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Title Blackhawk v Pennsylvania

Date 2004

By Alito

Subject First Amendment\Freedom of Religion

Contents

Page 1

LEXSEE 381 F.3D 202

DENNIS L. BLACKHAWK v. COMMONWEALTH OF PENNSYLVANIA; PENNSYLVANIA GAME COMMISSION; VERNON ROSS, Director; THOMAS R. LITTWIN, Law Enf. Director; FREDERICK MERLUZZI, Enf. Officer; BARRY HAMBLEY; DAVID E. OVERCASH, in their individual and official capacities, Vernon Ross, Thomas Littwin, David E. Overcash, Appellants, No. 02-3947; DENNIS L. BLACKHAWK, Appellant, No. 02-4158 v. COMMONWEALTH OF PENNSYLVANIA; PENNSYLVANIA GAME COMMISSION; VERNON ROSS, Director; THOMAS R. LITTWIN, Law Enf. Director; FREDERICK MERLUZZI, Enf. Officer; BARRY HAMBLEY; DAVID E. OVERCASH, in their individual and official capacities

Nos. 02-3947 / 02-4158

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

381 F.3d 202; 2004 U.S. App. LEXIS 17730

July 21, 2003, Argued

August 20, 2004, Opinion Filed

PRIOR HISTORY: **1 ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA. (Dist. Court No. 99-cv--02048). District Court Judge: Hon. Thomas I. Vanaskie. Black Hawk v. Pennsylvania, 225 F. Supp. 2d

465, 2002 U.S. Dist. LEXIS 18095 (M.D. Pa., 2002)

DISPOSITION: Affirmed.

LexisNexis(R) Headnotes

COUNSEL: D. MICHAEL FISHER, HOWARD G. HOPKIRK (Argued), CALVIN R. KOONS, JOHN G. KNORR, III, Office of Attorney General, Appellate Litigation Section, Harrisburg, Pa., Counsel for Appellants/Cross-Appellees.

GARY S. GILDIN (Argued), Carlisle, Pa., THOMAS B. SCHMIDT, III, PEPPER HAMILTON LLP, Harrisburg, Pa., Counsel for Appellee/Cross-Appellant.

JUDGES: Before: ALITO and FUENTES, Circuit

Judges, and SURRICK, * District Judge.

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

OPINIONBY: ALITO

OPINION: *204 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 vi- olates his right to the free exercise of religion. Blackhawk in turn cross-appeals the District Court's holding that the Game Commission officials **2 are not personally li- able for violating his rights. We affirm the District Court in both respects.

Lakota Indians believe that black bears protect the Earth, sanctify religious ceremonies, and imbue wor- shipers with spiritual strength. Although Blackhawk is a Lenape Indian by birth, he was adopted by elders of the Oglala Lakota and Seneca tribes, who schooled him in the religious traditions of the Lakota and Iroquois peo- ple. 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 *205 bears and his role in these ceremonies, some consider him to be a holy man. The Pennsylvania Game and Wildlife Code requires

381 F.3d 202, *205; 2004 U.S. App. LEXIS 17730, **2

Page 2

permits in order to engage in a variety of different ac- tivities, including such things as bird **3 banding (34

Pa. Cons. Stat. Ann. § 2921), falconry (34 Pa. Cons. Stat. Ann. § 2925), various types of field dog trials (34 Pa. Cons. Stat. Ann. § 2943), fox chasing (34 Pa. Cons. Stat. Ann. § 2945), maintaining a "menagerie" (34 Pa. Cons. Stat. Ann. § 2964), and either dealing in or possessing

"exotic wildlife." 34 Pa. Cons. Stat. Ann. §§ 2962, 2963. Annual fees ranging from $25 to $300 are collected for these permits, see 34 Pa. Cons. Stat. Ann. § 2904, and the revenues from all of these fees comprise about one percent of the Game Commission's annual intake.

Although persons wishing to keep wildlife in captivity must generally obtain a menagerie or exotic wildlife pos- session 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 "nationally recog- nized circus es ." 34 Pa. Cons. Stat. Ann. § 2965(a)(1)-

(3). In addition, the director of the Game Commission

**4 is authorized to waive a permit fee "where hard- ship or extraordinary circumstance warrants," so long as the waiver is "consistent with sound game or wildlife man- agement 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 per- mit," 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 ex- otic wildlife dealer permit, which costs $200 per year, see 34 Pa. Cons. Stat. Ann. § 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 $ **5 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 in- quiry 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 un- der protest after citing his religious purpose and alleging financial hardship. He then wrote to his representative in the state legislature, Keith McCall, and McCall in- tervened 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 **6 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 re- gardless of his financial circumstances." Black Hawk v. Pennsylvania, 225 F. Supp. 2d 465, 470 (M.D. Pa.

