Snell v. York

Opinions of the United

2009 Decisions States Court of Appeals

for the Third Circuit

4-27-2009

Snell v. York

Precedential or Non-Precedential: Precedential

Docket No. 07-4439

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 07-4439

(Consolidated with Nos. 07-4437 and 07-4438)

_____________

EDWARD D. SNELL,

Appellant

v.

CITY OF YORK, PENNSYLVANIA;

MAYOR JOHN S. BRENNER, in his official capacity;

COMMISSIONER MARK L. WHITMAN,

in his official capacity;

RONALD CAMACHO, York Police Department,

in his official and individual capacities

_________

Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civil No. 06-cv-02133)

District Judge: Honorable John E. Jones, III

__________

Argued October 23, 2008

Before: RENDELL, and SMITH, Circuit Judges,

and POLLAK,* District Judge.

(Filed: April 27, 2009)

Randall L. Wenger, Esq. [ARGUED]

Dennis E. Boyle, Esq.

Suite 200

4660 Trindle Road

Camp Hill, PA 17011 Counsel for Appellants

John McTernan; John R. Holman; Edward D. Snell

Donald B. Hoyt, Esq.

Blakey, Yost, Bupp & Rausch

17 East Market Street

York, PA 17401

__________________

*Honorable Louis H. Pollak, Senior Judge of the United

States District Court for the Eastern District of Pennsylvania,

sitting by designation.

2

Frank J. Lavery, Jr., Esq.

James D. Young, Esq. [ARGUED]

Lavery, Faherty, Young & Patterson

225 Market Street, Suite 304

P. O. Box 1245

Harrisburg, PA 17108-0000

Counsel for Appellees

City of York, Pennsylvania;

Mayor John S. Brenner, in His Official Capacity;

Police Commissioner Mark L. Whitman, in His Official

Capacity; and Ronald Camacho

__________

OPINION OF THE COURT

__________

RENDELL, Circuit Judge.

Appellant Edward Snell appeals from the District Court’s

grant of summary judgment and dismissal of his Monell claims

for municipal liability in this action pursuant to 42 U.S.C.

§ 1983. Snell is a pro-life advocate who regularly speaks to

pregnant women as they enter the medical clinic (hereinafter

“Clinic” or “Facility”) of Planned Parenthood of Central

Pennsylvania (“Planned Parenthood”) in York, Pennsylvania.

Appellee Sergeant Ronald Camacho, a member of the City of

York police department, is one of several officers assigned to

overtime detail at the clinic under a contract between Planned

Parenthood and the City. Snell Appendix (“S.A.”) 274-77.

Detailed officers are required to enforce the law and maintain

3

order at the clinic. McTernan Appendix (“M.A.”) 183. To

dissuade pregnant women from undergoing an abortion, Snell

emphasizes the sanctity of the fetus, distributes pro-life

literature, and discusses alternatives to, and the health risks of,

abortion. S.A. 254-55. Snell’s activities emanate from deeply

rooted Christian religious beliefs. S.A. 255-56.

This case and those of two other protesters at the Clinic

(McTernan v. City of York, No. 07-4437; and Holman v. City of

York, No. 07-4438) were consolidated for oral argument. Each

of the three appellants sued individually complaining of

restrictions on his First Amendment rights of free speech,

peaceful assembly, and religious expression. Additionally,

Snell and Holman complain that their arrests for activity outside

the Clinic violated their Fourth Amendment rights. While

certain facts as stated in the three appeals are similar, the claims

of each plaintiff were separately asserted in, and decided by, the

District Court. We therefore write separately on each case, and

we note that the analysis as it relates to Snell differs from the

others somewhat, based on the nature of the government

conduct at issue.

The Clinic and its environs are described in full in our

Opinion in McTernan v. City of York, No. 07-4437, filed

concurrently herewith, and that description will not be repeated

here.

I. BACKGROUND

On November 3, 2004, Appellee Sergeant Ronald

Camacho was stationed at the Planned Parenthood clinic on

4

overtime duty. He advised abortion protesters, including

Appellant Edward Snell, that they were prohibited from entering

Rose Alley. S.A. 156, 168, 256. Several days later, at the

hearing on Snell’s disorderly conduct charge, Sergeant Camacho

explained the purpose of the restriction: “Number, one, I didn’t

want any more physical contact between Planned Parenthood

people and the anti-abortion protesters. And, number two,

again, it’s a busy alleyway. I didn’t want anybody getting hit by

any vehicles.” S.A. 327-28. Sergeant Camacho indicated that

he did not communicate the restriction to Planned Parenthood

escorts, who were permitted to accompany patrons across the

alley. S.A. 156.

