                                                                                                                           Opinions of the United
1994 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-30-1994

Brown et al. v. Borough of Mahaffrey, et al.
Precedential or Non-Precedential:

Docket 93-3063




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                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT


                            No. 94-3063


         ANDREW D. BROWN and ABUNDANT LIFE MINISTRIES,
                           Appellants

                                v.

  BOROUGH OF MAHAFFEY, PENNSYLVANIA, a municipal corporation,
  JOHN M. BAKAYSA, PAUL MAHAFFEY, FRANK ELLING, JOHN BRACKEN,
          KIMBERLY STRUBLE, POLLY BELL, KENNETH BEE,
            RODGER JOHNSON and FRANCIS P. RUFFLEY,
                           Appellees


        On Appeal from the United States District Court
           for the Western District of Pennsylvania
                    (D.C. Civil No. 93-40J)


                      Argued:   July 25, 1994

           Before:    BECKER and ALITO, Circuit Judges
                     and BRODY, District Judge*

                  (Filed:   September 30, 1994)

                          JOSEPH E. BUCKLEY, JR. (Argued)
                          100 Main Street
                          Brookville, PA 15825

                                 Attorney for Appellants

                          PAMELA G. COCHENOUR (Argued)
                          ROBERT E. DAPPER
                          Pietragallo, Bosick & Gordon
                          38th Floor, One Oxford Center
                          Pittsburgh, PA 15219

                                 Attorney for Appellees


     * Hon. Anita B. Brody, United States District Judge for the
Eastern District of Pennsylvania, sitting by designation.
                         OPINION OF THE COURT



BRODY, District Judge,


          Plaintiffs, a Pentecostal minister and his non-profit

incorporated ministry, appeal the grant of summary judgment on

their claims under 42 U.S.C. §§ 1983 and 1985(3) alleging that a

municipal borough and its council members violated their free

exercise and other rights by intentionally impeding access to

their tent revival meetings.    The District Court granted summary

judgment on the Free Exercise count because the plaintiffs had

not introduced sufficient evidence that the Borough's actions

placed a "substantial burden" on plaintiffs' religious exercise.

Because we believe that the pivotal issue in a case alleging

deliberate interference with religious activity is not the extent

of the burden on religious exercise, but instead whether the

defendants intended to impose a burden, we reverse the grant of

summary judgment on the Free Exercise claim, and remand to the

District Court for reconsideration of the record consistent with

our holding.
                                  I.

          Taking all inferences to be drawn from the evidence in

a light most favorable to the plaintiffs/appellants, Matsushita

Electric Industrial Co. v. Zenith Radio, 475 U.S. 574, 585-589
(1986), the following events can be gleaned from the record

before us.

            Plaintiffs Reverend Andrew D. Brown and his Abundant

Life Ministries arranged to conduct Pentecostal tent revival

meetings in the Borough of Mahaffey from August 2-7, 1992.     The

plaintiffs had permission to hold the meetings on property owned

by the Penn Central Corporation, which lies adjacent to a

baseball park owned by the Borough called "Scout Park."    Scout

Park and the Penn Central property are divided by a dirt road

owned by the Borough.    Reverend Brown was also negotiating to

purchase the Penn Central property.

            At a Borough council meeting held shortly before the

scheduled revival meetings the council members discussed a

petition to erect a gate separating Scout Park from the Penn

Central property.    At the same meeting the council discussed how

to handle plaintiffs' planned revival meetings.    See Deposition

of council member Bakaysa.    The council summoned Reverend Brown

to the meeting to discuss his plans for the revival.    The

discussion escalated into argument.    Brown also informed the

council that he was negotiating to purchase the Penn Central

property.    Defendant Bakaysa acknowledged that this circumstance

angered the Council members.1   The council members informed



     1
         The District Court also found that council members
"upbraided Brown with abusive language." This fact does not
appear in the record before us.
Reverend Brown of their intention to erect gates between the

properties.   A gate was erected on July 29, 1992.

           The parties eventually agreed that the gates would be

opened each evening to accommodate the meetings.     The first two

revival meetings occurred without event.   At the third meeting,

on Tuesday, August 4, 1992, the plaintiffs found the gates

locked.   Attendees of that night's meeting were unable to drive

up to the tent; instead, they were forced to park outside the

gate and walk 100 to 200 feet to reach the tent.     Plaintiffs

contend that disabled individuals seeking the Ministry's faith

healing were among the expected attendees, and may have been

deterred from further attendance during the week because of the

difficulty in reaching the tent.    Council member Bakaysa

testified that he was aware that disabled individuals were among

the expected worshippers.   Council members represented that they

had intentionally locked the gate because of noise and activity

on the site late at night on Monday.    Plaintiffs were never

informed of the council members' decision to lock the gate.

