                                                                                                                           Opinions of the United
2000 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-28-2000

Paff v. Kaltenbach
Precedential or Non-Precedential:

Docket 99-6025




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"Paff v. Kaltenbach" (2000). 2000 Decisions. Paper 36.
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Filed February 28, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NO. 99-6025

JOHN PAFF; JAMES TIMOTHY KONEK, Individuals,
Appellants

v.

GEORGE KALTENBACH, in his individual and official
capacities; JOHN DOES 1-3; THE TOWNSHIP OF
EAST BRUNSWICK

On Appeal From the United States District Court
For the District of New Jersey
(D.C. Civil Action No. 97-cv-01197)
District Judge: Honorable Joseph A. Greenaway, Jr.

Argued June 18, 1999

BEFORE: NYGAARD, COWEN and STAPLETON,
Circuit Judges

(Filed February 28, 2000)

       Richard F. Collier, Jr.
       Christopher Walsh (Argued)
       Collier, Jacob & Mills
       580 Howard Avenue
       Corporate Park III
       Somerset, NJ 08873
        Attorneys for Appellants
       George Wilgus, III (Argued)
       Lenox, Socey, Wilgus, Formidoni
        & Casey
       3131 Princeton Pike
       Trenton, NJ 08648
        and
       Joseph J. Benedict
       Benedict & Altman
       247 Livingston Avenue
       New Brunswick, NJ 08901
        Attorneys for Appellees

OPINION OF THE COURT

STAPLETON, Circuit Judge:

Appellants are two political activists who were arrested
for criminal trespassing while distributing Libertarian Party
literature outside the post office in East Brunswick, New
Jersey. They brought suit against Kaltenbach, the arresting
officer, under 42 U.S.C. S 1983, alleging a violation of their
constitutional rights, as well as violations of state tort law.
The District Court entered summary judgment for the
defendant police officer on grounds of qualified immunity.
We will affirm.

I. FACTS AND PROCEDURAL HISTORY

Plaintiff-Appellants John Paff and James Konek are
officers of the Libertarian Party of Somerset and Middlesex
Counties in New Jersey. The Libertarian Party is a national
organization that advocates a free-market economy and
seeks to "roll back the size of government by replacing
taxes with voluntary user fees for governmental services."
To this end, the Party sponsors peaceful demonstrations
each year on April 15, tax day, to protest the tax burdens
imposed on American citizens and illustrate the Party's
opposition to taxes and to the Internal Revenue Service.
The demonstrations are held each April 15th evening,
throughout the United States, in front of post office
buildings where taxpayers go to mail their tax returns.

                                  2
In order to assist in the organization of these rallies, the
Libertarian National Committee has developed a "Million
Dollar Tax Day Outreach" package, which is provided to
Party representatives and contains tips on how to ensure
an "effective outreach-oriented protest." The mainstay of the
protest is the distribution of mock $1,000,000 bills, which
are printed to resemble a Federal Reserve note and, on the
reverse side, prominently state: "The U.S. Government
Spends $1,000,000 Every Five Seconds." The fake bill also
contains additional information about federal government
appropriations and a coupon designed to be clipped and
mailed in for more information about the Libertarian Party.

The Outreach Package, designed for the organizers of
such events, contains information about printing these
leaflets, selecting a post office, managing volunteers,
distributing press releases, etc. In a section entitled
"Problems," the package advises leafletters not to block the
entrance of the post office; to pick up dropped leaflets; to
hand out literature to people as they are leaving, rather
than entering, the post office; and to avoid "unnecessary
disputes" with post office officials. In the event post office
officials attempt to remove the demonstrators, the package
contains a "Legal Memo" expressing the view that the
demonstrators have a legal right to distribute literature on
post office property. In this instance, Paff, Chairman of the
local chapter's Political Awareness Committee, also
personally researched the relevant law and concluded that
their planned tax day protest did not violate postal
regulations and was in fact protected by the First
Amendment.

On April 10, 1996, Paff mailed a letter to the Postmaster
of the East Brunswick, New Jersey Post Office, signed by
the local party chairperson, advising the Postmaster that
they planned to conduct a tax day protest "on the grounds
of your facility on the evening of April 15th," and enclosing
a press release describing the event. The letter further
explained they had been advised by the national party
leaders that the planned activities were completely lawful
and asked that "[i]f you have a different opinion on this
matter, please advise me prior to the event." The
Postmaster did not reply.

                               3
On April 15, 1996, the East Brunswick postal branch
remained open until midnight to permit its patrons to file
their 1995 tax returns. At approximately 9:00 p.m. that
evening, Paff, Konek, and three other tax protesters stood
on the postal sidewalk area, between the parking lot and
the front door of the post office. As the postal customers
exited the building, Paff, Konek, or another party member
approached some of them and handed them a prepared
leaflet.

Shortly after the commencement of the leafleting activity,
the Postmaster, Steve Leddy, emerged from the post office
and told Paff that he and the other protesters would have
to move to the public right-of-way, along Cranbury Road.
The East Brunswick postal building is set back
approximately 75 feet from the nearest thoroughfare,
Cranbury Road, which has no adjoining sidewalk. Postal
customers enter the building via an access road that
connects with Cranbury Road and depart the facility
through another access road. As such, the sidewalk area
where plaintiffs stood is designed specifically to facilitate
access by postal customers to the post office from the
parking area. Two newspaper vending machines are located
on this sidewalk area.

Upon being instructed to move to Cranbury Road, Paff
explained to the Postmaster that he had researched the
matter and that he and his fellow protesters had a
constitutional right to remain there. Leddy then re-entered
the postal facility and proceeded to call the police. Paff,
Konek, and the others continued to distribute leaflets.

Shortly thereafter, Officers Kaltenbach and Koslowski
were dispatched to the scene. Upon their arrival, Leddy
introduced himself, identified the protesters, and informed
the officers that he had instructed the protesters to move to
the public thoroughfare along Cranbury Road, but they had
refused. Leddy told the officers that, by using the postal
sidewalk, the protesters were a potential obstruction to
customers entering and exiting the building on postal
business. Kaltenbach told Leddy that if the protesters
refused to move, and if Leddy would sign a complaint,
Kaltenbach would arrest them. Leddy agreed to sign a
complaint.

                                4
Kaltenbach then told the protesters that they could move
to the public right-of-way beside Cranbury Road, but if they
remained on the postal sidewalk, they would be arrested.
Paff explained that he and his fellow protesters had a
constitutional right to distribute leaflets in front of the post
office building. Kaltenbach repeated that if they did not
move, he would arrest them. Paff said that he was the
"designated arrestee" and that Kaltenbach should arrest
him because he would not move; thereafter, all of the
protesters except Paff and Konek left the area.

