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OPINION OF THE
COURT ALITO, Circuit Judge:
This is an appeal by officials of the Pennsylvania Game
Commission from an order permanently enjoining them from
enforcing a permit fee provision of the
state Game and Wildlife Code against
Dennis Blackhawk on the ground that the Commission’s current
waiver policy violates his right to the free exercise of religion.
Blackhawk in turn cross-appeals the District Court’s holding that the Game
Commission officials are not personally liable for violating his rights.
We affirm the District Court in both respects.
I.
Lakota Indians believe that
black bears protect the Earth, sanctify religious ceremonies, and imbue
worshipers with spiritual strength. Although Blackhawk is a Lenape Indian
by birth, he was adopted by elders of the Oglala Lakota and Senecatribes,
who schooled him in t he religious traditions of the Lakota and
Iroquois people. When Blackhawk began to see bears in a recurring
dream, Lakota tribal elders concluded that the dream was a prophesy
and predicted that Blackhawk would derive spiritual power from the
animals.
In 1994, Blackhawk purchased two
black bear cubs, a male and a female named Timber and Tundra.
He moved to Pennsylvania in 1995 and began conducting religious ceremonies
with the bears on his property. Members of various American Indian
tribes visit Blackhawk from across the country to participate in these
rituals. Due to Blackhawk’s stewardship of the bears and his role in
these ceremonies , some consider him to be a holy man.
The Pennsylvania Game and Wildlife
Code requires permits in order to engage in a variety of different activities,
including such things as bird banding (34Pa. Cons. Stat. Ann. § 2921), falconry
(34Pa. Cons. Stat. Ann. § 2925), various types of field dog trials (34 Pa. Cons.
Stat. Ann. 2943), fox chasing (3 4 Pa. Con s. Stat. Ann. § 2945), maintaining a
“menagerie ” (34 Pa. Cons. Stat . Ann. § 2964), and either
dealing in or possessing “exotic wildlife.” 34 P a. Cons. Stat .
Ann. §§ 2962, 2963. Annual fees ranging from $25 to $300 are collected for
these permits, see 34 Pa. Cons. St at. Ann. § 2904, and the revenues from
all of these fees comprise about on e percent of the Game
Commission’s annual intake.
Although persons wishing to keep wildlife in captivity
must generally obtain menagerie or exotic wildlife possession permit and
pay the requisite fee, see 34 Pa. Cons. Stat. Ann. §§ 2904, 2964(c) (1), the
Code excludes from these requirements most zoos and all “[n]ationally
recognized circus [es] .” 34 P a. Cons. Sta t. An n. § 2965(a)(1)–(3). In
addition, the director of the Game Commission is authorized to waive a permit
fee “where hardship or extraordinary circumstance warrants,” so long as
the waiver is “ consistent with sound game or wildlife management activities or
the intent of [the Game and Wildlife Code]” 34 Pa. Cons. Stat. Ann. § 2901(d).
From 1995 to 1999, Blackhawk obtained permits to own
the bears. At first, he acquired a “menagerie
permit,” but bears are classified under the Game and Wildlife Code as “exotic
wildlife,” see 34 Pa. Cons. Stat. Ann. § 2961, and special permits are required
for those wishing to deal in or possess exotic wildlife. See 34 Pa. Cons.
Stat . Ann. §§ 2904, 2962, 2963. Beginning in 1997, the Game Commission
insisted that Blackhawk obtain an exotic wildlife dealer permit,
which costs $200 per year, see 34 P a. Cons. Sta t. An n. § 2904,
because Frederick Merluzzi, a wildlife conservation officer, believed that
Blackhawk intended to breed the bears and sell their cubs. If
Blackhawk did not wish to deal in bears but merely to keep them, he needed only
an exotic wildlife possession permit, for which the annual fee is
$50. See 34 Pa. Cons. Stat. Ann. § 2904.
In 1998, Blackhawk sought an exemption from the
permit fee on the ground that he possessed the
bears for Native American religious purposes. After making an inquiry to
the Bureau of Indian Affairs,
Merluzzi informed Blackhawk that Native Americans who possess a Bureau of
Indian Affairs identification card are entitled to some exemptions under federal
law, but Blackhawk did not possess such a card. Blackhawk paid the
1998 fee under protest after citing his religious purpose and alleging
financial
hardship. He then wrote t o his representative in the state legislature,
Keith McCall, and McCall intervened and asked Commission director Vernon
Ross to oversee the situation personally. On October 6, 1999,
Blackhawk received a letter from Commission officials Thomas
Littwin and David Overcash
informing him that he did not qualify for a waiver under 34 Pa. Cons.
