McTernan v. York

Opinions of the United

2009 Decisions States Court of Appeals

for the Third Circuit

4-27-2009

McTernan v. York

Precedential or Non-Precedential: Precedential

Docket No. 07-4437

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

Nos. 07-4437

(Consolidated with Nos. 07-4438 and 07-4439)

_____________

JOHN McTERNAN,

Appellant

v.

CITY OF YORK, PENNSYLVANIA;

MAYOR JOHN S. BRENNER, in his official capacity;

POLICE COMMISSIONER MARK L. WHITMAN,

in his official capacity;

SERGEANT RICHARD BARTH, 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-02132)

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)

Dennis E. Boyle, Esq.

Randall L. Wenger, Esq. [ARGUED]

Suite 200

4660 Trindle Road

Camp Hill, PA 17011-0000

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.

Frank J. Lavery, Jr., Esq.

James D. Young, Esq. [ARGUED]

2

Lavery, Faherty, Young & Patterson

225 Market Street, Suite 304

P. O. Box 1245

Harrisburg, PA 17108

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 Sergeant Richard Barth

__________

OPINION OF THE COURT

__________

RENDELL, Circuit Judge.

Appellant John McTernan appeals from the District

Court’s grant of summary judgment against him and dismissal

of his Monell claims for municipal liability in this action

pursuant to 42 U.S.C. § 1983; Monell v. New York City Dep’t of

Social Servs., 436 U.S. 658 (1978).

I.

McTernan is a pro-life advocate who regularly speaks to

pregnant women as they enter Planned Parenthood of Central

Pennsylvania (“Planned Parenthood”), a reproductive health

clinic (hereinafter “Clinic”) in York, Pennsylvania. His

complaint challenges a restriction imposed by police,

specifically Sergeant Barth, on his ability to walk in an alley

adjacent to the Clinic to speak to clients. Sergeant Barth, a

3

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. McTernan Appendix

(“M.A.”) 182. To dissuade pregnant women from undergoing

an abortion, McTernan emphasizes the sanctity of the fetus,

distributes pro-life literature, and discusses alternatives to, and

the health risks of, abortion. McTernan's activities emanate

from deeply rooted Christian religious beliefs. M.A. 220.

A.

We are presented with two other appeals by protesters

with complaints similar to McTernan’s (Holman v. City of York,

No. 07-4438; and Snell v. City of York, No. 07-4439). Each of

the three appellants (collectively “appellants” or “plaintiffs”)

sued individually complaining of restrictions on his First

Amendment rights of free speech, assembly, and religious

expression. Additionally, Snell and Holman have complained

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 were separately

asserted in, and decided by, the District Court. We will

therefore treat each case separately, while noting certain

similarities.

McTernan’s case was filed first, and we will deal herein

with the common issues in depth, while the other opinions may

incorporate certain principles relied upon herein by reference.

All three complaints contain certain common allegations:

4

(1) Plaintiffs attempt to dissuade women entering the Clinic

from undergoing an abortion;

(2) Deeply rooted Christian beliefs animate plaintiffs’ activities

at the Clinic;

(3) Encounters between plaintiffs, other protesters, and clients

are generally peaceful, and no violent altercations have

occurred;

(4) On multiple occasions, officers assigned overtime detail at

the Clinic have restricted plaintiffs’ access to Rose Alley, a

public street adjacent to the Clinic; and

(5) Access restrictions were adopted at Planned Parenthood’s

behest, and under “color and pretense” of the customs and

policies of the City of York.

There was extensive discovery, and the facts as we

recount them here are based on deposition testimony. Except

where noted to the contrary, the facts are not disputed. These

cases are alike in that they paint a picture, aided in part by

DVDs submitted by each of the three plaintiffs, very different

from most other abortion clinic protest cases. Here, the police

focus was not on the disruption caused by protesters, as such;

rather, the justification for the restrictions on plaintiffs’

activities was grounded in a concern for traffic safety in the

alley abutting the Clinic. Police worried that vehicles traveling

through the alley would collide with advocates congregating

there. The defendants have admitted allegations in plaintiffs’

complaints as to the absence of physical confrontations of the

5

sort that frequently accompany anti-abortion proselytizing.

There is no claim, and absolutely no evidence presented, that

plaintiffs’ activities have sparked violence, endangered clients’

health, or violated clients’ rights to privacy, as in other cases.1

B.

As the physical layout and setting of the Clinic are crucial

to our analysis, we describe both in detail. The Clinic fronts

South Beaver Street in York, Pennsylvania. Two roads run

perpendicular to South Beaver Street on either side of the Clinic

– Hancock Street and Rose Alley. M.A. 180 (map of Clinic

environs). Rose Alley is a public street maintained by the City

of York. M.A. 166. It is approximately 20 feet wide and is

lightly traveled. M.A. 173, 219. A publishing business is

located at the far end of the alley, and its employees, and trucks

making deliveries, use the alley to access the company’s parking

lot. M.A. 173. There is no posted speed limit in Rose Alley, nor

are there signs restricting the direction of travel or the size of

vehicles using the alley. M.A. 133, 245-46. The Clinic owns or

leases a front and a rear parking lot, which are used by Clinic

employees and clients. M.A. 132, 173, 180. The front lot, which

faces South Beaver Street, is adjacent to Rose Alley. M.A. 132,

1

See, e.g., Schenck v. Pro-Choice Network of Western New

York, 519 U.S. 357, 362-63 (1997); Madsen v. Women’s Health

Ctr., 512 U.S. 753, 758 (1994); New York ex. rel. Spitzer v.

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

Org. for Women v. Operation Rescue, 37 F.3d 646, 649 (D.C.

Cir. 1994).

6

180. The back lot is situated near the rear entrance of the Clinic

farther down the alley. M.A. 132, 173, 180. Both the front and

rear entrances of the Clinic feature handicap ramps. M.A. 224.2

Protesters may display signs, distribute literature, and

engage patrons on the public sidewalks abutting the front

entrance of the Clinic and running between the front parking lot

and South Beaver Street. M.A. 132, 183; Holman Appendix

(“H.A.”) 295; Snell Appendix (“S.A.”) 165.

Typically, Planned Parenthood personnel, dressed in white

smocks, meet women entering the front lot and escort them

across Rose Alley and over the public sidewalk to Planned

Parenthood’s front entrance. M.A. 219. Other times, clients are

dropped off at the rear entrance of the Clinic. Standing at the

far end of the alley, McTernan attempts to converse with these

women as they enter the Clinic from the rear. M.A. 221.

C.

On June 29, 2005, McTernan and another protester were

standing in Rose Alley when a vehicle swerved sharply towards

them. Believing that the driver had acted deliberately to

intimidate him, McTernan asked Sergeant Barth to charge the

driver. Sergeant Barth did not do so. McTernan maintains that

Sergeant Barth minimized the significance of the incident. M.A.

175, 274.

2

The appendix reference at page 224, a DVD proffered by

McTernan, depicts his exchange with Sergeant Barth.