2002). The *206 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 assess- ing the fee or confiscating the bears and also seek- ing money damages from Merluzzi, Overcash, Littwin, Hambley, and Ross. Prior to the District Court's disposi- tion 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 **7 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 prop- erty 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 both bears 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 Hawk v. Pennsylvania, 114 F. Supp. 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 motivated activities from the permit fee violated the First Amendment's Free Exercise Clause. See Black Hawk, 225 F. Supp. 2d at 465. The Court

381 F.3d 202, *206; 2004 U.S. App. LEXIS 17730, **7

Page 3

held that the permit fee requirement **8 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, 108 L. Ed. 2d 876, 110 S. Ct. 1595 (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 Commission was unable to "demonstrate a compelling interest in refusing to grant a religious exemp- tion." Id. at 477. The District Court accordingly enjoined the Game Commission from charging Blackhawk a per- mit fee. However, the Court declined to hold the individ- ual 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 District Court erred in grant- ing summary judgment in favor of the individual **9 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 interpreta- tion of the Constitution. United States v. Scarfo, 263 F.3d

80, 91 (3d Cir. 2001). II.

Blackhawk's free exercise claim requires us to apply the Supreme Court's decisions *207 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, 124 L. Ed. 2d 472, 113 S. Ct. 2217 (1993)

("Lukumi"), and our decisions in FOP Newark Lodge

No. 12 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 chap- ter in the interpretation of the Free Exercise Clause. The Court began by reaffirming the principle that the Clause prohibits "all 'governmental **10 regulation of reli- gious beliefs as such.'" 494 U.S. at 877 (quoting Sherbert v. Verner, 374 U.S. 398, 402, 10 L. Ed. 2d 965, 83 S. Ct. 1790 (1963)) (emphasis in Sherbert). The Court held, however, that most laws that burden religiously motivated conduct stand on a different footing. Rejecting the argu-

ment that such laws must generally satisfy strict scrutiny, the Court concluded that the First Amendment is not or- dinarily 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 over- rule Sherbert and other decisions that "invalidated state unemployment compensation rules that conditioned the availability of benefits upon an applicant's willingness

**11 to work under conditions forbidden by his reli- gion." 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 884. The Court wrote:

The Sherbert test, it must be recalled, was developed in a context that lent itself to in- dividualized 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 exemp- tions, it may not refuse to extend that system to cases of 'religious hardship' without com- pelling reason.

Id. at 884 (citation omitted).

In Lukumi, the Court applied Smith to a web of city ordinances that interfered with the practice of Santeria, a religion that employs the sacrifice of animals in its rit- uals. 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, **12 meat production, pestex- termination, euthanasia, and the use of rabbits to train greyhounds. Id. at 536-37. The Court held that these

"gerrymandered" ordinances 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

381 F.3d 202, *207; 2004 U.S. App. LEXIS 17730, **12

Page 4

prohibition is of general *208 application," id. at

543, the Court's discussion of the requirement is in- structive. The principal ordinances challenged in Likumi were claimed to advance two interests - preventing cru- elty to animals and protecting public health -- but the Court concluded that the ordinances failed the general applicability standard because they were "underinclusive for their asserted ends" and "the underinclusion was substantial, not inconsequential." Id. at 543. The Court explained that the ordinances were "underinclusive" be- cause they "fail ed to prohibit nonreligious conduct that endanger ed these interests in a similar or greater **13 degree than Santeria sacrifice does." Id. The Court added: The ordinances "have every appearance

of a prohibition that society is prepared to impose upon Santeria worshippers but not upon itself." . . . 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, 105 L. Ed. 2d 443, 109 S. Ct. 2603 (1989) (Scalia, J. concurring in part and concurring in judgment) .