Shortly after 8:00 A.M. on November 3rd, a Planned

Parenthood patron, Dorothy Sponseller, stopped her car briefly

in Rose Alley to obtain directions. S.A. 316. As Snell

approached Sponseller’s car, Peggy Welch, Planned

Parenthood’s director of client services, intercepted Snell and

asked him to step aside. S.A. 316-18, 321. Snell returned to the

curb, and Sponseller deposited her daughter at the rear entrance

of the Clinic, looped around the block, and parked in the

Clinic’s front lot. S.A. 316-19. There, three Planned Parenthood

escorts joined her. S.A. 317. As the group crossed the alley

toward the Clinic, Snell approached Sponseller to hand her a

pamphlet. S.A. 169, 319. Witnesses’ accounts differ as to

whether Snell impeded Sponseller’s progress to the Clinic;1

1

Snell testified that he merely approached Sponseller in the

alley to hand her a pamphlet and did not “run[] into or

obstruct[]” her. S.A. 258. At the preliminary hearing, Peggy

5

however, it is undisputed that he did not “actually stop”

Sponseller, and that Sponseller, walking around Snell, was only

momentarily delayed. S.A. 305, 156. Afterwards, Sergeant

Camacho admonished Snell, threatening to arrest him if he

entered Rose Alley again. S.A. 169, 322.

Approximately ten to twenty-five minutes later, a second

patron entered the alley. S.A. 169. It is not clear whether the

second patron was walking or driving when Snell approached –

conflicting evidence was offered. Snell testified that the second

patron was on foot, accompanied by several Planned Parenthood

Welch also testified that she did not observe physical contact

between Snell and Sponseller, and that Sponseller and Planned

Parenthood personnel simply walked around Snell. S.A. 305.

Although Sponseller does not allege physical contact occurred,

she testified that Snell was “very close, very - right in our face.

That’s the way I would call it, right in our face. I mean, I’d say

- I don't think he meant anybody any harm. He was just

determined to get his point across whether we wanted to hear it

or not.” S.A. 315. Stephen Neubauer, a Planned Parenthood

volunteer, did not indicate Snell's physical proximity to

Sponseller but testified that Snell “positioned himself in front of

Ms. Welch and the other woman who was going in and

attempted to give them literature, and also in my opinion he was

blocking their way.” S.A. 295. Finally, Sergeant Camacho

testified that he observed “bumping” between Snell and

Sponseller or one of her escorts; however, no “serious” physical

contact occurred -- “it was just kind of like forcing the literature

on them and making some sort of physical contact.”

6

escorts. S.A. 169-170. Walsh corroborated Snell’s account:

“And the next time we began to walk someone across the alley,

Mr. Snell walked forward . . . .” S.A. 304, 307. However,

Sergeant Camacho, testifying that Snell came “close to the

vehicle,” suggested that the second patron was in her car when

Snell approached. S.A. 156.

When the second patron entered the alley, Snell stepped

off the curb to engage her, and was promptly arrested by

Camacho for disorderly conduct.2 Snell testified that he was

approximately five feet from the client, and witnesses essentially

concurred.3 S.A. 169-70, 296, 305-306.

After his arrest, a backup policeman, Officer Hernandez,

re-cuffed Snell. Snell complains that Officer Hernandez affixed

the cuffs too tightly, leaving them sore and bruised. Snell did

2

Snell alleges that Sergeant Camacho “grabbed him [me]

from behind, [and] pulled his [my] arms around to the back.”

Appellant’s Br. at 7; S.A. 257. Sergeant Camacho denied doing

so, noting that Snell’s compliance with his instruction to place

his arms behind back made force unnecessary. S.A. 156.

3

For example, Neubauer testified that Snell “stepp[ed] into

the alley to accost another patient, whereupon he was arrested.”

S.A. 296. Welch also testified that Sergeant Camacho

intervened before Snell reached the second patron. S.A. 305-

306. Finally, Sergeant Camacho testified that, “He [Snell]

stepped into the alleyway. Once he did that I arrested him.”

S.A. 156.

7

not complain to Sergeant Camacho or seek medical treatment.

S.A. 150-57, 170, 174, 257.

District Justice Haskell dismissed the summary citation

but expressed the view that Snell’s aggressive tactics, which

risked creating a “donnybrook” in the alley, approached the line

of disorderly conduct. S.A. 183-84.

Snell filed suit in the United States District Court for the

Middle District of Pennsylvania under 42 U.S.C. § 1983,

claiming violations of his First Amendment rights of free

speech, peaceful assembly, and religious expression. In his

complaint, Snell named as defendants the City of York, Mayor

John Brenner and Police Commissioner Mark L. Whitman in

their official capacity, and Sergeant Camacho, in his individual

and official capacities. Snell sought declaratory relief,

temporary and permanent injunctions, and compensatory and

punitive damages.

