ 2904, 2964(c)(1), the making an inquiry to the Bureau of Indian

Code excludes from these requirements Affairs, Merluzzi informed Blackhawk

most zoos and all “[n]ationally recognized that Native Americans who possess a

circus[es].” 34 Pa. Cons. Stat. Ann. § Bureau of Indian Affairs identification

2965(a)(1)–(3). In addition, the director of card are entitled to some exemptions under

the Game Commission is authorized to federal law, but Blackhawk did not possess

waive a permit fee “where hardship or such a card. Blackhawk paid the 1998 fee

extraordinary circumstance warrants,” so under protest after citing his religious

long as the waiver is “consistent with purpose and alleging financial hardship.

sound game or wildlife management He then wrote to his representative in the

activities or the intent of [the Game and state legislature, Keith McCall, and

Wildlife Code]” 34 Pa. Cons. Stat. Ann. § McCall intervened and asked Commission

2901(d). director Vernon Ross to oversee the

situation personally. On October 6, 1999,

From 1995 to 1999, Blackhawk

Blackhawk received a letter from

obtained permits to own the bears. At

Commission officials Thomas Littwin and

first, he acquired a “menagerie permit,”

David Overcash informing him that he did

but bears are classified under the Game

not qualify for a waiver under 34 Pa. Cons.

and Wildlife Code as “exotic wildlife,” see

Stat. Ann. § 2901(d) because the

34 Pa. Cons. Stat. Ann. § 2961, and special

Commission regarded the keeping of wild

permits are required for those wishing to

animals in captivity as inconsistent with

deal in or possess exotic wildlife. See 34

sound game and wildlife management

Pa. Cons. Stat. Ann. §§ 2904, 2962, 2963.

activities unless the animals were intended

Beginning in 1997, the Game Commission

for release into the wild. Since Timber

insisted that Blackhawk obtain an exotic

and Tundra had been declawed and had

wildlife dealer permit, which costs $200

been kept in captivity their entire lives,

per year, see 34 Pa. Cons. Stat. Ann. §

they could not be released into the wild.

2904, because Frederick Merluzzi, a

“Thus, in the Commission’s view,

wildlife conservation officer, believed that

Blackhawk [was] not entitled to an

Blackhawk intended to breed the bears and

exemption regardless of his financial

sell their cubs. If Blackhawk did not wish

circumstanc es.” Black Hawk v.

to deal in bears but merely to keep them,

Pennsylvania, 225 F. Supp. 2d 465, 470

he needed only an exotic wildlife

(M.D. Pa. 2002). The letter from Littwin

possession permit, for which the annual

-3-

and Overcash told Blackhawk that, tested for rabies. See 28 Pa. Code §

because his permit had expired on June 30, 27.103(f)(2). The District Court enjoined

1999, if he still possessed the bears he was the Commission from destroying the bears

subject to prosecution. and ordered their return. See Black Hawk

v. Pennsylvania, 114 F. Supp. 2d 327

Blackhawk responded by again

(M.D. Pa. 2000).

requesting a waiver, and in November of

1999, Merluzzi filed criminal charges When the District Court reached the

against Blackhawk for failing to renew. merits of the civil case, it held that the

Game Commission’s refusal to exempt

Blackhawk filed an action under 42

religiously motivated activities from the

U.S.C. § 1983, seeking to enjoin the Game

permit fee violated the First Amendment’s

Commission from assessing the fee or

Free Exercise Clause. See Black Hawk,

confiscating the bears and also seeking

225 F. Supp. 2d at 465. The Court held

money damages from Merluzzi, Overcash,

that the permit fee requirement was not a

Littwin, Hambley, and Ross. Prior to the

“‘valid and neutral law of general

District Court’s disposition of the case, a

applicability’” under Employment Div.,

state magistrate found Blackhawk guilty of

Dep’t of Human Resources of Oregon v.

the criminal charges and assessed a

Smith, 494 U.S. 872, 879 (1990), because

$178,400 fine, which he later reduced to

the statutory waiver established a “‘system

$6,442. However, the Court of Common

of individualized exceptions.’” Black

Pleas stayed the criminal case pending a

Hawk, 225 F. Supp. 2d at 473. The Court

ruling on Blackhawk’s § 1983 action.