Kaltenbach then called his lieutenant and explained the
situation, indicating that he was going to have to arrest two
of the protesters for trespass. The lieutenant told
Kaltenbach to bring the Postmaster back to headquarters to
sign the complaint. Kaltenbach proceeded to arrest both
Paff and Konek and brought them back to police
headquarters, along with Postmaster Leddy. Kaltenbach
also arranged for Konek's car, which was parked at the
postal facility, to be towed and impounded. At the
lieutenant's direction, Kaltenbach himself signed the
complaints, charging Paff and Konek with defiant
trespassing, in violation of N.J. Stat. S 2C:18-3(b)(1).1 After
their arrest and booking, bail was set at $5,000, Paff and
Konek posted bail and were released at 3:00 a.m. the next
morning, April 16, 1996.

On September 17, 1996, at the request of the East
Brunswick prosecutor, the East Brunswick Township
Municipal Court dismissed the charges against Paff and
Konek. The prosecutor explained that, although Leddy
initially requested police assistance and indicated his
willingness to sign the complaints for the arrest of Paff and
Konek, Leddy thereafter learned of an internal Postal
Service policy not to prosecute trespassers unless there has
been a physical obstruction of the postal facility.
_________________________________________________________________

1. The defiant trespass statute provides, in pertinent part, that a
"person
commits a petty disorderly offense if, knowing that he is not licensed or
privileged to do so, he enters or remains in any place as to which notice
against trespass is given by . . . actual communication to the actor."
N.J.
Stat. S 2C:18-3(b)(1) (West 1999).

                               5
Paff and Konek subsequently brought suit in U.S. District
Court against Kaltenbach, alleging violations ofS 1983 and
state tort law. Specifically, plaintiffs alleged that their arrest
violated their First Amendment right to distribute leaflets
on the post office sidewalk; that Kaltenbach arrested them
without probable cause, in violation of the Fourth
Amendment; that Kaltenbach participated in setting
excessive bail in violation of the Eighth Amendment; and
that Kaltenbach's impoundment of Konek's car amounted
to a deprivation of property without due process in violation
of the Fourteenth Amendment. In addition, plaintiffs
presented common law claims against Kaltenbach for false
arrest, malicious prosecution, and conversion (of Konek's
vehicle).

Following discovery, the plaintiffs moved for summary
judgment as to liability against Kaltenbach, and Kaltenbach
filed a cross-motion for summary judgment on all claims
against him. The District Court granted summary judgment
to plaintiffs only on their claim that the impoundment of
Konek's vehicle was improper. As to plaintiffs' First
Amendment claim, the Court found that plaintiffs had a
right, protected by the First Amendment, to leaflet on the
postal sidewalk. The Court granted summary judgment to
Kaltenbach, however, because it found he was entitled to
qualified immunity. As to plaintiffs' Fourth Amendment
claim, the Court found that, based on the advice
Kaltenbach received from Leddy, he had probable cause to
arrest plaintiffs. On all remaining claims, the District Court
also granted summary judgment to Kaltenbach.2

This appeal followed. This Court exercises plenary review
over a District Court's entry of summary judgment,
including its determination of a law enforcement officer's
entitlement to qualified immunity. See In re: City of
Philadelphia Litigation, 49 F.3d 945, 960 (3d Cir. 1995).
_________________________________________________________________

2. In addition to the First and Fourth Amendment claims discussed
herein, plaintiffs make two other assertions of error, which we find to be
without merit. Specifically, plaintiffs argue that the District Court
erred
in failing to find that (1) Kaltenbach falsely arrested and maliciously
prosecuted plaintiffs, thereby entitling plaintiffs to punitive damages;
and (2) Kaltenbach violated plaintiffs' Eighth Amendment rights by
imposing an excessive bail requirement on them.

                               6
II. THE FIRST AMENDMENT CLAIM

Under the doctrine of qualified immunity, government
officials performing discretionary functions are"shielded
from liability for civil damages insofar as their conduct does
not violate clearly established statutory or constitutional
rights of which a reasonable person would have known."
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Under
Siegert v. Gilley, 500 U.S. 226, 232 (1991), before a court
even addresses a claim of qualified immunity, however, it
first should determine whether the facts alleged by the
plaintiff constitute a "violation of a constitutional right at
all." In this case, the District Court determined that, under
Int'l Society for Krishna Consciousness, Inc. v. Lee , 505 U.S.
672 (1992) ("Lee") and United States v. Kokinda, 497 U.S.
720 (1990), Paff and Konek had a constitutional right under
the First Amendment to distribute political literature on
postal property and that the facts alleged revealed a
violation of that right. Because appellees did not cross-
appeal this determination, the only issue before us on
appeal is the propriety of the District Court's ruling that
Kaltenbach was entitled to qualified immunity. See Assaf v.
Fields, 178 F.3d 170, 174 (3d Cir. 1999).

A court presented with a claim of qualified immunity
must examine both the law that was clearly established at
the time of the alleged violation and the facts available to
the official at that time, and must then determine, in light
of both, whether a reasonable official could have believed
his conduct was lawful. See Good v. Dauphin County Social
Serv. for Children and Youth, 891 F.2d 1087, 1092 (3d Cir.
1989). Accordingly, we first examine the state of the
relevant law at the time of the arrest of both Paff and Konek
and then turn to an analysis of the information available to
Kaltenbach at that time. The ultimate issue will then be
whether, given the established law and the information
available to Kaltenbach, a reasonable law enforcement
officer in Kaltenbach's position could have believed that his
conduct was lawful.

The Supreme Court has "adopted a forum analysis as a
means of determining when the Government's interest in
limiting the use of its property to its intended purpose
outweighs the interest of those wishing to use the property

                                7
for other purposes. Accordingly, the extent to which the
Government can control access depends on the nature of
the relevant forum." Cornelius v. NAACP Legal Defense &
Educational Fund, Inc., 473 U.S. 788, 800 (1985). When the
relevant public property is determined to be a "non-public
forum," rather than an "open forum" or a"designated
forum," the government has greater freedom to restrict
speech. Perry Educ. Ass'n v. Perry Local Educators' Ass'n,
460 U.S. 37 (1983).