7

Following the incident on June 29, 2005, police restricted

access to Rose Alley. On September 28, 2005, Sergeant Barth

advised protesters and Planned Parenthood escorts outside the

Planned Parenthood facility, including McTernan, that they were

prohibited from standing or lingering in, or “walking aimlessly”

through, Rose Alley. M.A. 165-66, 183, 220, 224. Citing safety

concerns and McTernan’s near-collision on June 29, 2005,

Sergeant Barth informed members of both camps that they

would only be permitted to cross Rose Alley where it intersected

with South Beaver Street. M.A. 165-66, 183. There was no

vehicular traffic in the alley at the time Sergeant Barth

instructed advocates. M.A. 220. Sergeant Barth noted that his

instructions were generally obeyed. M.A. 166.

Sergeant Barth also told McTernan that he could walk

through the alley but had to do so “legally,” in the “correct

way,” and could not “English-walk.” M.A. 220, 224. McTernan

requested that Sergeant Barth define these terms but he declined

to do so. M.A. 220, 224. McTernan then walked up and down

the alley. After doing so, he inquired whether his manner of

walking was legal. M.A. 220, 24. Sergeant Barth informed

McTernan that it was not and threatened to arrest him if he did

so again. M.A. 220, 224. Accordingly, McTernan did not enter

Rose Alley again that day, instead using the public sidewalk in

front of the Clinic to converse with clients. M.A. 174, 221.

After September 28, 2005, McTernan continued his advocacy

outside the Clinic but avoided Rose Alley, without further

incident. M.A. 174, 221.

D.

8

McTernan 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, assembly,3 and religious expression. In his complaint,

McTernan named as defendants the City of York, Mayor John

Brenner and Police Commissioner Mark L. Whitman in their

official capacity, and Sergeant Barth, in his individual and

official capacities. McTernan sought declaratory relief,

temporary and permanent injunctions, and compensatory and

punitive damages.

Defendants Brenner, Whitman, the City of York, and

Sergeant Barth jointly filed a motion to dismiss under Fed. R.

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

and Sergeant Barth in their official capacity were dismissed.

M.A. 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 McTernan’s municipal

liability claim against the City of York, the District Court also

found that McTernan failed to identify a “custom or policy” of

depriving McTernan of his constitutional rights. M.A. 6-9. The

claim against Sergeant Barth in his individual capacity,

however, survived dismissal by the “thinnest” margin. M.A. 11.

3

McTernan references his claim of right to assembly but does

not set forth a separate argument in his brief. Appellant’s Br. at

16. For purposes of our analysis, we conclude that this claim is

encompassed in his free speech claim.

9

After discovery, Sergeant Barth moved for summary

judgment, and the District Court granted the motion.

Addressing the law underpinning the “free exercise” claim, the

District Court stated that if government action is “neutral and

generally applicable,” and burdens religious conduct only

“incidentally,” the Free Exercise Clause offers no protection. If,

on the other hand, government action is not neutral and

generally applicable, strict scrutiny applies, and the government

action violates the Free Exercise Clause unless it is narrowly

tailored to advance a compelling government interest. M.A. 20.

The District Court concluded that Sergeant Barth’s directive to

McTernan, prohibiting his standing or lingering in the alley, was

neutral and generally applicable, since the prohibition applied

equally to protesters and Planned Parenthood personnel, and no

evidence suggested that the restriction was prompted by hostility

to McTernan’s pro-life message. M.A. 20. The District Court

found, further, that the prohibition only incidentally burdened

McTernan’s religiously motivated conduct:

McTernan admits that the Planned Parenthood

facility is bordered on two sides by public

sidewalks in which he is free to engage in his

religious conduct. (SUF, SIO ¶ 18; McTernan Dep.

at 15-18.) McTernan admits that Sergeant Barth did

not prohibit or prevent him or any member of his

group from carrying signs, distributing literature,

expressing their views, or otherwise engaging in

religiously motivated conduct on these sidewalks or

in any location other than the alley. (SUF, SIO

¶¶ 13-16; McTernan Dep. at 35-37.) McTernan

10

retained substantial opportunity to engage in his

religiously motivated conduct.

M.A. 21. Accordingly, the District Court found no violation of

the Free Exercise Clause.

Addressing the free speech and assembly claims, the

District Court applied the “forum” analysis adopted by the

Supreme Court. Under this approach, the type of forum in

which the speech occurs dictates the restrictions that the

government may permissibly impose. Int’l Soc’y for Krishna

Consciousness, Inc. v. N.J. Sports & Exposition Auth., 691 F.2d

155, 159 (3d Cir. 1982) (“The extent to which the government

may limit activity protected by the First Amendment depends

largely on the locale where the speech or conduct takes place.”).

The Supreme Court has identified three types of fora: the

traditional public forum, the designated public forum, and the

nonpublic forum. Ark. Educ. Television Comm’n v. Forbes, 523

U.S. 666, 677 (1998). Traditional public fora include public

parks, streets, and other locales historically used for purposes of

assembly, communicating with fellow citizens, and discussing

public questions. Boos v. Barry, 486 U.S. 312, 318 (1988). The

District Court concluded, and the parties do not contest on

appeal, that Rose Alley is a public street maintained by the City

of York and thus a traditional public forum.

Speech in a traditional public forum is afforded maximum

constitutional protection. Accordingly, government regulation

of speech in a traditional public forum is subject to strict

scrutiny and will only be upheld if narrowly tailored to serve a

11

compelling governmental interest. U.S. v. Grace, 461 U.S. 171,

177 (1983). However, where the government limits the time,

place, or manner of speech in a traditional public forum without

reference to the subject matter of the speech or the viewpoint

expressed, intermediate scrutiny applies. Id. In such a situation,

government regulation of speech is constitutional, provided it is

narrowly tailored to serve an important governmental interest,

and leaves open ample alternative channels for communication

of information. Id.

The District Court concluded that the restriction placed on

McTernan’s speech was content-neutral, was narrowly tailored

to serve a compelling government interest, and left open ample

alternatives for McTernan to communicate with Clinic clients.

The District Court discounted McTernan’s claim that the interest

in safety was mere pretext, reasoning that the near-miss

involving McTernan, as well as a second, unrelated traffic

incident in the alley, justified the restriction.

On appeal, McTernan contends that he was targeted solely

because of his pro-life views, that the threat of arrest burdened

his religiously motivated expression and speech, and that the

District Court overstated the safety concerns presented by his

activities in the alley.4

4

McTernan appeals the District Court orders granting

Sergeant Barth’s motion for summary judgment, and granting in

part and denying in part Defendants’ motion to dismiss. We

exercise jurisdiction over his appeal of both orders under 28

U.S.C. § 1291.

12

II.

The intersection of the various First Amendment rights at

play here is reminiscent of a law school exam. We will attempt

to parse the relevant issues in our analysis to provide guidance

to the District Court, as we conclude that there are genuine

issues of material fact that require us to remand.

A.

Our review of the District Court’s grant of summary

judgment is plenary. AT&T v. JMC Telecom, LLC, 470 F.3d

525, 530 (3d Cir. 2006). Summary judgment is only appropriate

if there are no genuine issues of material fact, and the movant is

entitled to judgment as a matter of law. Id. In reviewing the

District Court’s grant of summary judgment, we review the facts

in the light most favorable to the nonmoving party. Id.

