Blackhawk v. Pennsylvania, No. 02-3947.

• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
• Writing for the Court: Alito
• Citation: 381 F.3d 202
• Parties: Dennis L. BLACKHAWK v. Commonwealth of PENNSYLVANIA; Pennsylvania Game Commission; Vernon Ross, Director; Thomas R. Littwin, Law Enf. Director; Frederick Merluzzi, Enf. Officer; Barry Hambley; David E. Overcash, in their individual and official capacities Vernon Ross Thomas Littwin David E. Overcash, Appellants, Dennis L. Blackhawk, Appellant, v. Commonwealth of Pennsylvania; Pennsylvania Game Commission; Vernon Ross, Director; Thomas R. Littwin, Law Enf. Director; Frederick Merluzzi, Enf. Officer; Barry Hambley; David E. Overcash, in their individual and official capacities.
• Docket Number: No. 02-3947.,No. 02-4158.
• Decision Date: 20 August 2004

381 F.3d 202 Dennis L. BLACKHAWK
v.
Commonwealth of PENNSYLVANIA; Pennsylvania Game Commission; Vernon Ross, Director; Thomas R. Littwin, Law Enf. Director; Frederick Merluzzi, Enf. Officer; Barry Hambley; David E. Overcash, in their individual and official capacities Vernon Ross Thomas Littwin David E. Overcash, Appellants,
Dennis L. Blackhawk, Appellant,
v.
Commonwealth of Pennsylvania; Pennsylvania Game Commission; Vernon Ross, Director; Thomas R. Littwin, Law Enf. Director; Frederick Merluzzi, Enf. Officer; Barry Hambley; David E. Overcash, in their individual and official capacities. No. 02-3947. No. 02-4158. United States Court of Appeals, Third Circuit. Argued July 21, 2003. Filed August 20, 2004.

Appeal from the United States District Court for the Middle District of Pennsylvania, Thomas I. Vanaskie, J.

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D. Michael Fisher, Howard G. Hopkirk (Argued), Calvin R. Koons, John G. Knorr, III, Office of Attorney General, Appellate Litigation Section, Harrisburg, PA, for Appellants/Cross-Appellees.

Gary S. Gildin (Argued), Carlisle, Thomas B. Schmidt, III, Pepper Hamilton LLP, Harrisburg, PA, for Appellee/Cross-Appellant.

Before ALITO and FUENTES, Circuit Judges, and SURRICK,^* District Judge.

ALITO, Circuit Judge.

This is an appeal by officials of the Pennsylvania Game Commission from an order permanently enjoining them from enforcing a permit fee provision of the state Game and Wildlife Code against Dennis Blackhawk on the ground that the Commission's current waiver policy violates his right to the free exercise of religion. Blackhawk in turn cross-appeals the District Court's holding that the Game Commission officials are not personally liable for violating his rights. We affirm the District Court in both respects.

I.

Lakota Indians believe that black bears protect the Earth, sanctify religious ceremonies, and imbue worshipers with spiritual strength. Although Blackhawk is a Lenape Indian by birth, he was adopted by elders of the Oglala Lakota and Seneca tribes, who schooled him in the religious traditions of the Lakota and Iroquois people. When Blackhawk began to see bears in a recurring dream, Lakota tribal elders concluded that the dream was a prophesy and predicted that Blackhawk would derive spiritual power from the animals.

In 1994, Blackhawk purchased two black bear cubs, a male and a female named Timber and Tundra. He moved to Pennsylvania in 1995 and began conducting religious ceremonies with the bears on his property. Members of various American Indian tribes visit Blackhawk from across the country to participate in these rituals. Due to Blackhawk's stewardship of the

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bears and his role in these ceremonies, some consider him to be a holy man.

The Pennsylvania Game and Wildlife Code requires permits in order to engage in a variety of different activities, including such things as bird banding (34 Pa. Cons. Stat. Ann. § 2921), falconry (34 Pa. Cons. Stat. Ann. § 2925), various types of filed dog trials (34 Pa. Cons.Stat. Ann. § 2943), fox chasing (34 Pa. Cons.Stat. Ann. § 2945), maintaining a "menagerie" (34 Pa. Cons.Stat. Ann. § 2964), and either dealing in or possessing "exotic wildlife." 34 Pa. Cons.Stat. Ann. §§ 2962, 2963. Annual fees ranging from $25 to $300 are collected for these permits, see 34 Pa. Cons.Stat. Ann. § 2904, and the revenues from all of these fees comprise about one percent of the Game Commission's annual intake.

Although persons wishing to keep wildlife in captivity must generally obtain a menagerie or exotic wildlife possession permit and pay the requisite fee, see 34 Pa. Cons.Stat. Ann. §§ 2904, 2964(c)(1), the Code excludes from these requirements most zoos and all "[n]ationally recognized circus[es]." 34 Pa. Cons.Stat. Ann. § 2965(a)(1)-(3). In addition, the director of the Game Commission is authorized to waive a permit fee "where hardship or extraordinary circumstance warrants," so long as the waiver is "consistent with sound game or wildlife management activities or the intent of [the Game and Wildlife Code]" 34 Pa. Cons.Stat. Ann. § 2901(d).

