Gilles v. Davis

Opinions of the United

2005 Decisions States Court of Appeals

for the Third Circuit

10-25-2005

Gilles v. Davis

Precedential or Non-Precedential: Precedential

Docket No. 04-2542

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 04-2542

JAMES G. GILLES; TIMOTHY PETIT

Appellants

v.

SERGEANT GREGORY DAVIS,

Indiana University Police Department;

OFFICER CHRISTOPHER D. GOENNER,

Indiana University Police Department;

TERRY APPOLONIA, Director, Student Life,

Indiana University of Pennsylvania;

RHONDA H. LUCKEY, ED.D., Associate President of

Student Affairs for Indiana University of Pennsylvania;

WILLIAM MONTGOMERY, Director of Public Safety,

Indiana University of Pennsylvania

On Appeal from the United States District Court

for the Western District of Pennsylvania

D.C. Civil Action No. 03-cv-00529

(Honorable Arthur J. Schwab)

Argued March 8, 2005

Before: SCIRICA, Chief Judge,

ROTH and FUENTES, Circuit Judges

(Filed October 25, 2005)

J. MICHAEL CONSIDINE, JR., ESQUIRE (ARGUED)

12 East Barnard Street, Suite 100

West Chester, Pennsylvania 19382

Attorney for Appellants

GREGORY R. NEUHAUSER, ESQUIRE (ARGUED)

SARAH C. YERGER, ESQUIRE

Office of Attorney General of Pennsylvania

15th Floor, Strawberry Square

Harrisburg, Pennsylvania 17120

Attorneys for Appellees

OPINION OF THE COURT

SCIRICA, Chief Judge.

In this civil rights action for damages under 42 U.S.C. §

1983, plaintiffs were arrested for disorderly conduct on the

2

campus of Indiana University of Pennsylvania, a state

university. At issue in this First Amendment suit is whether the

arresting officers are entitled to qualified immunity. Also at

issue is whether resolution of a criminal charge under

Pennsylvania’s “Accelerated Rehabilitative Disposition”

program bars a subsequent § 1983 claim. The District Court

granted defendants summary judgment on all claims. We will

affirm.

I.

Although with no formal religious training, James Gilles

is a self-styled “campus-evangelist” who has appeared at college

campuses across the country since 1982. He preaches against

what he calls the “big four”—“drugs, sex, booze, and rock and

roll.”

Around noon, October 5, 2001, Gilles appeared and

began preaching in the open air at the Oak Grove, a busy area

open to the public on the campus of Indiana University of

Pennsylvania. With him were some twenty-five members of the

“Campus Ministry,” 1 including Timothy Petit, with a video-

camera. Gilles preached on the evils of pre-marital sex,

1

According to Gilles’ deposition, the Campus Ministry is his

“business” and sole source of employment. He states that it is

a sole proprietorship, not a non-profit entity.

3

drinking, and homosexuality. The District Court estimated a

crowd of 75-100 students gathered.2

In a provocative manner, Gilles accosted the crowd,

preaching that Indiana University of Pennsylvania’s student

body was full of “fornicators,” “whores,” “drunken little devils,”

“drunkards,” and “drugs, sex, booze, and rock and roll freaks.”

His speech and manner drew reactions from the students. One

threw an apple core at Gilles. Another shouted “get your

fucking God off our campus.” This set off some name-calling.

Gilles asked the man if he was a communist, which drew the

retort, “you’re a small minded man.” Gilles called another a

“high school flunky.” When someone approached to tell Gilles

he was interrupting classes, Gilles called him “cigarette breath.”

The man responded, “don’t be belittling me. It is Goddamn

campus policy . . . You will not preach while classes are in

session.” Gilles retorted, “oh yes I will, devil.”

The crowd became more animated in response to Gilles’

invective against homosexuals. Gilles cautioned the students to

“watch out [because] the homosexuals are after you on this

campus” and pronounced that “nothing is lower than a lesbian.”

Gilles warned that “homosexuals and lesbians are headed for

hell” and that “there is no such thing as a Christian lesbian . . .

2

We recount the events in the light most favorable to the non-

moving party. In this case, one of the plaintiffs videotaped the

incident. The parties do not dispute its accuracy and we rely

upon it.

4

[or] Christian homosexual.” One woman volunteered that she

was a Christian lesbian. Gilles took a pejorative tone, taunting,

“oh, my, you ma’am are most confused. She thinks she’s a

Christian lesbo. She’s a lesbian for Jesus.” Gilles asked the

woman, “do you lay down with dogs? Are you a bestiality

lover? . . . Can you be a bestiality lover and a Christian also?”

This engendered angry responses from the crowd, including one

who shouted at Gilles, “I don’t know, ask your mom.”

Apparently, someone called the campus police, and

Sergeant Gregory Davis and Officer Christopher Goenner of the

Indiana University of Pennsylvania police force responded to the

reported “near riot taking place.” Davis heard Gilles call one

person a “lesbian” and “homosexual” and said that some

members of the crowd complained to him that Gilles was

singling out individuals, calling them names. After Davis

approached Gilles and had a brief conversation, he arrested

Gilles for disorderly conduct, among other charges. Davis

handcuffed Gilles and escorted him to the police car.

Davis transported Gilles to Indiana University of

Pennsylvania’s Department of Public Safety building, where he

was held for three to four hours. Gilles contends he complained

that the handcuffs were too tight and were not removed for a

few hours. He never sought out a physician for treatment.

Gilles was charged with disorderly conduct, failure of

disorderly persons to disperse, defiant trespass, riot and

violating Pennsylvania’s Wiretap Act (he had recorded

5

the incident with the police using a dictaphone hidden in his

pocket). He was taken to the Indiana County Correctional

Facility. Four days later on October 9, 2001, he posted a $5,000

bond and was released.3

Timothy Petit, who videotaped Gilles’ activity, was also

arrested. Officer Goenner confiscated his video-camera at the

direction of Officer Davis. Petit was charged with resisting

arrest, disorderly conduct, and failure of disorderly persons to

disperse, and was released from custody later that day. Petit

entered into the “Accelerated Rehabilitative Disposition”

(“ARD”) program, which permits expungement of the criminal

record upon successful completion of a probationary term.

After the arrests, Bradley Hoffman, a member of Campus

Ministry, inquired with the university about obtaining a

solicitation permit. Hoffman submitted a “Request/Permit for

Use of Campus Space for Soliciation” to “pass [] out Gospel

Tracts” and “shar[e] . . . the Gospel.” The permit was rejected

by Terry Appolonia, the director of the Center for Student Life.

An e-mail from Appolonia’s supervisor, Rhonda Luckey

3

Under the Pennsylvania Rules of Criminal Procedure, ten

percent of the bond amount may be sufficient for release. Pa. R.

Crim. P. 528(c) (“After determining the amount of the monetary

condition, the bail authority may permit the deposit of a sum of

money not to exceed 10% of the full amount of the monetary

condition if he or she determines that such a deposit is sufficient

to ensure the defendant’s appearance and compliance.”).

6

(Associate President of Student Affairs), advised that she had

“grave concerns” about the behavior of the group given the

earlier incident.

At a preliminary hearing on November 28, 2001, a

District Justice held Gilles on the charges of disorderly conduct,

failure of disorderly person to disperse, disorderly conduct and

defiant trespass. The charges of riot and violating the

Pennsylvania Wiretap Act were dismissed. On December 27,

2002, the Court of Common Pleas of Indiana County,

Pennsylvania, granted Gilles’ petition for a writ of habeas

corpus and dismissed all the remaining criminal charges.