Defendants Brenner, Whitman, the City of York, and

Sergeant Camacho jointly filed a motion to dismiss under Fed.

R. Civ. P. 12(b)(6). Claims against Defendants Brenner,

Whitman, and Sergeant Camacho in their official capacity were

dismissed. S.A. 4-5 (citing Kentucky v. Graham, 473 U.S. 159,

165 (1985) (noting that “an official-capacity suit is, in all

respects other than name, to be treated as a suit against the

entity[,]” since “[i]t is not a suit against the official personally,

for the real party in interest is the entity.”)). Dismissing Snell’s

municipal liability claim against the City, the District Court

found that Snell failed to identify a municipal “custom or

policy” of depriving him of his constitutional rights. S.A. 5-9.

8

Claims against Sergeant Camacho in his individual capacity,

however, survived dismissal. S.A. 10.

After discovery, the District Court granted summary

judgment in favor of Sergeant Camacho on Snell’s First and

Fourth Amendment claims. Following form with its analysis of

McTernan’s Free Exercise claim, the Court concluded that the

restriction enforced by Sergeant Camacho was “neutral,”

“generally applicable,” and only “incidentally burdened” Snell’s

religious expression and, therefore, withstood constitutional

review. The District Court determined, alternatively, that the

restriction survived strict scrutiny, as it was narrowly tailored to

promote public safety and traffic flow in Rose Alley –

“compelling” governmental interests.

Turning to the free speech and peaceful assembly claims,

the District Court found that the restriction survived

intermediate scrutiny because it was content-neutral, narrowly

tailored to serve a compelling governmental interest, and left

open ample alternative channels for communication of

information.

As to the claim of unlawful arrest and excessive force

under the Fourth Amendment, the District Court concluded that

Sergeant Camacho acted reasonably in believing that “Snell

intended to cause public inconvenience, annoyance, or alarm by

creating a hazardous or physically offensive condition by an act

9

that serves no legitimate purpose.”4 18 Pa.C.S.A. § 5503(a)(4).

The District Court concluded that the excessive force

claim failed because Officer Hernandez – not Sergeant Camacho

– applied the handcuffs too tightly. Since Sergeant Camacho

had no personal involvement in the misconduct alleged, he was

not liable for Snell’s injuries. The District Court also rejected

Snell’s alternative theory – that any force applied in executing

an unlawful arrest is excessive per se – because Sergeant

Camacho had probable cause to arrest Snell for disorderly

conduct. S.A. 32.

On appeal, Snell urges that: his rights of free speech,

peaceful assembly,5 and religious expression were burdened by

the restriction placed on him and by his arrest; the restriction

was neither “neutral” nor “generally applicable”; there was no

compelling interest in safety, especially because the Planned

4

The District Court noted that Sergeant Camacho observed

Snell move into the path of individuals crossing Rose Alley and

make physical contact with these individuals. S.A. 31.

Accordingly, “[w]hen Sergeant Camacho observed Snell enter

the alley again,” Sergeant Camacho reasonably concluded that

Snell “intended to cause a public inconvenience or annoyance by

an act that serves no legitimate purpose.” S.A. 31.

5

Snell summarily references his claim of right of assembly,

Appellant’s Br. at 20, but does not set forth a separate argument

in his brief. For purposes of our analysis, we conclude that this

claim is encompassed in his free speech claim.

10

Parenthood escorts and patients routinely crossed the alley at the

same location; and, finally, less restrictive means existed to

protect public safety in the alley, including having Sergeant

Camacho direct traffic. Snell urges, moreover, that probable

cause was lacking for his arrest because he neither created a

hazardous condition nor intended to cause a public

inconvenience or annoyance.

II. FIRST AMENDMENT CLAIMS

We incorporate herein the discussion of the standards

applicable to Snell’s Free Exercise and Free Speech claims from

our opinion in McTernan v. City of York, No. 07-4437, filed

concurrently herewith.6 While the specific conduct here – on the

parts of both the protester and the police – differs somewhat

from the conduct alleged in McTernan, our concerns are quite

similar.

A. Free Exercise

The issue as to whether the restriction enforced by

Sergeant Camacho was “neutral” and “generally applicable” is

more easily resolved than in McTernan’s case. Here, there is

uncontroverted evidence that Snell was treated differently than

others using the alley, namely Planned Parenthood escorts and

6

The basis of our jurisdiction, and the standard of review

applicable to the Court’s grant of summary judgment, are set

forth in McTernan v. City of York, No. 07-4437, which we

expressly incorporate herein.