In United States v. Kokinda, 497 U.S. 720 (1990), the
Supreme Court upheld the constitutionality of postal
regulations that prohibited the solicitation of"alms and
contributions" on post office property.3 In the course of its
analysis, a four-Justice plurality determined that a post
office sidewalk was a non-public forum. The sidewalk, like
the sidewalk here, was located between the parking lot and
the post office, at some distance from the nearby road, and
was constructed solely to assist patrons of the post office.4
_________________________________________________________________

3. In full, the postal regulation upheld in Kokinda provides:

         Soliciting alms and contributions, campaigning for election to any
         public office, collecting private debts, commercial soliciting and
         vending, and displaying or distributing commercial advertising on
         postal premises are prohibited.

39 C.F.R. S 232.1(h)(1) (1989).

4. Rejecting the argument that the postal sidewalk is indistinguishable
from the municipal sidewalk that runs along side the road, the Kokinda
Court explained:

         The postal sidewalk at issue does not have the characteristics of
         public sidewalks traditionally open to expressive activity. The
         municipal sidewalk that runs parallel to the road in this case is a
         public passageway. The Postal Service's sidewalk is not such a
         thoroughfare. Rather, it leads only from the parking area to the
         front door of the post office. Unlike the public street described
in
         Heffron v. International Society for Krishna Consciousness, Inc.,
452
         U.S. 640 (1981), which was "continually open, often uncongested,
         and constitute[d] not only a necessary conduit in the daily affairs
of
         a locality's citizens, but also a place where people[could] enjoy
the
         open air or the company of friends and neighbors in a relaxed
         environment," id., at 651, the postal sidewalk was constructed
solely
       to provide for the passage of individuals engaged in postal
business.

                               8
Because the sidewalk was a non-public forum, the plurality
concluded that the "government's decision to restrict access
. . . need only be reasonable." Id. (quoting Cornelius, 473
U.S. at 806). The prohibition was found to be reasonable
"because solicitation is inherently disruptive of the Postal
Service's business." Id. at 732. Justice Kennedy,
concurring, found the regulations constitutional even if the
sidewalk was a public forum, as the dissenters contended.

In United States v. Bjerke, 796 F.2d 643 (3d Cir. 1986),
this Court foreshadowed the ruling in Kokinda when it
upheld the constitutionality of the same postal regulation.
Like the Kokinda plurality, the Bjerke court also found the
postal sidewalk at issue in that case to be a non-public
forum and rejected the argument that the presence of
"newspaper vending machines and a gumball machine
encouraging charitable contributions" converted the area
into a public forum. As the court there explained,"that the
government permits selective access to a nontraditional
forum does not manifest an intent to designate an area a
public forum for all expressive purposes." Id. at 649. We
held that it was not unreasonable for postal officials to
believe that solicitation held the potential for interference
"with their mission to provide reliable postal services." Id. at
650.

Since Bjerke and Kokinda, both of which addressed bans
on solicitation, a restriction on leafleting was considered by
the Supreme Court in Lee v. Int'l Society for Krishna
Consciousness, Inc., 505 U.S. 830 (1992) (incorporating
concurring opinions at 505 U.S. 672 (1992)). In Lee, the
Court considered both a ban on the solicitation of funds
_________________________________________________________________

       The sidewalk leading to the entry of the post office is not the
       traditional public forum sidewalk referred to in Perry. Nor is the
       right of access under consideration in this case the quintessential
       public sidewalk which we addressed in Frisby v. Schultz, 487 U.S.
       474 (1988) (residential sidewalk). The postal sidewalk was
       constructed solely to assist postal patrons to negotiate the space
       between the parking lot and the front door of the post office, not
to
       facilitate the daily commerce and life of the neighborhood or city.

Kokinda, 497 U.S. at 727.

                               9
within the airports of the New York/New Jersey Port
Authority, as well as a ban on the "repetitive distribution of
printed or written materials." It concluded that the airport
terminals were non-public fora, applying the
reasonableness standard, despite the fact "that the public
spaces in the airports are broad, public thoroughfares full
of people and lined with stores and other commercial
activities." 505 U.S. at 700 (Kennedy, J., concurring). The
Court upheld the solicitation ban but struck down the
leafleting ban. The challenged leafleting regulation was a
complete and permanent prohibition on the "sale or
distribution of flyers, brochures, pamphlets, books or any
other printed or written material," if conducted within the
airport terminal, "in a continuous or repetitive manner."

The leafleting issue was resolved in a per curiam opinion
that cited "the reasons set forth in the opinions of " Justices
O'Connor, Kennedy and Souter filed in the appeal relating
to the ban on solicitation. Central to the reasoning of all
three was the view that, in contrast to "discrete, single
purpose facilities" like the post office in Kokinda, the
airports were "operating a shopping mall as well as an
airport." 505 U.S. at 688-89. For the majority of justices
who had concluded that the non-public forum analysis was
appropriate, "the reasonable inquiry, therefore,[was] not
whether the restrictions on speech are `consistent with . . .
preserving the property for air travel, . . . but whether they
[were] reasonably related to maintaining the multi-purpose
environment that the Port Authority [had] deliberately
created." Id. at 689. The Court held that they were not.

Finally, reference to Perry Educ. Ass'n v. Perry Local
Educators Ass'n, 460 U.S. 37 (1983) (upholding rule
granting teachers' bargaining representative exclusive
access to teacher mailboxes and the interschool mail
system to the exclusion of a rival union), and Cornelius v.
NAACP Legal Defense & Educ. Fund, 473 U.S. 788 (1985)
(upholding executive order limiting participation in a
charity drive aimed at federal employees and military
personnel), is appropriate. In each, the relevant forum was
found to be a non-public one. In each, the issue for
decision was whether the public agency involved was
reasonable in believing that the prohibited expression might

                               10
interfere with its mission, and in each, the party attacking
the restraint stressed that there was no evidence of actual
interference having occurred. In Perry, the Court responded
by acknowledging that there was "no showing in the record
of past disturbances stemming from [the prohibited] access"
to the forum "or evidence that future disturbances would be
likely." Nevertheless, it pointed out that the Court had "not
required that such proof be present to justify the denial of
access to a non-public forum on grounds that the proposed
use may disrupt the property's intended function." Perry,
460 U.S. at 52 n.12. In Cornelius, the Court responded
"that the Government need not wait until havoc is wreaked
to restrict access to a non-public forum." 473 U.S. at 810.

The existing caselaw at the time of the arrests thus
clearly established a number of relevant principles. First, a
sidewalk like the one involved here is a non-public forum.
This follows from Kokinda, Bjerke, and, a fortiori, from Lee.
Second, a public agency may place reasonable restrictions
on speech in a non-public forum. Third, "a restriction on
speech in a non-public forum is `reasonable' when it is
`consistent with the [government's] legitimate interest in
preserv[ing] the property . . . for the use to which it is
lawfully dedicated." Lee, 505 U.S. at 688 (quoting Perry).
And finally, restrictions on speech in a non-public forum
may be imposed if it is reasonable to anticipate that
interference with the mission of the agency may occur, even
though it has not yet occurred.

