                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-20-2004

Blackhawk v. Comm PA
Precedential or Non-Precedential: Precedential

Docket No. 02-3947




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Recommended Citation
"Blackhawk v. Comm PA" (2004). 2004 Decisions. Paper 364.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/364


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PRECEDENTIAL                                               GAME COMMISSION;
                                                     VERNON ROSS, Director; THOMAS
    UNITED STATES COURT OF                             R. LITTWIN, Law Enf. Director;
           APPEALS                                  FREDERICK MERLUZZI, Enf. Officer;
     FOR THE THIRD CIRCUIT                                  BARRY HAMBLEY;
                                                       DAVID E. OVERCASH, in their
                                                            individual and official
           Nos. 02-3947/4158                                      capacities;


      DENNIS L. BLACKHAWK                             ON APPEAL FROM THE UNITED
                                                      STATES DISTRICT COURT FOR
                    v.                                  THE MIDDLE DISTRICT OF
                                                            PENNSYLVANIA
        COMMONWEALTH OF
           PENNSYLVANIA;                                 (Dist. Court No. 99-cv-02048)
       PENNSYLVANIA GAME                              District Court Judge: Hon. Thomas I.
   COMMISSION; VERNON ROSS,                                         Vanaskie
                 Director;
   THOMAS R. LITTWIN, Law Enf.
          Director; FREDERICK                                  Argued: July 21, 2003
   MERLUZZI, Enf. Officer; BARRY
 HAMBLEY; DAVID E. OVERCASH,                         Before: ALITO and FUENTES, Circuit
in their individual and official capacities          Judges, and SURRICK,* District Judge.

             Vernon Ross                               (Opinion Filed: August 20, 2004 )
            Thomas Littwin
           David E. Overcash,                       D. MICHAEL FISHER
                                                    HOW ARD G. HOPKIRK (Argued)
        Appellants, No. 02-3947                     CALVIN R. KOONS
         __________________                         JOHN G. KNORR, III
                                                    Office of Attorney General
     DENNIS L. BLACKHAWK,                           Appellate Litigation Section
                                                    15th Floor, Strawberry Square
             Appellant, No. 02-4158

                     v.                                    *
                                                             The Hon. R. Barclay Surrick,
                                                    United States District Judge for the
    COMMONWEALTH OF                                 Eastern District of Pennsylvania, sitting by
PENNSYLVANIA; PENNSYLVANIA                          designation.

                                              -1-
Harrisburg, Pa. 17120                                 spiritual strength. Although Blackhawk is
                                                      a Lenape Indian by birth, he was adopted
Counsel for Appellants/Cross-Appellees                by elders of the Oglala Lakota and Seneca
                                                      tribes, who schooled him in the religious
GARY S. GILDIN (Argued)                               traditions of the Lakota and Iroquois
150 South College Street                              people. When Blackhawk began to see
Carlisle, Pa. 17013                                   bears in a recurring dream, Lakota tribal
                                                      elders concluded that the dream was a
THOMAS B. SCHMIDT, III                                prophesy and predicted that Blackhawk
PEPPER HAMILTON LLP                                   would derive spiritual power from the
200 One Keystone Plaza                                animals.
North Front and Market Streets
                                                             In 1994, Blackhawk purchased two
Post Office Box 1181
                                                      black bear cubs, a male and a female
Harrisburg, Pa. 17108-1181
                                                      named Timber and Tundra. He moved to
                                                      Pennsylvania in 1995 and began
Counsel for Appellee/Cross-Appellant
                                                      conducting religious ceremonies with the
                                                      bears on his property. Members of various
                                                      American Indian tribes visit Blackhawk
       OPINION OF THE COURT
                                                      from across the country to participate in
                                                      these rituals.     Due to Blackhawk’s
ALITO, Circuit Judge:                                 stewardship of the bears and his role in
                                                      these ceremonies, some consider him to be
        This is an appeal by officials of the         a holy man.
Pennsylvania Game Commission from an
order permanently enjoining them from                         The Pennsylvania Game and
enforcing a permit fee provision of the               Wildlife Code requires permits in order to
state Game and Wildlife Code against                  engage in a variety of different activities,
Dennis Blackhawk on the ground that the               including such things as bird banding (34
Commission’s current waiver policy                    Pa. Cons. Stat. Ann. § 2921), falconry (34
violates his right to the free exercise of            Pa. Cons. Stat. Ann. § 2925), various types
religion. Blackhawk in turn cross-appeals             of field dog trials (34 Pa. Cons. Stat. Ann.
the District Court’s holding that the Game            § 2943), fox chasing (34 Pa. Cons. Stat.
Commission officials are not personally               Ann. § 2945), maintaining a “menagerie”
liable for violating his rights. We affirm            (34 Pa. Cons. Stat. Ann. § 2964), and
the District Court in both respects.                  either dealing in or possessing “exotic
                                                      wildlife.” 34 Pa. Cons. Stat. Ann. §§
                     I.                               2962, 2963. Annual fees ranging from $25
       Lakota Indians believe that black              to $300 are collected for these permits, see
bears protect the Earth, sanctify religious           34 Pa. Cons. Stat. Ann. § 2904, and the
ceremonies, and imbue worshipers with                 revenues from all of these fees comprise