11

patients.7 Prior to his encounter with Sponseller, and several

times thereafter, Snell was told that he could not enter the alley;

they were not. S.A. 156, 168, 256. Snell was admonished when

he approached Sponseller and the second patron in the alley;

they were not. Snell was arrested while disobeying Sergeant

Camacho’s order; they were not. S.A. 156. We conclude that in

Snell’s case, there is no question for a jury. No reasonable jury

could find that the restriction, enforced solely against Snell, was

“generally applicable.” 8

7

Emphasizing that Planned Parenthood volunteers were

nearby when Sergeant Camacho admonished Snell and other

pro-life advocates to stay out of Rose Alley, the District Court

reasoned that Sergeant Camacho intended the challenged

prohibition to apply to protesters and Planned Parenthood

personnel. The Court’s conclusion is controverted by Sergeant

Camacho’s description of the restriction and its target audience.

In his deposition, Sgt. Camacho acknowledged that he solely

directed protesters to stay out of the alley and permitted

volunteers to accompany patrons back and forth across the alley.

S.A. 156, 168, 256.

8

A restriction on religiously motivated expression is subject

to strict scrutiny unless it is “generally applicable” and

“neutral.” A regulation is not “neutral” if its “object . . . is to

infringe upon or restrict practices because of their religious

motivation.” Here, there is no evidence that the restriction was

motivated by hostility to Snell’s religious beliefs, as opposed to

safety concerns. Accordingly, the restriction complies with the

principle of “neutrality.” This conclusion flows from the

12

If not generally applied, a restriction burdening

religiously motivated expression must satisfy strict scrutiny –

that is, it must serve a compelling government interest and must

be narrowly tailored to serve that interest. Church of the Lukumi

Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546 (1993);

Tenafly Eruv Ass’n, Inc. v. Borough of Tenafly, 309 F.3d 144,

172 (3d Cir. 2002). Relying on precedent and the specific facts

here, the District Court concluded that the restriction served a

“compelling” government interest – promoting traffic safety and

the free flow of cars and pedestrians in the alley. For its

conclusion, the Court cited Schenck v. Pro-Choice Network of

Western New York, 519 U.S. 357, 369, 375-76 (1997) and

Madsen v. Women’s Health Ctr., 512 U.S. 753, 767-68 (1994),

where the Supreme Court, applying intermediate scrutiny,

identified as “significant” the government’s interest in

promoting vehicular and pedestrian safety and traffic flow. The

District Court also emphasized certain characteristics of the

alley exacerbating the safety hazard presented, including its

narrow physical dimensions and the presence of heavy trucks –

conditions that twice nearly resulted in accidents.

Our concerns here mirror those expressed in McTernan.

Was the safety interest vis-à-vis Snell’s activity truly

compelling, given the frequency with which pedestrians and

discussion of Snell’s free speech claim below. We do not repeat

that analysis here. Although the District Court’s grant of

summary judgment on the “neutrality” prong was correct, we

apply strict scrutiny because a reasonable jury could conclude

that the restriction was not “generally applicable.”

13

drivers were in, and crossing, the alley? Was Snell, who

engaged patrons crossing the alley in exactly the same location

as Clinic escorts, doing anything more dangerous than Clinic

escorts who were granted unfettered access to the alley? Did

Snell’s complete exclusion from the alley truly represent the

least restrictive means of avoiding violent altercations and

promoting vehicular safety? These are questions for the jury,

which should not have been decided on summary judgment.

We pause specifically to address two governmental

interests asserted by Sergeant Camacho, which were not urged

by the defendant officer in McTernan: ensuring patient access

to the Clinic and protecting clients from physical harassment.

Appellant’s Br. at 28. Neither interest, we conclude, is

“compelling” on the facts before us.

As to Clinic access, Sergeant Camacho failed to

demonstrate that Snell significantly impeded access to the

Facility. It is undisputed that Snell did not “actually stop”

Sponseller, and that Sponseller was only momentarily delayed

in her progress to the Clinic. S.A. 155-56, 305. Sponseller

acknowledged, moreover, that Snell’s overarching aim was not

to block her ingress to the Clinic but rather to communicate his

perspective – to “get his point across.” S.A. 315. In rejecting

Sergeant Camacho’s access argument, we also contrast Snell’s

conduct with the impediments addressed in other abortion

protest cases, where hundreds of advocates imposed physical

blockades on clinic driveways and entrances. See Madsen, 512

U.S. at 758 (upholding fixed buffer zone around reproductive

health clinic, where throngs of up to 400 protesters would

congregate in the clinic’s driveways, surround clinic patients,

14

and picket outside of clinic employees’ private residences).9

We are also unpersuaded that the “contact” between Snell

and Sponseller – brief, isolated, and without attendant injury –

poses a “compelling” public safety threat, justifying the

challenged restriction. Sergeant Camacho, conceding the

contact was de minimis, characterized the encounter as not

“serious” and “just kind of like forcing the literature on them

and making some sort of physical contact.” S.A. 155-56. The

essentially peaceful nature of the exchange is confirmed by

Sponseller, who emphasized that Snell did not “mean[] anybody

harm,” and that she simply walked around Snell. S.A. 305, 315.