Stat. Ann. § 2901(d) because the commission regarded the
keeping of wild animals in captivity as inconsistent with sound game and
wildlife management activities unless the animals were intended for
release into the wild. Since Timber and Tundra had been declawed and
had been kept in captivity their entire lives, they could not be released
into the wild.“Thus, in the Commission’s view, Blackhawk [was] not
entitled to an exemption regardless of his financial circumstances.”
Black Hawk v .Pennsylvania, 225 F. Supp. 2d 46 5, 470(M.D. Pa. 2002). The
letter from Littwin and Overcash told Blackhawk that, because his permit had
expired on June 30, 1999, if he still possessed the bears he was subject to
prosecution.
Blackhawk responded by again
requesting a waiver, and in November of 1999, Merluzzi filed criminal charges
against Blackhawk for failing to renew.
Blackhawk filed an action under 42 U.S.C. § 1983,
seeking to enjoin the Game Commission from assessing the fee or
confiscating the bears and also seeking money damages from Merluzzi,
Overcash, Littwin, Hambley, and Ross. Prior to the District Court’s
disposition of the case , a state magistrate found Blackhawk guilty of the
criminal charges and assessed a$178,400 fine, which he later reduced to
$6,442. However, the Court of Common Pleas stayed the criminal
case pending a ruling on Blackhawk’s § 1983 action.
In August of 2000, Blackhawk
discovered that the bears’ enclosure had been vandalized, that the
locks on the enclosure had been cut, and that the animals
were missing. A neighbor encountered Tundra on his property and was
attempting to lead the bear back to the pen when Tundra bit him. The
neighbor alerted the Game Commission, which tracked the bears and
tranquilized them. An official who was attempting to restrain Tundra was also
bitten by the bear, but the Commission succeeded in taking bothbears
into custody. It then sought to destroy the bears pursuant to a
regulation requiring wild animals who have bitten humans to be decapitated
in order to be tested for rabies. See 28 Pa. Code
§ 27.103(f )(2). The District Court enjoined the Commission from
destroying the bears and ordered their return. See Black Hawkv.
Pennsylvania, 114 F. Su pp. 2d 327 (M.D. Pa. 2000).
When the District Court reached the merits of the
civil case, it held that the Game Commission’s refusal to exempt
religiously mo tivated activities from the permit fee violated the First
Amendment’s Free Exercise Clause. See Black Hawk, 225 F. Sup p. 2d
at 4 65. The Court held that the permit fee requirement was not a “‘valid
and neutral law of general applicability’” under Employment
Div., Dep’t of Human Resources of Oregon v.Smith, 494 U.S. 872, 879
(1990), because the statutory waiver established a “‘system of individualized
exceptions.’” Black Hawk, 225 F. Supp. 2d at 473. The
Court accordingly applied strict scrutiny to the waiver scheme, id. at 472
–73, and held that the scheme could not withstand strict scrutiny because the
Com mission was unable to “demonstrate a compelling interest in refusing to
grant a religious exemption.” Id. at 477. The District Court
accordingly enjoined the Game Commission from charging
Blackhawk a permit fee. However, t he Court declined to hold the
individual defendants liable under § 1983 because it
found that Merluzzi and Hambley were not personally
responsible for violating Blackhawk’s rights and that Ross ,
Littwin, and Overcash were entitled to qualified immunity.
On appeal, the Commission argues that the First
Amendment does not entitle Blackhawk to a waiver , and Blackhawk
contends that the Distric t Court erred in granting summary judgment
in favor of the individual defendants . We exercise plenary review over a
grant of summary judgment, Northview Motors, Inc. v. Chrysler Motors
Corp. , 227 F .3d 78, 87–88 (3d Cir. 2000), and likewise review de novo the
District Court’s interpretation of t he Constitution. United States
v. Scarfo, 263 F.3d 80, 91 (3d Cir. 2001 ).
II. A.
Blackhawk’s free exercise claim requires us to apply the Supreme
Court’s decisions in Employment Div. , Dep’t of Human Resources of Oregon v .
Smith, supra, and Church of Lukumi Babalu Aye,Inc. v. Hialeah, 508
U.S. 520 ( 1993)(“Lukumi”), and our decisions in Fraternal Order of Police v .
City of Newark, 170 F.3d 359 (3d Cir. 1999 ) (“Fraternal Order of Police”), and
Tenafly Eruv Ass’n, Inc. v. Borough of Tenafly, 309 F.3d 144 ( 3d Cir. 2002) (“
Tenafly”). Based on these decisions, we agree with the District
Court that Blackhawk’s free exercise rights were violated.