Gilles brought the following claims under § 1983: (1)

malicious prosecution against Sergeant Davis, (2) false arrest

against Sergeant Davis, and (3) excessive force against Sergeant

Davis, based on Gilles’ assertion that the handcuffs were

unnecessarily tight. Gilles and Petit brought these claims under

§ 1983: (1) First Amendment violations by Officers Davis and

Goenner, (2) First Amendment violations by Appolonia and

Luckey, claiming Indiana University of Pennsylvania’s permit

policy was viewpoint based and standardless, vesting unbridled

discretion in Appolonia and Luckey, and (3) First Amendment

violation by William Montgomery, the Director of Public Safety

who supervises the Indiana University of Pennsylvania police

department, for failure to train and monitor police and officials

charged with permit decision making. Gilles and Petit requested

a declaratory judgment that Indiana University of

Pennsylvania’s permit policy is in violation of the First

7

Amendment. In addition, Gilles and Petit sought punitive

damages against Sergeant Davis and a state-law replevin for

return of the confiscated videotape.

The District Court granted defendants summary judgment

on all claims, and declined to exercise supplemental jurisdiction

over the remaining state law replevin claim.

II.

The District Court had jurisdiction under 28 U.S.C. §

1331 and we have jurisdiction under 28 U.S.C. § 1291. The

standard of review is plenary over a grant of a motion for

summary judgment. Camiolo v. State Farm Fire & Cas. Co.,

334 F.3d 345, 354 (3d Cir. 2003) (internal citations omitted).

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

appellees will be affirmed if it appears that “there is no genuine

issue as to any material fact and that they are entitled to a

judgment as a matter of law.” Id.

III.

A. Gilles’ Claims

1. First Amendment

With respect to Gilles’ malicious prosecution, false

arrest, and First Amendment claims, the District Court held that

Sergeant Davis was entitled to qualified immunity.

“[G]overnment officials performing discretionary functions

generally are shielded from liability for civil damages insofar as

8

their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have

known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The

qualified immunity standard “gives ample room for mistaken

judgments by protecting all but the plainly incompetent or those

who knowingly violate the law.” Hunter v. Bryant, 502 U.S.

224, 229 (1991) (internal quotations omitted). In determining

qualified immunity, we first ask whether “the facts alleged,

viewed in the light most favorable to the party asserting the

injury, show that the officer’s conduct violated a constitutional

right.” Curley v. Klem, 298 F.3d 271, 277 (3d Cir. 2002). If so,

we then ask whether it “would be clear to a reasonable officer

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

Id. (quoting Saucier v. Katz, 533 U.S. 194, 202 (2001)).

Whether it would have been clear to a reasonable officer

that probable cause justified the arrest requires an examination

of the crime at issue, disorderly conduct. Gilles was charged

with disorderly conduct under Pennsylvania Criminal Code, 18

Pa. C.S. § 5503(a). The statute provides:

(a) Offense defined. – A person is guilty of

disorderly conduct if, with intent to cause public

inconvenience, annoyance or alarm, or recklessly

creating a risk thereof, he:

(1) engages in fighting or

threatening, or in violent or

tumultuous behavior;

9

(2) makes unreasonable noise;

(3) uses obscene language, or

makes an obscene gesture; or

(4) creates a hazardous or

physically offensive condition by

any act which serves no legitimate

purpose of the actor.

Under the statute, whether “words or acts rise to the level of

disorderly conduct hinges upon whether they cause or

unjustifiably risk a public disturbance.” Commonwealth v.

Hock, 728 A.2d 943, 946 (Pa. 1999). When the regulated

conduct consists of speech, however, the statute must “be

carefully drawn or authoritatively construed to punish only

unprotected speech and not be susceptible of application to

protected expression.” Johnson v. Campbell, 332 F.3d 199, 211

(3d Cir. 2003) (quoting Gooding v. Wilson, 405 U.S. 518, 522

(1972)); Commonwealth v. Mastrangelo, 414 A.2d 54, 58 (Pa.

1980) (“disorderly conduct statute may not be used to punish

anyone exercising a protected First Amendment right”). Speech

that does not receive First Amendment protection, in turn,

“include[s] the lewd and obscene, the profane, the libelous, and

the insulting or ‘fighting’ words[.]” Chaplinsky v. New

Hampshire, 315 U.S. 568, 572 (1942).

Under the first step of the qualified immunity analysis,

the issue is whether Davis’ conduct violated Gilles’ First

10

Amendment rights.4 The District Court held Gilles’ speech

constituted “fighting words,” “those which by their very

utterance inflict injury or tend to incite an immediate breach of

the peace.” Mem. Op. at *13-15 (W.D. Pa. Apr. 22, 2004)

(quoting Chaplinsky, 315 U.S. at 571-72);5 see also Texas v.

4

Whether Gilles’ speech was protected depends, in part, on

whether he had a right to speak at the Oak Grove. We do not

believe Indiana University of Pennsylvania’s solicitation policy

required Gilles to obtain permission or approval to use the Oak

Grove area. Regarding “public outdoor areas,” which on this

record appears to include the Oak Grove area, the policy states,

“[a]ll activities involving commercial solicitation and/or fund-

raising for noncommercial purposes in public outdoor areas

must be requested and approved a minimum of ten days in

advance by the Center for Student Life.” Gilles’ conduct does

not constitute commercial solicitation or fund-raising for

noncommercial purposes. This conclusion finds support in the

deposition of Terry Appolonia, the Director of the Center for

Student Life in charge of granting and denying solicitation

requests. Appolonia conceded that “[t]he policy does not state

an application is needed for noncommercial activities in outdoor

locations.”

5

Applying this standard, the Pennsylvania Supreme Court

held that a disorderly conduct conviction did not run afoul of the

First Amendment where the criminal defendant had followed a

meter maid for two consecutive days, shouting vulgarities at her

11

Johnson, 491 U.S. 397, 409 (1989) (“To be punishable, words

must do more than bother the listener; they must be nothing less

than an invitation to exchange fisticuffs.”) (quoting Chaplinsky,

315 U.S. at 572-73). Put another way, fighting words are “likely

to provoke the average person to retaliation, and thereby cause

a breach of the peace.” Texas v. Johnson, 491 U.S. at 409

(quoting Chaplinsky, 315 U.S. at 574).

We believe that much of Gilles’ speech was protected

under the First Amendment. Crucial to this determination is

that we view the facts in the light most favorable to Gilles (the

non-moving party) under the summary judgment standard and

the first prong of the qualified immunity analysis.

Of Gilles’ questionable speech, some was derogatory

language generically directed to the crowd (e.g., “by definition,

there are thousands of fornicators on this campus,” “drunkards

are everywhere on this campus”). This type of language, when

not personally directed at a particular member of the audience,

is not likely to incite an immediate breach of the peace. See

Cohen v. California, 403 U.S. 15, 20 (1971) (noting that

fighting words are “personally abusive epithets . . . directed to

the person of the hearer”) (internal quotations omitted). Gilles

also specifically directed insults to certain people (“cigarette

in a threatening manner. Mastangelo, 414 A.2d at 58. But a

disorderly conduct conviction was not appropriate for a non-

threatening, profane remark directed at a police officer. Hock,

728 A.2d at 947.

12

breath,” “devil,” “communist,” etc.). But on summary

judgment, at least, we believe this speech in this context could

be reasonably viewed as unpleasant but petty, and not

sufficiently provocative to constitute fighting words. It bears

noting that the videotape reveals that Gilles’ speech and manner

were in part and to some degree lacking in bite. For example,

Gilles stated that “every Mormon is damned to hell,” but added

a comical overtone by finishing the sentence, “including, Donnie

and Maria Osmond.” His manner varied between hostile and

jaunty, and sometimes exuded an air of theatrical exaggeration

(e.g., Gilles emphasized a point by fully extending his arms in

front of him towards the sky, projecting his voice as one might

do in a play).

