                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-27-2009

Snell v. York
Precedential or Non-Precedential: Precedential

Docket No. 07-4439




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                                      PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT
               _____________

                   No. 07-4439
   (Consolidated with Nos. 07-4437 and 07-4438)
                 _____________

              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
                     _________

    Appeal from the United States District Court
      for the Middle District of Pennsylvania
           (D.C. Civil No. 06-cv-02133)
    District Judge: Honorable John E. Jones, III
                    __________

             Argued October 23, 2008
      Before: RENDELL, and SMITH, Circuit Judges,
              and POLLAK,* District Judge.

                   (Filed: April 27, 2009)




Randall L. Wenger, Esq. [ARGUED]
Dennis E. Boyle, Esq.
Suite 200
4660 Trindle Road
Camp Hill, PA 17011 Counsel for Appellants
  John McTernan; John R. Holman; Edward D. Snell

Donald B. Hoyt, Esq.
Blakey, Yost, Bupp & Rausch
17 East Market Street
York, PA 17401




__________________

      *Honorable Louis H. Pollak, Senior Judge of the United
States District Court for the Eastern District of Pennsylvania,
sitting by designation.




                              2
Frank J. Lavery, Jr., Esq.
James D. Young, Esq. [ARGUED]
Lavery, Faherty, Young & Patterson
225 Market Street, Suite 304
P. O. Box 1245
Harrisburg, PA 17108-0000
 Counsel 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
                           __________

                 OPINION OF THE COURT
                       __________

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


                              3
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 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.

                      I. BACKGROUND

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

                                 4
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


  1
    Snell testified that he merely approached Sponseller in the
alley to hand her a pamphlet and did not “run[] into or
obstruct[]” her. S.A. 258. At the preliminary hearing, Peggy

                               5
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 several Planned Parenthood


Welch also testified that she did not observe physical contact
between Snell and Sponseller, and that Sponseller and Planned
Parenthood personnel simply walked around Snell. S.A. 305.
Although Sponseller does not allege physical contact occurred,
she testified that Snell was “very close, very - right in our face.
That’s the way I would call it, right in our face. I mean, I’d say
- I don't think he meant anybody any harm. He was just
determined to get his point across whether we wanted to hear it
or not.” S.A. 315. Stephen Neubauer, a Planned Parenthood
volunteer, did not indicate Snell's physical proximity to
Sponseller but testified that Snell “positioned himself in front of
Ms. Welch and the other woman who was going in and
attempted to give them literature, and also in my opinion he was
blocking their way.” S.A. 295. Finally, Sergeant Camacho
testified that he observed “bumping” between Snell and
Sponseller or one of her escorts; however, no “serious” physical
contact occurred -- “it was just kind of like forcing the literature
on them and making some sort of physical contact.”

                                 6
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


   2
     Snell alleges that Sergeant Camacho “grabbed him [me]
from behind, [and] pulled his [my] arms around to the back.”
Appellant’s Br. at 7; S.A. 257. Sergeant Camacho denied doing
so, noting that Snell’s compliance with his instruction to place
his arms behind back made force unnecessary. S.A. 156.
  3
     For example, Neubauer testified that Snell “stepp[ed] into
the alley to accost another patient, whereupon he was arrested.”
S.A. 296. Welch also testified that Sergeant Camacho
intervened before Snell reached the second patron. S.A. 305-
306. Finally, Sergeant Camacho testified that, “He [Snell]
stepped into the alleyway. Once he did that I arrested him.”
S.A. 156.

                                7
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 (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.

                                 8
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, 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




                                 9
that serves no legitimate purpose.”4 18 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 that: his rights of free speech,
peaceful assembly,5 and religious expression were burdened by
the restriction placed on him and by his arrest; the restriction
was neither “neutral” nor “generally applicable”; there was no
compelling interest in safety, especially because the Planned


  4
    The District Court noted that Sergeant Camacho observed
Snell move into the path of individuals crossing Rose Alley and
make physical contact with these individuals. S.A. 31.
Accordingly, “[w]hen Sergeant Camacho observed Snell enter
the alley again,” Sergeant Camacho reasonably concluded that
Snell “intended to cause a public inconvenience or annoyance by
an act that serves no legitimate purpose.” S.A. 31.
  5
    Snell summarily references his claim of right of assembly,
Appellant’s Br. at 20, but does not set forth a separate argument
in his brief. For purposes of our analysis, we conclude that this
claim is encompassed in his free speech claim.