           After discussion between the parties, the Borough

agreed to open the gate for the rest of the planned meetings; it

did so on Wednesday and Thursday.   On Friday, August 7, 1992, the

plaintiffs again encountered a locked gate that they attempted to

break open.   Council member Kim Struble came over, and offered to

open the gate; according to the plaintiffs the offer was made in

a mocking manner.   The plaintiffs continued to try to break the
gate open.   Struble contacted council member Bakaysa who brought

a state police officer to the scene.   The dispute was eventually

resolved with Bakaysa and Reverend Brown agreeing that Reverend

Brown would repair the gate, and the Borough promising not to

press vandalism charges.

          After the final revival meeting, on August 7, the

plaintiffs who remained behind to clean up and pack the equipment

found their egress blocked by the gate being locked again.

Reverend Brown testified that he had earlier observed council

members and police officers at the gate, and heard pounding at

the gate preceding the time when he discovered the gate locked.

The next morning, the plaintiffs opened the gate by breaking the

bolt with a sledgehammer in order to remove their equipment.

          In February, 1993, the Borough bought the Penn Central

Property from Penn Central Corporation.   Defendants acknowledge

becoming more motivated to purchase the property after becoming

aware of the plaintiffs' hopes of purchasing the property.

          The plaintiffs sued individual council members and the

Borough under federal civil rights laws, 42 U.S.C. §§ 1983 and

1985(3), the Equal Protection Clause of the Fourteenth Amendment,

and Pennsylvania law for damages and injunctive relief, alleging

the following counts:   Free Exercise of Religion under the First

Amendment; Freedom of Association under the First Amendment;

Invasion of Privacy under the First and Fourteenth Amendments;

Establishment Clause under the First Amendment; Equal Protection;
a general "constitutional tort" invasion under §§ 1983 and

1985(3); the Pennsylvania Human Relations Act; False

Imprisonment; and Breach of Contract; and Interference with

Prospective Economic Advantage.

           The District Court granted summary judgment on all

counts.   The plaintiffs appealed the court's holding on

plaintiffs' Free Exercise, Establishment Clause, Equal

Protection, and "constitutional tort" counts.
                               II.

          The core of plaintiffs' Free Exercise contention is

that the Borough manifested hostility towards their religious

activity by intentionally locking the gate to impede access to

the revival meetings.   See Appellants' Brief at 11.   The Free

Exercise Clause of the First Amendment provides that Congress

"shall make no law . . .   prohibiting the free exercise of

[religion]"; at its undisputed minimum this command enjoins

government from intentionally burdening religious worship.    Cf.

Grosz v. City of Miami Beach, Florida, 721 F.2d 729, 733-34 (11th

Cir. 1983), cert. denied, 469 U.S. 827 (1984) ("governmental

action violates the Constitution if it is based upon disagreement

with religious tenets or practices, or is aimed at impeding

religion"); see also Robert H. Bork, The Supreme Court and the
Religious Clauses, Proceedings of the National Religious Freedom

Conference of the Catholic League for Religious and Civil Rights

83, 84 (1988) ("The free exercise clause might have been read
simply to prohibit laws that directly and intentionally penalize

religious observance.   Instead, [it has] been read to have far

greater breadth and severity.").   Indeed, "it was 'historical

instances of religious persecution and intolerance that gave

concern to those who drafted the Free Exercise Clause.'"     Church

of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 113 S. Ct.

2217, 2226 (1993) (citation omitted).   This common understanding

of the Free Exercise Clause has resulted in the circumstance that

"few States would be so naive as to enact a law directly

prohibiting or burdening a religious practice as such."

Employment Division, Department of Human Resources of Oregon v.

Smith, 494 U.S. 872, 894 (1990) (O'Connor, J. concurring).