Further, no pattern of violence or unruliness at the Clinic is

alleged. The handful of protesters typically present at the Clinic

are generally peaceful. The scene here, therefore, contrasts

9

See Schenck, 519 U.S. at 362-63 (upholding fixed buffer

zone around reproductive health clinic where dozens of

protesters would conduct “large-scale blockades” of clinic

driveways and entrances); New York ex rel. Spitzer v. Operation

Rescue Nat’l, 273 F.3d 184, 192 (2d Cir. 2001) (upholding

limited buffer zone around reproductive health clinic where

protesters shouted at close range, blocked vehicular and

pedestrian access until clients “gave up,” and “distracted

oncoming cars in aggressive ways”); Nat’l Org. for Women v.

Operation Rescue, 37 F.3d 646, 649 (D.C. Cir. 1994) (upholding

injunction prohibiting obstructing access to reproductive health

clinic where protesters engaged in day-long physical blockades

of clinic, “creating a risk of physical or mental harm to

patients.”).

15

sharply with the chaos described at the reproductive health clinic

in Schenck, 519 U.S. at 362-63. There, scores of protesters

threw themselves on top of the hoods of cars, grabbed pregnant

women and volunteers with “varying levels of belligerence,”

and elbowed and spit on clinic volunteers – tactics that often

triggered physical altercations. Id. The scene here, moreover,

differs markedly from that depicted in Madsen, where throngs

of up to 400 protesters, congregating outside a reproductive

health clinic, overwhelmed law enforcement. 512 U.S. at 758.

We conclude that the brief, isolated encounter alleged here,

involving de minimis contact by a single protester against a

single client, does not establish a “compelling” public safety

hazard as a matter of law.

Whether the interests asserted by the government,

individually or in combination, are “compelling” is thus properly

an issue for jury determination. Finding the District Court’s

grant of summary judgment on Snell’s Free Exercise claim to be

error, we will remand the issue for jury decision.

B. Free Speech

Our concerns with the District Court’s analysis of the free

speech issue in McTernan are also present here. Although we

conclude that the challenged restriction was content-neutral,

advanced an important governmental interest, and left adequate

alternatives for communication of information, we have

substantial doubt that it complied with the “tailoring”

requirement mandated under heightened scrutiny. For the

reasons set forth below, we will thus remand the issue for jury

determination.

16

1. Content-Neutral

As to content neutrality, as in McTernan, there is no

evidence of police hostility to Snell’s pro-life message. While

it is clear that Snell was treated differently than Planned

Parenthood personnel, Snell fails to identify statements or

conduct by Sergeant Camacho demonstrating animus to his

substantive views. If a jury were to conclude that safety

concerns did not motivate Sergeant Camacho, could they

conclude that his treatment of Snell was prompted by

disagreement with Snell’s pro-life message? We think not. As

we noted in our opinion in McTernan, there must be some

evidence tending to show that Sergeant Camacho’s articulated

concern for traffic safety was a pretext for viewpoint

discrimination. Here, that would be a matter of unsupported

conjecture.

2. Narrowly Tailored to Serve a Significant Government

Interest

Under the second prong of Ward, a content-neutral

restriction on the time, place, or manner of speech must serve a

significant government interest and be narrowly tailored to serve

that interest. Ward v. Rock Against Racism, 491 U.S. 781, 791

(1989) (quoting Clark v. Cmty. for Creative Non-Violence, 468

U.S. 288, 293 (1984)).

(i) Significance of the Governmental Interest

The District Court determined that the restriction

17

enforced by Sergeant Camacho promoted traffic safety and

traffic flow in Rose Alley – interests that the Court found

“compelling.” We rejected that conclusion in our analysis of

Snell’s Free Exercise claim, but find that the government

interest in protecting public safety and ensuring the free flow of

traffic in Rose Alley, while not “compelling,” was real and

could be termed, “significant.”

Our reasoning here largely mirrors our analysis in

McTernan, where we addressed a similar factual situation.

There, we underscored the risk of collisions between drivers,

clients, personnel, and protesters in Rose Alley. That hazard, we

found, was exacerbated by the specific characteristics of Rose

Alley, including its narrow physical dimensions and the

presence of large trucks. These concerns, centering on the

layout and use of the alley, apply with equal force here.

Accordingly, we conclude that the government interest in

promoting traffic safety and traffic flow in Rose Alley, while not

“compelling,” were “significant.” 10

(ii) Narrowly Tailored

We now consider whether the challenged restriction was

10

Finding that the second Ward element is satisfied here

because the government had a “significant” interest in

promoting traffic safety and traffic flow in Rose Alley, we need

not decide whether the second governmental interest asserted –

preventing physical altercations in the alley – is also

“significant.”