We now turn to the information available to Kaltenbach
at the time of the arrests. As soon as Kaltenbach arrived on
the scene, Postmaster Leddy identified himself as the
official responsible for the premises and the carrying out of
the mission of the postal facility. It was an extraordinary
evening for that postal facility; it was still open at 9:00 P.M.
because midnight was the deadline for postmarking tax
returns. Accordingly, a heavy public utilization of the postal
facility could be expected. Leddy explained to Kaltenbach
that the protesters were a potential obstruction to
customers entering and exiting the building on postal
business and that they could not remain on the postal
sidewalk. In the event the protestors refused to move their
distribution to the public rights-of-way, Leddy said he

                               11
would come to police headquarters and sign a complaint so
that charges could be pressed against the protesters.
Kaltenbach then confronted the protestors and learned that
they claimed to have a constitutional right to distribute
leaflets on the sidewalk. They refused to withdraw to the
public roadway, and he made his decision to arrest.

This brings us to the issue of whether, given the
established law and the information available to
Kaltenbach, a reasonable law enforcement officer in his
position could have believed his conduct was legal. We
agree with the plaintiffs that a reasonable law enforcement
officer in Kaltenbach's position would have known, based
on Kokinda and Lee, that the protestors could be precluded
from distributing leaflets on the post office sidewalk only if
it was reasonable under all of the circumstances for the
postal authorities to prohibit that activity. However, we do
not believe that a reasonable officer would understand the
caselaw to mandate a conclusion that the restriction here
imposed was unreasonable. While Lee struck down a
prohibition on leafleting in large airports, there are material
distinctions between the situation there addressed and the
one that faced Kaltenbach. The purpose to which the
property is dedicated is crucial to the reasonableness
analysis, and as the Supreme Court itself noted, the
purpose to which the airports in Lee were dedicated was far
different from that of a sidewalk between a post office and
its parking lot. Moreover, the ban on leafleting in Lee was
a permanent one. The ban imposed by Leddy and enforced
by Kaltenbach was a temporary, one time measure to
address an extraordinary situation which Leddy said held
the potential for interfering with the mission of the facility.

In our view, a reasonable law enforcement officer with
knowledge of the relevant legal principles and the
information available would have done exactly what
Kaltenbach did here. Given the postmaster's responsibility
for and experience with the postal facility, it was reasonable
for Kaltenbach to accept his judgment that the leafleting
activity, if continued, would impede the public in making
timely use of the postal facility. And given that factual
predicate, Kaltenbach had every reason to believe that the
restraint imposed was a constitutionally valid one.

                                12
Leddy was a public officer whom Kaltenbach could
reasonably presume to be familiar with the conditions likely
to be encountered at the facility on that evening. For
example, more so than any officer just arriving on the
scene, a postmaster could be expected to know relevant
facts, like how much customer traffic through the postal
facility is to be expected between 9 P.M. and midnight on
April 15th, the extent to which conflicts have erupted in the
past between protesters and customers on postal property,
and whether protesters have previously leafleted effectively
along the public right-of-way on Cranbury Road. Such facts
were necessary to an analysis of the reasonableness of the
restriction Leddy sought to impose. To require an officer to
assess the reasonableness of a restriction such as this one
without reference to the postmaster's unique knowledge
would strip the determination of the very facts essential to
its making.

We do not, of course, suggest that a law enforcement
officer will always act reasonably in relying on the facts
provided by a custodian of public property. We hold as we
do because the applicable law required a detailed factual
assessment; the facts necessary to make that assessment
were otherwise unavailable to Kaltenbach; and there was
no reason to question the good faith of the custodian.
Contrary to plaintiffs' suggestion, we do not believe a
reasonable law enforcement officer would have second-
guessed the Postmaster simply because no actual
obstruction of the sidewalk had yet occurred. As we noted
earlier, "the Government need not wait until havoc is
wreaked to restrict access to a non-public forum." Cornelius
v. NAACP Legal Defense & Educ. Fund, 473 U.S. 788, 810
(1985).5
_________________________________________________________________

5. The applicable postal regulations prohibit any activity "which
obstructs the usual use of entrances . . . or which impedes or disturbs
the general public in transacting business or obtaining the services
provided on [post office] property . . . ." 39 C.F.R. S 232.1(e). As we
read
these regulations, they anticipate that local postmasters will be required
to exercise discretion as to whether particular conduct in particular
circumstances is likely to "obstruct," "impede," or "disturb." The
regulations expressly authorize "[l]ocal postmasters . . . [to] enter into
agreements with State and local enforcement agencies to ensure that the

                               13
In sum, Kokinda and Lee clearly establish that
reasonable restrictions on speech on postal property are
permissible. Because we believe a reasonable officer would,
and in fact should, consider the views of the postmaster in
this situation, we have no difficulty concluding that
Kaltenbach could have believed the restriction imposed
here was reasonable, and that his own conduct was
therefore lawful. Thus, Kaltenbach is protected by the
doctrine of qualified immunity with respect to the plaintiffs'
claimed violation of their First Amendment rights.

III. THE FOURTH AMENDMENT CLAIM

The Fourth Amendment prohibits a police officer from
arresting a citizen without probable cause. See Orsatti v.
New Jersey State Police, 71 F.3d 480, 482 (3d Cir. 1995)
(citing Papachristou v. City of Jacksonville, 405 U.S. 156
(1972)). After their arrest, plaintiffs were charged with
violating New Jersey's criminal defiant trespass statute.
N.J. Stat. S 2C:18-3(b)(1) (West 1999).6 Under this statute,
"[a] person commits a petty disorderly offense if, knowing
that he is not licensed or privileged to do so, he enters or
remains in any place as to which notice against trespass is
given by . . . actual communication to the actor." Id.
_________________________________________________________________

. . . rules and regulations are enforced." Id. S 232.1(q)(2). There is
thus
authority that Postmaster Leddy could cite in support of his right to
make the decision he made on the evening in question. Accordingly, it is
not at all clear to us, as it is to the dissent, that the activity of Paff
and
Konek at the time of their arrest was "indisputably legal." We stress,
however, that we have no occasion to address here whether Postmaster
Leddy violated the First Amendment or whether, if sued, he would be
entitled to qualified immunity. We hold only that, given the clearly
established law and the information available to Kaltenbach, a
reasonable law enforcement officer in his position could have believed his
conduct was lawful.