Nonetheless, Gilles’ epithets directed at the woman who

identified herself as a Christian and a lesbian (“Christian lesbo,”

“lesbian for Jesus,” “do you lay down with dogs,” “are you a

bestiality lover”) were especially abusive and constituted

fighting words. Where part of speech constitutes fighting

words, the police may arrest for disorderly conduct even though

other parts of the speech may be less provocative. See, e.g.,

Ovadal v. City of Madison, Wisconsin, 416 F.3d 531, 535 (7th

Cir. 2005) (“conduct which is in fact disorderly is not insulated

because it is perpetrated while engaged in a protest

demonstration”) (internal quotations omitted).

Even if the lesbian/bestiality invectives did not constitute

fighting words, we believe Sergeant Davis is entitled to

qualified immunity. Under the second step of the analysis, a

13

police officer is entitled to qualified immunity unless it would

have been clear to a reasonable officer there was no probable

cause to arrest. See Paff v. Kaltenbach, 204 F.3d 425, 437 (3d

Cir. 2000) (“If there are cases that would make it apparent to a

reasonable officer in [the arresting officer’s] position that

probable cause was lacking, qualified immunity is not

available.”) (internal quotations omitted); see also Kijonka v.

Seitzinger, 363 F.3d 645, 648 (7th Cir. 2004) (“whether there

was any reasonable basis to suppose there was probable cause

. . . is the test for qualified immunity”).

Gilles’ speech was rude, mocking, confrontational, and

insulting.6 When viewed on the videotape, the crowd responses

6

As noted, in addition to reviling the student body in general,

Gilles initiated and exchanged insults with individual students.

As noted, he asked one person if he was a communist and

another if he was a “high school flunky.” When told he was

interrupting class, Gilles called the interlocutor “cigarette

breath” and “devil.” The crowd’s reaction varied, but included

some notably hostile reactions. An unidentified person threw an

apple core at Gilles, striking his briefcase. Two other persons

shouted at Gilles, “get your fucking God off our campus” and

“[you’re a] small minded man.” There was a confrontation with

the person Gilles called “cigarette breath,” who, upset,

approached Gilles up close, saying, “who are you, brown tie,

and ugly pants? Don’t be belittling me. It is Goddamn campus

policy.”

14

span the spectrum from pettiness to genuine hostility. Many in

the crowd were upset and angry with Gilles at the time Officer

Davis intervened.

The words Gilles directed at the woman who identified

herself as a Christian and a lesbian were abusive, akin to a racial

slur. For a police officer confronting Gilles in the field, with

little time to parse Gilles’ speech, it was not unreasonable to

believe Gilles engaged in disorderly conduct.

At the least, reasonable minds could disagree whether

Gilles’ speech was protected. Subsequent to his arrest, the

Court of Common Pleas dismissed all charges against Gilles,

including the charge of disorderly conduct. Yet, Gilles has been

convicted before for similar conduct. In a factually similar

incident, the Indiana Court of Appeals upheld a disorderly

conduct conviction for preaching to a crowd at a festival. See

Gilles v. Indiana, 531 N.E.2d 220, 222-23 (Ind. App. 4 Dist.

1988). Holding it was “readily apparent” that Gilles used

fighting words, the court focused on his use of the words

“whores,” “queers,” “AIDS people,” “drunkards,” and “scum of

the earth.” The court reasoned that “Gilles placed his listeners

in categories defined by sexual activity, sexual orientation, and

sexually transmitted disease. This language was inherently

likely to provoke a violent reaction.” Id. at 223. In any event,

that there is more than one judicial view of Gilles’ conduct

strongly suggests that qualified immunity is appropriate here.

15

Finally, whether it was reasonable to believe there was

probable cause is in part based on the limited information that

the arresting officer has at the time. See BeVier v. Hucal, 806

F.2d 123, 127 (7th Cir. 1986) (“probable cause is a function of

information and exigency”); Colbert v. Angstadt, 169 F. Supp.

2d 352, 360-61 (E.D. Pa. 2001) (holding probable cause to arrest

existed where the facts and circumstances within the arresting

officer’s knowledge were sufficient for a reasonable person to

believe that an offense had been committed). Sergeant Davis

appears to have arrived at the scene fifteen to twenty minutes

after Gilles began to speak. According to Davis, he was

summoned to a “near riot situation.” He briefly spoke with

members of the crowd about what had transpired. According to

Davis, members of the crowd reported to him that “Gilles was

. . . picking people out of the crowd individually and calling

them names and questioning their sexual identity, questioning

their sexual orientation.” We see no reason why Davis’ reliance

on their accounts was unreasonable.

Taking account of the entire episode and the information

Davis possessed at the time, we hold Davis is entitled to

qualified immunity because it would not have been clear to a

reasonable officer that Gilles did not engage in disorderly

conduct.7 While the Court of Common Pleas held Gilles’

7

In addition to holding Sergeant Davis is entitled to qualified

immunity, we hold Gilles’s and Petit’s First Amendment claim

fails against William Montgomery, the Director of Public Safety

16

speech was insufficient to constitute disorderly conduct, it does

not necessarily follow that the arresting officers are civilly liable

for the arrest. Qualified immunity encompasses mistaken

judgments that are not plainly incompetent. Hunter v. Bryant,

502 U.S. 224, 229 (1991). Under qualified immunity, police

officers are entitled to a certain amount of deference for

decisions they make in the field. They must make “split-second

judgments—in circumstances that are tense, uncertain, and

rapidly evolving.” Saucier v. Katz, 533 U.S. 194, 204-05

who supervises the Indiana University of Pennsylvania police

department. A supervising authority may be liable under § 1983

for failing to train police officers when the failure to train

demonstrates deliberate indifference to the constitutional rights

of those with whom the officers may come into contact,

notwithstanding the qualified immunity of an officer at the

scene. See City of Canton v. Harris, 489 U.S. 378, 388 (1989).

But to establish liability on a failure to train claim under § 1983,

plaintiffs “must identify a failure to provide specific training

that has a causal nexus with their injuries and must demonstrate

that the absence of that specific training can reasonably be said

to reflect a deliberate indifference to whether the alleged

constitutional deprivations occurred.” Reitz v. County of Bucks,

125 F.3d 139, 145 (3d Cir. 1997). Gilles and Petit have not pled

the necessary elements to state a claim against Montgomery for

failure to train the officers of the Indiana University of

Pennsylvania police department. Accordingly, their claim

against Montgomery fails.

17

(2001). The reasonableness of the officer’s belief should be

judged from that on-scene perspective, not with the perfect

vision of hindsight. Id.; see also Graves v. City of Coeur

D’Alene, 339 F.3d 828, 848 n.25 (9th Cir. 2003) (“The qualified

immunity defense recognizes that officers make probable cause

assessments in the field under pressure and therefore affords the

officer leeway, permitting a reasonable mistake without

resulting individual liability of the officer, when the law is not

clearly established.”)

2. Excessive Force

The District Court granted summary judgment to

defendants on Gilles’ excessive force claim that his handcuffs

were too tight. In these cases, summary judgment for an officer

who claims qualified immunity is appropriate where, “after

resolving all factual disputes in favor of the plaintiff, [] the

officer’s use of force was objectively reasonable under the

circumstances.” Kopec v. Tate, 361 F.3d 772, 777 (3d Cir.

2004) (internal quotations omitted). In Kopec, we reversed the

grant of summary judgment, but cautioned that the “opinion

should not be overread as we do not intend to open the

floodgates to a torrent of handcuff claims.” Id. The plaintiff in

Kopec contended he was in extreme pain, which would have

been obvious to the arresting officer. In addition to repeated

complaints about the pain, the plaintiff allegedly fell to the

ground and “began to faint.” Id. Furthermore, the plaintiff

alleged permanent nerve damage in one wrist, for which a

surgeon treated him for over one year. Id. at 774.

