564 F.3d 659 (3rd Cir. 2009), 07-4439, Snell v. City of York, Pennsylvania

Docket Nº:07-4439, 07-4437, 07-4438.
Citation:564 F.3d 659
Party Name: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.
Case Date:April 27, 2009
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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564 F.3d 659 (3rd Cir. 2009)

Edward D. SNELL, Appellant


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.

Nos. 07-4439, 07-4437, 07-4438.

United States Court of Appeals, Third Circuit.

April 27, 2009

Argued Oct. 23, 2008.

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Randall L. Wenger, Esq. [Argued], Dennis E. Boyle, Esq., Camp Hill, PA, for Appellants, John McTernan; John R. Holman; Edward D. Snell.

Donald B. Hoyt, Esq., Blakey, Yost, Bupp & Rausch, York, PA, Frank J. Lavery, Jr., Esq., James D. Young, Esq. [Argued], Lavery, Faherty, Young & Patterson, Harrisburg, PA, 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.

Before: RENDELL, and SMITH, Circuit Judges, and POLLAK,[*] District Judge.


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 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

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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.


On November 3, 2004, Appellee Sergeant Ronald Camacho was stationed at the Planned Parenthood clinic on 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 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

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several Planned Parenthood 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 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, 105 S.Ct. 3099, 87 L.Ed.2d 114 (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. 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,

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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 that serves no legitimate purpose." 418 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...

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