                                                -2-
about one percent of the             Game            fee is $50. See 34 Pa. Cons. Stat. Ann. §
Commission’s annual intake.                          2904.
        Although persons wishing to keep                     In 1998, Blackhawk sought an
wildlife in captivity must generally obtain          exemption from the permit fee on the
a menagerie or exotic wildlife possession            ground that he possessed the bears for
permit and pay the requisite fee, see 34 Pa.         Native American religious purposes. After
Cons. Stat. Ann. §§ 2904, 2964(c)(1), the            making an inquiry to the Bureau of Indian
Code excludes from these requirements                Affairs, Merluzzi informed Blackhawk
most zoos and all “[n]ationally recognized           that Native Americans who possess a
circus[es].” 34 Pa. Cons. Stat. Ann. §               Bureau of Indian Affairs identification
2965(a)(1)–(3). In addition, the director of         card are entitled to some exemptions under
the Game Commission is authorized to                 federal law, but Blackhawk did not possess
waive a permit fee “where hardship or                such a card. Blackhawk paid the 1998 fee
extraordinary circumstance warrants,” so             under protest after citing his religious
long as the waiver is “consistent with               purpose and alleging financial hardship.
sound game or wildlife management                    He then wrote to his representative in the
activities or the intent of [the Game and            state legislature, Keith McCall, and
Wildlife Code]” 34 Pa. Cons. Stat. Ann. §            McCall intervened and asked Commission
2901(d).                                             director Vernon Ross to oversee the
                                                     situation personally. On October 6, 1999,
        From 1995 to 1999, Blackhawk
                                                     Blackhawk received a letter from
obtained permits to own the bears. At
                                                     Commission officials Thomas Littwin and
first, he acquired a “menagerie permit,”
                                                     David Overcash informing him that he did
but bears are classified under the Game
                                                     not qualify for a waiver under 34 Pa. Cons.
and Wildlife Code as “exotic wildlife,” see
                                                     Stat. Ann. § 2901(d) because the
34 Pa. Cons. Stat. Ann. § 2961, and special
                                                     Commission regarded the keeping of wild
permits are required for those wishing to
                                                     animals in captivity as inconsistent with
deal in or possess exotic wildlife. See 34
                                                     sound game and wildlife management
Pa. Cons. Stat. Ann. §§ 2904, 2962, 2963.
                                                     activities unless the animals were intended
Beginning in 1997, the Game Commission
                                                     for release into the wild. Since Timber
insisted that Blackhawk obtain an exotic
                                                     and Tundra had been declawed and had
wildlife dealer permit, which costs $200
                                                     been kept in captivity their entire lives,
per year, see 34 Pa. Cons. Stat. Ann. §
                                                     they could not be released into the wild.
2904, because Frederick Merluzzi, a
                                                     “Thus, in the Commission’s view,
wildlife conservation officer, believed that
                                                     Blackhawk [was] not entitled to an
Blackhawk intended to breed the bears and
                                                     exemption regardless of his financial
sell their cubs. If Blackhawk did not wish
                                                     circumstanc es.”        Black Hawk v.
to deal in bears but merely to keep them,
                                                     Pennsylvania, 225 F. Supp. 2d 465, 470
he needed only an exotic wildlife
                                                     (M.D. Pa. 2002). The letter from Littwin
possession permit, for which the annual

                                               -3-
and Overcash told Blackhawk that,                    tested for rabies. See 28 Pa. Code §
because his permit had expired on June 30,           27.103(f)(2). The District Court enjoined
1999, if he still possessed the bears he was         the Commission from destroying the bears
subject to prosecution.                              and ordered their return. See Black Hawk
                                                     v. Pennsylvania, 114 F. Supp. 2d 327
       Blackhawk responded by again
                                                     (M.D. Pa. 2000).
requesting a waiver, and in November of
1999, Merluzzi filed criminal charges                          When the District Court reached the
against Blackhawk for failing to renew.              merits of the civil case, it held that the
                                                     Game Commission’s refusal to exempt
       Blackhawk filed an action under 42
                                                     religiously motivated activities from the
U.S.C. § 1983, seeking to enjoin the Game
                                                     permit fee violated the First Amendment’s
Commission from assessing the fee or
                                                     Free Exercise Clause. See Black Hawk,
confiscating the bears and also seeking
                                                     225 F. Supp. 2d at 465. The Court held
money damages from Merluzzi, Overcash,
                                                     that the permit fee requirement was not a
Littwin, Hambley, and Ross. Prior to the
                                                     “‘valid and neutral law of general
District Court’s disposition of the case, a
                                                     applicability’” under Employment Div.,
state magistrate found Blackhawk guilty of
                                                     Dep’t of Human Resources of Oregon v.
the criminal charges and assessed a
                                                     Smith, 494 U.S. 872, 879 (1990), because
$178,400 fine, which he later reduced to
                                                     the statutory waiver established a “‘system
$6,442. However, the Court of Common
                                                     of individualized exceptions.’” Black
Pleas stayed the criminal case pending a
                                                     Hawk, 225 F. Supp. 2d at 473. The Court
ruling on Blackhawk’s § 1983 action.
                                                     accordingly applied strict scrutiny to the
       In August of 2000, Blackhawk                  waiver scheme, id. at 472–73, and held
discovered that the bears’ enclosure had             that the scheme could not withstand strict
been vandalized, that the locks on the               scrutiny because the Commission was
enclosure had been cut, and that the                 unable to “demonstrate a compelling
animals were missing.        A neighbor              interest in refusing to grant a religious
encountered Tundra on his property and               exemption.” Id. at 477. The District Court
was attempting to lead the bear back to the          a c co r d i n g l y e n jo i n e d t h e G a m e
pen when Tundra bit him. The neighbor                Commission from charging Blackhawk a
alerted the Game Commission, which                   permit fee. However, the Court declined
tracked the bears and tranquilized them.             to hold the individual defendants liable
An official who was attempting to restrain           under § 1983 because it found that
Tundra was also bitten by the bear, but the          Merluzzi and Hambley were not personally
Commission succeeded in taking both                  responsible for violating Blackhawk’s
bears into custody. It then sought to                rights and that Ross, Littwin, and
destroy the bears pursuant to a regulation           Overcash were entitled to qualified
requiring wild animals who have bitten               immunity.
humans to be decapitated in order to be
                                                             On appeal, the Commission argues