18

Gilles contends that two matters should have alerted

Davis to his alleged pain. First, he notes that he loudly sang

religious songs while in custody, in part, he says, to take his

mind off of the pain. Even if true, it is not necessarily

objectively reasonable to deduce from Gilles’ singing that the

handcuffs were causing him pain. Furthermore, Gilles testified

that the purpose of his singing was “primarily to rejoice in the

fact that I was being persecuted for righteousness’ sake for

preaching the Gospel.” Second, Gilles contends he complained

of pain to unidentified officers who allegedly passed the

information to Davis, who allegedly instructed them not to

adjust the handcuffs. Unlike Kopec, where the plaintiff fell to

the ground and fainted with pain, obvious visible indicators of

Gilles’ pain were absent (other than his alleged complaint that

the handcuffs were too tight). As the District Court noted on

viewing the videotape of the arrest, Gilles demonstrated no

expression or signs of discomfort at the time he was handcuffed.

Nor did Gilles seek or receive medical treatment after the fact.

The only doctor Gilles ever saw relating to this incident was on

April 13, 2004, two and a half years after the arrest. At that

time, Gilles did not seek medical treatment, but rather an

“independent medical evaluation.” The plaintiff in Kopec

alleged permanent nerve damage for which a hand-surgeon had

treated him for over a year. In this case, we hold the facts

alleged constitute insufficient evidence as a matter of law for

excessive force by handcuffing.

19

3. Standing

Gilles and Petit contend the Indiana University of

Pennsylvania permit or registration policy and its application by

Appolonia and Luckey violated their First Amendment rights.

The District Court held Gilles and Petit had no standing to bring

the challenge because they had not applied for a permit.

The traditional rules of standing require that the plaintiff

has suffered an “injury in fact,” which is “concrete and

particularized” and “actual or imminent.” Lujan v. Defenders of

Wildlife, 504 U.S. 555, 560-61 (1992). The District Court held

plaintiffs failed to show they personally suffered some actual or

threatened injury as a result of Indiana University of

Pennsylvania’s permit policy or the application of that policy.

As the District Court found, Gilles and Petit never applied for

nor were they denied a permit. Gilles and Petit appear to argue

that Bradley Hoffman’s after the fact application confers

standing on them. The argument is meritless.

Under a First Amendment exception to the traditional

standing rules, litigants “are permitted to challenge a statute not

because their own rights of free expression are violated, but

because of a judicial prediction or assumption that the statute’s

very existence may cause others not before the court to refrain

from constitutionally protected speech or expression.”

Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973). This

exception is inapplicable to Gilles and Petit. The policy they

challenge does not unduly restrict First Amendment freedoms,

20

nor does it deter third parties from engaging in protected

expression . By its terms, it merely allows the university to

“regulate the time, manner, and location of any and all

solicitation activities on campus” so as to ensure such activities

do not “create undue noise or disruption or interfere with the

activities that normally occur in the area in question.”

Accordingly, we hold Gilles and Petit lack standing to challenge

the permit policy.

B. Petit’s Claims

Timothy Petit sought damages under § 1983 against

Sergeant Davis, Officer Goenner, Indiana University of

Pennsylvania administrators Appolonia and Luckey, and

William Montgomery, the Director of Public Safety who

supervises the Indiana University of Pennsylvania police

department. The District Court held that Petit’s claims were

barred under Heck v. Humphrey, 512 U.S. 477 (1994). Under

Heck, a § 1983 action that impugns the validity of the plaintiff’s

underlying conviction cannot be maintained unless the

conviction has been reversed on direct appeal or impaired by

collateral proceedings. As the District Court noted, Petit

resolved the charges against him by entering into Pennsylvania’s

Accelerated Rehabilitation Disposition program.8 After a

8

At his deposition, Petit stated he pled guilty to disorderly

conduct and that he never appealed that “conviction.” Despite

Petit’s characterization, the District Court and the parties state

that Petit entered into the ARD program. As we discuss, under

21

successful probationary period, the charges were expunged from

his criminal record. The District Court found, however, that

under Heck expungement under the ARD Program is not a result

“favorable” to the plaintiff.

When a criminal defendant is selected for and decides to

participate in the ARD program, he avoids trial and potential jail

time, and receives expungement of the record in exchange for

successfully completing a probationary period. See generally

Pa. R. Crim. P. 300 et seq.; Junod v. Bader, 458 A.2d 251, 253-

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

Heck, both a guilty plea and an ARD are sufficient to bar a

subsequent § 1983 claim.

9

The purpose of the ARD program is to rehabilitate offenders

and promptly dispose of minor criminal charges. See Pa. Crim.

R. 300-20 & Committee Introduction. The program targets first

time offenders charged with minor crimes that appear receptive

to treatment and rehabilitation. District attorneys administer the

ARD program and have discretion whether to request the court

to grant it for a given defendant. Commonwealth v. Armstrong,

434 A.2d 1205 (Pa. 1981). Admission into ARD is not a right.

Commonwealth v. Paul, 557 A.2d 357, 358 (1989). But

prosecutors do not have unbridled discretion whether to grant or

deny the program. Commonwealth v. Lutz, 495 A.2d 928, 935

(1985). See generally Cain v. Darby Borough, 7 F.3d 377, 382

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

22

Pennsylvania Rules of Criminal Procedure states that

“acceptance into an ARD program is not intended to constitute

a conviction,” but “it may be statutorily construed as a

conviction for purposes of computing sentences on subsequent

convictions.” Pa. R. Crim. P. 312 (Comment). By entering the

ARD program, the defendant waives his right to prove his

innocence, but at the same time, does not admit guilt.

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

liability.” 512 U.S. at 483. Thus, common law bars to suit

apply to claims brought under § 1983. Id. In Heck, the Court

held a §1983 malicious prosecution claim was subject to the

common law requirement that the plaintiff show the prior

criminal proceeding terminated in his favor. Id. at 484. The

purpose of the requirement, the Court explained, is to avoid

parallel litigation of probable cause and guilt. Id. It also

prevents the claimant from succeeding in a tort action after

having been convicted in the underlying criminal prosecution,

which would run counter to the judicial policy against creating

two conflicting resolutions arising from the same transaction.

Id.

These reasons are equally applicable in this context.

Petit’s underlying disorderly conduct charge and his § 1983 First

A m e n d m e n t c la im re q u ire a n s w e rin g th e s a m e

question—whether Petit’s behavior constituted protected

activity or disorderly conduct. If ARD does not constitute a

favorable termination, success in the § 1983 claim would result

in parallel litigation over whether Petit’s activity constituted

23

disorderly conduct and could result in a conflicting resolution

arising from the same conduct.

We recognize that concurring and dissenting opinions in

Spencer v. Kemna, 523 U.S. 1 (1998), question the applicability

of Heck to an individual, such as Petit, who has no recourse

under the habeas statute. See id. at 19-20 (Souter, J.,

concurring); id. at 21 (Ginsburg, J., concurring); id. at 25 n.8

(Stevens, J., dissenting). But these opinions do not affect our

conclusion that Heck applies to Petit’s claims. We doubt that

Heck has been undermined, but to the extent its continued

validity has been called into question, we join on this point, our

sister courts of appeals for the First and Fifth Circuits in

following the Supreme Court’s admonition “to lower federal

courts to follow its directly applicable precedent, even if that

precedent appears weakened by pronouncements in its

subsequent decisions, and to leave to the Court ‘the prerogative

of overruling its own decisions.’” Figuero v. Rivera, 147 F.3d

77, 81 n.3 (1st Cir. 1998) (citing Agostini v. Felton, 521 U.S.