In Smith, the Supreme Court opened a new
chapter in the interpretation of the Free Exercise Clause . The Court
began by reaffirming the principle that the Clause prohibits “al l
‘governmental regulation of religious beliefs as such.’” 494 U.S. at 877 (
quoting Sherbert v. Verner, 374 U .S. 398, 402 (1 963)) (emphasis in
Sherbert). The Court held, however, that most laws that
burden religiously motivated conduct stand on a different footing.
Rejecting the argument that such laws must generally satisfy strict scrutiny,
the Court concluded that the First Amendment is not ordinarily offended by
neutral” and “generally applicable” laws that merely have “the incidental
effect” of burdening religiously motivated conduct. 494 U.S. 878, 879,
881.
The Court recognized several exceptions to this
rule. First, the Court did not overrule prior decisions in which “hybrid
claims” (i.e., claims involving “not the Free Exercise Clause alone, but
the Free Exercise Clause in
conjunction with other constitutional protections”) had prevailed against
“neutral, generally applicable law[s ].” Id. at 881 (citations
omitted). Nor did the Court overrule Sherbert and other
decisions that “invalidated state unemployment compensation rules that
conditioned the availability of benefits upon an applicant’s willingness
to work under conditions forbidden by his religion.” Id. at
883. Finally, the Court observed that even if it “were inclined to breathe into
Sherbert some life beyond the unemployment field, [the Court] would not
apply it to require exemptions from a generally applicable criminal law.”
Id. at 8 84. The Court wrote:
The Sherbert test, it must be recalled, was
developed in a context that lent itself to individualized governmental
assessment of the reasons for the relevant conduct. . . .Our decisions in the
unemployment cases stand for the proposition that where the State
has in place a system of individual exemptions, it may not refuse to
extend that system to cases f ‘religious hardship’ without
compelling reason.
Id. at 884 (citation omitted).
In Lukumi, the Court applied
Smith to a web of city ordinance s that interfered with the practice of
Santeria, a religion that employs the sacrifice of animals in its rituals.
The ordinances prohibited the killing of animals in Santeria rituals
but excluded almost all other animal killings, including killings
that occurred in connection with hunting, fishing, meat production,
pest extermination, euthanasia, and the use of rabbits to train greyhounds. Id.
at 536-37. The Court held that these “gerry mandered” ordinance s
were neither “neutral” nor “generally applicable,” id. at 533-46, and that
they could not withstand strict scrutiny. Id. at 546-47.
The Lukumi Court’s discussion of the
requirement of general applicability is particularly important for
present purposes. While the Court did not attempt to “define
with precision the standard used to evaluate whether a prohibition is of
general application,” id. at 543, the Court’s discussion of the requirement
is instructive. The principal ordinances challenged in Likumi we
reclaimed to advance two interests – preventing cruelty to animals and
protecting public health --but the Court concluded that the ordinances failed
the general applicability standard because they were “under inclusive for
[their assert ed] ends” and “[t]h e under inclusion [was ] substantial,
not inconsequential.” Id. at 543. The Court explained that the
ordinance s were “underinclusive” because they “fail[e d] to prohibit
nonreligious conduct that endanger[e d] these interests in a similar or greater
degree than Santeria sacrifice does .” Id.
The Court added: The ordinance s “ha[ve] every appearance of
a prohibition that society is prepared to impose upon [Santeri
a worshippers ] but not upon its elf.” . . . This precise evil is
what the requirement of general applicability is designed to
prevent.
Id. at 545-46 ( quoting Florida Star v. B.J.F., 491 U.S. 524, 542 (1989) (Scalia,
J. concurring in part and concurring injudgment) .
Applying these precedents, we held in Fraternal
Order of Police that the Free Exercise Clause was violated by a city’s
practice of prohibiting police officers from wearing beard s for religious
reasons but allowing officers to wear beards for medical reasons.
See 170 F.3d at 364-67.
In reaching this conclusion, we drew on both the
Court’s discussion of “individualized exemptions” and the general
applicability requirement. Id. at 364-66. We explained
that a system that permits individualized, discretionary exemptions
provides an opportunity for the decision maker to decide that
“secular motivations are more important thanreligious motivations” and thus to
give disparate treatment to cases that are otherwise comparable. 170
F.3d at 365. “If anything,” we stated, “this concern is only further implicated
when the government does not merely create amechanism for
individualized exemptions, but instead, actually creates a categorical exemption
for individuals with a secular objection but not for individuals with a
religious objection.” Id.