accordingly applied strict scrutiny to the

In August of 2000, Blackhawk waiver scheme, id. at 472–73, and held

discovered that the bears’ enclosure had that the scheme could not withstand strict

been vandalized, that the locks on the scrutiny because the Commission was

enclosure had been cut, and that the unable to “demonstrate a compelling

animals were missing. A neighbor interest in refusing to grant a religious

encountered Tundra on his property and exemption.” Id. at 477. The District Court

was attempting to lead the bear back to the a c co r d i n g l y e n jo i n e d t h e G a m e

pen when Tundra bit him. The neighbor Commission from charging Blackhawk a

alerted the Game Commission, which permit fee. However, the Court declined

tracked the bears and tranquilized them. to hold the individual defendants liable

An official who was attempting to restrain under § 1983 because it found that

Tundra was also bitten by the bear, but the Merluzzi and Hambley were not personally

Commission succeeded in taking both responsible for violating Blackhawk’s

bears into custody. It then sought to rights and that Ross, Littwin, and

destroy the bears pursuant to a regulation Overcash were entitled to qualified

requiring wild animals who have bitten immunity.

humans to be decapitated in order to be

On appeal, the Commission argues

-4-

that the First Amendment does not entitle however, that most laws that burden

Blackhawk to a waiver, and Blackhawk religiously motivated conduct stand on a

contends that the District Court erred in different footing. Rejecting the argument

granting summary judgment in favor of the that such laws must generally satisfy strict

individual defendants. We exercise scrutiny, the Court concluded that the First

plenary review over a grant of summary Amendment is not ordinarily offended by

judgment, Northview Motors, Inc. v. “neutral” and “generally applicable” laws

Chrysler Motors Corp., 227 F.3d 78, that merely have “the incidental effect” of

87–88 (3d Cir. 2000), and likewise review burdening religiously motivated conduct.

de novo the District Court’s interpretation 494 U.S. 878, 879, 881.

of the Constitution. United States v.

The Court recognized several

Scarfo, 263 F.3d 80, 91 (3d Cir. 2001).

exceptions to this rule. First, the Court did

II. not overrule prior decisions in which

“hybrid claims” (i.e., claims involving “not

A.

the Free Exercise Clause alone, but the

Blackhawk’s free exercise claim Free Exercise Clause in conjunction with

requires us to apply the Supreme Court’s other constitutional protections”) had

decisions in Employment Div., Dep’t of prevailed against “neutral, generally

Human Resources of Oregon v. Smith, applicable law[s].” Id. at 881 (citations

supra, and Church of Lukumi Babalu Aye, omitted). Nor did the Court overrule

Inc. v. Hialeah, 508 U.S. 520 (1993) Sherbert and o ther decisions that

(“Lukumi”), and our decisions in Fraternal “ i n v a li d a t ed sta t e u ne m p l o y m e nt

Order of Police v. City of Newark, 170 compensation rules that conditioned the

F.3d 359 (3d Cir. 1999) (“Fraternal Order availability of benefits upon an applicant’s

of Police”), and Tenafly Eruv Ass’n, Inc. willingness to work under conditions

v. Borough of Tenafly, 309 F.3d 144 (3d forbidden by his religion.” Id. at 883.

Cir. 2002) (“Tenafly”). Based on these Finally, the Court observed that even if it

decisions, we agree with the District Court “were inclined to breathe into Sherbert

that Blackhawk’s free exercise rights were some life beyond the unemployment field,

violated. [the Court] would not apply it to require

exemptions from a generally applicable

In Smith, the Supreme Court

criminal law.” Id. at 884. The Court

opened a new chapter in the interpretation

wrote:

of the Free Exercise Clause. The Court

began by reaffirming the principle that the The Sherbert test, it must be

Clause prohibits “all ‘governmental recalled, was developed in a

regulation of religious beliefs as such.’” context that lent itself to

494 U.S. at 877 (quoting Sherbert v. individualized governmental

Verner, 374 U.S. 398, 402 (1963)) assessment of the reasons

(emphasis in Sherbert). The Court held, for the relevant conduct. . . .