203, 237 (1989)); see Randell v. Johnson, 227 F.3d 300, 301-02

(5th Cir. 2000).

Because the holding of Heck applies, Petit cannot

maintain a § 1983 claim unless successful completion of the

ARD program constitutes a “termination of the prior criminal

proceeding in favor of the accused.” Heck, 512 U.S. at 485. We

24

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

10

In Cain v. Darby Borough, 7 F.3d 377 (3d Cir. 1993),

decided before Heck v. Humphrey, we examined the validity of

coupling the ARD program with a mandatory release of civil

rights claims. Under a policy of the Delaware County District

Attorney’s Office, the District Attorney would not approve the

ARD program unless the petitioner first agreed to a release of all

civil rights claims against the arresting officers. In Cain, the

petitioner agreed to this waiver, but after successfully

completing the program, she brought a § 1983 suit against three

municipalities, the respective police departments, and arresting

officers. We held that the release agreement was unenforceable

under Town of Newton v. Rumery, 480 U.S. 386 (1987). Under

Rumery, an agreement releasing § 1983 claims would be

unenforceable “if the interest in its enforcement is outweighed

in the circumstances by a public policy harmed by enforcement

of the agreement.” Id. at 392. We held that the Delaware

County blanket policy of requiring release of § 1983 claims

failed Rumery because it did not “distinguish between frivolous

and meritorious litigation,” indiscriminately curtailing both. We

stated: “[w]hile ARD was designed in part to promptly dispose

of minor criminal charges, thus eliminating the need for costly

and time-consuming criminal trials, it was never intended to

dispose of civil rights claims.” But Cain was decided before

Heck v. Humphrey and did not consider whether ARD was a

favorable termination of the criminal charge sufficient to bring

a § 1983 claim.

25

courts have held that ARD is not a termination favorable for

purposes of bringing a subsequent § 1983 malicious prosecution

claim.11

We find instructive opinions from the Second and Fifth

Circuits that have addressed whether similar pre-trial

probationary programs are a favorable termination sufficient to

bring a subsequent civil suit. In Roesch v. Otarola, 980 F.2d

850 (2d Cir. 1992), the Court of Appeals for the Second Circuit

held that dismissal of a Connecticut criminal prosecution under

its “accelerated pretrial rehabilitation” program was not

sufficiently favorable to support a § 1983 malicious prosecution

claim.12 The court reasoned that permitting “a criminal

11

See Nardini v. Hackett, 2001 WL 1175130, at *4 (E.D. Pa.

Sept. 19, 2001) (holding ARD program not a termination

favorable to plaintiff for purposes of bringing a § 1983

malicious prosecution claim); Davis v. Chubb/Pac. Indem.

Group, 493 F. Supp. 89, 92 (D.C. Pa. 1980) (“an A.R.D.

disposition . . . [is not] a favorable termination”); but see

Williams v. Borough of Norristown, 1995 WL 422684, at *1 n.3

(E.D. Pa. July 11, 1995) (declining to dismiss § 1983 malicious

prosecution claim where underlying criminal charge was

resolved through ARD, noting “lack of Third Circuit authority

on the issue”).

12

Connecticut’s “accelerated pretrial rehabilitation” program

is similar to Pennsylvania’s ARD program. Conn. Gen. Stat.

26

defendant to maintain a section 1983 action after taking

advantage of accelerated rehabilitation, the program, intended

to give first-time offenders a second chance, would become less

desirable for the State to retain and less desirable for the courts

to use because the savings in resources from dismissing the

criminal proceeding would be consumed in resolving the

constitutional claims.” Id. at 853.

Roesch relied upon Singleton v. City of New York, 632

F.2d 185, 193-95 (2d Cir. 1980). In Singleton, the court

considered a mechanism under New York Criminal Procedure

similar to the ARD program, termed “adjournment in

contemplation of dismissal.” See N.Y. Crim. Proc. Law §

170.55. Under an adjournment in contemplation of dismissal,

after the accused serves a probationary period, the charges are

dismissed. The court likened the adjournment in contemplation

of dismissal to a consent decree, reasoning that both leave open

the question of guilt. Id. at 193. But the court refused to equate

dismissal with acquittal. Id. The court found significance in the

probationary period, calling it an unfavorable “period of

observation . . . to determine whether the prosecutor’s

acquiescence in the adjournment was justified.” Id. at 194.

Ann. § 54-56e (West Supp. 1992). To earn dismissal of the

charges and erasure of related records under Connecticut’s

program, the defendant must successfully complete a

probationary period and pay to the court a one hundred dollar

“participation fee.”

27

Regarding expungement of the records related to the charge, the

court found this erased “the stigma that might otherwise be

borne by the defendant,” in the same way laws treat juvenile

delinquents who have committed criminal acts, but does not

constitute a finding of “not guilty.” Id.

In Taylor v. Gregg, 36 F.3d 453, 455-56 (5th Cir. 1994),

the Court of Appeals for the Fifth Circuit adopted Singleton’s

reasoning, holding that a “pre-trial diversion order” is not a

favorable termination. Like the ARD program, offenders who

successfully complete Texas’ diversion program receive

dismissal of their charges. The court held that “criminal

defendants are effectively foregoing their potential malicious

prosecution suit in exchange for conditional dismissal of their

criminal charges.” Id. at 456.

The ARD program is a court-supervised compromise.

See Davis, 493 F. Supp. at 92; see also Commonwealth v.

Kindness, 371 A.2d 1346 (Pa. Super. Ct. 1977) (describing

termination of criminal charge under ARD program as a court-

supervised compromise). Nevertheless, the ARD program

imposes several burdens upon the criminal defendant not

consistent with innocence, including a probationary term,

“restitution . . . imposition of costs, and imposition of a

reasonable charge relating to the expense of administering the

program, and such other conditions as may be agreed to by the

parties.” Pa. R. Crim. P. 316(a). We agree with Singleton that

probation constitutes an “unfavorable” period of judicially

imposed limitations on freedom in which the probationer’s

28

violation of the program’s terms may result in criminal

prosecution. Singleton, 632 F.2d at 193-95. Viewing these

factors together, we hold the ARD program is not a favorable

termination under Heck.13 Petit’s participation in the ARD

program bars his § 1983 claim.14

13

The strongest factor supporting the contention that ARD is

a favorable termination is that successful completion of the

ARD program results in dismissal of the criminal charge and

expungement of the arrest record. See Pa. R. Crim. P. 319, 320.

For the reasons noted, however, we believe the ARD program

is not a favorable termination under Heck.

14

The District Court suggested that even if Heck did not bar

Petit’s claim, the First Amendment claim would fail nonetheless

because videotaping does not constitute a protected First

Amendment activity. But videotaping or photographing the

police in the performance of their duties on public property may

be a protected activity. See Smith v. City of Cumming, 212 F.3d

1332, 1333 (11th Cir. 2000) (“The First Amendment protects the

right to gather information about what public officials do on

public property, and specifically, a right to record matters of

public interest.”). More generally, photography or videography

that has a communicative or expressive purpose enjoys some

First Amendment protection. See generally Bery v. City of New

York, 97 F.3d 689 (2d Cir. 1996) (holding that sale of art and

photographs are protected activities); Porat v. Lincoln Towers

Cmty. Ass’n, 2005 WL 646093, at *4 (S.D.N.Y. Mar. 21, 2005)

29

Conclusion

For the foregoing reasons, we will affirm the District

Court’s grant of summary judgment dismissing Gilles’ and

Petit’s claims.

Fuentes, Circuit Judge, dissenting in part.

I disagree with the majority that the police officers who

arrested Gilles, who was speaking in an open space at a public

university, and whose speech was not likely to result in a breach

of the peace, are entitled to qualified immunity. The officer

who arrested Gilles observed no conduct that amounted to a

breach of the peace.