Concluding that the policy in question was suspect for precisely
this reason, we wrote:
[T]he medical
exemption raises concern because it
indicates that the Department has made a value judgment
that secular (i.e., medical) motivations for wearing a beard
are import ant enough to overcome its general
interestin uniformity but that
religious motivations are not. . . .
[W]hen the government makes a value
judgment in favor of secular motivations,
but not religious motivations, the government’s
actions must survive heightened scrutiny.
Id. at 3 66. We therefore applied
strict scrutiny and held that the no-beards
policy could not satisfy that standard. Id. at 366- 67.
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In Tenafly, we considered a local ordinance that was
neutral and generally applicable on its face but that had been
enforced in a discriminatory manner. See 309 F.3d at 167-72.
The ordinance banned the placement of any “‘ sign oradvertisement, or
other matter upon any pole, tree, curbstone, sidewalk or elsewhere,
in any public street or publicplace, excepting such as may be authorized by t
his or any other ordinance of the Borough.’” 309 F.3d at 151
(citation omitted). The local government, however, had
permitted the placement on utility poles of many types of signs and
symbols, including house number signs, signs pointing the way to area churches,
lost animal signs, holiday symbols, and orange ribbons signifying opposition to
school regionalization. Id. at 151 . By contrast, the local go
vernment refused to permit Orthodox Jews to place lechis on utility poles
in order to construct aneruv, a ceremonial demarcation of an area
within which Orthodox Jew s may push or carry objects on the Sab bath.
Id. at 152. We thus held that “the Borough’s selective,
discretionary applic ation of [the ordinance ] violates the
neutrality principle of Lukumi and Fraternal Order of Police because it
‘devalues’ Orthodox Jewish reasons for posting items on utility poles by
‘judging them to be of lesser import than nonreligious reasons,” and thus
‘single[s] out’ the plaintiffs’ religiously
motivated conduct for
discriminatory treatment.” Id. at 168 (quoting Lukumi, 508
U.S. at 537, and Fraternal Order of police, 170 F.3d
at 364 -65 (footnote omitted)).
The teaching of Smith,
Lukumi, Fraternal Order of Police, and Tenafly may be summarized as
fol lows. The Free Exercise Clause forbids any regulation of beliefs
as such. See Lukumi, 508 U.S. at 533; Smith, 494 U.S. a t 877. On
the other hand, with the exceptions noted above, a “neutral” and
“generally applicable” law that burdens conduct regardless of whether it
is motivated by religious or secular concerns is not subject to strict
scrutiny. See Lukumi, 508 U.S. at 546; Smith, 494 U.S. at 878. A law is
“neutral” if it doe s not target religiously motivated conduct either on
its face or as applied in practice. See Lukumi, 508 U.S. at 533- 40; Tenafly,
309 F.3d at 167. A law fails the general applicability requirement if it
burdens a category of religiously motivated conduct but exempts or does
not reach a substantial category of conduct t hat is not religiously motivated
and that undermines the purposes of the law to at
least the same degree as the covered conduct that is religiously motivated.
Lukumi, 508 U.S. at 543-46; Fraternal Order of Pol ice, 170 F.3d at 364-66 .
If a law burdening religiously motivated conduct is not neutral and
generally applicable it must satisfy strict s crutiny. See Lukumi,
508 U.S. at 546 ; Smith 494 U.S. at 878. Accordingly, it must
serve a compelling government interest and must be narrowly tailored to
serve that interest. Lukumi, 508 U.S. at 546. Similarly, a law
must satisfy strict scrutiny if it permits individualized, discretionary
exemptions be cause such a regime
creates the opportunity for a facially neutral and generally applicable
standard to be applied in practice in a way that discriminates
against religiously motivated conduct. Lukumi, 508 U.S. a t 537;
Smith, 4 94 U .S. at 88 4, Fraternal Order, 170 F.3d at 364-65.
B.
The fee requirement at issue here fails the general
applicability requirement for two reasons. First, the Game
Code creates a regime of individualized, discretionary exemptions
that is not materially distinguishable from those that triggered
strict scrutiny in the unemployment compensation cases . Under the laws
involved in those cases, benefits were generally denied if a person had
quit or refused work, but individualized exemptions were
available for persons who had quit or refused work for “good cause.”
See Smith, 494 U.S. a t 884. Under 34 P a. Con s. St at. A nn. §
2901(d), a person may obtain a waiver from the fee requirement if the
person shows “hardship” or “ extraordinary circumstances” and the waiver
is consistent with “sound game or wildlife management activities or the
intent of [the Game and Wildlife C ode].” Blackhawk does not claim that
he is entitled to an exemption from the “hardship
”requirement, and the regulation’s remaining requirements –
consistency with sound game or wildlife management activities or the intent of
Code – are sufficiently open-ended t o bring the
regulation within t he individualized exemption rule.