                               10
Parenthood escorts and patients routinely crossed the alley at the
same location; and, finally, less restrictive means existed to
protect public safety in the alley, including having Sergeant
Camacho direct traffic. Snell urges, moreover, that probable
cause was lacking for his arrest because he neither created a
hazardous condition nor intended to cause a public
inconvenience or annoyance.

            II. FIRST AMENDMENT CLAIMS

       We incorporate herein the discussion of the standards
applicable to Snell’s Free Exercise and Free Speech claims from
our opinion in McTernan v. City of York, No. 07-4437, filed
concurrently herewith.6 While the specific conduct here – on the
parts of both the protester and the police – differs somewhat
from the conduct alleged in McTernan, our concerns are quite
similar.

                       A. Free Exercise

       The issue as to whether the restriction enforced by
Sergeant Camacho was “neutral” and “generally applicable” is
more easily resolved than in McTernan’s case. Here, there is
uncontroverted evidence that Snell was treated differently than
others using the alley, namely Planned Parenthood escorts and


   6
    The basis of our jurisdiction, and the standard of review
applicable to the Court’s grant of summary judgment, are set
forth in McTernan v. City of York, No. 07-4437, which we
expressly incorporate herein.

                               11
patients.7 Prior to his encounter with Sponseller, and several
times thereafter, Snell was told that he could not enter the alley;
they were not. S.A. 156, 168, 256. Snell was admonished when
he approached Sponseller and the second patron in the alley;
they were not. Snell was arrested while disobeying Sergeant
Camacho’s order; they were not. S.A. 156. We conclude that in
Snell’s case, there is no question for a jury. No reasonable jury
could find that the restriction, enforced solely against Snell, was
“generally applicable.” 8


      7
      Emphasizing that Planned Parenthood volunteers were
nearby when Sergeant Camacho admonished Snell and other
pro-life advocates to stay out of Rose Alley, the District Court
reasoned that Sergeant Camacho intended the challenged
prohibition to apply to protesters and Planned Parenthood
personnel. The Court’s conclusion is controverted by Sergeant
Camacho’s description of the restriction and its target audience.
In his deposition, Sgt. Camacho acknowledged that he solely
directed protesters to stay out of the alley and permitted
volunteers to accompany patrons back and forth across the alley.
S.A. 156, 168, 256.
  8
    A restriction on religiously motivated expression is subject
to strict scrutiny unless it is “generally applicable” and
“neutral.” A regulation is not “neutral” if its “object . . . is to
infringe upon or restrict practices because of their religious
motivation.” Here, there is no evidence that the restriction was
motivated by hostility to Snell’s religious beliefs, as opposed to
safety concerns. Accordingly, the restriction complies with the
principle of “neutrality.” This conclusion flows from the

                                12
         If not generally applied, a restriction burdening
religiously motivated expression must satisfy strict scrutiny –
that is, it must serve a compelling government interest and must
be narrowly tailored to serve that interest. Church of the Lukumi
Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546 (1993);
Tenafly Eruv Ass’n, Inc. v. Borough of Tenafly, 309 F.3d 144,
172 (3d Cir. 2002). Relying on precedent and the specific facts
here, the District Court concluded that the restriction served a
“compelling” government interest – promoting traffic safety and
the free flow of cars and pedestrians in the alley. For its
conclusion, the Court cited Schenck v. Pro-Choice Network of
Western New York, 519 U.S. 357, 369, 375-76 (1997) and
Madsen v. Women’s Health Ctr., 512 U.S. 753, 767-68 (1994),
where the Supreme Court, applying intermediate scrutiny,
identified as “significant” the government’s interest in
promoting vehicular and pedestrian safety and traffic flow. The
District Court also emphasized certain characteristics of the
alley exacerbating the safety hazard presented, including its
narrow physical dimensions and the presence of heavy trucks –
conditions that twice nearly resulted in accidents.

     Our concerns here mirror those expressed in McTernan.
Was the safety interest vis-à-vis Snell’s activity truly
compelling, given the frequency with which pedestrians and


discussion of Snell’s free speech claim below. We do not repeat
that analysis here. Although the District Court’s grant of
summary judgment on the “neutrality” prong was correct, we
apply strict scrutiny because a reasonable jury could conclude
that the restriction was not “generally applicable.”