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 wear- ing beards 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, dis- cretionary exemptions provides an opportunity for the decision maker to decide that "secular motivations are more important than religious motivations" and thus to give disparate **14 treatment to cases that are oth- erwise comparable. 170 F.3d at 365. "If anything," we stated, "this concern is only further implicated when the government does not merely create a mechanism for in- dividualized exemptions, but instead, actually creates a categorical exemption for individuals with a secular ob- jection but not for individuals with a religious objection." Id. Concluding that the policy in question was suspect for precisely this reason, we wrote:

The medical exemption raises concern be- cause it indicates that the Department has made a value judgment that secular (i.e., medical) motivations for wearing a beard are important enough to overcome its general in- terest in uniformity but that religious motiva- tions are not. . . . When the government makes

a value judgment in favor of secular motiva- tions, but not religious motivations, the gov- ernment's actions must survive heightened scrutiny.

Id. at 366. We therefore applied strict scrutiny and held that the no-beards policy could not satisfy that standard. Id. at 366-67.

In Tenafly, we considered a local ordinance that was neutral and generally applicable on its **15 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 or advertisement, or other matter upon any pole, tree, curbstone, sidewalk or elsewhere, in any public street or public place, excepting such as may be autho- rized by this 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 num- ber signs, signs pointing the way to area churches, lost animal signs, holiday symbols, and orange ribbons signi- fying *209 opposition to school regionalization. Id. at

151. By contrast, the local government refused to permit Orthodox Jews to place lechis on utility poles in order to construct an eruv, a ceremonial demarcation of an area within which Orthodox Jews may push or carry objects on the Sabbath. Id. 309 F.3d 144, 152. We thus held that

"the Borough's selective, discretionary application of the ordinance violates the neutrality principle of Lukumi and Fraternal Order of Police because it 'devalues' Orthodox

**16 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 follows. The Free Exercise Clause forbids any regulation of beliefs as such. See Lukumi, 508 U.S. at 533; Smith, 494 U.S. at

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 does 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 **17 applicability requirement if it burdens a category of religiously motivated conduct but exempts or does not reach a substantial category of con- duct that is not religiously motivated and that undermines

381 F.3d 202, *209; 2004 U.S. App. LEXIS 17730, **17

Page 5

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; FOP, 170 F.3d 359, 364-66. If a law burdening religiously motivated conduct is not neutral and generally applicable it must satisfy strict scrutiny. See Lukumi, 508 U.S. at 546; Smith 494 U.S. at 878. Accordingly, it must serve a compelling government in- terest 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 because 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. at 537; Smith, 494 U.S. at 884, Fraternal Order, 170 F.3d at 364-

65. **18 B.

The fee requirement at issue here fails the general ap- plicability requirement for two reasons. First, the Game Code creates a regime of individualized, discretionary ex- emptions that is not materially distinguishable from those that triggered strict scrutiny in the unemployment com- pensation cases. Under the laws involved in those cases, benefits were generally denied if a person had quit or refused work, but individualized exemptions were avail- able for persons who had quit or refused work for "good cause." See Smith, 494 U.S. at 884. Under 34 Pa. Cons. Stat. Ann. § 2901(d), a person may obtain a waiver from the fee requirement if the person shows "hardship" or "ex- traordinary circumstances" and the waiver is consistent with "sound game or wildlife management activities or the intent of the Game and Wildlife Code ." Blackhawk does not claim that he is entitled to an *210 exemption from the "hardship" requirement, and the regulation's re- maining requirements - consistency with sound game or wildlife management activities or the intent of Code - are sufficiently open-ended to bring the regulation within the individualized exemption rule.

The **19 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, be- cause keeping animals for religious reasons is not consis- tent 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 delegated the Game Commission the responsibility to "protect, propagate, manage and preserve the game or wildlife of this Commonwealth." 34 Pa.C.S.

§ 321. The Game Commission normally con-

siders the keeping of live animals in captivity as being inconsistent with sound game and wildlife management, or the overall purpose of the Game Code. This is because in gen- eral keeping animals in captivity does not provide any positive benefit to the welfare of populations of wildlife which live in their natural state within the Commonwealth. The only exception would be where such activ- ity is done with the intent of reintroducing those animals - or their offspring - into the wild; the animals are members of an endan- gered species; or the keeping **20 of the animals in captivity provides some other tan- gible 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 Pa. Cons. Stat. Ann. § 2901(d) does not create a regime of discretionary, individualized exemptions under which Blackhawk might qualify if his conduct were not reli- giously motivated. The italicized phrases show that the Game Commission's policy does not categorically disfa- vor the keeping of wild animals in captivity. Although the declaration suggests that the keeping of wild animals is inconsistent with state wildlife policy unless doing so pro- vides 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, un- der 34 Pa. Cons. Stat. Ann. § 2901(d), a person seeking a waiver need not show that the waiver would be "con- sistent with sound game or wildlife management activi- ties." Instead, a person seeking a waiver may show that it would be "consistent with . . . the intent of the Game and Wildlife Code , **21 " id., and the Code clearly does not embody a firm or uniform policy against keeping wild animals in captivity. For one thing, it allows anyone to keep wild animals if they pay a $50 or $100 fee. See