The Commonwealth contends,
however, that the regulation categorically rules out waivers for persons,
like Blackhawk, who wish to keep animals for religious reasons.
This is so, the Commonwealth maintains, because keeping animals for
religious reasons is not consistent with state wildlife policy. In
support of this argument, the Commonwealth relies on the
following passage from the declaration of a Game Commission official:
| The
Legislature has de legated the
Game Commission the responsibility to
“protect, propagate , manage and preserve the
game or wildlife of this Common
wealth.” 34 Pa. C.S. § 321.
The Game Commission
normally considers the keeping of live
animals in captivity as being inconsistent with
sound game an d wild life management, or
the overall purpose of the Game Code. This is
because in general keeping animals in captivity
does not provide anypositive benefit to
the welfare of populations of wildlife
which live in their natural
state within the Commonwealth. The
only exception would be where such activity is
done with the intent of reintroducing
those animals - or their offspring - into
the wild; the animals are members of an
endangered species ; or the keeping
of the animals in captivity provides
some other tangible benefit for the welfare and
survival of Pennsylvania’s existing
wildlife population. |
App. 121-22 (emphasis added).
This passage is insufficient to show
that 34 P a. Con s. St at. A nn. § 2 901(d) does not create a regime of
discretionary, individualized exemptions under which Blackhawk might qualify if
his conduct were not religiously motivated. The italicized
phrases s how that the Game Commission ’s policy does not
categorically disfavor the
keeping of wild animals in captivity. Although the declaration
suggests that t he keeping of wild animals is inconsistent with state
wildlife policy unless doing so provides a “tangible benefit” for the state’s
wild animals, this is hardly a self- defining concept, and the
Commonwealth has not explained what the concept means.
Moreover, under 34 Pa. Cons. Stat. Ann. § 2901(d), a person
seeking a waiver need not show that t he waiver would be “consistent with
sound game or wildlife management activities.” Instead, a
person seeking a waiver m ay show that it would be
“consistent wit h . . . the intent of [t he Game and Wildlife
Code],” id., and t he Code clearly does not embody a firm or
uniform policy against keeping wild animals in cap tivity. For on e
thing , it allows anyone to keep wild animals if they pay a $5 0 or $100
fee. See 34 Pa. Con s. Stat. Ann. § 2904 . These modest fees,
which are comparable to many municipal dog license fees, can
hardly be viewed as expressing a hard policy against the keeping of wild
animals. Furthermore, the Code provides categorical exemptions from
the fee requirement for entitties such as zoos and “nationally recognized
circuses.” See 34 Pa. Cons. Stat. Ann. § 2965(a)(1)-(3).
These exemptions serve the Commonwealth’s interests in
promoting commerce, re creation, and education, and consequently, a waiver
that furthered these or analogous interests might be viewed as
consistent with the Code’s intent. I n sum, then, the waiver
mechanism set out in 3 4 Pa. C ons. S tat. Ann. § 2
901(d) creates a regime of individualized, discretionary
exemptions that triggers strict scrutiny.
The categorical exemptions in 34 Pa. Cons. Stat .
Ann. § 2 965(a) for zoos and “nationally recognized circuses”
likewise trigger strict scrutiny because at least some of the
exemptions available under this provision undermine the interests
served by the fee provision to at least the same degree as would an
exemption for a person like Blackhawk.
The Common wealth suggests that the fee
requirement serves two main interests: it brings in money and it tends to
discourage the keeping of wild animals in captivity, which, as
noted, the Commonwealth generally views as undesirable. As the
Commonwealth’s brief puts it, “‘in general keeping animals
in captivity does not provide any positive benefit to the
welfare of populations of wildlife which live in their natural
state within Pennsylvania.” Appellant s’ Br. at 12.
The exemptions for “nationally recognized
circuses” and zoo s work against these interests to at
least the same degree as the type of exemption that Blackhawk seeks.
The state’s interest in raising money is undermined by any
exemption, and the Commonwealth has not argued, much less shown, that
religiously based exemptions, if granted, would exceed the
exemptions for qualifying zoos and circuses and
individual waivers under 34 Pa. Cons. Stat. Ann. § 2901 (d) f or persons
wit h secular motivations.