We note at the outset that whether a restriction on the

time, place, or manner of speech is reasonable presents a

question of law. However, the reasonableness of a restriction

involves an underlying factual inquiry. Under Ward, the

challenged restriction must be (1) content-neutral, (2) narrowly

tailored to serve an important governmental interest, and (3)

leave open ample alternatives for communication of

information. These elements involve subsidiary fact questions

that must be submitted to a jury, except where the evidence

applicable to a particular element entitles a party to judgment as

a matter of law. See Pouillon v. City of Owosso, 206 F.3d 711,

717-18 (6th Cir. 2000); see also Ovadal v. City of Madison, 416

F.3d 531, 537-38 (7th Cir. 2005); cf. Colacurcio v. City of Kent,

13

163 F.3d 545, 558 (9th Cir. 1998) (Reinhardt, J. dissenting)

(concluding that plaintiffs introduced legally sufficient evidence

that the challenged restriction was not content-neutral, requiring

submission of the issue to a jury).

We review the District Court’s grant of Defendants’

motion to dismiss de novo. Omnipoint Commc’ns Enters., L.P.

v. Newtown Twp., 219 F.3d 240, 242 (3d Cir. 2000). We must

“accept all factual allegations as true, construe the complaint in

the light most favorable to the plaintiff, and determine whether,

under any reasonable reading of the complaint, the plaintiff may

be entitled to relief.” Phillips v. County of Allegheny, 515 F.3d

224, 233 (3d Cir. 2008) (quoting Pinker v. Roche Holdings Ltd.,

292 F.3d 361, 374 n.7 (3d Cir. 2002)).

In Bell Atlantic Corp. v. Twombly, the Supreme Court

confirmed that Fed. R. Civ. P. 8(a)(2) “‘requires only a short and

plain statement of the claim showing that the pleader is entitled

to relief,’ in order to ‘give the defendant fair notice of what the

. . . claim is and the grounds upon which it rests,’” and that this

standard does not require “detailed factual allegations.” 550

U.S. 544, 127 S.Ct. 1955, 1964 (2007) (quoting Conley v.

Gibson, 355 U.S. 41, 47 (1957)). However, “a plaintiff’s [Rule

8] obligation to provide the ‘grounds’ of his ‘entitle[ment] to

relief’ requires more than labels and conclusions, and a

formulaic recitation of the elements of a cause of action will not

do.” Phillips, 515 F.3d at 231 (quoting Twombly, 127 S.Ct. at

1964-65). In other words, Rule 8 “requires a ‘showing,’ rather

than a blanket assertion, of entitlement to relief” that rises

“above the speculative level.” Id. at 231-32 (quoting Twombly,

127 S.Ct. at 1965 & n. 3). “Rule 8(a)(2) requires that the ‘plain

14

statement’ possess enough heft to ‘sho[w] that the pleader is

entitled to relief.’” Id. at 231 (quoting Twombly, 127 S.Ct. at

1966).

A complaint may not be dismissed merely because it

appears unlikely that the plaintiff can prove those facts or will

ultimately prevail on the merits. Id. (quoting Twombly, 127 S.Ct.

at 1964-65). The Supreme Court's Twombly formulation of the

pleading standard “‘does not impose a probability requirement

at the pleading stage,’” but instead “‘simply calls for enough

facts to raise a reasonable expectation that discovery will reveal

evidence’ of the necessary element.” Id. at 234 (quoting

Twombly, 127 S.Ct. at 1965).

B.

McTernan contends that Sergeant Barth’s directive not to

stand in Rose Alley violated his First Amendment right to the

free exercise of religion. The Free Exercise Clause of the First

Amendment, applicable to state action through the Fourteenth

Amendment, Cantwell v. Connecticut, 310 U.S. 296, 303

(1940), provides that “Congress shall make no law . . .

prohibiting the free exercise [of religion].” The Free Exercise

Clause not only forbids regulation of religious beliefs as such

but also protects religiously motivated expression. Employment

Div., Dep’t of Human Resources of Or. v. Smith, 494 U.S. 872,

877 (1989). Here, McTernan’s activities at the Clinic are

indisputably animated by sincerely held Christian beliefs.

The Free Exercise Clause, however, does not afford

absolute protection to religiously motivated expression. Where

15

a law is “neutral and of general applicability[,]” it “need not be

justified by a compelling government interest even if the law has

the incidental effect of burdening a particular religious

practice.” Church of the Lukumi Babalu Aye, Inc. v. City of

Hialeah, 508 U.S. 520, 531 (1993) (citing Smith, 494 U.S. at

880). If, on the other hand, the government action is not neutral

and generally applicable, strict scrutiny applies, and the

government action violates the Free Exercise Clause unless it is

narrowly tailored to advance a compelling government interest.

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

165 (3d Cir. 2002). Government action is not neutral and

generally applicable if it burdens religious conduct because of

its religious motivation, or if it burdens religiously motivated

conduct but exempts substantial comparable conduct that is not

religiously motivated. See Hialeah, 508 U.S. at 543-46;

Blackhawk v. Pennsylvania, 381 F.3d 202, 209 (3d Cir. 2004).5

5

Alternatively, McTernan contends that strict scrutiny is

appropriate under a “hybrid rights” theory, regardless of whether

the challenged restriction is “neutral” and “generally

applicable.” McTernan relies on a footnote in Tenafly, where

we stated, “Strict scrutiny may also apply when a neutral,

generally applicable law incidentally burdens rights protected by

‘the Free Exercise Clause in conjunction with other

constitutional protections, such as freedom of speech and of the

press,’ . . . .” 309 F.3d at 165 n.26 (quoting Smith, 494 U.S. at

881) (emphasis added). We have neither applied nor expressly

endorsed a hybrid rights theory, and will not do so today.

McTernan has not articulated reasons specifically supporting our

application of the doctrine here. Our reluctance to do so is

16

reinforced by the decisions of our sister courts. See, e.g.,

Hialeah, 508 U.S. at 566-67 (Souter, J., dissenting) (dismissing

doctrine as “ultimately untenable”); Jacobs v. Clark County Sch.

Dist., 526 F.3d 419, 440 n.45 (9th Cir. 2008) (declining to adopt

doctrine after noting widespread scholarly criticism); Knight v.

Conn. Dep’t of Pub. Health, 275 F.3d 156, 167 (2d Cir. 2001)

(describing hybrid rights theory as dicta and not binding on this

court); Kissinger v. Bd. of Trs. of Ohio State Univ., 5 F.3d 177,

180 (6th Cir. 1993) (describing doctrine as “completely

illogical” and declining to recognize it until Supreme Court

expressly does so itself); Littlefield v. Forney Indep. Sch. Dist.,

108 F.Supp.2d 681, 704 (N.D. Tex. 2000) (refusing to apply

doctrine, which is likely based upon a misreading of Smith, 494

U.S. at 881-82, aff'd 268 F.3d 275 (5th Cir. 2001)); Warner v.