18

narrowly tailored. In McTernan, we observed that speech

restrictions embodied in the form of oral police directives

present a greater risk of arbitrary enforcement than legislative

enactments, justifying a “more searching” review. Accordingly,

in McTernan, we applied heightened rather than intermediate

scrutiny. Similar concerns support the application of heightened

scrutiny here. As in McTernan, the challenged restriction here

was embodied in oral directive, issued ad hoc by Sergeant

Camacho without reference to any formal administrative or

policy channels.11 Accordingly, the directive here presents a

similar risk of arbitrary or unreasonable enforcement. Hence,

we will apply heightened scrutiny, upholding the restriction only

if it “burden[s] no more speech than necessary” to serve the

interest asserted. Madsen, 512 U.S. at 765.

Here, we cannot conclude that the challenged restriction

“burden[s] no more speech than necessary” to protect traffic

safety in Rose Alley as a matter of law. Madsen, 512 U.S. at

765. Snell identifies a plausible alternative to safeguard

pedestrians and drivers without curtailing advocates’ First

Amendment rights. Sergeant Camacho, he urges, could have

directed traffic at the intersection of Beaver Street and Rose

11

Although Sergeant Camacho allegedly consulted with the

Assistant District Attorney, Bill Graff, about whether a protester

who physically contacted a client could be arrested for

disorderly conduct, there is no allegation or evidence that Graff

advised Sergeant Camacho on traffic abatement measures in the

alley, including restricting pedestrian access to Rose Alley. S.A.

156.

19

Alley. As we explained in McTernan, this approach would have

enabled Snell and other advocates to communicate with clients

in the alley safely. The District Court did not address this

alternative but concluded that the restriction was “narrowly

tailored.” It was error for the District Court to conclude that

excluding protesters from Rose Alley necessarily constituted the

least restrictive means of protecting public safety.

The significant fact issues present here also preclude

summary judgment on the “tailoring” requirement. A restriction

cannot be “narrowly tailored” in the abstract; it must be tailored

to the particular government interest asserted. Only when the

contours of that interest are clear may we decide whether the

means selected to accomplish it have been “narrowly tailored.”

Here, Sergeant Camacho cited traffic safety to justify restricting

access to Rose Alley. We previously identified traffic safety as

a “significant” governmental interest, but query whether the

safety issues are sufficiently defined, on the record before us, to

sustain summary judgment that the restriction was “narrowly

tailored” to that interest. We conclude that significant fact

questions persist, precluding summary judgment on this issue.

As we noted in McTernan, largely unknown is how drivers,

advocates, and clinic personnel interacted in the alley. Absent

this information, we are hard pressed to conclude, as a matter of

law, that Sergeant Camacho selected the “least burdensome”

alternative to promote traffic safety in the alley.

Other evidence confirms that a triable issue existed, and

that summary judgment was improper on the issue of

“tailoring.” The three appellee-officers assigned security detail

at Rose Alley adopted distinct approaches to address the safety

20

hazard allegedly created by protesters’ activities in the alley.

Sergeant Camacho excluded advocates outright from the alley,

but granted Planned Parenthood personnel unfettered access to

it. S.A. 156, 168, 256. Officer Koltunovich, by contrast,

cautioned advocates about potential safety hazards but did not

restrict access. Holman Appendix (“H.A.”) 188-89. Finally,

Officer Barth prohibited individuals from lingering or walking

“aimlessly” in the alley. M.A. 165-66, 183, 220, 224. These

divergent approaches only serve further to undermine our

confidence that Sergeant Camacho selected the “least

burdensome” alternative to promote traffic safety in the alley.

Nor are we persuaded that prohibiting protesters from

entering Rose Alley represented the least restrictive means of

avoiding confrontations between patients and protesters and

ensuring patient access to the Clinic. As we noted, there is no

evidence of physical altercations among clients, volunteers, and

the handful of protesters typically present at the Clinic.

Although Sergeant Camacho maintains that Snell made physical

contact with Sponseller, he concedes that the contact was

momentary, harmless, and did not impede Sponseller’s progress

to the Clinic. There is no evidence that Sergeant Camacho

could not have managed a potential dispute between a protester

and a patron. On this sparse record, we cannot conclude that the

challenged prohibition represented the least restrictive means of

preserving order at the Clinic. Accordingly, we will remand the

issue for jury determination.

3. Adequate Alternatives

The final Ward requirement is that the restriction leave

21

ample opportunities for communication of information. The

District Court concluded that Snell, capable of espousing his

views from several public sidewalks surrounding the Clinic,

possessed adequate alternatives to convey his pro-life message.