                                               -4-
that the First Amendment does not entitle           however, that most laws that burden
Blackhawk to a waiver, and Blackhawk                religiously motivated conduct stand on a
contends that the District Court erred in           different footing. Rejecting the argument
granting summary judgment in favor of the           that such laws must generally satisfy strict
individual defendants.      We exercise             scrutiny, the Court concluded that the First
plenary review over a grant of summary              Amendment is not ordinarily offended by
judgment, Northview Motors, Inc. v.                 “neutral” and “generally applicable” laws
Chrysler Motors Corp., 227 F.3d 78,                 that merely have “the incidental effect” of
87–88 (3d Cir. 2000), and likewise review           burdening religiously motivated conduct.
de novo the District Court’s interpretation         494 U.S. 878, 879, 881.
of the Constitution. United States v.
                                                               The Court recognized several
Scarfo, 263 F.3d 80, 91 (3d Cir. 2001).
                                                    exceptions to this rule. First, the Court did
                    II.                             not overrule prior decisions in which
                                                    “hybrid claims” (i.e., claims involving “not
                    A.
                                                    the Free Exercise Clause alone, but the
       Blackhawk’s free exercise claim              Free Exercise Clause in conjunction with
requires us to apply the Supreme Court’s            other constitutional protections”) had
decisions in Employment Div., Dep’t of              prevailed against “neutral, generally
Human Resources of Oregon v. Smith,                 applicable law[s].” Id. at 881 (citations
supra, and Church of Lukumi Babalu Aye,             omitted). Nor did the Court overrule
Inc. v. Hialeah, 508 U.S. 520 (1993)                Sherbert and o ther decisions that
(“Lukumi”), and our decisions in Fraternal          “ i n v a li d a t ed sta t e u ne m p l o y m e nt
Order of Police v. City of Newark, 170              compensation rules that conditioned the
F.3d 359 (3d Cir. 1999) (“Fraternal Order           availability of benefits upon an applicant’s
of Police”), and Tenafly Eruv Ass’n, Inc.           willingness to work under conditions
v. Borough of Tenafly, 309 F.3d 144 (3d             forbidden by his religion.” Id. at 883.
Cir. 2002) (“Tenafly”). Based on these              Finally, the Court observed that even if it
decisions, we agree with the District Court         “were inclined to breathe into Sherbert
that Blackhawk’s free exercise rights were          some life beyond the unemployment field,
violated.                                           [the Court] would not apply it to require
                                                    exemptions from a generally applicable
       In Smith, the Supreme Court
                                                    criminal law.” Id. at 884. The Court
opened a new chapter in the interpretation
                                                    wrote:
of the Free Exercise Clause. The Court
began by reaffirming the principle that the                 The Sherbert test, it must be
Clause prohibits “all ‘governmental                         recalled, was developed in a
regulation of religious beliefs as such.’”                  context that lent itself to
494 U.S. at 877 (quoting Sherbert v.                        individualized governmental
Verner, 374 U.S. 398, 402 (1963))                           assessment of the reasons
(emphasis in Sherbert). The Court held,                     for the relevant conduct. . . .

                                              -5-
               [O]ur decisions in                     instructive. The principal ordinances
               the unemployment                       challenged in Likumi were claimed to
               cases stand for the                    advance two interests – preventing cruelty
               p r o p o s i ti o n t h a t           to animals and protecting public health --
               where the State has                    but the Court concluded that the
               in place a system of                   ordinances failed the general applicability
               i n d i v i d u a l                    standard because they were
               exemptions, it may                     “underinclusive for [their asserted] ends”
               not refuse to extend                   and       “[t]he underinclusion [was]
               that system to cases                   substantial, not inconsequential.” Id. at
               of       ‘religious                    543.     The Court explained that the
               hardship’ without                      ordinances were “underinclusive” because
               compelling reason.                     they “fail[ed] to prohibit nonreligious
                                                      conduct that endanger[ed] these interests
Id. at 884 (citation omitted).
                                                      in a similar or greater degree than Santeria
        In Lukumi, the Court applied Smith            sacrifice does.” Id. The Court added:
to a web of city ordinances that interfered
                                                             The ordinances “ha[ve]
with the practice of Santeria, a religion
                                                             every appearance of a
that employs the sacrifice of animals in its
                                                             prohibition that society is
rituals. The ordinances prohibited the
                                                             prepared to impose upon
killing of animals in Santeria rituals but
                                                             [Santeria worshippers] but
excluded almost all other animal killings,
                                                             not upon itself.” . . . This
including killings that occurred in
                                                             precise evil is what the
connection with hunting, fishing, meat
                                                             requirement of general
production, pest extermination, euthanasia,
                                                             applicability is designed to
and the use of rabbits to train greyhounds.
                                                             prevent.
Id. at 536-37. The Court held that these
“gerrymandered” ordinances were neither               Id. at 545-46 (quoting Florida Star v.
“neutral” nor “generally applicable,” id. at          B.J.F., 491 U.S. 524, 542 (1989) (Scalia, J.
533-46, and that they could not withstand             concurring in part and concurring in
strict scrutiny. Id. at 546-47.                       judgment) .
       The Lukumi Court’s discussion of                      Applying these precedents, we held
the requirement of general applicability is           in Fraternal Order of Police that the Free
particularly important for present                    Exercise Clause was violated by a city’s
purposes. While the Court did not attempt             practice of prohibiting police officers from
to “define with precision the standard used           wearing beards for religious reasons but
to evaluate whether a prohibition is of               allowing officers to wear beards for
general application,” id. at 543, the Court’s         medical reasons. See 170 F.3d at 364-67.
discussion of the requireme nt is                     In reaching this conclusion, we drew on