I also disagree that Petit’s First Amendment claim should

be dismissed under Heck v. Humphrey, 512 U.S. 477 (1994),

because, under Heck and Spencer v. Kemna, 523 U.S. 1 (1998),

Heck’s favorable termination rule cannot be applied to dismiss

(noting that photography for more than mere aesthetic or

recreational purposes enjoys some First Amendment protection);

Baker v. City of New York, 2002 U.S. Dist LEXIS 18100, at *19

(S.D.N.Y. Sept. 25, 2002) (“It is undisputed that [plaintiff’s]

street photography is First Amendment expression[.]”).

30

a § 1983 claim brought by a plaintiff not in custody. Id. at 500.

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

I. Gilles’ Arrest

A. First Amendment violation

The essence of the majority opinion is that, though

defendants may have violated Gilles’ First Amendment rights,

the law was not so clearly established as to deprive the officers

of qualified immunity. I disagree because I believe that the

officers violated long-standing, fundamental principles of First

Amendment law.

15

I join in the majority’s opinion with respect to Gilles’

challenge of the Indiana University of Pennsylvania (IUP)

permit policy. I merely wish to add that Gilles has no standing

to bring his challenge because the permit policy is a reasonable,

content-neutral policy that regulates commercial solicitation

only, and therefore Gilles raises no issue with respect to whether

the permit policy “may cause others not before the court to

refrain from constitutionally protected speech or expression.”

Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973).

31

To qualify as fighting words, speech must either be

intended and likely to incite violence, or inherently likely to

result in physical fighting. See Cohen v. California, 403 U.S.

15, 20 (1971) (“There is . . . no showing that anyone who saw

Cohen was in fact violently aroused or that appellant intended

such a result.”); Texas v. Johnson, 491 U.S. 397, 409 (1989)

(“asking whether the expression is directed to inciting or

producing imminent lawless action and is likely to incite or

produce such action”) (internal quotation omitted); Johnson v.

Campbell, 332 F.3d 199, 213 (3d Cir. 2003) (“Johnson’s words

were unpleasant, insulting, and possibly unwise, but they were

not intended to, nor did they, cause a fight.”).16

Here there is no indication, and certainly no showing, that

Gilles acted with the intention of provoking violence.

Therefore, we must consider whether the speech was by its

nature very likely to result in physical fighting. Defendants

argue that the crowd which had gathered before Gilles was on

the verge of riot when police officers arrived. I do not discern,

from what little we can observe on the videotape on record, that

the crowd was on the verge of riot. As the state court, which

granted a writ of habeas corpus to Gilles, noted, many listeners

16

Speech that results in violence is not necessarily inherently

provocative, but in the absence of violence or any sign of

impending violence it is especially difficult to show that certain

words ‘inherently’ arouse listeners to violence.

32

reacted to Gilles’ speech “by being quietly attentive or simply

laughing at the proceedings.” Besides Gilles himself, the only

noise comes from individuals in the crowd shouting at Gilles

and engaging in various heated exchanges with him. The crowd

occasionally broke out into applause in their support.

In the videotape, Gilles stands near a tree at a pedestrian

intersection on a campus green. The only other people one can

see for most of the tape are those passing by him on the

pedestrian walkway. The crowd listening and engaging Gilles

is some distance away from him, as there is considerable empty

space visible around Gilles. As the majority describes the scene,

at one point, one individual approached Gilles to confront him,

but that individual remained only briefly. Gilles called him

“cigarette-breath” as he walked away. As the majority notes, the

records suggests that at some point someone also threw an apple

that hit Gilles’ briefcase, but this event is hardly noticeable on

the tape and was hardly an act of physical intimidation.

The record does suggest that the police were told that the

situation was “near riot” and that a fight might break out.

However, I think it is clear that no fight was actually likely to

break out. The students were certainly angry with Gilles and

wanted him off their campus, but there is no indication that they

intended to force him off of the campus physically.

33

The police defendants were probably concerned upon

arriving at the scene that angry people were shouting at each

other and engaging in some name-calling. But “the First

Amendment recognizes . . . that a certain amount of expressive

disorder not only is inevitable in a society committed to

individual freedom, but must itself be protected if that freedom

would survive.” City of Houston v. Hill, 482 U.S. 451, 472

(1987). While “[t]o many, the immediate consequence of this

freedom may often appear to be only verbal tumult, discord, and

even offensive utterance[, t]hese are . . . in truth necessary side

effects of the broader enduring values which the process of open

debate permits us to achieve.” Cohen, 403 U.S. at 24-25.

Indeed, in this case, Gilles provoked exactly the response

desirable in a democracy: students responded to him by

engaging in argument regarding important issues of religious

and sexual tolerance and personal privacy.

Defendants argue that however benign the crowd’s

behavior up until the time that Gilles was arrested, his language

was so provocative that it was reasonable to assume that at some

point violence would break out. It is very difficult to show,

however, that words are inherently “likely to produce a clear and

present danger of a serious substantive evil that rises far above

public inconvenience, annoyance, or unrest.” Hill, 482 U.S. at

461 (quoting Terminiello v. Chicago, 337 U.S. 1, 4 (1949)); see

34

also Street v. New York, 394 U.S. 576, 592 (1969) (“Though it

is conceivable that some listeners might have been moved to

retaliate upon hearing appellant’s disrespectful words, we

cannot say that appellant’s remarks were so inherently

inflammatory as to come within the small class of ‘fighting

words’ which are likely to provoke the average person to

retaliation.”) (internal quotation omitted).

The Supreme Court has long rejected the presumption

that “an audience that takes serious offense at particular

expression is necessarily likely to disturb the peace and that the

expression may be prohibited on this basis . . . . On the contrary

. . . a principal function of free speech under our system of

government is to invite dispute. It may indeed best serve its

high purpose when it induces a condition of unrest, creates

dissatisfaction with conditions as they are, or even stirs people

to anger.” Texas v. Johnson, 491 U.S. at 408-09 (internal

quotation omitted). The Court has explicitly held that it will

“not permit[] the government to assume that every expression of

a provocative idea will incite a riot, but [has] instead required

careful consideration of the actual circumstances surrounding

such expression.” Id. at 409. The government in this case was

not justified in presuming that university students, whose

peculiar vocation it is to engage in free and open debate, “are

standing ready to strike out physically at whomever may assault

their sensibilities” so as to effectively censor dissidents. Cohen,

403 U.S. at 23. As the Cohen court explained:

35

[While] [t]here may be some persons about with such

lawless and violent proclivities . . . that is an insufficient

base upon which to erect, consistently with constitutional

values, a governmental power to force persons who wish

to ventilate their dissident views into avoiding particular

forms of expression. The argument amounts to little

more than the self-defeating proposition that to avoid

physical censorship of one who has not sought to provide

such a response by a hypothetical coterie of the violent

and the lawless, the States may more appropriately

effectuate that censorship themselves.

Id. at 23.

The force of the defendant’s attempt to characterize

Gilles’ speech as “fighting words” derives almost entirely from

the offensive character of his speech. Cf. Street, 394 U.S. at 592

(“[A]ny shock effect of appellant’s speech must be attributed to

the content of the ideas expressed. It is firmly settled that under

our Constitution the public expression of ideas may not be

prohibited merely because the ideas are themselves offensive to

some of their hearers.”). Yet Ku Klux Klan members and neo-

Nazis are permitted to march, notwithstanding the offense they

cause to the vast majority of people. See Texas v. Johnson, 491

U.S. at 418 (“The First Amendment does not guarantee that . .