From 1995 to 1999, Blackhawk obtained permits to own the bears. At first, he acquired a "menagerie permit," but bears are classified under the Game and Wildlife Code as "exotic wildlife," see 34 Pa. Cons. Stat. Ann. § 2961, and special permits are required for those wishing to deal in or possess exotic wildlife. See 34 Pa. Cons. Stat. Ann. §§ 2904, 2962, 2963. Beginning in 1997, the Game Commission insisted that Blackhawk obtain an exotic wildlife dealer permit, which costs $200 per year, see 34 Pa. Cons.Stat. Ann. § 2904, because Frederick Merluzzi, a wildlife conservation officer, believed that Blackhawk intended to breed the bears and sell their cubs. If Blackhawk did not wish to deal in bears but merely to keep them, he needed only an exotic wildlife possession permit, for which the annual fee is $50. See 34 Pa. Cons.Stat. Ann. § 2904.

In 1998, Blackhawk sought an exemption from the permit fee on the ground that he possessed the bears for Native American religious purposes. After making an inquiry to the Bureau of Indian Affairs, Merluzzi informed Blackhawk that Native Americans who possess a Bureau of Indian Affairs identification card are entitled to some exemptions under federal law, but Blackhawk did not possess such a card. Blackhawk paid the 1998 fee under protest after citing his religious purpose and alleging financial hardship. He then wrote to his representative in the state legislature, Keith McCall, and McCall intervened and asked Commission director Vernon Ross to oversee the situation personally. On October 6, 1999, Blackhawk received a letter from Commission officials Thomas Littwin and David Overcash informing him that he did not qualify for a waiver under 34 Pa. Cons.Stat. Ann. § 2901(d) because the Commission regarded the keeping of wild animals in captivity as inconsistent with sound game and wildlife management activities unless the animals were intended for release into the wild. Since Timber and Tundra had been declawed and had been kept in captivity their entire lives, they could not be released into the wild. "Thus, in the Commission's view, Blackhawk [was] not entitled to an exemption regardless of his financial circumstances." Black Hawk v. Pennsylvania, 225 F.Supp.2d 465, 470 (M.D.Pa.2002). The

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letter from Littwin and Overcash told Blackhawk that, because his permit had expired on June 30, 1999, if he still possessed the bears he was subject to prosecution.

Blackhawk responded by again requesting a waiver, and in November of 1999, Merluzzi filed criminal charges against Blackhawk for failing to renew.

Blackhawk filed an action under 42 U.S.C. § 1983, seeking to enjoin the Game Commission from assessing the fee or confiscating the bears and also seeking money damages from Merluzzi, Overcash, Littwin, Hambley, and Ross. Prior to the District Court's disposition of the case, a state magistrate found Blackhawk guilty of the criminal charges and assessed a $178,400 fine, which he later reduced to $6,442. However, the Court of Common Pleas stayed the criminal case pending a ruling on Blackhawk's § 1983 action.

In August of 2000, Blackhawk discovered that the bears' enclosure had been vandalized, that the locks on the enclosure had been cut, and that the animals were missing. A neighbor encountered Tundra on his property and was attempting to lead the bear back to the pen when Tundra bit him. The neighbor alerted the Game Commission, which tracked the bears and tranquilized them. An official who was attempting to restrain Tundra was also bitten by the bear, but the Commission succeeded in taking both bears into custody. It then sought to destroy the bears pursuant to a regulation requiring wild animals who have bitten humans to be decapitated in order to be tested for rabies. See 28 Pa.Code § 27.103(f)(2). The District Court enjoined the Commission from destroying the bears and ordered their return. See Black Hawk v. Pennsylvania, 114 F.Supp.2d 327 (M.D.Pa.2000).

When the District Court reached the merits of the civil case, it held that the Game Commission's refusal to exempt religiously motivated activities from the permit fee violated the First Amendment's Free Exercise Clause. See Black Hawk, 225 F.Supp.2d at 465. The Court held that the permit fee requirement was not a "`valid and neutral law of general applicability'" under Employment Div., Dep't of Human Resources of Oregon v. Smith, 494 U.S. 872, 879, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), because the statutory waiver established a "`system of individualized exceptions.'" Black Hawk, 225 F.Supp.2d at 473. The Court accordingly applied strict scrutiny to the waiver scheme, id. at 472-73, and held that the scheme could not withstand strict scrutiny because the Commission was unable to "demonstrate a compelling interest in refusing to grant a religious exemption." Id. at 477. The District Court accordingly enjoined the Game Commission from charging Blackhawk a permit fee. However, the Court declined to hold the individual defendants liable under § 1983 because it found that Merluzzi and Hambley were not personally responsible for violating Blackhawk's rights and that Ross, Littwin, and Overcash were entitled to qualified immunity.

On appeal, the Commission argues that the First Amendment does not entitle Blackhawk to a waiver, and Blackhawk contends that the District Court erred in granting summary judgment in favor of the individual defendants. We exercise plenary review over a grant of summary judgment, Northview Motors, Inc. v. Chrysler Motors Corp., 227 F.3d 78, 87-88 (3d Cir.2000), and likewise review de novo the District Court's interpretation of the Constitution. United States v. Scarfo, 263 F.3d 80, 91 (3d Cir.2001).

II. A.

Blackhawk's free exercise claim requires us to apply the Supreme Court's decisions

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in Employment Div., Dep't of Human...