City of Boca Raton, 64 F.Supp.2d 1272, 1288 n.12 (S.D. Fla.

1999) (finding hybrid rights language in Smith to be dicta);

Erwin Chemerinsky, Constitutional Law: Principles and

Policies § 12.3.2.3 at 1215-16 (2d ed. 2002) (calling doctrine’s

contours “unclear”).

McTernan does not cite, and the Court is not aware of,

any case in which strict scrutiny has been applied to a “neutral”

and “generally applicable” regulation restricting the time, place,

or manner of religiously-motivated speech. See Berry v. Dep’t

of Social Servs., 447 F.3d 642, 649 n. 5 (9th Cir. 2006); cf.

Jacobs, 526 F.3d at 440 n.45 (“Significantly, no court has ever

allowed a plaintiff to bootstrap a free exercise claim in this

manner. . . . We decline to be the first.”) (internal citation

omitted). Our refusal to apply a hybrid rights theory here is

reinforced by the narrow reach the Supreme Court has given to

17

Here, McTernan’s ability to convey his religiously-

motivated message at the Clinic was burdened. Sergeant Barth

advised McTernan not to stand, linger, or walk aimlessly in the

alley, and threatened to arrest him after he walked through the

alley. As a result, McTernan could not use the alley to

communicate with clients deposited at the rear entrance of the

Clinic.

We first must ask, as the District Court did, whether the

prohibition was “neutral” and “generally applicable.” Finding

no evidence that Sergeant Barth was motivated by hostility to

McTernan’s Christian beliefs, the District Court concluded that

the restriction complied with the principle of “neutrality.” The

District Court also concluded that the restriction, conveyed to

protesters and Planned Parenthood personnel, was “generally

applicable,” and that Sergeant Barth enforced the restriction

evenhandedly. Although Sergeant Barth threatened McTernan

alone with arrest, the District Court found that only McTernan

violated the restriction. As evidence of Planned Parenthood

personnel’s compliance with the restriction, the District Court

cited Sergeant Barth’s observation that “for the most part,

the test set forth in Shebert v. Verner, 374 U.S. 298 (1963),

requiring strict scrutiny of government actions that substantially

burden religious practice. Smith, 494 U.S. at 883. Hence, we

conclude that McTernan’s simultaneous assertion of claims

under the Free Exercise and Free Speech Clauses, without more,

does not warrant strict scrutiny.

18

people abided by them [his instructions].” M.A. 21, 166.

In determining that the challenged restriction was

“generally applicable,” the District C ourt relied,

overwhelmingly, on the articulation of the restriction to

members of both camps. Because Sergeant Barth instructed

protesters and Planned Parenthood personnel not to stand in the

alley, the District Court concluded that the restriction was

“generally applicable.” Facial applicability, however, is not

conclusive of whether a restriction is “generally applicable.”

Tenafly, 309 F.3d at 167. A regulation facially applicable to all

persons is not “generally applicable” if it is enforced against a

category of religiously motivated conduct, but not against a

substantial category of conduct “that is not religiously motivated

and that undermines the purposes of the law to at least the same

degree as the covered conduct that is religiously motivated.”

Blackhawk, 381 F.3d at 209; Hialeah, 508 U.S. at 546; cf.

Fowler v. Rhode Island, 345 U.S. 67, 69 (1953) (holding that

city violated Free Exercise Clause by enforcing ordinance

banning meetings in park against Jehovah’s Witnesses but

exempting other religious groups).

Here, Sergeant Barth excluded McTernan from the alley;

however, the record reflects that Planned Parenthood personnel

were permitted to walk freely through it. Although Sergeant

Barth initially instructed protesters and Planned Parenthood

personnel that they “were allowed to walk in the alley,” and that

“travel through the alley was acceptable,” he later admonished

McTernan that he had to walk through the alley “correctly” and

in the “right way” and could not “walk aimlessly” or “English-

walk” there. McTernan requested that Sergeant Barth further

19

define these terms, but he declined. M.A. 224. After McTernan

walked up and down the alley, Sergeant Barth threatened to

arrest him if he did so again. M.A. 220, 224.

Planned Parenthood personnel and Clinic clients, by

contrast, walked freely across the alley, as Sergeant Barth

acknowledged in his deposition. M.A. 166 (noting that Planned

Parenthood volunteers “were allowed to walk in the alley.”).

There was also evidence in the record of the habitual passage

through the alley of clients and escorts. M.A. 219. Sergeant

Barth does not contend, however, that he threatened to arrest any

person other than McTernan. Nor does the record suggest that

Sergeant Barth actually limited the manner in which Planned

Parenthood personnel could walk in or through the alley.

In short, while there is not a great deal of evidence in the

record as to what was transpiring elsewhere in the alley at the

time, it is clear that there was repeated “walking” in the alley by

Planned Parenthood escorts and clients. Why McTernan’s

passage through the alley did not constitute the “correct” or the

“right way” of traveling “in” or “through” the alley, while

Planned Parenthood volunteers’ use of the alley was acceptable,

is not apparent from the record. That question presents a fact

issue. A reasonable jury could conclude that McTernan and

Planned Parenthood personnel’s respective use of the alley

created equivalent safety hazards, justifying enforcement of the

restriction against both groups. Indeed, traffic safety and traffic

flow were potentially impaired by the progress of patrons,

flanked by escorts, through the alley. Accordingly, a reasonable

jury could conclude that the restriction “fails the general

applicability requirement . . . [because] it burdens a category of

20

religiously motivated conduct but exempts or does not reach a

substantial category of conduct that is not religiously motivated

and that undermines the purposes of the law to at least the same

degree as the covered conduct that is religiously motivated.”

Blackhawk, 381 F.3d at 209. In light of the sparse factual record

before us, we will remand for a jury determination of this issue.6

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. Hialeah, 508 U.S. at 546; Tenafly,

309 F.3d at 172. “Compelling” interests, the Supreme Court has

explained, identify “interests of the highest order.” Hialeah, 508

U.S. at 546 (quoting McDaniel v. Paty, 435 U.S. 618, 638

(1978)). Relying on precedent and the specific facts here, the

6

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.” Hialeah, 508 U.S. at 533. We agree with the

District Court that there is no evidence here that the restriction

was motivated by hostility to McTernan’s religious beliefs,

rather than safety concerns, and so it complies with the principle

of “neutrality.” This conclusion flows from the evidence

discussed at length below in our analysis of McTernan’s free

speech claim. 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.”

21

District Court concluded that the restriction served a

“compelling” governmental interest – promoting traffic safety

in the alley. For its conclusion, the Court cited Madsen and

Schenck, where the Supreme Court, applying intermediate

scrutiny, determined that a fixed buffer zone around a

reproductive health clinic advanced the “strong” governmental

interest in vehicular and pedestrian safety. Madsen, 512 U.S. at

758; Schenck; 519 U.S. at 375-76. 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.