34 Pa. Cons. 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 enti- ties such as zoos and "nationally recognized circuses." See

34 Pa. Cons. Stat. Ann. § 2965(a)(1)-(3). These exemp- tions serve the Commonwealth's interests in promoting commerce, recreation, and education, and consequently, a waiver that furthered these or analogous interests might be viewed as consistent with the Code's intent. In sum, then, the waiver mechanism set out in 34 Pa. Cons. Stat. Ann. § 2901(d) creates a regime of individualized, dis- cretionary exemptions that triggers strict scrutiny.

381 F.3d 202, *211; 2004 U.S. App. LEXIS 17730, **21

Page 6

*211 The categorical exemptions in 34 Pa. Cons. Stat. Ann. § 2965(a) for zoos and "nationally recognized

**22 circuses" likewise trigger strict scrutiny because at least some of the exemptions available under this pro- vision undermine the interests served by the fee provision to at least the same degree as would an exemption for a person like Blackhawk.

The Commonwealth 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." Appellants' Br. at 12.

The exemptions for "nationally recognized circuses" and zoos 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) **23 for persons with secular motivations.

The exemptions for nationally recognized circuses and zoos also work against the Commonwealth's asserted goal of discouraging the keeping of wild animals in cap- tivity except where doing so provides a "tangible" 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 circum- stances (for example, if a zoo is conducting research on animals that 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 tangi- ble benefit for Pennsylvania's wild animals. Yet under the statute noted above, all zoos are exempted. Accordingly, the challenged fee provisions are substantially "underin- clusive" 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 ex- ception in Smith and the undercover uniform exception" in Fraternal Order of Police, but **24 this argument is flawed. Appellants' Br. at 24 (footnote omitted). In Smith, the state law prohibited the knowing or intentional pos- session of a controlled substance unless the 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 presumably 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 un- dermine the purpose of the state's drug laws. The same is true of the undercover exception in Fraternal Order of Police. There, police officers were prohibited from wear- ing 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, allow- ing undercover officers to wear beards did not undermine the purpose of the no-beard policy. See Fraternal Order,

170 F.3d at 366. As explained above, however, the ex- emptions for circuses and zoos work *212 against both

**25 of the interests that the permit fee is said to serve. C.

In arguing that the fee provision should not be sub- jected to strict scrutiny, the Commonwealth takes the posi- tion 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 thrown 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 presented here with a neutral and generally applicable user fee that is uniformly im- posed 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 **26 from paying the fee on religious grounds would be unlikely to prevail. Here, by contrast, we are confronted with a scheme that features both individualized and categori- cal secular exemptions, and it is these that trigger strict scrutiny. Moreover, because the state statute permits in- dividualized exemptions for entirely secular reasons, we see no plausible ground on which it could be argued that the Establishment Clause precludes 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 rea- sons. Rather, he asked for a waiver "because of his Native American beliefs and because the fee would cause him

381 F.3d 202, *212; 2004 U.S. App. LEXIS 17730, **26

Page 7

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 finan- cial hardship. Instead, the Commission concluded that

"Blackhawk would not be entitled to an exemption regard- less of his financial circumstances." Id. (emphasis added). Thus, although the Commonwealth argues at some length that Blackhawk **27 could scrape together the money to pay the fee, that question is not before us. Finally, the Commonwealth argues that the fee provisions at is- sue here are similar to provisions of the Internal Revenue Clause involved in Adams v. C.I.R., 170 F.3d 173 (3d Cir.

1999). In Adams, a taxpayer did not pay taxes because she had a religious objection to the use of tax revenue for military purposes, and the IRS assessed deficiencies and penalties against her. Id. at 174-75. The taxpayer argued that 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.

§ 2000bb-1, which remained applicable to the federal government despite City of Boerne v. Flores, 521 U.S.

507, 138 L. Ed. 2d 624, 117 S. Ct. 2157 (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 in- volving free exercise challenges to the **28 collection of taxes, Adams held that the RFRA standard was met.