                               13
drivers were in, and crossing, the alley? Was Snell, who
engaged patrons crossing the alley in exactly the same location
as Clinic escorts, doing anything more dangerous than Clinic
escorts who were granted unfettered access to the alley? Did
Snell’s complete exclusion from the alley truly represent the
least restrictive means of avoiding violent altercations and
promoting vehicular safety? These are questions for the jury,
which should not have been decided on summary judgment.

       We pause specifically to address two governmental
interests asserted by Sergeant Camacho, which were not urged
by the defendant officer in McTernan: ensuring patient access
to the Clinic and protecting clients from physical harassment.
Appellant’s Br. at 28. Neither interest, we conclude, is
“compelling” on the facts before us.

       As to Clinic access, Sergeant Camacho failed to
demonstrate that Snell significantly impeded access to the
Facility. It is undisputed that Snell did not “actually stop”
Sponseller, and that Sponseller was only momentarily delayed
in her progress to the Clinic. S.A. 155-56, 305. Sponseller
acknowledged, moreover, that Snell’s overarching aim was not
to block her ingress to the Clinic but rather to communicate his
perspective – to “get his point across.” S.A. 315. In rejecting
Sergeant Camacho’s access argument, we also contrast Snell’s
conduct with the impediments addressed in other abortion
protest cases, where hundreds of advocates imposed physical
blockades on clinic driveways and entrances. See Madsen, 512
U.S. at 758 (upholding fixed buffer zone around reproductive
health clinic, where throngs of up to 400 protesters would
congregate in the clinic’s driveways, surround clinic patients,

                              14
and picket outside of clinic employees’ private residences).9

       We are also unpersuaded that the “contact” between Snell
and Sponseller – brief, isolated, and without attendant injury –
poses a “compelling” public safety threat, justifying the
challenged restriction. Sergeant Camacho, conceding the
contact was de minimis, characterized the encounter as not
“serious” and “just kind of like forcing the literature on them
and making some sort of physical contact.” S.A. 155-56. The
essentially peaceful nature of the exchange is confirmed by
Sponseller, who emphasized that Snell did not “mean[] anybody
harm,” and that she simply walked around Snell. S.A. 305, 315.
Further, no pattern of violence or unruliness at the Clinic is
alleged. The handful of protesters typically present at the Clinic
are generally peaceful. The scene here, therefore, contrasts


   9
     See Schenck, 519 U.S. at 362-63 (upholding fixed buffer
zone around reproductive health clinic where dozens of
protesters would conduct “large-scale blockades” of clinic
driveways and entrances); New York ex rel. Spitzer v. Operation
Rescue Nat’l, 273 F.3d 184, 192 (2d Cir. 2001) (upholding
limited buffer zone around reproductive health clinic where
protesters shouted at close range, blocked vehicular and
pedestrian access until clients “gave up,” and “distracted
oncoming cars in aggressive ways”); Nat’l Org. for Women v.
Operation Rescue, 37 F.3d 646, 649 (D.C. Cir. 1994) (upholding
injunction prohibiting obstructing access to reproductive health
clinic where protesters engaged in day-long physical blockades
of clinic, “creating a risk of physical or mental harm to
patients.”).

                               15
sharply with the chaos described at the reproductive health clinic
in Schenck, 519 U.S. at 362-63. There, scores of protesters
threw themselves on top of the hoods of cars, grabbed pregnant
women and volunteers with “varying levels of belligerence,”
and elbowed and spit on clinic volunteers – tactics that often
triggered physical altercations. Id. The scene here, moreover,
differs markedly from that depicted in Madsen, where throngs
of up to 400 protesters, congregating outside a reproductive
health clinic, overwhelmed law enforcement. 512 U.S. at 758.
We conclude that the brief, isolated encounter alleged here,
involving de minimis contact by a single protester against a
single client, does not establish a “compelling” public safety
hazard as a matter of law.

       Whether the interests asserted by the government,
individually or in combination, are “compelling” is thus properly
an issue for jury determination. Finding the District Court’s
grant of summary judgment on Snell’s Free Exercise claim to be
error, we will remand the issue for jury decision.