The governmental interests asserted to justify the

restriction here are narrower than other abortion cases, where

protesters impeded women’s access to reproductive health

services by physically blockading clinic driveways and

entrances, and violated the property rights of clinic owners, by

trespassing on clinic parking lots and entryways.7 There, law

enforcement officers were faced with potentially violent

altercations, with protesters behaving aggressively toward clinic

7

Although Appellant John Holman was charged with trespass,

neither Sergeant Barth nor any of the appellee-officers identify

preservation of private property rights to justify the challenged

restriction. Nor could they plausibly do so, since appellants’

presence in Rose Alley, a public street maintained by the City of

York, is not private property.

22

personnel,8 endangering the health of pregnant women prior to

surgery, or impinging on the privacy rights of clinic personnel

by picketing outside their homes.9 Here, by contrast, Sergeant

8

Although disorderly conduct charges were filed on one

occasion against Appellant Edward Snell, Sergeant Barth does

not identify preservation of public order, or the threat of violent

altercations, to justify the prohibition enforced.

9

See, e.g., 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, throw themselves on top of the hoods

of cars, “grab[], push[], and shov[e]” pregnant women with

“varying levels of belligerence,” and elbow and spit on clinic

volunteers, often erupting into violent altercations); 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, and picket outside of clinic employees’ private

residences. These activities produced “deleterious physical

effects,” including elevated anxiety and hypertension, on clinic

patients, who were required to receive higher doses of sedation

to undergo surgical procedures); New York ex rel. Spitzer, 273

F.3d at 192 (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, 37 F.3d at 649 (upholding injunction prohibiting

obstructing access to reproductive health clinic where protesters

23

Barth seeks to justify the restriction solely on grounds of traffic

safety. Sergeant Barth does not contend that the challenged

restriction was necessary to ensure client access to clinic

services, to avoid trespass onto clinic property, to prevent

violent altercations between protesters and clients or clinic

personnel, to protect the health of pregnant women, or to

safeguard the privacy rights of clinic personnel. Moreover,

Madsen and Schenck are of limited use to McTernan. In both

cases, the Supreme Court, applying intermediate scrutiny,

merely determined that promoting traffic safety and traffic flow

constituted “significant” – not “compelling” – governmental

interests. Schenck; 519 U.S. at 369, 375-76; Madsen, 512 U.S.

at 758.

On the facts before us, we cannot conclude that the single

interest asserted by Sergeant Barth is “compelling” as a matter

of law. We accept, as a general proposition, that police have an

interest in safety and avoiding collisions between cars and

pedestrians in the alley. It surely is an important interest, in the

abstract, but query whether the interest was “compelling” in this

fact pattern. The DVDs supplied by the plaintiffs depict a

peaceful setting, with very few people outside the Clinic. It is

undisputed that the alley is lightly traveled. We also find

unpersuasive the incident identified by Sergeant Barth, and

credited by the District Court, to justify the restriction. When

Sergeant Barth first instructed advocates to stay out of the alley,

he cited an incident in which McTernan was nearly struck by a

engaged in day-long physical blockades of clinic, “creating a

risk of physical or mental harm to patients.”).

24

car. We do not find that the incident substantiates the existence

of a “compelling” safety hazard. Nearly three months separate

the incident from the police response it allegedly precipitated.

This temporal gap is inconsistent with the urgent safety hazard

allegedly created by McTernan’s activities.

A second traffic incident in Rose Alley cited by the

District Court also does not demonstrate the existence of a

“compelling” safety hazard from protesters’ use of the alley. In

December 2005, a truck nearly struck an anti-abortion advocate

while he was conversing with a police officer in the alley, near

the intersection with South Beaver Street. Significantly, the

restriction was not imposed until approximately ten months after

this incident. Hence, we reject the District Court’s conclusion

that the December 2005 incident demonstrates a “compelling”

governmental interest in traffic safety in the alley as a matter of

law. See New York ex rel. Spitzer, 273 F.3d at 208 (“While

narrow regulations may sometimes be necessary, they must be

supported by more than a few stories of near-miss traffic

accidents . . . .”). Rather, this aspect of the case presents a fact

issue for the jury.

Even if the government’s interest is found to be

compelling, that interest still must be “narrowly tailored.” Here,

McTernan urges that the least restrictive means of achieving

safety would have been for Sergeant Barth to direct traffic:

Even under a heightened scrutiny analysis,

Sergeant Barth’s actions fail since any restriction

greater than directing traffic would be overbroad

and burden too much constitutionally protected

25

activities in an area that is often the most effective

place for speech. The trial court, therefore, erred

in granting Sergeant Barth’s Motion for Summary

Judgment.

Appellant’s Br. at 28. McTernan’s argument is at least facially

plausible. Could Sergeant Barth not have maximized safety by

directing traffic at the intersection of South Beaver Street and

Rose Alley, slowing or stopping the occasional car or truck

entering the alley, to permit McTernan to walk in the alley, just

as others crossed or passed through the alley? The District

Court concluded, without analysis, that the restriction was

“narrowly tailored.” However, given that the restriction

prevented McTernan from being in the alley at all and denied

him access to those patrons entering the Clinic from the rear, we

are not so sure. Significant fact questions underlie this issue,

too, and a jury should decide whether this option was the least

restrictive one available to Sergeant Barth.

Accordingly, McTernan’s claim under the Free Exercise

Clause of the First Amendment should have been submitted to

a jury, and it was error to grant summary judgment in favor of

Sergeant Barth on McTernan’s Free Exercise claim.

B.

McTernan maintains that his exclusion from Rose Alley

violated his free speech rights under the First Amendment. “The

Supreme Court has adopted a forum analysis as a means of

determining when the Government’s interest in limiting the use

of its property to its intended purpose outweighs the interest of

26

those wishing to use the property for other purposes.” Paff v.

Kaltenbach, 204 F.3d 425, 431 (3d Cir. 2000) (citing Cornelius

v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 800

(1985)). Under this analysis, “[t]he extent to which the

government may limit activity protected by the First

Amendment depends largely on the locale where the speech or

conduct takes place.” Int’l Soc’y for Krishna Consciousness,

Inc., 691 F.2d at 159.

The Supreme Court has identified three types of fora: the

traditional public forum, the designated public forum, and the

nonpublic forum. Ark. Educ. Television Comm’n , 523 U.S. at

677. A traditional public forum is defined by the objective

characteristics of the property, such as whether the location has

long been open to expressive activity. Id. It is undisputed that

Rose Alley, a thoroughfare maintained by the City of York, is a

public forum.

The government may impose reasonable restrictions on

the time, place, or manner of speech in a public forum, provided

that restrictions “‘are justified without reference to the content

of the regulated speech, that they are narrowly tailored to serve

a significant governmental interest, and that they leave open

ample alternative channels for communication of the

information.’” Ward, 491 U.S. at 791 (quoting Clark, 468 U.S.

at 293). “[W]hen the government restricts speech, the

government bears the burden of proving the constitutionality of

its actions.” See U.S. v. Playboy Entm’t Group, Inc., 529 U.S.

803, 816 (2000) (citing Greater New Orleans Broad. Ass’n, Inc.

v. United States, 527 U.S. 173, 183 (1999)).