                                                -6-
both t h e C our t ’ s discussion of                Id. at 366. We therefore applied strict
“individualized exemptions” and the                 scrutiny and held that the no-beards policy
general applicability requirement. Id. at           could not satisfy that standard. Id. at 366-
364-66. We explained that a system that             67.
permits individualized, discretionary
                                                            In Tenafly, we considered a local
exemptions provides an opportunity for the
                                                    ordinance that was neutral and generally
decision maker to decide that “secular
                                                    applicable on its face but that had been
motivations are more important than
                                                    enforced in a discriminatory manner. See
religious motivations” and thus to give
                                                    309 F.3d at 167-72. The ordinance banned
disparate treatment to cases that are
                                                    the placement of any “‘sign or
otherwise comparable. 170 F.3d at 365.
                                                    advertisement, or other matter upon any
“If anything,” we stated, “this concern is
                                                    pole, tree, curbstone, sidewalk or
only further implicated when the
                                                    elsewhere, in any public street or public
government does not merely create a
                                                    place, excepting such as may be authorized
mechanism for individualized exemptions,
                                                    by this or any other ordinance of the
but instead, actually creates a categorical
                                                    Borough.’” 309 F.3d at 151 (citation
exemption for individuals with a secular
                                                    omitted). The local government, however,
objection but not for individuals with a
                                                    had permitted the placement on utility
religious objection.” Id. Concluding that
                                                    poles of many types of signs and symbols,
the policy in question was suspect for
                                                    including house number signs, signs
precisely this reason, we wrote:
                                                    pointing the way to area churches, lost
       [T]he medical exemption                      animal signs, holiday symbols, and orange
       raises concern because it                    ribbons signifying opposition to school
       indicates that th e                          regionalization. Id. at 151. By contrast,
       Department has made a                        the local government refused to permit
       value judgment that secular                  Orthodox Jews to place lechis on utility
       (i.e., medical) motivations                  poles in order to construct an eruv, a
       for wearing a beard are                      ceremonial demarcation of an area within
       import ant enough to                         which Orthodox Jews may push or carry
       overcome its general interest                objects on the Sabbath. Id. at 152. We
       in uniform ity but that                      thus held that “the Borough’s selective,
       religious motivations are                    discre tionary applic atio n of [the
       not. . . . [W]hen the                        ordinance] violates the neutrality principle
       government makes a value                     of Lukumi and Fraternal Order of Police
       judgment in favor of secular                 because it ‘devalues’ Orthodox Jewish
       motivations, but not                         reasons for posting items on utility poles
       religious motivations, the                   by ‘judging them to be of lesser import
       government’s actions must                    than nonreligious reasons,” and thus
       survive heightened scrutiny.                 ‘single[s] out’ the plaintiffs’ religiously


                                              -7-
motivated conduct for discriminatory                  U.S. at 546. Similarly, a law must satisfy
treatment.” Id. at 168 (quoting Lukumi,               strict scrutiny if it permits individualized,
508 U.S. at 537, and Fraternal Order of               discretionary exemptions because such a
Police, 170 F.3d at 364-65 (footnote                  regime creates the opportunity for a
omitted)).                                            facially neutral and generally applicable
                                                      standard to be applied in practice in a way
        The teaching of Smith, Lukumi,
                                                      that discriminates against religiously
Fraternal Order of Police, and Tenafly may
                                                      motivated conduct. Lukumi, 508 U.S. at
be summarized as follows. The Free
                                                      537; Smith, 494 U.S. at 884, Fraternal
Exercise Clause forbids any regulation of
                                                      Order, 170 F.3d at 364-65.
beliefs as such. See Lukumi, 508 U.S. at
533; Smith, 494 U.S. at 877. On the other                                    B.
hand, with the exceptions noted above, a
                                                               The fee requirement at issue here
“neutral” and “generally applicable” law
                                                      fails the general applicability requirement
that burdens conduct regardless of whether
                                                      for two reasons. First, the Game Code
it is motivated by religious or secular
                                                      creates a regime of individualized,
concerns is not subject to strict scrutiny.
                                                      discretionary exemptions that is not
See Lukumi, 508 U.S. at 546; Smith, 494
                                                      materially distinguishable from those that
U.S. at 878. A law is “neutral” if it does
                                                      tr igge r e d s t r ic t s c ru t i n y in th e
not target religiously motivated conduct
                                                      unemployment compensation cases.
either on its face or as applied in practice.
                                                      Under the laws involved in those cases,
See Lukumi, 508 U.S. at 533-40; Tenafly,
                                                      benefits were generally denied if a person
309 F.3d at 167. A law fails the general
                                                      had quit or refused work, but
applicability requirement if it burdens a
                                                      individualized exemptions were available
category of religiously motivated conduct
                                                      for persons who had quit or refused work
but exempts or does not reach a substantial
                                                      for “good cause.” See Smith, 494 U.S. at
category of conduct that is not religiously
                                                      884. Under 34 Pa. Cons. Stat. Ann. §
motivated and that undermines the
                                                      2901(d), a person may obtain a waiver
purposes of the law to at least the same
                                                      from the fee requirement if the person
degree as the covered conduct that is
                                                      shows “hardship” or              “extraordinary
religiously motivated. Lukumi, 508 U.S.
                                                      circumstances” and the w aiver is
at 543-46; Fraternal Order of Police, 170
                                                      consistent with “sound game or wildlife
F.3d at 364-66. If a law burdening
                                                      management activities or the intent of [the
religiously motivated conduct is not
                                                      Game and W ildlife Code].” Blackhawk
neutral and generally applicable it must
                                                      does not claim that he is entitled to an
satisfy strict scrutiny. See Lukumi, 508
                                                      e x e m p t i o n f r o m t h e “ h a rd s h i p ”
U.S. at 546; Smith 494 U.S. at 878.
                                                      requ ireme nt, and the regulation’s
Accordingly, it must serve a compelling
                                                      remaining requirements – consistency with
government interest and must be narrowly
                                                      sound game or wildlife management
tailored to serve that interest. Lukumi, 508
                                                      activities or the intent of Code – are