S.A. 29. Snell’s contention on appeal is a narrow one. He

expresses dissatisfaction with the impediments to speech that he

encounters – Planned Parenthood personnel and railings at the

rear ramp of the facility that purportedly block his access to the

patrons themselves. His argument, that the alley presents the

“best opportunity . . . momentarily [to] speak and hand out

literature as they [patrons] are crossing the street,” is merely

that, argument. Appellant’s Br. at 15-16 (emphasis added).

There is no evidence that escorts interfered with Snell’s efforts

to distribute literature to patrons, or that the public sidewalk in

front of the Clinic did not afford Snell equivalent opportunities

to converse “momentarily” with clients. As to the “blockage”

due to the railings, we are unpersuaded that a simple metal

railing poses an impediment to speech. Hence, the District

Court properly concluded that this aspect of Ward was

satisfied.12

III. FOURTH AMENDMENT CLAIMS

Snell also contends that Sergeant Camacho arrested him

12

We do not address qualified immunity or Snell’s right to

specific relief, as these issues were not decided by the District

Court. S.A. 32-33.

22

for disorderly conduct without probable cause, and applied

excessive force, in violation of his Fourth Amendment rights.

We address Snell’s arguments in turn.

A. Unlawful Arrest

Snell argues that his arrest for disorderly conduct was

unsupported by probable cause. Under Pennsylvania law,

disorderly conduct requires proof that a person (1) “with intent

to cause public inconvenience, annoyance, or alarm” (2) “creates

a hazardous or physically offensive condition by any act” that

(3) “serves no legitimate purpose of the actor.” 18 Pa. C.S. §

5503(a)(4). Snell maintains that he merely intended to distribute

literature – not to cause public harm or inconvenience – and that

his peaceful distribution of literature in Rose Alley did not

create a “hazardous or physically offensive condition.” The

District Court concluded that Sergeant Camacho had probable

cause to arrest Snell for disorderly conduct, after Snell twice

ignored Camacho’s warning to stay out of the alley. However,

reviewing the evidence in the light most favorable to Snell, we

identify genuine fact issues, precluding summary judgment.

AT&T v. JMC Telecom, LLC, 470 F.3d 525, 530 (3d Cir. 2006).

In assessing the presence of probable cause, a court must

determine the fact pattern the officer encountered and, in light

of that, whether the arresting officer had “probable cause to

believe that a criminal offense has been or is being committed.”

Sharrar v. Felsing, 128 F.3d 810, 818 (3d Cir. 1997). The Court

has explained the standard as whether, “at the moment the arrest

was made, the officers had probable cause to make it.” Beck v.

Ohio, 379 U.S. 89, 91 (1964) (quoted in U.S. v. Burton, 288

23

F.3d 91, 98 (3d Cir. 2002)). In other words, “whether at that

moment the facts and circumstances within their knowledge and

of which they had reasonably trustworthy information were

sufficient to warrant a prudent man in believing that the

petitioner had committed or was committing an offense.” Id.

“Mere suspicion,” however, is insufficient. Burton, 288 F.3d at

98 (quoting Orsatti v. N.J. State Police, 71 F.3d 480, 482-83 (3d

Cir. 1995)).

Notwithstanding the District Court’s conclusion that

Sergeant Camacho acted reasonably, we are not so sure. For

one thing, we cannot discern exactly what occurred. While the

various accounts as to the encounter with Sponseller are

confusing, the evidence as to what happened thereafter – which

was the basis for the arrest – is even less clear. Did Snell

approach a car, or was the second patron on foot? What was his

exact distance from that patron? What aspect of what he did

created a “hazardous or physically offensive” condition? 13

13

Regarding the initial encounter with Sponseller, it is also

unclear whether Snell actually touched Sponseller or impeded

her progress to the Clinic. Snell testified that he merely

approached Sponseller in the alley to hand her a pamphlet and

did not “run[] into or obstruct[]” her. S.A. 258. At the

preliminary hearing, Peggy Welch also testified that she did not

observe physical contact between Snell and Sponseller.

S.A. 305. In any event, it is undisputed that Snell did not

“actually stop” Sponseller, and that Sponseller, walking around

Snell, was only momentarily delayed. S.A. 305, 156.

As noted, approximately ten to twenty-five minutes after

24

Clarification of the specific factual scenario must precede the

probable cause inquiry. We conclude that determining these

facts was properly the job of the jury, and that a rational jury

could find that probable cause was lacking for Snell’s arrest

because he did not create a “hazardous or physically offensive”

condition.

The District Court also apparently relied on the

possibility of physical aggression by Snell – that is, the Court

found that Sergeant Camacho reasonably perceived a possibility

that Snell would touch the second patron because of his earlier,

alleged conduct towards Sponseller:

Sergeant Camacho observed Snell enter the alley

and move into the path of individuals attempting

the encounter with Sponseller, a second patron entered the alley

on foot, accompanied by Planned Parenthood escorts. S.A. 169.