                        B. Free Speech

       Our concerns with the District Court’s analysis of the free
speech issue in McTernan are also present here. Although we
conclude that the challenged restriction was content-neutral,
advanced an important governmental interest, and left adequate
alternatives for communication of information, we have
substantial doubt that it complied with the “tailoring”
requirement mandated under heightened scrutiny. For the
reasons set forth below, we will thus remand the issue for jury
determination.

                               16
                      1. Content-Neutral

       As to content neutrality, as in McTernan, there is no
evidence of police hostility to Snell’s pro-life message. While
it is clear that Snell was treated differently than Planned
Parenthood personnel, Snell fails to identify statements or
conduct by Sergeant Camacho demonstrating animus to his
substantive views. If a jury were to conclude that safety
concerns did not motivate Sergeant Camacho, could they
conclude that his treatment of Snell was prompted by
disagreement with Snell’s pro-life message? We think not. As
we noted in our opinion in McTernan, there must be some
evidence tending to show that Sergeant Camacho’s articulated
concern for traffic safety was a pretext for viewpoint
discrimination. Here, that would be a matter of unsupported
conjecture.

 2. Narrowly Tailored to Serve a Significant Government
                         Interest

        Under the second prong of Ward, a content-neutral
restriction on the time, place, or manner of speech must serve a
significant government interest and be narrowly tailored to serve
that interest. Ward v. Rock Against Racism, 491 U.S. 781, 791
(1989) (quoting Clark v. Cmty. for Creative Non-Violence, 468
U.S. 288, 293 (1984)).

       (i) Significance of the Governmental Interest

       The District Court determined that the restriction


                               17
enforced by Sergeant Camacho promoted traffic safety and
traffic flow in Rose Alley – interests that the Court found
“compelling.” We rejected that conclusion in our analysis of
Snell’s Free Exercise claim, but find that the government
interest in protecting public safety and ensuring the free flow of
traffic in Rose Alley, while not “compelling,” was real and
could be termed, “significant.”

        Our reasoning here largely mirrors our analysis in
McTernan, where we addressed a similar factual situation.
There, we underscored the risk of collisions between drivers,
clients, personnel, and protesters in Rose Alley. That hazard, we
found, was exacerbated by the specific characteristics of Rose
Alley, including its narrow physical dimensions and the
presence of large trucks. These concerns, centering on the
layout and use of the alley, apply with equal force here.
Accordingly, we conclude that the government interest in
promoting traffic safety and traffic flow in Rose Alley, while not
“compelling,” were “significant.” 10

                    (ii) Narrowly Tailored

        We now consider whether the challenged restriction was


   10
      Finding that the second Ward element is satisfied here
because the government had a “significant” interest in
promoting traffic safety and traffic flow in Rose Alley, we need
not decide whether the second governmental interest asserted –
preventing physical altercations in the alley – is also
“significant.”

                               18
narrowly tailored. In McTernan, we observed that speech
restrictions embodied in the form of oral police directives
present a greater risk of arbitrary enforcement than legislative
enactments, justifying a “more searching” review. Accordingly,
in McTernan, we applied heightened rather than intermediate
scrutiny. Similar concerns support the application of heightened
scrutiny here. As in McTernan, the challenged restriction here
was embodied in oral directive, issued ad hoc by Sergeant
Camacho without reference to any formal administrative or
policy channels.11 Accordingly, the directive here presents a
similar risk of arbitrary or unreasonable enforcement. Hence,
we will apply heightened scrutiny, upholding the restriction only
if it “burden[s] no more speech than necessary” to serve the
interest asserted. Madsen, 512 U.S. at 765.

       Here, we cannot conclude that the challenged restriction
“burden[s] no more speech than necessary” to protect traffic
safety in Rose Alley as a matter of law. Madsen, 512 U.S. at
765. Snell identifies a plausible alternative to safeguard
pedestrians and drivers without curtailing advocates’ First
Amendment rights. Sergeant Camacho, he urges, could have
directed traffic at the intersection of Beaver Street and Rose


  11
     Although Sergeant Camacho allegedly consulted with the
Assistant District Attorney, Bill Graff, about whether a protester
who physically contacted a client could be arrested for
disorderly conduct, there is no allegation or evidence that Graff
advised Sergeant Camacho on traffic abatement measures in the
alley, including restricting pedestrian access to Rose Alley. S.A.
156.