. concepts virtually sacred to our Nation as a whole . . . will go

36

unquestioned in the marketplace of ideas.”) (citing Brandenburg

v. Ohio, 395 U.S. 444 (1969)). “[W]e are often captives

outsides the sanctuary of the home and subject to objectionable

speech.” Cohen, 403 U.S. at 21 (quotation omitted). People

who do not want exposure to the offensive speech can avert

their eyes or walk away. Id. at 21. “If there is a bedrock

principle underlying the First Amendment, it is that the

government may not prohibit the expression of an idea simply

because society finds the idea itself offensive or disagreeable.”

Texas v. Johnson, 491 U.S. at 414. Neither embarrassing,

disgraceful, shaming, vulgar nor offensive words are inherently

fighting words. See Lewis, 415 U.S. 133-34; NAACP v.

Claiborne Hardware Co., 458 U.S. 886, 910, 911 (1982);

Gooding, 405 U.S. at 527; Campbell, 332 F.3d at 212.

The majority suggests that at least those insults that

Gilles directed at a woman who identified herself as Christian

and lesbian were fighting words. Gilles taunted the woman:

“oh, my, you ma’am are most confused. She thinks she’s a

Christian lesbo. She’s a lesbian for Jesus.” He asked her, “do

you lay down with dogs? Are you a bestiality lover? . . . Can you

be a bestiality lover and a Christian also?”

The government’s constitutional authority “to shut off

discourse solely to protect others from hearing it is . . .

dependent upon a showing that substantial privacy interests are

37

being invaded in an essentially intolerable manner.” Cohen, 403

U.S. at 21. Although outrageous and offensive, Gilles’

comments to this woman were made in the context of a speech

in which he alleged that most Indiana University of

Pennsylvania (“IUP”) students were going to hell for their

sexual degeneracy. The students he called out specifically,

including the woman who identified herself as a Christian

lesbian, were among those who chose to shout back at Gilles

and engage him. Gilles clearly had no independent knowledge

of any of these students, such that they could feel he was

“revealing” actual information about their private lives. Gilles

was clearly using them as mere examples of his larger point

about campus sexual mores.

Because Gilles was not directing his comments to

individuals in any meaningful sense, they are especially difficult

to characterize as “fighting words.” “Fighting words” are

“directed to the person of the hearer.” Cohen, 403 U.S. at 20

(quotation omitted); see also Hess v. Indiana, 414 U.S. 105, 107-

08 (1973); Texas v. Johnson, 491 U.S. at 409. While in this

case, several of Gilles’ comments were ostensibly directed

toward particular individuals in the course of exchanges initiated

by them, the alleged personal insults were always delivered from

a considerable physical distance and in the course of a sweeping

sermon on sexual immorality.

38

Gilles’ speech was provocative because of its content

rather than because it contained words to which we would

expect university students to react reflexively with violence.

Nor were his words directed to individuals under circumstances

that would lead the police to conclude that those individuals

were likely to fight back physically. Because his speech was

unlikely to result in violence, it clearly did not constitute

“fighting words.” A reasonable officer would know that it fell

outside the statutory prohibition against disorderly conduct.

B. Qualified Immunity

Notwithstanding the long line of Supreme Court cases

cited above, the majority concludes that the officers were not on

notice that Gilles’ speech was constitutionally protected. To

assess a qualified immunity claim, this Court must examine not

only “the law that was clearly established at the time of the

alleged violation” but also “the facts available to the official at

that time.” Paff v. Kaltenbach, 204 F.3d 425, 431 (3d Cir.

2000). Contrary to the majority’s view, I believe the facts

available to the officers at the time that they arrested Gilles and

Petit were sufficient to put them on notice of plaintiffs’ rights.

Admittedly, when officers Davis and Goemmer arrived

at the scene they had to rely on their observations and the reports

of witnesses. The incident report suggests that most officers’

assessment of the situation was based primarily on the initial

39

report of a possible fight and their observation of Gilles shouting

inflammatory language at the crowd. As explained above, the

officers could not infer the prospect of violence from the content

of Gilles’ speech alone. Nor was it reasonable to rely on the

initial report of a possible fight even after arriving at the scene

and observing a purely verbal engagement. Although Officer

Davis reports that he asked members of the crowd what was

happening and spoke to one witness who identified herself as

someone specifically affected by Gilles’ remarks, the short time

that passed between the officers’ arrival at the scene and their

arrest of Gilles suggests this questioning could not have been

thorough. Moreover, the officers should have known that the

only language remotely approaching fighting words was

unlikely to result in lawlessness because those who allegedly

had been attacked volunteered for an interview with the officers.

Having just identified themselves to the police, these individuals

were unlikely to strike out at Gilles in the officers’ presence. In

these circumstances, the officers acted too quickly in arresting

Gilles shortly after they arrived at the scene. Nothing they saw

or heard in that brief time justified his arrest.

Even if the officers had a reasonable basis for believing

that a breach of the peace might eventually occur, their concern

could not justify a quick arrest. If the officers were worried that

one or more students might physically assault Gilles, the

appropriate response would have been to stand guard to ensure

that no violence erupted. Their mere presence should have been

40

enough to deter a breach of the peace. It was not reasonable for

the officers instead to ask Gilles for a permit he did not need and

then to arrest him.

III. Petit’s First Amendment Claim

I disagree with the majority’s view that the District Court

properly dismissed Petit’s claim under Heck v. Humphrey, 512

U.S. 477 (1994).17 Heck extended the common law principle

that “civil tort actions are not appropriate vehicles for

challenging the validity of outstanding criminal judgments . . .

to § 1983 damages actions that necessarily require the plaintiff

to prove the unlawfulness of his conviction or confinement.” Id.

at 486.

17

Because Petit’s claims are not barred under Heck, the

District Court should have addressed the merits of his First

Amendment claim and engaged in a qualified immunity analysis

with respect to his arrest. As the majority points out, the District

Court was wrong to suggest that Petit’s claim would fail merely

because he did not literally speak; videotaping can constitute

protected expression. See Smith v. City of Cumming, 212 F.3d

1332, 1333 (11th Cir. 2000) (“The First Amendment protects the

right to gather information about what public officials do on

public property, and specifically, a right to record matters of

public interest.”).

41

Like the District Court, the majority assumes that the

favorable termination rule in Heck applies to Petit’s claim. But

because Petit was not in custody when he filed his § 1983

action, Heck does not apply to his claims. Under the best

reading of Heck and Spencer v. Kemna, 523 U.S. 1 (1998), the

favorable termination rule does not apply where habeas relief is

unavailable.

Justice Souter explained this construction of the rule in

his concurrence in Heck:

[T]he alternative would needlessly place at risk the rights

of those outside the intersection of § 1983 and the habeas

statute, individuals not ‘in custody’ for habeas purposes.

If these individuals (people who were merely fined, for

example, or who have completed short terms of

imprisonment, probation, or parole, or who discover

(through no fault of their own) a constitutional violation

after full expiration of their sentences), like state prisoners,

were required to show the prior invalidation of their

convictions or sentences in order to obtain § 1983 damages

for unconstitutional conviction or imprisonment, the result

would be to deny any federal forum for claiming a

deprivation of federal rights to those who cannot first

obtain a favorable state ruling. The reason, of course, is

that individual not ‘in custody’ cannot invoke federal

42

habeas jurisdiction, the only statutory mechanism besides

§ 1983 by which individuals may sue state officials in

federal court for violating federal rights. That would be an

untoward result.

Id. at 500 (Souter, J., concurring).

Justice Souter pointed out that courts lack authority to subvert the

“plain language” of § 1983 on the basis of a common law

principle limiting collateral attack, especially where it “would run

counter to §1983’s history and defeat the statute’s purpose.” Id.

at 501 (Souter, J., concurring) (internal quotation omitted).