When Snell stepped off the curb to engage her, Sergeant

Camacho immediately arrested him for disorderly conduct. It is

uncontroverted that, at the time of his arrest, Snell was several

feet from the patron and her escorts. S.A. 169-70, 296, 305-306.

Snell did not touch the second patron or impede her progress

towards the Clinic. He did not verbally harass or threaten her.

We assume for purposes of summary judgment that the second

patron was on foot, and there is no indication that any other cars

were in the alley at the time. On these facts, a rational jury

could conclude that Snell did not create a “hazardous or

physically offensive condition,” and that Sergeant Camacho’s

contrary determination was unreasonable.

25

to access the facility, and perceived that Snell

made physical contact with these individuals.

Sergeant Camacho then gave Snell yet another

warning. When Sergeant Camacho observed

Snell enter the alley again, he was justified in

reasonably believing that Snell intended to cause

public inconvenience, annoyance, or harm by

creating a hazardous or physically offensive

condition by an act which serves no legitimate

purpose.

S.A. 31 (emphasis added). However, the disorderly conduct

statute, by its terms, requires the “creation,” rather than a

possibility, of a “hazardous or physically offensive” condition.

Accordingly, a rational jury could find that Officer Camacho

lacked probable cause to arrest him.14 Thus, we will remand this

issue for determination by a jury.

B. Excessive Force

14

Conviction for disorderly conduct requires proof that the

actor’s conduct “serve[d] no legitimate purpose.” Snell

contends that his advocacy in the alley served a legitimate

purpose – communication of his pro-life message. We conclude

in passing, however, that an individual’s expression of a

personally-held belief does not constitute a “legitimate purpose”

that would excuse otherwise disorderly conduct.

26

Snell contends that his Fourth Amendment rights were

also violated when Sergeant Camacho applied excessive force.

Snell abandons the argument, urged before the District Court,

that Sergeant Camacho should be liable for Officer Hernandez’s

improper application of handcuffs. Appellant’s Br. at 29-30.

Snell’s sole contention on appeal, instead, is that the force

applied was excessive per se because the initial arrest was

illegal:

The trial court also erred in finding that Officer

Camacho is not responsible for excessive force

since it was another officer who put Mr. Snell’s

handcuff’s (sic) on too tight. However, it is not

simply the handcuffs that are at issue, but all force

used against Mr. Snell as a result of Officer

Camacho arresting him. Any force used against

Mr. Snell in the circumstances was excessive.

Appellant’s Br. at 29-30. Hence, Snell contends that the force

applied was excessive solely because probable cause was

lacking for his arrest. We have rejected similar efforts to

bootstrap excessive force claims and probable cause challenges.

Robinson v. Fetterman, 378 F.Supp.2d 534, 544 (E.D. Pa. 2005)

(citing Bodine v. Warwick, 72 F.3d 393, 400 & n.10 (3d Cir.

1995) (rejecting conflation of claims for false arrest and

excessive force, noting that “merely because a person has been

falsely arrested does not mean that excessive force has been

used.”); see Beier v. City of Lewiston, 354 F.3d 1058, 1064 (9th

Cir. 2004) (citing Arpin v. Santa Clara Valley Transp. Agency,

261 F.3d 912, 921-22 (9th Cir. 2001) (“Because the excessive

force and false arrest factual inquiries are distinct, establishing

27

a lack of probable cause to make an arrest does not establish an

excessive force claim, and vice-versa.”)). Accordingly, we

conclude that the District Court properly granted summary

judgment on Snell’s excessive force claim.

IV. MUNICIPAL LIABILITY CLAIMS

Finally, Snell contends that the District Court erred in

dismissing his Monell claims for municipal liability against the

City of York. Monell v. New York City Dep’t of Social Servs.,

436 U.S. 658 (1978). Snell’s complaint is more skeletal than

McTernan’s. Whereas McTernan pled that he and other

protesters had been prohibited from entering the ally on multiple

occasions by different York officers, Snell solely alleges

restrictions imposed by a single officer – Sergeant Camacho –

on his use of the alley. M.A. at 50. Incorporating our analysis

in McTernan, we conclude that the District Court properly

dismissed Snell’s municipal liability claims against the City and

Defendants Brenner, Whitman, and Camacho in their official

capacity.

V. CONCLUSION

In light of the foregoing, we will AFFIRM the Order of

the District Court as to its dismissal of appellant’s municipal

liability claim and his official capacity claims against Sergeant

Camacho, Mayor Brenner, and Police Commissioner Whitman.

Further, we will VACATE the Order of the District Court as to

the other causes of action and REMAND to the District Court

for further proceedings in accordance with this Opinion.

28