Holman v. City of York, Pa, 07-4438.

• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
• Writing for the Court: Rendell
• Citation: 564 F.3d 225
• Parties: John R. HOLMAN, Appellant v. CITY OF YORK, PENNSYLVANIA; Police Commissioner Mark L. Whitman, in his official capacity; Officer Koltanovich, York Police Department, in his official and individual capacities.
• Docket Number: No. 07-4437.,No. 07-4439.,No. 07-4438.,07-4438.,07-4437.,07-4439.
• Decision Date: 27 April 2009

564 F.3d 225 John R. HOLMAN, Appellant
v.
CITY OF YORK, PENNSYLVANIA; Police Commissioner Mark L. Whitman, in his official capacity; Officer Koltanovich, York Police Department, in his official and individual capacities. No. 07-4438. No. 07-4437. No. 07-4439. United States Court of Appeals, Third Circuit. Argued October 23, 2008. Filed: April 27, 2009.

[564 F.3d 226]

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

Donald B. Hoyt, Esq., Blakey, Yost, Bupp & Rausch, York, PA, James D. Young, Esq. [Argued], Lavery, Faherty, Young & Patterson, Harrisburg, PA, for Appellees, City of York, Pennsylvania; Police Commissioner Mark L. Whitman, in His Official Capacity; and Officer Koltanovich.

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

OPINION OF THE COURT

RENDELL, Circuit Judge.

Appellant John Holman 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. Appellant John Holman is a pro-life advocate who regularly speaks to pregnant women as they enter the medical clinic (hereinafter "Clinic") of Planned Parenthood of Central Pennsylvania ("Planned Parenthood") in York, Pennsylvania. Officer Koltunovich,¹ 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. McTernan Appendix ("M.A.") 182. To dissuade pregnant women from undergoing an abortion, Holman emphasizes the sanctity of the fetus, distributes pro-life literature, and discusses alternatives to, and the health risks of, abortion. Holman Appendix ("H.A.") 356-57. Holman's activities emanate from

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deeply rooted Christian religious beliefs. H.A. 355.

This case and those of two other protesters at the Clinic (McTernan v. City of York, No. 07-4437, 2009 WL 1111097; and Snell v. City of York, No. 07-4439, 2009 WL 1111101) were consolidated for oral argument. Each of the three appellants sued individually complaining of restrictions on his First Amendment rights of speech, assembly, and religious expression. Additionally, Holman and Snell 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 were separately asserted in, and decided by, the District Court. We therefore write separately on each case, and we note that the analysis as it relates to Holman differs from the others somewhat, based on the nature of the government conduct at issue.

The Clinic and its environs are described fully in our Opinion in McTernan v. City of York, No. 07-4437, filed concurrently herewith, and that description will not be repeated here.²

On December 7, 2005, Officer Koltunovich was working at the Clinic. That morning, as Holman was walking through Rose Alley towards South Beaver Street, Officer Koltunovich approached, positioning himself "toe to toe" with Holman. H.A. 193,358.³ Officer Koltunovich then ordered Holman to "get out of my space" and "verbally assault[ed]" him. H.A. 358, 193. Officer Koltunovich returned to the intersection of Rose Alley and South Beaver Street, after which Holman continued to advocate in the alley, without any objection by Officer Koltunovich. H.A. 190, 358, 362.⁴ At some point on the morning of December 7, 2005, Officer Koltunovich cautioned Holman that walking in Rose Alley could be hazardous. H.A. 200, 278. However, Holman testified that Officer Koltunovich did not forbid his standing in the alley on that day or at any time previously, H.A. 188-89, nor is there evidence that Officer Koltunovich instructed other protesters to stay out of Rose Alley on that day. Snell Appendix (S.A.) 175.

Shortly thereafter, the two conversed again, this time near the intersection of Rose Alley and South Beaver Street. Holman was standing at the edge of the street near the Clinic's front lot, when a tractor-trailer made a "wide, sweeping turn" into the alley from South Beaver Street. H.A. 283, 358, 361. To avoid the truck, Holman stepped into the Planned Parenthood parking lot; Officer Koltunovich immediately arrested him for trespass. H.A. 239, 290. The charge for defiant trespass was dismissed by the Magisterial District Judge.⁵ H.A. 229.

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Officer Koltunovich had previously warned Holman that Planned Parenthood prohibited his entering the front lot, which was its private property. H.A. 166-67, 173, 267-69, 296. Holman acknowledged that he was aware that he was entering Planned Parenthood property when he stepped onto the elevated curb to avoid the truck. H.A. 239, 267-270, 272.

Holman and Officer Koltunovich offered conflicting testimony as to the speed of the truck, the imminence of the danger presented, and Holman's alternatives to avoid a collision. Holman testified that the truck was traveling at an unsafe speed, and maintains that stepping briefly onto Planned Parenthood property was his sole alternative to avoid a collision. Appellant's Br. at 32; H.A. 198. Officer Koltunovich, conversely, testified that the truck, which came to "practically a dead stop," did not pose an "imminent danger" or present a "close call." H.A. 239-40, 279. Officer Koltunovich also testified that Holman could have avoided a collision by walking farther down the alley, which was clear of traffic. H.A. 274-75, 277.

As with McTernan and Snell, Holman asserts First Amendment claims of free speech, assembly,⁶ and religious expression.⁷ Unlike McTernan and Snell, however, Holman fails to demonstrate any restriction on his First Amendment rights. Holman acknowledges that he was granted unfettered access to the alley, and that he exercised his First Amendment rights there, without objection by Officer Koltunovich.⁸ To the extent that Holman does assert a restriction on his free speech rights, it is based on his arrest for trespass. McTernan contends that his arrest was motivated by a desire to suppress his pro-life views, and chilled his First Amendment activity in the alley.⁹ We disagree. Although we are somewhat troubled by Holman's arrest for a de minimis offense, no evidence suggests that Officer Koltunovich acted based on an improper motive, or that the arrest would "deter a person of ordinary firmness from the exercise of his First Amendment rights."¹⁰ See Suppan v. Dadonna, 203 F.3d 228, 235 (3d Cir. 2000); Bennett v. Hendrix, 423 F.3d 1247, 1254 (11th Cir.2005). To the contrary, Officer Koltunovich granted Holman unfettered access to the alley, permitting him to protest there without objection. Holman was only arrested when he trespassed on Planned Parenthood property, after repeated warnings that the lot was private property. Hence, Holman's "chill" argument — that he reasonably feared police reprisal for exercising his First Amendment rights — is unfounded. Holman had no

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reason to fear police interference with his advocacy in the alley, provided he respected Planned Parenthood's property rights. Thus, Holman fails to demonstrate a cognizable First Amendment violation.

Holman also challenges his arrest on Fourth Amendment grounds. He contends that his arrest for trespass was not supported by probable cause, because an affirmative defense — the defense of necessity —...