                                                -8-
sufficiently open-ended to bring the
regulation within the individualized
exemption rule.



          The Commonwealth contends,                            natural state within the
however, that the regulation categorically                      Commonwealth. The only
rules out waivers for persons, like                             exception would be where
Blackhawk, who wish to keep animals for                         such activity is done with
religious reasons.       This is so, the                        the intent of reintroducing
Comm onw ealth maintains, because                               those animals - or their
keeping animals for religious reasons is                        offspring - into the wild; the
not consistent with state wildlife policy. In                   animals are members of an
s u p p o r t o f t h is a r g u m e n t , t h e                endangered species; or the
Commonwealth relies on the following                            keeping of the animals in
passage from the declaration of a Game                          captivity provides some
Commission official:                                            other tangible benefit for the
                                                                welfare and survival of
       The       L egislature      has
                                                                Pennsylvania’s existing
       d el e g a te d t h e G a m e
                                                                wildlife population.
       Commission                 the
       responsibility to “protect,                       App. 121-22 (emphasis added).
       propagate, manage and
                                                                 This passage is insufficient to show
       preserve the game or
                                                         that 34 Pa. Cons. Stat. Ann. § 2901(d)
       wildlife           of     this
                                                         does not create a regime of discretionary,
       Commonwealth.” 34 Pa.
                                                         individualized exemptions under which
       C.S. § 321. The Game
                                                         Blackhawk might qualify if his conduct
       C o m m i s s io n n o r m a l l y
                                                         were not religiously motivated.          The
       considers the keeping of live
                                                         italicized phrases show that the Game
       animals in captivity as being
                                                         Commission’s polic y does not
       inconsistent with sound
                                                         categorically disfavor the keeping of wild
       g a m e a nd w ildlife
                                                         animals in captivity.        Although the
       management, or the overall
                                                         declaration suggests that the keeping of
       purpose of the Game Code.
                                                         wild animals is inconsistent with state
       This is because in general
                                                         wildlife policy unless doing so provides a
       keeping animals in captivity
                                                         “tangible benefit” for the state’s wild
       does not provide any
                                                         animals, this is hardly a self-defining
       positive benefit to the
                                                         concept, and the Commonwealth has not
       welfare of populations of
                                                         explained what the concept means.
       wildlife which live in their

                                                   -9-
Moreover, under 34 Pa. Cons. Stat. Ann. §             interests served by the fee provision to at
2901(d), a person seeking a waiver need               least the same degree as would an
not show that the waiver would be                     exemption for a person like Blackhawk.
“consistent with sound game or wildlife
                                                             The Commonwealth suggests that
management activities.” Instead, a person
                                                      the fee requirement serves two main
seeking a waiver may show that it would
                                                      interests: it brings in money and it tends to
be “consistent with . . . the intent of [the
                                                      discourage the keeping of wild animals in
Game and Wildlife Code],” id., and the
                                                      captivity,       wh ich, as n oted, the
Code clearly does not embody a firm or
                                                      Commonw ealth generally views as
uniform policy against keeping wild
                                                      undesirable. As the Commonwealth’s
animals in captivity. For one thing, it
                                                      brief puts it, “‘in general keeping animals
allows anyone to keep wild animals if they
                                                      in captivity does not provide any positive
pay a $50 or $100 fee. See 34 Pa. Cons.
                                                      benefit to the welfare of populations of
Stat. Ann. § 2904. These modest fees,
                                                      wildlife which live in their natural state
which are comparable to many municipal
                                                      within Pennsylvania.” Appellants’ Br. at
dog license fees, can hardly be viewed as
                                                      12.
expressing a hard policy against the
keeping of wild animals. Furthermore, the                    The exemptions for “nationally
Code provides categorical exemptions                  recognized circuses” and zoos work
from the fee requirement for entities such            against these interests to at least the same
as zoos and “nationally recognized                    degree as the type of exemption that
circuses.” See 34 Pa. Cons. Stat. Ann. §              Blackhawk seeks. The state’s interest in
2965(a)(1)-(3). These exemptions serve                raising money is undermined by any
the Commonw ealth’s interests in                      exemption, and the Commonwealth has
promoting commerce, recreation, and                   not argued, much less shown, that
education, and consequently, a waiver that            religiously based exemptions, if granted,
furthered these or analogous interests                would exceed the exemptions for
might be viewed as consistent with the                qualifying zoos and circuses and
Code’s intent. In sum, then, the waiver               individual waivers under 34 Pa. Cons. Stat.
mechanism set out in 34 Pa. Cons. Stat.               Ann. § 2901(d) for persons with secular
Ann. § 2901(d) creates a regime of                    motivations.
individualized, discretionary exemptions
                                                               The exemptions for nationally
that triggers strict scrutiny.
                                                      recognized circuses and zoos also work
       The categorical exemptions in 34               against the Commonwealth’s asserted goal
Pa. Cons. Stat. Ann. § 2965(a) for zoos               of discouraging the keeping of wild
and “nationally recognized circuses”                  animals in captivity except where doing so
likewise trigger strict scrutiny because at           provides a “tangible” benefit for
least some of the exemptions available                P e n n s y lv a n i a ’ s w i l d l if e . The
under this provision undermine the                    Commonwealth has not explained how