-5-

[O]ur decisions in instructive. The principal ordinances

the unemployment challenged in Likumi were claimed to

cases stand for the advance two interests – preventing cruelty

p r o p o s i ti o n t h a t to animals and protecting public health --

where the State has but the Court concluded that the

in place a system of ordinances failed the general applicability

i n d i v i d u a l standard because they were

exemptions, it may “underinclusive for [their asserted] ends”

not refuse to extend and “[t]he underinclusion [was]

that system to cases substantial, not inconsequential.” Id. at

of ‘religious 543. The Court explained that the

hardship’ without ordinances were “underinclusive” because

compelling reason. they “fail[ed] to prohibit nonreligious

conduct that endanger[ed] these interests

Id. at 884 (citation omitted).

in a similar or greater degree than Santeria

In Lukumi, the Court applied Smith sacrifice does.” Id. The Court added:

to a web of city ordinances that interfered

The ordinances “ha[ve]

with the practice of Santeria, a religion

every appearance of a

that employs the sacrifice of animals in its

prohibition that society is

rituals. The ordinances prohibited the

prepared to impose upon

killing of animals in Santeria rituals but

[Santeria worshippers] but

excluded almost all other animal killings,

not upon itself.” . . . This

including killings that occurred in

precise evil is what the

connection with hunting, fishing, meat

requirement of general

production, pest extermination, euthanasia,

applicability is designed to

and the use of rabbits to train greyhounds.

prevent.

Id. at 536-37. The Court held that these

“gerrymandered” ordinances were neither Id. at 545-46 (quoting Florida Star v.

“neutral” nor “generally applicable,” id. at B.J.F., 491 U.S. 524, 542 (1989) (Scalia, J.

533-46, and that they could not withstand concurring in part and concurring in

strict scrutiny. Id. at 546-47. judgment) .

The Lukumi Court’s discussion of Applying these precedents, we held

the requirement of general applicability is in Fraternal Order of Police that the Free

particularly important for present Exercise Clause was violated by a city’s

purposes. While the Court did not attempt practice of prohibiting police officers from

to “define with precision the standard used wearing beards for religious reasons but

to evaluate whether a prohibition is of allowing officers to wear beards for

general application,” id. at 543, the Court’s medical reasons. See 170 F.3d at 364-67.

discussion of the requireme nt is In reaching this conclusion, we drew on

-6-

both t h e C our t ’ s discussion of Id. at 366. We therefore applied strict

“individualized exemptions” and the scrutiny and held that the no-beards policy

general applicability requirement. Id. at could not satisfy that standard. Id. at 366-

364-66. We explained that a system that 67.

permits individualized, discretionary

In Tenafly, we considered a local

exemptions provides an opportunity for the

ordinance that was neutral and generally

decision maker to decide that “secular

applicable on its face but that had been

motivations are more important than

enforced in a discriminatory manner. See

religious motivations” and thus to give

309 F.3d at 167-72. The ordinance banned

disparate treatment to cases that are

the placement of any “‘sign or

otherwise comparable. 170 F.3d at 365.

advertisement, or other matter upon any

“If anything,” we stated, “this concern is

pole, tree, curbstone, sidewalk or

only further implicated when the

elsewhere, in any public street or public

government does not merely create a

place, excepting such as may be authorized

mechanism for individualized exemptions,

by this or any other ordinance of the

but instead, actually creates a categorical

Borough.’” 309 F.3d at 151 (citation

exemption for individuals with a secular

omitted). The local government, however,

objection but not for individuals with a

had permitted the placement on utility

religious objection.” Id. Concluding that

poles of many types of signs and symbols,

the policy in question was suspect for

including house number signs, signs

precisely this reason, we wrote:

pointing the way to area churches, lost

[T]he medical exemption animal signs, holiday symbols, and orange

raises concern because it ribbons signifying opposition to school

indicates that th e regionalization. Id. at 151. By contrast,

Department has made a the local government refused to permit

value judgment that secular Orthodox Jews to place lechis on utility

(i.e., medical) motivations poles in order to construct an eruv, a

for wearing a beard are ceremonial demarcation of an area within

import ant enough to which Orthodox Jews may push or carry

overcome its general interest objects on the Sabbath. Id. at 152. We

in uniform ity but that thus held that “the Borough’s selective,

religious motivations are discre tionary applic atio n of [the

not. . . . [W]hen the ordinance] violates the neutrality principle

government makes a value of Lukumi and Fraternal Order of Police

judgment in favor of secular because it ‘devalues’ Orthodox Jewish

motivations, but not reasons for posting items on utility poles

religious motivations, the by ‘judging them to be of lesser import

government’s actions must than nonreligious reasons,” and thus

survive heightened scrutiny. ‘single[s] out’ the plaintiffs’ religiously

-7-

motivated conduct for discriminatory U.S. at 546. Similarly, a law must satisfy

treatment.” Id. at 168 (quoting Lukumi, strict scrutiny if it permits individualized,