6. "Probable cause need only exist as to any offense that could be
charged under the circumstances." Barna v. City of Perth Amboy, 42
F.3d 809, 819 (3d Cir. 1994) (emphasis added). However, the defiant
trespass statute is the only statute to which Kaltenbach points as
justification for the arrests.

                                  14
Plaintiffs contend that there was no probable cause to
believe that they were committing this offense. 7

Plaintiffs' argument is straightforward. They observe that
an essential element of the offense for which they were
arrested is that the alleged trespasser subjectively knew he
was not licensed or privileged to be on the property in
question. See, e.g., State v. Santiago, 527 A.2d 963, 965
(N.J. Super. Ct. Law Div. 1986) (conviction reversed where
reasonable doubt existed as to whether defendant
subjectively knew she was not privileged to enter). Paff and
Konek insist that according to the undisputed evidence
regarding the facts available to Kaltenbach at the time of
_________________________________________________________________

7. In their briefs before this Court, Paff and Konek maintain that
"Officer
Kaltenbach also lacked probable cause to arrest[them] because the state
criminal statute pursuant to which he made the arrest does not
criminalize the activities at issue on postal property." Brief for
Appellants
at 35. To support their argument, plaintiffs rely on the Assimilative
Crimes Act, 18 U.S.C. S 13(a), which provides that:

       Whoever within or upon any [federal enclave], is guilty of any act
or
       omission which, although not made punishable by any enactment of
       Congress, would be punishable if committed or omitted within the
       jurisdiction of the State . . . in which such place is situated, .
. .
       shall be guilty of a like offense and subject to like punishment.

Plaintiffs' principle argument is that 39 C.F.R.S 232.1 (entitled "Conduct
on Postal Property") represents a detailed federal enactment that fully
regulates activities conducted on postal property and, thus, preempts
related state laws.

In Lewis v. United States, 523 U.S. 155, 118 S. Ct. 1135, 1141-42
(1998), the Supreme Court held that, where a congressional enactment
applies to the act or omission at issue, courts must determine whether
the "applicable federal law indicate[s] an intent to punish conduct such
as the defendant's to the exclusion of the particular state statute at
issue." If not, then the state criminal statute is applicable,
notwithstanding the fact that the crime occurred in a federal enclave. In
this case, the relevant legislative intent could not be clearer.
Subsection
(p)(2) of the postal regulations expressly provides that "[n]othing
contained in these rules and regulations shall be construed to abrogate
. . . any State and local laws and regulations applicable to any area in
which the property is situated." 39 C.F.R. S 232.1(p)(2). Given such a
clear statement, we have no trouble concluding that New Jersey's
trespass laws are applicable to plaintiffs' conduct.
15
the arrest, they not only subjectively believed (i.e., "knew")
that they were privileged to distribute leaflets on the
sidewalk, but that Paff explained this belief to both Leddy
and Kaltenbach. In addition, plaintiffs contend that the
undisputed facts reveal no evidence that Konek "knew"
anything different. Thus, according to plaintiffs, all of the
evidence available to Kaltenbach at the time of the arrest
established that Paff and Konek believed that they were
constitutionally privileged to remain on the property and,
as a result, there was insufficient evidence from which
Kaltenbach could have found probable cause as to this
essential element of the offense.

Kaltenbach responds that he had probable cause to
believe the plaintiffs knew they were not privileged to
remain on the postal sidewalk as soon as he learned that
the plaintiffs had been so advised by the postmaster. Such
probable cause was reinforced, he contends, once
Kaltenbach himself discussed the matter with the plaintiffs.
Paff informed him that he was the "designated arrestee,"
thereby indicating that advance consideration had been
given to the legality of the proposed protest and that the
protesters recognized that law enforcement authorities
might, at least under some circumstances, view it as illegal.

Probable cause to arrest exists when the information
within the arresting officer's knowledge at the time of the
arrest is sufficient to warrant a reasonable law enforcement
officer to believe that an offense has been or is being
committed by the person to be arrested. See United States
v. Cruz, 910 F.2d 1072, 1076 (3d Cir. 1990). It"is a fluid
concept -- turning on the assessment of probabilities in
particular factual context -- not readily, or even usually,
reduced to a neat set of legal rules." Illinois v. Gates, 462
U.S. 213, 232 (1983). While probable cause to arrest
requires more than mere suspicion, the law recognizes that
probable cause determinations have to be made "on the
spot" under pressure and do "not require thefine resolution
of conflicting evidence that a reasonable doubt or even a
preponderance standard demands." Gerstein v. Pugh, 420
U.S. 103, 121 (1975). A " `common sense' approach [must
be taken] to the issue of probable cause" and a
determination as to its existence must be based on"the

                               16
totality of the circumstances." Sharrar v. Felsing, 128 F.3d
810, 818 (3d Cir. 1997).

The leading Supreme Court case on the application of the
doctrine of qualified immunity in the context of a
determination of probable cause is Anderson v. Creighton,
483 U.S. 635 (1987). The Court there noted "the difficulty
of determining whether particular searches or seizures
comport with the Fourth Amendment." Id. at 644. Because
reasonable minds can differ on whether particular arrests
meet the imprecise standards of probable cause we have
just discussed, the Court recognized that not every
determination that probable cause was lacking requires a
finding that the arresting officer is liable for damages. Room
must be provided for reasonable mistakes. As the Court put
it:

       We have recognized that it is inevitable that law
       enforcement officials will in some cases reasonably but
       mistakenly conclude that probable cause is present,
       and we have indicated that in such cases those officials
       -- like other officials who act in ways they reasonably
       believe to be lawful -- should not be held personally
       liable.

Id. at 641.

The Anderson Court noted the general rule that "whether
an officer protected by qualified immunity may be held
personally liable for an allegedly unlawful action generally
turns on the `objective legal reasonableness' of the action
. . . assessed in light of the legal rules that were clearly
established at the time it was taken." Id. at 639. It then
explained that in the context of a probable cause
determination, a determination regarding whether the
relevant law was clearly established must take into account
the specific circumstances that confronted the officer. "[T]he
right the official is alleged to have violated must have been
`clearly established' in a . . . particularized .. . sense. The
contours of the right must be sufficiently clear that a
reasonable official would understand that what he is doing
violates that right. This is not to say that an official action
is protected by qualified immunity unless the very action in
question has previously been held unlawful, . . . but it is to

                               17
say that in the light of pre-existing law the unlawfulness
must be apparent." Id. at 640.