27

Applying Ward, we must determine whether the

restriction here was content-neutral, was narrowly tailored to

protect public safety in the alley, and left open ample

alternatives for McTernan to communicate his message.

1.

The first prong of Ward focuses on whether the restriction

on speech is content-neutral. The central inquiry is whether “the

government has adopted a regulation of speech because of

disagreement with the message it conveys.” Ward, 491 U.S. at

791 (citing Clark, 468 U.S. at 295). Finding no evidence of

police hostility to McTernan’s pro-life views, the District Court

concluded that legitimate safety concerns, instead, prompted the

restriction. McTernan demurs for two reasons, neither of which

is persuasive.

McTernan asks the Court to infer police hostility to his

pro-life message from (1) Sergeant Barth’s enforcement of the

restriction against him, and (2) Planned Parenthood’s contract

with the York police department, which purportedly authorized

Planned Parenthood to direct the conduct of officers assigned to

the Clinic.

McTernan adduced no evidence of police hostility to his

pro-life message.10 Although the record shows that Sergeant

10

See, e.g., United States v. Dinwiddie, 76 F.3d 913 (8th Cir.

1996) (noting that because there is “no disparate-impact theory

in First Amendment law,” “the fact that a statute . . .

28

Barth prohibited McTernan from walking up and down the alley,

while permitting Planned Parenthood personnel to escort patrons

across it, there is not a scintilla of evidence suggesting that

Sergeant Barth was motivated by disagreement with

McTernan’s pro-life views. Furthermore, the disparate

enforcement here does not support an inference of lack of

“content” neutrality. Something must point decisively to a

motivation based on the subject matter, or content, of the

speaker’s message, as opposed to a purpose of avoiding

collisions between pedestrians and cars in the alley. Casey v.

City of Newport, 308 F.3d 106, 111 (1st Cir. 2002) (concluding

that government regulation was content-neutral, notwithstanding

its disparate effect on different styles of music, because there

was “no suggestion in the record that the no-amplification

restriction was motivated by the content of . . . [the plaintiff’s]

performances”); Gold Coast Publ’ns, Inc. v. Corrigan, 42 F.3d

1336, 1345 n.10 (11th Cir. 1994) (concluding that government

disproportionately punishes those who hold a certain viewpoint

does not ‘itself render the [statute] content or viewpoint

based.’”) (citing Madsen, 512 U.S. at 763); Ater v. Armstrong,

961 F.2d 1224,1228 (6th Cir. 1992) (finding that statute treating

individuals soliciting contributions differently than those

distributing literature was content-neutral because it was aimed

at the “noncommunicative impact” of conduct rather than the

substance of speech itself); Boos, 485 U.S. at 320 (upholding

disparate treatment of groups espousing different viewpoints,

“so long as the justifications for regulations have nothing to do

with the content” and are based on the “secondary effect[s]” of

the conduct targeted).

29

restriction was content-neutral, notwithstanding the fact that it

imposed a greater burden on tabloid-style newspapers than on

broadsheet newspapers, because plaintiff “produced no evidence

that the City enacted the Ordinance because of a dislike of the

messages conveyed by tabloid-style newspapers.”).

Second, McTernan cites the contract between Planned

Parenthood and the City of York as evidence that Planned

Parenthood directed Sergeant Barth to exclude protesters from

Rose Alley, thus proving a pro-choice bias. McTernan’s

allegation is conjecture: there is no evidence that the Clinic

conceived of the restriction, or that the contract empowered

Planned Parenthood to direct Sergeant Barth’s activities at the

Clinic. To the contrary, Barth was obligated to enforce the laws

of the City of York and to maintain order. M.A. 164-65, 183.

McTernan’s second argument thus fails.

Hence, the District Court correctly determined that the

challenged restriction was content-neutral.

2.

Under Ward, a content-neutral restriction on the time,

place, or manner of speech ordinarily receives intermediate

scrutiny and thus will be upheld, provided the restriction serves

a significant government interest and is narrowly tailored to

serve that interest. Ward, 491 U.S. at 791.

(i)

In our analysis of McTernan’s Free Exercise claim, we

30

rejected the District Court’s conclusion that the challenged

restriction, which promoted traffic safety in Rose Alley,

necessarily served a “compelling” governmental interest. We

found that the specific evidence adduced by Barth did not

establish a “compelling” safety hazard as a matter of law.

Nonetheless, following Madsen and Schenck, we conclude, on

the facts before us, that police did have a “significant” interest

in promoting the safe, efficient flow of traffic in Rose Alley.

In Madsen, the Supreme Court determined that the

government had a “strong interest in the public safety and order,

[and] in promoting the free flow of traffic on public streets and

sidewalks . . . .” 512 U.S. at 767. There, protesters’ presence in

a street used to access the clinic – Dixie Way – created a clear

traffic hazard. Id. at 769. Protesters would congregate in Dixie

Way, risking collisions with approaching cars. Id. To “ensur[e]

that petitioners do not block traffic on Dixie Way” and to reduce

the risk of an accident, the Supreme Court upheld a fixed buffer

zone around clinic entrances and driveways. Id.

In Schenck, the Supreme Court recognized, similarly, a

significant governmental interest in vehicular and pedestrian

safety. 519 U.S. at 375-76. There, the Court determined that the

presence of protesters in clinic driveways and driveway

entrances created a “dangerous situation” because of the

“interaction between cars and protesters.” Id. Citing the

significant governmental interest in traffic safety, the Court

31

upheld a fixed buffer zone around the clinic. Id. at 376.11

Here, as in Schenck and Madsen, protesters and Planned

Parenthood personnel and clients would walk in Rose Alley.

The presence of people in a public thoroughfare undoubtedly

constituted a distraction for drivers. The physical dimensions of

the alley, which was less than 20 feet wide, as well as the

presence of heavy trucks, exacerbated this hazard. We find,

therefore, that the governmental interest in the movement of

pedestrians in Rose Alley, including protesters, while not

“compelling,” was real and could be termed, “significant.”

(ii)

To survive intermediate scrutiny, a content-neutral

restriction must also be narrowly tailored to achieve the interest

asserted. Ward, 491 U.S. at 791. The Supreme Court, however,

has mandated a “more searching” review where a restriction

takes the form of an injunction, rather than a legislative

enactment. Madsen, 512 U.S. at 768. We must decide whether

heightened scrutiny also applies here, because a police directive,

such as the one issued by Sergeant Barth, is similar to an

injunction. The District Court did not consider whether the form

11

We are cognizant that Schenck, analyzing a “combination”

of governmental interests rather than solely traffic safety,

concluded that these interests were “significant.” 519 U.S. at

376. However, Schenck cited with approval Madsen, where the

Court held that promoting traffic safety and traffic flow was

itself a significant governmental interest. Id.

32

of the restriction triggers heightened scrutiny.

We rely on the principles enunciated in Madsen to

determine whether heightened scrutiny is appropriate here. Id.