508 U.S. at 537, and Fraternal Order of discretionary exemptions because such a

Police, 170 F.3d at 364-65 (footnote regime creates the opportunity for a

omitted)). facially neutral and generally applicable

standard to be applied in practice in a way

The teaching of Smith, Lukumi,

that discriminates against religiously

Fraternal Order of Police, and Tenafly may

motivated conduct. Lukumi, 508 U.S. at

be summarized as follows. The Free

537; Smith, 494 U.S. at 884, Fraternal

Exercise Clause forbids any regulation of

Order, 170 F.3d at 364-65.

beliefs as such. See Lukumi, 508 U.S. at

533; Smith, 494 U.S. at 877. On the other B.

hand, with the exceptions noted above, a

The fee requirement at issue here

“neutral” and “generally applicable” law

fails the general applicability requirement

that burdens conduct regardless of whether

for two reasons. First, the Game Code

it is motivated by religious or secular

creates a regime of individualized,

concerns is not subject to strict scrutiny.

discretionary exemptions that is not

See Lukumi, 508 U.S. at 546; Smith, 494

materially distinguishable from those that

U.S. at 878. A law is “neutral” if it does

tr igge r e d s t r ic t s c ru t i n y in th e

not target religiously motivated conduct

unemployment compensation cases.

either on its face or as applied in practice.

Under the laws involved in those cases,

See Lukumi, 508 U.S. at 533-40; Tenafly,

benefits were generally denied if a person

309 F.3d at 167. A law fails the general

had quit or refused work, but

applicability requirement if it burdens a

individualized exemptions were available

category of religiously motivated conduct

for persons who had quit or refused work

but exempts or does not reach a substantial

for “good cause.” See Smith, 494 U.S. at

category of conduct that is not religiously

884. Under 34 Pa. Cons. Stat. Ann. §

motivated and that undermines the

2901(d), a person may obtain a waiver

purposes of the law to at least the same

from the fee requirement if the person

degree as the covered conduct that is

shows “hardship” or “extraordinary

religiously motivated. Lukumi, 508 U.S.

circumstances” and the w aiver is

at 543-46; Fraternal Order of Police, 170

consistent with “sound game or wildlife

F.3d at 364-66. If a law burdening

management activities or the intent of [the

religiously motivated conduct is not

Game and W ildlife Code].” Blackhawk

neutral and generally applicable it must

does not claim that he is entitled to an

satisfy strict scrutiny. See Lukumi, 508

e x e m p t i o n f r o m t h e “ h a rd s h i p ”

U.S. at 546; Smith 494 U.S. at 878.

requ ireme nt, and the regulation’s

Accordingly, it must serve a compelling

remaining requirements – consistency with

government interest and must be narrowly

sound game or wildlife management

tailored to serve that interest. Lukumi, 508

activities or the intent of Code – are

-8-

sufficiently open-ended to bring the

regulation within the individualized

exemption rule.

The Commonwealth contends, natural state within the

however, that the regulation categorically Commonwealth. The only

rules out waivers for persons, like exception would be where

Blackhawk, who wish to keep animals for such activity is done with

religious reasons. This is so, the the intent of reintroducing

Comm onw ealth maintains, because those animals - or their

keeping animals for religious reasons is offspring - into the wild; the

not consistent with state wildlife policy. In animals are members of an

s u p p o r t o f t h is a r g u m e n t , t h e endangered species; or the

Commonwealth relies on the following keeping of the animals in

passage from the declaration of a Game captivity provides some

Commission official: other tangible benefit for the

welfare and survival of

The L egislature has

Pennsylvania’s existing

d el e g a te d t h e G a m e

wildlife population.