                                               -10-
circuses, whether nationally recognized or                Fraternal Order of Police. There, police
not, provide tangible benefits for animals                officers were prohibited from wearing
living in the wild in Pennsylvania.                       beards so that they would all present the
Similarly, except in special circumstances                same general image to the public. Since
(for example, if a zoo is conducting                      officers working undercover are not
research on animals that are indigenous to                perceived by the public as police officers,
Pennsylvania or is raising animals to be                  allowing undercover officers to wear
released into the wild in Pennsylvania), it               beards did not undermine the purpose of
is difficult to see how the activities of a               the no-beard policy. See Fraternal Order,
zoo provide a tangible benefit for                        170 F.3d at 366. As explained above,
Pennsylvania’s wild animals. Yet under                    however, the exemptions for circuses and
the statute noted above, all zoos are                     zoos work against both of the interests that
exempted. Accordingly, the challenged                     the permit fee is said to serve.
f e e p r o v i s io n s a r e s u bs tantiall y
                                                                              C.
“underinclusive” with respect to its
asserted goals, and they thus fail the                           In arguing that the fee provision
requirement of general applicability.                     should not be subjected to strict scrutiny,
                                                          the Commonwealth takes the position that
        The Commonwealth contends that
                                                          the fee does not violate Blackhawk’s free
the exemptions for circuses and zoos are
                                                          exercise rights because it does not prohibit
“analogous to the prescription exception in
                                                          him from engaging in religiously
Smith and the undercover uniform
                                                          motivated conduct but merely obligates
exception” in Fraternal Order of Police,
                                                          him to pay a modest annual fee. The
but this argument is flawed. Appellants’
                                                          Commonwealth suggests that many laws
Br. at 24 (footnote omitted). In Smith, the
                                                          imposing user fees and other similar fees
state law prohibited the knowing or
                                                          would be thrown into disarray if every
intentional possession of a controlled
                                                          person claiming a religious objection to a
substance unless the substance was
                                                          fee could obtain a waiver.              The
prescribed by a doctor. See 494 U.S. at
                                                          Commonwealth further argues that, if it
874. The purpose of drug laws is to
                                                          granted waivers for persons who keep wild
protect public health and welfare. See id.
                                                          animals for religious reasons, it would be
at 904 (O’Connor, J., concurring in the
                                                          required under the Establishment Clause to
judgment). However, when a doctor
                                                          grant comparable waivers for persons who
prescribes a drug, the doctor presumably
                                                          wish to keep such animals for secular
does so to serve the patient’s health and in
                                                          reasons.
the belief that the overall public welfare
will be served. Therefore, the prescription                      These arguments ignore the content
exception in Smith did not undermine the                  of the statutes that are before us. We are
purpose of the state’s drug laws. The same                not presented here with a neutral and
is true of the undercover exception in                    generally applicable user fee that is