There, the Court considered whether intermediate scrutiny

governed the constitutionality of a court injunction that, among

other things, excluded abortion protesters within a specified

radius of a reproductive health clinic. Id. at 765. Finding

intermediate scrutiny inadequate, the Court observed that

injunctions present two risks, warranting a “more stringent

application of general First Amendment principles.” Id. First,

injunctions do not emanate from deliberative, democratic

decisionmaking processes. Id. “Ordinances represent a

legislative choice regarding the promotion of particular societal

interests. Injunctions, by contrast, are remedies imposed for

violations (or threatened violations) of a legislative or judicial

decree.” Id. (citing United States v. W.T. Grant Co., 345 U.S.

629, 632-633 (1953)). Second, injunctions, which target

discrete groups rather than society generally, may not attract

public scrutiny, increasing the likelihood that unreasonable

injunctions will escape public condemnation. Id. at 764. As the

Court observed in Madsen, “[T]here is no more effective

practical guaranty against arbitrary and unreasonable

government than to require that the principles of law which

officials would impose upon a minority must be imposed

generally.” Id. (quoting Ry. Express Agency, Inc. v. New York,

336 U.S. 106, 112-113 (1949)).

We conclude that a police directive, issued by officers in

the field, poses risks similar to those presented by an injunction,

warranting heightened scrutiny. First, a police directive, like an

33

injunction, does not embody the popular will but, rather,

represents an exercise of executive authority. The absence of

democratic involvement was particularly stark here. Sergeant

Barth, apparently, conceived the restriction without meaningful

public input and without reference to formal policy or

administrative channels. Further, Sergeant Barth’s directive did

not result from deliberative, democratic processes – that is, it

was not the product of a “legislative choice regarding the

promotion of particular societal interests.” Id. at 765.

Democratic input is especially critical in formulating speech

restrictions, which must carefully balance constitutional rights

against public safety imperatives. Further, as in Madsen, the

directives here, which focused on First Amendment activity at

a single reproductive health clinic, might easily escape public

scrutiny, requiring more vigilant judicial oversight. Hence, a

directive issued by officers in the field, such as the one issued by

Sergeant Barth, presents constitutional hazards similar to those

identified with injunctions in Madsen.

Police directives, in fact, present potentially greater

opportunities for arbitrary enforcement than injunctions.

Whereas injunctions are written, police directives are oral. Oral

directives often lack the precision and specificity required of

federal injunctions. Moreover, oral police directives are less

amenable to judicial, executive, and public oversight.

The concerns identified above – real rather than

hypothetical – are illustrated here. Sergeant Barth failed to

define permissible and proscribed uses of the alley in clear

terms. The restrictions imposed on the protesters varied greatly.

Each officer assigned to the Clinic restricted access to the alley

34

in a different manner: Officer Barth ostensibly prohibited

protesters and Planned Parenthood personnel from standing,

lingering, or walking aimlessly through the alley; Officer

Camacho barred protesters completely from the alley, but

granted Clinic personnel unfettered access to it; and Officer

Koltunovich, at times, did not restrict protesters’ access at all.

M.A. 165-66, 183, 220, 224; S.A. 156, 168, 256; H.A. 188-89.

Hence, it is appropriate in this case to apply heightened scrutiny

to the restrictions enforced by Sergeant Barth.

The application of heightened scrutiny modifies a single,

but significant, aspect of the Ward analysis – the “tailoring”

requirement. Under intermediate scrutiny, a restriction is

narrowly tailored to achieve an important governmental interest

if that interest would be less effectively achieved without the

regulation. Ward, 491 U.S. at 799. However, a regulation need

not represent the least restrictive means of achieving the

articulated aim. Id. If a restriction represents the most effective

means of accomplishing the stated purpose, it will survive

intermediate scrutiny, even if other alternatives would place a

lesser burden on individual speech. Id.

Heightened scrutiny, by contrast, imposes a more stringent

“narrowing” requirement. Proof that a restriction represents the

most effective means of achieving the proffered government

interest is insufficient. Madsen, 512 U.S. at 765. Instead, a

restriction will survive heightened scrutiny only if it “burden[s]

no more speech than necessary” to serve that interest. Id.

Here, we cannot conclude, as a matter of law, that the

challenged restriction “burden[s] no more speech than

35

necessary” to protect traffic safety in Rose Alley. Id. McTernan

identified a plausible alternative to protect pedestrians and

drivers in the alley, without curtailing protesters’ First

Amendment rights. McTernan suggests that Sergeant Barth

could have directed traffic at the intersection of Beaver Street

and Rose Alley, thus enabling McTernan and other protesters

safely to communicate with clients in the alley. 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, as a matter of law, 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 Barth 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. There is a paucity

of evidence as to the safety hazards presented by protesters’

activities in the alley. Largely unknown is how drivers,

protesters, and Clinic personnel interacted in the alley. The

36

record, indeed, is silent on: (1) the number of protesters present

in the alley on a typical day; (2) the average speed and volume

of traffic in the alley; (3) how frequently the alley was subject

to two-way traffic; (4) whether protesters typically stood at the

edge, or in the middle, of the alley; and (5) whether protesters

regularly conversed with Clinic clients, or whether they solely

displayed signs in the alley. Absent this information, we are

hard pressed to conclude that Sergeant Barth selected the “least

burdensome” alternative to promote traffic safety in the alley as

a matter of law.

Accordingly, summary judgment was improper, and the

jury should decide this issue on remand.

3.

The final Ward requirement is that the restriction leave

ample opportunities for communication of information. The

District Court concluded that McTernan, who could espouse his

views from the public sidewalks surrounding the Clinic,

possessed adequate alternatives to convey his pro-life message.

M.A. 29. McTernan’s contention on appeal is a narrow one. He

focuses on the alternatives available to communicate with

clients using the rear entrance of the Clinic. McTernan contends

that access to Rose Alley is critical to engage these clients.

McTernan’s assertion is factually correct: sustained

conversation with clients using the rear entrance is only possible

in the alley. However, the First Amendment does not guarantee

a speaker an absolute right to actual conversation with his

audience in every circumstance. To the contrary, the Supreme

Court has repeatedly upheld buffer zones around reproductive

37

health clinics, even where, as a practical matter, the restriction

would impede face-to-face interaction with clients. See Schenck,

519 U.S. at 376 (upholding 15-foot buffer zone around clinic

doorways and driveways); Madsen, 512 U.S. at 770 (upholding

36-foot buffer zone around clinic entrances and driveway);

McGuire v. Reilly, 260 F.3d 36, 49 (1st Cir. 2001) (upholding

18-foot fixed buffer zone around abortion clinics).

In Madsen, the Supreme Court considered the

constitutionality of a 36-foot buffer zone around the entrances

and driveways of an abortion clinic. 512 U.S. at 757. Due to its

size, the buffer zone limited opportunities for face-to-face

dialogue between protesters and clients. Id. Although the buffer

zone impeded conversation with clients, it was “narrow enough

to place petitioners [protesters] at a distance of no greater than

10 to 12 feet from cars approaching and leaving the clinic.” Id.

at 770. Hence, protesters could still voice their message and

display placards as drivers and passengers approached the clinic.

Because protesters “could still be seen and heard from the clinic

parking lots,” the Court concluded that protesters possessed

adequate alternatives to communicate their message. Id.

