Egolf v. Witmer, 06-2193.

• Decision Date: 22 May 2008
• Docket Number: No. 06-2193.,06-2193.
• Citation: 526 F.3d 104
• Parties: Tristan P. EGOLF; Adam Clayton Willard; Jonathan A. Kohler; David Jc Obryant; Benjamin D. Keely; Paula Egolf; Gary Lee Egolf, Appellants v. Christopher WITMER; James Ely; Deb Kolb; Gerald Kling; D.J. Kling, in their Individual Capacities as Police Officers for East Lampeter Township; Linda Gerow; Blaine Hertzog; Wayne Kline; John/Jane Doe 1 to 5 in their Individual Capacities who are Unknown State Actors; John/Jane Doe 6 to 10 in their Individual Capacities who are Unknown Federal Employees, Agents or Actors; Christopher Jones, in their Individual Capacities as Police Officers for East Lampeter Township; Marian Adams, in their individual capacities as Pennsylvania State Troopers; and; East Lampeter Township.
• Court: U.S. Court of Appeals — Third Circuit

526 F.3d 104

Tristan P. EGOLF; Adam Clayton Willard; Jonathan A. Kohler; David Jc Obryant; Benjamin D. Keely; Paula Egolf; Gary Lee Egolf, Appellants v.Christopher WITMER; James Ely; Deb Kolb; Gerald Kling; D.J. Kling, in their Individual Capacities as Police Officers for East Lampeter Township; Linda Gerow; Blaine Hertzog; Wayne Kline; John/Jane Doe 1 to 5 in their Individual Capacities who are Unknown State Actors; John/Jane Doe 6 to 10 in their Individual Capacities who are Unknown Federal Employees, Agents or Actors; Christopher Jones, in their Individual Capacities as Police Officers for East Lampeter Township; Marian Adams, in their individual capacities as Pennsylvania State Troopers; and; East Lampeter Township.

No. 06-2193.

United States Court of Appeals, Third Circuit.

Argued April 10, 2007.

Filed May 22, 2008.

J. Dwight Yoder, Esq.(Argued), Gibbel, Kraybill & Hess, Lancaster, PA, for Appellants.

John G. Knorr, III(Argued), Office of the Attorney General of Pennsylvania, Department of Justice, Harrisburg, PA, for Appellees.

Before SMITH, NYGAARD, and HANSEN,^* Circuit Judges.

OPINION OF THE COURT

NYGAARD, Circuit Judge.

Appellants, Tristan Egolf, Benjamin Keely, Jonathan Kohler, David O'Bryant, and Adam Willard claimed that several state and municipal actors violated their First and Fourth Amendment rights by arresting them during a demonstration against the war in Iraq.¹The District Court granted summary judgment for the police on all claims and denied appellants' motion for partial summary judgment on the First and Fourth Amendment claims.We will affirm the District Court's holding regarding the Trooper's motion for summary judgment on their qualified immunity claim.²

I.

We have plenary review of the District Court's grant of summary judgment.181 South Inc. v. Fischer,454 F.3d 228, 231, n. 4(3d Cir.2006).³For the purpose of our review, we will accept the facts as determined by the District Court, construing them in a light most favorable to the party that is claiming a constitutional violation, in this case the protesters.Gilles v. Davis,427 F.3d 197, 203(3d Cir.2005).

In the summer of 2004, President Bush was scheduled to make an appearance in East Lampeter, Pennsylvania, as part of his reelection campaign.Between three and four hundred adults and children gathered along the motorcade's expected route.The East Lampeter Township police, with assistance from several Troopers from the Pennsylvania State Police, were dispatched to maintain order.

A group of people opposed to President Bush and the war in Iraq gathered at a spot along the route.One protester, wearing a t-shirt emblazoned with the words, "F____ Texas," carried a large sign stating, "Great War, George."Others nearby carried signs declaring, "F____ Texas,""F____ Bush,""Regime Change Begins at Home,""Go Back to Texas," and depicting Bush as the "World's No. 1 Terrorist."

These protesters planned to demonstrate their opposition to the war in Iraq by recreating a notorious image from the prisoner abuse scandal at Abu Ghraib.⁴When they believed the presidential motorcade was near,⁵ seven male protesters quickly removed their shirts, pants, socks and shoes.Wearing only thong underwear, they turned their buttocks toward the road.Five men got on their hands and knees, and the other two men climbed on top of them to form a pyramid.An associate of the protesters, Kara Dimitris, stood behind the pyramid, gave a "thumbs up" sign with one hand, and in the other, held up the "Great War, George" sign.Another associate of the protester group, Dan Rhineer, filmed the event.

Those that formed the pyramid remained passive and silent.Rhineer's video recording evinces sounds of cheering and some laughter in the surrounding crowd.Other people in the surrounding crowd objected to the protest and they can be heard demanding that the group put their clothes back on.Rhineer defended the men exclaiming: "This happened!Children need to know about this!"