                               19
Alley. As we explained in McTernan, this approach would have
enabled Snell and other advocates to communicate with clients
in the alley safely. The District Court did not address this
alternative but concluded that the restriction was “narrowly
tailored.” It was error for the District Court to conclude that
excluding protesters from Rose Alley necessarily constituted the
least restrictive means of protecting public safety.

        The significant fact issues present here also preclude
summary judgment on the “tailoring” requirement. A restriction
cannot be “narrowly tailored” in the abstract; it must be tailored
to the particular government interest asserted. Only when the
contours of that interest are clear may we decide whether the
means selected to accomplish it have been “narrowly tailored.”
Here, Sergeant Camacho cited traffic safety to justify restricting
access to Rose Alley. We previously identified traffic safety as
a “significant” governmental interest, but query whether the
safety issues are sufficiently defined, on the record before us, to
sustain summary judgment that the restriction was “narrowly
tailored” to that interest. We conclude that significant fact
questions persist, precluding summary judgment on this issue.
As we noted in McTernan, largely unknown is how drivers,
advocates, and clinic personnel interacted in the alley. Absent
this information, we are hard pressed to conclude, as a matter of
law, that Sergeant Camacho selected the “least burdensome”
alternative to promote traffic safety in the alley.

        Other evidence confirms that a triable issue existed, and
that summary judgment was improper on the issue of
“tailoring.” The three appellee-officers assigned security detail
at Rose Alley adopted distinct approaches to address the safety

                                20
hazard allegedly created by protesters’ activities in the alley.
Sergeant Camacho excluded advocates outright from the alley,
but granted Planned Parenthood personnel unfettered access to
it. S.A. 156, 168, 256. Officer Koltunovich, by contrast,
cautioned advocates about potential safety hazards but did not
restrict access. Holman Appendix (“H.A.”) 188-89. Finally,
Officer Barth prohibited individuals from lingering or walking
“aimlessly” in the alley. M.A. 165-66, 183, 220, 224. These
divergent approaches only serve further to undermine our
confidence that Sergeant Camacho selected the “least
burdensome” alternative to promote traffic safety in the alley.

       Nor are we persuaded that prohibiting protesters from
entering Rose Alley represented the least restrictive means of
avoiding confrontations between patients and protesters and
ensuring patient access to the Clinic. As we noted, there is no
evidence of physical altercations among clients, volunteers, and
the handful of protesters typically present at the Clinic.
Although Sergeant Camacho maintains that Snell made physical
contact with Sponseller, he concedes that the contact was
momentary, harmless, and did not impede Sponseller’s progress
to the Clinic. There is no evidence that Sergeant Camacho
could not have managed a potential dispute between a protester
and a patron. On this sparse record, we cannot conclude that the
challenged prohibition represented the least restrictive means of
preserving order at the Clinic. Accordingly, we will remand the
issue for jury determination.

                   3. Adequate Alternatives

       The final Ward requirement is that the restriction leave

                               21
ample opportunities for communication of information. The
District Court concluded that Snell, capable of espousing his
views from several public sidewalks surrounding the Clinic,
possessed adequate alternatives to convey his pro-life message.
S.A. 29. Snell’s contention on appeal is a narrow one. He
expresses dissatisfaction with the impediments to speech that he
encounters – Planned Parenthood personnel and railings at the
rear ramp of the facility that purportedly block his access to the
patrons themselves. His argument, that the alley presents the
“best opportunity . . . momentarily [to] speak and hand out
literature as they [patrons] are crossing the street,” is merely
that, argument. Appellant’s Br. at 15-16 (emphasis added).
There is no evidence that escorts interfered with Snell’s efforts
to distribute literature to patrons, or that the public sidewalk in
front of the Clinic did not afford Snell equivalent opportunities
to converse “momentarily” with clients. As to the “blockage”
due to the railings, we are unpersuaded that a simple metal
railing poses an impediment to speech. Hence, the District
Court properly concluded that this aspect of Ward was
satisfied.12




          III. FOURTH AMENDMENT CLAIMS

       Snell also contends that Sergeant Camacho arrested him


  12
     We do not address qualified immunity or Snell’s right to
specific relief, as these issues were not decided by the District
Court. S.A. 32-33.