Commission the

responsibility to “protect, App. 121-22 (emphasis added).

propagate, manage and

This passage is insufficient to show

preserve the game or

that 34 Pa. Cons. Stat. Ann. § 2901(d)

wildlife of this

does not create a regime of discretionary,

Commonwealth.” 34 Pa.

individualized exemptions under which

C.S. § 321. The Game

Blackhawk might qualify if his conduct

C o m m i s s io n n o r m a l l y

were not religiously motivated. The

considers the keeping of live

italicized phrases show that the Game

animals in captivity as being

Commission’s polic y does not

inconsistent with sound

categorically disfavor the keeping of wild

g a m e a nd w ildlife

animals in captivity. Although the

management, or the overall

declaration suggests that the keeping of

purpose of the Game Code.

wild animals is inconsistent with state

This is because in general

wildlife policy unless doing so provides a

keeping animals in captivity

“tangible benefit” for the state’s wild

does not provide any

animals, this is hardly a self-defining

positive benefit to the

concept, and the Commonwealth has not

welfare of populations of

explained what the concept means.

wildlife which live in their

-9-

Moreover, under 34 Pa. Cons. Stat. Ann. § interests served by the fee provision to at

2901(d), a person seeking a waiver need least the same degree as would an

not show that the waiver would be exemption for a person like Blackhawk.

“consistent with sound game or wildlife

The Commonwealth suggests that

management activities.” Instead, a person

the fee requirement serves two main

seeking a waiver may show that it would

interests: it brings in money and it tends to

be “consistent with . . . the intent of [the

discourage the keeping of wild animals in

Game and Wildlife Code],” id., and the

captivity, wh ich, as n oted, the

Code clearly does not embody a firm or

Commonw ealth generally views as

uniform policy against keeping wild

undesirable. As the Commonwealth’s

animals in captivity. For one thing, it

brief puts it, “‘in general keeping animals

allows anyone to keep wild animals if they

in captivity does not provide any positive

pay a $50 or $100 fee. See 34 Pa. Cons.

benefit to the welfare of populations of

Stat. Ann. § 2904. These modest fees,

wildlife which live in their natural state

which are comparable to many municipal

within Pennsylvania.” Appellants’ Br. at

dog license fees, can hardly be viewed as

12.

expressing a hard policy against the

keeping of wild animals. Furthermore, the The exemptions for “nationally

Code provides categorical exemptions recognized circuses” and zoos work

from the fee requirement for entities such against these interests to at least the same

as zoos and “nationally recognized degree as the type of exemption that

circuses.” See 34 Pa. Cons. Stat. Ann. § Blackhawk seeks. The state’s interest in

2965(a)(1)-(3). These exemptions serve raising money is undermined by any

the Commonw ealth’s interests in exemption, and the Commonwealth has

promoting commerce, recreation, and not argued, much less shown, that

education, and consequently, a waiver that religiously based exemptions, if granted,

furthered these or analogous interests would exceed the exemptions for

might be viewed as consistent with the qualifying zoos and circuses and

Code’s intent. In sum, then, the waiver individual waivers under 34 Pa. Cons. Stat.

mechanism set out in 34 Pa. Cons. Stat. Ann. § 2901(d) for persons with secular

Ann. § 2901(d) creates a regime of motivations.

individualized, discretionary exemptions

The exemptions for nationally

that triggers strict scrutiny.

recognized circuses and zoos also work

The categorical exemptions in 34 against the Commonwealth’s asserted goal

Pa. Cons. Stat. Ann. § 2965(a) for zoos of discouraging the keeping of wild

and “nationally recognized circuses” animals in captivity except where doing so

likewise trigger strict scrutiny because at provides a “tangible” benefit for

least some of the exemptions available P e n n s y lv a n i a ’ s w i l d l if e . The

under this provision undermine the Commonwealth has not explained how

-10-

circuses, whether nationally recognized or Fraternal Order of Police. There, police

not, provide tangible benefits for animals officers were prohibited from wearing

living in the wild in Pennsylvania. beards so that they would all present the

Similarly, except in special circumstances same general image to the public. Since

(for example, if a zoo is conducting officers working undercover are not

research on animals that are indigenous to perceived by the public as police officers,

Pennsylvania or is raising animals to be allowing undercover officers to wear

released into the wild in Pennsylvania), it beards did not undermine the purpose of

is difficult to see how the activities of a the no-beard policy. See Fraternal Order,

zoo provide a tangible benefit for 170 F.3d at 366. As explained above,

Pennsylvania’s wild animals. Yet under however, the exemptions for circuses and

the statute noted above, all zoos are zoos work against both of the interests that

exempted. Accordingly, the challenged the permit fee is said to serve.

f e e p r o v i s io n s a r e s u bs tantiall y

C.