The exemptions for nationally recognized
circuses and zoos also work against the Commonwealth’s asserted goal
of discouraging t he keeping of wild animals in captivity except where
doing so provides a “tangi le” benefit for
Pennsylvania’s wildlife. The Commonwealth has not
explained how circuses, whether nationally recognized or not,
provide tangible benefits for animals living in the wild in
Pennsylvania. Similarly, except in special circumstances (for
example, if a zoo is conducting research on animals t hat are
indigenous to Pennsylvania or is raising animals to be released into
the wild in Pennsylvania), it is difficult to see how the activities
of a zoo provide a tangible benefit for Pennsylvania’s wild
animal s. Yet under the statute noted above, all zoos are exempted.
Accordingly, the challenged fee provisions are substantially
“underinclusive” with respect to its asserted goals, and they thus
fail the requirement of general applicability.
The Commonwealth contends that the exemptions for
circuses and zoos are “analogous to the prescription exception in
Smith and the under cover uniform exception” in Fraternal
Order of Police, but this argument is flawed. Appellants’
Br. at 24 (footnote omitted). In Smith, the state law
prohibited the knowing or intentional possession of a controlled
substance unless t he substance was prescribed by a doctor. See 494
U.S. at 874. The purpose of drug laws is to
protect public health and welfare. See id. at 904 (O
’Connor, J ., concurring in the judgment). However, when
a doctor prescribes a drug, the doctor presuably does so
to serve the patient’s health and in the belief that the overall
public welfare will be served. Therefore, the
prescription exception in Smith did not under mine the
purpose of the state’s drug laws. The same is t rue of
the undercover exception in Fraternal Order of Police.
There, police officers were prohibited from wearing beards so that
they would all present the same general image to the public .
Since officers working undercover are not perceived by
the public as police officers, allowing undercover officers to
wear beards did not under mine the purpose of the no-beard
policy. See Fraternal Order , 170 F.3d at 366. As
explained above, however, the exemptions for circuses and zoos work
against both of the interests that the permit fee is said to serve.
C.
In arguing that the fee
provision should not be subjected to strict scrutiny, the
Commonwealth takes the position that the fee does not violate Blackhawk’s
free exercise rights because it does not prohibit him
from engaging in religiously motivated conduct but merely obligates
him to pay a modest annual fee. The Commonwealth
suggests that many laws imposing user fees and other similar
fees would be throw n into disarray if every person claiming a
religious objection to a fee could obtain a waiver. The
Commonwealth further argues that, if it granted waivers for persons who
keep wild animals for religious reasons, it would be required
under the Establishment Clause to grant comparable waivers for persons who
wish to keep such animals for secular reasons.
These arguments ignore the content of
the statutes that are before us. We are not present ed here with a
neutral and generally applicable user fee that is uniformly
imposed without allowing individualized exemptions. Under Smith,
such a scheme (barring the applicability of one of the exceptions noted
above) would not trigger strict scrutiny, and a
person seeking to be excused from paying the fee on religious
grounds would be unlikely to prevail. Here, by con trast, we are
confront ed with a scheme t hat features both individualized and
categorical secular exemptions, and it is these that
trigger strict scrutiny. Moreover, because the state
statute permits individualized exemptions for entirely secular reasons, we
see no plausible ground on which it could be argued that the
Establishment Clause preclude s equal treatment for persons who
wish to keep animals for religious reasons.
The Commonwealth also
misapprehends the nature of Blackhawk’s claim. Blackhawk
did not ask for a waiver simply because he possessed the bears for
religious reasons. Rather, he asked for a waiver “because of
his Native American beliefs and because the fee would cause [him]
hardship.” 225 F. Supp. 2d at 470 (emphasis added). In
addition, the Commission did not deny the waiver on the ground
that Blackhawk did not establish financial hardship. Instead, the
Commission concluded t hat “Blackhawk would not be entitled to an
exemption regardless of his financial circumstances .” Id. (emphasis
added). Thus, although the Commonwealth argues at some length
that Blackhawk could scrape together the money to pay the fee,
that question is not before us. Finally, the
Commonwealth argues that the fee pro visions at issue here are
similar to provisions of the Internal Revenue Clause involved
in Adams v. C.I.R., 170 F.3d 1 73 (3d Cir. 199 9). In Adams, a
taxpayer did not pay taxes because she h ad a religious objection to
the use of tax revenue for miliary purposes, and the I RS assessed
deficiencies and penalties against her. Id. at 174-75. The taxpayer
argued t hat requiring her to pay taxes substantially burdened
her free exercise of religion and violated a provision of the
Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. § 2000 bb-1,
which remained applicable to the federal government despite City of
Boerne v. Fl ores, 521 U.S. 507 (1997) . See 170 F.3d at 175.