          The District Court ruled that plaintiffs' Free Exercise

claim failed because "even assuming that plaintiffs' suspicions

about the defendants biases and motivations are true . . . the

plaintiffs have not adduced evidence of a 'substantial burden'",

as required by the Religious Freedom Restoration Act, 42 U.S.C. §

2000.   This analysis is inappropriate for a free exercise claim

involving intentional burdening of religious exercise.     The

"substantial burden" requirement was developed in the Supreme

Court's free exercise jurisprudence, and codified in the

Religious Freedom Restoration Act, 42 U.S.C. § 2000, in order to

balance the tension between religious rights and valid government

goals advanced by "neutral and generally applicable laws" which

create an incidental burden on religious exercise.   See
Employment Division, 494 U.S. at 894 (O'Connor, J. concurring)

("we have respected both the First Amendment's express textual

mandate and the governmental interest in regulation of conduct by

requiring the government to justify any substantial burden on

religiously motivated conduct . . . ").    See also Michael W.

McConnell, The Origins and Historical Understanding of Free

Exercise of Religion, 103 HARV. L. REV. 1409 (1990).     The rare

cases which address acts or laws which target religious activity

have never limited liability to instances where a "substantial

burden" was proved by the plaintiff.     See e.g. Lukumi Babalu Aye,

113 S. Ct. 2217.    Applying such a burden test to non-neutral

government actions would make petty harassment of religious

institutions and exercise immune from the protection of the First

Amendment.    A burden test is only necessary to place logical

limits on free exercise rights in relation to laws or actions

designed to achieve legitimate, secular purposes.    Because

government actions intentionally discriminating against religious

exercise a fortiori serve no legitimate purpose, no balancing

test is necessary to cabin religious exercise in deference to

such actions.

             Accordingly, the determinative issue for the trial

court on summary judgment was not whether the plaintiffs had

proffered sufficient evidence to create a material issue of fact

regarding the extent of the burden created -- a test which the

plaintiffs fail -- but instead whether there is sufficient
evidence to create a material issue of fact regarding whether the

defendants intentionally impeded the plaintiffs' religious

activity.   We therefore remand to the District Court for a

determination, based on consideration of the entire record, of

whether the plaintiff has introduced sufficient evidence on the

issue of intentional targeting to resist summary judgment.
                                III.

            The other issues raised by plaintiffs on appeal

constitute little more than a repackaging of the free exercise

count to fit other constitutional labels.    The Establishment

Clause of the First Amendment restricts government capacity to

favor a religion, or religion in general.    The plaintiffs contend

that the hostility displayed and the impediments imposed on their

own religious exercise translates into favoritism towards every

other religion.    This logic would transform every viable free

exercise action into an Establishment Clause claim.    Such a

circumstance finds no support in Establishment Clause

jurisprudence.

            A government action is subject to "strict scrutiny"

under the Equal Protection Clause of the Fourteenth Amendment if

it discriminates against a "suspect class," or if it interferes

with a "fundamental right."    Kardmas v. Dickinson Public Schools,

487 U.S. 450, 457-58 (1988).    The plaintiffs argue that the

violation of their fundamental right to free exercise of religion

constitutes an equal protection violation.   However, in order to
maintain an equal protection claim with any significance

independent of the free exercise count which has already been

raised, the plaintiffs must also allege and prove that they

received different treatment from other similarly situated

individuals or groups.   City of Cleburne v. Cleburne Living

Center, 473 U.S. 432 (1985); Andrews v. City of Philadelphia, 895

F.2d 1469, 1478 (3d Cir. 1990); Jordan v. Jackson, 15 F.3d 333,

355 (4th Cir. 1994)   The plaintiffs have proffered no evidence to

that effect.

           In addition to the alleged Free Exercise, Establishment

Clause, and Equal Protection claims, the plaintiffs state a

separate claim under 42 U.S.C. §§ 1983 and 1985 (3) for

"constitutional torts by and of themselves."   Brief of Appellants

at 31.   The plaintiffs must assert a specific federal

constitutional or statutory right in order to maintain a claim

under the civil rights laws.   See Albright v. Oliver, 114 S. Ct.

807, 811 (1994) ("[t]he first step in any [1983] claim is to

identify the specific constitutional right infringed").    The

plaintiffs have asserted several constitutional violations; they

cannot attach a "catch-all" tort claim as a fallback if those

specific constitutional claims fail.
                               IV.

          We will therefore reverse the District Court's grant of

summary judgment on the plaintiffs' free exercise claim and

remand that issue to the District Court for proceedings
consistent with this opinion.   We will affirm on all other

counts.