“underinclusive” with respect to its

asserted goals, and they thus fail the In arguing that the fee provision

requirement of general applicability. should not be subjected to strict scrutiny,

the Commonwealth takes the position that

The Commonwealth contends that

the fee does not violate Blackhawk’s free

the exemptions for circuses and zoos are

exercise rights because it does not prohibit

“analogous to the prescription exception in

him from engaging in religiously

Smith and the undercover uniform

motivated conduct but merely obligates

exception” in Fraternal Order of Police,

him to pay a modest annual fee. The

but this argument is flawed. Appellants’

Commonwealth suggests that many laws

Br. at 24 (footnote omitted). In Smith, the

imposing user fees and other similar fees

state law prohibited the knowing or

would be thrown into disarray if every

intentional possession of a controlled

person claiming a religious objection to a

substance unless the substance was

fee could obtain a waiver. The

prescribed by a doctor. See 494 U.S. at

Commonwealth further argues that, if it

874. The purpose of drug laws is to

granted waivers for persons who keep wild

protect public health and welfare. See id.

animals for religious reasons, it would be

at 904 (O’Connor, J., concurring in the

required under the Establishment Clause to

judgment). However, when a doctor

grant comparable waivers for persons who

prescribes a drug, the doctor presumably

wish to keep such animals for secular

does so to serve the patient’s health and in

reasons.

the belief that the overall public welfare

will be served. Therefore, the prescription These arguments ignore the content

exception in Smith did not undermine the of the statutes that are before us. We are

purpose of the state’s drug laws. The same not presented here with a neutral and

is true of the undercover exception in generally applicable user fee that is

-11-

uniformly imposed without allowing are similar to provisions of the Internal

individualized exemptions. Under Smith, Revenue Clause involved in Adams v.

such a scheme (barring the applicability of C.I.R., 170 F.3d 173 (3d Cir. 1999). In

one of the exceptions noted above) would Adams, a taxpayer did not pay taxes

not trigger strict scrutiny, and a person because she had a religious objection to

seeking to be excused from paying the fee the use of tax revenue for miliary

on religious grounds would be unlikely to purposes, and the IRS assessed

prevail. Here, by contrast, we are deficiencies and penalties against her. Id.

confronted with a scheme that features at 174-75. The taxpayer argued that

both individualized and categorical secular requiring her to pay taxes substantially

exemptions, and it is these that trigger burdened her free exercise of religion and

strict scrutiny. Moreover, because the violated a provision of the Religious

state statute permits individualized Freedom Restoration Act (“RFRA”), 42

exemptions for entirely secular reasons, we U.S.C. § 2000bb-1, which remained

see no plausible ground on which it could applicable to the federal government

be argued that the Establishment Clause despite City of Boerne v. Flores, 521 U.S.

precludes equal treatment for persons who 507 (1997). See 170 F.3d at 175. Under

wish to keep animals for religious reasons. RFRA, a law that substantially burdens the

exercise of religion must represent the

The Comm onw ealth also

least restrictive means of furthering a

misapprehends the nature of Blackhawk’s

compelling government interest. 42

claim. Blackhawk did not ask for a waiver

U.S.C. § 2000bb-1. Looking to pre-Smith

simply because he possessed the bears for

cases involving free exercise challenges to

religious reasons. Rather, he asked for a

the collection of taxes, Adams held that

waiver “because of his Native American

the RFRA standard was met. 175 F.3d at

beliefs and because the fee would cause

175-80. The Adams panel then rejected

[him] hardship.” 225 F. Supp. 2d at 470

the taxpayer’s argument that she had met

(emphasis added). In addition, the

the statutory requirements needed to avoid

Commission did not deny the waiver on

penalties and additions to tax. See id. at

the ground that Blackhawk did not

180-81. Under the Internal Revenue Code,

establish financial hardship. Instead, the

these penalties and additions could be

Commission concluded that “Blackhawk

avoided if the taxpaye r s ho w ed

would not be entitled to an exemption

“reaso nable c a u s e ” o r “ u n u s u a l

regardless of his financial circumstances.”