                                22
for disorderly conduct without probable cause, and applied
excessive force, in violation of his Fourth Amendment rights.
We address Snell’s arguments in turn.

                     A. Unlawful Arrest

        Snell argues that his arrest for disorderly conduct was
unsupported by probable cause. Under Pennsylvania law,
disorderly conduct requires proof that a person (1) “with intent
to cause public inconvenience, annoyance, or alarm” (2) “creates
a hazardous or physically offensive condition by any act” that
(3) “serves no legitimate purpose of the actor.” 18 Pa. C.S. §
5503(a)(4). Snell maintains that he merely intended to distribute
literature – not to cause public harm or inconvenience – and that
his peaceful distribution of literature in Rose Alley did not
create a “hazardous or physically offensive condition.” The
District Court concluded that Sergeant Camacho had probable
cause to arrest Snell for disorderly conduct, after Snell twice
ignored Camacho’s warning to stay out of the alley. However,
reviewing the evidence in the light most favorable to Snell, we
identify genuine fact issues, precluding summary judgment.
AT&T v. JMC Telecom, LLC, 470 F.3d 525, 530 (3d Cir. 2006).

       In assessing the presence of probable cause, a court must
determine the fact pattern the officer encountered and, in light
of that, whether the arresting officer had “probable cause to
believe that a criminal offense has been or is being committed.”
Sharrar v. Felsing, 128 F.3d 810, 818 (3d Cir. 1997). The Court
has explained the standard as whether, “at the moment the arrest
was made, the officers had probable cause to make it.” Beck v.
Ohio, 379 U.S. 89, 91 (1964) (quoted in U.S. v. Burton, 288

                               23
F.3d 91, 98 (3d Cir. 2002)). In other words, “whether at that
moment the facts and circumstances within their knowledge and
of which they had reasonably trustworthy information were
sufficient to warrant a prudent man in believing that the
petitioner had committed or was committing an offense.” Id.
“Mere suspicion,” however, is insufficient. Burton, 288 F.3d at
98 (quoting Orsatti v. N.J. State Police, 71 F.3d 480, 482-83 (3d
Cir. 1995)).

       Notwithstanding the District Court’s conclusion that
Sergeant Camacho acted reasonably, we are not so sure. For
one thing, we cannot discern exactly what occurred. While the
various accounts as to the encounter with Sponseller are
confusing, the evidence as to what happened thereafter – which
was the basis for the arrest – is even less clear. Did Snell
approach a car, or was the second patron on foot? What was his
exact distance from that patron? What aspect of what he did
created a “hazardous or physically offensive” condition? 13


  13
     Regarding the initial encounter with Sponseller, it is also
unclear whether Snell actually touched Sponseller or impeded
her progress to the Clinic. Snell testified that he merely
approached Sponseller in the alley to hand her a pamphlet and
did not “run[] into or obstruct[]” her. S.A. 258. At the
preliminary hearing, Peggy Welch also testified that she did not
observe physical contact between Snell and Sponseller.
S.A. 305. In any event, it is undisputed that Snell did not
“actually stop” Sponseller, and that Sponseller, walking around
Snell, was only momentarily delayed. S.A. 305, 156.
       As noted, approximately ten to twenty-five minutes after

                               24
Clarification of the specific factual scenario must precede the
probable cause inquiry. We conclude that determining these
facts was properly the job of the jury, and that a rational jury
could find that probable cause was lacking for Snell’s arrest
because he did not create a “hazardous or physically offensive”
condition.

       The District Court also apparently relied on the
possibility of physical aggression by Snell – that is, the Court
found that Sergeant Camacho reasonably perceived a possibility
that Snell would touch the second patron because of his earlier,
alleged conduct towards Sponseller:

       Sergeant Camacho observed Snell enter the alley
       and move into the path of individuals attempting


the encounter with Sponseller, a second patron entered the alley
on foot, accompanied by Planned Parenthood escorts. S.A. 169.
When Snell stepped off the curb to engage her, Sergeant
Camacho immediately arrested him for disorderly conduct. It is
uncontroverted that, at the time of his arrest, Snell was several
feet from the patron and her escorts. S.A. 169-70, 296, 305-306.
 Snell did not touch the second patron or impede her progress
towards the Clinic. He did not verbally harass or threaten her.
We assume for purposes of summary judgment that the second
patron was on foot, and there is no indication that any other cars
were in the alley at the time. On these facts, a rational jury
could conclude that Snell did not create a “hazardous or
physically offensive condition,” and that Sergeant Camacho’s
contrary determination was unreasonable.