Justice Souter reiterated in his concurrence in Spencer that

“Heck did not hold that a released prisoner in Spencer’s

circumstances is out of court on a § 1983 claim, and . . . it would

be unsound to read either Heck or the habeas statute as requiring

any such result.” Spencer, 523 U.S. at 989 (Souter, J.,

concurring). He concluded instead that under a better reading of

Heck, a prisoner who was no longer in custody, or who had never

entered custody, “may bring a § 1983 action establishing the

unconstitutionality of a conviction or confinement without being

bound to satisfy a favorable termination requirement that it would

be impossible as a matter of law for him to satisfy.” Id. at 990

(Souter, J., concurring).

43

Justice Souter’s concurrence in Spencer was joined by

Justices O’Connor, Ginsburg, and Breyer. Justice Stevens

dissented but indicated that “it is perfectly clear, as Justice Souter

explains, that [a petitioner who does not have a remedy under the

habeas statute] may bring an action under 42 U.S.C. § 1983.”. Id.

at 992 n.8 (Stevens, J., concurring). Thus, a majority of the

Spencer Court favored Justice Souter’s reading of Heck.18

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

292 F.3d 141 (3d Cir. 2002). In Torres, we held that “the

favorable termination rule does not apply to claims that implicate

only the conditions, and not the fact or duration, of a prisoner’s

incarceration.” Id. at 143. We observed that Torres’ § 1983 claim

was cognizable unless the favorable termination applies to “prison

disciplinary sanctions that do not affect the fact or length of a

prisoner’s confinement, and, more generally . . . persons who

cannot seek habeas relief.” Id. at 145. Because the Court found

that the rule does not apply to sanctions that affect only the

conditions of confinement, we did not reach the broader question

of whether all those who cannot seek habeas relief are exempt

from the favorable termination rule. Id. However, in a lengthy

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

18

The opinions of the Court in both Heck and Spencer do

suggest in passing that Justice Scalia would not similarly limit

the application of the favorable termination rule. See Spencer,

523 U.S. at 988; Heck, 512 U.S. at 490 n.10.

44

the Supreme Court appears to support the broader exemption and,

in a shorter footnote, we approvingly cited Justice Souter’s

reading of Heck. Torres, 292 F.3d at 145 n.5, 147 n.8.

Other circuits, too, lean toward the more narrow

construction of the favorable termination rule. In Jenkins v.

Haubert, the Second Circuit held that a prisoner may bring a §

1983 claim “challenging the conditions of his confinement where

the prisoner is unable to challenge the conditions through a

petition for federal habeas corpus.” 179 F.3d 19, 21 (2d Cir.

1999); see also Leather v. Eyck, 180 F.3d 420, 424 (2d Cir. 1999)

(holding that favorable termination rule did not apply to a

defendant who “is not and never was in the custody of the State”

because “he . . . has no remedy in habeas corpus”). The Seventh

Circuit agreed, indicating that it too is “hesitant to apply the Heck

rule in such a way as would contravene the pronouncement of five

sitting Justices.” Dewalt v. Carter, 224 F.3d 607, 616-17 (7th Cir.

2000) (citation omitted). Finally, the Ninth Circuit also has

indicated it will apply the narrower favorable termination rule.

See Ramirez v. Galaza, 334 F.3d 850, 858 (9th Cir. 2003)

(holding Heck does not apply to § 1983 suits challenging

constitutional errors which “do[] not affect the overall length of

the prisoner’s confinement” because even if successful they

“would not necessarily result in an earlier release from

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incarceration, and hence, do[] not intrude upon the ‘heart of

habeas jurisdiction.’”).19

Justice Souter’s interpretation of the favorable termination

rule is thus not only the better view, but also was the majority

view of the Spencer Court and is the view among several courts

of appeal. Accordingly, I believe the District Court erred when it

applied Heck without considering whether Petit could have

brought his claim under habeas, and if not, whether that placed

him outside the scope of the favorable termination rule.

The majority bases its reasoning on three cases, two of

which pre-date Heck. See Taylor v. Gregg, 36 F.3d 453 (5th Cir.

1994); Roesch v. Otarola, 980 F.2d 850 (2d Cir. 1992); Singleton

v. City of New York, 632 F.2d 185 (2d Cir. 1980). In all three

cases, however, the favorable termination rule arose only because

plaintiffs brought suits for malicious prosecution. Favorable

termination was an element of the common law tort of malicious

prosecution long before Heck extended it to certain other § 1983

claims. See 512 U.S. at 584. Accordingly, the favorable

19

Two circuits have rejected the more narrow reading of the

favorable termination rule. See Randell v. Johnson, 227 F.3d

300, 301 (5th Cir. 2000); Figueroa v. Rivera, 147 F.3d 77, 81

n.3 (1st Cir. 1998). For the reasons given, I think their reading

of Heck and Spencer is not persuasive.

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termination rule indisputably applies to all claims of malicious

prosecution regardless of whether habeas relief is available. But

that fact clearly does not imply that the rule applies to all other

§ 1983 claims. Heck applies the rule to only those cases which,

if successful, would render invalid a “conviction or sentence.” Id.

at 486. While Heck extended the scope of the favorable

termination rule in order to reconcile § 1983 with the federal

habeas statute, § 1983 claims which cannot otherwise be pursued

in a habeas petition are not subject to the rule. The cases on

which the majority relies do not suggest otherwise.

I now turn to the critical question on this point: whether

Petit could have brought a habeas petition instead of the present

§ 1983 action. The duration of Petit’s ARD program is not on

record, but it could not have exceeded two years. See Pa. R.

Crim. P. 316(B). Since Petit filed suit about one and a half years

after his arrest, his ARD program was likely completed before he

brought this suit. Thus, Petit could not have pursued habeas

relief. See Carafas v. LaVallee, 391 U.S. 234, 238-40 (1968)

(holding that in making a custody determination, a court looks to

the date that the habeas petition was filed).

Even if the ARD program was not complete when Petit

initiated the instant action, based on my review of the record, I

conclude that the ARD program never placed Petit “in custody”

for habeas purposes. ARD is a pre-trial diversionary program, the

47

purpose of which “is to attempt to rehabilitate the defendant

without resort to a trial and ensuing conviction.” Commonwealth

v. Feagley, 538 A.2d 895, 897 (Pa. Super. Ct. 1988) (refusing to

hear appeal from order terminating participation in ARD).

“[A]cceptance of ARD does not constitute a conviction” and “is

not the equivalent of a conviction.” Id. at 897.

Although we do not know the precise conditions imposed

upon Petit, they do not appear to have required Petit to report

anywhere in Pennsylvania since his stated reason for entering

ARD was to enable his return to Kentucky as quickly as possible

for work. Cf. Dow v. Cir. Ct. of First Cir. Through Huddy, 995

F.2d 922, 923 (9th Cir. 1993) (holding alcohol rehabilitation

program that required defendant’s physical presence at a particular

place significantly restrained his liberty and could be

characterized as custody for habeas purposes). While

Pennsylvania Rule of Criminal Procedure 316 provides that “[t]he

condition of [the ARD program] may be such as may be imposed

with respect to probation after conviction of a crime,” the

conditions of Petit’s ARD program did not approach the normal

conditions of parole. Cf. Jones v. Cunningham, 371 U.S. 236,

242-43 (1963) (holding individual confined by parole order to

particular community, house, and job at the sufferance of his

parole officer, who is under constant threat of reincarceration,

qualified as “in custody” for habeas purposes).

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I therefore conclude that, even in the unlikely event that

Petit was still in ARD at the time that he filed the present suit, his

ARD program was not sufficiently burdensome to render him “in

custody” for habeas purposes. Accordingly, the favorable

termination rule does not apply to his claims and the dismissal of

his claim on that basis was error.

49