We find the alternative communication channels approved

in Madsen instructive here. As in Madsen, the restriction here

limits opportunities for conversation with clients using the rear

entrance of the Clinic. Nonetheless, McTernan possessed

options to make himself “seen and heard.” Id. Like the

protesters in Madsen, McTernan could verbalize his message or

direct visual placards at drivers entering Rose Alley. Standing

on the public sidewalk fronting the clinic, McTernan could

position himself within a few feet of cars turning into Rose

38

Alley – a distance less than that separating protesters and drivers

in Madsen. Because the alternatives available to McTernan to

communicate with his intended audience were equivalent to or

greater than those approved in Madsen, we conclude that

McTernan possessed adequate avenues to communicate with

clients, notwithstanding limitations on face-to-face comm-

unication. Hence, the District Court properly concluded that this

aspect of Ward was satisfied.12

III.

McTernan challenges the District Court’s dismissal of his

claim against the City of York based on Sergeant Barth’s alleged

violation of his First Amendment rights. Our jurisprudence is

clear that “[w]hen a suit against a municipality is based on §

1983, the municipality can only be liable when the alleged

constitutional transgression implements or executes a policy,

regulation, or decision officially adopted by the governing body

or informally adopted by custom.” Beck v. City of Pittsburgh, 89

F.3d 966, 971 (3d Cir. 1996) (citing Monell v. New York City

Dep’t of Social Servs., 436 U.S. 658 (1978)). Monell thus

created a “two-path track” to municipal liability, depending on

whether a §1983 claim is premised on a municipal policy or

custom. Id.

In Andrews v. City of Philadelphia, we expanded on these

12

We do not address qualified immunity or McTernan’s right

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

Court. M.A. 29.

39

two sources of liability:

A government policy or custom can be established

in two ways. Policy is made when a

‘decisionmaker possess[ing] final authority to

establish a municipal policy with respect to the

action’ issues an official proclamation, policy, or

edict. A course of conduct is considered to be a

‘custom’ when, though not authorized by law, ‘such

practices of state officials [are] so permanently and

well-settled’ as to virtually constitute law.

895 F.2d 1469, 1480 (3d Cir. 1990) (quoted in Beck, 89 F.3d at

971) (citations omitted). Custom requires proof of knowledge

and acquiescence by the decisionmaker. Watson v. Abington

Twp., 478 F.3d 144, 154 (3d Cir. 2007); Beck, 89 F.3d at 971.

As noted above, Fed. R. Civ. P. 8(a)(2) “requires a

‘showing,’ rather than a blanket assertion, of entitlement to

relief” that rises “above the speculative level.” Phillips, 515

F.3d at 231-32 (quoting Twombly, 127 S.Ct. at 1965 & n. 3).

“Rule 8(a)(2) requires that the ‘plain statement’ possess enough

heft to ‘sho[w] that the pleader is entitled to relief.’” Id. at 231

(quoting Twombly, 127 S.Ct. at 1966).

Here, McTernan’s Monell claim rests on four allegations

in the complaint:

• “16. Despite the lack of violence, the City of York, its

Mayor and Police Chief, have routinely dispatched police

officers to Planned Parenthood at the behest of Planned

40

Parenthood, to serve as private security guards for

Planned Parenthood. It is believed, and therefore averred,

that Planned Parenthood pays for these police officers and

directs their actions.” M.A. at 46.

• “33. Continuing through the present, Mr. McTernan and

others have been periodically threatened with arrest and

have on multiple occasions been told to leave the alley.”

M.A. at 50.

• “34. Mr. McTernan is chilled, frustrated and deterred in

the exercise of his First Amendment activities due to the

City’s policy of ignoring First Amendment right[s.]” M.A.

at 50.

• “35. All of the acts of the Defendants and their agents, as

alleged herein, were conducted under color and pretense

of the statutes, ordinances, regulations, customs, or usages

of the City of York or the Commonwealth of

Pennsylvania.” M.A. at 50.

The District Court concluded that McTernan failed to

satisfy the “rigorous standards of culpability and causation”

required for municipal liability. M.A. 8 (quoting Bd. of Comm’rs

of Bryan County v. Brown, 520 U.S. 397, 405 (1997)). We

agree.

As an initial matter, McTernan fails to specify the relevant

“custom” or “policy” here. To satisfy the pleading standard,

McTernan must identify a custom or policy, and specify what

exactly that custom or policy was. Phillips, 515 F.3d. at 232

41

(“We caution that without some factual allegation in the

complaint, a claimant cannot satisfy the requirement that he or

she provide not only ‘fair notice,’ but also the ‘grounds’ on

which the claim rests.”). Mere assertion of an entitlement to

relief, without some factual “showing,” is insufficient under

Fed. R. Civ. P. 8(a)(2). Id. The complaint, which gives no

notice as to the Defendants’ improper conduct, simply alleges

that McTernan’s rights were violated “due to the City’s policy

of ignoring First Amendment right[s.]” M.A. 50. This is not

sufficient.

Equally fatal, the four allegations in the complaint

relevant to McTernan’s Monell claim fail to allege conduct by

a municipal decisionmaker. Although McTernan maintains that

York officers “periodically” instructed protesters to exit the

alley, he does not plead knowledge of such directives by a

municipal decisionmaker, such as the Mayor or Police Chief.

There is no allegation that either the Mayor or the Police Chief

were aware of, let alone directed, the restrictions or participated

in formulating traffic abatement strategies at the Clinic. Nor do

the allegations support, indirectly, such an inference. The

complaint alleges nothing more than directives issued ad hoc by

individual officers, without reference to any formal

administrative or policy channels. Hence, the allegations are

deficient.

McTernan’s complaint simply paraphrases § 1983: “All of

the acts of the Defendants and their agents, as alleged herein,

were conducted under color and pretense of the statutes,

ordinances, regulations, customs, or usages of the City of York

or the Commonwealth of Pennsylvania.” M.A. 50. “[F]ormulaic

42

recitation of the elements of a cause of action will not do.”

Phillips, 515 F.3d at 231 (quoting Twombly, 127 S.Ct. at

1964-65). Because McTernan does not adequately plead a

custom or policy, or a link between the challenged restriction

and a municipal decisionmaker, the restriction cannot “fairly be

said to represent official policy,” warranting the imposition of

municipal liability. Pembaur v. City of Cincinnati, 475 U.S. 469,

480 (1986) (quoting Monell, 436 U.S. at 694). Accordingly, the

District Court properly dismissed McTernan’s Monell claim

against the City and official capacity suit against Defendants

Barth, Brenner, and Whitman.13

IV.

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

Barth, Mayor Brenner, and Police Commissioner Whitman.

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

the other counts of appellant’s complaint and REMAND to the

District Court for further proceedings in accordance with this

Opinion.

13

McTernan contends that Monell’s requirement that a § 1983

plaintiff establish a “custom or policy” does not apply to his

claim for injunctive relief. We do not resolve the issue here, as

the argument is made for the first time on appeal and was not

addressed by the District Court. M.A. 80.

43