                               25
       to access the facility, and perceived that Snell
       made physical contact with these individuals.
       Sergeant Camacho then gave Snell yet another
       warning. When Sergeant Camacho observed
       Snell enter the alley again, he was justified in
       reasonably believing that Snell intended to cause
       public inconvenience, annoyance, or harm by
       creating a hazardous or physically offensive
       condition by an act which serves no legitimate
       purpose.

S.A. 31 (emphasis added). However, the disorderly conduct
statute, by its terms, requires the “creation,” rather than a
possibility, of a “hazardous or physically offensive” condition.
Accordingly, a rational jury could find that Officer Camacho
lacked probable cause to arrest him.14 Thus, we will remand this
issue for determination by a jury.




                      B. Excessive Force



  14
     Conviction for disorderly conduct requires proof that the
actor’s conduct “serve[d] no legitimate purpose.” Snell
contends that his advocacy in the alley served a legitimate
purpose – communication of his pro-life message. We conclude
in passing, however, that an individual’s expression of a
personally-held belief does not constitute a “legitimate purpose”
that would excuse otherwise disorderly conduct.

                               26
         Snell contends that his Fourth Amendment rights were
also violated when Sergeant Camacho applied excessive force.
Snell abandons the argument, urged before the District Court,
that Sergeant Camacho should be liable for Officer Hernandez’s
improper application of handcuffs. Appellant’s Br. at 29-30.
Snell’s sole contention on appeal, instead, is that the force
applied was excessive per se because the initial arrest was
illegal:

       The trial court also erred in finding that Officer
       Camacho is not responsible for excessive force
       since it was another officer who put Mr. Snell’s
       handcuff’s (sic) on too tight. However, it is not
       simply the handcuffs that are at issue, but all force
       used against Mr. Snell as a result of Officer
       Camacho arresting him. Any force used against
       Mr. Snell in the circumstances was excessive.

Appellant’s Br. at 29-30. Hence, Snell contends that the force
applied was excessive solely because probable cause was
lacking for his arrest. We have rejected similar efforts to
bootstrap excessive force claims and probable cause challenges.
Robinson v. Fetterman, 378 F.Supp.2d 534, 544 (E.D. Pa. 2005)
(citing Bodine v. Warwick, 72 F.3d 393, 400 & n.10 (3d Cir.
1995) (rejecting conflation of claims for false arrest and
excessive force, noting that “merely because a person has been
falsely arrested does not mean that excessive force has been
used.”); see Beier v. City of Lewiston, 354 F.3d 1058, 1064 (9th
Cir. 2004) (citing Arpin v. Santa Clara Valley Transp. Agency,
261 F.3d 912, 921-22 (9th Cir. 2001) (“Because the excessive
force and false arrest factual inquiries are distinct, establishing

                                27
a lack of probable cause to make an arrest does not establish an
excessive force claim, and vice-versa.”)). Accordingly, we
conclude that the District Court properly granted summary
judgment on Snell’s excessive force claim.

          IV. MUNICIPAL LIABILITY CLAIMS

        Finally, Snell contends that the District Court erred in
dismissing his Monell claims for municipal liability against the
City of York. Monell v. New York City Dep’t of Social Servs.,
436 U.S. 658 (1978). Snell’s complaint is more skeletal than
McTernan’s. Whereas McTernan pled that he and other
protesters had been prohibited from entering the ally on multiple
occasions by different York officers, Snell solely alleges
restrictions imposed by a single officer – Sergeant Camacho –
on his use of the alley. M.A. at 50. Incorporating our analysis
in McTernan, we conclude that the District Court properly
dismissed Snell’s municipal liability claims against the City and
Defendants Brenner, Whitman, and Camacho in their official
capacity.

                      V. CONCLUSION

        In light of the foregoing, we will AFFIRM the Order of
the District Court as to its dismissal of appellant’s municipal
liability claim and his official capacity claims against Sergeant
Camacho, Mayor Brenner, and Police Commissioner Whitman.
Further, we will VACATE the Order of the District Court as to
the other causes of action and REMAND to the District Court
for further proceedings in accordance with this Opinion.


                               28