We understand Anderson to require us to look at the
circumstances that confronted Kaltenbach and to compare
the circumstances present in those cases which have
concluded that there was an absence of probable cause. If
there are cases that would make it "apparent " to a
reasonable officer in Kaltenbach's position that probable
cause was lacking, qualified immunity is not available. Id.
(emphasis added). If not, Kaltenbach is entitled to qualified
immunity. As the Anderson Court noted, "qualified
immunity protects `all but the plainly incompetent or those
who knowingly violate the law.' " Id. at 638 (quoting Malley
v. Briggs, 475 U.S. 335, 341 (1986)).

Absent a confession, the officer considering the probable
cause issue in the context of crime requiring a mens rea on
the part of the suspect will always be required to rely on
circumstantial evidence regarding the state of his or her
mind. Ordinarily, information supporting a conclusion that
the potential defendant in a trespass case was not licensed
or privileged and that he was so advised by the custodian
of the property will provide sufficient circumstantial
evidence to constitute probable cause on the mens rea
element. Moreover, this will normally be true even where
the potential defendant, upon being confronted by a law
enforcement officer, makes a claim of entitlement to be on
the premises.

Kaltenbach learned information prior to the arrest which
provided probable cause to believe that Paff and Konek
were not licensed or privileged and that they had been so
advised by the custodian of the property. What makes the
probable cause/mens rea issue more difficult here than in
most trespass cases are the facts that this was public
property, Paff and Konek were engaged in expressive
activity, and they expressly purported to be acting on legal
advice specifically addressed to the issue of license or
privilege.

Kaltenbach was required to make a judgment call
regarding plaintiffs' state of mind. Paff and Konek told
Kaltenbach that they believed they were entitled to be

                                18
leafleting on the sidewalk and offered a plausible
explanation for that belief. Nevertheless, we find nothing in
the probable cause jurisprudence that makes it apparent
that Kaltenbach was required to accept that assertion at
face value. The existence of a "designated arrestee"
indicated that Paff and Konek realized that there were
circumstances under which their planned conduct might be
viewed as illegal by law enforcement authorities, and they
had been advised by the postmaster that their conduct, if
continued through the evening, was likely to lead to an
obstruction of post office patrons. A belief in the general
right to leaflet on post office property is not inconsistent
with knowledge that potentially obstructive conduct is
illegal.

Kaltenbach had to make a judgment based on
circumstantial evidence. The issue was close enough that
there was the potential of a court subsequently determining
that he made the wrong choice. In light of the clearly
established law and the information available to him,
however, his choice was not objectively unreasonable and
suggests neither that he was incompetent nor that he
knowingly violated the law. Accordingly, we conclude that
he is entitled to qualified immunity.

IV.

Accordingly, we will affirm the order of the District Court
granting summary judgment to Kaltenbach on all counts.

                               19
COWEN, Circuit Judge, dissenting.

In this appeal we must decide whether a police officer is
entitled to qualified immunity when, on the night federal
income taxes were due, he arrested John Paff and James
Konek, who stood on a sidewalk outside a post office,
handing out leaflets protesting the government's taxation
policies. At the time of the arrests peaceful leafleting on a
postal sidewalk was indisputably legal: the controlling
postal regulation does not ban leafleting and instead only
prohibits disorderly conduct and soliciting alms or
contributions. See 39 C.F.R. S 232.1. If there were any
doubt about how to interpret this regulation, we have
previously said, while upholding the ban on solicitation,
that protesters can distribute leaflets:

       [Protesters] may publicly express their views while on
       postal property, they may distribute political literature,
       and engage patrons in any lawful dialogue. In fact, they
       may even solicit financial contributions immediately
       outside postal premises, and perhaps even on certain
       portions of postal property. They are simply required
       not to engage in solicitations at a place where such
       activities would obstruct necessary and nonpolitical
       post office operations.

United States v. Bjerke, 796 F.2d 643, 652-63 (3d Cir.
1986). The availability of leafleting was important to our
decision in Bjerke because in upholding the regulation's
ban on solicitation we relied in part on the fact that
leafleting and other types of expressive activity remain
legal. Id. at 650.

Several years after Bjerke five Justices on the Supreme
Court also interpreted the relevant postal regulation to
allow peaceful leafleting, and the remaining four Justices
never maintained that the regulation prohibits it. In Justice
Kennedy's concurrence he said, "The regulation, as the
United States concedes, expressly permits the respondents
and all others to engage in political speech on topics of
their choice and to distribute literature soliciting support,
including money contributions, provided there is no in-
person solicitation for payments on the premises." United
States v. Kokinda, 497 U.S. 720, 738-39, 110 S.Ct. 3115,

                                20
3126 (1990). Much as we reasoned in Bjerke, Justice
Kennedy also relied in part on the availability of these other
expressive activities when he concurred in the Court's
judgment that the solicitation ban was permissible. Id. at
739, 110 S.Ct. at 3126. The four Justices in dissent
similarly agreed that the postal regulation permits"labor
picketing, soapbox oratory, distributing literature, holding
political rallies, playing music, circulating petitions, or any
other form of speech not specifically mentioned in the
regulation." Id. at 750, 110 S.Ct. at 3132. Even Justice
O'Connor's opinion for the remaining four Justices
conceded that "individuals or groups have been permitted
to leaflet, speak, and picket on postal premises," and never
expressly said that the regulation prohibited such conduct.
Id. at 730, 110 S.Ct. at 3121.

Thus it is clearly established that under the postal
regulation protesters have a legal right to hand out leaflets,
provided they do not engage in disorderly conduct or solicit
money to be paid on the postal premises. Because the
undisputed facts show that Paff and Konek were leafleting
peacefully and were not engaging in unlawful solicitation,
Officer Kaltenbach did not have probable cause to arrest
them, and therefore they have a valid claim under the
Fourth and Fourteenth Amendment. See, e.g., Mackinney v.
Nielson, 69 F.3d 1002 (9th Cir. 1995) (because California
law did not prohibit individuals from writing in chalk on a
public sidewalk, the officer who arrested the plaintiff was
not entitled to qualified immunity from the plaintiff 's
Fourth Amendment claim).

The majority apparently believes that Kaltenbach had
probable cause to arrest Paff and Konek because the
protesters were potentially an obstruction (although the
majority raises this point in its discussion of the First
Amendment claim). But the regulation's prohibition of
disorderly conduct can hardly be construed to make an
offense out of "potentially" committing disorderly conduct.
The portion of the regulation addressing disorderly conduct
states,

       Disorderly conduct, or conduct which creates loud and
       unusual noise, or which obstructs the usual use of
       entrances, foyers, corridors, offices, elevators,

                               21
       stairways, and parking lots, or which otherwise tends
       to impede or disturb the public in the performance of
       their duties, or which otherwise impedes or disturbs
       the general public in transacting business or obtaining
       the services provided on property, is prohibited.