circumstances and unfairness.” See 26

Id. (emphasis added). Thus, although the

U.S.C. § 6651(a) (no penalty for failure to

Commonwealth argues at some length that

file if taxpayer demonstrates “reasonable

Blackhawk could scrape together the

cause”); 26 U.S.C. § 6654(e)(3) (no

money to pay the fee, that question is not

addition for underpayment of estimated tax

before us. Finally, the Commonwealth

where failure is due to “unusual

argues that the fee provisions at issue here

circumstances” and addition would be

-12-

“against equity and good conscience”). to at least the same degree as would an

Invoking a “well established line of cases exemption for those in the class of the

involving challenges to the collection of person mounting the challenge. The

taxes on religious grounds,” 170 F.3d at Adams footnote did not go on to address

181, the panel held in the body of its this latter argument, but in any event the

opinion that the taxpayer was ineligible for argument was doomed by the panel’s

relief under the provisions on which she discussion of the RFRA issue. The panel’s

relied. Id. Then, in a footnote, Adams discussion of that issue made it clear that

quickly rejected the taxpayer’s contention the relevant Code provisions met strict

that these provisions created a mechanism scrutiny because they served a compelling

for individual exemptions similar to that in interest (“the ‘uniform, mandatory

the unemployment compensation cases and participation in the Federal income tax

that “the failure to extend those system,’” 170 F.3d at 178 (citation

exemptions to a case of religious hardship omitted), and were narrowly tailored to

constitute[d] discrimination on the basis of serve that interest in the sense relevant in

religious belief.” Id. at 181 n.10. Adams this context. See id. at 179-80.

held that the provisions of the Internal

Properly understood, therefore, the

Revenue Code on which the taxpayer

Adams footnote does not support the

relied did not create a scheme of individual

Commonwealth’s position here. In this

exemptions under which she might have

case, as previously explained, 34 Pa. Cons.

qualified if she had refused to file for

Sat. Ann. § 2901(d) does not categorically

secular, as opposed to religious, reasons.

exclude persons wishing to keep animals

Id. On the contrary, as previously noted,

for religious reasons. In addition, 34 Pa.

Adams held that these provisions are

Cons. Stat. Ann. § 2965(a)(1)-(3) contains

categorically inapplicable to the taxpayer

secular exemptions that preclude the fee

for facially neutral reasons. Id.

scheme from satisfying the requirement of

The Adams footnote stands for the general applicability. As a result, the fee

proposition that the free exercise rule provisions must satisfy strict scrutiny.

regarding individual exemptions does not

III.

apply if the class of persons who may seek

such an exemption is defined in facially In order to survive strict scrutiny,

neutral terms and the person challenging the fee scheme “must advance interests of

the scheme does not fall within that class. the highest order and must be narrowly

In that situation, the person challenging the tailored in pursuit of those interests.”

scheme must argue instead that the scheme Lukumi, 508 U.S. at 546 (internal

fails the requiremen t of gen eral quotation marks omitted). In this case, the

applicability because exempting the class Game Commission asserts that the fee

of persons who fall within the statutory scheme serves two compelling interests:

exemption undermines the statute’s goals (1) “promot[ing] the welfare and

-13-

prosperity of wildlife populations” and (2) the possession of wild animals as a matter

“maintaining the fiscal integrity of its “of the highest order.”

permit fee system.” Appellants’ Br. at 28.

Much the same is true with respect

It is doubtful that these interests to the Commonwealth’s asserted interest in

qualify as compelling. In Lukumi, 508 the financial integrity of the fee system.

U.S. at 546-47, the Court held that Because the Commonwealth makes

“[w]here government restricts only waivers available for persons seeking to

conduct protected by the First Amendment keep animals for secular reasons, the

and fails to enact feasible measures to Commonwealth plainly does not regard

r e str i c t other conduct prod ucin g waivers as a great threat.

substantial harm or alleged harm of the

Furthermore , e ve n if the

same sort, the interest given in justification

Commonwealth’s asserted interests are

of the restriction is not compelling.” Here,

compelling, the fee scheme is not narrowly

the fee scheme has precisely this flaw.

tailored to further them. If the

Denying fee exemptions to otherwise

Commonwealth wishes to reduce the

qualified persons who wish to keep

number of wild animals held in captivity

animals for religious reasons may produce

or to reduce the number held by persons

a small decrease in the total number of

who cannot afford a $100 or $50 annual

wild animals held in captivity, but if the

fee (and these are the only effects that

Commonwealth regarded it as a matter “of

denying the exemptions at issue can have),

the highest order” to reduce the number of

the scheme is substantially underinclusive

wild animals in captivity, it could do much

for the reasons already set out. As a result,

more. For one thing, it could increase the

the scheme cannot satisfy strict scrutiny.

fees for menagerie and exotic wildlife

possession permits, now set at $100 and We therefore affirm the injunction issued