Under RFRA, a law that substantially burdens the exercise of
religion must represent the least restrictive means of
furthering a compelling government interest. 42 U.S.C. § 2000bb-1.
Looking to pre-Smith cases involving free exercise challenges to the
collection of taxes, Adams held that the RFRA standard was met. 175
F. 3d at 175-80. The Adams panel t hen rejected the
taxpayer’s argument t hat she had met the statutory requirements needed to
avoid penalties and additions to tax. See id. at 180-81.
Under the Internal Revenue Code, these penalties and additions could be
avoided if the taxpayer showed “reasonable cause” or
“unusual circumstances and unfair ness.” See 26 U.S.C. §
6651(a) ( no penalty for failure to file if taxpayer demonstrates
“reasonable cause”); 26 U .S.C. § 665 4(e)(3) (no
addition for underpayment of estimated tax where failure is due to
“un usual circumstances” and addition would be “against equity
and good conscience” ). Invoking a “well established line of
cases involving challenges to the collection of
taxes on religious grounds ,” 170 F.3d a t181, the panel held in t he body
of its opinion that the taxpayer was ineligible for relief under the
provisions on which she relied. Id. Then, in
a footnote, Adams quickly rejected the taxpayer’s contention
that these provisions created a mechanism for individual exemptions
similar to that in the unemployment compensation cases and
that “the failure t o extend those exemptions to a case of religious
hardship constitute[d] discrimination on the basis of religious belief.”
Id. at 181 n.10. Adams held that the provisions of the
Internal Revenue Co de on which the taxpayer relied did not create a
scheme of individual exemptions under which
she might have qualified if she had refused to file for secular, as
opposed to religious, reasons. Id. On the contrary, as
previously noted, Adams held that these provisions a recategorically
inapplicable t o the taxpayer for facially neutral reasons. Id.
The Adams footnote stands for the
proposition that the free exercise rule regarding individual
exemptions does not apply if the class of persons who may seek such
an exemption is defined in facially neutral terms and the
person challenging the scheme does not fall within that class. In
that situation, the person challenging the scheme must argue
instead that the scheme fails the requirement of general
applicability because exempting the class of persons who fall
within the statutory exemption undermines the statute’s goals
to at least the same degree as would an exemption for those in
the class of the person mounting the challenge. The
Adams footnote did not go on to address this latter argument, but in
any event the argument was doomed by the panel’s discussion of
the RFRA issue. The panel’s discussion of that issue m de it
clear that the relevant Code provisions met strict scrutiny
because they served a compelling interest (“ the ‘ uniform,
mandatory participation in the Federal income tax system,’”
170 F.3d at 178 ( citation omitted), and w ere narrowly
tailored to serve that interest in the sense relevant in
this context. See id. at 179-80.
Properly understood, therefore, the
Adams footnote doe s not support the Commonwealth’s position here.
In this case, as previously explained, 34 Pa. Cons. Sat. Ann.
§ 2901(d) does not categorically exclude persons wishing to
keep animals for religious reasons . In addition, 34 Pa. Cons.
Stat. Ann. § 2965(a)( 1)-(3) contains secular exemptions that preclude the
fee scheme from satisfying the requirement of general
applicability. As a result, the fee provisions must satisfy strict
scrutiny.
III.
In order to survive strict scrutiny, the fee scheme
“must advance interests of the highest order and must be
narrowly tailored in pursuit o f those interests.”
Lukumi, 508 U.S. at 546 ( internal quotation marks omitted). In this
case, the Game Commission assert s that the fee
scheme serves two compelling interests:
(1) “promot[ing] the welfare and prosperity of wildlife
populations” and
(2) “maintaining the fiscal integrity of its permit fee system.”
Appellants’ Br. at 28.
It is doubtful that these
interests qualify as compelling. In Lukumi, 508 U.S. at 546 -47, the
Court held that “[w]h ere government restricts only conduct
protected by the First Amendment and fails to enact feasible measures to
restrict other conduct producing substantial harm or alleged
harm of the same sort, the interest given in justification of the
restriction is not compelling.” Here, the fee scheme has precisely
this flaw. Denying fee exemptions to otherwise qualified
persons who wish to keep animals for religious reasons may produce
a small decrease in the total number of wild animals held in
captivity, but if the Commonwealth regarded it as a matter “of the highest
order” to reduce the number of wild animals in captivity, it could do much
more. For one thing, it could increase the fees for menagerie and
exotic wildlife possession perm its, now set at $100 and
$50 per year respectively, to levels that would provide a substantial
disincentive for those who are not poor. Similarly, if
the Common wealth believes that persons who cannot afford a $100 or
$50 annual permit fee should not keep wild animals
because such persons are likely to find it difficult to provide
adequate care for the animals, the Commonwealth could do
away with all “hardship” waivers. Because the Commonwealth
sets its fees at modest levels and provides for “hardship”
waivers, the Commonwealth clearly does not regard the
objective of discouraging the possession of wild animals as a matter
“of the highest order.”