39 C.F.R. S 232.1(e). The majority suggests in footnote 5 of
its opinion that this provision gives local postmasters
discretion to decide whether someone's conduct is"likely"
to violate S 232.1(e) and that police may rely on the
postmaster's judgment. Nowhere in the regulation does the
word "likely" appear; the provision prohibits actual
disorderly conduct, not potential disorderly conduct. Not
only is the majority's position unsupported by the language
of the regulation, it also appears to subject members of the
public to a fine or imprisonment, see S 232.1(p)(2), or arrest
at a minimum, because a postmaster deems them likely to
commit an offense, even though their conduct has been
innocent so far. How will people know when they are
potentially committing disorderly conduct as they try to
enjoy their judicially recognized right to leaflet peacefully?
The Supreme Court has firmly rejected laws for vagueness.
See, e.g., City of Chicago v. Morales , ___ U.S. ___, 119 S.Ct.
1849 (1999); Kolender v. Lawson, 461 U.S. 352, 103 S.Ct.
1855 (1983); Papachristou v. City of Jacksonville, 405 U.S.
156, 92 S.Ct. 839 (1972). The Court has also rejected
arrests for disorderly conduct when the police thought the
protesters' conduct was likely to result in disorderly
conduct. Gregory v. City of Chicago, 394 U.S. 111, 89 S.Ct.
946 (1969). And the Court has rejected a law that made
illegal having a disposition to commit an offense. Robinson
v. State of California, 370 U.S. 660, 82 S.Ct. 1417 (1962).

To appreciate the dangers of allowing arrests for
"potentially" committing disorderly conduct, I think it is
worth reviewing in some detail just how little evidence there
is that the plaintiffs' leafleting was creating any problem.
According to the undisputed facts, before Paff or Konek
handed a leaflet to anyone, they first asked if the person
wanted one and were not confrontational. The two only
approached people leaving the post office, and were joined
by a total of three other protesters, hardly creating a
threatening rally. While it may seem reasonable to assume

                               22
that this particular post office was busy on the night taxes
were due, there is no evidence or allegation that a large
number of people in fact were crowding into this post office.
For all we know one person passed every ten minutes. The
post office in question is also set back from the road and
appears, in some admittedly dark photocopied pictures in
the appendix, to be surrounded by a fair amount of open
land, suggesting that the protesters were not standing in
close quarters. Paff stated that he and the four other
protesters "stood on the sidewalk area between the parking
lot and the front door of the East Brunswick Post Office"
and were "within two feet" of some newspaper vending
machines. App. at 60.

In the postmaster's call to the police department, he
made no reference to any obstruction that the protesters
were creating. A transcript of that call shows that after
identifying himself, the postmaster said, "We have people
on the property giving out pamphlets, we've asked them to
leave the property and they won't. Could you send
somebody down?" He explained that the post office was
open until midnight and then made a partially inaudible
remark about picket signs. "With picket signs?" the
dispatcher asked. The postmaster responded, "Yes, it's a
Libertarian party or something." He continued,"They can
go out on public property which is out by the street so they
can't be on our sidewalk in front of our front door." After
the postmaster gave his name, the dispatcher said,"O . . .
okay, we'll send someone out." App. at 160. This is all the
relevant information the postmaster conveyed to the police
dispatcher.

When Kaltenbach arrived, the postmaster again identified
himself and said that the protesters could move out to
Cranbury Road. On the record before us there is no
evidence--or even allegation--that the postmaster told
Officer Kaltenbach that the protesters had obstructed the
ingress or egress of patrons of the post office, much less
that the postmaster offered any evidence in support of such
an allegation had it been made. At best the postmaster told
Kaltenbach the protesters were a "potential obstruction,"1
_________________________________________________________________

1. In Kaltenbach's statement of undisputed facts he asserts that the
postmaster told him that the protesters were a "potential obstruction."

                               23
an assertion that by itself is insufficient to provide probable
cause for the arrest and that in any event seems poorly
supported, given the protesters' small numbers and their
peaceful conduct.

By comparison, when the police have invoked the risk
posed by a hostile audience to justify arresting protesters
who were conducting an otherwise lawful demonstration,
the Supreme Court has required considerably more
evidence of imminent harm than was present in our case.
See, e.g., Gregory v. City of Chicago , 394 U.S. 111, 89 S.Ct.
946 (1969); Cox v. Louisiana, 379 U.S. 536, 85 S.Ct. 453
(1965); Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct.
680 (1963); Terminiello v. Chicago, 337 U.S. 1, 69 S.Ct. 894
(1949). Given that the leafleting in our case was legal, I
believe that there should have been much more evidence of
an imminent and significant disruption before an arrest
was made. "[I]n our system, undifferentiated fear or
apprehension of disturbance is not enough to overcome the
right to freedom of expression." Tinker v. Des Moines Indep.
Community School Dist., 393 U.S. 503, 508, 89 S.Ct. 733,
737 (1969); Zamboni v. Stamler, 847 F.2d 73, 78 (3d Cir.
1988).

It is also worth noting that the postmaster's suggested
alternative that the protesters move out to the public road
was highly problematic. As Paff explained, Cranbury Road
did not have a sidewalk and was unlit (events took place at
9 p.m. on April 15th); and it was not possible to hand out
leaflets to passengers in cars that Paff estimated were
traveling approximately 40 miles per hour through the
night. See App. at 173-74. Furthermore, although the
majority suggests that the postmaster's ban on the
protester's leafleting was limited to tax night, nothing in the
record indicates that the postmaster said his ban was
restricted in this way. He simply called the police and asked
_________________________________________________________________

App. at 170. The appellants' response to Kaltenbach's statement of
undisputed facts denies that the postmaster made that statement. App.
at 180. But because Kaltenbach repeated his claim in a certification, and
the certification Paff submitted did not mention whether the postmaster
alleged they were a "potential obstruction," it appears that we should
accept Kaltenbach's allegation for the purposes of this summary
judgment motion.

                               24
them to remove the protesters. And even if we adopted this
after the fact narrowing of the restriction, the message the
protestors sought to convey was undermined when they
were not allowed to conduct their protest on tax day. In the
end, however, I think that even if Cranbury Road had
offered a viable alternative or the postmaster had limited
his ban to tax night, neither factor would be enough to
justify qualified immunity; the protesters had a right to
leaflet peacefully where they were.