$50 per year respectively, to levels that by the District Court.

would provide a substantial disincentive

IV.

for those who are not poor. Similarly, if

the Commonwealth believes that persons We proceed to address the question

who cannot afford a $100 or $50 annual of the individual defendants’ liability for

permit fee should not keep wild animals money damages. The District Court

because such persons are likely to find it granted summary judgment to Merluzzi

difficult to provide adequate care for the and Hambley on the ground that they “did

animals, the Commonwealth could do not participate in the decision to deny

away with all “hardship” waivers. Black Hawk an exemption” and did not

Because the Commonwealth sets its fees at “‘direct[] others to violate’” his rights.

modest levels and provides for “hardship” Black Hawk, 225 F. Supp. 2d at 479

waivers, the Commonwealth clearly does (brackets in original). The Court excluded

not regard the objective of discouraging Ross, Littwin, and Overcash from this

-14-

analysis, because Ross “had ‘actual exemptions, a reasonable officer in the

knowledge’ and acquiesced in the decision position of the defendants could have

to deny Black Hawk an exemption,” and concluded otherwise. Section 2901(d) is

because Littwin and Overcash conceded more structured than the unemployment

that they “were personally involved in the compensation statutes, which permitted

decision to deny Black Hawk an exemptions for “good cause,” see Smith,

exemption.” Id. (citing Andrews v. City of 494 U.S. at 884, and a reasonable officer

Philadelphia, 895 F.2d 1469, 1478 (3d Cir. could have viewed § 2901(d) as analogous

1990) (holding that supervisor liability can for present purposes to the Internal

be established “‘through allegations of Revenue Code provisions that Adams held

personal direction or of actual knowledge did not provide for individual exemptions.

and acquiescence’”) (quoting Rode v. See 170 F.3d at 181 n.10.

Dellarciprete, 845 F.2d 1195, 1207 (3d

The meaning of the general

Cir. 1988))). Nevertheless, the Court

applicability principle was also not clearly

determined that all three remaining

developed in the governing cases at the

individual defendants were entitled to

time in question. Smith did not explain

qualified immunity.

how to identify laws that fail the test, and

We hold that all of the defendants Lukumi, while providing useful guidance,

were entitled to qualified immunity, and explicitly disclaimed any intention of

we therefore affirm the order of the “defin[ing] with precision . . . whether a

District Court on this basis. A government prohibition is of general application.” 508

officer defendant sued for a constitutional U.S. at 543. Moreover, our decisions on

violation is entitled to qualified immunity March 3 and 4, 1999, in Fraternal Order of

if a reasonable officer could have believed Police and Adams could have reasonably

that the challenged conduct was lawful been interpreted as sending conflicting

under the circumstances. Anderson v. signals. As just discussed, the provisions

Creighton, 483 U.S. 635, 641 (1987). of the Internal Revenue Code at issue in

Qualified immunity “provides ample Adams could have been reasonably

protection to all but the plainly regarded as similar to the provisions of the

incompetent or those who knowingly Pennsylvania Game and Wildlife Code

violate the law.” Malley v. Briggs, 475 involved here, but we held that the Internal

U.S. 335, 341 (1986). See also Saucier v. Revenue Code provisions did not create a

Katz, 533 U.S. 194, 202 (2001). regime of individual exemptions. The

previous day, in Fraternal Order of Police,

In this case, the governing

we had explained that the individual

precedents were complex and developing.

exemption rule is simply one application

Although we now hold that the waiver

of the broader general-applicability

procedure in 34 Pa. Cons. Stat. Ann. §

requirement. See 170 F.3d at 365-66.

2901(d) is sufficiently open-ended to

Thus, reading Adams in light of Fraternal

constitute a system of individual

-15-

Order of Police, a reasonable officer could

have been led to read Adams as holding

that the Internal Revenue Code provision

also satisfied the general applicability

requirement. Not surprisingly, Adams is a

centerpiece of the Commonwealth’s

argument in this appeal in support of the

constitutionality of the de nial of

Blackhawk’s waiver request. Although we

find Adams to be distinguishable for the

reasons explained above, a reasonable

officer in the position of the defendants,

after reviewing Adams and the other

leading cases that had been decided at the

time, could have concluded that the denial

was constitutional.

IV.

After considering all of the

arguments raised in the appeal and cross-

appeal, we affirm the judgment of the

District Court in all respects.

-16-