Much the same is true with respect to the
Commonwealth’s asserted interest in the financial integrity of the fee
system. Because the Common wealth makes waivers avail able for
persons seeking to keep animals for secular reasons, the Commonwealth
plainly does not regard waivers as a great threat.
Further more, even if the Commonwealth’s
asserted interests are compelling, the fee scheme is not narrowly tailored
to further them. If the Commonwealth wishes to reduce the number of
wild animals held in captivity or to reduce t he number held by
persons who cannot afford a $100 or $50 annual fee (and these are
the only effect s that denying the exemptions at issue can have),
the scheme is substantially under inclusive for the reasons already set out.
As a result, the scheme cannot satisfy strict scrutiny.
We therefore affirm the injunction issued by the District Court.
IV.
We proceed to address the question
of the individual defendants’ liability for money dam ages. The
District Court granted summary judgment to Merluzzi and Hambley on
the ground that they “did not participate in the decision to deny
Black Hawk an exemption” and did not “‘direct[] others to violate’” his
rights. Black Hawk , 225 F. Supp. 2d at 479 (brackets in
original). The Court excluded Ross, Littwin, and Overcash from
this analysis, because Ross “had ‘ actual knowledge’ and
acquiesced in the decision to deny Black Hawk an exemption,” and
because Littwin and Overcash conceded that they “were personally
involved in the decision to deny Black Hawk an
exemption.” Id. (citing Andrews v. City of Philadelphia, 895
F.2d 1469, 1478 (3d Cir. 1990) (holding that supervisor liability can
be established “‘ through al legations of personal direction or of actual
knowledge and acquiescence’”) ( quoting Rode v. Dellarciprete, 845 F.2d 11
95, 1207 (3d Cir. 1988))). Nevertheless, the Court determined
that all three remaining individual defendants were entitled to
qualified immunity.
We hold that all of the defendants were entitled
to qualified immunity, and we therefore affirm the order of the District
Court on this basis. A government officer defendant sued for a
constitutional violation is entitled to qualified immunity
if a reasonable officer could have believed that the challenged
conduct was lawful under the circumstances. Anderson v.
Creighton , 483 U.S. 63 5, 641 (19 87). Qualified immunity
“provides ample protect ion to all but the plainly
incompetent or those w ho knowingly violate the la w.”
Malley v. Briggs , 475 U.S. 335, 341 (1986). See also Saucier
v. Katz, 533 U.S. 194, 202 (2001).
In this case, the governing
precedents were complex and developing. Although we now
hold that t he waiver procedure in 34 P a. Con s. St at.
A nn. §2901(d) is sufficiently open-ended to constitute
a system of individual exemptions, a
reasonable officer in the position of the
defendants could have concluded otherwise. Section
2901(d) is more structured than the unemployment
compensation statutes, which permitted exemptions for
“good cause, ” see Smith, 494 U.S. at 884, and a reason
able officer could have viewed § 2901(d) as analogous
for present purposes to the Internal Revenue Code
provisions that Adams held did not provide for individual
exemptions. See 170 F.3d at 181 n.10.
The meaning of the general
applicability principle was also not clearly developed in the
governing cases at the time in question. Smith did not explain
how to identify laws that fail the test, and Lukumi, while providing
useful guidance, explicitly disclaimed any intention of
“defin[i ng] with precision . . . whether a prohibition is of general
application.” 508 U.S. at 543. Moreover, our decisions on
March 3 and 4, 1999, in Fraternal Order of Police and Adams
could have reasonably been interpreted as sending conflicting
signals. As just discussed, the provisions of the Internal
Revenue Code at issue in Adams could have been reasonably
regarded as similar to the provisions of the Pennsylvania Game and
Wildlife Code involved here, but we held that the Internal
Revenue Code provisions did not create a regime of individual
exemptions. The previous day, in Fraternal Order of
Police, we had explained that the individual
exemption rule is simply one application of the broader
general-applic ability requirement. See 170 F.3 d
at 365-66. Thus, reading Adams in light of Fraternal
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 denial 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. |
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