Pennsylvania State Police and officers from East Lampeter Township were standing between the crowd and the road maintaining order in anticipation of the Presidential motorcade.At least one Pennsylvania State Trooper was standing in front of the protesters as they undressed and formed the pyramid.The video recording of the event shows that while the police closest to the protesters saw the event, they did nothing to immediately respond.Some bystanders began loudly imploring to the officers to respond.

Trooper Blaine Hertzog, monitoring the crowd near the protesters, became concerned as yelling among the people grew louder.He testified that he waved to Township Officer Christopher Jones.Hertzog and Jones asked one another whether the demonstration was illegal.After Jones signaled other officers for assistance, Troopers Linda Gerow, Marian Adams, and Wayne Kline headed to the scene.At that point, Trooper Hertzog stated that he saw the protesters stacked upon each other in a pyramid shape, and he saw their "buttocks and the thongs."

Trooper Hertzog testified during a deposition that he and Officer Jones did not, on their own, take enforcement action relative to the protesters, nor had they concluded one way or the other that any illegal activity was occurring.They moved in only when a Trooper who was arriving at the scene on foot made the command to arrest the protesters.The immediate concern noted by Trooper Hertzog in those moments was the increasing tension in the crowd that he was monitoring.

When Trooper Gerow came upon the scene, the pyramid had stood for less than two minutes.Upon arriving, she saw men clad in tight thongs "mooning" the crowd and she immediately pulled one of the men off the pyramid.⁶The other officers then arrested Egolf, Keely, Kohler, O'Bryant, Russell Willard, and Adam Willard.

As the police began to pull the men out of their formation, surrounding associates of the protesters responded that the men were not doing anything illegal.Nonetheless, the protesters complied with the direction of the officers who took them away from the scene.The police did not arrest one member of the pyramid who had quickly put on his pants and shirt.

The Township police then took the protesters to the police station and charged them with disorderly conduct.The police held the men for approximately two hours and then released them.Three months later, the Lancaster County District Attorney announced that he had withdrawn the disorderly conduct charges because he doubted that the Commonwealth could successfully prosecute the matter.⁷

Egolf, Keely, Kohler, O'Bryant and Adam Willard filed suit under 42 U.S.C. § 1983, alleging that their arrests violated the First and Fourth Amendments.The police moved for summary judgment.Appellants filed a motion for partial summary judgment.

Addressing the protesters' claimed violations of their constitutional rights, the District Court noted that the facts of this case present a question not yet addressed by Pennsylvania courts.⁸Relying on our opinion in Radich, the District Court held that the ambiguity of whether or not the appellants violated Pennsylvania's Open Lewdness Act was reason enough to give the police probable cause to arrest the protesters.In Radich,we held that police officers cannot be expected to accurately predict the court's interpretation of an issue of first impression.Therefore, in some such cases, it is reasonable to find that the police had probable cause.Radich v. Goode,886 F.2d 1391, 1398(3d Cir.1989).

Alternately, predicting that Pennsylvania courts would find that the protesters engaged in prohibited lewd conduct, the District Court found that a reasonable officer would have decided that probable cause existed to arrest the protesters.Upon these bases, the District Court concluded that the police did not violate the Fourth Amendment rights of the protesters.

The District Court also concluded that the police did not violate the First Amendment.As applied in this instance, the court found that the police's arrest of the protesters under the lewdness statute was a permissible restriction on expressive conduct using the analysis detailed in United States v. O'Brien,391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672(1968).

Finally, the District Court concluded that, even if the police violated the constitutional rights of the protesters under either the First or Fourth Amendments, the police had qualified immunity from suit.The court granted immunity on the basis that the constitutional rights were not "clearly established" in the circumstances of this case.This appeal followed.

We have a longstanding practice of avoiding constitutional questions in cases where we can reach a decision upon other grounds.SeeU.S. v. Otero,502 F.3d 331, 334 n. 1(3d Cir.2007).In this instance, we agree with the District Court that, regardless of whether the police violated the protesters' First and Fourth Amendment rights, these rights were not "clearly established" in this circumstance.On this basis, and for the reasons set out below, we will affirm the District Court's grant of qualified immunity to the police but we will not address the First and Fourth Amendment questions raised in this case.

II.

The assessment of qualified immunity normally involves two steps.In the usual case, we must assess whether the facts alleged, viewed in the light most favorable to the party asserting the injury, demonstrate that the state actor's conduct violated a constitutional right.Where a constitutional violation exists, we then move to a second tier of analysis to determine whether the violated right was "clearly established."Saucier v. Katz,533 U.S. 194, 200, 121 S.Ct. 2151, 150 L.Ed.2d 272(2001);Gilles,427 F.3d at 203.We find in this case an exception to this generally mandated analytic framework.⁹

A.

Although Saucier requires that courts engage a two-tiered analysis that first examines whether a...