                                                   -11-
uniformly imposed without allowing                    are similar to provisions of the Internal
individualized exemptions. Under Smith,               Revenue Clause involved in Adams v.
such a scheme (barring the applicability of           C.I.R., 170 F.3d 173 (3d Cir. 1999). In
one of the exceptions noted above) would              Adams, a taxpayer did not pay taxes
not trigger strict scrutiny, and a person             because she had a religious objection to
seeking to be excused from paying the fee             the use of tax revenue for miliary
on religious grounds would be unlikely to             purposes, and the IRS assessed
prevail.    Here, by contrast, we are                 deficiencies and penalties against her. Id.
confronted with a scheme that features                at 174-75. The taxpayer argued that
both individualized and categorical secular           requiring her to pay taxes substantially
exemptions, and it is these that trigger              burdened her free exercise of religion and
strict scrutiny. Moreover, because the                violated a provision of the Religious
state statute permits individualized                  Freedom Restoration Act (“RFRA”), 42
exemptions for entirely secular reasons, we           U.S.C. § 2000bb-1, which remained
see no plausible ground on which it could             applicable to the federal government
be argued that the Establishment Clause               despite City of Boerne v. Flores, 521 U.S.
precludes equal treatment for persons who             507 (1997). See 170 F.3d at 175. Under
wish to keep animals for religious reasons.           RFRA, a law that substantially burdens the
                                                      exercise of religion must represent the
       The       Comm onw ealth also
                                                      least restrictive means of furthering a
misapprehends the nature of Blackhawk’s
                                                      compelling government interest.         42
claim. Blackhawk did not ask for a waiver
                                                      U.S.C. § 2000bb-1. Looking to pre-Smith
simply because he possessed the bears for
                                                      cases involving free exercise challenges to
religious reasons. Rather, he asked for a
                                                      the collection of taxes, Adams held that
waiver “because of his Native American
                                                      the RFRA standard was met. 175 F.3d at
beliefs and because the fee would cause
                                                      175-80. The Adams panel then rejected
[him] hardship.” 225 F. Supp. 2d at 470
                                                      the taxpayer’s argument that she had met
(emphasis added).         In addition, the
                                                      the statutory requirements needed to avoid
Commission did not deny the waiver on
                                                      penalties and additions to tax. See id. at
the ground that Blackhawk did not
                                                      180-81. Under the Internal Revenue Code,
establish financial hardship. Instead, the
                                                      these penalties and additions could be
Commission concluded that “Blackhawk
                                                      avoided if the taxpaye r s ho w ed
would not be entitled to an exemption
                                                      “reaso nable c a u s e ” o r “ u n u s u a l
regardless of his financial circumstances.”
                                                      circumstances and unfairness.” See 26
Id. (emphasis added). Thus, although the
                                                      U.S.C. § 6651(a) (no penalty for failure to
Commonwealth argues at some length that
                                                      file if taxpayer demonstrates “reasonable
Blackhawk could scrape together the
                                                      cause”); 26 U.S.C. § 6654(e)(3) (no
money to pay the fee, that question is not
                                                      addition for underpayment of estimated tax
before us.     Finally, the Commonwealth
                                                      where failure is due to “unusual
argues that the fee provisions at issue here
                                                      circumstances” and addition would be

                                               -12-
“against equity and good conscience”).                 to at least the same degree as would an
Invoking a “well established line of cases             exemption for those in the class of the
involving challenges to the collection of              person mounting the challenge. The
taxes on religious grounds,” 170 F.3d at               Adams footnote did not go on to address
181, the panel held in the body of its                 this latter argument, but in any event the
opinion that the taxpayer was ineligible for           argument was doomed by the panel’s
relief under the provisions on which she               discussion of the RFRA issue. The panel’s
relied. Id. Then, in a footnote, Adams                 discussion of that issue made it clear that
quickly rejected the taxpayer’s contention             the relevant Code provisions met strict
that these provisions created a mechanism              scrutiny because they served a compelling
for individual exemptions similar to that in           interest (“the ‘uniform, mandatory
the unemployment compensation cases and                participation in the Federal income tax
that “the failure to extend those                      system,’” 170 F.3d at 178 (citation
exemptions to a case of religious hardship             omitted), and were narrowly tailored to
constitute[d] discrimination on the basis of           serve that interest in the sense relevant in
religious belief.” Id. at 181 n.10. Adams              this context. See id. at 179-80.
held that the provisions of the Internal
                                                               Properly understood, therefore, the
Revenue Code on which the taxpayer
                                                       Adams footnote does not support the
relied did not create a scheme of individual
                                                       Commonwealth’s position here. In this
exemptions under which she might have
                                                       case, as previously explained, 34 Pa. Cons.
qualified if she had refused to file for
                                                       Sat. Ann. § 2901(d) does not categorically
secular, as opposed to religious, reasons.
                                                       exclude persons wishing to keep animals
Id. On the contrary, as previously noted,
                                                       for religious reasons. In addition, 34 Pa.
Adams held that these provisions are
                                                       Cons. Stat. Ann. § 2965(a)(1)-(3) contains
categorically inapplicable to the taxpayer
                                                       secular exemptions that preclude the fee
for facially neutral reasons. Id.
                                                       scheme from satisfying the requirement of
        The Adams footnote stands for the              general applicability. As a result, the fee
proposition that the free exercise rule                provisions must satisfy strict scrutiny.
regarding individual exemptions does not
                                                                           III.
apply if the class of persons who may seek
such an exemption is defined in facially                      In order to survive strict scrutiny,
neutral terms and the person challenging               the fee scheme “must advance interests of
the scheme does not fall within that class.            the highest order and must be narrowly
In that situation, the person challenging the          tailored in pursuit of those interests.”
scheme must argue instead that the scheme              Lukumi, 508 U.S. at 546 (internal
fails the requiremen t of gen eral                     quotation marks omitted). In this case, the
applicability because exempting the class              Game Commission asserts that the fee
of persons who fall within the statutory               scheme serves two compelling interests:
exemption undermines the statute’s goals               (1) “promot[ing] the welfare and