When an officer violates clearly established law and the
facts reasonably known by the officer indisputably show
that the officer's conduct was illegal, qualified immunity is
rarely appropriate. An officer can only obtain qualified
immunity for violating clearly established law when the
officer shows "extraordinary circumstances and can prove
that he neither knew nor should have known of the relevant
legal standard." In re City of Philadelphia Litigation, 49 F.3d
945, 961 (3d Cir. 1995)(quoting Harlow v. Fitzgerald, 457
U.S. 800, 817-19, 102 S.Ct. 2727, 2738 (1982)).

Under this standard Kaltenbach's reliance on the
postmaster should not constitute "extraordinary
circumstances." Even reliance on the advice of counsel may
not be sufficient to constitute extraordinary circumstances.
See, e.g., Davis v. Zirkelbach, 149 F.3d 614, 620 (7th Cir.
1998) cert. denied, 119 S.Ct. 902 (1999); Buonocore v.
Harris, 134 F.3d 245, 252-53 (4th Cir. 1998); V-1 Oil Co. v.
Wyoming, 902 F.2d 1482 (10th Cir. 1990). And the burden
of proving extraordinary circumstances is carried by the
officer. Buonocore, 134 F.3d at 252; Cannon v. City and
County of Denver, 998 F.2d 867, 874 (10th Cir. 1993). In
our case the postmaster did not mention any legal
authority for his action, despite the fact that Paff cited the
postal regulation that he said allowed him to leaflet.
Kaltenbach also did not perform so much as a cursory
independent investigation to see if the protesters were
posing any problem, nor did he inquire into whether their
conduct actually was illegal. It is true that after arresting
Paff, Kaltenbach radioed his supervisor, but even if we
make the dubious assumption that this call could
constitute "extraordinary circumstances," a transcript of
that conversation shows that the purpose was not to obtain

                               25
advice on whether the leafleting was legal, but merely to
advise headquarters that Kaltenbach was bringing in the
arrestees. Moreover, Kaltenbach could have made
additional inquiries given that, as the facts above indicate,
the protesters' conduct was not creating an impending
conflict requiring immediate action.

The protesters' claim under the First and Fourteenth
Amendments poses closer questions. The majority operates
under the assumption that unless the protesters can show
that the First Amendment clearly prohibits the Postal
Service from issuing any regulation prohibiting leafleting,
then the protesters must lose their claim under the First
Amendment. I disagree with this assumption. If the postal
regulations permit leafleting, then I think the protesters
have a valid First Amendment claim, even if the clearly
established law does not flatly prohibit the Postal Service
from banning all leafleting in the future. Much as the
government cannot discriminate among speakers when it
creates a limited-purpose public forum, see, e.g., Widmar v.
Vincent, 454 U.S. 263, 267-68, 102 S.Ct. 269, 273-74
(1981), the government also violates the First Amendment
in my view if it has people in a nonpublic forum arrested
for engaging in a type of expressive activity that the
government's own regulations permit. This should be
especially true when the government's regulation was saved
from a First Amendment challenge in part because the
regulation permitted that particular type of expressive
activity.

But suppose the majority is right, and the protesters
must show that the First Amendment prohibits the
government from issuing regulations that ban leafleting on
postal sidewalks deemed to be nonpublic forums. Given
that the Postal Service has not yet tried to issue such
regulations, it may seem precipitate to reach this issue. The
majority's view seems to require the discussion, however, so
I will offer several comments on their analysis. If the
protesters must show that postal regulations cannot ban
leafleting, then like the majority I conclude that the
protesters' First Amendment claim must fail--the relevant
right is not yet clearly established. But I hasten to add that
since Kaltenbach did not cross-appeal the District Court's

                               26
finding that the protesters had a constitutional right under
the First Amendment to leaflet, under our recent decision,
Assaf v. Fields, 178 F.3d 170, 174 (3d Cir. 1999), the
ultimate question of whether the government does have the
power to ban all leafleting is not before us.

In analyzing what is clearly established I agree with the
majority that the sidewalk leading to the post office in this
case is a nonpublic forum, or at least that in the wake of
Kokinda the status of the sidewalk is unclear. I also agree
that the government can impose reasonable restrictions on
speech in a nonpublic forum, where a reasonable
restriction is one that is "consistent with the[government's]
legitimate interest in preserv[ing] the property . . . for the
use to which it is lawfully dedicated." Majority Op. at 11
(quoting Int'l Society for Krishna Consciousness, Inc. v. Lee,
505 U.S. 672, 688, 112 S.Ct. 2711, 2712 (1992) and Perry
Educ. Ass'n v. Perry Local Educators Ass'n, 460 U.S. 37,
50-51, 103 S.Ct. 948, 958 (1983)).

My reasoning differs from the majority's, however,
because I rely exclusively on two doctrinal points to
conclude that the relevant right is not clearly established.
First, Kokinda plainly left the issue unresolved. Second,
and much more crucially, when the Supreme Court rejected
a ban on leafleting in Lee, Justice O'Connor's concurrence
emphasized that the airport in question was run in part as
a shopping mall, supporting many activities, and therefore
was unlike other nonpublic forums considered by the
Court, such as the postal sidewalk in Kokinda in particular.
See Lee, 505 U.S. at 688-89, 112 S.Ct. at 2712-73. Given
the airport's multiple uses, Justice O'Connor's opinion
judged leafleting to be consistent with the functions of the
forum.

After reviewing this caselaw, a reasonable official could
conclude that postal sidewalks are designed simply to give
access to the post office and that, therefore, Lee's protection
of leafleting did not apply and Kokinda does not require
otherwise. These points alone are sufficient, I believe, to
defeat the claim that it is clearly established that the First
Amendment prohibits the government from implementing
regulations that ban leafleting on postal sidewalks deemed
to be nonpublic forums. One does not need to bring in the

                               27
majority's points about the protesters posing a potential
obstruction or about police officers delegating their
decisionmaking to a postmaster. Neither of these latter
factors would justify granting qualified immunity if the
relevant right were otherwise clearly established.

But in the end whatever the power of the Postal Service
is to ban leafleting on its sidewalks, the fundamental point
in this case is that no such ban has been implemented.
Leafleting is clearly legal under the Postal Service's
regulations, and therefore I cannot agree that Kaltenbach is
entitled to qualified immunity on the plaintiffs' claims
under the First, Fourth, and Fourteenth Amendments. The
plaintiffs' leafleting and criticism of the government should
not have been suppressed.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               28