170 F.3d at 175-80. The Adams panel then rejected the taxpayer's *213 argument that she had met the statu- tory 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 cir- cumstances and unfairness." See 26 U.S.C. § 6651(a) (no penalty for failure to file if taxpayer demonstrates "rea- sonable cause"); 26 U.S.C. § 6654(e)(3) (no addition for underpayment of estimated tax where failure is due to

"unusual circumstances" and addition would be "against equity and good conscience"). Invoking a "well estab- lished line of cases involving challenges to the collection of taxes on religious grounds," 170 F.3d at 181, the panel held in the 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 **29 similar to that in the unemployment compensation cases and that

"the failure to extend those exemptions to a case of reli- gious hardship constitute d discrimination on the basis of religious belief." Id. at 181 n.10. Adams held that the provisions of the Internal Revenue Code on which the taxpayer relied did not create a scheme of individual ex- emptions 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 are categorically inapplicable to 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 per- son 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 gen- eral applicability because exempting the class of persons who fall within the statutory exemption undermines the statute's goals to at least **30 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 ad- dress 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 made 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 were narrowly tailored to serve that interest in the sense relevant in this context. See id. at 179-80.

Properly understood, therefore, the Adams footnote does 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 ex- emptions 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 **31 strict scrutiny, the fee scheme "must advance interests of the highest order and must be narrowly tailored in pursuit of those interests." Lukumi, 508 U.S. at 546 (internal quotation marks omit- ted). In this case, the Game Commission asserts that the fee scheme serves two compelling interests: (1) "promot- ing the welfare and prosperity of wildlife populations" and (2) *214 "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 "where government restricts only conduct protected by the First Amendment and fails to enact feasible measures to re- strict 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

381 F.3d 202, *214; 2004 U.S. App. LEXIS 17730, **31

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has precisely this flaw. Denying fee exemptions to oth- erwise 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 **32 animals in captivity, it could do much more. For one thing, it could increase the fees for menagerie and exotic wildlife possession permits, 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 Commonwealth believes that persons who cannot afford a $100 or $50 annual permit fee should not keep wild an- imals 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 in- tegrity of the fee system. Because the Commonwealth makes waivers available for persons seeking to keep ani- mals for secular reasons, the Commonwealth plainly does not regard waivers as a great threat.

Furthermore, even if the Commonwealth's asserted interests are compelling, the fee scheme is not narrowly tailored **33 to further them. If the Commonwealth wishes to reduce the number of wild animals held in cap- tivity or to reduce the number held by persons who cannot afford a $100 or $50 annual fee (and these are the only effects that denying the exemptions at issue can have), the scheme is substantially underinclusive for the reasons al- ready 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 indi- vidual defendants' liability for money damages. 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 analy- sis, 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) **34 (holding that supervisor liability can be established "'through allega- tions of personal direction or of actual knowledge and acquiescence'") (quoting Rode v. Dellarciprete, 845 F.2d

1195, 1207 *215 (3d Cir. 1988))). Nevertheless, the Court determined that all three remaining individual de- fendants 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 de- fendant sued for a constitutional violation is entitled to qualified immunity if a reasonable officer could have be- lieved that the challenged conduct was lawful under the circumstances. Anderson v. Creighton, 483 U.S. 635, 641,

97 L. Ed. 2d 523, 107 S. Ct. 3034 (1987). Qualified im- munity "provides ample protection to all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341, 89 L. Ed. 2d 271,

106 S. Ct. 1092 (1986). See also Saucier v. Katz, 533 U.S.

194, 202, 150 L. Ed. 2d 272, 121 S. Ct. 2151 (2001).

In this case, the governing precedents were complex and developing. Although we now hold that the waiver procedure in 34 Pa. Cons. Stat. Ann. § 2901(d) **35 is sufficiently open-ended to constitute a system of indi- vidual exemptions, a reasonable officer in the position of the defendants could have concluded otherwise. Section

2901(d) is more structured than the unemployment com- pensation statutes, which permitted exemptions for "good cause," see Smith, 494 U.S. at 884, and a reasonable offi- cer 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 "defining 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 send- ing conflicting signals. As just discussed, the provisions of the Internal Revenue Code at issue **36 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 exemp- tions. The previous day, in Fraternal Order of Police, we had explained that the individual exemption rule is simply one application of the broader general-applicability re-

381 F.3d 202, *215; 2004 U.S. App. LEXIS 17730, **36

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quirement. See 170 F.3d 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 gen- eral 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

**37 appeal and cross-appeal, we *216 affirm the judgment of the District Court in all respects.


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