                                                -13-
prosperity of wildlife populations” and (2)             the possession of wild animals as a matter
“maintaining the fiscal integrity of its                “of the highest order.”
permit fee system.” Appellants’ Br. at 28.
                                                                Much the same is true with respect
           It is doubtful that these interests          to the Commonwealth’s asserted interest in
qualify as compelling. In Lukumi, 508                   the financial integrity of the fee system.
U.S. at 546-47, the Court held that                     Because the Commonwealth makes
“[w]here government restricts only                      waivers available for persons seeking to
conduct protected by the First Amendment                keep animals for secular reasons, the
and fails to enact feasible measures to                 Commonwealth plainly does not regard
r e str i c t other conduct prod ucin g                 waivers as a great threat.
substantial harm or alleged harm of the
                                                                Furthermore , e ve n       if the
same sort, the interest given in justification
                                                        Commonwealth’s asserted interests are
of the restriction is not compelling.” Here,
                                                        compelling, the fee scheme is not narrowly
the fee scheme has precisely this flaw.
                                                        tailored to further them.            If the
Denying fee exemptions to otherwise
                                                        Commonwealth wishes to reduce the
qualified persons who wish to keep
                                                        number of wild animals held in captivity
animals for religious reasons may produce
                                                        or to reduce the number held by persons
a small decrease in the total number of
                                                        who cannot afford a $100 or $50 annual
wild animals held in captivity, but if the
                                                        fee (and these are the only effects that
Commonwealth regarded it as a matter “of
                                                        denying the exemptions at issue can have),
the highest order” to reduce the number of
                                                        the scheme is substantially underinclusive
wild animals in captivity, it could do much
                                                        for the reasons already set out. As a result,
more. For one thing, it could increase the
                                                        the scheme cannot satisfy strict scrutiny.
fees for menagerie and exotic wildlife
possession permits, now set at $100 and                 We therefore affirm the injunction issued
$50 per year respectively, to levels that               by the District Court.
would provide a substantial disincentive
                                                                            IV.
for those who are not poor. Similarly, if
the Commonwealth believes that persons                         We proceed to address the question
who cannot afford a $100 or $50 annual                  of the individual defendants’ liability for
permit fee should not keep wild animals                 money damages. The District Court
because such persons are likely to find it              granted summary judgment to Merluzzi
difficult to provide adequate care for the              and Hambley on the ground that they “did
animals, the Commonwealth could do                      not participate in the decision to deny
away with all “hardship” waivers.                       Black Hawk an exemption” and did not
Because the Commonwealth sets its fees at               “‘direct[] others to violate’” his rights.
modest levels and provides for “hardship”               Black Hawk, 225 F. Supp. 2d at 479
waivers, the Commonwealth clearly does                  (brackets in original). The Court excluded
not regard the objective of discouraging                Ross, Littwin, and Overcash from this


                                                 -14-
analysis, because Ross “had ‘actual                   exemptions, a reasonable officer in the
knowledge’ and acquiesced in the decision             position of the defendants could have
to deny Black Hawk an exemption,” and                 concluded otherwise. Section 2901(d) is
because Littwin and Overcash conceded                 more structured than the unemployment
that they “were personally involved in the            compensation statutes, which permitted
decision to deny Black Hawk an                        exemptions for “good cause,” see Smith,
exemption.” Id. (citing Andrews v. City of            494 U.S. at 884, and a reasonable officer
Philadelphia, 895 F.2d 1469, 1478 (3d Cir.            could have viewed § 2901(d) as analogous
1990) (holding that supervisor liability can          for present purposes to the Internal
be established “‘through allegations of               Revenue Code provisions that Adams held
personal direction or of actual knowledge             did not provide for individual exemptions.
and acquiescence’”) (quoting Rode v.                  See 170 F.3d at 181 n.10.
Dellarciprete, 845 F.2d 1195, 1207 (3d
                                                             The meaning of the general
Cir. 1988))). Nevertheless, the Court
                                                      applicability principle was also not clearly
determined that all three remaining
                                                      developed in the governing cases at the
individual defendants were entitled to
                                                      time in question. Smith did not explain
qualified immunity.
                                                      how to identify laws that fail the test, and
        We hold that all of the defendants            Lukumi, while providing useful guidance,
were entitled to qualified immunity, and              explicitly disclaimed any intention of
we therefore affirm the order of the                  “defin[ing] with precision . . . whether a
District Court on this basis. A government            prohibition is of general application.” 508
officer defendant sued for a constitutional           U.S. at 543. Moreover, our decisions on
violation is entitled to qualified immunity           March 3 and 4, 1999, in Fraternal Order of
if a reasonable officer could have believed           Police and Adams could have reasonably
that the challenged conduct was lawful                been interpreted as sending conflicting
under the circumstances. Anderson v.                  signals. As just discussed, the provisions
Creighton, 483 U.S. 635, 641 (1987).                  of the Internal Revenue Code at issue in
Qualified immunity “provides ample                    Adams could have been reasonably
protection to all but the plainly                     regarded as similar to the provisions of the
incompetent or those who knowingly                    Pennsylvania Game and Wildlife Code
violate the law.” Malley v. Briggs, 475               involved here, but we held that the Internal
U.S. 335, 341 (1986). See also Saucier v.             Revenue Code provisions did not create a
Katz, 533 U.S. 194, 202 (2001).                       regime of individual exemptions. The
                                                      previous day, in Fraternal Order of Police,
       In this case, the governing
                                                      we had explained that the individual
precedents were complex and developing.
                                                      exemption rule is simply one application
Although we now hold that the waiver
                                                      of the broader general-applicability
procedure in 34 Pa. Cons. Stat. Ann. §
                                                      requirement. See 170 F.3d at 365-66.
2901(d) is sufficiently open-ended to
                                                      Thus, reading Adams in light of Fraternal
constitute a system of individual

                                               -15-
Order of Police, a reasonable officer could
have been led to read Adams as holding
that the Internal Revenue Code provision
also satisfied the general applicability
requirement. Not surprisingly, Adams is a
centerpiece of the Commonwealth’s
argument in this appeal in support of the
constitutionality of the de nial of
Blackhawk’s waiver request. Although we
find Adams to be distinguishable for the
reasons explained above, a reasonable
officer in the position of the defendants,
after reviewing Adams and the other
leading cases that had been decided at the
time, could have concluded that the denial
was constitutional.
                   IV.
       After considering all of the
arguments raised in the appeal and cross-
appeal, we affirm the judgment of the
District Court in all respects.




                                              -16-
